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Forrest Lake Townhouse Association v. Billy B. Martin: Defendant's Motion for Summary Judgment and No Evidence Motion for Summary Judgment

Forrest Lake Townhouse Association v. Billy B. Martin: Defendant's Motion for Summary Judgment and No Evidence Motion for Summary Judgment

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Published by cindy_george
The Forrest Lake Townhouse Association sued Billy B. Martin in December 2012 for placing a flagpole on a cantilever protruding from his porch.
The Forrest Lake Townhouse Association sued Billy B. Martin in December 2012 for placing a flagpole on a cantilever protruding from his porch.

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Published by: cindy_george on Jan 21, 2014
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04/14/2014

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1 CAUSE NO. 2012-72008 FORREST LAKE TOWNHOUSE § IN THE DISTRICT COURT
 
ASSOCIATION, INC. § § VS. § OF HARRIS COUNTY, TEXAS § BILLY B. MARTIN § 157TH JUDICIAL DISTRICT
DEFENDANT
S MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
 TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Billy B. Martin, Defendant in the above numbered and entitled cause of action, and files this his Motion for Traditional Summary Judgment and No-Evidence Motion for Summary Judgment, and respectfully shows the following:
SUMMARY OF THE ARGUMENT
On the facts of this particular case,
Plaintiff’
s lawsuit is precluded due to a 2013 amendment of the T
EX
.
 
P
ROP
.
 
C
ODE
 § 202.011. In addition, Plaintiff did not comply with notice provisions required under T
EX
.
 
P
ROP
.
 
C
ODE
 § 209.006, § 209.007 or § 209.008. As such, the Defendant
respectfully requests that this Court dismiss Plaintiff’s case as a matter of law
, with prejudice to refiling the same.
FACTUAL BACKGROUND
This case concerns a flagpole erected by Defendant, Billy Martin in front of his townhouse in Houston. The flagpole is less than 20 feet tall, made of aluminum, silver in color, and is generally similar and/or indistinguishable from flagpoles commonly seen throughout Houston and the United States.
1
 The flagpole is not installed into the ground, but rather, is suspended a few inches
above the
1
See
 affidavit of Billy Martin attached to this motion.
 
2
 ground 
 via its attachment to a cantilevered wooden plank that
extends from Defendant’s
 front porch a few feet. The wooden plank is engineered such that it is reinforced with metal, counterweighted by ten cinder blocks that are covered with an aesthetic, decorative bench,
and attached to Defendant’s
front porch.
See generally
,
Defendant’s Exhibits 1
-11
attached to this motion. The first few vertical feet of the flagpole, and much of the cantilever system which supports it, are largely covered
 by a hedge in front of the Defendant’s residence. The Plaintiff has sued the Defendant alleging that the flagpole is a violation of the “general
scheme and
 plan for the development and building in the Subdivision.”
See
 
Plaintiff’s Original
Petition for Injunction and Damages filed December 6, 2012. Essentially, the Plaintiff believes that the flagpole is erected on the common area of property owned by the
 property owners’ association and that its presence violates the Reservations, Restrictions and Easements (“Declaration”) for
Forrest Lake Townhouse Association, Inc. By virtue of the fact that the flagpole does not actually touch any part of the ground below it, and its attachment to his front porch, Defendant asserts that the flagpole is not erected on the common area of the property owned by the Plaintiff. Furthermore, Defendant believes that his flagpole complies with both federal and state laws which govern the use of flagpoles to display the American flag. That is, the size, construction material and finish of the flagpole itself meets the requirements of all laws and regulations, and moreover, there is no evidence in this case that the flagpole has caused offense or real injury to
any of the Defendant’s neighbors or their property
. Lastly, Defendant asserts that
if the Plaintiff’s
legal position is correct, then there is a certain selective and bizarre enforcement scheme afoot here because numerous other members of the townhouse association also patriotically display their American flags of various sizes, by either flying them above, or actually staking them into, the common area ground owned by the Plaintiff, as
 
3 well
. See generally
,
Defendant’s Ex
hibits 12-18
 attached to this motion.
To the Defendant’s
knowledge, none of those persons have been sued or targeted by lawyers hired by the property
owners’ association for displaying the American flag, on a flagpole or otherwise.
On September 12, 2012, Plaintiff, via letter from attorney M. Susan Rice, notified Defendant
in writing that “It has been brought to our attention that you are violating the Declaration because you erected a flagpole on the common area of the Association.”
 
See
 
Defendant’s Exh
ibit 19
to this motion. Ms. Rice further advised therein that
“Notice is hereby given that you must remove the flagpole from the Association’s common area immediately.”
 
 Id.
 The president of the Forrest Lake Townhouse Association, Mr. Jim Elswick, later emailed the Defendant on November 15, 2012 at 2:30 p.m. informing the Defendant that an executive meeting would take place later that evening in which
the Defendant could protest the Plaintiff’s allegations concerning the flagpole’s location.
See
 
Defendan
t’s Exhibit
20
 attached to this motion. In response, the Defendant understandably  protested, via email reply sent at 4:37 p.m., that he was unavailable and not provided adequate notification of the meeting announced to begin within just a few hours.
 Id.
 It is unknown to the
Defendant whether the Plaintiff actually convened an executive meeting outside of the Defendant’s
 presence to discuss the issue of the flagpole. On December 6, 2012, the Plaintiff filed suit seeking a permanent injunction requiring removal of the flagpole, fines of $200 per day for each day that the flagpole had been erected, and attorney fees of some amount. On December 31, 2012, the Plaintiff filed a Notice of Lis Pendens
2
 
2 Interestingly, the
 Notice of Lis Pendens
 (which incorrectly references a lawsuit pending in Travis County, Texas) was signed on November 27, 2012 by Forrest Lake Townhouse Association President, Jim Elswick. Yet, this lawsuit was not filed until December 6, 2012. Of course, the lawful purpose of a lis pendens is to publicly record and announce the  potential of clouded title to real property to a prospective buyer due to an existing lawsuit, not a lawsuit t
hat hasn’t been
filed yet. It is therefore
unclear how the Plaintiff’s president could
read and acknowledge the lis pendens document under oath (via notary) on November 27, 2012, when his notarized signature
 predates
 the lawsuit filed in this case and is attached to a notice of lis pendens which quite impossibly references the lawsuit and cause number in this case
 — 
a lawsuit

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