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CAUSE NO. 2012-72008 FORREST LAKE TOWNHOUSE ASSOCIATION, INC. VS. BILLY B.

MARTIN IN THE DISTRICT COURT

OF HARRIS COUNTY, TEXAS 157TH JUDICIAL DISTRICT

DEFENDANTS MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NOEVIDENCE 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, Plaintiffs lawsuit is precluded due to a 2013 amendment of the TEX. PROP. CODE 202.011. In addition, Plaintiff did not comply with notice provisions required under TEX. PROP. CODE 209.006, 209.007 or 209.008. As such, the Defendant respectfully requests that this Court dismiss Plaintiffs 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.

ground via its attachment to a cantilevered wooden plank that extends from Defendants 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 Defendants front porch. See generally, Defendants 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 Defendants 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 Plaintiffs 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 Defendants neighbors or their property. Lastly, Defendant asserts that if the Plaintiffs 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 2

well. See generally, Defendants Exhibits 12-18 attached to this motion. To the Defendants 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 Defendants Exhibit 19 to this motion. Ms. Rice further advised therein that Notice is hereby given that you must remove the flagpole from the Associations 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 Plaintiffs allegations concerning the flagpoles location. See Defendants 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 Defendants 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 Pendens2

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 that hasnt been filed yet. It is therefore unclear how the Plaintiffs 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 casea lawsuit

against the Defendant which reiterated that Plaintiff was seeking costs and injunctive relief thereby affecting the interests of the real property described therein. See Defendants Exhibit 21 attached to this motion. ARGUMENT AND ANALYSIS Both federal and state law in Texas take a dim view of efforts to restrict the display of the flag of the United States. In 2005, the United States Congress enacted the Freedom to Fly the American Flag Act , Public Law 109-243, 120 Stat. 572, (the Act). The Act was signed into law by the signature of former President George W. Bush. In relevant part, the Act reads: A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. As stated in the preamble to the Act, the intent of the Act is To ensure that the right of an individual to display the flag of the United States of America on residential property not be abridged. Id. It is undisputed in this case that the Defendants front porch is residential property in which he has a separate ownership interest or a right to exclusive possession or use. The Plaintiffs efforts in this lawsuit also violate TEX. PROP. CODE 202.011, as amended by the 2013 Texas Legislature,3 and signed into law by Governor Rick Perry. TEX. PROP. CODE 202.011, reads in relevant part:

and cause number which did not yet exist on November 27, 2102 when Mr. Elswick acknowledged under oath that they did, in fact, exist. 3 Texas House Bill No. 680 was passed 146-1 by the Texas House of Representatives on April 3, 2013 and passed 31-0 in the Texas Senate. The bill was signed by Governor Perry and became effective on June 14, 2013. See Exhibit 22 to this motion; see also http://www.capitol.state.tx.us/BillLookup/Actions.aspx?LegSess=83R&Bill=HB680

(a) A property owners' association may not, except as provided in this section, adopt or enforce a dedicatory instrument provision that prohibits, restricts, or has the effect of prohibiting or restricting an owner from the display of: (1) the flag of the United States of America; (b) A property owners' association may adopt or enforce reasonable dedicatory instrument provisions: (2) that regulate the size, number, and location of flagpoles on which flags are displayed, except that the regulation may not prevent the installation or erection of at least one flagpole per property that: (A) is not more than 20 feet in height and, subject to applicable zoning ordinances, easements, and setbacks of record, is located in the front yard of the property; or (B) is attached to any portion of a residential structure owned by the property owner and not maintained by the property owners' association; (c) A property owner who has a front yard and who otherwise complies with any permitted property owners' association regulations may elect to install a flagpole in accordance with either Subsection (b)(2)(A) or Subsection (b)(2)(B). TEX. PROP. CODE 202.011 (Emphasis added). The Defendants flag pole is not more than 20 feet in height and is located in (or more precisely, supported by a plank that is suspended a few inches above) the front yard of the property. The flagpole is also attached to a portion of the residential structure owned by the Defendant (his front porch) and not maintained by the property owners association. Thus, under either Subsection (b)(2)(A) or Subsection (b)(2)(B), the Defendants flagpole complies with the provisions of TEX. PROP. CODE 202.011, and this case should therefore be dismissed as a matter of law.

PLAINTIFF HAS NOT COMPLIED WITH SEVERAL CONDITIONS PRECEDENT REQUIRED UNDER THE TEXAS PROPERTY CODE Before a property owners association may sue a property owner in a case such as this, Texas law requires certain notice be provided to ensure that the rights of property owners are preserved and protected against the kinds of abuse and overreach unfortunately displayed by the Plaintiff in this lawsuit. In this case, Plaintiff has failed to comply with the provisions of TEX. PROP. CODE 209.006. In relevant part, the statute reads: Sec. 209.006. NOTICE REQUIRED BEFORE ENFORCEMENT ACTION. (a) Before a property owners' association may suspend an owner's right to use a common area, file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association's lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or bylaws or rules of the association, the association or its agent must give written notice to the owner by certified mail, return receipt requested. (b) The notice must: (1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner; and (2) inform the owner that the owner: (A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension unless the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months; (B) may request a hearing under Section 209.007 on or before the 30th day after the date the owner receives the notice;

TEX. PROP. CODE 209.006. (Emphasis added).

Clearly, the Plaintiff is filing suit in this case unrelated to collection of regular or special assessments. See Plaintiffs Original Petition for Injunction and Damages. Plaintiffs lawsuit also makes reference to removal of the flagpole from the common area. Id. at IV. Thus, TEX. PROP. CODE 209.006(a) is applicable to this case and notice is required before an enforcement action such as this lawsuit. The only potentially satisfactory notice provided by the Plaintiff concerning the Defendants flagpole is the September 12, 2012 letter from Ms. Rice. See Defendants Exhibit 19. The record in this case inarguably demonstrates that the Plaintiffs September 12, 2012 notice letter is substantively deficient. First, the letter does not describe an amount certain due the association from the owner as required by TEX. PROP. CODE 209.006(b)(1). Second, it makes no mention that Defendant was entitled to a reasonable period to cure the violation and avoid the fine or suspension as required by TEX. PROP. CODE 209.006(b)(2)(A). Rather, the letter states that the Defendant must remove the flagpole immediately. Id. Lastly, and most importantly, the letter provides no reference or mention whatsoever that the Defendant may request a hearing under Section 209.007 on or before the 30th day after the owner receives the notice as required by TEX. PROP. CODE 209.006(b)(2)(B). Id.4 Notice which fails to advise a property owner of his statutory right to a hearing is insufficient, and bars enforcement by a property owners association as a matter of law. Evans v. Davis, No. 14-12-01053-CV (Tex. App.Houston [14th Dist.] Nov. 19, 2013). Section 209.007 describes the procedures governing the hearing referenced in section 209.006. See TEX. PROP. CODE 209.007. Section 209.007(d) provides that "The notice and hearing provisions of Section 209.006 and this section do not apply if the association files a suit seeking a temporary restraining order or temporary injunctive relief or files suit that includes foreclosure as a

4 Although it is likely a moot point under the facts of this case, if the Court somehow determines a fact issue exists in this case, Defendant notes that the letter also makes no mention that Plaintiff will seek attorney fees, as it must

cause of action." Id. 209.007(d). However, in this case, the Plaintiff has not sought or applied for a temporary restraining order or temporary injunctive relief. Instead, the Plaintiff sought only a permanent injunction. See Plaintiffs Original Petition for Injunction and Damages. Moreover, during the pendency of this case, the Plaintiff has not sought either a temporary restraining order or scheduled a hearing to consider the same. Nor does the Plaintiffs live pleading reference or seek foreclosure in this case. Id. As such, the notice and hearing provisions of Section 209.006 apply to this case. It is clear that the Plaintiff did not meet them. This case should be dismissed as a result. The Plaintiff in this case provided the Defendant an opportunityalthough that is a strong word for itto attend a hearing about the flagpole before the executive committee of the Board of Directors which met on November 15, 2012. See Defendants Exhibit 20. However, notice of the hearing was only provided some four hours before the hearing commenced. Id. Defendant provided a written complaint about the lack of notice and responded, Your notification is ridiculous. Id. At minimum, the notice of the meeting was legally insufficient. Section 209.007(c) requires that the property owners association shall notify the owner of the date, time, and place of the hearing not later than the 10th day before the date of the hearing. TEX. PROP. CODE 209.007(c). Lastly, while Defendant is unaware of whether the Plaintiffs executive committee met and rendered any decisions concerning the flagpole on November 15, 2012 as Mr. Elswicks email indicated would occur, Section 209.007(b) requires that [I]f a hearing is to be held before a committee, the notice prescribed by Section 209.006 must state that the owner has the right to appeal the committees decision to the board by written notice to the board. TEX. PROP. CODE 209.007(b). The notice letter dated September 12, 2012 in this case made no reference whatsoever to any such rights of appeal.

under TEX. PROP. CODE 209.008(a) in order to later pursue attorney fees against the Defendant. Id.

DEFENDANTS NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT As set forth above, Defendant believes that he has carried his burden of proof to establish no genuine fact issue exists in this case. As such, the Court may dismiss this case on those grounds alone pursuant to TEX. R. CIV. P. 166a. However, in addition to his Traditional Motion for

Summary Judgment, and because the Plaintiff has had an adequate time for discovery (per the Docket Control Order issued in this case, discovery closed on December 13, 2013) the Defendant also seeks dismissal of this case pursuant to a No-Evidence Motion for Summary Judgment under TEX. R. CIV. P. 166a(i). Specifically, the Plaintiff has no evidence that: The Defendants flagpole violates the provisions of TEX. PROP. CODE 202.011, as amended by the Texas Legislature in 2013; The Plaintiff provided the required statutory notices referenced in TEX. PROP. CODE 209.006, 209.007 or 209.008. Specifically, there is no evidence that the Plaintiff satisfied the requirements of TEX. PROP. CODE 209.006(b)(1), (b)(2)(A), or (b)(2)(B). By extension, there is no evidence that the Plaintiff satisfied the requirements of TEX. PROP. CODE 209.007(b) or (c). Nor is there any evidence that the Plaintiff satisfied the requirements outlined in TEX. PROP. CODE 209.008(a) concerning the statutory notice required to recover attorney fees in this case. Furthermore, the Defendant asserts that the: Plaintiff has no evidence that the Defendants flagpole is located in the ground of the common area (as opposed to above the common area, just as numerous other flags and

flagpoles within the property are displayed/installed).5 Plaintiff has no evidence that the Defendant has damaged or harmed the Plaintiff or any of its members in the least; Plaintiff has no evidence that the Defendants flagpole substantially interferes with their use and enjoyment of the land as alleged in Section VI of the Plaintiffs Original Petition for Injunction and Damages. Plaintiff has no evidence that Defendant has caused and will cause Plaintiff and its members to suffer diminution in their rental valuesor in their market values as alleged in Section VI of the Plaintiffs Original Petition for Injunction and Damages. Plaintiff has no evidence that the Defendants flagpole is a violation of the general scheme and plan for the development and building in the Subdivision as alleged in Section V of Plaintiffs Original Petition for Injunction and Damages. Plaintiff has no evidence that the Plaintiff has incurred attorney fees in the prosecution of this case, that those attorney fees are reasonable, or that those attorney fees are necessary. CONCLUSION AND PRAYER This case serves as a reminder that the display of our national flag is understandably given great deference by both federal and state law. It is, quite intentionally, very difficult for a property owners association to prevent a property owner in Texas from flying the American flag on a flagpole that is harmonious with its surroundings. Of course, the law and common sense hold that a residential property owner may not, for instance, install a 100 foot tall flagpole to waive Old Glory

5 Indeed, as the Defendants photo exhibits to this motion depict, many smaller American flags are actually inserted into the ground via wooden stakes by property association members throughout the property owned by the Forrest

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such as those frequently seen at car dealerships next to a freeway. Nor might a residential property owner paint his/her flagpole neon orange, or utilize a searchlight befitting a Hollywood movie premiere to illuminate the flag at night. But in this case, Billy Martin respectfully submits to this Court that he may certainly fly the American flag on a 16 foot tall, aluminum flagpole that is otherwise unremarkable to his neighbors and attached to his private property. His patriotic activity and display in this regard is not only protected, it is encouraged by virtue of the laws of this state and nation. WHEREAS, ABOVE PREMISES CONSIDERED, the Defendant respectfully prays that this Court grant Defendants Motion for Traditional Summary Judgment, or in the alternative, Defendants No-Evidence Motion for Summary Judgment, and dismiss this case with prejudice to refiling the same. Defendant further prays for any and all other such relief to which he may be justly entitled. Respectfully submitted,

TERRY & THWEATT, P.C.


By: /s/ L. Lee Thweatt L. Lee Thweatt State Bar No. 24008160 Joseph D. Terry State Bar No. 24013618 One Greenway Plaza, Suite 100 Houston, Texas 77046-0102 Telephone: (713) 600-4710 Facsimile: (713) 600-4706 lthweatt@terrythweatt.com jterry@terrythweatt.com

ATTORNEYS FOR BILLY B. MARTIN, DEFENDANT

Lake Townhouse Association.

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CERTIFICATE OF SERVICE I certify that a copy the aforementioned document was served on the below named counsel of record on January 17, 2014 pursuant to the Texas Rules of Civil Procedure: Mr. Daniel Barrera DANIEL BARRERA & ASSOCIATES, P.C. 2075 Antoine Drive Houston, Texas 77055 Via Fax (713)681-7714 /s/ L. Lee Thweatt

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