NO. 03-15-00498-CV

IN THE 

THIRD COURT OF APPEALS 

AT AUSTIN, TEXAS 

LONG CANYON PHASE II HOMEOWNERS ASSOCIATION, INC., 

Appellants, 

v.

CHRIS CASHION AND LISA CASHION 

Appellees. 

Appealed from the County Court at Law. No. 2 of 

Travis County, Texas 

Cause No. C-1CV-15-001016 

APPELLEE BRIEF 

WILLIAM C. DAVIDSON 

State Bar No. 05447000 

AMY WELBORN 

State Bar No. 24012853 

CHAMBERLAIN & McHANEY 

P. O. Box 684158 

301 Congress, 21st Floor (78701) 

Austin, Texas 78768-4158 

Phone: (512) 474-9124 

Fax: (512) 474-8582 

bdavidson@chmc-law.com, awelborn@chmc-law.com 

ORAL ARGUMENT REQUESTED

ACCEPTED

03-15-00498-CV

8031109

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/1/2015 12:12:57 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/1/2015 12:12:57 PM JEFFREY D. KYLE Clerk
ii

IDENTITIES OF PARTIES AND COUNSEL 

Defendant/ Appellant:

Long Canyon Phase II and III 

Homeowners Association, Inc. 

Frank O. Carroll III (Appellate 

Counsel)

Dawn Holiday (Appellate Counsel)

Amy M. VanHoose (Trial Court 

Counsel)

Mark B. Rabe (Trial Court Counsel)

Adam L. Robertson (Trial Court 

Counsel)

ROBERTS MARKEL WEINBERG 

BUTLER HAILEY PC

2800 Post Oak Blvd, 57th Floor

Houston, Texas 77056

(713) 840-1666 Telephone

(713) 840-9404 Facsimile

fcarroll@rmwbhlaw.com, 

dholiday@rmwbhlaw.com

avanhoose@rmwbhlaw.com

mrabe@rmwbhlaw.com

arobertson@rmwbhlaw.com

Plaintiff/ Appellees:

Chris Cashion and Lisa Cashion

William C. Davidson (Lead Counsel) 

State Bar No. 05447000

Amy Welborn ( Trial Court Counsel) 

State Bar No. 24012853

CHAMBERLAIN & McHANEY

P. O. Box 684158

301 Congress, 21st Floor (78701)

Austin, Texas 78768-4158

Phone: (512) 474-9124

Fax: (512) 474-8582

bdavidson@chmc-law.com, 

awelborn@chmc-law.com
iii

TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL...........................................ii

TABLE OF CONTENTS ..................................................................iii

TABLE OF AUTHORITIES ...............................................................v

PARTIES AND RECORD REFERENCES ..............................................1

STATEMENT OF THE CASE.............................................................2

STATEMENT REGARDING ORAL ARGUMENT....................................4

STATEMENT OF JURISDICTION........................................................5

ISSUE PRESENTED........................................................................6

STANDARD OF REVIEW..................................................................6

STATEMENT OF THE FACTS............................................................7

A. Creation of the Association Pursuant to Restrictive Covenants.........7

B. The Association’s dealings with the Cashions.............................8

C. The Demand Letter............................................................9

D. The Response to the Demand Letter........................................9

E. The Cashions seek a Declaratory Judgment and Damages against the 

Association..................................................................10

F. The Association Moves to Dismiss Pursuant to the Texas Citizens 

Participation Act.............................................................11
iv

SUMMARY OF THE ARGUMENT.....................................................11

ARGUMENTS & AUTHORITIES.......................................................14

A. The Texas Citizens Participation Act......................................14

1. The Purpose of Texas Citizens Participation Act is to Deter 

Frivolous Lawsuits Brought to Chill Exercising the Right of 

Association, Free Speech, and to Petition.............................14

2. The Right to Petition and the Right of Association..................15

3. Three Step Burden Shifting Dismissal Mechanism..................17

B. The Trial Court Did Not Err in Denying the Association’s Motion to 

Dismiss........................................................................18

1. The Cashions’ lawsuit does not infringe on the Association’s right 

to petition.....................................................................19

2. The Cashions’ lawsuit does not infringe on the Association’s right 

of association..................................................................22

3. The Cashions’ established by clear and specific evidence, a prima 

facie case for each essential element of the claim in question.........23

4. The Association did not present by a preponderance of the evidence 

the elements of a valid defense.............................................27

PRAYER......................................................................................28

CERTIFICATE OF COMPLIANCE......................................................29

CERTIFICATE OF SERVICE............................................................29
v

TABLE OF AUTHORITIES

Cases

Andrews County v. Sierra Club, 58 Tex. Sup. Ct. J. 941, 2015 Tex. LEXIS 436 

(May 8, 2015) ......................................................................................................... 20

In re Lipsky, 460 S.W.3d 579, No. 13-0928, 2015 Tex. LEXIS 350, 2015 WL 

1870073 (Tex. Apr. 24, 2015) ................................................................... 13, 15, 21

Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) ...................... passim

Sierra Club v. Andrews County, 418 S.W.3d 711 (Tex. App.—El Paso 2013) 

..................................................................................................................... 19, 20, 24

Sloat v. Rathbun, No. 03-14-00199-CV, 2015 Tex. App. LEXIS 11537 (Tex. 

App.—Austin Nov. 6, 2015) ................................................................ 14, 24, 25, 26

Texas State Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 27.001 (West) .................................... passim

Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West) ............................................ 15

Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West) ........................................ 5, 15

Tex. Civ. Prac. & Rem. Code Ann. § 27.004(4)(A)(i), (C) (West) ....................... 16

Tex. Civ. Prac. & Rem. Code Ann. § 27.005 (West) ............................ 6, 18, 19, 27

Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West) ........................................ 18

Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b) (West) ........................................ 15

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12) (West) ................................... 5

Rules

Tex. R. App. P. 39.1 ................................................................................................. 4
1

PARTIES AND RECORD REFERENCES

Parties

Appellant, Long Canyon Phase II and III Homeowners Association, Inc. is 

referred to as “the Association” or “Appellant”. 

Appellees, Chris Cashion and Lisa Cashion are referred to as “the Cashions” 

or “Appellees.” 

Record

Reference Meaning 

CR [ ] Clerk’s Record at [page]

SCR [ ] Supplement Clerk’s Record at [page]

RR [ ] Reporter’s Record at [page]
2

STATEMENT OF THE CASE

Nature of the Case

This appeal arises from the trial court’s denial of the Association’s Motion 

to Dismiss that it filed pursuant to Texas Civil Practices and Remedies Code

§27.003 (the “Texas Citizens Participation Act” referred to herein as “TCPA”).

Course of Proceedings

The Cashions own a residence that is subject to the jurisdiction of the 

Association. On or about December 18, 2014, the Association sent a demand letter 

(referred to as the “demand letter) to the Cashions (CR- 127) stating that if the 

Cashions did not pay a fine to the Association and damages it asserted for the 

alleged mowing of grass and cutting dead trees and other unspecified acts, it 

intended to file a lien against the Cashions’ property and sue them to collect the 

fine and damages. 

The Cashions’ filed suit against the Association requesting: (i) a declaration 

that the Association was acting beyond its authority in imposing a fine on the 

Cashions and in attempting to enforce its rules against the Cashions and (ii) for 

damages for infliction of emotional distress and harassment. (CR 7—16). 

The Association filed a Motion to Dismiss the Cashions’ damages claim for 

emotional distress and harassment pursuant to the Texas Citizens Participation Act

(the “Motion”). (CR-74-130)

The trial court denied the Motion and this appeal was taken. (CR 197)
3

Trial Court

County Court at Law No. 2, Travis County, Texas, Hon. Judge Eric M. 

Sheppard presiding; Cause No. C-1-CV-15-001016.
4

STATEMENT REGARDING ORAL ARGUMENT 

The Cashions request oral argument, pursuant to Tex. R. App. P. 39.1. As 

interpretation of the Texas Citizens Participation Act is rapidly evolving, the 

decisional process would be significantly added by oral argument. 
5

STATEMENT OF JURISDICTION 

The Court has jurisdiction to consider this appeal pursuant to Tex. Civ. 

Prac. & Rem. Code Ann. § 51.014(a)(12) (West) because this is an appeal from a 

trial court’s interlocutory denial of the Association’s Motion to Dismiss filed under 

the “TCPA,” or Texas Citizens Participation Act. Id. § 27.003.
6

ISSUE PRESENTED

The Trial Court correctly denied the Association’s Motion to Dismiss, 

because the demand letter sent by the Association to the Cashions threatening a 

lawsuit if the Cashions did not pay a fine and damages to the Association does 

not constitute a protected constitutional right as described in the Texas Citizens 

Participation Act.

STANDARD OF REVIEW

The Court’s inquiry in this review is twofold:

1) Did the Association show by a preponderance of the evidence that the 

Cashion’s suit was based on, related to, or was in response to the exercise 

of the right of the Association to petition or the right of association? 

2) If so, did the Cashions establish by clear and specific evidence a prima 

facie case for each essential element of each claim in question?

See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b), (c); Serafine v. Blunt, 466 

S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.). Both of these are 

questions of law this Court reviews de novo. Serafine, 466 S.W.3d at 357.
7

STATEMENT OF THE FACTS

A. Creation of the Association Pursuant to Restrictive Covenants.

The Cashions are the owners of property located at 5920 Standing Rock Drive, 

Austin, Travis County, Texas. (CR 9). The property is a residence and is the 

homestead of the Cashions. Id. The property is located in the Long Canyon 

Subdivision Phase IIIA and is subject to restrictive covenants of record in Vol. 

12707, Page 0654 of the Real Property Records of Travis County, Texas, known as 

Declaration of Covenants, Conditions and Restrictions, Long Canyon Section IIIA, 

(the “Declaration”). (CR 99). Pursuant to the Declaration, Defendant Long Canyon 

Phase II and III Homeowners Association, Inc. was created. (CR 97). The Cashion 

property is subject to the authority granted to the Association in the Declaration. Id. 

A portion of the Cashion’s property is designated as a “Drainage Easement”. 

The Drainage Easement is defined in Section 10.7 of the Declaration and is the area

designated on the Plat. (CR 98). The Declaration does not give the Association or 

the ACC the affirmative authority to regulate the Drainage Easement other than that 

portion of Section 9.04 of the Declaration that requires ACC consent for 

development, or addition improvements, or structures within the Drainage 

Easement. (CR 122). The Association is granted no authority relating to the 

Drainage Easement. The portion of 9.04 relating to disturbing or displacing any trees 

or other vegetation within the drainage easement is specifically stated in Section 9.04 
8

to be a “covenant”. (CR 122). Section 8.05 is the only provision within the 

Declaration relating to enforcement of the Declaration. (CR 116). That Section 

allows the Association or any member to file suit to enforce a provision of the 

Declaration. 

Neither the Declaration nor the Association’s Articles of Incorporation 

authorize the Association to assess a fine against any of its members or to collect a 

fine for a violation of the Declaration or any rule of the Association or ACC. (CR 

90-123). 

B. The Association’s dealings with the Cashions.

The Association and the Cashions have a long history of disagreement about 

the scope of the Association’s authority vis a vis its members and its penal actions 

against its members. (SCR 8). Over the course of the past few years, the Association 

has established a pattern of systematically harassing the Cashions. (SCR 8). In 2009, 

the Association refused return a $10,000 construction deposit to the Cashions,

claiming that it was entitled to keep the deposit because the Cashions removed 

vegetation in the drainage easement. Id. The Cashions sued the Association, which 

resulted in the full return of the deposit to the Cashions. (SCR 25).

The Cashions assert that the Association has not given them a clear answer on

what the Association believes they are and are not allowed to do in the Drainage 

Easement. (SCR 24-26). The Cashions assert that the Association and several of its 
9

board members constantly monitor their activities in their back yard and the 

Drainage Easement and threaten to fine them for mowing or cutting dead trees and 

dry grass and bushes that the Cashions consider to be fire hazards. Id. Even though 

the Cashions have expressed to the Association that it does not have the authority to 

fine the Cashions or regulate the activities of any member in the Drainage Easement, 

the Association and its board members have continued to threaten fines and damages 

against the Cashions. Id. 

C. The Demand Letter

On or about December 18, 2014 the Cashions received a letter in which the 

Association, through the Board threatened to fine them $8,000.00, file suit, seek 

damages from them in the amount of $10,000.00 and file a lien against their property

for violations of the Declaration, Architectural Control Committee (“ACC”) rules 

and Association Bylaws. (CR 127). The letter concluded that the Cashions 

“unlawfully” damaged the Drainage Easement by cutting down a dead tree and 

mowing their lawn, for which the Association was demanding $18,000 and attorney 

fees. Id. 

D. The Response to the Demand Letter 

The initial response of the Cashions to the Association demand letter was to 

request that the Board of Directors provide an itemized list of the alleged violations 
10

referred to in the letter, the identity of the person who made the complaint, the date, 

the nature, and a description of the claim. (CR 130). The Cashions also requested 

information that would support the Associations claim that the Cashions: i) 

developed landscape improvement in the drainage easement, ii) cut and displaced 

any trees, and iii) conducted activates like mowing, and iv) a copy of each notice of 

any alleged violation of the provisions of the drainage easement. (CR 130). The 

Association failed or refused to provide the requested information. (SCR 23-25). 

E. The Cashions seek a Declaratory Judgment and Damages against the 

Association. 

The Cashions were concerned that without judicial intervention they would 

face continued uncertainty about the use and maintenance of the Drainage Easement, 

and would have continued attempts by the Association to impose fines against them. 

The Cashions filed this lawsuit against the Association seeking a declaratory 

judgment that the Articles of Incorporation of the Association and the Declaration 

do not authorize the Association and the Board of Directors to impose fines on its 

members and establish and enforce regulations on the use and maintenance of the 

Drainage Easement. (SCR 7-23). The purpose of the lawsuit was to determine, 

once and for all if the Association had the authority to fine its members as it was 

claiming. Id. Additionally, the Cashions sought damages for negligence and 

intentional infliction of emotion distress caused by the harassment against them by
11

the Association and the Board of Directors and sought to enjoin further bad faith and 

ultra vires acts. (CR 7-16). 

F. The Association Moves to Dismiss Pursuant to the Texas Citizens 

Participation Act. 

The Association filed a Motion to Dismiss Pursuant to the TCPA on May 8, 

2015 (the “Motion”). (CR 74-130). The Association asserts in the Motion that the 

Cashions infringed on the Associations right to petition and right of association by 

filing this lawsuit. Id. At the hearing on July 16, 2015, counsel for the Association 

informed the court and the Cashions with regard to the declaratory judgment that 

they were withdrawing the declaratory judgment claim of the Cashions from the 

Motion. (RR 8; 20). On the record the Association withdrew the portion of their 

motion relating to the declaratory judgment. (RR 12; 20-22). The Honorable Eric M. 

Sheppard denied the Associations motion to dismiss on July 22, 2015. (CR 197). 

SUMMARY OF THE ARGUMENT

The trial court did not err in denying the Associations motion to dismiss. The

demand letter sent to the Cashions by the Association (CR-127) (referred to in 

Appellant’s Brief as the “notice letter” or “209 Letter”) is not a communication that 

is protected as “the exercise of the right of petition” by the TCPA. It is no more than 

the typical pre-suit demand letter generally sent prior to the filing of a lawsuit. The 

Association’s assertion that the protective umbrella of the TCPA cloaks the letter 
12

because the Texas Property Code Section 209.006 requires that it send notice to a 

property owner member of the Association prior to suing that member is without 

merit. 

The argument of the Association may be boiled down to this: because the 

Association sent the Cashions a letter stating that we are going to sue you if you 

don’t pay fines and damages, the Cashions cannot sue the Association. In other 

words, if one party tells the other party it is going to file suit against that party, the 

receiving party cannot file suit against the demanding party without violating the 

constitutional right of the demanding party to exercise its right to file a lawsuit first. 

This leads to a ridiculous result. There is no constitutional right to file a lawsuit first. 

If the Association should prevail on its Motion, every defendant that has previously 

sent a plaintiff a demand letter will now claim that the lawsuit should be dismissed 

because they got sued first. The courts will be clogged with motions to dismiss that 

will cause the lawsuits to stop while a motion to dismiss winds its way through the 

court process.

There is no evidence in the record that the Cashions filed suit against the 

Association solely because the Association sent them a demand letter threatening a 

suit against them. In fact the record is replete with evidence that there is an ongoing 

dispute between the Cashions and the Association beginning in 2009 relating to the 

scope of authority of the Associations over the home and yard of the Cashions.
13

Therefore, even though the demand letter may have precipitated a suit, it was not the 

cause of the suit.

The purpose of the Texas Citizens Participation Act is to deter frivolous 

lawsuits brought to chill protected First Amendment Rights. In re Lipsky, 460 

S.W.3d 579, 589, No. 13-0928, 2015 Tex. LEXIS 350, 2015 WL 1870073 (Tex. 

Apr. 24, 2015). The dismissal mechanism has a three-step burden shifting process 

before a claim to be dismissed based on the TCPA. First, the movant (the 

Association) must show that the suit was brought to chill a protected First 

Amendment Right. 

This appeal should be denied because the Association failed to meet its burden 

of showing that the demand letter constitutes a protected communication relating to 

its right to petition and assemble. The Association failed to show by any credible 

evidence that the filing of a lawsuit by the Cashions after receiving a lawsuit threat 

from the Association in any way affected the Association’s right to petition. The 

assertion of the Association that the demand letter constitutes a common effort 

between it and its members, including the Cashions, is without merit.

Even if the Association had met its initial burden, the Cashions presented clear 

and specific evidence showing prima facie evidence of each element of the cause of 

action sought to be dismissed. 
14

This Court may only look to the pleadings and affidavits that were presented 

to the trial court since there was no discovery conducted on the Motion. Sloat v. 

Rathbun, No. 03-14-00199-CV, 2015 Tex. App. LEXIS 11537, at *7 (Tex. App.—

Austin Nov. 6, 2015). Further, the pleadings and affidavits must be viewed in the 

light most favorable to the Cashions as they are both the non-movant and the 

prevailing party. Id. at 8. 

For these reasons, the order of the trial court should be sustained.

ARGUMENTS & AUTHORITIES

A. The Texas Citizens Participation Act. 

The Association sought dismissal of the Cashion’s claim relating to 

negligence, harassment, and infliction of emotional distress under the Texas Citizens 

Participation Act, Tex. Civ. Prac. & Rem. Code §§ 27.001, et seq. (the “TCPA”), 

which is an “anti-SLAPP” law. Serafine, 466 S.W.3d at 356. “SLAPP” is an 

acronym for “Strategic Lawsuits Against Public Participation.” 

1. The Purpose of Texas Citizens Participation Act is to Deter 

Frivolous Lawsuits Brought to Chill Exercising the Right of Association, 

Free Speech, and to Petition. 

The stated purpose of the TCPA “is to encourage and safeguard the 

constitutional rights of persons to petition, speak freely, associate freely, and 

otherwise participate in government to the maximum extent permitted by law and, 
15

at the same time, protect the rights of a person to file meritorious lawsuits for 

demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. Subsection (b) 

of section 27.011 states that the TCPA “shall be construed liberally to effectuate its 

purpose and intent fully.” Tex. Civ. Prac. & Rem. Code Ann. § 27.0011(b). Read in 

conjunction with section 27.002, this mandate refers to an equal duty to “liberally 

construe” the statue both to “encourage and safeguard the constitutional rights” 

while “protect[ing] the rights of a person to file meritorious lawsuits for 

demonstrable injury” Tex. Civ. Prac. & Rem. Code Ann. §§ 27.002, 27.011(b). 

The Texas Supreme Court recognized that “[t]he TCPA’s purpose is to 

identify and summarily dispose of lawsuits designed only to chill First Amendment 

rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d at 589. 

2. The Right to Petition and the Right of Association

The TCPA is a procedural mechanism for early dismissal of frivolous suits 

based on a party’s exercise of the right of free speech, the right to petition, or the 

right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.003. Section 27.003 

permits a party to file a motion to dismiss a legal action that is based on, relates to, 

or is in response to a party’s exercise of a First Amendment right. Id. 
16

The Association claims that the Cashion’s lawsuit was made in response to 

exercising the Association’s right to petition and the Association’s exercise of the 

right of association. 

The TCPA definition of the “exercise of the right to petition” includes “a 

communication in or pertaining to...a judicial proceeding;...a communication that 

is reasonably likely to encourage consideration or review of an issue by a judicial 

body.” Id. § 27.004(4)(A)(i), (C). This is the only definitions under Section 

27.001(4) that the Association invokes in their brief. 

There is no evidence in the record that the Cashions filed this lawsuit because 

the Association sent the demand letter. Nor is there any evidence in the record that 

would support the assertion of the Association that because the Texas Property Code 

Section 209.006 requires that it send a notice to a member prior to filing suit to 

collect amounts claimed due from that member that the notice is a protected 

communication under the TCPA.

The record, as recognized by Appellant in its Appellant’s Brief and in the 

demand letter, is replete with evidence of the dispute between the Cashions and the 

Association over its authority to regulate the Drainage Easement and to fine its 

members for alleged infractions of its rules. In fact the demand letter specifically 

recognizes and iterates that dispute. (CR 127-128). This lawsuit represents the 
17

culmination of years of dispute, not a lawsuit over a claim of right or statement 

contained in the demand letter.

The TCPA defines the “exercise of the right of association” as a 

“communication between individuals who join together to collectively express, 

promote, pursue, or defend a common interest. Id. § 27.001(2). The TCPA defines 

“communication” as the “making or submitting of a statement or document in any 

form or medium, including oral, visual, written, audiovisual, or electronic” Tex. Civ. 

Prac. & Rem. Code Ann. § 27.001(1). 

The Association is an entity organized under the laws of the State of Texas as 

is recognized in its Articles of Incorporation. (SCR 60-65). The Association in its 

Appellant’s Brief asserts that the demand letter constitutes a “right of association” 

because the demand letter is a communication “with individuals that are joined 

together to collectively express, promote or defend common interests”. Appellant’s 

Brief at 18). This is a frivolous argument. Clearly, the demand letter is a 

communication between the Association and the Cashions. There is no assertion or 

claim that the Association and the Cashions are joined together to collectively 

express, promote or defend common interests in suing the Cashions.

3. Three Step Burden Shifting Dismissal Mechanism. 

In determining whether the plaintiff’s claims may be dismissed, “the court 

shall consider the pleadings and supporting and opposing affidavits stating the facts 
18

on which liability or defense is based. Id. § 27.006(a). In other words, the trial court 

can only consider pleading and affidavits in reaching its conclusion as no discovery 

was conducted. Id. 

A moving party must first show by a preponderance of the evidence that the 

lawsuit is based on, or relates to, or is in response to the party exercising the right of 

free speech, the right to petition, or the right of association. Id. § 27.005(b). 

If the court finds by a preponderance of the evidence that the legal action is 

based on one of the aforementioned rights the second step provides that “[t]he court 

may not dismiss a legal action under this section if the party bringing the legal action 

establishes by clear and specific evidence a prima facie case for each essential 

element of the claim in question” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)-

(c). 

If the court finds that clear and specific evidence of a prima facie case for each 

claim then the third step is that the court may still dismiss the legal action if the 

moving party establishes by a preponderance of the evidence each essential element 

of a valid defense to the non-movants’ claim. Id. § 27.005(d).

B. The Trial Court Did Not Err in Denying the Association’s 

Motion to Dismiss. 

The Association failed to present any credible evidence to the trial court to 

meet its first burden of proof and to show that the lawsuit is based on, or relates to, 
19

or is in response to the Association exercising the right of free speech, the right to 

petition, or the right of association. Id. § 27.005(b). The Association has failed to 

show that the demand letter is anything other than a typical pre-lawsuit letter sent by 

one person or entity to another stating that if you don’t do what I say or pay what I 

demand I am going to sue you. The Association failed to assert to the trial court or 

produce any evidence to the trial court that it has the right to sue first. The 

Association offered no evidence to the trial court that shows that the Association’s 

right to petition was affected in any way by the filing of this lawsuit.

1. The Cashions’ lawsuit does not infringe on the Association’s right to 

petition. 

The Association failed to show by a preponderance of the evidence that the 

Cashions’ claims are based on, related to, or in response the right to petition. 

The TCPA protects communications made in relation to a “judicial 

proceeding.” Id. § 27.001(4)(A). The Association contends that a “pre-suit” demand 

letter implicates a judicial proceeding. Simply because the demand letter mentions 

filing suit against the Cashions, does not mean that the TCPA’s “right to petition” is 

implicated as it is not the “specific conduct complained of, from which all the other 

allegations of wrongdoing emanate and around which they revolve. Sierra Club v. 

Andrews County, 418 S.W.3d 711, 717 (Tex. App.—El Paso 2013), review granted, 
20

judgement rev’d on other grounds, Andrews County v. Sierra Club, 58 Tex. Sup. Ct. 

J. 941, 2015 Tex. LEXIS 436, at *1 (May 8, 2015)).

The Association cites Sierra Club v. Andrews County for the proposition that 

sending a sending a pre-suit notice “is the specific conduct complained of, from 

which all other allegations of wrongdoing emanate and around which they 

revolve...the act that led to Appellee’s claims,” however this case is distinguishable.

In Sierra Club v. Andrews County, the Sierra Club filed an injunction against 

Andrews County to stop waste shipments of low level radioactive waste to a disposal 

facility. Sierra Club, 418 S.W.3d at 714. Additionally, the Sierra Club filed multiple 

lawsuits against the county concerning the radioactive waste, which were 

consolidated into one case. Id. The County sued the Sierra Club for tortious 

interference with a lease agreement and for a declaratory judgment concerning the 

validity of certain provision of the lease agreement. Id. The County based its claims 

on the Sierra Club’s “threats to seek injunctive relief... and to file other suits in 

Travis County...established the bases for its claims.” Id. The Court found that the 

specific conduct complained of, from which all other allegations of wrongdoing 

emanate and around which they revolve was the Sierra Club’s filling an injunction 

and other lawsuits, which caused the threat of injunctive relief. Id. at 717. Sierra 

Club does not stand for the proposition that threats of a lawsuit infringe on the right 

to petition, but rather suits that are actually filed and ongoing infringe on the right to 
21

petition. This case is distinguishable from the instant case because at the time the 

Cashions filed this lawsuit no judicial proceedings were in place or pending. 

Additionally, a “pre-suit” demand letter is not likely to encourage 

consideration or review of an issue by a “...judicial, or other governmental body.” 

Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(C). This provision is meant to refer 

to communications made in an effort to bring an issue before a governmental or 

judicially body that is not currently under consideration or review by a governmental 

or judicial body. See In re Lipsky, 411 S.W.3d 530, 541 (Tex. App.—Fort Worth 

2013, orig. proceeding) ("Lipsky I"), remand. denied, In re Lipsky, 460 S.W.3d 579 

("Lipsky II") (statements made by homeowner were designed to encourage 

governmental investigation of well contamination.). The Association’s “pre-suit” 

notice letter was not intended or expected to bring to the attention and governmental 

or judicial body any of the issues addressed in the letter. 

The Cashions claims do not fall within the scope of the TCPA because they 

are not in response to the singular demand letter, rather they are in response to the 

continuing dispute about the authority of the Association and the continued 

harassment by the Association. Further, there is no evidence in the record that the 

filing of this lawsuit prevented the Association from asserting any claims against the 

Cashions. 
22

Appellants make the conclusory statement that “[b]y its fundamental nature, 

the 209 Letter is communication pertaining to a judicial proceeding, and is protected 

under the TCPA.” (Appellant’s Brief at 18). There is no evidence in the record to 

support the conclusion. Conclusory statements are not probative and do not suffice 

to establish a prima facie case. Serafine, 466 S.W.3d at 358. The Association 

presented no evidence that the Cashions filed suit in response to the Association’s 

right to petition. Rather, the Association made conclusory statements in its motion 

to dismiss that the suit was based on the letter. The Association has failed to meet 

its threshold burden under §27.005 with regard to the “right to petition” allegation 

because it did not show by a preponderance of the evidence that the Cashions lawsuit 

was in response to the Association exercising its right to petition. Therefore the trial 

court was correct in denying the Associations motion to dismiss.

2. The Cashions’ lawsuit does not infringe on the Association’s right of 

association. 

The TCPA defines “[e]xcercise of the right of association” as “a 

communication between individuals who join together to collectively express, 

promote, pursue, or defend common interests.” See Tex. Civ. Prac. & Rem. Code 

Ann. § 27.001(2). The Association offered no evidence that the filing of this lawsuit 

is based on, relates to or in response to a right of association of the Association. The 

Association’s conclusory statement that because the Cashions are members of the 
23

Association the Association and the Cashions are joined “to collectively express, 

promote, pursue or defend various common interests of the Association” is not 

supported by any evidence in the record. In fact the assertion that the demand letter 

constitutes a collective effort between the Association and the Cashions is a 

perversion of the concept of association. The “common interests” to which they refer 

relate solely to enforcing the provisions of the Declaration. In fact, the Letter is a

threat to one of the members of the Association that the member would suffer a 

lawsuit, fines, damages and a lien against property if the member did not act as 

demanded. Clearly this is not a common interest shared by the Cashions and the 

Association. The Cashions are not collectively joined with the Association to harass 

themselves. The mere fact that Cashions and Association are opposing parties to a 

lawsuit is evidence that their interests are not common. 

Defendants have not produced any probative evidence, much less a 

preponderance of the evidence that the lawsuit filed by Plaintiffs is based on, relates 

to or is in response to the Association’s right of association as defined in the TCPA. 

See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). 

3. The Cashions’ established by clear and specific evidence, a prima facie 

case for each essential element of the claim in question. 

Even if the Association had met its initial burden, the trial court correctly 

denied the Motion because the Cashions established by clear and specific evidence 
24

a prima facie case for each essential element of their claim for harassment, 

negligence and intentional infliction of emotional distress.

A prima facie case is established when a party produces “enough evidence to 

allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Sierra 

Club v. Andrews County, 418 S.W.3d at 717. “Prima facie evidence until its effect 

is overcome by other evidence, will suffice as proof of an issue.” Serafine, 466 

S.W.3d at 358. “In other words, a prima facie case is one that will entitle a party to 

recover if no evidence to the contrary is offered by the opposing party.” Id. The 

Cashions are the non-movant and the prevailing party in this case, therefore, the 

Court is to view the pleadings and affidavits of the Cashions in the light most 

favorable to them. Sloat v. Rathbun, No. 03-14-00199-CV, 2015 Tex. App. LEXIS 

11537, at *8 (Tex. App.—Austin Nov. 6, 2015). 

As evidence of each of the elements of the above stated causes of action, the 

Cashions offered the following evidence to the trial court:

The affidavit of Chris Cashion (SCR 24-27).

The Affidavit of Chris Cashion states: (i) that the Association refused to return 

the construction deposit to the Cashions in 2009 on completion of construction of 

their home at 5209 Standing Rock in the Long Canyon subdivision claiming that the 

Cashions had cut trees in the drainage easement in violation of the Declaration and 

that the deposit was going to be retained to compensate for cutting those trees and 
25

bushes. (SCR 24-27). The Cashions had to sue the Association to recover the deposit. 

Judgment was entered in favor of the Cashions. In 2013 the Association attempted 

to fine the Cashions for cutting a dead tree in the drainage easement. Id. (ii) On a 

number of occasions Board Members have commented about activities of the 

Cashions in landscaping and maintaining their property. Id. (iii) That the letter in 

question delivered by the attorney for the Association to the Cashions was received 

on Christmas Eve, causing distress and mental anguish. Id. (iv) That the Cashions 

have not disturbed or removed vegetation from the drainage easement other than the 

dead cedar tree, since 2009. Id. (v) That the Cashions have not been given notice by 

the Association that the Cashions have violated any provision of the drainage 

easement covenant other than the one notice sent to the Cashions in 2013. Id. (vi)

That the Cashions have not received any notice of an alleged or claimed violation of 

any rule or regulation of the Board since 2013. Id. The evidence contained in the 

Affidavit constitutes a prima facie case for each of the elements of the claims of the 

Cashions that are subject to the Motion.

The Association did not offer any controverting evidence for any of the 

Cashions’ claims. 

The Association’s Original Answer is a simple general denial with affirmative 

defenses. (CR 59-61). The Answer does not set fourth any facts with regard to the 

Cashions’ claims. Id. The Association’s Motion to Dismiss Pursuant to the Texas 
26

Citizens Participation Act mentions that the “factual allegations contained in 

Plaintiff’s Original Petition, which were verified and sworn to by Mr. Cashion, are 

false.” (CR 78). Apart from this conclusory statement, the Association does not 

allege any facts to negate the Cashion’s claims for damages or injunctive relief. (CR 

74-84). The affidavit of Carol Torgrimson merely a business record affidavit with 

two paragraphs addressing the Cashions drainage easement:

“8. The Association has reviewed multiple notices that Plaintiffs 

removed and disturbed the vegetation in the drainage easement abutting 

Plaintiffs’ backyard. In response to the multiple notices that the 

Plaintiffs removed and disturbed the vegetation in the drainage easement 

abutting Plaintiffs’ back year, the Association decided judicial 

intervention might be necessary, but wanted to give Plaintiffs an 

opportunity to cure any damages. 

9. On December 18, 2014, the Association had its attorney send 

Plaintiffs a letter to inform Plaintiffs that they were in violation of the 

deed restrictions, they could cure the violations, and if they chose not to 

cure the violations, the Association would pursue a lawsuit.”

(CR 88). 

The statements do not controvert any of the claims made by the 

Cashions. The Association’s counterclaims do not controvert the Cashions’ 

prima facie evidence. (CR 131-139). The Association asserts claims against 

the Cashions for breach and enforcement of restrictive covenants, but still does 

not controvert any of the Cashions’ claims against the Association. Id. 
27

The above evidence constitutes a prima facie case for each element of each 

cause of action asserted by the Plaintiffs in their Original Petition. The Association 

did not present any evidence in any of their pleadings or affidavits to negate any of 

the Cashions claims. Viewing the evidence in the light most favorable to the 

Cashions, they have met their burden under §27.005(c) and the trial court did not err 

in denying the Association’s motion to dismiss. 

4. The Association did not present by a preponderance of the evidence the 

elements of a valid defense. 

The Association has not presented any evidence that would support a valid 

defense to Cashions’ claims. The Association’s Answer contains a general denial 

and affirmative defenses. When the Cashions have, as in this case, presented a prima 

facie case as to each element of the claims asserted in this case, the Association is 

required to establish by a preponderance of the evidence, each essential element of 

a valid defense to the Cashions’ claims to have the Motion to Dismiss granted. As 

noted above, the Association did not present any evidence to a valid defense against 

the Cashion’s claims. As the Association failed to do so, the trial court did not err 

when denying the Association’s motion to dismiss. 
28

PRAYER

FOR THE REASONS STATED ABOVE, the Court should AFFIRM the trial 

court’s decision denying the Associations motion to dismiss the Cashions claims for 

relief under the TCPA. 

Respectfully submitted,

CHAMBERLAIN MCHANEY

301 Congress, 18th Floor (78701)

P.O. Box 684158

Austin, Texas 78768-4158

(512) 474-9124

(512) 474-8582 (Facsimile)

bdavidson@chmc-law.com

By: /s/ William C. Davidson

William C. Davidson

SBN 05447000

ATTORNEY FOR APPELLEE 
29

CERTIFICATE OF COMPLIANCE

I hereby certify that this document is 5,133 words, as calculated by the word 

count feature of Microsoft Word 2013 (Professional Edition).

/s/ William C. Davidson

William C. Davidson

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing has been sent 

facsimile and/or regular mail, to all counsel of record, in accordance with the Texas 

Rules of Civil Procedure on this the 1

st day of December, 2015.

/s/ William C. Davidson

William C. Davidson