WESLEY SPEARS AND RENEE JACOBS,

APPELLANTS V.

FALCON POINTE COMMUNITY HOMEOWNERS’ ASSOCIATION

NO. 03-14-00650

 JUNE 9, 2015

APPELLANTS’ REPLY BRIEF

Wesley S. Spears, State Bar No. 18898400, Spears Law, 401 

Congress Avenue., Suite 1540, Austin, Texas 78701, Tel. 512-

696-2222, Fax. 512‐687‐3499 Attorney for Appellants.

ORAL ARGUMENT IS REQUESTED

Appeal from County Court One of Travis

County, Texas C‐1-CV-13-010214

IDENTITY OF PARTIES AND COUNSEL

Appellants, Wesley Spears and Renee 

Jacobs Appellants’ counsel

Wesley S. Spears, State Bar No. 18898400, Spears Law, 401 

Congress Avenue., Suite1540, Austin, Texas 78701, Tel 

(512)696‐2222, Fax. 512‐687-3401.

Appellee, Falcon Pointe Community Homeowners’ 

Association Appellee’s Counsel

David Chamberlain, Chamberlain and McHaney, 301 Congress 

Avenue, 22nd Floor, Austin, Texas 78701 Tel. 512‐474‐9124, 

Fax. 512‐474‐8585.

ACCEPTED

03-14-00650-CV

5611340

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/9/2015 7:36:27 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/9/2015 7:36:27 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

Identity of the parties and Counsel .........................................

...................i

Table of 

Contents.................................................................................

.......ii

Issues Presented For Review...........................................

.........................iii

Argument...............................................................................

.....................1

1. Plaintiffs’ have not waived their first, third and fourth 

appellate issues through inadequate 

briefing.........................................................1-6

2. Appellants dispute Appellee’s claims that Appellants 

made misrepresentations of facts in Appellants’ Statement of 

Facts............7-11

3. The trial court abused its discretion by denying 

Appellants’ Motion for 

Continuance...........................................................................

...........11-12

4. Appellants have produced clear and concise arguments 

regarding Appellants two Deceptive Trade Practices Act 

Claims.......................12-13

5. Appellants’ have established that Judge Wisser and Judge

Phillips erred in failing to recuse Judge 

Phillips..............................................13-15

2
ii

ISSUES PRESENTED FOR REVIEW

1. Plaintiffs’ have not waived their first, third and 

fourth appellate issues through inadequate briefing.

2. Appellants dispute Appellee’s claims that 

Appellants made misrepresentations of facts in 

Appellants’ Statement of Facts.

3. The trial court abused its discretion by denying 

Appellants’ Motion for Continuance.

4. Appellants have produced clear and concise 

arguments regarding Appellants two Deceptive Trade 

Practices Act Claims.

5. Appellants’ have established that Judge Wisser 

and Judge Phillips erred in failing to recuse Judge 

Phillips

3
iii

ARGUMENT

The Appellants submit this reply Brief in order to respond 

point 

by point to certain matters raised in Appellee’s Brief.

1. Plaintiffs’ have not waived their first, third and 

fourth appellate issues through inadequate briefing.

Appellant’s Brief clearly and concisely states why 

Appellants’ believe Judge Wisser abused his discretion by 

denying Appellant’s Motion to Recuse Judge Phillips. 

Appellants cited the court to extensive testimony by Darryl 

Sanders, Appellant, Wesley Spears and statements made by 

the Judge on the record that clearly showed that Judge Phillips 

should have been recused.1

4
The Judge according to Court Operations Officer in every 

case except this case heard all Discovery Motions before 

hearing Motions for Summary Judgment. Judge Phillips 

violated the court’s own policy in this case.2 The testimony of 

Appellant, Wesley Spears outlined in Appellants’ Original Brief 

demonstrated the hostility Judge Phillips showed toward 

counsel for Appellants, refusing to hear his arguments almost 

refusing to let him speak all.3

The Appellee states it is offended by the suggestion that 

the 

1.

Judge would be biased against the Appellants. Appellants are 

even more offended by the bias that Judge Phillips 

demonstrated against them. Appellee should not be offended 

by Appellants’ good faith belief that they were the victim of 

influence peddling and bias. Why is Appellee afraid to face this

issue head on, preferring to make light of the suggestion 

influence peddling, a typical defense mechanism often used in

the past to defend against claims of bias. 

5
Is it so hard to believe a Texas County Court Judge would 

be susceptible to influence peddling in favor of the largest 

private developer in the United States against an AfricanAmerican family. Has it never happened in the past in similar 

circumstances, of course it has, countless times. The failure 

to accept the possibility of influence peddling would be naïve.

This Court should take Judicial Notice of the fact that 

during the pendency of this matter, a County Judge resigned 

and went to jail for withholding evidence. Another Judge was 

forced to step down because he allegedly illegally sold guns 

that ended up across the border in Mexico. Another Judge 

arrested for DUI, others were arrested for bribery. Is so hard 

to believe that an elected County Judge would be susceptible 

to influence peddling.

 2.

In this case, as outlined in Appellants’ Brief Judge Phillips 

made a number of statements regarding rulings he would 

make even before Motions were filed by Appellee which was 

not only inappropriate but demonstrated that the Judge’s was 

biased against the Appellants.4

6
The Appellants asserted their rights to request all of the 

books and records of the Homeowners’ Association. Since 

Appellee failed to file a copy policy, as required by statute, 

they were statutorily obligated to turn over copies of all the 

books and records of the Association without cost to 

Appellants.5

Appellants simply out maneuvered the Appellee and in 

order to avoid producing thousands of pages of documents, it 

had to resort to appealing to Judge Phillips for a biased and/or 

discriminatory rulings that defy logic and are unjustified under

the relevant case law. Of course Appellants’ have stubbornly 

maintained their good faith belief that Judge Phillips was 

impermissibly biased against them, he would not listen to a 

word counsel for the Appellant said.

This Court needs to look no further than testimony of the 

Court Operations Officer who admitted he screwed up by 

failing to schedule, Appellants’ Discovery Motions and/or not 

responding to Appellants two 

written requests that he do so.6 Whether the Court Operations

Officers 

7
3.

actions were simply inadvertent, negligent or intentional the 

Appellants 

should not be forced to pay an unjust Judgment because of a 

mistake or intentional act of the Court Operations Officer 

and/or the Judge. Especially in light of the fact that Mr. 

Sanders instructed the Appellants that they could not talk to 

him by telephone and could only communicate in writing. 

Even that action seems unusual to the Appellants and leads 

them to believe they were being treated differently from every

other party.

In this case, on the day in question, Judge Phillips 

announced that he was going on the record. The first matter 

lasted about one minute and then he called the subject case 

without any indication he was now going off the record. The 

court reporter never moved from her original position. There 

was no reason for counsel for the Appellant to ask the court to

go on the record since it never went off the record.

When people engage in wrong doing they most often do 

it under the cover of darkness that is the reason there is no 

8
record. County Court is a court of record. Why is there no 

record? With no record, Appellee is free to make the 

argument that their was no record of the rulings on the 

parties’ Summary Judge Motions, therefore, the arguments of 

Appellants’ are outside of the record. At the very least this 

matter should 

4.

be remanded for a new and fair trial, on the record. 

One merely needs to look Judge Phillips’ clearly 

erroneous rulings 

denying Appellants’ Motion for Summary Judgment and not 

that was based on the defective nature of the Violation Notice 

as a matter of law to know he exhibited bias. The Notice was 

so defective that Appellee does not even address the issue in 

its brief because it is unable argue that the Notice was not 

defective. Appellee chooses to ignore the defects in the 

Violation Notice. The Hearing, which Appellee relies on to 

justify its actions, was based on that defective Violation Notice

and, therefore, the Hearing was also defective, there is no way

9
around that argument. 

Appellee also did not address the issue that they violated

Texas Property Code § 209.005, because as outlined in 

Appellants’ Brief, it refused, to produce any relevant and 

material documents that Appellants properly requested, 

except the few documents identified in Appellants’ Original 

Brief and contained in the Appendix to Appellants’ Brief.

Appellants arguments concerning its obligation to 

produce documents are uncontested by the Appellee because 

they could not 

5.

contest the arguments at trial or here on Appeal. How can 

Appellants be found to have violated rules without the 

Appellee ever identifying the deed restriction(s) that 

Appellants allegedly violated. It is like charging a person with

a crime and not telling them what crime they committed. 

The law is clear, the Violation Notice must identify the 

10
specific deed restriction(s) allegedly violated, in this case it 

did not and the President of the Association testified that it did

not, which should have ended the case.7 Rather than issuing a 

new Violation Notice, Appellee chose to defend the case by 

refusing to cooperate with discovery. The Appellee’s refusal to

cooperate with discovery was clearly documented in the 

Transcript of the May 2014, Hearing in front of Shepperd, J. 8

Phillips, J. in the first Hearing before him effectively 

reversed Judge Shepperd’s prior ruling as outlined in 

Appellants’ Original Brief refusing to order the release of 

documents.9 The Appellee from the beginning of this case has 

sought to avoid the issue of Appellants’ right to all of the 

books and records of the Homeowners’ Association. 

Appellee’s Brief does the same thing attempting to avoid the 

two issues that have been clearly, precisely and concisely 

stated by the Appellant from the beginning of the case to the 

present.

6.

2. Appellants dispute Appellee’s claims that 

Appellants made misrepresentation of facts in 

Appellants’ Statement of Facts.

11
A. The Appellee claims that the court did not show 

bias. Appellants’ claim that the Judge was biased against 

them is not a misrepresentation of fact it is based on the facts.

Appellants believe that they have adequately demonstrated 

that Judge Phillips was biased against them, in the facts and 

arguments contained in this Appellants’ Original Brief.

B. Appellants fence was four feet high when compared 

to the elevation of Appellants pool because it sits in a 

drainage ditch. Appellee produced no evidence disputing this 

fact. 

C. Diane Bottema, Manager of the Homeowners’ 

Association sent an email attached to Appellants’ Original 

Brief saying that in matters of clear violations the President 

could speak for the Board.10 This was in response to 

Appellants’ email to Ms. Bottema indicating that they intended

to request a Hearing. Ranier Ficken the President of the 

Homeowners’ Association testified that he did not have the 

authority to speak on behalf of the board and that Ms. 

Bottema’s statement in the email was not true.11

D. The Privacy Screen is completely free standing. The

Appellee is disputing the truth without any evidence.

E. Appellants most certainly made six formal requests 

for discovery. The record will reflect four Notices to Take 

Deposition, three of which were Notices to take Deposition 

Duces Tecum. As well as two requests for the Production of 

Documents. Evidently the Appellee does not count Notices to 

take Depositions as a formal discovery requests.

F. Appellants produced the ballots from Appellee’s 

website which are in the Appendix to Appellants’ Original 

Brief.12 Appellee produced no evidence that contradict the 

Ballots produced by the Appellants. Ranier Ficken, President 

of the Association testified at his deposition that the Ballots 

came from the Falcon Pointe website and that there was no 

reason 

12
7.

that Appellant, Wesley Spears name should have been left off 

the ballot. In additions Appellants produced the sworn 

affidavits of two neighbors attesting to the fact that Appellant,

Wesley Spears’ name was left off the Ballot for neighborhood 

representative. Appellee has produced no contradictory 

evidence.13

G. Once again in an effort to avoid discovery Appellee 

suggests that the only two members of the Board of Directors 

who voted at the Hearing that Appellee relies on to justify its 

actions are not material witnesses in this case, which is utterly

ridiculous. Likewise, Appellee’s argument that the Property 

Manager, who Appellants communicated with about the 

Privacy Screen and whose name is on the Violation Notice is 

not a material witness is likewise ridiculous. 

Finally, the fourth person whose deposition was noticed 

by Appellants, Natalie Boykin, was the new Property Manager 

who conducted the election in which the Appellant, Wesley 

Spears’ name was fraudulently left off the ballot and she is 

therefore, material to Appellants’ Deceptive Trade Practices 

Act claim that he was disenfranchised by Appellee’s actions. 

She could testify, if and why Appellants’ name was left of the 

Ballot.

H. Appellants certainly did challenge all of the Court’s 

the rulings, including the Courts’ Ruling on Appellants’ 

Summary Judgment evidence. The Appendix to Appellants’ 

Brief includes the court’s ruling as an Order appealed from.14

Further, Appellants’ Briefs in response Appellee’s Motion for 

Summary Judgment, extensively argued against the court’s 

findings.15

Appellants’ argued that because the Violation Notice is 

defective as a matter of law, which is a preliminary issue that 

must be determined before the court even reaches the claim 

that the Appellee held a Hearing that properly found 

Appellants in violation of a deed restriction of the Association. 

13
That issue should have never been reached since the Violation

Notice is clearly defective. The President of the Association 

testified that the Notice did not provide the specific deed 

restriction that was violated and, therefore, was fatally 

defective. The same holds true of Appellants right to the 

records of the Association that Appellee refused to produce to 

Appellants.

8.

I. Appellee filed a an objection Appellants’ Fifth Amended 

Complaint but never sought or obtained a ruling seemingly 

withdrawing its objection based on Appellants’ representation 

that the delay in filing was caused by the myfilerunner 

internet filing service and therefore, it is the operative Petition 

that this Honorable Court should review in deciding this case.16

Appellant’s Fifth Amended Complaint provides in 

pertinent part 

states as follows:

25. “Plaintiffs seek a declaration that all Notices of 

Violation issued by defendant in this case are defective 

because they fail to provide the specific rule that the 

Association is claiming that the Plaintiffs allegedly violated. 

Plaintiffs also seek a declaration that the defendant’s 

Notices of the Violation of Rules of the Association in this case 

were defective because they failed to provide a valid cure 

date as provided by law.

26. Plaintiffs seek declaration that fines may not be 

imposed in this case because they were based on a defective 

Notice and Hearing in this matter.

27. Plaintiffs seek a declaration that the Association 

may not deny Plaintiffs access to the records of the 

Association and the Association must keep the records in a 

manner which makes them reasonably available to the 

Plaintiffs’.

28. Plaintiffs also seek a declaration that the Association

14
must not use false and/or misleading statements of the 

Property Manager to prevent plaintiffs from seeking a Hearing 

prior to the Board taking enforcement action against plaintiffs 

dedicatory violations as defendant did in this case.

29. Plaintiffs also seek a declaration that the 

Homeowners’ Association must conduct a fair and open and 

verifiable elections for neighborhood representative and 

Directors and that the Plaintiff, Wesley 

Spears, name was intentionally omitted from the Election 

Ballot.

9.

30. A declaration that the failure to cite a specific rule 

before finding plaintiffs in violation of the rules of the 

Association and/or denial of equal protection of the rules of 

the Association.

31. Plaintiffs seek a declaration that the President of the

Association may not act in this matter for the Board in matters

requiring Board approval as falsely and deceptively 

represented by the Property 

Manager, Diane Bottema to the Plaintiffs.

32. Plaintiffs seeks a declaration that it is a deceptive 

trade practice for the Property Manager to mislead plaintiffs 

into believing they were not entitled to a Hearing upon the 

receipt of the First Violation in this case.

33. Finally, the plaintiffs seek a declaration that the 

Privacy Screen in question was built in substantial compliance 

with the example and verbal instructions which were provided 

to the plaintiffs by the Property Manager , Diane Bottema and 

Ranier Ficken, President of the Homeowners’ Association and 

the Developer, Newland Properties’, Property Manager and it 

is not in violation of the Rules of the Association and/or that 

the actions of the Board were Arbitrary and Capricious 

because it was not based on a violation of the Rules of the 

15
Association.” 17

Again it is the Appellee not the Appellant who mistakes 

the state of the pleadings and therefore, its argument that 

Appellants’ Complaint seeks an advisory opinion is without 

merit because it does not. 

Appellee never moved to strike the Appellants’ Fifth Amended 

Complaint nor did raise any issue regarding Appellants’ 

Complaint in the Orders they requested the Judge to make in 

regards to Appellants’ Summary Judgment evidence. The 

Court made no rulings regarding the Appellants’ Fifth 

Amended Petition and therefore, it is the operative pleading. 

Appellee 

10.

will undoubtedly argue that Appellants’ Fifth Amended 

Complaint was filed six hours late. They did seek any Orders 

regarding the Appellants Fifth Amended Petition seemly 

agreeing that they could not have been prejudiced by the sixhour delay caused by problems with the myfilerunner, internet

filing system.

3. The trial court abused its discretion by refusing to 

Hear Appellants’ Three Motions to Compel and Motion 

16
for Continuance.

Appellants’ filed the subject Motion for Continuance as a 

last resort when the Court Operations Officer admittedly failed

to respond to emails from Appellants requesting that 

Appellants three Motions to Compel be heard before the 

Summary Judgment Hearing. Appellants, September 8 and 

9, 2014, emails clearly state that they wanted their Motions to

Compel heard before parties’ Summary Judgment Motions. It 

would make no sense and would be futile to hear discovery 

Motions after the Judge grants Summary Judgment. 

The Appellee again misrepresents the statements of 

counsel of Appellants’ stating that he would leave it to the 

courts discretion as the appropriate date for the Hearing of the

parties Motion to Compel. Counsel 

11.

was merely relating that he would make himself available 

anytime the 

17
Judge requested, but as stated in the emails to the Court 

Operations Officer and the Motion for Continuance, Appellants 

wanted their Motions to Compel be heard before the parties 

Motion for Summary Judgment anything else would not make 

sense and would be futile after

the court granted Appellee’s Motion for Summary Judgment.

4. Appellants have produced clear and concise 

arguments regarding their two Deceptive Trade 

Practices Act Claims.

Appellants’ Original Brief clearly and concisely argues 

Appellants’ Deceptive Trade Practices Act claims. First, 

Appellants’ clearly demonstrated that they were lied to by the 

Property Manager, Diane Bottema in an email in response to 

Appellants’ email indicating they were going to request a 

Hearing after conducting an investigation.18 The Property 

Manager responded in in her email that in matters of clear 

violations the President of the Board of the Association could 

act for the Board.19 Appellants pointed to the testimony of the 

President of the Association, Ranier Ficken who testified that 

the statement of the Property Manager, Diane Bottema, was 

untrue.20

18
12.

Second, as outlined in Appellant’s Original Brief, 

Appellants, alleged that Appellant, Wesley S. Spears properly 

applied to have his named put 

on the ballot for neighborhood representative. Appellant 

produced a copy

of the Ballot downloaded from the Appellee’s website. 

Ranier Ficken the president of the Association testified 

that indeed the Ballots came from the Association website. In 

addition, Appellants 

produced Affidavits of two neighbors attesting to the fact that 

Appellant, Wesley Spears’ name was left of the Ballot for 

neighborhood 

representative in June of 2014, disenfranchising him. Once 

again the Appellee is trying to subvert the truth and distort 

the facts without producing any evidence to contradict the 

representations of the Appellants.

5. Appellants’ have established that Judge Wisser 

and Judge Phillips erred in failing to recuse Judge 

19
Phillips

Appellants have maintained from the time of Hearing of 

the parties’ Motion for Summary Judgment to the present that 

Judge Phillips rulings, demeanor, including the violation of the 

court’s policy that all pending Discovery Motions be heard 

before hearing a Summary Judgment Motion, were biased. 

The failure of the court to adhere its policy in only this 

13.

case would make any reasonable person question Judge 

Phillips’ impartiality based on the Court’s Operations Officer’s 

own sworn testimony.

Although counsel for the Appellant suspected the Judge 

was biased at the first Hearing that Judge Phillips presided 

over because he overruled Judge Shepperd’s previous order, 

he had not reached a good faith belief that the Judge’s was 

biased against Appellants until the Summary Judgment 

Hearing. Appellants’ counsel did not form a good faith belief 

that the Judge was biased until he was denied a reasonable 

opportunity to be heard regarding Appellants’ Motions to 

20
Compel, Motion for Continuance, and, the parties’ Motions for 

Summary Judgment. 

Counsel for the Appellant filed a Motion to recuse Judge 

Phillips within two hours of the conclusion of the Hearing of 

the Parties’ Summary Judgment Motion. Appellants’ filed 

their Motion to Recuse Judge Phillips at the earliest possible 

moment after they formed a good faith belief that he was 

biased against them. 

Counsel for the Appellant had been before Judge Phillips 

on only one prior occasion in this case and in his life, before 

the Hearing of the parties’ Motion for Summary Judgment. 

The first was at the July 1, 2014, 

14.

hearing of Appellants’ Motion to Compel Documents. 

In fact none of the authorities cited by the Appellee 

contradict 

anything the Appellants argued in their Original Brief 

regarding the bias of Judge Phillips. It is up to this Honorable 

Court to decide whether the facts demonstrate that a 

21
reasonable person knowing all the facts would

question whether Judge Phillips was biased and the other 

issues in this case.

 Appellants’ Wesley Spears

and Renee Jacobs

 

/s/ Wesley S. Spears

By:_______________________________

 Wesley S. Spears

 401 Congress Avenue, Suite

1540

 Austin, Texas 78701

 Tel.: 512-696-2222

 Fax.: 512-687-3499

 Attorney For Appellants

15.

 

CERTIFICATE OF COMPLIANCE

In compliance with the Texas Rule of Appellate Procedure 9.4(i)

(3), I certify that based on the word count of the computer 

program used to prepare the foregoing document, the 

relevant sections of this document contain 3839 words.

22
/s/Wesley S. Spears

_________________________

Wesley S. Spears

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and 

foregoing document has been served by via electronic service 

on the following counsel for the Appellee on this 9th day of 

June, 2015:

David Chamberlain

David Campbell

301 Congress Avenue, 22nd floor

Austin, Texas 78701

Attorney for Defendant/Appellee

/s/Wesley S. Spears

_________________________

Wesley S. Spears

16.

FOOTNOTES

23
1 See Appellants’ Original Brief p. 20-27.

2 See Appellants’ Original Brief p. 20-27.

3 See Appellants’ Original Brief p. 20-27.

4 See Appellants’ Original Brief p. 31-32.

5 See Appellants’ Original Brief p. 14-15.

6 See Appellants’ Original Brief p. 20-25.

7 See Appellants’ Original Brief p. 48-56.

8 See Appellants’ Original Brief p. 12-14.

9 See Appellants’ Original Brief p. 15-16.

10 See Appellants’ Original Brief Appendix p. 3

11 See Appellants’ Original Brief p. 6

12 See Appellants’ Original Brief p. 24-25.

13 See Appellants’ Original Brief Appendix p. 28-29.

14 See Appellants’ Original Brief Appendix p. 38-39

15 See Court Record Plaintiffs’ Supplemental Brief in Opposition to Defendants’ 

Motion for Traditional and No-Evidence Summary Judgment p. 992-1021.

16 See Appellants’ Fifth Amended Complaint, Court Record p. 929-931.

17 See Appellants’ Fifth Amended Complaint Court Record p. 929-931.

18 See Appellants’ Fifth Amended Complaint Court Record p. 929-931

19 See Appellants Original Brief p. 2.

20 See Appellants’ Original Brief p. 3.

17.