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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES THOMAS WESNER, JR.

as Trustee of the Charles Wesner, 

Jr. Living Trust,

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Plaintiff, §

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V. § No. 3:22-cv-927-B

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MARK SOUTHALL, PRINCIPLE

MANAGEMENT GROUP INC.,

ASSOCIATIONS INC. d/b/a

ASSOCIA, ESTATES OF WINDSOR

RIDGE HOMEOWNERS’ 

ASSOCIATION INC., ASSOCIA

CLIENT SHARED SERVICE 

CENTER

INC. d/b/a CSSC, WHITTEN AND

WHITTEN PLLC, ADAM T.

WHITTEN, WYATT FRANCIS, 

BILLY

RAY SMITH, ELIZABETH 

FALCON,

MATTHEW BRYANT, LISA

HILDINGER, SCOTT MARTIN, and

SUSAN DENNEY,

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§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

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Defendants.

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FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendants Whitten & Whitten, PLLC (“Whitten Firm”) and Adam Whitten 

(“Whitten”) (collectively, “Whitten Defendants”) have filed a Motion to Dismiss 

Plaintiff’s Second Amended Complaint for Failure to State a Claim, see Dkt. No. 63, 

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which United States District Judge Jane J. Boyle has referred to the undersigned 

United States Magistrate Judge for hearing, if necessary, and findings, conclusions, 

and a recommendation under 28 U.S.C. § 636(b), see Dkt. No. 64. Whitten Defendants 

request “that the Court sign and cause to be entered an order dismissing with 

prejudice Wesner’s Second Amended Complaint (Doc. 57) in its entirety as it relates 

to every claim against [Whitten Defendants]” and “denying Wesner the opportunity

to replead his Second Amended Complaint against” Whitten Defendants. Dkt. No. 63 

at 30.

Plaintiff Charles Thomas Wesner, Jr. has not filed a response, and his time to 

do so has expired. See N.D. TEX. L. CIV. R. 7.1.

For the reasons and to the extent explained below, the undersigned 

recommends that the Court grant in part and deny in part Defendants Whitten & 

Whitten, PLLC and Adam T. Whitten’s Motion to Dismiss Plaintiff’s Second Amended 

Complaint for Failure to State a Claim [Dkt. No. 63].

Background

As Judge Boyle previously explained,

[o]n April 26, 2022, Wesner sued current Defendants and now-dismissed 

Defendants Wyatt Francis, Susan Denney, Lisa Hildinger, and Scott 

Martin in this Court. Doc. 1, Compl. He alleged violations of the Federal 

Debt Collection Practices Act, the Texas Fair Debt Collection Act, and 

Texas Deceptive Trade Practices Act, breaches of fiduciary duty and 

contract, usury, intentional interference with contract, fraud, and a 

declaratory judgment. Id. Francis, Denney, Hildinger, and Martin were 

never served with process, and the Court dismissed the claims against 

them. Doc. 26, Order. The remaining Defendants filed motions to 

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dismiss (Docs. 14, 17-19, 23). Wesner sought leave to amend, which the 

Court granted. Doc. 35, Order. Wesner filed his Amended Complaint 

(Doc. 38), which Defendants moved to dismiss (Docs. 40-44).

Dkt. No. 54 at 5.

The Court granted those motions in part but denied the motions as to Wesner’s 

claims for

• Declaratory judgment against all Defendants; 

• Violation of the TDCA against Defendant Estates of Windsor Ridge 

Homeowners’ Association, Inc. (“Estates of Windsor Ridge”); 

• Breach of contract against Defendant Estates of Windsor Ridge; 

• Tortious interference with contract against Defendants Estates of Windsor 

Ridge, Associations, Inc. (“Associa”), Associa Client Shared Service Center, Inc. 

(“CSSC”), Mark Southall, and Principal Management Group, Inc. (“PMG”); and 

• Fraud and conspiracy to commit fraud against Defendants Southall and PMG.

Id. at 32. As to the dismissed claims, the Court dismissed the claims without prejudice 

“to give Wesner one final opportunity to amend his complaint” and ordered that, “[i[f 

Wesner wishes to amend his complaint, he must do so within THIRTY (30) days of 

this Order.” Id.

Wesner then filed Plaintiff’s Second Amended Complaint and Application for 

Declaratory and Injunctive Relief, see Dkt. No. 57 (the “2dAC”), which only Whitten 

Defendants have moved to dismiss, see Dkt. No. 63; see also Dkt. Nos. 58, 59, 60, 61, 

62 (answers).

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Whitten Defendants move to dismiss all claims against them with prejudice 

because:

• “Attorney immunity bars Wesner’s claims against” Whitten Defendants;

• “The declaratory judgment claims fail both because of [Whitten 

Defendants’] underlying attorney-immunity and because [Whitten 

Defendants’] past actions do not give rise to a present case or controversy 

between Wesner and” Whitten Defendants;

• “Whitten is immune from Wesner’s Texas Debt Collection Act claims, 

and regardless he is neither a ‘debt collector’ nor a ‘third-party debt 

collector’ under the TDCA”;

• “Whitten is immune from Wesner’s intentional interference with

contracts claims, which are nevertheless barred because Whitten cannot 

interfere with a contract to which his former client is a party” and 

• “An injunction against Whitten is inappropriate because Whitten is not 

engaging in any actions the Court can enjoin.”

Dkt. No. 63 at 2; see also id. at 8-9. And Whitten Defendants contend that “[t]he Court 

should deny Plaintiff a further opportunity to replead his allegations against Whitten 

because the Court already gave [Wesner] two prior opportunities” and because 

“further amendments would be futile.” Id. at 9.

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Legal Standards

In deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must 

Aaccept all well-pleaded facts as true, viewing them in the light most favorable to the 

plaintiff.@ In re Katrina Canal Breaches Litig., 495 F.3d 191, 205B06 (5th Cir. 2007). 

To state a claim upon which relief may be granted, Plaintiffs must plead Aenough 

facts to state a claim to relief that is plausible on its face,@ Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough 

specificity Ato raise a right to relief above the speculative level.@ Id. at 555. AA claim 

has facial plausibility when the plaintiff pleads factual content that allows the court 

to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). AThe plausibility standard is not 

akin to a >probability requirement,= but it asks for more than a sheer possibility that 

a defendant has acted unlawfully.@ Id. AA claim for relief is implausible on its face 

when >the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct.=@ Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 

796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not 

contain detailed factual allegations, Plaintiffs must allege more than labels and 

conclusions, and, while a court must accept all of the Plaintiffs= allegations as true, it 

is Anot bound to accept as true a legal conclusion couched as a factual allegation.@

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic 

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recitation of the elements of a cause of action, supported by mere conclusory 

statements, will not suffice. See id. But, Ato survive a motion to dismiss@ under 

Twombly and Iqbal, a plaintiff need only Aplead facts sufficient to show@ that the 

claims asserted have Asubstantive plausibility@ by stating Asimply, concisely, and 

directly events@ that Plaintiff contends entitle him or her to relief. Johnson v. City of 

Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), 

(d)(1), (e)); accord N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 

182, 191 (5th Cir. 2015) (ATo survive a Rule 12(b)(6) motion to dismiss, the complaint 

does not need detailed factual allegations, but it must provide the plaintiff’s grounds 

for entitlement to relief B including factual allegations that, when assumed to be true, 

raise a right to relief above the speculative level.@ (footnote and internal quotation 

marks omitted)).

The United States ASupreme Court has made clear that a Rule 12(b)(6) motion 

turns on the sufficiency of the >factual allegations= in the complaint.@ Smith v. Bank 

of Am., N.A., 615 F. App=x 830, 833 (5th Cir. 2015) (quoting Johnson, 135 S. Ct. at 

347, and the Federal Rules of Civil Procedure “do not countenance dismissal of a 

complaint for imperfect statement of the legal theory supporting the claim asserted,”

Johnson, 135 S. Ct. at 346. 

A court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion. 

Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Pleadings in the Rule 12(b)(6) 

context include attachments to the complaint. In re Katrina Canal Breaches Litig., 

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495 F.3d 191, 205 (5th Cir. 2007). Documents Aattache[d] to a motion to dismiss are 

considered to be part of the pleadings, if they are referred to in the plaintiff=s 

complaint and are central to her claim.@ Collins v. Morgan Stanley Dean Witter, 224 

F.3d 496, 498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. 

Corp., 987 F.2d 429, 431 (7th Cir. 1993)). AAlthough the [United States Court of 

Appeals for the] Fifth Circuit has not articulated a test for determining when a 

document is central to a plaintiff=s claims, the case law suggests that documents are 

central when they are necessary to establish an element of one of the plaintiff’s 

claims. Thus, when a plaintiff’s claim is based on the terms of a contract, the 

documents constituting the contract are central to the plaintiff=s claim.@ Kaye v. Lone 

Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011). AHowever, if a document 

referenced in the plaintiff=s complaint is merely evidence of an element of the 

plaintiff’s claim, then the court may not incorporate it into the complaint.@ Id.

Analysis

As Judge Boyle did when addressing the motions to dismiss Wesner’s first 

amended complaint, “[b]ecause attorney immunity is an absolute defense, the 

[undersigned] first addresses whether Whitten Defendants are entitled to attorney 

immunity.” Dkt. No. 54 at 6.

The undersigned then considers Wesner’s claims in his 2dAC against Whitten 

Defendants. Although Wesner engages in a form of “lumping” or “shotgun pleading”

by referring to “Defendants” – usually accompanied by “jointly and severally” or “joint 

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and several” – in every cause of action, the Court should determine that Wesner’s 

pleaded claims against Whitten Defendants include those that he specifies that he is 

raising against Whitten Defendants: 1) Federal Declaratory Judgment Act; 2) The 

Texas Fair Debt Collection Act; 3) Tortious Interference with Contract; and 4) 

Application for Injunctive Relief. See Dkt. No. 57 at 36-57. “When the plaintiff’s 

complaint uses blanket terms covering all the defendants, by lumping them together 

or calling them collectively [‘Defendants’] these allegations are properly disregarded 

unless the reference to [particular defendants] can be clearly inferred.” Staten v. City 

of Dallas, No. 3:19-cv-843-L-BN, 2020 WL 1902573, at *12 (N.D. Tex. Jan. 17, 2020)

(cleaned up), rep. & rec. adopted, 2020 WL 548373 (N.D. Tex. Feb. 4, 2020). The Court 

should only also consider the claim for Continuing Fraud and Conspiracy to Commit 

Fraud, as Whitten Defendants do in their motion to dismiss, see Dkt. No. 63 at 26-27, 

and otherwise disregard the allegations and causes of action as to which any

references to Whitten Defendants in the 2dAC cannot be clearly inferred.

“Finally, the [undersigned] addresses whether [the Court should] grant 

Wesner leave to amend his complaint” a third time to replead claims against Whitten 

Defendants. Dkt. No. 54 at 6.

But, before all that, the undersigned first addresses the effect of Wesner’s 

failure to file a response to Whitten Defendants’ latest motion to dismiss.

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I. Effect of Failing to File a Response to a Motion to Dismiss

When a non-moving party files a response to a motion to dismiss and fails to 

include an argument about a claim that the motion seeks to have the Court dismiss, 

the Court may determine that the nonmoving party has abandoned the unaddressed 

claim. See Dkt. No. 54 at 20 (citing In re Dall. Roadster, Ltd., 846 F.3d 112, 126 (5th 

Cir. 2017); Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006); accord

Maynard v. PayPal, Inc., No. 3:18-cv-259-D, 2019 WL 3552432, at *3 (N.D. Tex. Aug. 

5, 2019) (“A party may abandon its claim when it fails to pursue the claim beyond the 

complaint. See, e.g., Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 

2006); Vela v. City of Houston, 276 F.3d 659, 678-79 (5th Cir. 2001); Hargrave v. 

Fibreboard Corp., 710 F.2d 1154, 1163-64 (5th Cir. 1983).”). In the published 

decisions in this line of Fifth Circuit cases supporting a district court’s authority for 

finding claims or theories abandoned, the nonmoving party filed a response to the 

motion. See McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1010 (5th Cir. 2023); 

Terry Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins. Co., 22 F.4th 450, 459 (5th Cir. 

2022); In re Dall. Roadster, 846 F.3d at 126; Black, 461 F.3d at 588 n.1.

But, when a nonmoving party does not file any response to a motion to dismiss, 

the Court cannot properly grant “the motion to dismiss for failure to state a claim 

solely because the [nonmoving party] failed to oppose the motion.” Webb v. Morella, 

457 F. App’x 448, 452 n.4 (5th Cir. 2012) (citing John v. La., 757 F.2d 698, 707-10 

(5th Cir. 1985) (“[A]lthough we have endorsed the adoption of local rules that require 

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parties to file responses to opposed motions, we have not approved the automatic 

grant, upon failure to comply with such rules, of motions that are dispositive of the 

litigation.” (citing and discussing Ramsey v. Signal Delivery Service, Inc., 631 F.2d 

1210, 1214 (5th Cir. 1980); Arundar v. DeKalb Cty. Sch. Dist., 620 F.2d 493, 493-95 

(5th Cir. 1980); Boazman v. Economics Lab., Inc., 537 F.2d 210, 213-14 (5th Cir.

1976); Woodham v. Am. Cystoscope Co., 335 F.2d 551, 551, 553, 556-57 (5th Cir.

1964))).

As the United States Court of Appeals for the Fifth Circuit has explained, 

Rule 12 does not by its terms require an opposition; failure to oppose a 

12(b)(6) motion is not in itself grounds for granting the motion. Rather, 

a court assesses the legal sufficiency of the complaint. See FED. R. CIV.

P. 12(b)(6).

Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 

806 (5th Cir. 2012) (footnote omitted; citing John, 757 F.2d at 707-10; McCall v. 

Pataki, 232 F.3d 321, 322 (2d Cir. 2000) (“[F]ailure to oppose a 12(b)(6) motion cannot 

itself justify dismissal of a complaint.”)).

The rationale underlying these two lines of authority appears to be that the 

nonmovant must – at least by affirmatively filing a response – take some action to be 

considered to have abandoned a claim, theory, or defense. And, by dismissing claims 

under Federal Rule of Civil Procedure 12 based on only a nonmovant’s lack of action 

at all (that is, not filing a response that Rule 12 itself does not require to be filed), a 

district court would be improperly dismissing with prejudice without the findings or

factual support required under either Rule 12 or Federal Rule of Civil Procedure 41(b) 

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for such a dismissal. See Servicios Azucareros, 702 F.3d at 806; Webb, 457 F. App’x at 

452-54 & n.4; John, 757 F.2d at 707-10.

And, even if these two lines of authority cannot be reconciled with this brightline distinction, “[t]he rule in this circuit is that where two previous holdings or lines 

of precedent conflict the earlier opinion controls and is the binding precedent in this 

circuit (absent an intervening holding to the contrary by the Supreme Court or this 

court en banc).” Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006); 

accord United States v. Sanchez-Pena, 336 F.3d 431, 444 n.62 (5th Cir. 2003) (“When 

faced with conflicting panel opinions, the earlier controls our decision.” (cleaned up)).

This suggests that the published decisions cited and relied on in John, 757 F.2d at 

707-10, which appear to predate any decisions setting forth the abandonment 

doctrine, would – at least where a nonmovant has not filed any response to a motion 

to dismiss – control.

Under these governing authorities, the Court cannot grant Whitten 

Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint for Failure to 

State a Claim [Dkt. No. 63] solely because Wesner failed to file a response in 

opposition. 

The undersigned therefore turns to the legal sufficiency of Wesner’s 2dAC 

based on Whitten Defendants’ arguments in support of dismissal under Rule 12(b)(6).

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II. Attorney Immunity

 As Judge Boyle explained when addressing the last round of motions to 

dismiss, 

Whitten Defendants assert attorney immunity bars Wesner’s claims 

against them because “all of Whitten[] [Defendants’] actions are ‘the 

kind of conduct’ attorneys undertake while discharging their 

professional duties to a client.” Doc. 40, Whitten Mot., ¶¶ 15–18 & n.4 

(quoting Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 67 (Tex. 

2021)). Wesner responds, “An attorney is not immune from suit for 

participating in ‘independently fraudulent activities’ that fall outside 

the scope of the attorney’s representation of a client.” Doc. 50, Resp., 10 

(quoting Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 

595 S.W.3d 651, 657 (Tex. 2020)). He argues, “[Wesner] has alleged that 

the Whitten Defendants engaged in fraudulent activities and dismissal 

of the claims against the Whitten Defendants at the motion to dismiss 

stage, without discovery, would be premature.” Id.

Attorneys and law firms in Texas are generally immune from 

third party liability for legal services provided in the representation of 

a client. See, e.g., Haynes & Boone, 631 S.W.3d at 76, 81. In Texas, 

attorney immunity is an affirmative defense “intended to ensure loyal, 

faithful, and aggressive representation by attorneys employed as 

advocates.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 

2015) (internal quotation omitted). Under Texas law, “attorney 

immunity is properly characterized as a true immunity from suit, not as 

a defense to liability.” Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 

346 (5th Cir. 2016).

Dismissal under Rule 12(b)(6) may be granted based on a 

successful affirmative defense if the defense appears on the face of the 

complaint. See EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase 

Bank, NA, 467 F.3d 466, 470 (5th Cir. 2006); Kelly v. Nichamoff, 868 

F.3d 371, 375 (5th Cir. 2017) (“Although Texas courts occasionally grant 

attorney immunity at the motion to dismiss stage, in those cases, the 

scope of the attorney’s representation – and thus entitlement to the 

immunity – was apparent on the face of the complaint.”). “[A]n attorney 

seeking dismissal based on attorney immunity bears the burden of 

establishing entitlement to the defense.” Kelly, 868 F.3d at 375 (citing 

JJJJ Walker, LLC v. Yollick, 447 S.W.3d 453, 468 (Tex. App. – Houston 

[14th Dist.] 2014, pet. denied)).

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The Supreme Court of Texas clarified what an attorney must 

show to meet this burden in two recent cases: Haynes & Boone, 631 

S.W.3d 65 and Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40 

(Tex. 2021). The court “summariz[ed] [its] jurisprudence” as follows. See 

Haynes & Boone, 631 S.W.3d at 78.

[A]ttorney immunity protects an attorney against a nonclient’s claim when the claim is based on conduct that (1) 

constitutes the provision of “legal” services involving the 

unique office, professional skill, training, and authority of 

an attorney and (2) the attorney engages in to fulfill the 

attorney’s duties in representing the client within an 

adversarial context in which the client and the non-client 

do not share the same interests and therefore the nonclient’s reliance on the attorney’s conduct is not justifiable.

Id. This “immunity applies in all adversarial contexts in which an 

attorney has a duty to zealously and loyally represent a client, including 

a business-transactional context.” Id. at 67. The Court analyzes each 

prong in turn.

1. Legal Services

The first prong addresses whether a “claim against [an] attorney 

is based on ‘the kind of conduct’ attorneys undertake while discharging 

their professional duties to a client.” Taylor v. Tolbert, 644 S.W.3d 637, 

646 (Tex. 2022) (quoting id.). “[T]he conduct must involve ‘the uniquely 

lawyerly capacity’ and the attorney’s skills as an attorney.” Id. (quoting 

Landry’s, 631 S.W.3d at 51-53). In other words, the attorney must be 

providing legal services.

The Landry’s decision provides color. In Landry’s, a non-client 

sued its opponent’s attorneys for defamation, business disparagement, 

and other tortious conduct because the attorneys issued press releases 

repeating their client’s allegations and published these press releases 

online and on social media. Landry’s, 631 S.W.3d at 44-45. Although the 

attorneys were acting on their client’s behalf in issuing and publishing 

these press releases, the Court held attorney immunity did not apply. 

Id. at 52–53. The court reasoned,

Anyone – including press agents, spokespersons, or 

someone with no particular training or authority at all – 

can publicize a client’s allegations to the media, and they 

commonly do so without the protection of immunity. While 

lawyers can also make such statements, attorney 

immunity does not apply to an activity simply because 

attorneys often engage in that activity.

Id. at 52.

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Dkt. No. 54 at 7-9.

In ruling on the prior motion to dismiss the Amended Complaint, Judge Boyle 

explained that

Wesner only specifically alleges two actions taken by Whitten 

Defendants. First, Whitten met with Wesner to discuss the legal status 

of the HOA entity. See Doc. 38, Am. Compl., ¶ 3.95. Second, Whitten 

asked Wesner three times by email to pay his assessments. Id. ¶ 3.121.

The Court finds the meeting constituted legal services. Attorneys 

are uniquely equipped to represent a client in disputes about the legality 

of an entity or invoice. In discussing the legality of the assessments and 

HOA, Whitten doubtless used the “unique office, professional skill, 

training, and authority of an attorney.” See Haynes & Boone, 631 S.W.3d 

at 78.

It is not clear from the Amended Complaint that Whitten’s emails 

requesting Wesner pay his assessments constituted legal services. Many 

attorneys and law firms engage in collection efforts in the course of their 

representation of a client, as Whitten likely did in this case. However, 

requests to pay assessments do not require “the unique office, 

professional skill, training, and authority of an attorney.” See id. This is 

apparent from the allegations in this case. Each Defendant has, in some 

form or fashion, asked Wesner to pay his assessments, and based on the 

Amended Complaint, it appears none of the other Defendants are 

lawyers. Much like the act of “publiciz[ing] a client’s allegations to the 

media,” anyone can request payment of a fee. See Landry’s, 631 S.W.3d 

at 52. The Court therefore finds it is not apparent from the face of the 

complaint that Whitten is entitled to immunity as to his emails 

requesting payment. Thus, he has not carried his burden as to these 

emails. See Kelly, 868 F.3d at 375-76.

....

The Court now turns to whether Whitten’s actions in the meeting 

are within the scope of the representation. The only allegation 

concerning the scope of Whitten’s representation is that Whitten was 

hired as “attorney in respect to [Wesner’s] document requests and the 

documents that [Wesner] requested.” See Doc. 38, Am. Compl., ¶¶ 3.50, 

3.84. As Whitten recognized, these document requests chiefly related to 

“the legal status of the HOA entity.” See id. ¶ 3.94. The Court finds 

Whitten’s actions in the meeting fall within the scope of his 

representation of Estates of Windsor Ridge. See id. ¶¶ 3.50, 3.84. 

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Because Whitten’s requests for payment do not constitute legal services, 

the Court does not address whether they fall within the scope of the 

representation. See Haynes & Boone, 631 S.W.3d at 78 (holding actions 

must include the “provision of ‘legal’ services” and “fulfill the attorney’s 

duties in representing the client”).

....

As explained above, the Court finds that some but not all of 

Whitten’s alleged conduct satisfies the elements of attorney immunity. 

The Fifth Circuit has explained, “[A]ttorney immunity is properly 

characterized as a true immunity from suit, not as a defense to liability.”

Troice, 816 F.3d at 346. But attorney immunity is not limited to 

situations where it would bar all claims against a defendant. See, e.g., 

Clark v. Bank of Am., N.A., 2013 WL 12126785, at *2 (W.D. Tex. July 

17, 2013), report and recommendation adopted, 2013 WL 12126351 

(W.D. Tex. Oct. 1, 2013) (“[I]t may be that, unlike the FDCPA claim, 

particular other claims of Plaintiffs are subject to BDFTE’s attorneyimmunity defense.”); accord Loupe v. O’Bannon, 824 F.3d 534, 539-41 

(5th Cir. 2016) (finding prosecutorial immunity, an immunity-from-suit 

doctrine with similar purposes to attorney immunity, barred some but 

not all claims against a defendant).

Here, Wesner’s claims against Whitten Defendants are barred by 

attorney immunity insofar as the “claims are based on [Whitten’s 

actions in his meeting with Wesner].” See Haynes & Boone, 631 S.W.3d 

at 81. Insofar as the claims are based on Whitten’s requests that Wesner 

pay his assessments, they are not barred by attorney immunity.

Dkt. No. 54 at 9-11.

Whitten Defendants now argue, as to the 2dAC, that 

(17) The HOA engaged Whitten to represent the HOA adversarial 

to Wesner’s allegation. Doc. 57 ¶¶ 3.71, .124. Wesner’s Second Amended 

Complaint alleges that Whitten undertook the following acts while 

representing the HOA:

o “attended meetings of Windsor Ridge Homeowners 

Association and was shown as the attorneys and general 

counsel on the minutes,” Doc. 57 ¶ 3.123;

o engaged in email and telephone communications with 

Wesner, Doc. 57 ¶¶ 3.89, .92, .93, .96, .101, .103, .115, .120;

o met with Wesner at Whitten’s office to discuss Wesner’s 

contentions, Doc. 57 ¶ 3.102; and

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o represented the HOA at an April 26, 2021 Zoom hearing in 

which Wesner was adverse to the HOA, Doc. 57 ¶ 3.115.

(18) As this Court noted in its Memorandum Opinion and Order, 

meeting with an opposing party in an attorney’s office involves the 

provision of legal services and is within the scope of an attorney’s 

representation because “[a]ttorneys are uniquely equipped to represent 

a client in disputes about the legality of an entity or invoice. In 

discussing the legality of the assessments and HOA, Whitten doubtless 

used the ‘unique office, professional skill, training, and authority of an 

attorney.’” Doc. 54 p. 10 (quoting Haynes & Boone, 631 S.W.3d at 78). 

Likewise, attending HOA meetings as “the attorneys and general 

counsel on the minutes,” Doc. 57 ¶ 3.123, and representing the HOA at 

the April 27, 2021 Zoom hearing, Doc. 57 ¶ 3.115, involved the provision 

of legal services using Whitten’s “‘unique office, professional skill, 

training, and authority of an attorney.” Haynes & Boone, 631 S.W.3d at 

78.

(19) Regarding emails and other communications between 

Wesner and Whitten, including any emails asking Wesner to “[p]lease 

pay your assessments,” Doc. 57 ¶ 3.120, these too involved the provision 

of ‘legal’ services using Whitten’s “unique office, professional skill, 

training, and authority of an attorney.” Haynes & Boone, 631 S.W.3d at 

78. As set forth in the Second Amended Complaint, Wesner aggressively 

pursues a unique legal theory threatening the HOA’s very existence. An 

attorney’s communication with an adverse party is a key function of 

legal representation and is exactly the “kind of” conduct contemplated 

by the attorney-immunity doctrine. Cantey Hanger, LLP, 467 S.W.3d at 

485.

(20) Attorney immunity bars claims by nonclients for “acts taken 

and communications made to facilitate the rendition of legal 

services.” Alpert, 178 S.W.3d at 408 (emphasis added). As shown in the 

Second Amended Complaint, Wesner communicates frequently via 

email. See e.g., Doc. 57 ¶¶ 3.45, .66, .74, .76, .78, .80, .88, .89, .92, .93, 

.97, .105 (noting instances in which Wesner sent email correspondence).

(21) Engaging in continued communication via email –

particularly with an adverse party that sends voluminous emails – is 

exactly the “the kind of conduct” attorneys undertake while discharging 

their professional duties to a client, Haynes & Boone, LLP, 631 S.W.3d 

at 67, using “the office, professional training, skill, and authority of an 

attorney.” Cantey Hanger, LLP, 467 S.W.3d at 481-82.

(22) Whitten is thus immune for all actions as alleged in Wesner’s 

Second Amended Complaint. The Court should therefore dismiss 

Wesner’s claims with prejudice.

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 16 of 61 PageID 1072
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Dkt. No. 63 at 13-14.

A side-by-side comparison of the Amended Complaint’s allegations to which 

Whitten Defendants point with the 2dAC’s corresponding allegations will be helpful 

in considering Whitten Defendants’ current motion to dismiss in light of the Court’s 

ruling on the allegations on Whitten Defendants’ prior motion to dismiss: 

Amended Complaint 2dAC

3.50. Lopez advised Trustee that 

Francis had terminated Riddle & 

Williams and would engage a new 

attorney in respect to Trustee’s 

document requests and the documents 

that Trustee requested. The 

unincorporated association at a board 

meeting had engaged Whitten who did 

not provide the documents that Trustee 

requested and purportedly had been in 

Grant Neidenfeuhr’s possession.

3.71. Lopez advised the Trustee that 

Francis terminated Riddle & Williams

and would engage a new attorney in 

respect to the Trustee’s document 

requests and the documents that the 

Trustee requested. The unincorporated 

association, Windsor Ridge 

Homeowners’ Association, at a board 

meeting had engaged Whitten, who did 

not provide the documents that the 

Trustee requested and purportedly had 

been in Grant Neidenfeuhr’s 

possession. Although requested, 

Whitten and the Whitten firm have not 

produced any documents showing they 

were engaged at an Estate’s board 

meeting. Without authorization, and in 

furtherance of the fraudulent scheme, 

Francis signed an engagement letter for 

Estates with Whitten contrary to the 

board resolutions of Windsor Ridge 

Homeowners’ Association engaging 

Whitten. 

3.82. The December 30, 2018 email 

from Trustee to Whitten requested the 

governing document received by 

Francis, Hildinger and Denney. 

Whitten refused the request.

3.89. The December 30, 2018 email 

from the Trustee to Whitten requested 

the governing document received by 

Francis, Hildinger, and Denney. 

Whitten refused the request. 

3.84. Whitten was engaged at the 

November 27, 2018 meeting to 

3.91. Whitten was engaged at the 

November 27, 2018 meeting to 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 17 of 61 PageID 1073
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Amended Complaint 2dAC

represent Windsor Ridge Homeowners’

Association and paid $5,000 at the 

November 27, 2018 meeting for 

Windsor Ridge Homeowners’ 

Association. At the November 27, 2018 

meeting Francis presided as president. 

Thereafter, Francis, Whitten met with 

Francis surreptitiously and entered an 

engagement letter with Estates. 

Francis, Whitten and the Whitten 

Firm, jointly and severally, wrongfully 

have represented Estates to the 

detriment and damage of Trustee. 

Trustee advised Whitten of the conflict 

and, nevertheless, Whitten and the 

Whitten Firm continued the conflict of 

interest to the detriment and damage of 

Trustee. 

represent Windsor Ridge Homeowners’

Association and paid $5,000 at the 

November 27, 2018 meeting for 

Windsor Ridge Homeowners’ 

Association. At the November 27, 2018 

meeting, Francis presided as president 

of Windsor Ridge Homeowners’ 

Association. Thereafter, in furtherance 

of the fraudulent scheme, Whitten met 

with Francis surreptitiously and 

entered an engagement letter with 

Estates. Francis, Whitten, and the 

Whitten Firm, jointly and severally, 

and in furtherance of the fraudulent 

scheme, have wrongfully represented 

Estates to the detriment and damage of 

the Trustee. The Trustee advised 

Whitten of the conflict and, 

nevertheless, Whitten and the Whitten 

Firm continued the conflict of interest 

to the detriment and damage of the 

Trustee.

3.85. The January 1, 2019 7:25 PM 

email from Trustee to Whitten and 

Francis requested answers to threshold 

questions needed to prepare for the 

upcoming meeting with Whitten in 

Whitten Firm’s office. Whitten refused 

to provide the answers requested by 

Trustee. 

3.92. The January 1, 2019 7:25 PM 

email from the Trustee to Whitten and 

Francis requested answers to threshold 

questions needed to prepare for the 

upcoming meeting with Whitten in 

Whitten Firm’s office. Whitten refused 

to provide the answers requested by the 

Trustee. 

3.86. The January 2, 2019 10:08 AM 

email from Trustee to Whitten had 

attached some of the problems 

including, without limitation: 

The November 1, 1999 letter 

from the Secretary of State of 

Texas returning the unfiled 

Articles for Windsor Ridge 

Homeowners’ Association, Inc. 

3.93. The January 2, 2019 10:08 AM 

email from the Trustee to Whitten had 

attached some of the problems 

including, without limitation: 

The November 1, 1999 letter 

from the Secretary of State of 

Texas returning the unfiled 

Articles for Windsor Ridge 

Homeowners’ Association, Inc. 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 18 of 61 PageID 1074
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Amended Complaint 2dAC

The Release of Notice of 

Assessment Lien dated March 

16, 2018 by Windsor Ridge 

Homeowners’ Association. 

The Notice of Assessment Lien 

dated March 27, 2014 by Windsor 

Ridge Homeowners’ Association. 

The Notice of Assessment Lien 

dated June 24, 2013 by Windsor 

Ridge Homeowners’ Association. 

The Notice of Assessment Lien 

dated January 29, 2002 by 

Windsor Ridge Homeowners’ 

Association. 

The Notice of Assessment Lien 

dated August 1, 2001 by Windsor 

Ridge Homeowners’ Association. 

The Amendment to Management 

Agreement dated January 14, 

2013 signed by Wyatt Francis as 

the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association. 

The Amendment to Management 

Agreement dated September 25, 

2009 signed by Wyatt Francis as 

the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association. 

The Amendment to Management 

Agreement dated May 21, 2004 

with an unintelligible signature 

as the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association. 

The Management Agreement 

purportedly with Windsor Ridge 

Homeowners’ Association (a 

The Release of Notice of 

Assessment Lien dated March 

16, 2018 by Windsor Ridge 

Homeowners’ Association. 

The Notice of Assessment Lien 

dated March 27, 2014 by Windsor 

Ridge Homeowners’ Association. 

The Notice of Assessment Lien 

dated June 24, 2013 by Windsor 

Ridge Homeowners’ Association. 

The Notice of Assessment Lien 

dated January 29, 2002 by 

Windsor Ridge Homeowners’ 

Association. 

The Notice of Assessment Lien 

dated August 1, 2001 by Windsor 

Ridge Homeowners’ Association. 

The Amendment to Management 

Agreement dated January 14, 

2013 signed by Wyatt Francis as 

the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association. 

The Amendment to Management 

Agreement dated September 25, 

2009 signed by Wyatt Francis as 

the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association. 

The Amendment to Management 

Agreement dated May 21, 2004 

with an unintelligible signature 

as the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association.

The Management Agreement 

purportedly with Windsor Ridge 

Homeowners’ Association (a 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 19 of 61 PageID 1075
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Amended Complaint 2dAC

community association of 141 

Units) signed in October 1999 by 

the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association.

community association of 141 

Units) signed in October 1999 by 

the purported duly authorized 

agent for owners/members of 

records for the Windsor Ridge 

Homeowners’ Association.

3.95. Trustee and Whitten in or about 

early February 2019 met at Whitten 

Firm’s office. Whitten materially 

misrepresented, among other things, to 

Trustee upon which the Trustee relied 

that Whitten would contact Windsor 

Ridge Homeowners’ Association, Inc. in 

Irving and request permission to use 

the name for Windsor Ridge 

Homeowners’ Association, Inc. in 

Denton. Whitten would, thereafter, 

prepare the required documents for 

Windsor Ridge Homeowners’ 

Association, Inc. in Denton. 

3.95. Trustee and Whitten in or about 

early February 2019 met at Whitten 

Firm’s office. Whitten materially 

misrepresented, among other things, to 

Trustee upon which the Trustee relied 

that Whitten would contact Windsor 

Ridge Homeowners’ Association, Inc. in 

Irving and request permission to use 

the name for Windsor Ridge 

Homeowners’ Association, Inc. in 

Denton. Whitten would, thereafter, 

prepare the required documents for 

Windsor Ridge Homeowners’ 

Association, Inc. in Denton.

3.89. The January 9, 2019 3:51 PM 

email from Whitten to Trustee 

materially misrepresented to Trustee as 

follows: 

I will check. I did receive an 

email from Connie the other day 

that she is still gathering 

documents you requested, though 

I don’t recall the specifics. 

Trustee relied on the representation.

3.96. The January 9, 2019 3:51 PM 

email from Whitten to the Trustee 

materially misrepresented to the 

Trustee as follows: 

I will check. I did receive an 

email from Connie the other day 

that she is still gathering 

documents you requested, though 

I don’t recall the specifics.

The Trustee relied on the material 

misrepresentation.

3.94. The January 28, 2019 1:17 PM 

email from Whitten to Trustee, Francis 

and Denney states:

Thank you, Tom. We of course 

want to find an amicable 

solution. I do believe that the 

chief concern is the legal status 

of the HOA entity. I therefore 

think it is prudent to address 

that issue before all others. Once 

3.101. The January 28, 2019 1:17 PM 

email from Whitten to the Trustee, 

Francis, and Denney states: 

Thank you, Tom. We of course 

want to find an amicable 

solution. I do believe that the 

chief concern is the legal status 

of the HOA entity. I therefore 

think it is prudent to address 

that issue before all others. Once 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 20 of 61 PageID 1076
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Amended Complaint 2dAC

we can come to an accord on that 

issue we will be able to address 

the rest as appropriate. I look 

forward to sitting down with you 

to discuss our respective 

positions.

we can come to an accord on that 

issue we will be able to address 

the rest as appropriate. I look 

forward to sitting down with you 

to discuss our respective 

positions. 

Whitten’s statements in this email 

constituted material 

misrepresentations because Whitten 

had no intention of finding an amicable 

solution and/or coming to an accord 

with the Trustee.

3.95. Trustee and Whitten in or about 

early February 2019 met at Whitten 

Firm’s office. Whitten materially 

misrepresented, among other things, to 

Trustee upon which the Trustee relied 

that Whitten would contact Windsor 

Ridge Homeowners’ Association, Inc. in 

Irving and request permission to use 

the name for Windsor Ridge 

Homeowners’ Association, Inc. in 

Denton. Whitten would, thereafter, 

prepare the required documents for 

Windsor Ridge Homeowners’ 

Association, Inc. in Denton. 

3.102. The Trustee and Whitten, on or 

about early February 2019, met at 

Whitten Firm’s office. Whitten

materially misrepresented, among 

other things, to the Trustee upon which 

the Trustee relied that Whitten would 

contact Windsor Ridge Homeowners’ 

Association, Inc. in Irving and request 

permission to use the name for Windsor 

Ridge Homeowners’ Association, Inc. in 

Denton. Whitten would, thereafter, 

prepare the required documents for 

Windsor Ridge Homeowners’ 

Association, Inc. in Denton.

3.97. Whitten’s email dated April 9, 

2019 11:07 AM to Trustee, Michael 

Whitten and assistant. Materially 

misrepresented that Whitten is 

“making good progress.”

3.103. Whitten’s email dated April 9, 

2019 11:07 AM to the Trustee, Michael 

Whitten and assistant, materially 

misrepresented that Whitten is 

“making good progress.”

3.110. Trustee received on his doorstep 

a federal express delivery on April 21, 

2021 with “Estates of Windsor Ridge 

Homeowners’ Association” notice of an 

April 26, 2021 Zoom hearing at 6:30 

pm. Also, Whitten forwarded the email 

from Blake Bombere, the purported 

community association manager, of the 

notice to Trustee for the “EOWR 

Hearing Request” for the April 26, 2021 

3.115. The Trustee received on his 

doorstep a federal express delivery on 

April 21, 2021 with “Estates of Windsor 

Ridge Homeowners’ Association” notice 

of an April 26, 2021 Zoom hearing at 

6:30 pm. Also, Whitten forwarded the 

email from Blake Bombere, the 

purported community association 

manager, of the notice to the Trustee 

for the “EOWR Hearing Request” for 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 21 of 61 PageID 1077
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Amended Complaint 2dAC

Zoom hearing at 6:30 pm on the 

unauthorized collection letter dated 

February 18, 2021 and Trustee’s reply. 

“EOWR” may stand for Estates of 

Windsor Ridge. 

3.111. The April 26, 2021 Zoom hearing 

was commenced as noticed from Dallas, 

Texas by Blake Bombere of PMG. In 

attendance for Estates were Blake 

Bombere, Whitten, Hildinger, Francis. 

Denney, and Martin. Hildinger 

conducted the Zoom hearing and 

refused to comply with Tex. Prop. Code 

§ 209.007. Hildinger misrepresented 

that the hearing was on a letter from 

Estates even though no such letter was 

received by Trustee. Hildinger insisted 

that Trustee state whatever he wished 

to state within a short period of time. 

Trustee presented his objections and 

attempted the required discussion. 

Hildinger refused and recessed the 

hearing for April 26, 2021 Zoom hearing 

executive session with Blake Bombere, 

Whitten, Francis, Denney, and Martin. 

After the executive session, Hildinger 

without discussion immediately made 

Estate’s demand on Trustee for the 

alleged debt without interest.

3.112. Defendants and Blake Bombere, 

jointly and severally, ignored Trustee’s 

reply dated March 18, 2021. Tex. Prop. 

Code § 209.007 required Defendants at 

the hearing to “discuss and verify

facts and resolve the matter in issue” 

as to whether the alleged $533.49 

duplicate debts in the unauthorized 

collection letter’s attachments were 

legally, currently due and owing as 

required. Defendants violated Tex. 

the April 26, 2021 Zoom hearing at 6:30

pm on the unauthorized collection letter 

dated February 18, 2021 and the 

Trustee’s reply. “EOWR” may stand for 

Estates of Windsor Ridge. The April 26, 

2021 Zoom hearing was commenced as 

noticed from Dallas, Texas by Blake 

Bombere of PMG. In attendance for

Estates were Blake Bombere, Whitten, 

Hildinger, Francis. Denney, and 

Martin. Hildinger conducted the Zoom 

hearing and refused to comply with 

Tex. Prop. Code § 209.007. Hildinger 

misrepresented that the hearing was on 

a letter from Estates even though no 

such letter was received by the Trustee. 

Hildinger insisted that the Trustee 

state whatever he wished to state 

within a short period of time. The 

Trustee presented his objections and 

attempted the required discussion. In 

furtherance of the conspiracy, Hildinger 

refused and recessed the hearing for 

April 26, 2021 Zoom hearing executive 

session with Blake Bombere, Whitten, 

Francis, Denney, and Martin. After the 

executive session, Hildinger, without 

discussion, immediately made Estate’s 

demand on the Trustee for the alleged 

debt without interest. Defendants and 

Blake Bombere, jointly and severally, 

ignored the Trustee’s reply dated March 

18, 2021. Tex. Prop. Code § 209.007 

required Defendants at the hearing to 

“discuss and verify facts and resolve 

the matter in issue” as to whether the 

alleged $533.49 duplicate debts in the 

unauthorized collection letter’s 

attachments were legally, currently due 

and owing as required. Defendants 

violated Tex. Prop. Code § 209.007. 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 22 of 61 PageID 1078
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Amended Complaint 2dAC

Prop. Code § 209.007. Defendants did 

not “discuss and verify facts and

resolve the matter in issue:” 

“Verify” means to make certain, 

to substantiate, or confirm by 

formal oath, affirmation or 

Affidavit. See, legaldictionary.thefreedictionary.com.

“Facts” are an event, 

occurrence, or state of affairs 

know to have happened; to be 

distinguished from opinion or 

law, See, legaldictionary.thefreedictionary.com.

Defendants did not “discuss and verify

facts and resolve the matter in issue:” 

“Verify” means to make certain, 

to substantiate, or confirm by 

formal oath, affirmation or 

Affidavit. See, legaldictionary.thefreedictionary.com. 

“Facts” are an event, occurrence, 

or state of affairs know to have 

happened; to be distinguished 

from opinion or law, See, legaldictionary.thefreedictionary.com. 

3.121. Whitten by three different emails 

to Trustee has demanded and 

materially misrepresented to Trustee, 

“Please pay your assessments.” Whitten 

made the unauthorized demands even 

though Trustee had explained 

repeatedly to Whitten why the demands 

were wrong based on the purported 

Declaration §§ 4.1, 4.3, 4.5(d), 4.5(f), 4.6 

and 4.7.

3.120. Whitten, by three different 

emails to Trustee, has demanded and 

materially misrepresented to the

Trustee, “Please pay your assessments.” 

Whitten made the unauthorized 

demands even though the Trustee had 

explained repeatedly to Whitten why 

the demands were wrong based on the 

Declaration §§ 4.1, 4.3, 4.5(d), 4.5(f), 4.6 

and 4.7.

3.123. The Whitten Firm attended 

meetings of Windsor Ridge 

Homeowners Association and was 

shown as the attorneys and general 

counsel on the minutes. 

2.01. This Court has federal question 

jurisdiction under the Federal Debt 

Practices Collection Act Chapter 392 

(“FDCPA”). The Debt Collectors 

Southall, Associa, PMG, CSSC and 

Whitten wrongfully attempted to collect 

unauthorized HOA assessments and 

charges from Trustee. Whitten was 

engaged at the “Windsor Ridge 

Homeowners’ Association Minutes 

for Regular Board Meeting November 

27, 2018” to represent the 

3.124. Southall, PMG, CSSC, and 

Whitten wrongfully conspired with 

Associa to collect unauthorized HOA 

assessments and charges from the 

Trustee. Whitten was engaged at the 

“Windsor Ridge Homeowners’ 

Association Minutes for Regular 

Board Meeting November 27, 2018” to 

represent the unincorporated Windsor 

Ridge Homeowners’ Association and 

paid $5,000 at the November 27, 2018 

meeting for Windsor Ridge 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 23 of 61 PageID 1079
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Amended Complaint 2dAC

unincorporated Windsor Ridge 

Homeowners’ Association and paid 

$5,000 at the November 27, 2018 

meeting for Windsor Ridge 

Homeowners’ Association. Whitten 

accepted a $5,000 retainer at the 

meeting. Then, Whitten in conflict with 

the unincorporated Windsor Ridge 

Homeowners’ Association represented 

Estates to Trustee’s injury. Plaintiff is a 

lot owner in the Windsor Ridge 

subdivision and as such is an automatic 

member of Windsor Ridge 

Homeowners[TW1]’ Association since 

January 8, 2018. Whitten and the 

Whitten firm represented Trustee as a 

client because the Trustee is a member 

of the unincorporated association. 

Whitten and the Whitten firm were 

engaged to represent at its purported 

Board meeting of the unincorporated 

association. There is no immunity.

Homeowners’ Association. Whitten 

accepted a $5,000 retainer at the 

meeting. Whitten and the Whitten Firm 

were general counsel for Windsor Ridge 

Homeowners’ Association. Then, 

Whitten in conflict with the 

unincorporated Windsor Ridge 

Homeowners’ Association and its 

respective members, represented 

Estates to the Trustee’s injury. The 

Trustee is a lot owner in the Windsor 

Ridge subdivision and as such is an 

automatic member of Windsor Ridge 

Homeowners’ Association since January 

8, 2018.

3.125. Whitten and the Whitten Firm 

represented the Trustee as a client 

because the Trustee is a member of the 

unincorporated association. There is no 

immunity.

Wesner again, in the 2dAC, only specifically alleges two actions taken by 

Whitten Defendants: Whitten met with Wesner to discuss the legal status of the HOA 

entity, and Whitten asked Wesner three times by email to pay his assessments.

And, as Judge Boyle has already ruled, “[i]nsofar as the claims are based on 

Whitten’s requests that Wesner pay his assessments, they are not barred by attorney 

immunity” because “it is not apparent from the face of the complaint that Whitten is 

entitled to immunity as to his emails requesting payment” and, so “he has not carried 

his burden as to these emails.” Dkt. No. 54 at 10, 11.

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 24 of 61 PageID 1080
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As the comparison above demonstrates, Wesner’s allegations in the 2dAC 

regarding those emails did not change. And Whitten Defendants’ arguments – that 

emails can be communications made to facilitate the rendition of legal services and 

that engaging in continued communication via email can be the kind of conduct that 

attorneys undertake while discharging their professional duties to a client, using the 

office, professional training, skill, and authority of an attorney – does not change the 

governing law or the Court’s prior analysis and conclusion.

The Court should conclude that, insofar as the 2dAC’s claims are based on 

Whitten’s requests that Wesner pay his assessments, they are not barred by attorney 

immunity.

But, by the same token, Wesner’s allegations in the 2dAC regarding Whitten’s 

meeting with Wesner to discuss the legal status of the HOA entity also did not 

change. And neither should the Court’s analysis and conclusion

 The Court should grant Whitten Defendants’ motion to dismiss the 2dAC to 

the extent that Wesner’s claims against Whitten Defendants are barred by attorney 

immunity insofar as the claims are based on Whitten’s actions in his meeting with 

Wesner.

III. Declaratory Judgment

As to Wesner’s declaratory judgment claims, in ruling on the prior motion to 

dismiss the Amended Complaint, Judge Boyle explained that

Wesner seeks a declaratory judgment declaring void all assessments, 

collection attempts, and managing documents of Estates of Windsor 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 25 of 61 PageID 1081
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Ridge. See Doc. 38, Am. Compl., ¶ 4.10. Whitten Defendants argue they 

have no connection to this request. Doc. 40, Whitten Mot., ¶ 54. ....

“The Declaratory Judgment Act ... has long been understood to 

confer on federal courts unique and substantial discretion in deciding 

whether to declare the rights of litigants.” MedImmune, Inc. v. 

Genentech, Inc., 549 U.S. 118, 136 (2007). This discretion is not absolute; 

instead, courts are guided by a non-exclusive list of seven relevant 

factors.

1) whether there is a pending state action in which all of 

the matters in controversy may be fully litigated, 2) 

whether the plaintiff filed suit in anticipation of a lawsuit 

filed by the defendant, 3) whether the plaintiff engaged in 

forum shopping in bringing the suit, 4) whether possible 

inequities in allowing the declaratory plaintiff to gain 

precedence in time or to change forums exist, 5) whether 

the federal court is a convenient forum for the parties and 

witnesses, and 6) whether retaining the lawsuit in federal 

court would serve the purposes of judicial economy, and, 

[7)] whether the federal court is being called on to construe 

a state judicial decree involving the same parties and 

entered by the court before whom the parallel state suit 

between the same parties is pending.

St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590–91 (5th Cir. 1994) (internal 

quotation and citation omitted). Unless the court addresses and 

balances these factors, it abuses its discretion. Travelers Ins. Co. v. La. 

Farm Bureau Fed’n, Inc., 996 F.2d 774, 778 (5th Cir. 1993).

The Court finds these factors heavily favor exercising jurisdiction. 

First, there is no pending state-court action where these claims may be 

fully litigated. Second, Wesner likely filed suit in anticipation of a 

lawsuit from at least some Defendants. Third, there is no indication of 

forum shopping. Fourth, there are no inequities in allowing Wesner to 

determine the legality of his assessments or the HOA first. Fifth, there 

is no indication that this forum is inconvenient for the parties or 

witnesses. Sixth, because the other claims arising from this dispute are 

being litigated in this Court, retaining jurisdiction would serve the 

purposes of judicial economy. And seventh, the Court is not being asked 

to construe a state judicial decree. In sum, the factors heavily support 

exercising jurisdiction over Wesner’s declaratory judgment claims.

Whitten Defendants argue the declaratory judgment claim should 

be dismissed as to them because they “ha[ve] no connection to the 

declaratory judgment action.” Doc. 40, Whitten Mot., 27. Although most 

of the relief sought would not affect Whitten Defendants, Wesner asks 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 26 of 61 PageID 1082
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the Court to declare void the “collection letters/emails,” some of which 

were sent by Whitten. Doc. 38, Am. Compl., ¶ 4.10. Thus, based on the 

facts alleged, the Court cannot conclude that Whitten Defendants have 

“no connection” to the action.

Dkt. No. 54 at 30-31.

Whitten Defendants now argue, as to the 2dAC, that Wesner’s “declaratory 

judgment claims fail both because of Whitten’s underlying attorney-immunity and 

because Whitten’s past actions do not give rise to a present case or controversy 

between Wesner and Whitten”:

(27) Wesner seeks a series of declarations regarding his rights in 

relation to the community, the CCRs, and the HOA. Doc. 57 ¶¶ 4.01.–

13; 28 U.S.C. § 2201.

(28) Specifically as it relates to Whitten, Wesner seeks 

declarations that (a) the hearing on April 26, 2021, in which Whitten 

represented the HOA against Wesner, is “void;” (b) any “emails” that 

Whitten sent to Wesner are “void;” and (c) various documents Whitten 

drafted for the HOA are declared “void.” Each of these claims relate to 

matters in which Whitten engaged in the “the kind of conduct” attorneys 

undertake while discharging their professional duties to a client, Haynes 

& Boone, LLP, 631 S.W.3d at 67, using “the office, professional training, 

skill, and authority of an attorney.” Cantey Hanger, LLP, 467 S.W.3d at 

481-82.

(29) The Declaratory Judgment Act does not create a substantive 

cause of action. See Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., 

Inc., 723 F.2d 1173, 1179 (5th Cir. 1984). It is merely a means of 

adjudicating a claim arising under other substantive law. Collin Cty. v. 

Homeowner’s Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 

170 (5th Cir. 1990) (quotation omitted). Thus, Whitten’s immunity to all 

Wesner’s underlying claims also applies to the declaratory judgment 

claims. Additionally, Whitten’s complete disconnection from any 

ongoing enforcement requires the Court to dismiss the claims.

(30) Wesner has not alleged, nor can he, that Whitten is a party 

to the CCRs; that Whitten is a party to any other instrument burdening 

his property; that Whitten has continued participation in the collection 

of any assessments; or that Whitten is in any way affected by what 

happens in the Windsor Ridge community. Indeed, as Wesner previously 

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noted in the First Amended Complaint, Whitten no longer represents 

the HOA or any other party. See Doc. 38 ¶ 3.104. Wesner has 

affirmatively pleaded that Whitten’s involvement was solely in the past, 

which is insufficient to state a claim and provide standing in a 

declaratory judgment claim.

(31) The Fifth Circuit in Bauer v. Texas considered a suit by an 

individual against a probate court judge to declare unconstitutional a 

provision of the Texas Estates Code and enjoin future enforcement of 

the statute. 341 F.3d 352 (5th Cir. 2003). The probate court judge had 

issued prior rulings against Bauer in several guardianship proceedings, 

but no case was pending at the time Bauer filed suit. Id. at 355, 58. The 

Bauer court noted that a plaintiff can meet standing requirements when 

a suit is brought under Declaratory Judgment by establishing actual 

present harm or significant possibility of future harm even though 

injury-in-fact has not yet been completed. Id. at 357-58 (citing Peoples 

Rights Org. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998) and 

Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997)). 

This means that an actual controversy must exist at all stages of review, 

not merely at the time the complaint is filed. Id. at 358 (citing SEC v. 

Medical Comm. for Human Rights, 404 U.S. 403, 92 S. Ct. 577, 30 L. Ed. 

2d 560 (1972)). The “actual controversy” required under 28 USCS § 

2201(a) is identical to meaning of “case or controversy” for purposes of 

U.S. Const. art. III. Id. (citing Lawson v. Callahan, 111 F.3d 403, 405 

(5th Cir. 1997)). Indeed, “‘[p]ast exposure to illegal conduct does not in 

itself show a present case or controversy regarding injunctive relief ... if 

unaccompanied by any continuing, present adverse effects.’” Id. (quoting 

City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 1665, 75 L. 

Ed. 2d 675 (1983)).

(32) Dismissing Whitten from the declaratory claims would not 

prejudice Wesner’s rights in the event he prevails. As set forth in the 

Second Amended Complaint, Whitten at all times acted as the HOA’s 

attorney in a representative capacity and did not have any independent 

grounds for enforcing the CCRs. Any past actions Whitten took on the 

HOA’s behalf would still be subject to the Court’s authority even without 

Whitten’s presence in the case. Consider, Wesner seeks to declare void 

the CCRs. Doc. 57 ¶ 4.13(b). Yet does the Declaratory Judgment Act 

require the Court to reach back over 20 years to require as a necessary 

party the law firm that drafted the CCRs? Of course not. “The case or 

controversy requirement of Article III of the Constitution requires a 

plaintiff to show that he and the defendants have adverse legal 

interests.” Id. at 359 (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 

57 S. Ct. 461, 81 L. Ed. 617 (1937)). Wesner simply cannot show an 

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ongoing adverse interest because Whitten ceased being involved a year 

before Wesner ever filed suit.

(33) Because he is immune from Wesner’s other claims, because 

he is not a member of the community or otherwise bound by the CCRs, 

and because he no longer represents any party involved and thus has 

zero connection to this matter, issuing any declaration against Whitten 

would be a futile effort. Therefore, the Court should dismiss Wesner’s 

claims against Whitten for declaratory relief.

Dkt. No. 63 at 16-19 (footnote omitted). 

 A side-by-side comparison of the Amended Complaint’s allegations with the 

2dAC’s corresponding allegations will again be helpful in considering Whitten 

Defendants’ current motion to dismiss in light of the Court’s ruling on the allegations 

on Whitten Defendants’ prior motion to dismiss.

Amended Complaint 2dAC

A. No Valid Mandatory Homeowners’

Association Exists Because RH of 

Texas Did Not Own the Windsor 

Ridge Subdivision When the 

Declaration was Signed and 

Recorded.

4.02. A “Homeowners’ Association” is an 

organization created by the recording of 

the Declaration with restrictive 

covenants that “run with the land.” The 

Board and “Homeowners’ Association” 

have no inherent power or discretion, 

and the authority of Board and 

“Homeowners’ Association” are limited 

to those powers expressly in their 

governing documents and Texas law, 

including the power to make 

assessments in accordance with the 

Declaration. 

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Amended Complaint 2dAC

3.19. No Certificate of Incorporation 

was issued by the Secretary of State of 

Texas for Windsor Ridge Homeowners’ 

Association, Inc. as the prerequisite for 

the void Written Consent to adopt the 

void Bylaws for Windsor Ridge 

Homeowners’ Association, Inc., which 

were both signed prematurely.

3.21. Further, the purported 

Declaration § 4.1 condition [] has not 

occurred or been performed because the 

existing Windsor Ridge Homeowners’ 

Association has not been incorporated. 

The purported Declaration § 4.1 is as 

follows:

Section 4.1 Creation. The 

Windsor Ridge Homeowners’ 

Association (the “Homeowners’ 

Association”) shall be 

incorporated as a non-profit 

corporation. The owners shall 

constitute members of the 

Homeowners’ Association. Each 

owner of a lot, including 

B. Even if the Declaration Was Valid, 

No Mandatory Homeowners’ 

Association Exists that is 

Authorized to Collect Fees Against 

Homeowners in the Windsor Ridge 

Subdivision. 

1. Windsor Ridge Homeowners’ 

Association Was Never 

Incorporated. 

4.03. Section 4.1 of the Declaration 

requires that the Windsor Ridge 

Homeowners’ Association “shall be 

incorporated as a non-profit 

corporation.” No Certificate of 

Incorporation was issued by the 

Secretary of State of Texas for “Windsor 

Ridge Homeowners’ Association, Inc.” A 

valid Certificate of Incorporation was a 

prerequisite for the void Written 

Consent to adopt the void Bylaws for 

Windsor Ridge Homeowners’ 

Association, Inc. The void Written 

Consent and void Bylaws were both 

signed prematurely. 

4.04. Thus, to the extent an 

unincorporated Windsor Ridge 

Homeowners’ Association existed prior 

to the filing of the Declaration, the 

Declaration expressly requires that it 

be incorporated as a non-profit 

organization. The Texas Secretary of 

State refused to incorporate the 

Windsor Ridge Homeowners’ 

Association. As such, any previously 

existing unincorporated Windsor Ridge 

Homeowners’ Association was not 

authorized to assess fess as set forth in 

the Declaration. 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 30 of 61 PageID 1086
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Amended Complaint 2dAC

Declarant, shall automatically be 

a member of the Homeowners’ 

Association. Homeowners’ 

Association membership shall be 

appurtenant to ownership of a 

lot. Ownership of a lot is the sole 

criterion for membership in the 

Homeowners’ Association.

3.22. Windsor Ridge Association has not 

had and does not have a duly elected 

Board that has taken formal action to 

manage the Windsor Ridge subdivision 

and under the purported Declaration

§ 4.5(f) to establish and collect annual 

assessments to defray expenses 

attributable to Homeowners 

Association’s duties to be levied against 

each owner that is correctly calculated 

2. Estates Was Never 

Incorporated and Formed in 

Compliance with the Declaration.

4.05. On January 7, 2000, Articles of 

Incorporation for “Estates of Windsor 

Ridge Homeowners Association, Inc.” 

were filed with the Texas Secretary of 

State. However, the Articles of 

Incorporation failed to state that they 

were for the purpose of incorporating a

homeowners’ association pursuant to 

the Declaration. Further, Estates failed 

to properly adopt its own Bylaws, set up 

a Board of Directors, and/or effect a 

Written Consent in Lieu of 

Organizational Meeting. As such, 

Estates fails to meet the requirements 

of the Declaration and is not a valid 

homeowners’ association pursuant to 

the Declaration.

4.06. Windsor Ridge Homeowners’ 

Association has not had and does not 

have a duly elected Board that has 

taken formal action to manage the 

Windsor Ridge subdivision pursuant to 

the Declaration § 4.5(f) including, 

without limitation, to establish and 

collect annual assessments to defray 

expenses attributable to Homeowners 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 31 of 61 PageID 1087
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Amended Complaint 2dAC

under the purported Declaration § 4.6 

pursuant to and limited by the 

purported Declaration § 4.7.

3.35. The provisions of the purported 

Declaration, if valid, would control to 

the extent of any conflicts between its 

provision(s) with any other document. 

The purported Declaration § 4.3 

requires management a duly elected 

“Board” ... “subject to this 

Declaration.” (Bold emphasis added).

3.23. Any purported Board of Directors 

of Estates is not the purported 

Declaration § 4.3 Board of Windsor 

Ridge Homeowners’ Association. 

Estates is not named in the purported 

Declaration. The purported Declaration 

was recorded before Estates was 

incorporated. Estates has no authority 

in respect to Windsor Ridge subdivision 

or Trustee. All owners are not members 

of Estates. Trustee is not a member of 

Estates. Estates is on notice of 

Trustee’s repeated objections to it and 

its unauthorized acts.

3 

.25. The purported Declaration § 4.5(d) 

authorizes the delegation of powers to 

Association’s duties, which was to be 

levied against each owner and correctly 

calculated under the Declaration § 4.6 

pursuant to and limited by the 

Declaration §§ 4.5(f) and 4.7. 

4.07. The provisions of the Declaration, 

if valid, would control to the extent of 

any conflicts between its provision(s) 

with any other document. The 

Declaration § 4.3 requires management 

a duly elected “Board” ... “subject to 

this Declaration.” (Bold emphasis 

added). 

4.08. Any purported Board of Directors 

of Estates is not the Declaration § 4.3 

Board of Windsor Ridge Homeowners’ 

Association. Estates is not named in the 

Declaration. The Declaration was 

recorded before Estates was 

incorporated. Estates has no authority 

in respect to Windsor Ridge subdivision 

or the Trustee. All owners are not 

members of Estates. The Trustee is not 

a member of Estates. Estates is on 

notice of the Trustee’s repeated 

objections to it and its unauthorized 

acts. 

C. Even if the Declaration was Valid 

and Estates is a Valid Homeowners’ 

Association Governing the Trustee’s 

Property, the Fees Assessed Against 

the Trustee’s Property Are Invalid. 

1. The Declaration Does Not Permit 

Delegation of the Homeowners’ 

Associations’ Duties to ThirdParties.

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 32 of 61 PageID 1088
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Amended Complaint 2dAC

only a committee, officer or employee of 

Windsor Ridge Homeowners’ 

Association. Defendants, jointly and 

severally, are not a committee, officer or 

employee of Windsor Ridge 

Homeowners’ Association. Therefore, 

the power of the Board of Windsor 

Ridge Homeowners’ Association cannot 

be delegated to any Defendant and any 

action taken by any Defendant is 

unauthorized including, without 

limitation, the unauthorized 

Management Agreement, the 

unauthorized Amendments, and 

Defendants, joint and several, 

unauthorized acts that effect Plaintiff’s 

affairs related to the Windsor Ridge 

subdivision. 

4.09. The Declaration § 4.5(d) 

authorizes the delegation of powers to 

only a committee, officer, or employee of 

Windsor Ridge Homeowners’ 

Association. Defendants, jointly and 

severally, are not a committee, officer, 

or employee of Windsor Ridge 

Homeowners’ Association. Therefore, 

the power of the Board of Windsor 

Ridge Homeowners’ Association cannot 

be delegated to any Defendant and any 

action taken by any Defendant is 

unauthorized, including, without 

limitation, the unauthorized 

Management Agreement, the 

unauthorized Amendments, and 

Defendants, joint and several, 

unauthorized acts that effect the 

Trustee’s affairs related to the Windsor 

Ridge subdivision. 

2. The Declaration Does Not 

Permit Annual Assessments 

That Exceed 110% of the Prior 

Year’s Fee. 

4.10. The Declaration prohibits a 

homeowners’ association from collecting 

or charging annual assessments in 

amounts greater than 110% of the 

previous annual assessment. 

4.11. Defendants have invoiced and 

collected annual assessments from the 

Trustee and other lot owners in the 

subdivision in amounts greater than 

110% of the prior year’s annual 

assessment. 

4.12. Defendants continue to invoice the 

Trustee and other lot owners for 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 33 of 61 PageID 1089
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Amended Complaint 2dAC

4.10 Declaratory Judgment Action. The 

paragraphs above are incorporated 

herein by reference including, without 

limitation, under the FDCPA. Pursuant 

to Fed. R. Civ. P. 57 and the 

Declaratory Judgment Act, 28 U.S.C. §§ 

2201-2202, Plaintiff seeks declaratory 

relief as follows:

(1) Enter an order declaring that 

Trustee is held harmless from any and 

all claims made against the Trustee by 

the Windsor Ridge subdivision, Windsor 

Ride Homeowners’ Association, 

Windsor Ridge Homeowners’ 

Association, Inc. and Estates of 

Windsor Ridge Homeowners’ 

Association, Inc.; 

(2) Enter an order declaring void the 

purported Declaration or, in the 

alternative if the Declaration is found 

to be valid, declare that the Windsor 

Ridge Homeowners’ Association is the 

“Homeowners Association” of the 

Windsor Ridge subdivision;

(3) Enter an order declaring void all 

billing statements/invoices, Account 

History Reports, collection 

letters/emails, notice for hearing on 

April 26, 2021, and the hearing on April 

26, 2021 and collection demand by 

Defendants to Trustee.

assessments in violation of the 

Declaration as set forth above. 

D. Declarations Sought. 

4.13. Pursuant to Fed. R. Civ. P. 57 and 

the Declaratory Judgment Act, 28 

U.S.C. §§ 2201-2202, the Trustee seeks 

declaratory relief as follows: 

(a) Enter an order declaring that 

Trustee is held harmless from 

any and all claims made against 

the Trustee by the Windsor 

Ridge subdivision, Windsor Ridge 

Homeowners’ Association, 

Windsor Ridge Homeowners’ 

Association, Inc. and/or Estates 

of Windsor Ridge Homeowners’ 

Association, Inc.; 

(b) Enter an order declaring the 

Declaration void, or, in the 

alternative if the Declaration is 

found to be valid, declare that 

the unincorporated Windsor 

Ridge Homeowners’ Association 

is the “Homeowners Association” 

of the Windsor Ridge subdivision; 

(c) Enter an order declaring all of 

the following void: (i) billing 

statements/invoices, (ii) Account 

History Reports, (iii) collection 

letters/emails, (iv) notice for 

hearing on April 26, 2021, (v) the 

hearing on April 26, 2021, and 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 34 of 61 PageID 1090
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Amended Complaint 2dAC

(4) Enter an order declaring void the 

purported Property Owners’ Association 

Management Certificate of Estates of 

Windsor Ridge Homeowners’ 

Association, Inc. (Doc. # 25368 Record 

and Return to Whitten Firm Feb. 26, 

2020), the purported Estates of Windsor 

Ridge Homeowners Association, Inc. 

MANAGEMENT CERTIFICATE (Doc. 

# 159435 acting by and through its

managing agent, Principal 

Management Group of North Texas 

Mark Southall Branch President), the 

purported Estates of Windsor Ridge 

Homeowners Association, Inc. 

MANAGEMENT CERTIFICATE (Doc. 

# 11270 acting by and through its 

managing agent, Principal 

Management Group of North Texas 

Mark Southall Branch President), the 

purported Management Agreement, the 

purported three Amendments to 

Management Agreement, the purported 

“Notice of Filing of Dedicatory 

Instruments for the Estates of Windsor 

Ridge” with the purported “Covenant 

Enforcement and Fining Policy,” the 

purported “First Supplement to Notice 

of Filing of Dedicatory Instruments for 

Windsor Ridge” with the purported 

“Bylaws of Windsor Ridge Homeowners’ 

Association, Inc. (organized 11-17-99) 

(correct name of corporation: Estates of 

Windsor Ridge Homeowners’ 

Association, Inc.),” the purported “First 

Amendment to the Bylaws of Windsor 

Ridge Homeowners’ Association Inc. 

(approved 5-1-03),” all purported 

Notices of Assessment Liens, and all 

other invalid acts and documents.

(vi) the collection demand by 

Defendants to Trustee. 

(d) Enter an order declaring all of 

the following void: (i) the 

purported Property Owners’ 

Association Management 

Certificate of Estates of Windsor 

Ridge Homeowners’ Association, 

Inc. (Doc. # 25368 Record and 

Return to Whitten Firm Feb. 26, 

2020), (ii) the purported Estates 

of Windsor Ridge Homeowners 

Association, Inc.

MANAGEMENT CERTIFICATE 

(Doc. # 159435 acting by and 

through its managing agent, 

Principal Management Group of 

North Texas Mark Southall 

Branch President), (iii) the 

purported Estates of Windsor 

Ridge Homeowners Association, 

Inc. MANAGEMENT 

CERTIFICATE (Doc. # 11270 

acting by and through its 

managing agent, Principal 

Management Group of North 

Texas Mark Southall Branch 

President), (iv) the purported 

Management Agreement, the 

purported three Amendments to 

Management Agreement, (v) the 

purported “Notice of Filing of 

Dedicatory Instruments for the 

Estates of Windsor Ridge” with 

the purported “Covenant 

Enforcement and Fining Policy,” 

(vi) the purported “First 

Supplement to Notice of Filing of 

Dedicatory Instruments for 

Windsor Ridge” with the 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 35 of 61 PageID 1091
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Amended Complaint 2dAC

(5) Declare that the unanimity rule is 

applicable until Windsor Ridge 

Homeowners’ Association may be 

incorporated and duly organized as a 

nonprofit corporation.

purported “Bylaws of Windsor 

Ridge Homeowners’ Association, 

Inc. (organized 11-17-99) (correct 

name of corporation: Estates of 

Windsor Ridge Homeowners’ 

Association, Inc.),” (vii) the 

purported “First Amendment to 

the Bylaws of Windsor Ridge 

Homeowners’ Association Inc. 

(approved 5-1-03),” (viii) all 

purported Notices of Assessment 

Liens, and (ix) all Defendants’ 

other invalid acts and 

documents. 

(e) Declare that the unanimity 

rule is applicable until Windsor 

Ridge Homeowners’ Association 

may be incorporated and duly 

organized as a nonprofit 

corporation. 

(f) Enter an order requiring that 

any purported homeowners’ 

association be brought into 

compliance with Texas law and 

the Declaration. 

As explained above, the Court should conclude that, insofar as the 2dAC’s 

claims are based on Whitten’s requests through emails that Wesner pay his 

assessments, they are not barred by attorney immunity. And, as the Court previously 

concluded, although Whitten Defendants again argue that the declaratory judgment 

claim should be dismissed as to them because they have “zero connection to this 

matter,” Dkt. No. 63 at 19, and “most of the relief sought would not affect Whitten 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 36 of 61 PageID 1092
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Defendants, Wesner [again] asks the Court to declare void the ‘collection 

letters/emails,’ [Dkt. No. 57, ¶ 4.10(c),] some of which were sent by Whitten.” Dkt. No. 

54 at 31. “Thus, based on the facts alleged, the Court [should not] conclude that 

Whitten Defendants have ‘no connection’ to the action” and should again deny the 

motion to dismiss on these grounds.

IV. Texas Debt Collection Act (“TDCA”) 

As to Wesner’s TDCA claim, in ruling on the prior motion to dismiss the 

Amended Complaint, Judge Boyle explained that 

Wesner asserts claims against “Defendants, jointly and severally,” for 

violations of the Texas Fair Debt Collections Act (“TDCA”), Tex. Fin. 

Code §§ 392.001–.404. See Doc. 38, Am. Compl., ¶¶ 4.03–.03.12. To state 

a claim under the TDCA, Wesner must plausibly plead “(1) the debt at 

issue is a consumer debt; (2) Defendants are debt collectors within the 

meaning of the TDCA; (3) Defendants committed a wrongful act in 

violation of the TDCA; (4) the wrongful act was committed against 

[Wesner]; and (5) [Wesner] was injured as result of Defendants’ 

wrongful act.” Sgroe v. Wells Fargo Bank, N.A., 941 F. Supp. 2d 731, 743 

(E.D. Tex. 2013).

 “The TDCA has a two-tiered structure that includes both ‘thirdparty debt collectors’ ... and ‘debt collectors.’” Genender v. Kirkwood, 506 

S.W.3d 508, 514 (Tex. App. – Houston [1st Dist.] 2016, no pet.) (quoting 

Tex. Fin. Code § 392.001(6)). One key distinction between the two is 

whether the person collecting a debt originated the debt. A “third-party 

debt collector” must be collecting a debt for another. See Tex. Fin. Code 

§ 392.001(7) (“‘Third-party debt collector’ [under the TDCA] means a 

debt collector, as defined by [the FDCPA]....”); Henson v. Santander 

Consumer USA Inc., 582 U.S. 79, 83 (2017) (holding a “debt collector” 

under the FDCPA must be collecting a debt for another). By contrast, a 

“debt collector” must be collecting a debt he originated. See Scarbrough 

v. JPMorgan Chase Bank, N.A., 2022 WL 2373725, at *10 (S.D. Tex. 

June 2, 2022), report and recommendation adopted, 2022 WL 2359645 

(S.D. Tex. June 30, 2022) (“McCarthy & Holthus does not qualify as a 

debt collector under § 392.001(6) because that section applies only to 

creditors seeking to collect debts for themselves.”) (collecting cases).

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 37 of 61 PageID 1093
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The TDCA’s definition of “third-party debt collector” borrows the 

definition of “debt collector” from the FDCPA. Tex. Fin. Code § 

392.001(7). It generally does not include an attorney collecting a debt as 

an attorney. Id. However, an attorney does qualify as a third-party debt 

collector if “the attorney has nonattorney employees who: (A) are 

regularly engaged to solicit debts for collection; or (B) regularly make 

contact with debtors for the purpose of collection or adjustment of debts.”

Id. “In sum, a third-party debt collector under the TDCA includes any 

debt collector under the FDCPA with the exception of attorneys that 

meet certain circumstances.” Scarbrough, 2022 WL 2373725, at *10.

By contrast, a “debt collector” is “a person who directly or 

indirectly engages in debt collection....” Tex. Fin. Code § 392.001(6). 

Under the statute, “debt collection” is “an action, conduct, or practice in 

collecting, or in soliciting for collection, consumer debts that are due or 

alleged to be due a creditor.” Id. § 392.001(5). Although the TDCA does 

not explicitly state that a “debt collector” is a person who engages in debt 

collection of a debt they originated, courts have given the TDCA this 

construction to reconcile the statute’s somewhat circular terminology. 

See, e.g., Scarbrough, 2022 WL 2373725, at *10 (collecting cases).

....

Whitten Defendants argue Wesner’s TDCA claims should be 

dismissed because Wesner has not plausibly alleged Whitten 

Defendants are debt collectors or third-party debt collectors under the 

statute. See Doc. 40, Whitten Mot., ¶¶ 26–29. Specifically, Whitten 

Defendants argue Wesner has not alleged that (1) Whitten Defendants 

were attempting to collect a debt Wesner owed to them or (2) Whitten 

Defendants have any nonattorney employees that regularly engage in 

debt collection. Id. ¶¶ 26–27. Wesner does not respond to these 

arguments. See Doc. 50, Resp., 6.

The Court agrees that Wesner has not plausibly alleged Whitten 

Defendants are “debt collectors” under the TDCA. Because Wesner has 

not alleged Whitten Defendants are creditors attempting to collect a 

debt for themselves, he has not alleged Whitten Defendants are “debt 

collectors” under the TDCA. See, e.g., Scarbrough, 2022 WL 2373725, at 

*10.

Neither has he alleged Whitten Defendants are “third-party debt 

collectors” under the TDCA. As explained in Section B, supra, Whitten 

Defendants are not “debt collectors” under the FDCPA because Wesner 

has not shown that Whitten Defendants’ principal purpose is debt 

collection or that they regularly collect debts. And Wesner has not 

alleged that Whitten Defendants “ha[ve] nonattorney employees who: 

(A) are regularly engaged to solicit debts for collection; or (B) regularly 

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make contact with debtors for the purpose of collection or adjustment of 

debts.” See Tex. Fin. Code § 392.001(7). Therefore, Wesner has not 

plausibly alleged that Whitten Defendants are “debt collectors” or a 

“third-party debt collectors” under the TDCA, and the Court 

DISMISSES Wesner’s claims against Whitten Defendants for breach of 

the TDCA. [Within the Fifth Circuit, there is a split of authority 

concerning whether attorneys are immune from suit for violations of the 

TDCA. See Scarbrough, 2022 WL 2373725, at *9 (collecting cases). The 

Fifth Circuit has not yet addressed the issue. Because Wesner fails to 

state a claim against Whitten Defendants for violation of the TDCA, the 

Court does not address the question.]

Dkt. No. 54 at 15-17 (footnote omitted).

Whitten Defendants now argue, as to the 2dAC, that “Whitten is immune from 

Wesner’s Texas Debt Collection Act claims, and regardless he is neither a ‘debt 

collector’ nor a ‘third-party debt collector’ under the TDCA”:

(34) Wesner failed to amend his Complaint to cure reasons the 

Court relied on for dismissing Wesner’s TCDA action against Whitten. 

See Wesner v. Southall, 2023 U.S. Dist. LEXIS 67392, at *21-22 (N.D. 

Tex. Apr. 18, 2023) (Boyle, J.).

(35) Wesner asserts claims under the Texas Debt Collection Act. 

Tex. Fin. Code §§ 392.001, et seq. (“TDCA”). Doc. 57 ¶ 4.23–.36. Attorney 

immunity bars these claims, and regardless, Whitten is neither a “debt 

collector” nor a “third party debt collector.”

(36) First, this Court explained at length Wesner’s prior TDCA 

pleading deficiencies against Whitten. Doc. 54 pp. 16–17. Wesner has 

not fixed them.

(37) Wesner instead has realleged them – paragraph for 

paragraph – nearly identical from the First Amended Petition. Compare 

First Amd. Compl. Doc. 38 ¶¶ 4.03–.03.12, with Second Amd. Compl. 

Doc. 27, ¶¶ 4.23–.36 (no changes except for splitting the introductory 

paragraph into two paragraphs, adding “the” before “Trustee,” removing 

“purported” before “Declaration,” and nonsubstantive changes from Doc. 

38 ¶ 4.03.5 to Doc. 57 ¶ 4.29). Wesner’s inability to meet the pleading 

burden even when this Court has provided guidance amounts to waiver 

of the claim. But even if it didn’t, Wesner still fails to state a claim.

(38) The TDCA expressly excludes attorneys from the definition 

of “third-party debt collector” unless the attorney meets specific 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 39 of 61 PageID 1095
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requirements related to nonattorney employees. Tex. Fin. Code § 

392.001(7). By setting forth specific requirements for attorney liability, 

the Texas Legislature therefore did not impliedly remove the immunity 

defense and, instead, reinforces that immunity under the TDCA is an 

available defense. Taylor, 644 S.W.3d at 649.

(39) Regardless whether attorney immunity protects Whitten 

from liability under the TDCA, Whitten is still not liable to Wesner 

because Whitten is not a debt collector or third-party debt collector. The 

TDCA defines “Debt collector” as:

a person who directly or indirectly engages in debt 

collection and includes a person who sells or offers to sell 

forms represented to be a collection system, device, or 

scheme intended to be used to collect consumer debts.

Tex. Fin. Code § 392.001(6). Whitten is certainly not a debt collector in 

this case because Wesner has alleged no debt owed to Whitten by 

Wesner that Whitten was attempting to collect. Instead, Wesner alleges 

that Whitten was collecting debts for the HOA.

(40) A “Third-party debt collector” under the TDCA is:

a debt collector, as defined by 15 U.S.C. Section 1692a(6), 

but does not include an attorney collecting a debt as an 

attorney on behalf of and in the name of a client unless the 

attorney has nonattorney employees who:

(A) are regularly engaged to solicit debts for collection; or

(B) regularly make contact with debtors for the purpose of

collection or adjustment of debts.

Tex. Fin. Code § 392.001(7). Wesner fails to establish that Whitten is a 

third-party debt collector under the TDCA because there is no showing 

or allegation that Whitten has any nonattorney employees that 

regularly engage in debt collection.

(41) Indeed, Wesner’s Second Amended Complaint lists only one 

instance of Whitten engaging in alleged debt collection by sending “three 

different emails” asking Wesner to “Please pay your assessments.” Doc. 

57 ¶ 3.120. This is far from debt collection but is instead the actions of 

an attorney representing a client in an ongoing dispute over Wesner’s 

unfounded dispute over the validity of his HOA assessments.

(42) While this Court observed that requests for payment can be 

made by nonlawyers, any e-mail from Whitten to Plaintiff requesting 

Wesner to pay his assessments would not be foreign to Whitten’s duties 

as attorney. Wesner v. Southall, 2023 U.S. Dist. LEXIS 67392, at *12-13 

(“Many attorneys and law firms engage in collection efforts in the course 

of their representation of a client, as Whitten likely did in this case.”); 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 40 of 61 PageID 1096
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Cantey Hanger, LLP, 467 S.W.3d at 485 (preparation of bill of sale is 

“not foreign to the duties of an attorney”).

(43) Attorney immunity bars claims by nonclients for “acts taken 

and communications made to facilitate the rendition of legal services.” 

Alpert, 178 S.W.3d at 408 (emphasis added). As the Texas Supreme 

Court noted, “making a demand on a client’s behalf ... is also within the 

realm of legal representation.” Taylor, 644 S.W.3d at 649 (citing 

Youngkin, 546 S.W.3d at 684 and Highland Cap. Mgmt., LP v. Looper 

Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *6 (Tex. 

App. – Dallas Jan. 14, 2016, pet. denied)). Thus, Whitten’s email 

communications, even those asking Wesner to “Please pay your 

assessments,” are protected through attorney immunity.

(44) Attorney immunity bars Wesner’s TDCA claims against 

Whitten, but even if it does not, Whitten is neither a debt collector nor 

a third-party debt collector under the TDCA. The Court should therefore 

dismiss Wesner’s TDCA claims against Whitten.

Dkt. No. 63 at 19-23 (footnotes omitted).

Again, a side-by-side comparison of the Amended Complaint’s allegations with 

the 2dAC’s corresponding allegations will be helpful in considering Whitten 

Defendants’ current motion to dismiss in light of the Court’s ruling on the allegations 

on Whitten Defendants’ prior motion to dismiss.

Amended Complaint 2dAC

4.03. Unlike the FDCPA, the TFDCA 

applies not only to third parties 

attempting to collect a debt on behalf of 

another person, but also to creditors 

who are attempting to collect debts on 

behalf of themselves, which would 

include an HOA. Trustees’ TFDCA 

claim is not barred by the 2-yeaar 

statute of limitations. The unauthorized 

collection letter is dated 2-28-21. The 

Zoom hearing to collect was 4-26-21. 

The unauthorized invoice for $836 was 

due 4/1/22. The Complaint was filed 

4/26/22.

4.23. Unlike the FDCPA, the TFDCA 

applies not only to third parties 

attempting to collect a debt on behalf of 

another person, but also to creditors 

who are attempting to collect debts on 

behalf of themselves, which would 

include an HOA. 

4.24. The Trustees’ TFDCA claim is not 

barred by the two-year statute of 

limitations. The unauthorized collection 

letter is dated February 28, 2021. The 

Zoom hearing to collect occurred on 

April 26, 2021. The unauthorized 

invoice for $836 was due April 1, 2022. 

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Amended Complaint 2dAC

4.03.1. Defendants’ joint and several 

actions, conduct and practices have 

been an attempt to collect the 

unauthorized assessments and charges 

from Trustee.

4.03.2. Defendants, jointly and 

severally, have violated TFDCA §§ 

392.301(3), 392.303(2), and 

392.304(a)(1)(A)(4), (6), (7), (8), (12), 

(14) and (19).

4.03.3. Southall, Whitten, Whitten 

Firm, Associa, PMG and CSSC are each 

a debt collector pursuant to TFDCA § 

392.01.

4.03.4. Defendants, jointly and 

severally, failed to refrain from 

engaging in prohibited debt collection 

practices when attempting to collect the 

unauthorized assessments and charges 

from Trustee including, without 

limitation, the use of unfair or 

unreasonable means and the 

fraudulent, deceptive and misleading 

representations that the unauthorized 

assessments and charges were legally 

due and owing by Trustee.

4.03.5. A homeowners association may 

only assess charges or fees to a 

homeowner if its Declaration expressly 

provides for it. The Declaration was 

recorded before Estates was 

incorporated. Estates is not mentioned 

in the Declaration. Estates is not the 

HOA for the Windsor Ridge owners. 

The Trustee filed this action on April 

26, 2022. 

4.25. Defendants’ joint and several 

actions, conduct and practices have 

been an attempt to collect the 

unauthorized assessments and charges 

from the Trustee.

 

4.26. Defendants, jointly and severally, 

have violated TFDCA §§ 392.301(3), 

392.303(2), and 392.304(a)(1)(A)(4), (6), 

(7), (8), (12), (14) and (19). 

4.27. Southall, Whitten, Whitten Firm, 

Associa, PMG and CSSC are each a 

debt collector pursuant to TFDCA § 

392.01. 

4.28. Defendants, jointly and severally, 

failed to refrain from engaging in 

prohibited debt collection practices 

when attempting to collect the 

unauthorized assessments and charges 

from the Trustee, including, without 

limitation, the use of unfair or 

unreasonable means and the 

fraudulent, deceptive and misleading 

misrepresentations that the 

unauthorized assessments and charges 

were legally due and owing by Trustee.

 

4.29. Estates is a debt collector under 

the TDCA. A homeowners’ association 

may only assess charges or fees to a 

homeowner if its Declaration expressly 

provides for it. The Declaration was 

recorded before Estates was 

incorporated. Estates is not mentioned 

in the Declaration. Estates is not the 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 42 of 61 PageID 1098
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Amended Complaint 2dAC

Trustee is not a member of Estates. The 

purported Declaration does not 

authorize Estates to attempt to collect 

assessments or charges from Trustee. 

Windsor Ridge Homeowners’ 

Association is the “Homeowners 

Association” for the Windsor Ridge 

owners, has not been incorporated, and 

is not Estates or fictitious Windsor 

Ridge Homeowners’ Association, Inc.

4.03.6. Defendants, jointly and 

severally, have used unfair and 

unconscionable means by attempting to 

collect the unauthorized assessments 

and charges in violation of the 

purported Declaration §§ 4.3, 4.5(f), 4.6 

and 4.7. The alleged interest and 

incidental charges are not expressly 

authorized by the purported 

Declaration § 4.7. 

4.03.7. Defendants, jointly and 

severally, violated TFDCA § 

392.304(a)(8) by misrepresenting that 

the unauthorized assessments and 

charges are due and payable by 

Trustee. 

4.03.8. Defendants, jointly and 

severally, violated TFDCA § 

392.301(a)(3) by misrepresenting to 

each other that Trustee was and is 

willfully refusing to pay an alleged 

undisputed debt. Trustee had disputed 

the alleged debt as not being due or 

owing. 

4.03.9. Defendants, jointly and 

severally, used fraudulent, deceptive 

HOA for the Windsor Ridge owners. 

The Trustee is not a member of Estates. 

The Declaration does not authorize 

Estates to attempt to collect 

assessments or charges from the 

Trustee. Windsor Ridge Homeowners’ 

Association is the “Homeowners 

Association” for the Windsor Ridge 

owners, has not been incorporated, and 

is not Estates or fictitious Windsor 

Ridge Homeowners’ Association, Inc. 

4.30. Defendants, jointly and severally, 

have used unfair and unconscionable 

means by attempting to collect the 

unauthorized assessments and charges 

in violation of the Declaration §§ 4.3, 

4.5(f), 4.6 and 4.7. The alleged interest 

and incidental charges are not 

expressly authorized by the Declaration 

§ 4.7. 

4.31. Defendants, jointly and severally, 

violated TFDCA § 392.304(a)(8) by 

misrepresenting that the unauthorized 

assessments and charges are due and 

payable by the Trustee. 

4.32. Defendants, jointly and severally, 

violated TFDCA § 392.301(a)(3) by 

misrepresenting to each other that the 

Trustee was and is willfully refusing to 

pay an alleged undisputed debt. The 

Trustee had disputed the alleged debt 

as not being due or owing. 

4.33. Defendants, jointly and severally, 

used fraudulent, deceptive, and 

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Amended Complaint 2dAC

and misleading representations as 

follows:

(1) Using written 

communications that failed to 

clearly indicate the name of the 

debt collector and the debt 

collector’s address and phone 

number when the written notices 

referred to the alleged, 

unauthorized consumer debts. 

(2) Using written 

communications that demanded 

a response to a place other than 

the alleged creditor’s street 

address or post office box. 

(3) Misrepresenting the 

character, extent and amount of 

the alleged assessments or 

charges that were not due or 

payable by Trustee pursuant to 

the Declaration §§ 4.3, 4.5(d), 

4.5(f), 4.6 and 4.7. 

4.03.10. Defendants, jointly and 

severally, have been attempting to 

collect alleged debts not authorized 

pursuant to purported Declaration §§ 

4.3, 4.5(d), 4.5(f), 4.6, and 4.7. 

4.03.11. Southall, Whitten, Whitten 

Firm, Associa, PMG and CSSC each do 

not have the required surety bond 

pursuant to TDCPA § 392.101. 

4.03.12. Trustee is entitled to his 

damages, injunctive relief, attorneys’ 

fees, costs and interest against 

Southall, Whitten, Whitten Firm, 

Associa, PMG and CSSC, jointly and 

severally, pursuant to TFDCA § 

misleading misrepresentations as 

follows:

(1) Using written 

communications that failed to 

clearly indicate the name of the 

debt collector and the debt 

collector’s address and phone 

number when the written notices 

referred to the alleged, 

unauthorized consumer debts. 

(2) Using written 

communications that demanded 

a response to a place other than 

the alleged creditor’s street 

address or post office box. 

(3) Misrepresenting the 

character, extent and amount of 

the alleged assessments or 

charges that were not due or 

payable by Trustee pursuant to 

the Declaration §§ 4.3, 4.5(d), 

4.5(f), 4.6 and 4.7. 

4.34. Defendants, jointly and severally, 

have been attempting to collect alleged 

debts not authorized pursuant to 

Declaration §§ 4.3, 4.5(d), 4.5(f), 4.6, 

and 4.7.

4.35. Southall, Whitten, Whitten Firm, 

Associa, PMG and CSSC each do not 

have the required surety bond pursuant 

to TDCPA § 392.101. 

4.36. The Trustee is entitled to his 

damages, injunctive relief, attorneys’ 

fees, costs and interest against 

Southall, Whitten, Whitten Firm, 

Associa, PMG and CSSC, jointly and 

severally, pursuant to TFDCA § 

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Amended Complaint 2dAC

392.403 and the DTPA that is tied in by 

the TFDCA § 393.404. 

392.403 and the DTPA that is tied in by 

the TFDCA § 393.404.

The Court previously concluded that Wesner has not plausibly alleged Whitten 

Defendants are “debt collectors” or “third-party debt collectors” under the TDCA

because Wesner has not alleged Whitten Defendants are creditors attempting to 

collect a debt for themselves and has not alleged that Whitten Defendants have 

nonattorney employees who: (A) are regularly engaged to solicit debts for collection; 

or (B) regularly make contact with debtors for the purpose of collection or adjustment 

of debts. Dkt. No. 54 at 17-18.

As Whitten Defendants point out and the comparison above confirms, Wesner 

did not amend his prior complaint to cure – in the 2dAC – the reasons that the Court 

relied on for dismissing Wesner’s TCDA claim against Whitten Defendants but 

instead repeated the same allegations from his Amended Complaint.

And, for the same reasons that the Court previously explained, the Court 

should dismiss Wesner’s claims against Whitten Defendants for breach of the TDCA. 

See Dkt. No. 54 at 15-18.

V. Tortious Interference with Contract

As to Wesner’s tortious interference with contract claim, in ruling on the prior 

motion to dismiss the Amended Complaint, Judge Boyle explained:

Wesner claims Defendants, jointly and severally, “intentionally 

interfered with [Wesner’s] contractual rights under the [CCR].” Doc. 38, 

Am. Compl., ¶¶ 4.08–.08.2. Under Texas law, the elements of tortious 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 45 of 61 PageID 1101
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interference with contract are “(1) an existing contract subject to 

interference, (2) a willful and intentional act of interference with the 

contract, (3) that proximately caused the plaintiff’s injury, and (4) 

caused actual damages or loss.” Prudential Ins. Co. of Am. v. Fin. Review

Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). “[A] person must be a stranger 

to a contract to tortiously interfere with it....” Morgan Stanley & Co., Inc. 

v. Tex. Oil Co., 958 S.W.2d 178, 179 (Tex. 1997).

....

Whitten Defendants argue that Wesner’s tortious interference 

claims must be dismissed because they are barred by attorney immunity 

and fail to state a claim. Doc. 40, Whitten Mot., ¶¶ 48–49. Wesner does 

not reply to this contention. See Doc. 50, Resp., 8–9. The Court agrees 

that Wesner fails to allege how Whitten Defendants’ actions proximately 

caused his alleged injury, the diminution of the fair market value of the 

Property. Thus, Wesner has not plausibly alleged a tortious interference 

claim against Whitten Defendants. Wesner’s claims against Whitten 

Defendants for tortious interference with contract are DISMISSED.

Dkt. No. 54 at 25-27 (footnote omitted).

Whitten Defendants now argue, as to the 2dAC, that they are “immune from 

Wesner’s intentional interference with contracts claims, which are nevertheless 

barred because Whitten cannot interfere with a contract to which his former client is 

a party”:

(45) Wesner has failed to amend his Complaint to cure the reasons 

the Court dismissed his tortious interference action against Whitten. 

See Wesner v. Southall, 2023 U.S. Dist. LEXIS 67392, at *35 (N.D. Tex. 

Apr. 18, 2023) (Boyle, J.).

(46) Wesner brings claims against Whitten for tortious 

interference “with the Trustee’s contractual rights under the 

Declaration.” Doc. 57 ¶ 4.74. Whitten is immune from this claim. One of 

the alleged interferences is that the HOA “engag[ed] attorneys without 

authority.” Doc. 57 ¶ 4.74. On its face, Wesner affirmatively states that 

Whitten’s role in the alleged interference was as the HOA’s attorney 

adversarial to Wesner in all these matters. Whitten’s representation 

therefore consisted of actions “the kind of conduct” attorneys undertake 

while discharging their professional duties to a client, Haynes & Boone, 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 46 of 61 PageID 1102
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LLP, 631 S.W.3d at 67, using “the office, professional training, skill, and 

authority of an attorney.” Cantey Hanger, LLP, 467 S.W.3d at 481-82. 

(47) Wesner does not specify which of these actions Whitten 

directly contributed to or in what way Whitten harmed him by doing so. 

As noted throughout the Second Amended Complaint, Whitten at all 

times represented the HOA adversarial to Wesner in all these matters. 

Whitten’s representation consisted of actions “the kind of conduct” 

attorneys undertake while discharging their professional duties to a 

client, Haynes & Boone, LLP, 631 S.W.3d at 67, using “the office, 

professional training, skill, and authority of an attorney.” Cantey 

Hanger, LLP, 467 S.W.3d at 481-82. Whitten is therefore immune.

(48) Second, even if immunity does not apply, Wesner’s Second 

Amended Complaint still fails to state a claim. The elements of tortious 

interference with contracts are: “(1) the existence of a contract subject 

to interference; (2) willful and intentional interference; (3) interference 

that proximately caused damage; and (4) actual damage or loss.” RTLC 

AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 832-833 (Tex. 

App. – Dallas 2006, no pet.). Wesner provides no allegations against 

Whitten on any of these elements.

(49) Moreover, the litany of complaints, as noted above, relate to 

actions taken in furtherance of enforcing or complying with the CCRs. 

A party or its agent cannot rightly be said to ‘interfere’ with a contract 

to which they are a party or to which they have an enforcement right. 

See e.g., Community Health Sys. Prof’l Servs. v. Hansen, 525 S.W.3d 671, 

690 (Tex. 2017) (A defendant must be a stranger to a contract to 

tortiously interfere with it; a defendant “cannot tortiously interfere with 

its own contract”). The Court should therefore dismiss Wesner’s 

interference claims. 

Dkt. No. 63 at 23-24. 

Again, a side-by-side comparison of the Amended Complaint’s allegations with 

the 2dAC’s corresponding allegations will be helpful in considering Whitten 

Defendants’ current motion to dismiss in light of the Court’s ruling on the allegations 

on Whitten Defendants’ prior motion to dismiss.

Amended Complaint 2dAC

4.08. Intentional Interference with 

Contracts. The paragraphs above are 

4.74. Southall, Whitten, Whitten Firm, 

Associa, PMG and CSSC have 

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Amended Complaint 2dAC

incorporated herein by reference. 

Southall, Whitten, Whitten Firm, 

Associa, PMG and CSSC have 

intentionally interfered with Trustee’s 

contractional rights under the contracts 

to Trustee’s detriment and damage

including, without limitation, Associa - 

PMG wrongfully acting as the 

managing agent; wrongfully using the 

name Windsor Ridge Homeowners’ 

Association, Inc. as the HOA; 

wrongfully using Estates as the HOA; 

attempting to collect unauthorized 

payments from Trustee; recording 

unauthorized Notices of Assessment 

Lien and other unauthorized 

instruments; engaging attorneys 

without authority; failing to keep 

records, including financial records, 

reasonably available for inspection and 

copying by Trustee as required by 

Texas law; obfuscating their 

involvement in Trustee’s affairs to the 

detriment and damage of Trustee; by 

not computerizing transactions; 

disclosing Trustee’s private information 

without authorization; depositing 

Trustee’s funds in a PMG non-custodial 

account; interfering with Trustee’s 

rights to review and copy records 

including ESI and financial records 

relating to Windsor Ridge subdivision; 

not having a duly elected Board 

pursuant to the purported Declaration § 

4.3 to supervise; ignoring the 

mandatory provisions of the purported 

Declaration; charging Trustee with 

amounts not authorized by the 

purported Declaration §§ 4.3, 4.5(f), 4.6 

and 4.7; by sending unauthorized 

invoices, account histories and letters to 

intentionally interfered with the 

Trustee’s contractional rights under the 

Declaration (to the extent it is found to 

be valid) to the Trustee’s detriment and 

damage including, without limitation: 

(a) Associa - PMG wrongfully acting as 

the managing agent; (b) wrongfully 

using the name Windsor Ridge 

Homeowners’ Association, Inc. as the 

HOA; (c) wrongfully using Estates as 

the HOA; (d) attempting to collect 

unauthorized payments from the 

Trustee and other lot owners; (e) 

recording unauthorized Notices of 

Assessment Lien and other 

unauthorized instruments; (f) engaging 

attorneys without authority; (g) failing 

to keep records, including financial 

records, reasonably available for 

inspection and copying by the Trustee 

as required by Texas law; (h) 

obfuscating their involvement in the 

Trustee’s affairs to the detriment and 

damage of the Trustee; (i) by not 

computerizing transactions; (j) 

disclosing the Trustee’s private 

information without authorization; (k) 

depositing the Trustee’s funds in a 

PMG non-custodial account; (l) 

interfering with the Trustee’s rights to 

review and copy records including ESI 

and financial records relating to 

Windsor Ridge subdivision; (m) not 

having a duly elected Board pursuant 

to the Declaration § 4.3 to supervise; 

ignoring the mandatory provisions of 

the Declaration; (n) charging the 

Trustee with amounts not authorized 

by the Declaration §§ 4.3, 4.5(f), 4.6 and 

4.7; (o) by sending unauthorized 

invoices, account histories and letters to 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 48 of 61 PageID 1104
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Amended Complaint 2dAC

Trustee; making improper collection 

demands on Trustee; and holding from 

Dallas, TX the April 26, 2021 Zoom 

hearing that did not comply with Texas 

law.

4.08.1. The contracts are (1) valid; (2) 

Trustee tendered performance; (3) 

Defendants, jointly and severally, 

breached the contracts; and (4) Trustee 

has sustained damages as a result of 

the breaches including the diminution 

of the fair market value of 2312 

Lookout Lane and the inconvenience as 

a result of the wrongful conduct of 

Defendants, jointly and severally. 

Trustee is entitled to recover his 

damages, attorneys’ fees, costs and 

interest from Defendants, jointly and 

severally. 

4.08.2. Defendants’, joint and several, 

interferences have been to the 

detriment and damage of Trustee. 

Trustee is entitled to recover his 

damages, attorneys’ fees, costs and 

interest from Defendants, jointly and 

severally.

the Trustee; (p) making improper 

collection demands on the Trustee; and 

(q) holding from Dallas, TX the April 

26, 2021 Zoom hearing that did not 

comply with Texas law.

4.75. If the contracts are found to be 

valid, the Trustee pleads in the 

alternative that (1) the contracts are 

valid; (2) the Trustee tendered 

performance; (3) Defendants, jointly 

and severally, interfered with the 

contracts; and (4) the Trustee has 

sustained damages as a result thereof 

including the diminution of the fair 

market value of 2312 Lookout Lane and 

the inconvenience as a result of the 

wrongful conduct of Defendants, jointly 

and severally.

4.76. The Trustee is entitled to recover 

his damages, attorneys’ fees, costs, and 

interest from Defendants, jointly and 

severally. 

The Court previously concluded that Wesner failed to allege how Whitten 

Defendants’ actions proximately caused his alleged injury, the diminution of the fair 

market value of the Property, and so Wesner has not plausibly alleged a tortious

interference claim against Whitten. See Dkt. No. 54 at 27. 

As Whitten Defendants point out and the comparison above confirms, Wesner 

did not amend his prior complaint to cure – in the 2dAC – the reasons that the Court 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 49 of 61 PageID 1105
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relied on for dismissing his tortious interference claim against Whitten Defendants 

but instead repeated the same allegations from his Amended Complaint.

And, for the same reasons that the Court previously explained, the Court 

should dismiss Wesner’s claims against Whitten Defendants for tortious interference 

with contract. See Dkt. No. 54 at 25-27.

V. Fraud and Conspiracy to Commit Fraud

As to Wesner’s Fraud and Conspiracy to Commit Fraud claim, in ruling on the 

prior motion to dismiss the Amended Complaint, Judge Boyle explained:

Wesner asserts claims for fraud and conspiracy to commit fraud 

against “Defendants, jointly and severally,” alleging they “engaged in a 

conspiracy to fraudulently collect unauthorized assessments and 

charges from [Wesner] and usurp the powers and rights of [the real 

HOA].” Doc. 38, Am. Compl., ¶¶ 4.09–.09.2. “In alleging fraud or 

mistake, a party must state with particularity the circumstances 

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). 

The elements of fraud are: (1) that a material 

representation was made; (2) the representation was false; 

(3) when the representation was made, the speaker knew 

it was false or made it recklessly without any knowledge of 

the truth and as a positive assertion; (4) the speaker made 

the representation with the intent that the other party 

should act upon it; (5) the party acted in reliance on the 

representation; and (6) the party thereby suffered injury.

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Defendants 

argue that Wesner has failed to plausibly allege the elements of a fraud 

claim. See, e.g., Doc. 40, Whitten Mot., ¶ 52; Doc. 41, Associa Mot., ¶¶ 

32–33. Associa, CSSC, PMG, Southall, and Estates of Windsor Ridge 

specifically claim Wesner has not plausibly alleged reliance. See, e.g., 

Doc. 41, Associa Mot., ¶ 32. Wesner responds that he relied by paying 

the $200 assessment. Doc. 50, Resp., 9. To show reliance, “the plaintiff 

must show that [he] actually relied on the defendant’s representation 

and, also, that such reliance was justifiable.” JPMorgan Chase Bank, 

N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018). A 

person cannot actually or justifiably rely on a representation they know 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 50 of 61 PageID 1106
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to be false. See, e.g., Darnell v. Rogers, 588 S.W.3d 295, 305 (Tex. App. –

El Paso 2019, no pet.). “In measuring justifiability, [courts] must inquire 

whether, given a fraud plaintiff’s individual characteristics, abilities, 

and appreciation of facts and circumstances at or before the time of the 

alleged fraud, it is extremely unlikely that there is actual reliance on 

the plaintiff’s part.” Grant Thornton LLP v. Prospect High Income Fund, 

314 S.W.3d 913, 923 (Tex. 2010) (internal quotation and alteration 

omitted). “[A] person may not justifiably rely on a representation if there 

are ‘red flags’ indicating such reliance is unwarranted.” Id. (internal 

quotations omitted). However, a claimant’s “mere suspicions” of that a 

representation is false are not evidence that reliance was unjustifiable. 

See Advocare Int’l LP v. Horizon Lab’ys, Inc., 524 F.3d 679, 699 (5th Cir.

2008).

The Court agrees that Wesner has alleged reliance against 

Southall and PMG by alleging that he sent Southall and PMG a check 

for $200 to pay his assessment. See Doc. 38, Am. Compl., ¶ 3.37. But this 

check was sent only “in reliance on [Wesner’s] gentleman’s agreement 

with Mark for PMG.” See id. Because Wesner has failed to “state with 

particularly the circumstances constituting” reliance as to the 

remaining Defendants, the Court DISMISSES Wesner’s claims for 

fraud against Associa, CSSC, Whitten Defendants, and Estates of 

Windsor Ridge. See Fed. R. Civ. P. 9(b).

Southall and PMG argue, without citation, “[P]aying under 

protest cannot form the basis of a fraud claim because Wesner clearly 

possessed knowledge of the issues about-which he now complains, 

otherwise he would not have made payment under protest.” Doc. 42, 

PMG Mot., ¶ 33; Doc. 43, Southall Mot., ¶ 35. While Wesner was clearly 

suspicious of PMG and Southall, these suspicions, without more, do not 

negate his allegations of reliance. See Advocare Int’l, 524 F.3d at 699. 

Wesner does not allege that he knew at the time that Southall or PMG’s 

alleged misrepresentations were false. See generally Doc. 38, Am. 

Compl., ¶¶ 3.01–.121. Nor do Southall and PMG identify any “red flags”

that indicated reliance on their representations was unwarranted. See

Doc. 42, PMG Mot., ¶ 33; Doc. 43, Southall Mot., ¶ 35.

The elements of a civil conspiracy are “(1) two or more persons; 

(2) an object to be accomplished; (3) a meeting of minds on the object or 

course of action; (4) one or more unlawful, overt acts; and (5) damages 

as the proximate result.” Massey v. Armco Steel Co., 652 S.W.2d 932, 934 

(Tex. 1983). Civil conspiracy is a “‘derivative tort,’ meaning it depends 

on some underlying tort or other illegal act.” Agar Corp., Inc. v. Electro 

Circuits Int’l, LLC, 580 S.W.3d 136, 140-41 (Tex. 2019). As such, “a civil 

conspiracy claim is connected to the underlying tort and survives or fails 

Case 3:22-cv-00927-B Document 65 Filed 08/21/23 Page 51 of 61 PageID 1107
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alongside it.” Id. at 141. Thus, “if a plaintiff cannot adequately allege 

with particularity or ultimately prove an element of the underlying 

fraud, [a claim for conspiracy to commit fraud] also fails.” In re Enron 

Corp. Sec., Derivative & “ERISA” Litig., 490 F. Supp. 2d 784, 795 (S.D. 

Tex. 2007). Because Wesner has failed to state a claim for fraud against 

Associa, CSSC, Whitten Defendants, and Estates of Windsor Ridge, the 

Court also DISMISSES Wesner’s claims for conspiracy to commit fraud 

as to these Defendants.

Dkt. No. 54 at 27-30.

Whitten Defendants now argue, as to the 2dAC, that, “[t]o the extent the Court 

permits any conspiracy allegation to apply to Whitten, Whitten responds that Wesner 

fails to plead requisite factual allegations to support both the conspiracy and the 

elements of the underlying cause of action (including failing to do so with the 

particularity required for allegations of fraud).” Dkt. No. 63 at 26-27 (citing Wesner 

v. Southall, 2023 U.S. Dist. LEXIS 67392, at *35-*36). And Whitten Defendants argue 

that, “as a matter of law,” “Whitten could not conspire with his client for conduct 

occurring within the scope of representing its interests.” Dkt. No. 63 at 27 (citing 

Petricevic v. Shin, 2021 U.S. Dist. LEXIS 122014 (D. Haw. June 30, 2021)).

Again, a side-by-side comparison of the Amended Complaint’s allegations with 

the 2dAC’s corresponding allegations will be helpful in considering Whitten 

Defendants’ current motion to dismiss in light of the Court’s ruling on the allegations 

on Whitten Defendants’ prior motion to dismiss.

Amended Complaint 2dAC

4.09. Continuing Fraud and Conspiracy 

to Commit Fraud. The paragraphs 

above are incorporated by reference. 

Defendants engaged in a conspiracy to 

4.77. Defendants engaged in a 

conspiracy to fraudulently collect 

unauthorized assessments and charges 

from the Trustee and to usurp the 

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Amended Complaint 2dAC

fraudulently collect unauthorized 

assessments and charges from Trustee 

and to usurp the powers and rights of 

Windsor Ridge Homeowners’ 

Association. Defendants, jointly and 

severally, have used the fraudulent 

devices of Estates and Windsor Ridge 

Homeowners’ Association, Inc. to 

attempt to collect unauthorized debts, 

assessments and charges from Trustee 

and to control the Windsor Ridge 

subdivision to the detriment of Trustee.

4.09.1. The material misrepresentations 

and the representations by material 

nondisclosures to Trustee are alleged in 

the Statement of Facts above. Each 

material misrepresentation and 

nondisclosure was (1) false; (2) made by 

Defendants, jointly and severally, that 

knew each representation was false or 

made recklessly without knowledge of 

the truth; (3) made by Defendants, 

jointly and severally, with the intent 

that Trustee act on each material 

misrepresentation; (4) Trustee relied on 

material misrepresentations; and (5) 

each of these material 

misrepresentations caused Trustees’ 

injury.

4.09.2. Defendants combined to 

accomplish the collection of 

unauthorized assessments and charges 

from Trustee. The Defendants reached 

a meeting of minds on the course of 

action and took avert acts in pursuit of 

the collection of unauthorized 

assessments and charges and engage in 

the unauthorized management of the 

powers and rights of Windsor Ridge 

Homeowners’ Association. Defendants, 

jointly and severally, have used the 

fraudulent devices of Estates and 

Windsor Ridge Homeowners’ 

Association, Inc. to attempt to collect 

unauthorized debts, assessments, and 

charges from the Trustee and to control 

the Windsor Ridge subdivision to the 

detriment of the Trustee.

4.78. The material misrepresentations 

and the misrepresentations by material 

nondisclosures to the Trustee are 

alleged in the Statement of Facts above. 

Each material misrepresentation and 

nondisclosure was (1) false; (2) made by 

Defendants, jointly and severally, that 

knew each misrepresentation was false 

or made recklessly without knowledge 

of the truth; (3) made by Defendants, 

jointly and severally, with the intent 

that the Trustee act on each material 

misrepresentation; (4) the Trustee 

relied on material misrepresentations; 

and (5) each of these material 

misrepresentations caused the 

Trustees’ injury.

4.79. Defendants conspired and 

combined to accomplish the collection of 

unauthorized assessments and charges 

from the Trustee. The Defendants 

reached a meeting of minds on the 

course of action and took avert acts in 

pursuit of the collection of unauthorized 

assessments and charges and engage in 

the unauthorized management of the 

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Amended Complaint 2dAC

Windsor Ridge subdivision to Trustee’s 

detriment and damage.

Windsor Ridge subdivision to the 

Trustee’s detriment and damage.

The Court previously concluded that Wesner failed to state with particularly 

the circumstances constituting reliance as to Whitten Defendants and so failed to 

state a claim for fraud against Whitten Defendants – and, having failed to state a 

claim for fraud against Whitten Defendants, also therefore failed to state a claim for 

conspiracy to commit fraud as to Whitten Defendants.

As the comparison above confirms, Wesner did not amend his prior complaint 

to cure – in the 2dAC – the reasons that the Court relied on for dismissing his fraud 

and conspiracy to commit fraud claims against Whitten Defendants but instead 

repeated the same allegations from his Amended Complaint.

And, for the same reasons that the Court previously explained, the Court 

should dismiss Wesner’s claims against Whitten Defendants for fraud and conspiracy 

to commit fraud. See Dkt. No. 54 at 27-30.

VII. Injunctive Relief

As to Wesner’s request for injunctive relief, Whitten Defendants argue, as to 

the 2dAC, that “[a]n injunction against [Whitten Defendants] is inappropriate 

because Whitten is not engaging in any actions the Court can enjoin”: 

(50) As noted throughout this litigation, Whitten ceased 

representing the HOA in mid-2021. See, e.g., Wesner v. Southall, 2023 

U.S. Dist. LEXIS 67392, at *6 (N.D. Tex. Apr. 18, 2023) (Boyle, J.). 

Whitten is a full-time educator and accepts only select clients and 

matters. An injunction against Whitten – an attorney with no ongoing 

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connection to the matter – would be a useless act because Whitten 

already is not engaging and will not engage in any of the alleged 

wrongdoings that Wesner complains others are engaged in. Wesner fails 

to allege any ongoing conduct by Whitten that needs to be restrained. 

PostNet Int’l Franchise Corp. v. Wu, 521 F. Supp. 3d 1087, 1106 (D. Colo. 

2021) (Injunction is “not necessary or appropriate” for actions that aren’t 

occurring). Whitten’s only connection to Windsor Ridge is as a party to 

this lawsuit. Simply put, Whitten is doing nothing for the Court to 

enjoin. “Past exposure to illegal conduct does not in itself show a present 

case or controversy regarding injunctive relief ... if unaccompanied by 

any continuing, present adverse effects. To obtain equitable relief for 

past wrongs, a plaintiff must demonstrate either continuing harm or a 

real and immediate threat of repeated injury in the future.” Bauer, 341 

F.3d at 358 (citations and quotations omitted). Whitten poses no ongoing 

threat to Wesner because Whitten has not represented the HOA for over 

two years. Any injunction against Whitten would be redundant because 

it is undisputed that Whitten acted solely in a representative capacity.

 .... 

(58) Because Wesner failed to plausibly state any cause of action 

against Whitten, any request by Wesner for declaratory or injunctive 

relief as to Whitten is fatally defective. Moreover, Wesner did not allege 

any right or harm that would be ripe for declaratory or injunctive relief 

against Whitten.

Dkt. No. 63 at 25, 29 (footnotes omitted). 

Again, a side-by-side comparison of the Amended Complaint’s allegations with 

the 2dAC’s corresponding allegations will be helpful in considering Whitten 

Defendants’ current motion to dismiss in light of the Court’s ruling on the allegations 

on Whitten Defendants’ prior motion to dismiss.

Amended Complaint 2dAC

4.11. Application for Injunctive Relief. 

The Paragraphs above are incorporated 

herein by reference. Pursuant to Fed. R. 

Civ. P. 65, Plaintiff seeks prohibitory 

and mandatory injunctive relief as 

follows: 

4.80. Pursuant to Fed. R. Civ. P. 65, 

Plaintiff seeks prohibitory and 

mandatory injunctive relief as follows: 

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Amended Complaint 2dAC

(1) Enter a permanent injunction 

prohibiting Defendants, jointly 

and severally, from interfering 

with the purported Declaration 

and Windsor Ridge Homeowners’ 

Association as the Homeowners’ 

Association for the Windsor 

Ridge subdivision and, further, 

enter an order mandating that 

Defendants, jointly and severally, 

must comply with the purported 

Declaration Article IV. 

(2) Enter a permanent injunction 

prohibiting Defendants, jointly 

and severally, from attempting to 

collect any assessment or charge 

not authorized by a duly elected 

Board’s formal action in 

compliance with the Declaration 

Article IV. 

(3) Enter a permanent injunction 

prohibiting Defendants, jointly 

and severally, from using the 

name Windsor Ridge 

Homeowners’ Association, Inc. 

(4) Enter an order directing 

Defendants, jointly and severally, 

to turn over all books and records 

including the complete ESI and 

financial books and records, to 

Trustee for inspection for the 

time required by Trustee to 

examine the books and records 

and copying as requested by 

Trustee, and, further, ordered 

that Defendants, jointly and 

severally, cooperate and 

promptly furnish the complete 

(a) Enter a permanent injunction 

prohibiting Defendants, jointly 

and severally, from interfering 

with the Declaration and 

Windsor Ridge Homeowners’ 

Association as the Homeowners’ 

Association for the Windsor 

Ridge subdivision and, further, 

enter an order mandating that 

Defendants, jointly and severally, 

must comply with the 

Declaration Article IV. 

(b) Enter a permanent injunction 

prohibiting Defendants, jointly 

and severally, from attempting to 

collect any assessment or charge 

not authorized by a duly elected 

Board’s formal action in 

compliance with the Declaration 

Article IV. 

(c) Enter a permanent injunction 

prohibiting Defendants, jointly 

and severally, from using the 

name Windsor Ridge 

Homeowners’ Association, Inc. 

(d) Enter an order directing 

Defendants, jointly and severally, 

to turn over all books and records 

including the complete ESI and 

financial books and records, to 

Trustee for inspection for the 

time required by Trustee to 

examine the books and records 

and copying as requested by 

Trustee, and, further, ordered 

that Defendants, jointly and 

severally, cooperate and 

promptly furnish the complete 

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Amended Complaint 2dAC

ESI from the inception on a 

storage device and in a format 

compatible with Trustee and his 

attorney’s computer software 

application, operating system 

and word processor. 

(5) Enter a permanent 

mandatory injunction directing 

Southall, Associa, PMG and 

CSSC, jointly and severally, to 

provide to Trustee written 

disclosures of any past, present 

or future actual or perceived 

conflict of interest including 

ownership of any companies that 

has provided ancillary services to 

the Windsor Ridge subdivision, 

Windsor Ridge Homeowners’ 

Association, Windsor Ridge 

Homeowners’ Association, Inc. or 

Estates. 

4.11.1. Trustee has suffered and 

is suffering actual, imminent, 

irreparable injury since 

Plaintiff’s fee simple right to the 

use of his property has been 

interfered with by Defendants’ 

acts and the charging of 

wrongful, excessive assessment 

and wrongful charges makes 

2312 Lookout Lane unsalable or 

diminishes in valve particularly 

with the Associa-PMG

wrongfully acting as the 

management company with its 

national bad reputation 

involving, among other things, 

violation letters, wrongful 

Notices of Assessment Liens, and 

ESI from the inception on a 

storage device and in a format 

compatible with Trustee and his 

attorney’s computer software 

application, operating system 

and word processor. 

(e) Enter a permanent 

mandatory injunction directing 

Southall, Associa, PMG and 

CSSC, jointly and severally, to 

provide to Trustee written 

disclosures of any past, present 

or future actual or perceived 

conflict of interest including 

ownership of any companies that 

has provided ancillary services to 

the Windsor Ridge subdivision, 

Windsor Ridge Homeowners’ 

Association, Windsor Ridge 

Homeowners’ Association, Inc. or 

Estates. 

4.81. The Trustee has suffered 

and is suffering actual, 

imminent, irreparable injury 

since Plaintiff’s fee simple right 

to the use of his property has 

been interfered with by 

Defendants’ acts and the 

charging of wrongful, excessive 

assessment and wrongful charges 

makes 2312 Lookout Lane 

unsalable or diminishes in valve 

particularly with the AssociaPMG wrongfully acting as the 

management company with its 

national bad reputation 

involving, among other things, 

violation letters, wrongful 

Notices of Assessment Liens, and 

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Amended Complaint 2dAC

foreclosures involving minor 

violations of strict rules. The 

remedies available at law, such 

as monetary damages, are 

inadequate to compensate for the 

injuries suffered by Plaintiff. 

There is a substantial likelihood 

that Plaintiff will succeed on the 

merits of the case. The equitable 

remedies requested by the 

Plaintiff is warranted upon 

consideration of the balance of 

hardship between Trustee and 

Defendants and the permanent 

injunction will not adversely 

affect public policy or interests of 

public. Plaintiff is willing to post 

a bond.

foreclosures involving minor 

violations of strict rules. The 

remedies available at law, such 

as monetary damages, are 

inadequate to compensate for the 

injuries suffered by Plaintiff. 

There is a substantial likelihood 

that Plaintiff will succeed on the 

merits of the case. The equitable 

remedies requested by the 

Plaintiff is warranted upon 

consideration of the balance of 

hardship between the Trustee 

and Defendants and the 

permanent injunction will not 

adversely affect public policy or 

interests of public. Plaintiff is 

willing to post a bond. 

Although Wesner did not materially amend his injunctive relief allegations, 

because some of the declaratory judgment claims against Whitten Defendants should 

survive dismissal, the Court should likewise deny the motion to dismiss Wesner’s 

requests for injunctive relief as they apply to Whitten Defendants. The undersigned 

cannot agree – as explained above – that Wesner failed to plausibly state any cause 

of action against Whitten Defendants and so cannot conclude that any request by 

Wesner for injunctive relief as to Whitten Defendants is fatally defective. 

VIII. Leave to Amend

In ruling on the prior motion to dismiss the Amended Complaint, Judge Boyle 

explained that “Wesner has not sought leave to amend, but the Court should freely 

give leave to amend when justice so requires.” Dkt. No. 54 at 32 (citing FED. R. CIV.

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P. 15(a)). And Judge Boyle noted “that Wesner has already amended his complaint 

once” but found “it appropriate to give Wesner one final opportunity to amend his 

complaint.” Id.

Wesner then filed his 2dAC, with the benefit of Judge Boyle’s analysis and 

rulings on the defendants’ prior motion to dismiss his Amended Complaint. See Dkt. 

No. 57. And yet, as explained above, the 2dAC repeated most of the allegations as 

previously plead in the Amended Complaint. And then Wesner did not file a response 

to Whitten Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint for 

Failure to State a Claim [Dkt. No. 63].

The Court already gave “Wesner one final opportunity to amend his 

complaint,” Dkt. No. 54 at 32, and “leave to amend properly may be denied when the 

party seeking leave has repeatedly failed to cure deficiencies by amendments 

previously allowed.” U.S. ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 

375, 387 (5th Cir. 2003). Wesner “has already had two opportunities to amend the 

complaint,” id., and he has not sought leave to amend in response to the motions to 

dismiss his Amended Complaint or to Whitten Defendants’ motion to dismiss his 

2dAC. 

And Wesner “has had the benefit of [Whitten Defendants’] prior motions to 

dismiss and Judge Boyle’s prior ruling to alert him to the problems with his 

pleadings” and yet “he has failed to cure these deficiencies or otherwise plead 

sufficient facts to support his” claims against Whitten Defendants in his 2dAC. 

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Jamison v. Fluor Fed. Sols., LLC, No. 3:16-cv-441-S, 2019 WL 460304, at *10 (N.D. 

Tex. Feb. 6, 2019), aff’d, 787 F. App’x 241 (5th Cir. 2019). Under these circumstances, 

the Court should presume that Wesner “has pleaded his best case at this point and, 

therefore, [should] not allow him another opportunity to amend his complaint” 

against Whitten Defendants. Id. 

Thus, for the claims on which the Court should grant Whitten Defendants’ 

Motion to Dismiss Plaintiff’s Second Amended Complaint for Failure to State a Claim 

[Dkt. No. 63], the dismissal should be with prejudice. Accord Nichols v. Baylor Rsch. 

Inst., No. 3:19-cv-1883-B, 2020 WL 1158456, at *12 (N.D. Tex. Mar. 10, 2020).

IX. Conclusion

In sum, all of Wesner’s claims against Whitten Defendants should be dismissed 

with prejudice except for Wesner’s claims for declaratory judgment and injunctive 

relief, which should survive dismissal.

Recommendation

For the reasons and to the extent explained above, the Court should grant in 

part and deny in part Defendants Whitten & Whitten, PLLC and Adam T. Whitten’s 

Motion to Dismiss Plaintiff’s Second Amended Complaint for Failure to State a Claim 

[Dkt. No. 63] and should dismiss with prejudice Plaintiff Charles Thomas Wesner, 

Jr.’s claims against Defendants Whitten & Whitten, PLLC and Adam Whitten for 

violations of the Texas Fair Debt Collection Act, for Tortious Interference with 

Contract, and for Fraud and Conspiracy to Commit Fraud. 

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A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge=s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Services Auto. Ass=n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: August 21, 2023

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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