NO. 03-15-00498-CV 

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

LONG CANYON PHASE II AND III HOMEOWNERS ASSOCIATION, 

INC., 

Appellant, 

v.

CHRIS CASHION AND LISA CASHION, 

Appellees. 

Appealed from the County Court at Law No. 2 of Travis County, Texas, 

Cause No. C-1-CV-15-001016

APPELLANT BRIEF

FRANK O. CARROLL III

TBA No. 24082785

DAWN S. HOLIDAY

TBA No. 24046090

AMY M. VANHOOSE

TBA No. 24042085

ROBERTS MARKEL WEINBERG BUTLER HAILEY PC 

2800 Post Oak Blvd, 57th Floor

Houston, TX 77056

Phone: (713) 840-1666 Fax: (713) 840-9404

fcarroll@rmwbhlaw.com, dholiday@rmwbhlaw.com

avanhoose@rmwbhlaw.com

ORAL ARGUMENT REQUESTED

ACCEPTED

03-15-00498-CV

7196697

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/1/2015 5:28:23 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/1/2015 5:28:23 PM JEFFREY D. KYLE Clerk
ii

REQUEST FOR ORAL ARGUMENT

Pursuant to Appellate Procedure Rule 52.8(b)(4), Appellant

respectfully requests oral argument on belief it will materially aid the 

Court in determination of the novel and complex legal issues presented 

for review.
iii

IDENTITIES OF PARTIES AND COUNSEL

Appellant:

LONG CANYON PHASE II AND III HOMEOWNERS ASSOCIATION, 

INC.

Frank O. Carroll III (Appellate Counsel)

Dawn Holiday (Appellate Counsel)

Amy M. VanHoose (Trial Court Counsel)

Mark B. Rabe (Trial Court Counsel)

Adam L. Robertson (Trial Court Counsel)

ROBERTS MARKEL WEINBERG BUTLER HAILEY PC

2800 Post Oak Blvd, 57th Floor

Houston, Texas 77056

(713) 840-1666 Telephone

(713) 840-9404 Facsimile

Appellees:

CHRIS CASHION AND LISA CASHION

William C. Davidson (Lead Counsel)

CHAMBERLAIN MCHANEY

301 Congress, 21st Floor

(512) 474-9124 Telephone

(512) 474-8582 Facsimile
iv

TABLE OF CONTENTS

REQUEST FOR ORAL ARGUMENT.......................................................ii

IDENTITIES OF PARTIES AND COUNSEL.........................................iii

TABLE OF CONTENTS ..........................................................................iv

TABLE OF AUTHORITIES.....................................................................vi

RECORD REFERENCES .........................................................................1

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

ISSUE PRESENTED ................................................................................3

STATEMENT OF FACTS.........................................................................3

A. The Association and the Deed Restrictions...................3

B. The Cashions Violate the Deed Restrictions .................4

C. The Cashions Continue Violating the Deed 

Restrictions ....................................................................4

D. The Association Sends a Letter to the Cashions 

Regarding Their Violations of the Deed 

Restrictions ....................................................................5

E. The Cashions Respond to the Letter .............................5

F. The Cashions Sue the Association.................................6

G. The Association Moves to Dismiss Under the AntiSLAPP Statute...............................................................7

SUMMARY OF THE ARGUMENT ..........................................................7
v

STANDARD OF REVIEW.........................................................................8

ARGUMENTS AND AUTHORITIES.......................................................9

A. The Texas Anti-SLAPP Statute.....................................9

1. The Purpose of the Texas Anti-SLAPP Statute ...9

2. The Right to Petition and the Right of Association 

Protected by the Texas Anti-SLAPP Statute .....10

3. Mandatory Dismissal Under the Texas AntiSLAPP Statute....................................................11

B. The Trial Court Erred in Failing to Dismiss the 

Cashion’s Claims Related to the Association Sending a 

Pre-Suit Notice.............................................................12

1. The Cashions’ lawsuit infringes on the 

Association’s constitutional right to 

petition ................................................................16

2. The Cashions’ lawsuit infringes on the 

Association’s constitutional right of 

association...........................................................18

3. The Cashions’ failed to establish, by clear and 

specific evidence, a prima facie case for each 

essential element of the claim in question.........20

PRAYER ..................................................................................................25

CERTIFICATE OF COMPLIANCE........................................................26

CERTIFICATE OF SERVICE.................................................................26

APPENDIX..............................................................................................27
vi

TABLE OF AUTHORITIES

State Cases

Better Bus. Bureau of Metro. Dall. v. BH DFW, Inc.,

402 S.W.3d 299 (Tex. App.—Dallas 2013) ................................... 9, 21

Hot Rod Hill Motor Park v. Triolo,

293 S.W.3d 788 (Tex. App.—Waco 2009) ........................................... 3

Rehak Creative Servs. v. Witt,

404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) ........ 8, 9, 10

Serafine v. Blunt, 03-12-00726-CV,

2015 WL 3941219 (Tex. App.—Austin June 26, 2015) .............. 21, 24

Sierra Club v. Andrews County,

418 S.W.3d 711 (Tex. App.—El Paso 2013) ............................... 13, 16

State Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 27.001 et. seq. (West 2012) . passim

Tex. Prop. Code Ann. § 209.001 et. seq. (West 2012) ............................ 17
1

RECORD REFERENCES

Citations in this Appellant’s Brief to the parties are as follows:

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

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

Appellees Chris Cashion and Lisa Cashion will be referred to as 

“the Cashions” or “Appellees.”

Citations in this Appellant’s Brief to the record are as follows:

CR – Clerk’s Record (i.e. CR [page]; e.g. CR 1)

RR – Reporter’s Record (i.e. RR [page]; e.g. RR 1)

App. – Appendix (i.e. App. [tab]; e.g. App. 1) 
2

STATEMENT OF THE CASE

Nature of the Case: This appeal arises from claims that the 

Association acted outside its authority when it 

sent a pre-suit notice to Appellees and allegedly 

trespassed on their property. (CR 7–16).

Course of 

Proceedings: Appellees filed an action against five (5) former 

and current board members and Long Canyon 

for a declaratory judgment. (CR 7–16). Long 

Canyon filed a Motion to Dismiss Pursuant to 

the Texas Citizens Participation Act (“TCPA”). 

(CR 74–130). Claims against the individual 

board members were non-suited by Plaintiffs.

(CR 147–48). The trial court denied the motion 

to dismiss. (CR 197).

Trial Court: County Court at Law No. 2, Travis County, 

Texas, Judge Eric M. Shepperd presiding; 

Cause No. C-1-CV-15-001016.

Trial Court’s 

Disposition: The Court entered an order on July 22, 2015,

denying Long Canyon’s motion to dismiss.

(CR 197).
3

ISSUE PRESENTED

1) Did the Trial Court err when it denied the Association’s Motion to 

Dismiss?

STATEMENT OF FACTS

This matter grew out of deed restriction enforcement activity by 

the Association against the Cashions. 

A. The Association and the Deed Restrictions.

Long Canyon Subdivision is a deed restricted community located 

in Austin, Texas. CR 99. All property in Long Canyon is subject to 

restrictive covenants contained in the Declaration of Covenants, 

Conditions, and Restrictions for Long Canyon Section III (the 

“Declaration”). Id. The Declaration designates the Association as the 

homeowners association for Long Canyon. CR 98. Section 1.07 of the 

Declaration defines the “Drainage Easement” as the areas designated 

on the Plat as a Drainage Easement and shall include any creeks, 

streams, sedimentation basins or bar ditches therein designated or 

constructed.” CR 98. Section 4.02 gives the Architectural Control 

Committee (“ACC”) the right to approve the removal/addition of trees, 

shrubs, hedges, groundcover, and all other landscaping. CR 103. Section 

9.04 of the Declaration states “Each Owner covenants not to disturb or 
4

displace any trees or other vegetation within the drainage easements as 

defined in this Declaration and shown on the Plat,” and that “there 

shall be no development, Improvements or Structures, temporary or 

permanent in any drainage easements except as approved in writing by 

the ACC or the Association, as the situation requires.” CR 122.

B. The Cashions Violate the Deed Restrictions.

The Cashions are the owners of 5920 Standing Rock (the 

“Property”). CR 9. Problems began when the Cashions started clearing 

trees and vegetation in the drainage easement, located across the back 

end of the Property. CR 88. The Association tried to work with the 

Cashions to have the drainage easement returned to its original state,

but no agreement could be reached. Id. 

C. The Cashions Continue Violating the Deed 

Restrictions.

In May 2013, the Cashions again cut down a large tree which 

would have required ACC approval before removing. CR 125–26. The 

Cashions argued that the tree was dead and they didn’t think they had 

to get approval to remove a dead tree. Id.
5

D. The Association Sends a Letter to the Cashions 

Regarding Their Violations of the Deed Restrictions.

On December 18, 2014, the Association, through its counsel Brad 

Rockwell, sent a pre-suit notice to the Cashions advising of the 

Association’s intent to file suit against the Cashions. CR 127–28. The 

Association alleged that the Cashions had, over the course of the last 

two years, extended their landscaped back yard into the drainage 

easement, mowed the easement, and taken other actions that 

constituted clearing of the easement. Id. The pre-suit notice alleged that 

the Association had previously sent the Cashions notice of some of these 

violations. Id. The Association indicated that they were going to fine the 

Cashions $8,000 and seek $10,000 in damages or specific performance 

of repairing the easement. Id.

E. The Cashions Respond to the Letter.

On December 23, 2014, the Cashions, through their counsel Bill 

Davidson, responded to the Association’s pre-suit notice. CR 129–30. 

The Cashions alleged that the Association’s claims go back to a 

2009 lawsuit and the only issue since then was the 2013 removal of a 

dead tree. Id. The Cashions asked for copies of the Association’s notices 

and a list of the violations. Id. The Cashions also alleged that the 
6

Association spies on their Property, has trespassed on the Property, and 

took pictures of the Cashion property without permission. Id.

Importantly, the response from the Cashions stated:

If the HOA elects to files suit making any of the allegations 

claimed in your letter, Mr. and Mrs. Cashion will file a 

counter-claim seeking damages for harassment, violation of 

the rules and regulations, DCCR, and authority of the Board 

of the HOA, and join each member of the Board in the 

lawsuit for acting beyond the scope of their authority. 

Mr. and Mrs. Cashion will also seek an injunction against 

further harassment by the HOA and its board of directors 

and costs and attorney’s fees. CR 130.

E. The Cashions Sue the Association.

The Cashions filed suit on February 4, 2015, against the 

Association, as well as present and past Board Members. CR 7–16. The 

Cashions seek damages for negligence and intentional infliction of 

emotional distress. Id. The Cashions also seek judicial declarations that 

the Association exceeded its enforcement authority, that the Cashions’

landscaping in their backyard does not violate the Declaration, that the 

Association acted outside its scope of authority, and that the 

Association’s actions were made in bad faith and ultra vires. Id. The 

Cashions also seek an injunction barring further bad faith and ultra 

vires acts by the Association. Id.
7

F. The Association Moves to Dismiss Under the AntiSLAPP Statute.

After filing suit against current and former board members and 

the Association, the Cashions non-suited the board members, leaving 

the Association as the only remaining Defendant. CR 147–48. The 

Association filed a Motion to Dismiss Pursuant to Chapter 27 of the 

Texas Civil Practice and Remedies Code, known as “The Texas Citizens 

Participation Act” or the “Anti-SLAPP Statute.” CR 74–130. The trial 

court denied the motion to dismiss, and this appeal followed. CR 197.

SUMMARY OF THE ARGUMENT

The Texas Citizens Participation Act (“TCPA”), codified in Tex. 

Civ. Prac. & Rem. Code § 27.001, et seq., was enacted to protect 

constitutional rights, including the right to petition and the right of 

association.

The Cashions are infringing upon the Association’s constitutional 

right to petition by filing this lawsuit. This lawsuit is based on the 

Association sending the Cashions a pre-suit notice required by Section 

209.006 of the Texas Property Code (“209 Letter”). Section 209.006 

states that a property owners’ association, such as the Association,

cannot file a lawsuit against a member until a Section 209.006 pre-suit 
8

notice is sent. Because Section 209.006 required the Association to send 

the pre-suit notice before filing a lawsuit, and because the Cashions are 

claiming the Association is liable for sending that pre-suit notice, this 

lawsuit is an attempt to prevent the Association from following 

necessary procedures in exercising its constitutional right to petition.

The Cashions have also infringed upon the Association’s

constitutional right of association. The Association is a collective group 

that has the common interest of preserving and protecting certain 

drainage easements, including the one across the back of the Property. 

The Association’s pre-suit notice exercised its right to express, promote, 

pursue, and defend this common interest. By filing this lawsuit, the 

Cashions are attempting to prevent the Association from furthering

their common interest. By doing so, the Cashions are infringing on the 

Association’s right of association. For these reasons, the trial court 

should be reversed.

STANDARD OF REVIEW

On a motion to dismiss brought pursuant to Chapter 27 of the 

Texas Civil Practices and Remedies Code, the court reviews the trial 

court’s decision de novo. Rehak Creative Services, Inc. v. Witt, 404 
9

S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013), review denied

(Sept. 6, 2013).

ARGUMENTS & AUTHORITIES

A. The Texas Anti-SLAPP Statute.

This appeal focuses on the “Texas Citizens Participation Act,” 

which is codified in Chapter 27 of the Civil Practices and Remedies 

Code under the heading “Actions Involving the Exercise of Certain 

Constitutional Rights.” See Tex. Civ. Prac. & Rem. Code Ann. 

§§ 27.001–.011 (Vernon 2012). This statute is an anti-SLAPP law, 

which is an acronym for “Strategic Lawsuits Against Public 

Participation.” See Rehak Creative Servs. Inc. v. Witt, 404 S.W.3d 716, 

719 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).

1. The Purpose of the Texas Anti-SLAPP Statute.

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

constitutional rights of persons to petition, speak freely, associate 

freely, and otherwise participate in government to the maximum extent 

permitted by law and, at the same time protect the rights of a person to 

file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & 

Rem. Code Ann. § 27.002 and Better Bus. Bureau of Metro. Dallas, Inc. 
10

v. BH DFW, INC., 402 S.W.3d 299, 305–06 (Tex. App.—Dallas 2013), 

reh’g overruled (June 12, 2013), review denied (Jan. 17, 2014). It does so 

by establishing a mechanism for early dismissal of lawsuits that 

threaten the right of free speech, the right to petition, or the right of 

association. Rehak Creative Servs. Inc. v. Witt, 404 S.W.3d 

716, 719 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The 

statute is to be “construed liberally to effectuate its purpose and intent 

fully.” Tex. Civ. Prac. & Rem. Code Ann. § 27.011(a).

2. The Right to Petition and the Right of Association 

Protected by the Texas Anti-SLAPP Statute.

The TCPA provides a means for a defendant, early in the course of 

a lawsuit, to seek dismissal of certain claims identified in the Act, 

including a legal action based on, relating to, or in response to a party’s 

exercise of the right to petition or the right of association. Id. § 27.001(4) 

and § 27.001(2).

An “exercise of the right of petition” is broadly defined under the 

TCPA as:
11

• a communication in or pertaining to a judicial proceeding;

• a communication that is reasonably likely to encourage 

consideration or review of an issue by a judicial body;

• a communication reasonably likely to enlist public 

participation in an effort to effect consideration of an 

issue by a judicial body; or

• any other communication that falls within the protection 

of the right to petition government under the Constitution 

of the United States or the constitution of this state.

Id. § 27.001(4)(A) (emphasis added). 

An “exercise of the right of association” is broadly defined under 

the TCPA as “a communication between individuals who join together 

to collectively express, promote, pursue, or defend common interests.”

Id. § 27.001(2). A “communication” is defined under the TCPA as “the 

making or submitting of a statement or document in any form or 

medium, including oral, visual, written, audiovisual, or electronic.” Id.

§27.001(1).

3. Mandatory Dismissal Under the Texas Anti-SLAPP 

Statute.

Under the TCPA, the trial court must dismiss the action if the 

moving party shows, by a preponderance of the evidence, that the legal 

action is based on, relates to, or is in response to the party’s exercise of 

the right of free speech, the right to petition, or the right of association, 

and the party bringing the legal action fails to establish by clear and 
12

specific evidence a prima facie case for each essential element of the 

claim in question. Id. § 27.005(b)–(c).

Furthermore, the trial court must dismiss a legal action against 

the moving party if the moving party establishes by a preponderance of 

the evidence each essential element of a valid defense to the 

nonmovant’s claim. Id. § 27.005(d).

In determining whether a legal action should be dismissed under 

the TCPA, “the court shall consider the pleadings and supporting and 

opposing affidavits stating the facts on which the liability or defense is 

based.” Id. § 27.006(a).

B. The Trial Court Erred in Failing to Dismiss the 

Cashion’s Claims Related to the Association Sending a 

Pre-Suit Notice.

There was little dispute in the trial court, and no dispute under 

the law, that sending a pre-suit notice is “a communication that is 

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

judicial body.” Id. § 27.001(4)(A). Accordingly, the question before the 

court, and the standard on appeal, is whether sending the pre-suit 

notice “is the specific conduct complained of, from which all the other 

allegations of wrongdoing emanate and around which they revolve
13

. . . the act that led to Appellees’ claims.” Sierra Club v. Andrews 

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

judgment rev’d on other grounds, 463 S.W.3d 867 (Tex. 2015). The 

answer is yes.

In the letter responding to the Association’s pre-suit notice, 

counsel for the Cashions stated:

If the HOA elects to files suit making any of the allegations 

claimed in your letter, Mr. and Mrs. Cashion will file a 

counter-claim seeking damages for harassment, violation of 

the rules and regulations, DCCR and authority of the Board 

of the HOA, and join each member of the Board in the 

lawsuit for acting beyond the scope of their authority. Mr. 

and Mrs. Cashion will also seek an injunction against 

further harassment by the HOA and its board of directors 

and costs and attorney’s fees. CR 130.

To further support the position of the Appellant that the pre-suit 

notice “is the specific conduct complained of, from which all the other 

allegations of wrongdoing emanate and around which they revolve 

. . . the act that led to Appellees’ claims,” one need look no further than 

the Cashions’ petition. 

The petition is a mere ten pages long, including a case style, 

signature block, and verification page. CR 7–16. After three pages of 
14

prefatory information on the parties, the petition contains a four 

paragraph “facts” section:

• The first “fact” paragraph involves only background 

information on the Property and the Association. CR 9–

10. 

• The second “fact” paragraph begins “[o]n or about 

December 24, 2014 (Christmas Eve) the Cashions

received a letter from Long Canyon at their residence 

in Travis County . . .” CR 10. 

• The third “fact” paragraph states “[t]he letter includes 

false and unsupported claim (sic) that “during the past 

two years you (the Cashions) have unlawfully damaged 

this drainage easement and expanded your landscaped 

law (sic) into the easement.” CR 10. 

• The fourth (and last) “fact” paragraph discusses an 

alleged “pattern of harassment” including 

“monitor[ing] visitors,” “watch[ing] whenever someone 

comes to work in the yard,” mak[ing] their presence 

known,” “trespass[ing] on the Cashion’s (sic) property,” 

and tak[ing] pictures of the Cashion’s (sic) property 

without their consent.” CR 10.

After the “facts” section, the petition contains a one-page, fiveparagraph “causes of action” section:

• The first “causes of action” paragraph “incorporates by 

reference the factual allegations contained in 

paragraphs 13–16.” CR 11.

• The second “causes of action” paragraph states “Long 

Canyon and the Board have a duty to supervise all

officers, agents and employees of Long Canyon and to 
15

see that their duties are being properly preformed. 

Long Canyon and the Board breached that duty by 

allowing individual Board members to harass the 

Cashions over matters that are not permitted under 

the Declaration, ACC rules and HOA by-laws.” CR 11.

• The third “causes of action” paragraph states “Long 

Canyon and the Board acting in bad faith, intentionally 

communicated through authorizing its attorney to 

write in a coarse and offensive manner, a letter 

addressed to the Cashions and by such action, Long

Canyon and the Board intentionally annoyed and 

alarmed the Cashions on Christmas Eve.” CR 11.

• The fourth “causes of action” paragraph states “[i]n the 

alternative, Long Canyon and the Board, acted with 

intent to cause emotional distress to the Cashions. By 

targeting the Cashions, the defendants conduct was 

extreme and outrageous. The actions of the defendants 

caused the Cashions emotional distress. The emotional 

distress suffered by the Cashions was severe.” CR 11.

• The fifth “causes of action” paragraph states “[t]he 

Cashions seek damages within the jurisdictional limits 

of this court.” CR 11.

Analyzing the petition, half of the factual allegations relate to the 

Association sending the pre-suit notice. CR 10. These “facts” are then 

use to support one full “cause of action” for the “bad faith and 

intentional . . . annoy[ance] and alarm [to the] Cashions on Christmas 

Eve.” CR 11. The remaining “causes of action” use the three substantive 

“fact” paragraphs, two of which involve the Association’s pre-suit notice, 
16

to support the remaining allegations of negligence, intentional infliction 

of emotional distress, trespass, and perhaps, though not artfully pled, 

private nuisance. CR 11. 

From a review of the petition, the Association sending the pre-suit 

notice “is the specific conduct complained of, from which all the other 

allegations of wrongdoing emanate and around which they revolve 

. . . the act that led to Appellees’ claims.” Sierra Club v. Andrews 

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

judgment rev’d on other grounds, 463 S.W.3d 867 (Tex. 2015). 

Accordingly, the Cashions’ lawsuit violated two important 

constitutional rights of the Association.

1. The Cashions’ lawsuit infringes on the Association’s 

constitutional right to petition.

The Cashions’ lawsuit should be dismissed because all the claims 

are based on, related to, or in response to the Association’s exercise of 

their right to petition. Under the TCPA, a defendant exercises its right 

to petition when it makes a communication pertaining to a judicial 

proceeding. Id. at §27.001(4). A communication includes the making or 

submitting of a statement or document in any form or medium, 

including written. 
17

In the Cashions’ Original Petition, the Cashions claim that the 

Association is liable for negligence, bad faith, intentional infliction of 

emotional distress, declaratory judgment, and an injunction because the 

Association sent the Cashions the 209 Letter informing the Cashions’

that they were in violation of the Declaration for harming a protected 

drainage easement, and if they did not cure the violation, the 

Association would seek relief in a judicial proceeding. CR 7–16. In 

construing the TCPA liberally, the Cashions’ claims fall within the 

scope of the TCPA because they are based on, related to, or in response 

to a communication made by the Association in exercising its right to 

petition. Tex. Civ. Prac. & Rem. Code § 27.001(4).

Under Section 209.006 of the Texas Property Code, before a 

property owners’ association is allowed to file a lawsuit (i.e. judicial 

proceeding) or levy a fine against a homeowner, the property owners’

association must first give written notice to the homeowner. Tex. Prop. 

Code § 209.006(a). For a property owners’ association, a pre-suit notice

pursuant to Section 209.006 is the first required step in seeking relief 

through a judicial proceeding. Therefore, when the Association—a 

property owners’ association—mailed the 209 Letter to the Cashions, it 
18

was simply attempting to comply with Section 209.006 in order to 

obtain relief in a judicial proceeding. By its fundamental nature, the 

209 Letter is communication pertaining to a judicial proceeding and is 

protected under the TCPA. 

Deed restriction violation lawsuits—if not most lawsuits—are 

rarely filed without some form of prior written efforts by the parties to 

attempt to resolve the litigation before it is filed. Indeed, in Texas, a 

deed restriction violation suit requires pre-suit notification of the 

violation to the homeowner. The Cashions argue that pre-suit efforts to 

resolve a legal dispute before actually filing the lawsuit should not be 

protected under the TCPA. This would defeat the purpose of the broad 

protection of the TCPA and is contrary to the language of the Act. For 

these reasons, pursuant to the TCPA, the Cashions’ lawsuit should be 

dismissed and the trial court should be reversed.

2. The Cashions’ lawsuit infringes on the Association’s 

constitutional right of association. 

The Cashions’ legal action should be dismissed because it is based 

on, related to, or in response to the Association exercising its right of 

association. Under the TCPA, a defendant exercises its right of 

association when it communicates with individuals that are joined 
19

together to collectively express, promote, pursue, or defend common 

interests. Tex. Civ. Prac. & Rem. Code § 27.001(2). A “communication” 

includes submitting a written statement or document, such as a pre-suit 

notice. Id. at § 27.001(1).

The Cashions claim that the Association is liable for negligence, 

bad faith, intentional infliction of emotional distress, declaratory 

judgment, and an injunction because the Association sent the Cashions

a pre-suit notice asking the Cashions to cure damages they caused to 

the environmentally sensitive drainage easement abutting the 

Cashions’ backyard. 

To exercise the right of association is to: (1) send a 

communication; (2) between individuals; (3) who are joined together; (4) 

to collectively express, promote, pursue, or defend common interests. Id.

at § 27.001(2). First, it is undisputed that the 209 Letter is a 

“communication” as defined under the TCPA. The 209 Letter was a 

document submitted in written form. Id. at §27.001(1). Second, the 209 

Letter was sent between individuals; the Association and the Cashions. 

Third, the Cashions and the Association were joined together. Fourth, 

the Association was formed to collectively express, promote, pursue, or 
20

defend various common interests of the Association. One of those 

interests was protecting drainage easements, as expressly stated in the 

Declaration.

Therefore, when the 209 Letter was sent to the Cashions, it was 

sent to individuals who were joined together to express, promote, 

pursue, and defend the preservation of the drainage easement, and the 

pre-suit notice was sent regarding the expression, promotion, pursuit, 

and defense of the drainage easement. That is why this lawsuit, in 

response to the 209 Letter, is an attempt to prevent the Association

from exercising its right of association. For these reasons, pursuant to 

the TCPA, the Cashions’ lawsuit should be dismissed and the trial court 

should be reversed.

3. The Cashions failed to establish, by clear and specific 

evidence, a prima facie case for each essential element 

of the claim in question. 

Because the Cashions’ legal action is based on, relates to, or is in 

response to the Association’s right to petition and the right of 

association, the burden shifts to the Cashions to establish, by clear and 

specific evidence, a prima facie case for each essential element of the 

claim in question. Id. § 27.005(b)–(c). “Conclusory statements are not 
21

probative and accordingly will not suffice to establish a prima facie 

case.” Serafine v. Blunt, 03-12-00726-CV, 2015 WL 3941219, at *3 

(Tex. App.—Austin June 26, 2015, no pet.) (citing Better Bus. Bureau of 

Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 

(Tex. App.—Houston [1st Dist.] 2013, pet. denied; Lipsky II, 460 S.W.3d 

at 592 (explaining that “bare, baseless opinions” are not “a sufficient 

substitute for the clear and specific evidence required to establish a 

prima facie case” under the Act)). The Cashions did not meet this 

burden.

The petition contains a one-page, five-paragraph “causes of action” 

section:

• The first “causes of action” paragraph “incorporates by 

reference the factual allegations contained in 

paragraphs 13–16.” CR 11.

• The second “causes of action” paragraph states “Long 

Canyon and the Board have a duty to supervise all 

officers, agents and employees of Long Canyon and to 

see that their duties are being properly preformed. 

Long Canyon and the Board breached that duty by 

allowing individual Board members to harass the 

Cashions over matters that are not permitted under 

the Declaration, ACC rules and HOA by-laws.” CR 11.

• The third “causes of action” paragraph states “Long 

Canyon and the Board acting in bad faith, intentionally 

communicated through authorizing its attorney to 
22

write in a coarse and offensive manner, a letter 

addressed to the Cashions and by such action, Long 

Canyon and the Board intentionally annoyed and 

alarmed the Cashions on Christmas Eve.” CR 11.

• The fourth “causes of action” paragraph states “[i]n the 

alternative, Long Canyon and the Board, acted with 

intent to cause emotional distress to the Cashions. By 

targeting the Cashions, the defendants conduct was 

extreme and outrageous. The actions of the defendants 

caused the Cashions emotional distress. The emotional 

distress suffered by the Cashions was severe.” CR 11.

• The fifth “causes of action” paragraph states “[t]he 

Cashions seek damages within the jurisdictional limits 

of this court.” CR 11.

The first “cause of action” (second paragraph) was non-suited and 

is not at issue. CR 147–148. 

The second “cause of action” (third paragraph) states “Long 

Canyon and the Board acting in bad faith, intentionally communicated 

through authorizing its attorney to write in a coarse and offensive 

manner, a letter addressed to the Cashions and by such action, Long 

Canyon and the Board intentionally annoyed and alarmed the Cashions 

on Christmas Eve.” CR 11. This purports to be a cause of action for “bad 

faith.” 

Appellant has found no authority supporting a cause of action for 

“bad faith” against a homeowner’s association, and further, no authority 
23

that a homeowner’s association owes a common-law duty of “good faith 

a fair dealing.” 

If this paragraph is instead construed as an action for private 

nuisance, the Cashions failed to establish the conduct complained of

affected “property rights and privileges in respect to the use and 

enjoyment of the land . . .” Hot Rod Hill Motor Park v. Triolo, 293 

S.W.3d 788, 790 (Tex. App.—Waco 2009, pet. denied). The Cashions 

further failed to show that the alleged “annoy[ance] and alarm[ ]” were 

a result of “a deprivation of enjoyment of real property.” Id. Further, 

this “cause of action” contains the conclusory statement that the 

Association “intentionally annoyed and alarmed the Cashions.”

The third “cause of action” (fourth paragraph) states “[i]n the 

alternative, Long Canyon and the Board, acted with intent to cause 

emotional distress to the Cashions. By targeting the Cashions, the 

defendants conduct was extreme and outrageous. The actions of the 

defendants caused the Cashions emotional distress. The emotional 

distress suffered by the Cashions was severe.” CR 11. 

This “cause of action” is rife with conclusory statements. 

“Conclusory statements are not probative and accordingly will not 
24

suffice to establish a prima facie case.” Serafine v. Blunt, 03-12-00726-

CV, 2015 WL 3941219, at *3 (Tex. App.—Austin June 26, 2015, no pet.). 

Specifically, the “cause of action” paragraph for intentional infliction of 

emotional distress states:

• Long Canyon and the Board, acted with intent to cause 

emotional distress to the Cashions;

• The defendants conduct was extreme and outrageous;

• The emotional distress suffered by the Cashions was 

severe.

CR 11. These conclusory statements are insufficient as a matter of law 

to establish the requisite prima facie case. For these reasons, pursuant 

to the TCPA, the Cashions’ lawsuit should be dismissed and the trial 

court should be reversed.
25

PRAYER

For these reasons, and all the reasons set forth above, the Trial 

Court’s Order Denying the Association’s Motion to Dismiss Pursuant to 

the Texas Citizens Participation Act should be reversed. Accordingly, 

Long Canyon Phase II and III Homeowners Association, Inc. requests 

this Court reverse the judgment of the Trial Court, and for such other 

and further relief to which Appellant may be entitled.

Respectfully submitted,

ROBERTS MARKEL WEINBERG

BUTLER HAILEY PC

/s/ Frank O. Carroll III

_________________________________

FRANK O. CARROLL III

TBA No. 24082785

DAWN S. HOLIDAY

TBA No. 24046090

AMY M. VANHOOSE

TBA No. 24042085

2800 Post Oak Blvd, 57th Floor

Houston, TX 77056

(713) 840-1666

Fax: (713) 840-9404

fcarroll@rmwbhlaw.com

dholiday@rmwbhlaw.com

avanhoose@rmwbhlaw.com

ATTORNEYS FOR APPELLANT,

LONG CANYON PHASE II AND III 

HOMEOWNERS ASSOCIATION, INC.
26

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4 i(3) of the Texas Rules of Appellate 

Procedure, I certify that the word count in this Appellant’s Brief is

4,361 words.

/s/ Frank O. Carroll III

____________________________________

FRANK O. CARROLL III

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing 

instrument was served upon the parties listed below by facsimile, 

messenger, regular U.S. Mail, certified mail, return receipt requested 

and/or electronic service in accordance with the Texas Rules of 

Appellate Procedure on this the 1st day of October, 2015.

William C. Davidson 

bdavidson@chmc-law.com

CHAMBERLAIN MCHANEY

301 Congress, 21st Floor

(512) 474-9124 Telephone

(512) 474-8582 Facsimile

ATTORNEY FOR APPELLEES

/s/ Frank O. Carroll III

_________________________________

FRANK O. CARROLL III
27

APPENDIX

TAB 1: Tex. Civ. Prac. & Rem. Code Ann. § 27.001 et. seq.

(West 2012)

TAB 2: Tex. Prop. Code Ann. § 209.001 et. seq. (West 2012)

TAB 3: Trial Court Order Denying Motion to Dismiss
TAB 1

T.C.P.R.C. § 27.001 et. seq.
Tex. Civ. Prac. & Rem. Code § 27.001

This document is current through the 2015 regular session, 84th Legislature,

S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B.

835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B.

1985 (ch. 4).

Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code

> Title 2 Trial, Judgment, and Appeal > Subtitle B Trial Matters > Chapter 27 Actions

Involving the Exercise of Certain Constitutional Rights

Sec. 27.001. Definitions.

In this chapter:

(1) “Communication” includes the making or submitting of a statement or

document in any form or medium, including oral, visual, written,

audiovisual, or electronic.

(2) “Exercise of the right of association” means a communication between

individuals who join together to collectively express, promote, pursue, or

defend common interests.

(3) “Exercise of the right of free speech” means a communication made in

connection with a matter of public concern.

(4) “Exercise of the right to petition” means any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to

administer the law;

(iii) an executive or other proceeding before a department of the

state or federal government or a subdivision of the state or federal

government;

(iv) a legislative proceeding, including a proceeding of a legislative

committee;

(v) a proceeding before an entity that requires by rule that public

notice be given before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or

eleemosynary institution supported directly or indirectly from public

revenue;
(vii) a proceeding of the governing body of any political subdivision

of this state;

(viii) a report of or debate and statements made in a proceeding

described by Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including

statements and discussions at the meeting or other matters of

public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or

review by a legislative, executive, judicial, or other governmental

body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration

or review of an issue by a legislative, executive, judicial, or other

governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an

effort to effect consideration of an issue by a legislative, executive,

judicial, or other governmental body or in another governmental or

official proceeding; and

(E) any other communication that falls within the protection of the right to

petition government under the Constitution of the United States or the

constitution of this state.

(5) “Governmental proceeding” means a proceeding, other than a judicial

proceeding, by an officer, official, or body of this state or a political

subdivision of this state, including a board or commission, or by an

officer, official, or body of the federal government.

(6) “Legal action” means a lawsuit, cause of action, petition, complaint,

cross-claim, or counterclaim or any other judicial pleading or filing that

requests legal or equitable relief.

(7) “Matter of public concern” includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.

Page 2 of 3

Tex. Civ. Prac. & Rem. Code § 27.001
(8) “Official proceeding” means any type of administrative, executive,

legislative, or judicial proceeding that may be conducted before a public

servant.

(9) “Public servant” means a person elected, selected, appointed, employed,

or otherwise designated as one of the following, even if the person has

not yet qualified for office or assumed the person’s duties:

(A) an officer, employee, or agent of government;

(B) a juror;

(C) an arbitrator, referee, or other person who is authorized by law or

private written agreement to hear or determine a cause or controversy;

(D) an attorney or notary public when participating in the performance of

a governmental function; or

(E) a person who is performing a governmental function under a claim of

right but is not legally qualified to do so.

History

Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17,

2011.

Texas Statutes & Codes Annotated by LexisNexis®

Copyright © 2015 Matthew Bender & Company, Inc.

a member of the LexisNexis Group. All rights reserved.

Page 3 of 3

Tex. Civ. Prac. & Rem. Code § 27.001
TAB 2

Tex. Prop. Code § 209.001 et. seq.
Tex. Prop. Code § 209.001

This document is current through the 2015 regular session, 84th Legislature,

S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B.

835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B.

1985 (ch. 4).

Texas Statutes & Codes Annotated by LexisNexis® > Property Code > Title 11 Restrictive

Covenants > Chapter 209 Texas Residential Property Owners Protection Act

Sec. 209.001. Short Title.

This chapter may be cited as the Texas Residential Property Owners Protection

Act.

History

Enacted by Acts 2001, 77th Leg., ch. 926 (S.B. 507), § 1, effective January 1,

2002.

Texas Statutes & Codes Annotated by LexisNexis®

Copyright © 2015 Matthew Bender & Company, Inc.

a member of the LexisNexis Group. All rights reserved.
TAB 3

Trial Court Order