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Date: 03-12-2017

Case Style:

Long Canyon Phase II and III Homeowners Association, Inc. v. Chris Cashion and Lisa Cashion

Case Number: 03-15-00498-CV

Judge: Jeff Rose

Court: Texas Court of Appeals, Third District on appeal from the County Court at Law, Travis County

Plaintiff's Attorney: Bill Davidson, Bradley Rockwell and Amy Welborn

Defendant's Attorney: Adam Robertson, Amy M. Van Hoose, Mark Rabe and Frank Carroll

Description: Long Canyon Phase II and III Homeowners Association, Inc. (“the HOA”) appeals
from an interlocutory order denying its motion to dismiss a suit by Chris and Lisa Cashion. The
parties have for several years disputed whether the Cashions’ alleged landscaping activities in a
drainage easement violate the HOA’s rules. After the HOA sent the Cashions a notice of intent to
sue for non-compliance with those HOA rules, the Cashions sued the HOA1 claiming damages from
harassment, negligence, and severe emotional distress, as well as seeking injunctive and declaratory
relief. The HOA moved to dismiss the Cashions’ suit under the Texas Citizens’ Participation Act
(TCPA), arguing that the Cashions’ suit infringed on the HOA’s exercise of its rights to associate
and to petition the government, as defined in the Act.2 The district court denied the HOA’s motion.
1 The Cashions also sued Association board members, but later nonsuited those claims.
2 See Tex. Civ. Prac. & Rem. Code § 27.003.
We will reverse the trial court’s order in part, render judgment dismissing certain of the Cashions’
claims, and affirm the remainder of the order.
Background
The Cashions are homeowners whose property is subject to covenants that mandate
membership in the HOA and restrict landscaping activities in a drainage easement that runs across
part of the Cashions’ property. The Cashions recite a history of conflict dating to 2009 when the
HOA refused to return their construction deposit on grounds that they had improperly cut trees in
the easement. The Cashions assert that they sued the HOA and recovered the deposit.
The current dispute flared when the HOA sent the Cashions a letter dated December
18, 2014, asserting that the Cashions had unlawfully damaged the drainage easement. In the letter,
the HOA board, through counsel, threatened to fine the Cashions, file suit, and seek damages.
The Cashions replied by letter dated December 23, 2014, then filed this suit in the
county court at law in February 2015. In their original petition, the Cashions complain that the
HOA, 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, [the HOA] and
the Board intentionally annoyed and alarmed the Cashions on Christmas Eve.”3 The Cashions
complain that the letter contained false and unsupported allegations regarding their conduct in the
easement from July 2013 to December 2014. The Cashions also complain that the HOA breached
its duty to supervise its representatives by allowing them to harass the Cashions over matters outside
3 The Cashions’ assertion elsewhere that they received the HOA’s December 18 letter
on Christmas Eve (December 24, 2014) is, at least if taken literally, facially at odds with the
December 23, 2014 date on their letter replying to the HOA.
2
their power. They allege that the HOA monitored visitors, watched yardworkers, made their
presence known, trespassed, and took pictures of the Cashions’ property without consent. The
Cashions complain that the HOA “acted with intent to cause emotional distress to the Cashions,”
which emotional distress “was severe.”
The Cashions assert that the HOA filed suit in district court against them on
April 1, 2015, they filed a plea in abatement in that suit, and the HOA then filed this motion to
dismiss under the TCPA. The trial court denied the HOA’s motion to dismiss without stating a
basis. The HOA appeals this denial.
TCPA Dismissal Procedure
“The purpose of the [Citizens Participation Act] 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.”4 To that end, the TCPA provides a
mechanism for dismissal of a “legal action” that is “based on, relates to, or is in response to a party’s
exercise of the right of free speech, right to petition, or right of association,”5 as defined in the Act,
and for which “the party bringing the legal action [cannot] establish[] by clear and specific evidence
a prima facie case for each essential element of the claim in question.”6 Texas courts’ brief history
4 Tex. Civ. Prac. & Rem. Code § 27.002 (“Purpose”).
5 Id. § 27.003(a).
6 See id. § 27.005(c) (“The court may not dismiss a legal action . . . if the party bringing the
legal action establishes by clear and specific evidence a prima facie case for each essential element
of the claim in question.”).
3
in applying the broadly worded TCPA has not limited application of the Act’s protections to weighty
issues of great public concern. The dismissal mechanism of the statute has been applied in cases for
fraud and barratry, 7 a suit for contamination of a water well,8 a dispute between neighbors over a
fence,9 defamation claims arising from an employment dispute,10 a snarl of competing claims arising
from discussions among horse breeders on social media,11 and a host of other types of claims.
A party moving to dismiss under the TCPA must “show[] by a preponderance of the
evidence that the [nonmovant’s] legal action is based on, relates to, or is in response to the
[movant]’s exercise of (1) the right of free speech; (2) the right to petition; or (3) the right of
association.”12 “Exercise of the right of free speech” is defined in the TCPA as “a communication
made in connection with a matter of public concern.”13 “Exercise of the right to petition” is defined,
in part, as “a communication in or pertaining to . . . a judicial proceeding” and as “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.”14 Finally, “exercise of the right
7 See James v. Calkins, 446 S.W.3d 135 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
8 See In re Lipsky, 460 S.W.3d 579 (Tex. 2015).
9 See Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015, no pet.).
10 See Combined Law Enf’t Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL
411672 (Tex. App.—Austin Jan. 31, 2014, pet. denied) (mem. op.).
11 See Backes v. Misko, No. 05-14-00566-CV, 2015 Tex. App. LEXIS 2416 (Tex.
App.—Dallas Mar. 13, 2015, pet. denied).
12 Tex. Civ. Prac. & Rem. Code § 27.005(b). These three rights are defined in
Section 27.001.
13 Id. § 27.001(3).
14 Id. § 27.001(4)(A)(I).
4
of association” is defined as “a communication between individuals who join together to collectively
express, promote, pursue, or defend common interests,”15 with “communication” being separately
defined as “the making or submitting of a statement or document in any form or medium, including
oral, visual, written, audiovisual, or electronic.”16
To avoid dismissal under a TCPA motion to dismiss, the nonmovant must “establish[]
by clear and specific evidence a prima facie case for each essential element of the claim in
question.”17 But even where a prima facie case has been made, the trial court “shall 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 nomovant’s claim.”18 In a section titled “Evidence,”
the TCPA instructs, “In determining whether a legal action should be dismissed . . . , the court shall
consider the pleadings and supporting and opposing affidavits stating the facts on which the liability
or defense is based.”19 We review de novo whether each party carried its assigned burden.20
Discussion
The HOA’s sole issue on appeal is that the trial court erred in denying the HOA’s
TCPA motion to dismiss. The HOA contends specifically that the Cashions’ claims improperly
15 Id. § 27.001(2).
16 Id. § 27.001(1).
17 Id. § 27.005(c).
18 Id. § 27.005(d).
19 Id. § 27.006(a).
20 Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.); see Rehak
Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 724–27 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied).
5
infringe on the HOA’s “exercise of the right to petition” because those claims are based on the
HOA’s letter giving notice of its intent to sue. The HOA also asserts that the Cashions’ claims
improperly infringe on its “exercise of the right of association” because the HOA’s presuit notice
was an exercise of the HOA’s right to express, promote, pursue, and defend its common interest of
preserving and protecting the drainage easements created by the neighborhood covenants.
Scope of the appeal
During the dismissal hearing, the HOA expressly withdrew the portion of its motion
that challenged the Cashions’ declaratory-judgment claims. Accordingly, the HOA’s potential bases
for reversal here are limited to the Cashions’ remaining claims seeking monetary and injunctive
relief, which are unquestionably “legal actions” potentially subject to dismissal under the TCPA.21
The HOA’s motion sought dismissal of these “legal actions” on the ground that each was predicated
factually on the “presuit notice” or “HOA” letter dated December 18, 2014, and that this letter was
TCPA-protected expression. In the letter, the HOA board, through counsel, threatens to fine the
Cashions $8,000 and sue them for $10,000 in damages, plus attorney's fees, and to place a lien on
their property to secure payment of the judgment, based on alleged violations of deed restrictions that
limited the Cashions’ use or maintenance of a portion of their property that was burdened by a
drainage easement. The HOA raised no other communication or expression on its part as the basis
for its motion, and this narrow focus has important corresponding implications for the scope of relief
the HOA can obtain on appeal.
21 In terms of the TCPA’s definition of “legal action,” these claims would “request[] legal
or equitable relief” (money damages and injunctive relief) through “a lawsuit,” “cause of action,”
“petition,” or “other judicial pleading or filing.” See Tex. Civ. Prac. & Rem. Code§ 27.001(6).
6
The HOA’s motion sought dismissal of the Cashions’ monetary and injunctive claims
in their entirety under the premise that the claims complained solely of the December 18 letter. A
review of the evidence—viewed in the light most favorable to the Cashions, as required by the
governing standard of review—reveals that the factual bases for the Cashion’s claims are much
broader than this. Although the Cashions do complain about the letter in their live petition (terming
it a “coarse and offensive” missive calculated to “alarm[],” “caus[e] emotional distress,” and even
ruin their Christmas holidays), they present it as a component of a larger “pattern of harassment” and
“bad faith” or “ultra vires” conduct by the HOA board and “some of the [HOA] members.” This
conduct, the Cashions alleged, has included “constantly monitor[ing] visitors of the Cashions,
watch[ing] whenever someone comes to work in the [Cashions’] yard, and “mak[ing] their presence
known,” as well as “trespass[ing] on the Cashions’ property and tak[ing] pictures [there] without
their consent.”
In addition to the Cashions’ pleadings, the trial court had other evidence before it that
provided further background and context regarding the nature of the parties’ dispute and the alleged
“harassment” by the HOA, including correspondence between the parties and an affidavit from Chris
Cashion. 22 Viewed in the light most favorable to the Cashions, this proof reflects that the Cashions
and the HOA had previously litigated the same issues regarding their use of the drainage easement
in 2009 after the HOA had refused to return a $10,000 deposit, ostensibly to sanction the Cashions
for deed-restriction violations, and that the Cashions had prevailed, recovering both their deposit and
22 This affidavit accompanied a written response by the Cashions to the HOA’s motion.
Citing a discrepancy in the file-stamped copy of the response contained in the clerk’s record, the
HOA insinuates that the Cashions failed to respond until after the trial court had already ruled. To
the contrary, the reporter’s record from the hearing reflects that the Cashions had presented their
response to the trial court by that time.
7
attorney’s fees. In the interim, the Cashions maintained, the HOA had inconsistently and arbitrarily
advised the Cashions that certain activities were permitted in the easement (e.g., planting grass or
removing arborist-certified dead trees) only to blindside them later with complaints about these same
acts, and had similarly singled them out for disparate treatment compared to other residents who had
been permitted even more intensive uses of the drainage easements on their respective properties.
The Cashions further complained that following the HOA’s December 18 letter, the association had
refused to explain or elaborate precisely why or how any conduct by them, including conduct that
HOA representatives had permitted, amounted to violations of the deed restrictions in the HOA’s
view. This collective body of evidence, in turn, tended to elaborate upon and support a central theme
of the Cashions in their lawsuit-that in “harassing” the Cashions, the HOA’s actors has acted out of
personal animus or spite rather than in any good-faith belief that the Cashions had actually
committed any of the deed-restriction violations of which they were accused, or at least in
any good-faith belief that the alleged violations would survive the preclusive effect of the
2009 judgment.
While the HOA disputes both the factual and legal merit of the Cashions’ allegations,
what matters initially is that the Cashions complain of a much broader course of conduct by the HOA
than merely sending the December 18 letter. And as for those factual bases beyond the December
18 letter, the HOA did not preserve any ground for dismissal in their motion.23 Accordingly, we hold
23 In this respect, this case is similar to Serafine, in which this Court distinguished between
underlying factual bases of the nonmovant’s legal actions that the movant had claimed as
TCPA-protected expression (the filing of a lawsuit and related lis pendens, which the movant had
asserted (and the Court later agreed) were the “exercise of the right to petition”) versus additional
underlying allegations of broader harassment (including some resembling the HOA’s alleged conduct
here) that the movant had not addressed in her motion. See Serafine, 466 S.W.3d at 359–60. The
Court held that the movant had met her initial burden only as to the former allegations and had
8
that the HOA has preserved a TCPA challenge to the Cashions’ monetary and injunctive claims only
to the limited extent those claims are factually predicated on the December 18 letter. Therefore, even
though the letter is, as we conclude below, a TCPA-protected expression, we will affirm the trial
court’s denial of the TCPA motion to dismiss as to the HOA’s other complained-of conduct.
The HOA met its initial burden
Regarding the Cashions’ complaints that arise from the December 18 HOA letter, the
parties join issue on appeal only over whether the December 18 letter was the HOA’s “exercise of
the right to petition” or “exercise of the right of association.”24 The HOA argues that the Property
Code’s requirement that it send notice before filing suit25 means that its December 18 presuit letter
is “a communication . . . pertaining to” “a judicial proceeding,” and therefore falls within the
protections afforded to the right to petition the government.26 We disagree. The ordinary meaning
waived any TCPA challenge to the latter. See id. at 360 (“We conclude . . . that the Blunts’
tortious-interference counterclaim is in part based on, related to, or in response to Serafine’s filing
of the suit and that their fraudulent-lien counterclaim is based on, related to, or in response to
Serafine’s filing of the lis pendens, both of which filings are exercises of Serafine’s ‘right to petition’
as the Act defines that term. . . . However, to the extent that the Blunts’ tortious-interference
counterclaim is based in part on Serafine’s alleged threats made outside the context of the lawsuit,
Serafine has not satisfied her initial burden to show that these portions of the Blunts’ counterclaims
are subject to the Act.”).
24 The Cashions do not dispute that the HOA met its initial burden as to the remaining
elements. See Tex. Civ. Prac. & Rem. Code § 27.005(b) (requiring movant to “show[] 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” one of the three protected rights).
25 See Tex. Prop. Code § 209.006(a) (“Before a property owners’ association may . . . file
a suit against an owner . . . , the association or its agent must give written notice to the owner by
certified mail.”).
26 See Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(I) (defining “exercise of the right
to petition”).
9
of the phrase “judicial proceeding”—versus, e.g., “future,” “potential,” or “threatened” judicial
proceeding—is an actual, pending judicial proceeding.27 The December 18 letter, although
undoubtedly a “communication,”28 was a presuit demand letter. As such, it did not pertain to “a
judicial proceeding” so as to be the “exercise of the right to petition” under the TCPA definition.29
Nevertheless, the December 18 letter is an exercise of the HOA’s right to petition
under the TCPA because it falls under subsection (E) of the TCPA’s definition of the “exercise of
the right to petition,” which is “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.”30
Subsection (E) reflects legislative intent that the definition be consistent with and incorporate the
nature and scope of the “right to petition” that had been established in constitutional jurisprudence.31
The established understanding under First Amendment jurisprudence, both now and at the time of
27 See Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 728–29 (Tex.
App.—Dallas 2016, pet. denied) (citing Tex. R. Civ. P. 22 (“A civil suit . . . shall be commenced by
a petition filed in the office of the clerk.”); Fed. R. Civ. P. 3 (“A civil action is commenced by filing
a complaint with the court.”); Judicial proceeding, Black’s Law Dictionary (10th ed. 2014)); see also
TGSG–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439, 441 (Tex. 2011) (“We presume
that the legislature chooses a statutes’ language with care, including each word chosen for a purpose,
while purposefully omitting words not chosen.” (citing In re M.N., 262 S.W.3d 799, 802
(Tex. 2008)).
28 See Tex. Civ. Prac. & Rem. Code 27.001(1) (defining “communication” as “the making
or submitting of a statement or document in any form or medium, including . . . written”).
29 See Levatino, 486 S.W.3d at 728–29 (holding that presuit demand letters did not pertain
to “judicial proceeding” because there was no pending litigation when sent).
30 Tex. Civ. Prac. & Rem. Code 27.001(4)(E).
31 See Serafine, 466 S.W.3d at 377–82 (Pemberton, J., concurring).
10
the TCPA’s enactment, was that presuit demand letters generally fall within the “right to petition,”32
although there is a federal circuit court case holding otherwise in the view that the petition right
embraces only communications made to or toward government and not those between private
parties.33 While the majority rule indeed appears to be founded on a policy-laden notion of courts
providing “breathing space” for the underlying right as opposed to specific support in constitutional
32 See id. (citing as examples Rock River Commc’ns, Inc. v. Universal Music Grp., Inc.,
745 F.3d 343, 351 (9th Cir. 2014) (“Under the Noerr-Pennington doctrine, [cease and desist letters
and threats of litigation are] immune from suit unless the threatened lawsuit was a “sham.” (citations
omitted)); Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1007 (9th Cir. 2008)
(“Conduct incidental to a lawsuit, including a pre-suit demand letter, falls within the protection of
the Noerr-Pennington doctrine.”) (citation omitted); Sosa v. DIRECTTV, Inc., 437 F.3d 923, 936 (9th
Cir. 2006) (“We conclude that restrictions on presuit demand letters may . . . raise substantial
Petition Clause issues if, on examination, such restrictions could impair the right of access to the
courts protected by the First Amendment.”); Primetime 24 Joint Venture v. National Broad. Co.,
219 F.3d 92, 99–100 (2d Cir. 2000) (“Courts have extended Noerr-Pennington to encompass
concerted efforts incident to litigation, such as prelitigation ‘threat letters,’ . . . and settlement
offers.”) (citations omitted); Glass Equip. Dev., Inc. v. Besten, Inc., 174F.3d 1337, 1344 (Fed. Cir.
1999)(treating”actual or threatened infringement suits” the same for purposes of Noerr-Pennington
immunity); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1560 (11th Cir. 1992) (noting that
“threats, no less than the actual initiation of litigation, do not violate the Sherman Act”) (citation
omitted); Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1367 (5th Cir. 1983) (holding that
“publicity and threats of litigation were protected by petitioning immunity”); Select Comfort Corp.
v. Sleep Better Store, LLC, 838 F. Supp. 2d 889, 896–900 (D. Minn. 2012) (observing that “[o]f the
seven . . . circuit courts that have encountered this question, six have found that the
Noerr-Pennington doctrine immunizes pre-suit demand letters, so long as those demand letters are
not a ‘sham.’”) (citations omitted).
33 See Cardtoons, L. C. v. Major League Baseball Players Ass ‘n, 208 F.3d 885, 886, 888–93
(10th Cir. 2000) (en banc).
11
text, we must presume that the 34 Legislature intended this view of the protection’s scope to
control nonetheless.35
The Cashions argue that the HOA’s underlying allegation of deed-restriction
violations (the subject of the litigation being threatened) were meritless and made in bad faith. This
is arguably an assertion that the HOA’s underlying suit would constitute “sham petitioning”—that
which is “objectively baseless” and seeks to harm a rival directly through the governmental process
itself rather than the result ostensibly sought—a category of speech that falls outside First
Amendment protection.36 However, even assuming without deciding that the sham-petitioning
exception applies, while the Cashion’s evidence might support an implied finding that the HOA
acted with the motives characteristic of sham litigation, their evidence falls short of proof that the
allegations were “objectively baseless,” which requires that “no reasonable litigant could realistically
expect success on the merits.”37 Consequently, the trial court could only conclude on this record that
the December 18 letter sufficed as the “exercise of the right to petition” and, in turn, that the HOA
had met its initial burden of showing by a preponderance of the evidence that the Cashions’ claims
34 See Sosa, 437 F.3d at 931–32 (“In determining whether the burdened conduct falls under
the protection of the Petition Clause, we must give adequate ‘breathing space’ to the right of
petition.” (citing BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002)); Select Comfort,
838 F. Supp. 2d at 897 (same).
35 See In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (orig. proceeding) (noting presumption
that Legislature crafted statute “‘with complete knowledge of the existing law and with reference to
it.’” (quoting Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)).
36 See Serafine, 466 S.W.3d at 366 (Pemberton, J., concurring) (citing Professional Real
Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–61 (1993)).
37 Id. at 383–84 (citing Professional Real Estate Inv’rs, 508 U.S. at 62).
12
are in part based on, relate to, or are in response to the HOA’s exercise of its right to petition.38 In
their response to the motion to dismiss, the Cashions noted: “Plaintiffs filed this suit in response to
the continued pattern of harassment by the HOA and the Board that is partly represented by the
Letter.”39 (Emphasis added.)
Because the December 18 letter qualifies as an “exercise of the right to petition,” we
need not address the HOA’s additional argument that the letter qualifies as the HOA’s “exercise of
the right of association.”40
Prima facie case
The HOA having met its initial burden—i.e., showing that the Cashions’ claims
arising from the December 18 HOA letter are based on, related to, or in response to the HOA’s
exercise of protected rights—the burden shifted to the Cashions to establish by clear and specific
evidence a prima facie case for each essential element of their claims.41 A prima facie case “refers
to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or
contradicted.”42 “It is the ‘minimum quantum of evidence necessary to support a rational inference
38 See Tex. Civ. Prac. & Rem. Code § 27.005.
39 To the extent that the Cashions allege in their petition of a pattern of harassment that
predates the letter, these claims would fall outside the scope of the exercise of the right of petition.
See Serafine, 466 S.W.3d at 360.
40 See Tex. Civ. Prac. & Rem. Code § 27.005(b) (requiring that legal action is based on,
relates to, or is in response to the movant’s exercise of the right of free speech, right to petition, or
right of association).
41 See id.
42 In re Lipsky, 460 S.W.3d at 590 (citing Simonds v. Stanolind Oil & Gas Co.,
136 S.W.2d 207, 209 (Tex. 1940)).
13
that the allegation of fact is true.’” 43 Conclusory statements44 and bare, baseless opinions are not
probative and accordingly do not establish a prima facie case.45
The Cashions assert that they stated claims for harassment, negligence, and
intentional infliction of emotional distress with regard to the December 18 HOA letter. They
requested injunctive relief preventing future similar actions by the HOA. They also requested a
declaratory judgment that the HOA’s actions in fining them for errant landscaping were beyond its
authority, as well as a declaration that their actions in landscaping their backyard have not violated
applicable restrictions, but as discussed above, the HOA expressly withdrew that portion of its
motion to dismiss relating to the Cashions’ declaratory-judgment claims.
The Cashions rely on Chris Cashion’s affidavit, the declarations underlying the
formation of the HOA, and the HOA’s articles of incorporation and related amendments as the
evidence to substantiate their claims. In his affidavit, Chris Cashion swore that the HOA refused in
2009 to return their construction deposit on grounds that they had violated the HOA’s declaration
by landscaping in the easement, forcing the Cashions to sue (successfully) to recover the deposit.
Chris Cashion also swears that the HOA sought in 2013 to fine them for cutting a dead tree in the
drainage easement. He further avers that board members commented about their landscaping, that
they received the HOA’s presuit letter on Christmas Eve, causing distress and mental anguish, that
43 Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per
curiam)); see, e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71,
80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (applying standard in TCPA case).
44 “Conclusory” means “[e]xpressing a factual inference without stating the underlying facts
on which the inference is based.” Conclusory, Black’s Law Dictionary (10th ed. 2014).
45 In re Lipsky, 460 S.W.3d at 592–93; see Better Bus. Bureau of Metro. Hous., Inc. v. John
Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
14
they have not disturbed or removed vegetation from the easement other than the dead tree, and that
they have not been given notice that they have violated any rule or regulation other than the alleged
attempted fine in 2013.
The Cashions did not, in their response at trial or in their brief on appeal, set out the
elements of their causes of action or apply the evidence to each element. While a criminal offense
of harassment exists,46 the Cashions have not established that a civil cause of action for harassment
exists and that evidence of the HOA’s conduct makes a prima facie case on all of the elements of
that cause.
The Cashions further claim intentional infliction of emotional distress, which
requires proof that: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct
was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and
(4) the resulting emotional distress was severe.47 To be considered extreme and outrageous, the
conduct must “go beyond all possible bounds of decency and [] be regarded as atrocious and utterly
intolerable in a civilized community. . . . Liability does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.”48 Emotional distress includes
embarrassment, fright, horror, grief, shame, humiliation, and worry, and severe emotional distress
is so severe that no reasonable person could be expected to endure it.49 Mere worry, anxiety,
vexation, embarrassment, or anger are not enough and there must be a high degree of mental pain
46 See Tex. Penal Code § 42.07.
47 See Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).
48 Id.
49 GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999).
15
and distress, but 50 evidence of a physical manifestation is not required.51 The Bruce court found the
following combination of evidence legally sufficient to show severe emotional distress: the victims
had crying spells, emotional outbursts, nausea, stomach disorders, headaches, difficulty in sleeping
and eating, stress, anxiety, depression, and fear that caused them to be prescribed medication and be
diagnosed as suffering from post-traumatic stress disorder.52 The Cashions’ assertions that they
suffered “stress and emotional distress,” that they were “annoyed and alarmed” by receiving the
December 18 letter, and that the “emotional distress suffered by the Cashions was severe” were not
clear and specific evidence of emotional distress that approached the severity described in Bruce.53
Evidence is similarly lacking concerning the Cashions’ negligence claims. The
elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and
damages proximately caused by the breach.54 The Cashions assert that the HOA has
a duty to supervise all officers, agents and employees of [the HOA] and to see that
their duties are being properly p[er]formed. [The HOA] breached that duty by
allowing individual Board members to harass the Cashions over matters that are not
permitted under the Declaration, [rules, and bylaws]. The negligence of [the HOA]
proximately caused injury to the Cashions.
The Cashions do not specify in their petition or brief the damages caused by the alleged negligence,
much less supply clear and specific evidence of those damages. Because the Cashions have failed
50 Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).
51 Krishnan v. Sepulveda, 916 S.W.2d 478, 487, n.3 (Tex. 1995).
52 See 998 S.W.2d at 618–19.
53 See id.
54 IHS Cedars Treatment Ctr. of DeSoto, Tex. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
16
to put forth a prima facie case on their claims arising from the December 18 HOA letter, we
conclude that the trial court erred by denying the HOA’s motion to dismiss the Cashions’ claims for
harassment, intentional infliction of emotional distress, and negligence. We render judgment
dismissing those claims.
The Cashions also seek injunctive relief to keep the HOA from harassing them,
causing emotional distress, and acting outside its permissible enforcement authority. To obtain a
permanent injunction an applicant must demonstrate (1) a wrongful act, (2) imminent harm,
(3) irreparable injury, and (4) no adequate remedy at law.55 The Cashions have provided evidence
they claim shows the HOA acting outside the bounds of its authority threatening fines and continued
improper limitation of the Cashions’ activities. The Cashions did not, however, provide evidence
of an irreparable injury or the absence of an adequate remedy at law, and thus did not establish a
prima facie case for injunctive relief. We conclude that the trial court erred by denying the motion
to dismiss the request for injunctive relief.56

* * *


55 See Priest v. Texas Animal Health Comm’n, 780 S.W.2d 874, 875 (Tex. App.—Dallas
1989, no writ).
56 The majority author does not take issue with the concerns raised in the concurrence, but
finds further discussion of the breadth of the TCPA unnecessary to the disposition of this appeal.
17

Outcome: We reverse that part of the trial court’s order denying the HOA’s motion to dismiss the Cashions’ claims for harassment, intentional infliction of emotional distress, negligence, and injunctive relief that are predicated factually on the December 18 letter, and we render judgment dismissing those same claims. The remainder of the order is affirmed, and the case is remanded for
further proceedings consistent with our resolution of these issues on interlocutory appeal.

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