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CAUSE NO. 07955
FRF, INC., AND TRAIL BLAZER IN THE DISTRICT COURT OF
BUILDERS, LLC,
Plaintiff ,
JUDICIAL DISTRICT
APRIL SOUND PROPERTY
OWNERS’ ASSOCIATION, INC.,
Defendan MONTGOMERY COUNTY, TEXAS
EFENDANT PRIL ROPERTY WNERS SSOCIATION S -EVIDENCE
OTION FOR UMMARY UDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defendant April Sound Property Owners’ Association,
Inc. (“Association”), and files this, its No-Evidence Motion for Summary Judgment
against Plaintiff FRF, Inc. (“FRF”) and Plaintiff Trail Blazer Builders, LLC. (“Trail
Blazer”) (collectively “Plaintiffs”), and in support thereof would respectfully show the
Court as follows:
UMMARY OF THE RGUMENT
Plaintiffs assert claims for violation of restrictive covenants and tortious
interference with existing and prospective business relationships against the
Association. This case has been on file for more than a year, and in that time,
Plaintiffs have produced no evidence supporting any of their claims. Indeed,
Plaintiffs’ have done very little in terms of moving this case forward and have only
conducted one round of discovery requests during that time For the following
reasons, the Court should grant the Association’s No Evidence Motion for Summary
See Plaintiffs’ Original Petition, on file with the Court.
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY
UDGMENT Page 1 of 7
Judgment.
-EVIDENCE OTION FOR UMMARY UDGMENT
Standard for No Evidence Motion for Summary Judgment
Rule 166a of the permits a trial court to use summary
judgment to promptly dispose of cases that involve unmeritorious claims. Under
Rule 166a(i), a party may “move for summary judgment on the ground that there is
no evidence of one or more essential elements of a claim […] on which an adverse
party would have the burden of proof at trial.” “The court must grant the motion
unless the respondent produces summary judgment evidence raising a genuine issue
of material fact.” A fact is “material” only if it “might affect the outcome of the suit
under the governing law.” A material fact “may not be established by piling
inference upon inference” and “may not be proved by unreasonable inferences from
other facts and circumstances.”
“A no evidence summary judgment is properly granted if the non
movant fails to bring forth more than a scintilla of probative evidence to raise a
genuine issue of material fact as to an essential element of the non movant’s claim
on which the non movant would have the burden of proof at trial.” The movant is
entitled to summary judgment unless the non movant’s evidence “rises to a level that
See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678, n.5 (Tex. 1979).
See Tex. R. Civ. P. 166a(i).
(emphasis added).
See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.San Antonio 1998, pet. denied).
See Engstrom v. First Nat’l Bank of Eagle Lake, 936 S.W.2d 438, 445 (Tex. App.Houston [14th
Dist.] 1996, writ denied).
Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 71 (Tex. App. Austin 1998, no pet.).
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY
UDGMENT Page 2 of 7
would enable reasonable fair minded persons to differ in their conclusions.”
Violation of Restrictive Covenants
A claim for violation of restrictive covenants is best compared with a
breach of contract claim. herefore, the elements of a claim for violation of restrictive
covenants are: 1) the existence of a valid contract; 2) performance or tendered
performance by the plaintiff 3) material breach by the defendant; and 4) damages
sustained by the plaintiff as a result of that breach.
Plaintiffs have no evidence supporting the requisite elements of their
claim and cannot show that there was a material breach of any restrictive covenant
by the Association, nor can they show that they sustained any damages as a result of
an alleged breach of the restrictive covenants. Plaintiffs cannot provide evidence of
any requirement in the restrictive covenants that the Association must process the
complained of property reversions, as none exists, and certainly cannot provide
evidence of any damages they claim were sustained by them. Because there is no
evidence of one or more essential elements of the Plaintiffs’ violation of restrictive
covenants claim, the Association is entitled to summary judgment.
Tortious Interference with Existing Business Relationships
The elements of a claim for tortious interference with existing business
relationships are 1) the existence of a contract subject to interference 2) the act of
interference was willful and intentional 3) such intentional act was a proximate
at 71.
See Tex. R. Civ. P. 166a(i).
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ VIDENCE OTION FOR UMMARY
UDGMENT Page of
cause of plaintiff’s damages and actual damage or loss occurred
Plaintiffs have no evidence supporting the requisite elements of their
claim and cannot show: (1) any willful or intentional interference from the
Association, (2) that any alleged intentional act was a proximate cause of plaintiffs’
damages, or (3) that actual damage or loss has occurred. Plaintiffs cannot provide
evidence of any intentional or willful interference with their contract, as there is
none, and can provide evidence that an alleged intentional act was a proximate
cause of Plaintiffs’ damages. Because there is no evidence of one or more essential
elements of the Plaintiffs’ tortious interference with existing business relationships
the Association is entitled to summary judgment.
Tortious Interference with Prospective Business Relationships
The elements of a claim for tortious interference with prospective
business relationships are 1) unlawful actions undertaken without justification or
excuse 2) with intent to harm 3) actual damages and the actions were
motivated by malice
Plaintiffs have no evidence supporting the requisite elements of their
claim and cannot show: (1) any unlawful actions undertaken by the Association
much less a justification or excuse for the same, (2) that the Association intended to
10 See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991 see also Browning Ferris,
Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex. 1993)
11 See R. 166a(i).
12 See McGowan & Co., Inc. v. Bogan, 93 F.Supp.3d 624, at 655, 939 (Tex. 1991) citing Apani Sw., Inc.
v. Coca Cola Enters., Inc., 300 F.3d 620, 633 Adrain v. Genetec Inc., Civ. Action No. 2:08 CV 423,
2009 WL 3161386, at *3 (E.D. Tex. Sept. 30, 2009) (Ward, J.); see also Am. Med. Int’l, Inc. v. Giurintano,
821 S.W.2d 331, 335 (Tex. App.Houston [14th Dist.] 1991, no writ); CF & I Steel Corp. v. Pete Sublett
& Co., 623 S.W.2d 709, 715 (Tex. App.Houston [1st Dist.] 1981, writ ref’d n.r.e.).
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ VIDENCE OTION FOR UMMARY
UDGMENT Page of
harm Plaintiffs’ through any of their actions (3) that Plaintiffs’ suffered actual
damages, or ( that any alleged actions were motivated by malice. Because there is
no evidence of one or more essential elements of Plaintiffs’ claim for tortious
interference with existing business relationships, the Association is entitled to
summary judgment.
Adequate time for discovery has passed.
11. The Association is entitled to a no evidence summary judgment on
Plaintiffs’ claims for violation of restrictive covenants and tortious interference with
existing and prospective business relationships because Plaintiffs have had an
adequate time for discovery. To determine whether an adequate time for discovery
has passed, courts consider the following nonexclusive factors:
(1) the nature of the suit,
(2) the evidence necessary to controvert the motion,
(3) the length of time the case has been on file,
(4) the length of time the motion has been on file,
(5) the amount of discovery that has already taken place,
(6) whether the movant requested stricter deadlines for discovery, and
(7) whether the discovery deadlines in place were specific or vague.
12. Since filing this lawsuit on June 14, 202 , Plaintiffs have propounded
one set of Requests for Production to the Associationserved on September 27, 2021
13See R. 166a(i).
14See McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.Houston [14th Dist.] 2008, no pet.); Cmty.
Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 278 (Tex. App.El Paso 2004, no pet.).
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ VIDENCE OTION FOR UMMARY
UDGMENT Page of
Thus, as an adequate time for discovery has passed, and this no evidence motion is
proper and should be granted.
Conclusion
13. Plaintiffs have no evidence against the Association for their claims for
violation of restrictive covenants and tortious interference with existing and
prospective business relationships. Consequently, this Motion must be granted in
favor of the Association.
ONCLUSION RAYER
14. WHEREFORE, PREMISES CONSIDERED, Defendant April Sound
Property Owners’ Association, Inc. prays this Court grant its No Evidence Motion for
Summary Judgment on Plaintiffs FRF, Inc. and Trail Blazer Builders, LLC’s claims
for violation of restrictive covenants and tortious interference with existing and
prospective business relationships The Association further requests any and all relief
to which may be entitled to by this Court.
Respectfully submitted,
OBERTS ARKEL EINBERG UTLER
AILEY P.C.
ICK NDERSON
TBA No. 24059047
ONNOR ALLINGER
TBA No. 24108490
2800 Post Oak Boulevard, 57th Floor
Houston, TX 77056
Telephone: (713) 840
Facsimile: (713) 840
randerson@rmwbh.com
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY
UDGMENT Page 6 of 7
lballinger@rmwbh.com
TTORNEYS FOR EFENDANT PRIL
ROPERTY WNERS SSOCIATION
ERTIFICATE OF ERVICE
I certify that on the day of July 202 , a true and correct copy of the
foregoing document was served on all counsel of record in accordance with the Texas
Rules of Civil Procedure.
Via E Service:
James J. Burnett
The Law Office of James J. Burnett
002 Pine Brook Drive
Stafford, Texas 77478
jburnett@jamesburnett.com
(281) 703-9097
TTORNEY FOR FRF,
RAIL LAZER UILDERS LLC
________________________________________
RICK NDERSON ONNOR ALLINGER
EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY
UDGMENT Page 7 of 7
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CAUSE NO. 07955 FRF, INC., AND TRAIL BLAZER IN THE DISTRICT COURT OF BUILDERS, LLC, Plaintiff , JUDICIAL DISTRICT APRIL SOUND PROPERTY OWNERS’ ASSOCIATION, INC., Defendan MONTGOMERY COUNTY, TEXAS EFENDANT PRIL ROPERTY WNERS SSOCIATION S -EVIDENCE OTION FOR UMMARY UDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Defendant April Sound Property Owners’ Association, Inc. (“Association”), and files this, its No-Evidence Motion for Summary Judgment against Plaintiff FRF, Inc. (“FRF”) and Plaintiff Trail Blazer Builders, LLC. (“Trail Blazer”) (collectively “Plaintiffs”), and in support thereof would respectfully show the Court as follows: UMMARY OF THE RGUMENT Plaintiffs assert claims for violation of restrictive covenants and tortious interference with existing and prospective business relationships against the Association. This case has been on file for more than a year, and in that time, Plaintiffs have produced no evidence supporting any of their claims. Indeed, Plaintiffs’ have done very little in terms of moving this case forward and have only conducted one round of discovery requests during that time For the following reasons, the Court should grant the Association’s No Evidence Motion for Summary See Plaintiffs’ Original Petition, on file with the Court. EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY UDGMENT Page 1 of 7 Judgment. -EVIDENCE OTION FOR UMMARY UDGMENT Standard for No Evidence Motion for Summary Judgment Rule 166a of the permits a trial court to use summary judgment to promptly dispose of cases that involve unmeritorious claims. Under Rule 166a(i), a party may “move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim […] on which an adverse party would have the burden of proof at trial.” “The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” A fact is “material” only if it “might affect the outcome of the suit under the governing law.” A material fact “may not be established by piling inference upon inference” and “may not be proved by unreasonable inferences from other facts and circumstances.” “A no evidence summary judgment is properly granted if the non movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non movant’s claim on which the non movant would have the burden of proof at trial.” The movant is entitled to summary judgment unless the non movant’s evidence “rises to a level that See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678, n.5 (Tex. 1979). See Tex. R. Civ. P. 166a(i). (emphasis added). See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.San Antonio 1998, pet. denied). See Engstrom v. First Nat’l Bank of Eagle Lake, 936 S.W.2d 438, 445 (Tex. App.Houston [14th Dist.] 1996, writ denied). Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 71 (Tex. App. Austin 1998, no pet.). EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY UDGMENT Page 2 of 7 would enable reasonable fair minded persons to differ in their conclusions.” Violation of Restrictive Covenants A claim for violation of restrictive covenants is best compared with a breach of contract claim. herefore, the elements of a claim for violation of restrictive covenants are: 1) the existence of a valid contract; 2) performance or tendered performance by the plaintiff 3) material breach by the defendant; and 4) damages sustained by the plaintiff as a result of that breach. Plaintiffs have no evidence supporting the requisite elements of their claim and cannot show that there was a material breach of any restrictive covenant by the Association, nor can they show that they sustained any damages as a result of an alleged breach of the restrictive covenants. Plaintiffs cannot provide evidence of any requirement in the restrictive covenants that the Association must process the complained of property reversions, as none exists, and certainly cannot provide evidence of any damages they claim were sustained by them. Because there is no evidence of one or more essential elements of the Plaintiffs’ violation of restrictive covenants claim, the Association is entitled to summary judgment. Tortious Interference with Existing Business Relationships The elements of a claim for tortious interference with existing business relationships are 1) the existence of a contract subject to interference 2) the act of interference was willful and intentional 3) such intentional act was a proximate at 71. See Tex. R. Civ. P. 166a(i). EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ VIDENCE OTION FOR UMMARY UDGMENT Page of cause of plaintiff’s damages and actual damage or loss occurred Plaintiffs have no evidence supporting the requisite elements of their claim and cannot show: (1) any willful or intentional interference from the Association, (2) that any alleged intentional act was a proximate cause of plaintiffs’ damages, or (3) that actual damage or loss has occurred. Plaintiffs cannot provide evidence of any intentional or willful interference with their contract, as there is none, and can provide evidence that an alleged intentional act was a proximate cause of Plaintiffs’ damages. Because there is no evidence of one or more essential elements of the Plaintiffs’ tortious interference with existing business relationships the Association is entitled to summary judgment. Tortious Interference with Prospective Business Relationships The elements of a claim for tortious interference with prospective business relationships are 1) unlawful actions undertaken without justification or excuse 2) with intent to harm 3) actual damages and the actions were motivated by malice Plaintiffs have no evidence supporting the requisite elements of their claim and cannot show: (1) any unlawful actions undertaken by the Association much less a justification or excuse for the same, (2) that the Association intended to 10 See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991 see also Browning Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex. 1993) 11 See R. 166a(i). 12 See McGowan & Co., Inc. v. Bogan, 93 F.Supp.3d 624, at 655, 939 (Tex. 1991) citing Apani Sw., Inc. v. Coca Cola Enters., Inc., 300 F.3d 620, 633 Adrain v. Genetec Inc., Civ. Action No. 2:08 CV 423, 2009 WL 3161386, at *3 (E.D. Tex. Sept. 30, 2009) (Ward, J.); see also Am. Med. Int’l, Inc. v. Giurintano, 821 S.W.2d 331, 335 (Tex. App.Houston [14th Dist.] 1991, no writ); CF & I Steel Corp. v. Pete Sublett & Co., 623 S.W.2d 709, 715 (Tex. App.Houston [1st Dist.] 1981, writ ref’d n.r.e.). EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ VIDENCE OTION FOR UMMARY UDGMENT Page of harm Plaintiffs’ through any of their actions (3) that Plaintiffs’ suffered actual damages, or ( that any alleged actions were motivated by malice. Because there is no evidence of one or more essential elements of Plaintiffs’ claim for tortious interference with existing business relationships, the Association is entitled to summary judgment. Adequate time for discovery has passed. 11. The Association is entitled to a no evidence summary judgment on Plaintiffs’ claims for violation of restrictive covenants and tortious interference with existing and prospective business relationships because Plaintiffs have had an adequate time for discovery. To determine whether an adequate time for discovery has passed, courts consider the following nonexclusive factors: (1) the nature of the suit, (2) the evidence necessary to controvert the motion, (3) the length of time the case has been on file, (4) the length of time the motion has been on file, (5) the amount of discovery that has already taken place, (6) whether the movant requested stricter deadlines for discovery, and (7) whether the discovery deadlines in place were specific or vague. 12. Since filing this lawsuit on June 14, 202 , Plaintiffs have propounded one set of Requests for Production to the Associationserved on September 27, 2021 13See R. 166a(i). 14See McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.Houston [14th Dist.] 2008, no pet.); Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 278 (Tex. App.El Paso 2004, no pet.). EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ VIDENCE OTION FOR UMMARY UDGMENT Page of Thus, as an adequate time for discovery has passed, and this no evidence motion is proper and should be granted. Conclusion 13. Plaintiffs have no evidence against the Association for their claims for violation of restrictive covenants and tortious interference with existing and prospective business relationships. Consequently, this Motion must be granted in favor of the Association. ONCLUSION RAYER 14. WHEREFORE, PREMISES CONSIDERED, Defendant April Sound Property Owners’ Association, Inc. prays this Court grant its No Evidence Motion for Summary Judgment on Plaintiffs FRF, Inc. and Trail Blazer Builders, LLC’s claims for violation of restrictive covenants and tortious interference with existing and prospective business relationships The Association further requests any and all relief to which may be entitled to by this Court. Respectfully submitted, OBERTS ARKEL EINBERG UTLER AILEY P.C. ICK NDERSON TBA No. 24059047 ONNOR ALLINGER TBA No. 24108490 2800 Post Oak Boulevard, 57th Floor Houston, TX 77056 Telephone: (713) 840 Facsimile: (713) 840 randerson@rmwbh.com EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY UDGMENT Page 6 of 7 lballinger@rmwbh.com TTORNEYS FOR EFENDANT PRIL ROPERTY WNERS SSOCIATION ERTIFICATE OF ERVICE I certify that on the day of July 202 , a true and correct copy of the foregoing document was served on all counsel of record in accordance with the Texas Rules of Civil Procedure. Via E Service: James J. Burnett The Law Office of James J. Burnett 002 Pine Brook Drive Stafford, Texas 77478 jburnett@jamesburnett.com (281) 703-9097 TTORNEY FOR FRF, RAIL LAZER UILDERS LLC ________________________________________ RICK NDERSON ONNOR ALLINGER EFENDANT PRIL OUND ROPERTY WNERS SSOCIATION .’ -EVIDENCE OTION FOR UMMARY UDGMENT Page 7 of 7