Association motion in Texas

2011See Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex.App.-San Antonio 2008, no pet.) (recognizing necessity of determining whether motion for summary judgment was traditional or no evidence *308 motion for summary judgment before undertaking review); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex.App.-Dallas 2009, pet. denied) (same).

2011See Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex. App.—San Antonio 2008, no pet.) (recognizing necessity of determining whether motion for summary judgment was traditional or 2 Notably, however, the Trust has abandoned this claim as it formed no part of its response to the Association’s supplemental motion for summary judgment, and forms no part of its current appellate argument. -9- 04-10-00725-CV no evidence motion for summary judgment before undertaking review); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.— Dallas 2009, pet. deni

2011See Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex.App.-San Antonio 2008, no pet.) (recognizing necessity of determining whether motion for summary judgment was traditional or no evidence *308 motion for summary judgment before undertaking review); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex.App.-Dallas 2009, pet. denied) (same).

2011See Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex. App.—San Antonio 2008, no pet.) (recognizing necessity of determining whether motion for summary judgment was traditional or 2 Notably, however, the Trust has abandoned this claim as it formed no part of its response to the Association’s supplemental motion for summary judgment, and forms no part of its current appellate argument. -9- 04-10-00725-CV no evidence motion for summary judgment before undertaking review); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.— Dallas 2009, pet. deni

2007See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989).

2007See Roberson v. Robinson , 768 S.W.2d 280, 281 (Tex. 1989).

2006See Clear Creek Basin Auth. , 589 S.W.2d at 678 (providing that if nonmovant fails to file response to summary judgment motion, nonmovant can attack only legal sufficiency of movant’s summary judgment evidence on appeal).

2000See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) (stating “[t]he non-movant need not answer or respond to the motion to contend on appeal that the grounds presented to the trial court by movant are insufficient as a matter of law”).

2026See Denman, 362 S.W.3d at 144 ; Murphy, 199 S.W.2d at 299 .

2026See Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (observing that parties may judicially admit facts in their appellate briefing). 4 As we concluded with respect to Key’s argument that the Association’s initial filing of the lawsuit and the claim therein for violation of deed restrictions implicated her right of association, we likewise conclude with respect to the tortious-interference claim that Key makes no cognizable argument that such claim is based on or in response to her right of association.

2025The Trial Court erred in (b) granting, in part, the Wolfs’ motion for summary judgment.................................................................................10 PRAYER FOR RELIEF ..........................................................................................12 CERTIFICATE OF SERVICE ................................................................................13 CERTIFICATE OF COMPLIANCE .......................................................................14 iii INDEX OF AUTHORITIES CASES Bank United v. Greenway Improvement Ass’n, 6 S.W.3d 705, 707 (Tex.App.— Houston [1

2024See id; see also Stallman, 9 S.W.3d at 247 (stating that though Stallmans gave Newman permission to use road, permissive use was inconsistent with Newman’s claim of “legal right to use road”; court held that without vendor/vendee relationship, easement by estoppel cannot arise from passive acquiescence alone); Tice v. Hunt, No. 11-08-00099-CV, 2010 WL 1948602 , at *6 (Tex. App.—Eastland May 13, 2010, no pet.) (mem. op.) (holding no easement by estoppel where appellant failed to present any evidence of representation element; evidence showing permission to move road did not amount to representa

2024See ReadyOne Indus., Inc., 463 S.W.3d at 624 ; Shredder Co., 225 S.W.3d at 679 . 3 IV.

2024Co. of N.Y. v. McCollum, 656 S.W.2d 527, 528 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) (“The requirements of an enforceable stipulation are found in Rule 11 of the Texas Rules of Civil Procedure, which provides: ‘No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.’”).

2024See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam). 5 In this case, the Association set the submission date for January 6, 2023, which was the 21st day after the Hesses received electronic service by email and actual notice of the Association’s motion.

2024See id. at 650; see also Dealer Computer Servs., Inc. v. DCT Hollister Rd, LLC, 574 S.W.3d 610, 623 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (construing motion that stated it was filed under rule 166a(c) and did not reference rule 166a(i) as a hybrid motion because the movant clearly asserted a no-evidence ground attacking an essential element of the nonmovant’s claim).

2023Had the Association asserted a claim against Rosenberger in the 2013 lawsuit, then Rosenberger would have been required to assert his declaratory judgment claim at that time if it arose from the same transaction or occurrence that was the subject matter of the Association’s claim against him.11 Similarly, had Rosenberger chosen to assert a claim against the Association in the 2013 lawsuit, he would have 8 Ingersoll-Rand Co., 997 S.W.2d at 207 (“Res judicata, however, does not bar a former defendant who asserted no affirmative claim for relief in an earlier action from stating a claim in a late

2023Had the Association asserted a claim against Rosenberger in the 2013 lawsuit, then Rosenberger would have been required to assert his declaratory judgment claim at that time if it arose from the same transaction or occurrence that was the subject matter of the Association’s claim against him.11 Similarly, had Rosenberger chosen to assert a claim against the Association in the 2013 lawsuit, he would have 8 Ingersoll-Rand Co., 997 S.W.2d at 207 (“Res judicata, however, does not bar a former defendant who asserted no affirmative claim for relief in an earlier action from stating a claim in a late

2023Had the Association asserted a claim against Rosenberger in the 2013 lawsuit, then Rosenberger would have been required to assert his declaratory judgment claim at that time if it arose from the same transaction or occurrence that was the subject matter of the Association’s claim against him.11 Similarly, had Rosenberger chosen to assert a claim against the Association in the 2013 lawsuit, he would have 8 Ingersoll-Rand Co., 997 S.W.2d at 207 (“Res judicata, however, does not bar a former defendant who asserted no affirmative claim for relief in an earlier action from stating a claim in a late

2023See Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 279 (Tex. 2018).

2020P. 59.1. 3 The court of appeals cited our holding in Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 447 (Tex. 1993), for the proposition that an association can claim damage suffered by its members.

2020See id.

2019See Brar, 307 S.W.3d at 917 , 919–20 (dismissing appeal, concluding that court lacked jurisdiction to consider complaint in interlocutory appeal, and explaining that “[a]sserting jurisdiction over the merits of appellants’ complaint simply because they have characterized their interlocutory appeal as one from a temporary injunction would render section 3 51.014 and its limitations virtually meaningless”); Bobbit, 992 S.W.2d at 713 (dismissing appeal for want of jurisdiction and holding that “district court’s grant of partial summary judgment [was] non-appealable, ‘although it comes along with

2019See Brar, 307 S.W.3d at 917 , 919–20 (dismissing appeal, concluding that court lacked jurisdiction to consider complaint in interlocutory appeal, and explaining that “[a]sserting jurisdiction over the merits of appellants’ complaint simply because they have characterized their interlocutory appeal as one from a temporary injunction would render section 3 51.014 and its limitations virtually meaningless”); Bobbit, 992 S.W.2d at 713 (dismissing appeal for want of jurisdiction and holding that “district court’s grant of partial summary judgment [was] non-appealable, ‘although it comes along with

2018Under Texas law, establishing a willful and intentional act of interference requires the proponent to show that the actor who interfered “was more than a willing participant—the defendant must have knowingly induced one of the contracting parties to breach its obligations under a contract.” Lazer Spot, Inc. v. Hiring Partners, Inc., 387 S.W.3d 40 , 52 n.22 (Tex. App.—Texarkana 2012, pet. denied) (citing Funes v. Villatoro, 352 S.W.3d 200, 213 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)).

2018See id. § 27.005(c); see also In re Lipsky, 460 S.W.3d at 590 .