Cosmopolitan Condominium Owners Association v. Class a Investors Post Oak, LP
01-16-00769-CV
| Tex. App. | Apr 27, 2017Background
- In 2006 adjacent landowners (Cosmopolitan and AmREIT) recorded a Temporary Use and Aerial Encroachment Agreement (the Agreement) providing for cooperation and aerial/construction easements and binding successors.
- Cosmopolitan completed its condominium tower; years later Cosmopolitan Condominium Owners Association (the Association) opposed AmREIT’s proposed Post Oak high‑rise as oversized and dangerous, sent a letter demanding a litigation hold, and questioned the Agreement’s enforceability.
- Developer (Class A Investors), successor to AmREIT’s rights, negotiated with the Association, shared studies and plans, and alleges the Association continued to oppose the project and refused to acknowledge the Agreement.
- Developer sued for declaratory judgment seeking declarations that the Agreement binds the Association, grants construction/aerial easements (e.g., crane swing), precludes nuisance claims, and bars private enforcement of City ordinances to frustrate the project.
- The Association filed a plea to the jurisdiction and moved to dismiss under the Texas Citizens Participation Act (TCPA), claiming the suit targeted its exercise of free speech/petition/association; the trial court denied the TCPA motion and plea to the jurisdiction.
- On interlocutory appeal the First Court of Appeals assumed (without deciding) the suit implicated First Amendment‑type activity but held Developer had adduced clear and specific evidence establishing a prima facie case for declaratory relief and that the Association failed to prove a defense by a preponderance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Developer established a prima facie case for declaratory relief under the UDJA such that TCPA dismissal should be denied | Developer: evidence (Association letters, board statements, president’s email) shows a real, ripening justiciable controversy over the Agreement’s enforceability and scope and would be resolved by declaratory relief | Association: no justiciable controversy; it later refused to take a position and has not sued under city ordinances | Held: Developer met TCPA nonmovant burden — clear and specific evidence of a justiciable controversy and that declarations would resolve it; TCPA dismissal denied |
| Whether TCPA applies and, if so, whether Developer’s evidence was sufficient to avoid dismissal | Developer: TCPA does not bar a suit to construe/enforce the Agreement; even if TCPA applies, Developer presented the minimal quantum of evidence required to support its claims | Association: suit relates to Association’s exercise of free speech/petition; Developer failed to adduce clear and specific evidence of each element of its claim | Held: Court assumed TCPA could apply but concluded Developer satisfied the prima facie evidentiary standard from In re Lipsky, so denial was proper |
| Whether Association proved by a preponderance of the evidence a valid defense (that it is not a proper party) to obtain dismissal | N/A (Association asserted it was not a proper party) | Association argued it was an improper party and thus dismissal warranted | Held: Issue waived — Association did not raise that argument in its TCPA motion, so appellate court declined to consider it |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (clarifies TCPA evidentiary standard: nonmovant must produce clear and specific evidence establishing prima facie case)
- Brooks v. Northglen Ass'n, 141 S.W.3d 158 (Tex. 2004) (declaratory judgment requires a justiciable controversy and that a declaration will resolve it)
- Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149 (Tex. App.—Austin 1998) (ripening seeds of controversy justify declaratory relief)
- Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013) (prima facie case under TCPA requires only minimal quantum of evidence)