TO THE HONORABLE JUDGE MEDINA:

Comes now JANET LEE FAGAN, the Defendant who represents:

I.

The Defendant pleads a general denial pursuant to Rule 92, Texas Rules of Civil Procedure.

II.

The Defendant states that the Plaintiff is barred and estopped from seeking the relief it requests because of the affirmative defenses of abandonment, estoppel, and waiver. The prior actions and inactions of the Plaintiff have rendered the fence restriction claims and other written prohibitions abandoned and waived. Defendant has been told in writing from the Plaintiff’s agents that all fences in excess of 6 feet are illegal and that variances cannot be granted. In this regard, during the first half of the year 1998, the Plaintiff has been given actual notice from its agents that there are 73 violations of the deed restrictions, 44 of which are labeled "fence in excess of 6 feet". Except for one supposedly illegal variance which was granted by the Plaintiff in 1998, all of such fences "in excess of 6 feet" have been there for many years. In addition to the 44 fences "in excess of 6 feet" known to the Plaintiff, there are 19 other fences "in excess of 6 feet". There are two chain link fences, which have been present for many years. With all of the fence violations, Plaintiff has arbitrarily selected only the Defendant to be sued for a fence violation. Defendant will show that the suit against the Defendant is not only groundless because of the abandonment and waiver of the fence restriction, but also primarily motivated by a viciousness and hatred of persons who are not in the inner political circle of board members in power. Defendant will further show that past and present members of the Plaintiff’s inner circle of friends are permitted to openly violate fence and other deed restrictions to the end that nothing is done against them or that a "variance" is granted - all of which is not available to persons not in the personal and political circle of power of the board of directors.

III.

The Plaintiff gave the Defendant the express permission and authority to build the barrier in question, and therefore specifically waived any right to sue the Defendant for any alleged violation of the deed restrictions. The association expressly granted the defendant the right to installed any height of barrier in her back yard, so long as it was agreeable to the neighbor who install the offensive security light which gave rise to the need for a high fence in the first place. Based upon that representation, Fagan materially changed her position and installed the fence. The Plaintiff is estopped from asserting its claims since the Defendant materially changed her position in reasonable reliance on the express grant.

The Plaintiff has by its actions ratified the existence of fences over six feet in height.

IV.

There has been a substantial change of conditions in the restricted area or surroundings so that it is no longer possible to secure the benefits of certain features of the original plan. In addition to the waiver of the enforcement of the 6-foot fence provision, the subdivision, its surroundings with the advent of high crime, and consumer developments have materially changed the restricted area. Since 1972, residents as consumers have purchased boats, which have been stored on the residential premises. Sections of the restrictions require that such boats, for example, must not be visible from the street and must therefore be placed on their trailers behind a fence. No standard boat on a trailer can be hidden behind a 6-foot fence. Since 1972, suburban crime rates have risen causing residents to install large, glaring commercial grade security lights, which glare onto and into their neighbor’s back yards and homes, such as the case here. A 6-foot fence is not capable of preserving the privacy of the residents with the proliferation of legal security lights. Since 1972, the residents have installed many swimming pools and decks for their private family use. Six-foot fences do not provide privacy to those residents. Defendant was also given permission to construct a deck, which was installed. All of these legal developments have created conditions, which no longer make it possible to secure the benefits of the antiquated 6-foot fence rule.

Since 1972, suburban crime rates have risen causing residents to install large, glaring commercial grade security lights, which glare onto and into their neighbor’s back yards and homes, such as the case here. A 6-foot fence is not capable of preserving the privacy of the residents with the proliferation of legal security lights. High crime rates have invaded the area when such conditions did not exist in 1972. Fences in excess of 6 feet are therefore reasonable at this time. This condition of requiring increased safety with higher and stronger fences is a material change in its own right. As a result of higher crimes in the area, residents have devised the method of placing high-powered security lights in and around their front and back yards. These lights are so powerful that adjacent residents have requested for years, as has the Defendant, that a higher fence be allowed in order to enjoy one’s house and yard without the intrusion of the neighbor’s high intensity security lights.

Attractive and higher fences are a part of the normal renovations and improvements of the area, while such activities were not a part of 1972 concepts. The fence is at best a trivial and technical violation. The fence is an improvement, which does not affect the other lot owners’ enjoyment of their premises for residential use. The fence, in fact, is a minor change in the outward appearance of the residence, which enhances the value of other homes in the subdivision.

The association changed its approval methods concerning the allowance of fences in excess of 6 feet and many other limitations found in the restrictions. The restrictions call for approvals for certain changes to be approved by an architectural committee. Since 1972, the association has changed this requirement by inaction and the permission by waiver or failure to take action as well as by affirmatively approving "variances" from the restrictions by express approval of the Board of Directors or persons in charge of the architectural committee. The exercise of the approval authority of the architectural committee in the instant case was unreasonable, arbitrary and capricious.

Traffic has increased causing speed bumps to be placed in the street next to the house. Increased traffic has caused a loss of privacy requiring a higher fence. The Plaintiff has actual knowledge of this fact and has participated in programs with the City of Houston by installing a public sidewalk on Defendant’s property and by participating in the installation of speed bumps on the Defendant’s street in an effort to slow down the large increase in traffic. The Defendant’s house is the only house that faces a major street. It is the only house in all of the section so situated and establishes the need for a higher privacy fence. The Defendant’s home is in a unique capacity in the subdivision.

V.

The Plaintiff does not have the capacity to sue the Defendant.

VI.

The Plaintiff has abandoned the 6-foot fence restriction. Further, the Plaintiff has been inconsistent in is application of the antiquated restriction. The enforcement of a waived deed restriction against the Defendant as to fences with the actual knowledge of the existence of the same or similar fences in existence numbering at least 44, for many years. The enforcement of a waived deed restriction against the Defendant as to fences with the actual knowledge of the existence of the same or similar fences in existence, numbering at least 63, for many years, with the express intention of causing legal expense and duress to the Defendant, under the groundless notion of "making an example" of the Defendant. The express representation in a public meeting before many members and witnesses that the Defendant’s 8 foot fence/barrier would be permitted so long as the neighbors agreed, and, the subsequent filing of a lawsuit to force the Defendant to remove the fence after the Defendant reasonably relied upon the express representation.

VII.

In balancing the equities of the parties, it is inequitable to enforce the antiquated 6-foot fence rule under the circumstances of this case.

VIII

The Plaintiff is guilty of banning the Defendant from her rights to substantive and procedural due process as a fully paid, and in fact an over-paid member of the Plaintiff association. The actions of the association include the refusal to allow participation in the making of complaints and the obtaining of information. For example, the Defendant will show that in July, 1998, she delivered letters to the Board of Directors evidencing that an illegal building was in existence in an adjacent property. This is the same building to which the glaring security light is attached. Defendant wrote the association and placed it on notice of the illegal out building. In the August 26, 1998, regular meeting of the Board of Directors, she was told that the Board would "discuss it in executive session and we will write you a letter", or words to that effect. No letter or other response was received. In the September 24, 1998 regular meeting, your Defendant again requested information and stated that no letter was received. The response from the Board of Directors was that there was a "statute of limitations problem" or words to that effect. The Board also stated on October 22, 1998 that the agent of the BPCIA, Lori E. Alderson, had told them to answer no further questions from Fagan concerning deed restrictions, even though she is a fully paid member and is entitled to participate in the community.

These actions of the BPCIA evidence that the Plaintiff, through its agents, officers and directors, Lori E. Alderson, Mark Richardson, Gregory Propps, John Constantino, Alex Huhn, Gerald Mignogna, Mattie Shires, Ken Couch, Tom Bailey, Elmer Crosby, III, and Janie Chapman have agreed to unlawfully exclude Fagan from participation in the association’s activities, a right granted to all members.

As a result of a large, commercial and intrusive security light installed by the rear neighbor of Defendant (Cunningham who placed the security light on an illegal building), Fagan began in 1996 to request that the barrier made the subject of this case be granted a variance from the Architectural Control Committee. Plaintiff denied this, in writing, arbitrarily citing the 6 foot fence restriction, and reciting that no variances were allowed, well knowing that at least 63 other substantial fence violations in the subdivision had long been a common feature since 1972. Fagan and her husband were told by Mark Richardson, past president and a political insider of the Plaintiff, that she should "hold on for a while because we are working on amending the restrictions to permit 8 foot fences", or words to that effect. The restrictions amendment committee was started and the original proposal was for an 8-foot range of fences to be allowed. After the present, bogus lawsuit was filed, Richardson personally engineered the elimination of that promise and in February, 1998, the proposed amendment "suddenly" was reduced to 6 ½ feet for fences. After August of 1996, Fagan and her husband continued for many months to be annoyed by the commercial security light on the illegal building of the rear neighbor and finally attended a monthly meeting of the Board of Directors of the Plaintiff in September, 1997. Defendant again requested that the 8-foot fence be permitted to block out the security light. At this meeting, Mark Richardson, then president and one of the leaders of the insider political clique of the Plaintiff stated before many witnesses that "We do not want to get involved in this security light problem. Just go work it out with your neighbor", or words to that effect. Public members, Janet Fagan and the Board of Directors left the meeting with the understanding that an 8 foot ranged fence was approved, if it was agreeable with Fagan and her two neighbors. Based upon the representations of Richardson and the agreement of those present on the Board of Directors present at that meeting, your Defendant constructed the fence, and the neighbors paid for one half of the fence. Shortly thereafter, Plaintiff threatened suit and then filed a suit to compel Fagan to destroy the fence and to pay attorney’s fees to the Plaintiff.

During 1998, the aiding and abetting current president of the Plaintiff, Gerald Mignogna, stated to more than one person that the suit against Fagan would be continued "to make an example of her", or words to that effect. Such actions by the Plaintiff are vicious, malicious and intentional acts designed solely to inflict emotional and economic distress upon your Defendant. All of such actions have been undertaken with full knowledge that the fence restrictions in the deed restriction had been ignored for many years, and in fact changed by acquiescence and permission.

IX

During the course of this litigation, the Plaintiff association was not through with the manipulation and harassment of the Defendant. After this suit was filed, Fagan will show that she requested that documents of the Plaintiff be produced which related to this case including directors minutes, actions taken concerning prior violations in Section II and other complaints. In April 1998, the agent of the Plaintiff, Lori E. Alderson, stated that the documents were available for inspection and copying at the association’s office. Janet Fagan requested that her husband go to those offices with her attorney, the undersigned, to get copies of those documents. Upon arrival, Lori E. Alderson accosted Mr. McNeill and Mr. Lehmann and Alderson refused to let Mr. McNeill be present. In order to remain polite and to obtain the necessary documents, the undersigned requested that all of the documents be copied and that he would pay for the copying. This was agreed and a mere 136 pages of documents were delivered to the Defendant’s attorney the next Monday. Thereafter, Alderson filed documents, which obstructed Janet Fagan’s efforts to gain more information. It required a motion to be filed with the Judge of this Court to Compel the production of relevant documents. Thereafter, Alderson produced, in September, 1998, another partial set of documents of about 200 pages that the Plaintiff had in its possession all along. In October, 1998, Fagan discovered for the first time that there were over 5000 documents available for discovery, all of which had been produced by Alderson one year earlier in a lawsuit between the Plaintiff and another resident named Frank Coselli.

Plaintiff, by and through its agents, officers and directors, Lori E. Alderson, Gregory Propps, John Constantino, Alex Huhn, Gerald Mignogna, Mattie Shires, Ken Couch, Tom Bailey, and Elmer Crosby, III, have continuously obstructed and hindered Fagan from gaining relevant information and from participating in her membership in the association, all at the direction and instruction of the Plaintiff and its agents, officers and directors, Lori E. Alderson, Mark Richardson, Gregory Propps, John Constantino, Alex Huhn, Gerald Mignogna, Ken Couch, Tom Bailey, and Elmer Crosby, III. The actions of Alderson are a continuation of the fraud and pattern of misconduct of the Plaintiff designed to damage Fagan.

Further during the course of the case, the Plaintiff was not finished with the manipulation and the making of false representations to Janet Fagan and her husband. Without any solicitation, Alderson delivered a letter to Fagan’s attorney offering to settle this case. The letter is attached hereto as Exhibit "1". Shortly after receiving the letter, Fagan’s husband encountered Janie Chapman in the neighborhood and Chapman asked whether the letter requesting that this case might be settled in a mediation had been received. Mr. McNeill stated that the letter that they had received was an ultimatum requiring that Fagan pay $5,000 and that Fagan’s legal fence be replaced within 30 days. Chapman faked the appearance to be surprised to hear that reply and stated that Alderson had been authorized by the Board of Directors only to deliver a letter to Fagan’s attorney to offer that the case be settled by a mediation of the issues. Chapman claimed that Alderson had only been authorized to offer mediation. Thereafter, Fagan’s husband encountered the then president of BPCIA, Gerald Mignogna in the neighborhood. Mignogna met with Mr. McNeill and faked an inquiry about the letter from his agent Alderson supposedly to ask about a "mediation" to settle this case. Mr. McNeill informed the perpetrator Mignogna that the letter, Exhibit "1", was a demand for attorney’s fees of $5000 and the destruction of Fagan’s legal fence. Mignogna faked surprise and fraudulently stated that "that was not what the directors instructed Alderson to send you. You were supposed to be sent a letter asking about the possibility of settling the case in a mediation", or words to that effect. The phony actions of Chapman and Mignogna were a continuation of the fraud upon Fagan and her husband, specifically designed to further manipulation and this frivolous lawsuit and to continue the domination of the "insider" control of Mark Richardson and the agents, officers and directors of BPCIA, Lori E. Alderson, Mark Richardson, Gregory Propps, John Constantino, Gerald Mignogna, Ken Couch, Tom Bailey, , and Elmer Crosby, III.

X

Defendant requested to build, was granted authority to build and is now sued for building an 8-foot privacy fence due to the large security light attached to the illegal building of the rear neighbor. The manipulative actions of the Plaintiff occur simultaneously with the many present and open violations of the deed restrictions, or the granting of "variances" (also known as "special favors") by present and past members of the Boards of Directors itself. The association ignores present, continuing and blatant violations by directors. Ken Couch stated in the September, 1998 open meeting that when he was a former board member and in charge of deed restrictions a few years ago, that he had granted a variance to Lester O. Wall and Mary Ann Wall, also a friend and board member at that time, for an 8 foot fence because of a glaring security light from her neighbor, in Section II. At that time, Ken Couch was in charge of Deed Restrictions. See Exhibit #2. Elmer Crosby, III, a current member of the Board of Directors, is in possession of a residence in Section II, which now has a metal structure extending beyond the back building line and Crosby stores a mass of equipment in his yard taking up the entire back yard, all in violation of the deed restrictions for Section II.

It is further evidence that the Plaintiff harasses residents with petty charges and with areas of demanded performance over which there is no authority to exercise control. In the November, 1998, Newsletter, Board of Director Tom Bailey wrote under the heading "Deed Restrictions" that there were tree-cutting limits and that there were "a number of homes with mildew. See Exhibit #3. The board of directors also force residents in various sections to comply with restrictions that do not exist.`

XI

On February 3, 2000, in furtherance of the arbitrary, capricious and discriminatory treatment and selective enforcement actions of the Plaintiff, the Defendant was prevented from voting in the Plaintiff’s public election for directors. The reason contrived was that she had not paid the highly contested demand for $55 in attorney’s fees from Alderson in a 1997 letter. The attorney’s fees claim from the Plaintiff’s outside counsel was arbitrarily called an "assessment" that was not paid. Fagan has always timely and fully paid every annual assessment. Such actions of the Plaintiff evidence the vicious and arbitrary intent of the Plaintiff to "get" the Defendant and to "make an example of her", regardless of her civil right to vote in the public election. Fagan will show that the only criteria to vote in the elections of the association are found in the deed restrictions. The deed restriction states at paragraph 26, "Every owner of a lot which is subject to assessment shall be a member of the Association." There are no other qualifications, which validly apply to a lot owner’s ability to vote. The vote of the Defendant, Fagan, was denied in retaliation for being the Defendant in this case and for the reason that her husband, Harold McNeill, was one of the seven candidates for director of the association.

WHEREFORE, premises considered, the Defendant prays that upon final hearing that the Plaintiff take nothing and that the Defendant be awarded her costs and such other and further relief that she may be entitled to receive.