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More neighbors sued over restrictive covenant

Wednesday, August 10, 2016 by Jo Clifton

Attorneys for Mark Dawson Homes have made good on the threat to sue 61 homeowners in the Crestview neighborhood’s Meadowlawn subdivision, claiming that the lawsuit is the only avenue they have to remove a restrictive covenant that might prevent the developer from building what it wishes to build on property at 7801 Mullen Drive.

Initially, the attorneys, Alex Valdes and Scott Courtney of the Winstead law firm, sued just 21 neighborhood members: those who had threatened to sue Dawson. The new suit adds 40 additional defendants, none of whom were part of the group trying to enforce the covenant. Valdes and Courtney initially said they would be seeking up to $100,000 in attorney’s fees. The new petition seeks an unspecified amount in attorney’s fees.

One of those homeowners who was served with the lawsuit on Friday notified the Austin Monitor because of our previous story. Several members of the neighborhood had threatened to sue the developer because they believed that the proposed house and granny flat would violate a restrictive covenant imposed in 1950. But the homeowner who contacted the Monitor was not one of those threatening to sue.

In addition to being served with the lawsuit, the homeowner received an agreement that Dawson Homes’ attorneys want property owners to sign in order to avoid being liable for attorney’s fees should Dawson Homes win the lawsuit. That agreement states that the owner agrees with Dawson Homes’ arguments that provisions of a 1954 restrictive covenant are “void … and do not apply to the property.”

The homeowner, who wished to remain anonymous, said Monday, “They’re trying to make it seem like they’re the good guys in letting us out of any liability, but they are also threatening attorneys fees and all of that if we don’t sign this release. So it really feels like they’re trying to bully all the residents into signing the release or agreement.”

“I don’t think they’re being fair, and I don’t think they’re representing all facts (accurately),” he said. “I don’t know. I feel like they’re being dishonest.”

Courtney referred calls from the Monitor to Valdes, and Valdes did not return a call requesting comment.

One local attorney who is not involved in the litigation observed that the Dawson Homes’ suit sounds like a “SLAPP suit” – a strategic lawsuit against public participation. SLAPP cases that the Monitor found did not match the facts in this case, but the defendants are free to ask the judge to consider whether this is such a lawsuit.

Texas has a strong anti-SLAPP law, which allows defendants to ask a judge to dismiss frivolous lawsuits filed against persons who speak out about a “matter of public concern” within the first 60 days. “Matter of public concern” is defined expansively in the statute, according to the website www.slappedinTexas.com.

The city’s AMANDA public information system shows that the city approved construction of a new four-bedroom, three-bathroom, two-story single-family home and another two-story home — presumably an accessory dwelling unit — with three bedrooms and two bathrooms at 7801 Mullen Drive on Jan. 13.

Photo by Larry D. Moore [CC BY-SA 3.0 or GFDL], via Wikimedia Commons.

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