PARKER COUNTY — A small sign posted near the roadway at the end of a cul-de-sac in Remuda Ranch Estates has garnered plenty of attention in national and local media after the homeowners refused to remove the sign and were given a $7,200 fine in a Justice of the Peace decision.

The lawsuit was kept alive Thursday when an appeal regarding a denial of the couple’s affidavit of inability to pay for an appeal was granted in County Court at Law No. 2, allowing Clara and Johnnie Russell to continue fighting the judgement against them.

Because the sign advertised a grass roots activist group connected with TV and radio personality Glenn Beck, the issue has drawn attention involving the irony of being forced to remove a sign calling for Americans to “Defend Your Liberty.”

“I’ve never stated I wasn’t in violation,” Clara Russell said about her refusal to remove the sign after being notified it was prohibited by her deed restrictions. “I just wanted some answers.”



The Russells’ side

Clara and Johnnie Russell said they purchased their house around March of 2008 after moving from their home in Keller.

Clara Russell said she cares for her elderly parents and is looking for a job while her husband works for Frito-Lay.

The sign had been nailed to a tree near the roadway for some time before they were approached with the complaint, according to the Russells.

“I certainly didn’t set out to upset anybody,” Russell said.

Prior to a constable arriving at her home to serve the legal notice in early April, Russell said she was unaware the sign was in violation of the deed restrictions or that an HOA was even in existence.

“I don’t get that,” Russell said. “I had a hard time understanding why someone couldn’t pick up the phone or come by.”

She provided documentation to the court that her bill of sale stated there was no HOA.

“I had never, ever met any of them,” Russell said of the board members who showed up in court for the trial.

When she found out about the lawsuit, the first thing she did was get a copy of the deed restrictions and find out about the HOA, Russell said. Then she went around the neighborhood taking pictures of other signs that appeared to be in violation of the deed restrictions, including construction signs, a tall gas station sign, an Aledo Bearcats sign and two signs advertising a garage sale at current HOA president Tommy Stewart’s home.

“I was kind of confused,” Russell said. “In black and white it says no signs.”

Rather than remove the sign, Russell said they sought answers about what appeared to be a double standard.

Russell also said they were never offered an opportunity to seek a variance, something she later found out had been offered to other neighbors with issues.

She did ask her neighbors around her if they had an issue with the sign and they told her they did not, Russell said.

“I’m not above the law at all,” Russell said. “I don’t pretend to be.”



Sign restrictions

Deed restrictions for the community allow for only one for sale sign to be posted on the property.

The HOA admits they don’t enforce it that way.

“State law gives us latitude in writing policy for enforcing deed restrictions,” HOA President Tommy Stewart said.

Some, such as resident Jack Cavenah, disagree that the association has the authority to write blanket variances allowing some signs but not others.

Stewart said the association has a policy for different types of signs, including rules that signs advertising a garage sale must go down the day after the sale and spirit signs may only be displayed for a certain period of time within season.

HOA board minutes dated March 31, 2011, days before the lawsuit against the Russells was filed, show that a board member was tasked at the meeting with writing a “blanket variance” for signs such as house number signs, no trespassing signs, dog warning signs, no solicitation signs, security/alarm company signs and temporary signs (school signs, work in progress signs, seasonal signs not to exceed 90 days on display). The board also discussed yard art/antique signage but appeared to agree that type of signage would need to go through the typical variance request submission.



HOA’s side

The Remuda Ranch Association disputed major parts of the Russells’ claims.

They have records showing George Tischler, then a representative for the board regarding deed restriction violation issues, approached Johnnie Russell on Jan. 1, 2011, about the sign, HOA secretary Shelby Dougherty said.

The association records show Tischler was told, after Johnnie Russell later spoke with his wife, that the HOA should get a lawyer, Dougherty said.

Though they received a complaint against the Russells in 2010 (Dougherty and Stewart said they did not know who the complainant was), the results of a previous legal mediation involving Cavenah didn’t allow the HOA to spend any more before the next board election, precluding the association from taking anyone to court for deed restriction violations prior to the 2010 association elections later in the year, Dougherty said.

Dougherty disputes that the Russells were singled out by the HOA.

Instead, according to Dougherty, the association has worked out other complaints involving signs in recent years outside the legal system.

In 2010, they had 13 deed restriction violations and the Russells’ was the only sign-related issue, according to Dougherty.

In 2011, the association had 35 deed restriction violations, 18 of which were sign related, Dougherty said. All but two, the Russells and the Rays, complied after being contacted.

Dougherty said the association also has records indicating the Russells participated in the 2009 and 2010 HOA elections, leading them to believe they knew about the HOA.

In 2009, records indicate the Russells mailed a ballot to the HOA and, in 2010, records indicate the couple gave their proxy to Cavenah, according to Dougherty.

The issue isn’t personal and it isn’t political, Dougherty said.

“I myself actually run quite close to many of the viewpoints that Mr. Cavenah and the Russells’ have,” Dougherty said, adding she believes in gun rights and other conservative issues. “This is not a political assassination at all.”

Dougherty testified Thursday that Clara Russell called her on the phone shortly after she believed the couple was served and expressed surprise about the deed restriction violation.

Dougherty later told the Democrat that she offered to remove the sign for the Russells during that conversation but Clara Russell declined.

“We try not to litigate,” Dougherty said. “No one wins. It’s just a horrible experience for everyone.”



The judgement and judge

After the judgement against the Russells in November gained publicity, Glenn Beck invited them onto his radio show, as well as a TV taping in New York, and the couple’s case received considerable coverage on several blogs and news stories.

Many showed up with signs supporting their cause when the couple went in for a hearing on an appeals issue following the judgement. Security at the Precinct 4 building housing the courtroom was increased, according to Russell.

During the media flurry after the November judgement, several voiced criticism of Judge Lynn Johnson, as well as the HOA, in online forums, particularly on Facebook and blog postings hosted by politically active groups.

Several, including residents of the neighborhood, argued the relationship between Johnson and an HOA member who supported the judge during the 2010 election should have led Johnson to recuse herself.

Cavenah, who said he had Johnson and her husband to his house for breakfast, supported the judge during the 2010 election and filed his own case against the HOA in Johnson’s court in early 2011, said he believes Johnson should have recused herself and he is no longer a supporter of Johnson.

Ed Huddleston, Johnson’s husband, said the board member, a professional photographer, took pictures for Johnson’s campaign and neither family has ever socialized.

Meanwhile, the Russells had trouble finding anyone to help them put up the $14,000 appeal bond and filed an affidavit of inability to pay.

On Nov. 21, 2011, a hearing was held before Johnson regarding the HOA’s decision to contest the Russell’s affidavit of inability to pay.

However, on Dec. 6, 2011, prior to Johnson handing down a decision, the judge showed up at a meeting of the Parker County Tea Party Patriots where Clara Russell was scheduled to speak about the case.

The meeting was advertised by email and on Facebook, Dawn King of the Parker County Tea Party Patriots confirmed, with a paragraph that noted that Russell would be a guest speaker on the topic of the lawsuit.

The last sentence of the description questioned the judge’s motives, stating, “Maybe [the Russells] were singled out because of their conservative values and the president of the HOA is a liberal and an ‘Occupy Wall Streeter’... or, could it be the relationship between the Judge and one of the board members?”

Russell said she contacted her attorney after realizing Johnson had arrived at the meeting and was advised not to speak so the speech was cancelled.

Several who were in attendance at the meeting later publicly questioned the appropriateness of the judge showing up prior to handing down a decision on the issue involving the appeal.

The Russell’s attorney, Joshua Carden, said he advised Russell not speak at the meeting to avoid any appearance of an attempt to sway the judge outside the courthouse since a decision on the affidavit of inability to pay had not been delivered,

“I didn’t want to create any perception of impropriety,” Carden said.

However, he said he was not concerned about the judge’s decision to show up at the meeting.

“The substance of the case was already decided,” Carden said.

Though Johnson said she is constrained by the judicial code of ethics from talking about a pending case other than through her written rulings, Johnson said she did not believe she acted unethically or inappropriately.

As an attorney, as well as a Justice of the Peace, Johnson said she feels an extra ethical obligation.

Johnson said she made her decisions based on the evidence in the case and the law rather than any personal relationships.

“Frankly, if you are an elected official in Parker County, you pretty much know half the people that live here,” Johnson said, adding that she knew people on both sides of the room in the Russell case.

Johnson said she has ruled against many people in her courtroom that she’s known.

When she showed up to the Tea Party meeting, where she had been invited to attend the last year, “there wasn’t any pending decision that I was to make,” Johnson said.

Though her decision had not been issued, Johnson said she had already rendered a decision and had been working on it for approximately a couple of weeks.

If someone was going to say something slanderous about her at the meeting, Johnson said she wanted to hear it in person.



Appealing to appeal

When the judge’s order regarding their affidavit of inability to pay was delivered to the attorneys in late December, things went against the Russells again. Johnson stated that the couple owned property, vehicles, made trips and had income and therefore did not meet requirements to waive the bond and court costs.

“As a fact finder, the Court has the responsibility to judge the credibility and veracity of the witnesses. In doing so, the Court finds that the testimony of Mrs. Russell is at best, inconsistent; at worst diametrically opposed,” Johnson wrote in her order on the appeal by affidavit of inability to pay.

Johnson went on to write that despite testimony from Mrs. Russell that she did not know about her violation of the deed restrictions until she was served by the constable in April 2011, “evidence produced at trial showed that defendants were told on separate occasions of the deed restriction violation on Jan. 1, 2011 and that Mrs. Russell told the HOA to hire attorneys, thereby indicating her intent to violate the deed restrictions.”

After more than an hour of detailed questioning about the couple’s finances, vehicle purchases, trips and employment, Judge Ben Akers overruled Johnson, allowing the appeal by affidavit of inability to pay the bond to proceed.

Akers said that while the Russells own property and have an income, they are equally in debt, bringing their net worth to zero.

The appeal of the Justice of the Peace Court judgement can continue in County Court at Law but the case must first go through mediation before a trial, as with other civil cases, Akers said.

Appeal

Carden, who approached the couple after the November ruling and offered to volunteer his time representing the Russells in an appeal, said he won’t be relying on the First Amendment to the Constitution as his chief line of defense. Instead, he said he is trying to keep the case as simple as possible for the Russells.

One thing that stuck out to him was that the sign was on a tree that wasn’t even on the Russells’ property, Carden said.

“Anybody could have come along at any time and removed it,” Carden said.

“It was fairly obvious at trial that the restriction on signs was selectively enforced,” Carden added.

He’s even looking into whether the HOA was authorized to exist at the time.

“I’m trying to keep it so they don’t owe a $7,000 fine,” Carden said.

The association is also preparing for the appeal.

Dougherty said they have a survey of the property planned for Tuesday to find out if the sign was actually in the right of way.

Stewart said the HOA is currently writing language to update the outdated deed restrictions.