Motion for Plea in Abatement in LAPACA JEFFERSON vs. BRECKENRIDGE PROPERTY FUND 2016| Trellis.Law

On May 18, 2022 a Motion-Secondary was filed involving a dispute between Jefferson, Lapaca, and Breckenridge Property Fund 2016, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
8/3/2023 11:36 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY

Case No. DC-22-05177

LAPACA JEFFERSON, § IN THE DISTRICT COURT
Plaintiff §
§
v. § 192nd DISTRICT COURT
§
BRECKENRIDGE PROPERTY §
FUND 2016, §
Defendant § DALLAS COUNTY, TEXAS

TRIAL BRIEF AND PLEA TO THE JURISDICITON

COMES NOW Breckenridge Property Fund 2016, LLC (“Defendant”), Defendant in the

above-captioned case, and ﬁles this its Trial Brief and Plea To The Jurisdiction (“Plea”) and

would respectfully show unto the Court as follows:

SUMMARY OF CASE AND MOTION

1. This case revolves around the single-family residential real estate located at 5945

Fox Hill Ln, Dallas, TX 75232 (the “Property”).

2. Defendant is the owner of the Property and plaintiff Lapaca Jefferson (“Plaintiff”)

was a post-foreclosure holdover resident of the Property.

3. As described more fully below, after obtaining title to the Property, Defendant ﬁled

an eviction case in JP Court and obtained a judgment for possession of the Property in JP Court.

No one appealed the JP Court’s eviction judgment, and it is now ﬁnal. After the judgment was

ﬁnal, Plaintiff, pro se, ﬁled no less than 5 different lawsuits, including this one, spanning at least

4 different courts (District Court, Probate Court, County Court, and JP Court), seeking an

injunction to prevent the eviction from going forward. Plaintiff’s requests for an injunction were

denied and Defendant was evicted from the Property.

TRIAL BRIEF / PLEA TO JURISDICTION 1
4. In addition to the foregoing, Defendant also ﬁled a bill of review in the JP Court

which tried the original eviction case, which went to trial and was denied. That denial is now a

ﬁnal judgment.

5. Defendant now ﬁles this Plea, seeking dismissal of this case for multiple reasons,

as laid out more fully below, including because this Court has no jurisdiction over this case or

these claims.

FACTUAL AND PROCEDURAL BACKGROUND
6. On February l, 2022, Plaintiﬁ‘ purchased the Property at a non-judicial foreclosure
sale in Dallas County, Texas.

7. On February 14, 2022, a Substitute Trustee's Deed (the “Foreclosure Deed” was

recorded in the real property records of Dallas County as instrument number 202200041784. A
true and correct copy of the Foreclosure Deed is attached to Defendant’s Witness & Exhibit List

ﬁled in the above-captioned case on August 2, 2023 (“List”) at pg. 3 and incorporated herein by

reference for all intents and purposes as if set forth in full.
8. On or about April 6, 2022, Defendant ﬁled its Plaintiff’s Sworn Complaint for

Eviction in Dallas County JP Court 1-1, initiating Case No. JE-2202187H (the “Eviction Case”)

against the occupants of the Property, one of whom was Defendant.

9. On April 18, 2022, the JP Court called the Eviction Case for trial, and entered

judgment (the “Eviction Judgment”), awarding possession of the Property to Defendant. A true
and correct copy of the JP Court’s Eviction Judgment is attached to the List at pg. 10 and

incorporated herein by reference for all intents and purposes as if set forth in full.

10. No one appealed the Eviction Judgment and it is now ﬁnal.

TRIAL BRIEF / PLEA TO JURISDICTION 2
JP Bill of Review Case

11. On May 2, 2022, Defendant ﬁled his Bill ofReview (the “JP BOR Petition”) in the

JP Court seeking J
to undo the Eviction Judgment, initiating Case No. SZ200394H (the “JP BOR

Case”). A true and correct copy of Plaintiff’s BOR Petition is attached to the List at pg. 11 and

incorporated herein by reference for all intents and purposes as if set forth in ﬁlll.
12. Because Defendant had a ﬁnal judgment awarding it possession of the Property,

Defendant moved forward with eviction by obtaining a writ of possession and scheduling it for

execution with the constable.

First District Court Bill of Review Case

13. Despite the pendency of the JP BOR Case, on May 12, 2022, Plaintiff ﬁled another

bill of review case in the 192nd District Court in Dallas County, Texas, initiating Case No. DC-

22-04893 (the “First DC Case”). The petition sought a bill of review with respect to the Eviction

Judgment and requested temporary and permanent injunctive relief to stop Defendant from moving

forward with eviction]

14. At 4: 15 PM on the same day that Plaintiff ﬁled the First DC Case, the Court held

an emergency hearing on Plaintiff’s request for a temporary restraining order (“TRO”). After the

hearing, the Court denied Plaintiff’s request for a TRO.

15. On May 16, 2022, the Court signed its Order Denying Request for Temporary

Restraining Order. A true and correct copy of this order is attached to the List at pg. l9 and

incorporated herein by reference for all intents and purposes as if set forth in full.

1
Plaintiff ﬁled the petition not on behalf of himself but rather on behalf of Roger C Runnells (“RCR”) and Ima Glady
Runnells (“IGR”), who are both alleged to be deceased. Plaintiff is not an attorney and the petition does not allege,
and Plaintiff has not presented any evidence showing, that either a probate has been ﬁled with respect to RCR and/or
IGR or that Plaintiff has obtained letters testamentary with respect t0 either person’s estate.

TRIAL BRIEF / PLEA TO JURISDICTION 3
CountV Court Bill of Review Case

16. Undeterred, on May 17, 2022, Plaintiff ﬁled another lawsuit, this time in Dallas

County County Court at Law No. 3, initiating Case No. CC-22-02535-C (the “CCL Case”), once

again seeking injunctive relief to stop Defendant from moving forward with eviction.

17. On the morning of May 18, 2022, Defendant began the eviction process with the

help of the Dallas County Constable.

18. At 9:00 A.M. on May 18, 2022, the County Court held an emergency TRO hearing

on Plaintiff’s request for a TRO in the CCL Case. During this hearing, the constable and Defendant

paused the eviction, awaiting the Court’s ruling. At the conclusion of the hearing, the Court denied

Plaintiff’s request for a TRO and subsequently entered its Order Denying Request for Temporary

Restraining Order. A true and correct copy of this order is attached to the List at pg. 21 and

incorporated herein by reference for all intents and purposes as if set forth in full.

19. Once the hearing was over, Defendant resumed the eviction process and by the end

of the day had completed the eviction and obtained possession of the Property.

Second District Court Bill of Review Case

20. Notwithstanding (1) the pendency of JP BOR Case, the First District Court Case,

and the CCL Case, and (2) having already been denied TRO relief in both the First District Court

Case and the CCL Case, seemingly immediately after the conclusion of the TRO hearing in the

CCL Case Plaintiff apparently went downstairs to the ﬁling clerk and ﬁled Lther lawsuit at
11:52 A.M. on the same day, initiating a second District Court case, the above-captioned case,

Case No. DC-22-05177, in the 160th District Court (the “Second DC Case”), once again seeking

a bill of review with respect to the Eviction Judgment and requesting injunctive relief to stop the

eviction.

TRIAL BRIEF / PLEA TO JURISDICTION 4
21. At 4:00 P.M. that same day, the District Court held an emergency hearing on

Plaintiff’s request for a TRO in the Second DC Case. At the hearing, counsel for Defendant

informed the Court about the multiple already-pending cases and the prior hearings denying

Plaintiff’s requests for a TRO (including the one that had happened that morning in the CCL Case).

Counsel for Defendant also speciﬁcally pointed out that there was already a pending District Court

case, the First DC Case. Accordingly, the TRO hearing was continued to the following day and

the Second DC Case was transferred to this Court.

22. On May 19, 2022, this Court held a hearing on Plaintiff’s request for a TRO in the

Second DC Case, and once again denied Plaintiff’s request for a TRO.

23. On May 20, 2022, this Court signed its order, which denied Plaintiff ’s request for a

TRO and consolidated the First DC Case, the CCL Case, and the Second DC Case into a single

case. The JP BOR Case was not consolidated along with the other cases. A true and correct copy

of the Court’s order is attached to the List at pg. 23 and incorporated herein by reference for all

intents and purposes as if set forth in full.

24. On June 17, 2022, Plaintiff ﬁled a lis pendens based on the above-captioned case

against the Property in the real property records of Dallas County, recorded as document number

202200169374. A review of Plaintiﬁ’s pleadings does not seem to allege a claim of title to the

Property, merely a request to review the JP Court’s original Eviction Judgment and to stop the

eviction from going forward. A true and correct copy of this order is attached to the List at pg. 25
and incorporated herein by reference for all intents and purposes as if set forth in full.
JP BOR THM

25. On September 12, 2022, the JP Court called the JP BOR Case to trial. After trial,

the Court entered its Final Judgment (the “BOR Judgment”), ﬁnding in favor of Defendants and

TRIAL BRIEF / PLEA TO JURISDICTION 5
ordering that Plaintiff take nothing on all of his claims. A true and correct copy of the Court’s

BOR Judgment is attached to the List at pg. 29 and incorporated herein by reference for all intents

and purposes as if set forth in full.
26. Defendant now ﬁles this Plea.

LAW AND ARGUMENT

27. For multiple reasons, the Court should dismiss this case.

Court Has No Jurisdiction To Trv Bill of Review Over Another Court’s Judgment

28. First, the Court should dismiss this case because it doesn’t have jurisdiction to try

a bill of review over a judgment rendered by a different court.

29. A bill of review is essentially a very limited type of appeal — it is an equitable

proceeding to set aside a judgment that is no longer appealable or subject to a motion for new

trial? However, per the Texas Supreme Court, onlv the original court which rendered the

i udgment has i urisdiction for bill of review claims against that i udgment.3

30. In this case, Plaintiff ﬁled a bill of review in m Court against court’s

judgment (the JP Court’s Eviction Judgment). Accordingly, because the Eviction Judgment was

rendered by the JP Court and not this Court, this Court lacks jurisdiction over Plaintiff’s bill of

review claims, and thus should dismiss them.

No Appellate Jurisdiction

31. In the alternative, this Court also lacks jurisdiction because even without the

foregoing, in his claims Plaintiff is asking this Court to essentially overturn the Eviction Judgment,

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)(“A bill of review is an equitable proceeding to set
2

aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new
trial”).
3
Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010)(“Because it is a direct attack, a bill of review must
be brought in the court that rendered the original judgment, and only that court has jurisdiction over the bill.”)

TRIAL BRIEF / PLEA TO JURISDICTION 6
which means that Plaintiff is asking this Court to sit as an appellate couIt in review of the JP Court’s

Eviction Judgment. However, for multiple reasons this Court lacks jurisdiction to do that.

32. First, under Texas law, this Court has no jurisdiction to sit as an appellate court over

a JP Court’s eviction judgment. Appeals of JP Court eviction judgments (like the one that is the

subject of Plaintiff’s claims in this case) are taken to County Courts at Law, not to a District Court.4

33. Further, even if that weren’t fatal to Plaintiff’s case, it is undisputed that Plaintiﬁ

missed the deadline for ﬁling an appeal of the Eviction Judgment and that that judgment is now

ﬁna1.5 Plaintiff can’t get around missing the appellate deadline by simply ﬁling a new case in

District Court, as Texas Courts do not have jurisdiction to hear untimely appeals.6

34. Accordingly, for these reasons as well this Court lacks jurisdiction over all of

Plaintiff’s bill of review claims.

4
Tex. Civ. Prac. & Rem. Code Sec. 51.001(a)(“In a case tried in justice court in which the judgment or amount in
controversy exceeds $250, exclusive of costs, or in which the appeal is expressly provided by law, a party to a ﬁnal
judgment may appeal to the county court”); Tex. R. Civ. P. 510.10(c)(“ The case must be tried de novo in the county
court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. The trial,
as well as any hearings and motions, is entitled to precedence in the county court”).
5
Tex. R. Civ. P. 510.9(a)(“A party may appeal a judgment in an eviction case by ﬁling a bond, making a cash deposit,
or ﬁling a Statement of Inability to Afford Payment of Court Costs with the justice court Within 5 days aﬁer the
judgment is signed”).
6
Ali v. PARKS ATARLINGTON, LLC, No. 02-22-00485-CV (Tex. App. May l8, 2023)(“A county court of law does
not have jurisdiction over an appeal for which a timely appeal from a justice court's judgment was not perfected”),
citing Wetsel v. Fort Worth Brake, Clutch & Equip, Ina, 780 S.W.2d 952, 954 (Tex. App-Fort Worth 1989, no writ);
Milligan v. HP TEXAS I LLC, No. 05-18-01467-CV (Tex. App—Dallas Mar. l9, 2019)(“Because an appeal ﬁom a
justice court judgment in an eviction case must be ﬁled no later than ﬁve days after the judgment is signed and Milligan
ﬁled his appeal six days later, we questioned the county court's jurisdiction over Milligan's appeal and, in turn, our
jurisdiction. See TEX. R. CIV. P. 510.9(a) (deadline for appealing justice court judgment in eviction case); Wetsel v.
Fort Worth Brake, Clutch, and Equip, Inc., 780 S.W.2d 952, 954 (Tex. App-Fort Worth 1989, no writ) (untimely
appeal from justice court deprives county court of jurisdiction to review justice court's judgment); First State Bank &
Trust Co. of Port Lavaca v. Vector Corp., 427 S.W.2d 958, 960 (Tex. Civ. App-Waco 1968, writ ref‘d n.r.e.) (appellate
court j urisdiction extends no further than trial court's). We directed Milligan to ﬁle a letter brief addressing our concern,
but more than ten days have passed, and Milligan has not responded. When, as here, the trial court lacked jurisdiction,
we must set aside the judgment and dismiss the cause. See Dallas Cty. Appraisal Dist. v. Funds Recovery, Inc., 887
S.W.2d 465, 468 (Tex. App-Dallas 1994, writ denied). Accordingly, we vacate the county court's judgment and
dismiss the cause. See id.”).

TRIAL BRIEF / PLEA TO JURISDICTION 7
Plaintiff Has N0 Standing

35. Further, this Court should also dismiss Plaintiff ’s claims brought on behalf of RCR

and IGR because Plaintiff doesn’t have standing or authority to bring claims on behalf of those

persons.

36. As covered above, Plaintiff ﬁled claims on behalf of RCR and IGR and alleged that

RCR and IGR are deceased. Assuming that RCR and IGR are deceased, Plaintiff has not shown

that a probate case has been ﬁled for either person nor that he has been appointed as the personal

representative of either person’s estate.

37. Accordingly, Plaintiff has no standing to bring claims on behalf of RCR or IGR and

thus this Court lacks jurisdiction to hear those claims as well, and this case should be dismissed.7

N0 Jurisdiction Because Case Is Moot

38. Further, this Court lacks jurisdiction over Plaintiff’s claims because the issue in

controversy — possession of the premises — is moons

39. Plaintiff has requested injunctive relief to prevent eviction from the Property. As

recounted above, Plaintiff has been evicted from and is no longer in possession of the Property.

Accordingly, Plaintiff’s request for injunctive relief to prevent eviction is moot because the thing

7
Garcia v. City of Willis, 593 S.W.3d 201, 206 (Tex. 2019)(“Neither party has questioned Garcia's standing to bring
his claims, nor has either court below addressed it. But we are duty-bound to determine whether it exists; standing is
a "prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court's power to decide a
case." Bland Indep. Sch. Dist. V. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); see also Tex. Workers' Comp. Comm’n v.
Garcia, 893 S.W.2d 504, 507 n.15 (Tex. 1995) ("Because standing is a component of subject matter jurisdiction... it
may be raised by an appellate court sua sponte."). The importance of this inquiry —even when not urged by the
parties— cannot be overstated”)
Guardianship ofFairley, 650 S.W.3d 372, 379 (Tex. 2022)(“But courts do lack subject-matter jurisdiction to decide
8

a moot controversy. State ex rel. Best V. Harper, 562 S.W.3d 1, 6 (Tex. 2018). The prohibition against deciding moot
controversies is rooted in the separation-of-powers doctrine that prohibits courts from rendering advisory opinions.
Nat'l Collegiate Athletic Ass'n V. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (citing TEX. CONST. art. II, § 1). A suit may
become moot at any time, including on appeal. Heckman V. Williamson County, 369 S.W.3d 137, 166 (Tex. 2012). A
case is moot when a live controversy no longer exists or the parties have no legally cognizable interest in the outcome.
City of Krum V. Rice, 543 S.W.3d 747, 749 (Tex. 2017).”).
TRIAL BRIEF / PLEA TO JURISDICTION 8
sought to be restrained (i.e. the eviction) has already happened. There is thus nothing left to be

enjoined.

40. Accordingly, Plaintiff ’s claims for injunctive relief are moot and thus this Court

lacks jurisdiction over such claims.

Res Judicata

41. In the alternative and without waiving the foregoing, the Court should also deny all

of Plaintiff’s claims because they are barred by Res Judicata.

42. Res judicata precludes relitigation of claims that have been ﬁnally adjudicated, or

that arise out of the same subject matter and that could have been litigated in the prior action.9

43. Res Judicata applies with there is (1) a prior ﬁnal judgment on the merits by a court

of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second

action based on the same claims as were raised or could have been raised in the ﬁrst action.”

44. Here, all of the elements are present for all of Plaintiff’s claims, including both his

bill of review claims as well as his injunctive claims with respect to possession of the Property.

45. First, with respect to the bill of review claims, as covered above, (1) there is a prior

ﬁnal judgment on the merits with respect to Plaintiff’s bill of review claims — the JP Court’s BOR

Judgment from the JP BOR Case, (2) the parties were identical in the JP BOR Case, and (3)

Plaintiff’s claims in this case are the same claims as were raised or could have been raised in the

JP BOR Case. Thus, Plaintiff’s bill of review claims are barred in this case.

9
Amstadt v. US Brass Corp, 919 S.W.2d 644, 653 Tex. 1996 (l996)(“Res judicata precludes relitigation of claims
that have been ﬁnally adjudicated, or that arise out of the same subject matter and that could have been litigated in the
prior action”).
1°
Amstadt v. US Brass Corp, 919 S.W.2d 644, 653 Tex. 1996 (l996)(“Res judicata precludes relitigation of claims
that have been ﬁnally adjudicated, or that arise out of the same subject matter and that could have been litigated in
the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). It requires proof of the following
elements: (l) a prior ﬁnal judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those
in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in
the ﬁrst action. See Texas Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.l979).”)

TRIAL BRIEF / PLEA TO JURISDICTION 9
46. Second, with respect to Plaintiff’s request for injunctive relief with respect to

possession of the Property, (1) there is a prior ﬁnal judgment on the merits with respect to

possession of the Property
— the JP Court’s Eviction Judgment from the Eviction Case, (2) the

parties were identical in the Eviction Case, and (3) Plaintiff’s arguments for possession of the

Property could have been raised in the Eviction Case. Thus, Plaintiff’s arguments with respect to

who is entitled to possession of the Property are barred in this case and no injunctive relief is

available.

Plaintiff Cannot Meet Requirements For Bill of Review

47. In the alternative and without waiving the foregoing, even if this Court had

jurisdiction and Plaintiff’s claims weren’t barred by res judicata, Plaintiff could not meet his

burden to prove the elements for his bill of review claim.

48. In order to prove a claim for a bill of review, Plaintiff has the burden to show: (l) a
meritorious defense to the cause of action alleged to support the judgment, (2) that the petitioner

was prevented from making by the fraud, accident or wrongful act of his or her opponent, and (3)

the petitioner was not negligent. 11 Plaintiff cannot prove any of these elements.

49. First, he has no meritorious defense against Defendant’s forcible detainer claims

that were the subject of the original Eviction Case. Under Texas law “the only issue in a forcible

detainer action is which party has the right to immediate possession of the property?” Plaintiff

has no claim to possession of the Property. As covered above, Defendant is the owner of the

Property. Plaintiff had and has no legal basis for claiming a right of possession as to the Property

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751—52 (Tex. 2003)(“a bill of review petitioner must ordinarily
11

plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that the petitioner
was prevented from making by the fraud, accident or wrongful act of his or her opponent, and (3) the petitioner was
not negligent”).
12
Mlliams v. Bank ofNew York Mellon, 315 S.W.3d 925, 927 (Tex. App-Dallas 2010, no pet.).

TRIAL BRIEF / PLEA TO JURISDICTION 10
(there was never a lease, Defendant was a post-foreclosure hold over). Accordingly, Defendant

fails this ﬁrst element.

50. Second, Plaintiff cannot show that he was somehow prevented from presenting

such defense by the fraud, accident or wrongful act of Defendant. In his pleadings, it appears that

Plaintiff is alleging “extrinsic fraud” as the basis of this element. However, even assuming all of

Plaintiff’s pleaded facts are accurate, he has not shown extrinsic fraud. Extrinsic fraud is fraud

that denies a litigant the opportunity to fully litigate at trial all the rights or defenses that could

have been asserted, such as by one party telling the other that a hearing was on a different date

than on the date it was actually scheduled.” Intrinsic fraud, by contrast, relates to the merits of

the issues that were presented and presumably were or should have been settled in the former

action, which includes such matters as fraudulent instruments, perjured testimony, or any matter

which was actually presented to and considered by the trial court in rendering the judgment

assailed.” Intrinsic fraud includes any substantive factual or legal issues underlying the attacked

judgment, and have no probative value on the fraud necessary to a bill of review.” What Plaintiﬁ‘

is asserting in his pleadings is intrinsic, not extrinsic, fraud, and thus do not satisfy the second

element for Plaintiff’s bill of review claim.

51. Finally, Plaintiff cannot show that he was not negligent. In other hearings regarding

these matters, Plaintiff has indicated that he did not present a defense in the original eviction

proceedings because he considered Defendant’s underlying eviction claims to be meritless. This

does not satisfy this element of showing the Plaintiff was not negligent, and thus Plaintiﬁ‘ fails on

this element as well.

13
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003).
14
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003).
15
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003).

TRIAL BRIEF / PLEA TO JURISDICTION 11
52. Accordingly, for these reasons as well, the Court should deny Plaintiff any relief on

his bill of review claims.

Plaintiff Does Not Meet Requirements For Iniunctive Relief

5 3. In addition to and Without waiving the foregoing, the Court should deny Plaintiff

injunctive relief because he has not and cannot meet the requirements for injunctive relief.

54. Under Texas law, to be entitled to injunctive relief, Plaintiff has the burden to prove

(l) a wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an adequate
remedy at law.” Plaintiff cannot show any of these elements.

55. First, there is no wrongful act. Defendant has a valid ﬁnal eviction judgment, which

it executed on by evicting Plaintiff ﬁom the Property.

56. Second, there is no imminent harm. Plaintiﬁ‘ is seeking an injunction to prevent his

eviction from the Property. However, as covered above, the eviction has already happened.

Accordingly, there is no imminent harm to enjoin because the thing being sought to be restrained

has already happened.

5 7. Third, Plaintiff has not even pleaded, and cannot prove, an irreparable injury.

58. Fourth, there is no absence of an adequate remedy at law. Plaintiff had the legal

remedies of (l) defending against the eviction claims in the original eviction case and (2) the right

to ﬁle an appeal.

5 9. Accordingly, failing the elements required for injunctive relief, Plaintiff cannot

obtain injunctive relief, and the Court should deny all of Plaintiff’s claims for an injunction.

“5
City ofDallas v. MILLWEE—JA CKSON JOINT VENTURE, No. 05-20-00611-CV (Tex. App—Dallas Feb. 8,
2023)(“To be entitled to a permanent injunction, a party must prove (l) a wrongful act, (2) imminent harm, (3) an
irreparable injury, and (4) the absence of an adequate remedy at law.”).

TRIAL BRIEF / PLEA TO JURISDICTION 12
Remove Lis Pendens

60. As covered above, Plaintiﬁ ﬁled a lis pendens with respect to his claims in this

case. However, a review of the pleadings in this case shows that there are no claims pending that

affect title to the Property. Moreover, even if Plaintiff’s claims did somehow involve title to the

Property, as covered above (1) this Court has no jurisdiction to hear Plaintiff’s claims, (2) they are

all barred by res judicata, and (3) even if all of Plaintiff’s pleaded facts were true, Plaintiff could

not obtain the relief he is seeking.

61. Accordingly, there is no basis for Plaintiff’s lis pendens, and Defendant requests

that this Court enter an order expunging the lis pendens.”

WHEREFORE, PREMSISES CONSIDERED, Defendant requests that the Court

dismiss all of Plaintiff’s claims for lack of jurisdiction, or in the alternative deny all of Plaintiff ’s

claims for the reasons covered herein, and grant Defendant such other and further relief, both at

law and in equity, to which Defendant may show itself to be justly entitled.

17
Tex. Prop. Code. Sec. 12.0071(a)(“A party to an action in connection with which a notice of lis pendens has been
ﬁled may: (1) apply to the court to expunge the notice; and (2) ﬁle evidence, including declarations, with the motion
to expunge the notice”); 12.007l(b)(“The court may: (1) permit evidence on the motion to be received in the form
of oral testimony; and (2) make any orders the court considers just to provide for discovery by a party affected by the
motion”); 12.007l(c)(“ The court shall order the notice of lis pendens expunged if the court determines that: (1) the
pleading on which the notice is based does not contain a real property claim; (2) the claimant fails to establish by a
preponderance of the evidence the probable validity of the real property claim; or (3) the person who ﬁled the notice
for record did not serve a copy of the notice on each party entitled to a copy under Section 12.007(d).”);

TRIAL BRIEF / PLEA TO JURISDICTION 13
Respectfully submitted,

/s/ JonathanGitlin
Jonathan Gitlin
State Bar No. 24064305
Email: ionathan.gitlin@rsbﬁrm.com
Ross, Smith & Binford, PC
700 North Pearl Street, Suite 1610
Dallas, Texas 75201
Telephone: 214—377-7879
Facsimile: 214-377-9409
ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

The undersigned hereby certiﬁes that on August 3, 2023 a true and correct copy of the

foregoing and all attachments was served on all parties to this case by e-service through the Court’s

e-ﬁling system.

/s/ Jonathan Gitlin
Jonathan Gitlin

TRIAL BRIEF / PLEA TO JURISDICTION 14
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Jonathan Gitlin on behalf of Jonathan Gitlin
Bar No. 24064305
jonathan.gitlin@RSBfirm.com
Envelope ID: 78168881
Filing Code Description: Brief Filed
Filing Description: PLEA JURISDICTION-DEFENDANT
Status as of 8/3/2023 2:41 PM CST

Associated Case Party: LAPACA JEFFERSON

Name BarNumber Email TimestampSubmitted Status

Lapaca Jefferson lapacaj@gmail.com 8/3/2023 11:36:15 AM SENT

Associated Case Party: BRECKENRIDGE PROPERTY FUND 2016

Name BarNumber Email TimestampSubmitted Status
Patel Law Group plglitigation@patellegal.com 8/3/2023 11:36:15 AM SENT

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August 03, 2023

Case Filing Date

May 18, 2022

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Motion-Secondary: LAPACA JEFFERSON vs. BRECKENRIDGE PROPERTY FUND 2016

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