Motion to Dismiss in ANN H. PLETTA, et al vs. CECILIA SOO, et al| Trellis.Law

On May 14, 2020 a Motion,Ex Parte was filed involving a dispute between Pletta, Ann H., Pletta, Timothy G, Timothy G. Pletta Revocable Trust, and Creekview Owners Association, Soo, Cecilia, Soo, Ken, for PROPERTY in the District Court of Dallas County.

Preview
FILED
8/6/2020 7:33 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker—Ayodele DEPUTY

NO. DC-20-068 1 6

TIMOTHY G. PLETTA, Trustee, for and 0n § IN THE DISTRICT COURT
Behalf 0f the ANN H. PLETTA and §
TIMOTHY G. PLETTA REVOCABLE §
TRUST §

§
Plaintiff §

§ DALLAS COUNTY, TEXAS
V. §

§
CECILIA SOO and KENNETH SOO §

§
Defendants § 298th JUDICIAL DISTRICT

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO THE TEXAS CITIZENS PARTICIPATION ACT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Timothy G. Pletta, Trustee, for and on behalf 0f the Ann H. Pletta and

Timothy G. Pletta Revocable Trust (“Plaintiff”), Plaintiff in the above-styled and -numbered

cause, and ﬁles this, his Response t0 Defendants’ Motion and Supplemental Motion t0 Dismiss

Pursuant to the Texas Citizens Participation Act (collectively the “Motion”), and would

respectfully show the Court the following:

SUMMARY OF RESPONSE
1. Defendants’ Motion is specious, frivolous, intended only t0 delay proceedings, and

nothing more than a waste of Plaintiff’s and, more importantly, this Court’s time. Essentially,

Defendants are claiming that Plaintiff’s lawsuit is based 0n 0r in response t0 Defendants calling

the police 0n Mr. Pletta, the trustee 0f the Plaintiff trust (hereinafter “Trustee”), 0n the grounds

that Mr. Pletta Violently shook their fence on April 30, 2020, requiring a call to the Coppell

Police Department.
2. Defendants claim this despite knowledge that many 0f Plaintiff s claims predate the April

30, 2020, police call by approximately a full year. In addition. Defendants also have acutal

knowledge that any boundary disputes are civil matters over Which the police should not have

even been called, as referred t0 in their building permit. Finally, Plaintiff has clear and speciﬁc

evidence to support each element 0f each of its causes of action. Much 0f this evidence, in fact,

was attached as exhibits to Plaintiff’s Second Amended Petition pursuant t0 Rule 59 0f the Texas

Rules of Civil Procedure. Given that Defendants knew about all 0f these disputes before the

April 30 call and before Plaintiff’s lawsuit was ﬁled, this Court should award attorney’s fees and

costs to Plaintiff for having t0 respond to Defendants Motion.

II.

FACTUAL BACKGROUND

3. Plaintiff’s lawsuit is based entirely 0n a plethora 0f acts and omissions 0f their next—door

neighbors, not Defendants’ April 30 call to the police. Plaintiff Ann H. Pletta and Timothy G.

Pletta Revocable Trust (“Plaintiff’ 0r the “Trust”) is the owner 0f the property located at 150

East Bethel Road, Coppell, Dallas County, Texas, and has been since 2010, when Tim and Ann

Pletta transferred the property they had owned and occupied since 1997 to the Plaintiff Trust. A

copy of the recorded deed of this transfer is attached hereto and incorporated herein as Exhibit G.

Defendants, the Soos, are the owners of the property next door.

4. The incidents between these neighbors over the course of the last few years are numerous

and contentious, but the roots of the problems go back further. (For a fuller accounting of the

difﬁculties, see Exhibit A, the Afﬁdavit 0f Tim Pletta.) The Plettas purchased the property in

1997. The driveway gate that is at issue in this litigation existed even then and has extended onto

the neighboring property ever since. In 2005, a dispute arose with the Johnsons regarding the
location of the wood fence and the boundary line between the properties. The Plettas and the

Johnsons agreed to build a fence exactly Where the prior fence had been located. They further

agreed to recognize that fence location as the property line. Mr. Pletta covered some of the cost

of that fence (the “01d fence”). This fence remained in place until it was removed and replaced

earlier this year by Defendants. The Johnsons and the Plettas did engage in litigation over a

retaining wall built in 2008. As a part of this dispute, multiple surveys were submitted to the

court, including one attached t0 Defendants’ Motion and the Kadleck Survey, attached hereto as

Exhibit C.

5. With the agreement that the 01d fence was and would forever the property line, the Plettas

and Plaintiff used the property on the west side of the fence as their own for over ten years. This

includes everyday activities like lawn maintenance, planting bushes, and playing basketball.

More signiﬁcantly, Plaintiff’s residence suffered a catastrophic ﬁre in 2018. The property was

declared a “total loss.” The Plettas are understandably nervous about any ﬁre hazards near their

property. With that in mind, when the home was undergoing repair, the strip 0f land 0n

Plaintiff’s side 0f the fence was used for large quantities 0f building materials, including 20-foot

2X85 and pallets 0f shingles. The repair work was eventually ﬁnished.

6. However, in May 0f 2019, the Plettas discovered that their next-door neighbors, by that

time the Defendants, had buried a water drainage pipe under a portion of their property. Further,

Mr. Pletta found that Defendants had constructed a dam-like structure in the rear of their

property, Which prevented surface water from ﬂowing freely, allowing it to pool up in Plaintiff” s

yard. In addition, Mr. Pletta noticed a shed in Defendants’ side yard that had open wires and

stored materials that could cause a ﬁre. Mr. Pletta informed the Homeowners Association (the
“HOA”) 0f these problems, t0 n0 effect. With regard t0 the shed, again, the Plettas are

understandably concerned With ﬁre hazards near their property.

7. In March 2020, Without receiving permission or notice from Plaintiff, Defendants

removed the old fence and began to build the new fence three inches farther to the west. Even

before the construction was complete, Mr. Pletta noticed that it was being built closer to

Plaintiff’s house than the 01d fence. He was rightly concerned that it would affect how Plaintiff’s

driveway gate would open and close. He brought this up to the Soos, the HOA, and city code

enforcement, again to n0 effect. The Defendants completed the new fence.

8. On April 30, 2020, Mr. Pletta believed a hailstorm was approaching and desired t0 move

his truck to covered parking at a nearby church. His truck was located behind the driveway gate.

He attempted t0 open the gate, but it became stuck 0n the new fence. He pushed 0n the fence

with his foot, eventually creating enough space for the gate t0 open. This is the action which

caused Defendants t0 call the policel, a call which Defendants now attempt t0 use as a hook t0

invoke the TCPA in their Motion. In response Plaintiff offers the following:

III.

EVIDENCE

9. In support 0f its Response t0 Defendants’ Motion t0 Dismiss, Plaintiff offers the

following exhibits as evidence in support of its claims. Bookmarks are provided 0n the PDF for
convenience:
EXHIBIT
a. Afﬁdavit 0f Tim Pletta, trustee, along with the following photographs and other
exhibits thereto:
A-l & A-2: Photographs of the gate closure
A-3 & A-4: Photographs 0f exposed drainage pipe
A-S: Photograph of damage from drainage pipe
A-6: Photograph of dam and water buildup

1
On the Defendants’ permit for the fence, there is a stamp from the city attorney 0f the City 0f Coppell stating that
“all disputes regarding property line surveys and physical property are civil in nature between the private parties
affected, per the City 0f Coppell attorney.” Exhibit F (fourth page, bottom right 0f diagram). In other words,
Defendants knew this was a civil matter, but called the police anyway.

4
A-7—A—9: Photographs of shed measurements
A-10: Notice letter date May 19, 2019
A-l 1: Emails With Steven Pratt from March 24, 2020
A-12: Photograph of new fence from Plaintiff” s side; and
A-13: Text message from Plaintiff t0 Coppell code enforcement

b. A survey 0f Plaintiff” s property performed by Brian Connolly, dated July 27,
2020 (the “Connally Survey”);

c. A survey 0f Plaintiff” s property performed by Lynn Kadleck, along with an
afﬁdavit, on [DATE] (the “Kadleck Survey”);

d. Afﬁdavit of Albert Johnson;

e. Creekview Estates Deed Restrictions;

f. Certiﬁed copy of Soos’ fence permit;

g. Warranty deed transferring title t0 Plaintiff; and

h. Communication from Defense counsel to Plaintiff.

IV.
ARGUMENTS AND AUTHORITIES

10. This Court should deny Defendants’ Motion 0n two separate grounds. First, Plaintiff’s

lawsuit, encompassed in Plaintiff’s Second Amended Petition, is “not based 0n 0r in response t0”

Defendants’ claimed acts 0f free speech 0r petition. The lawsuit is based entirely on acts and

omissions by Defendants that predate those claimed bases. Second, even if this Court ﬁnds a

basis t0 tie Plaintiff’s case t0 the TCPA, Plaintiff can establish a primafacie case each element

0f its causes 0f action by clear and speciﬁc evidence, as required by the statute. Plaintiff is,

ﬁnally, asking this Court t0 grant its request for attorney’s fees incurred in responding t0

Defendants’ Motion, as it is frivolous 0r intended only t0 delay.

A. Plaintiff’s lawsuit is not “based 0n 0r in response t0” Defendants’ call t0 the police.
11. Under the TCPA, if a legal action is “is based 0n 0r is in response t0 a party’s exercise 0f

the right 0f free speech, right t0 petition, or right 0f association,” the opposing party can ﬁle a

motion to dismiss under the TCPA. TeX. Civ. Prac. & Rem. Code § 27.003. In this case,
Defendants allege that Plaintiff’s claims are “based 0n 0r in response t0” a call they made t0 the

Coppell Police (the “Call”) 0n April 30, 2020. However, the controversies at the heart 0f this suit

predate the Call by months, if a year or more.

12. Defendants devote a lot of ink t0 the proposition that calling the police falls under the

statutory deﬁnitions 0f “right of free speech” and/or “right to petition.” But there is almost n0

mention of how Plaintiff” s lawsuit “based 0n” 0r “in response t0” the Call. Defendants d0,

however, claim that Plaintiff’s suit is “based 0n, related t0, 0r in response t0” the Call. See, e.g.

Defs. Mot. t0 Dism. 11, Defs. Supp. Mot. t0 Dism. 13. Plaintiff does recognize that it is possible

that its lawsuit is “related t0” the Call. But this is n0 longer a ground 0n which a TCPA motion

can be sustained.

13. The previous version 0f the TCPA included “relates t0” in its description 0f legal actions

that are subject t0 the law. However, the legislature removed the “relates t0” language from the

TCPA in 2019. See 2019 TeX. HB 2730, § 2(a). Therefore, for claims brought after September 1,

2019, claims merely related to a party’s exercise 0f its rights n0 longer fall under the statute, and

Defendants must demonstrate that Plaintiff’s claims are based 0n 0r in response t0 the protected

speech, petition, or association.

14. Here, as stated before, Defendants have asserted that the Call is the sole basis for its

Motion under the TCPA. However, the contention that Plaintiff’s suit is “based 0n 0r in response

t0” the Call is contradicted by evidence produced herein as well as evidence attached to

Defendants’ own Motions. As stated in Plaintiff s Second Amended Petition, as well as Part II,
supra, the following are the factual bases for Plaintiff’s claims in its lawsuit: (a) Defendants’

new fence interfering with his gate, (b) Defendants’ new fence encroaching 0n his land acquired

by acquiescence or adverse possession, (c) Defendants’ shed and related structures not

complying with deed restrictions and the city code, (d) Defendants removing the old fence

without Plaintiff” s permission, (e) Defendants constructing a dam 0n their property to prevent the

free ﬂow of water, and (f) Defendants burying a water drainage pipe 0n Plaintiff’s property.

15. Every one 0f these events and occurrences occurred prior t0 the Call April 30, 2020. See

Pletta Aff. Indeed, Plaintiff threatened litigation over these events 0r occurrences prior t0 April

30, 2020. See, e.g. Exhibits A-lO & A-l 1. Absent the Call, Plaintiff would have still ﬁled this
lawsuit against Defendants. See Pletta Aff.. Exhibits. A-ll & A-13. If a movie is “based 0n a

true story,” that true story cannot have happened after the movie is made. Similarly, if every

factual basis of a lawsuit occurred prior to the claimed basis for that lawsuit, the claimed basis

(here, the Call), the lawsuit cannot be based on that claimed basis. The same logic applies to the

purported claim that the lawsuit was in response t0 the Call. Every act or omission complained

of in Plaintiff s Second Amended Petition occurred prior t0 the Call.

16. Texas law is in accord. In the Dyer case, the Dallas Court 0f Appeals stated that it was

not a communication over which the Plaintiff ﬁled the lawsuit, but “because they allegedly

committed tortious conduct by misappropriating appellees' proprietary software and conﬁdential

information With the intent t0 sell or use that property.” Dyer v. Medoc Health Servs., LLC, 573

S.W.3d 418, 429 (TeX. App.—Da11as 2019, pet. denied). Here, Defendants haven’t been sued

because they called the police. Defendants were sued because they, inter alia, allegedly

trespassed, attempted t0 occupy, and diverted water onto Plaintiff’s real property. Similarly, in

the Bevins case out 0f Fort Worth, that court held that because “all thirteen causes of action arise
out 0f facts occurring well before Beving‘s afﬁdavit and deposition testimony,” the case did not

implicate the TCPA. Beving v. Beadles, 563 S.W.3d 399, 408 (TeX. App.—Fort Worth 2018, pet.

denied). Here, again, the facts out which Plaintiff’s claims arise occurred before the Call on April

30, 2020. Many go back a year. Finally, Plaintiff told a city code inspector on April 2, 2020, Via

text message, that he would have t0 go t0 the Dallas District Court t0 sort the situation out. See

Exhibit A-13.

17. Defendants had notice 0f all of these disputes prior t0 the Call. See Pletta Aff. The fact

that they still brought this Motion under the TCPA and attempt t0 claim that Plaintiff” s suit is

based 0n or in response to that Call borders 0n the absurd. The Court should deny Defendants’

Motion 0n this ground.

B. can establish by clear and speciﬁc evidence a prima facie case for each
Plaintiff
essential element 0f the challenged claims.

18. Even if this Court ﬁnds that Plaintiff’s legal action is based 0n 0r in response t0

Defendants’ rights 0f petition and free speech, the TCPA provides the non-movant an

opportunity to establish a primafacz'e case for each element 0f its’ causes 0f action by “clear and

specific” evidence. Under the TCPA, the Texas Supreme Court has held that “the clear and

speciﬁc evidence standard under the TCPA does not require direct evidence 0f each essential

element of the underlying claim to avoid dismissal, but instead the evidence may encompass

circumstantial evidence and rational inferences.” Better Bus. Bureau ofMetro. H0us., Inc. v.

John Moore Servs., 500 S.W.3d 26, 46 (Tex. App.—Houst0n [lst Dist] 2016, pet. denied)

(citing In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)). Further, Plaintiff’s claims and evidence

are t0 be Viewed in the light most favorable to it, the non-movant. See Sloat v. Rathbun, 513

S.W.3d 500, 504 (Tex. App.—Austin 2015, pet. dism’d). Under those standards, Plaintiff can

easily meet its burden.
I. Adverse Possession and Boundary by Acquiescence

19. Plaintiff can present a primafacie case by Clear and speciﬁc evidence 0f all 0f the

elements 0f its adverse possession claim. Under Texas law, the elements of adverse possession

are as follows: “(1) Visible appropriation and possession 0f the disputed property; (2) that is open

and notorious; (3) that is peaceable; (4) under a claim 0f right; (5) that is adverse and hostile t0

the claim of the owner; and (6) consistent and continuous for the duration of the statutory

period.” Wells v. Johnson, 443 S.W.3d 479, 489 (Tex. App.—Amarillo 2014, pet. denied) (citing

Glover v. Union Pac. R.R., 187 S.W.3d 201, 213 (Tex. App.—Texarkana 2006, pet. denied);

TEX. CIV. PRAC. & REM. CODE § 16.021(1) (West 2002)). Plaintiff must also cultivate, use,

0r enjoy the property t0 establish its claim. See TEX. CIV. PRAC.&REM. CODE. § 16.026.

20. The area occupied by Plaintiff’s driveway gate, as established by multiple surveys,

including the one attached as Exhibit A t0 its Second Amended Petition (and Exhibit C here) (the
“Kadleck Survey”), as well as the Connally Survey attached to this response as Exhibit B,

protrudes over the property line by 0.8 feet. See Exhibits B& C. This is undoubtedly a “Visible

appropriation and possession” 0f the property area covered by this gate. Further, the gate is open

and notorious, as the gate has not moved in the past 20+ years. See Pletta Aff. Third, Plaintiff” s

possession has been “peaceable.” Under the statute, “peaceable possession” means possession 0f

real property that is continuous and is not interrupted by an adverse suit t0 recover the property.

Tex. CiV. Prac. & Rem. Code § 16.021. Over at least the past 10 years, n0 owner of the adjacent

property (now owned by the Defendants) has instituted an adverse suit t0 recover the property

occupied by the gate. See Pletta Aff.

21. Further, Plaintiff has operated his gate in the disputed area under a claim 0f right, given

that it was on its side 0f the 01d fence, and Mr. Pletta and the previous owner agreed that the 01d
fence would be the boundary, and the gate has been completely 0n Plaintiff’s side 0f the fence

the whole time. Pletta Aff. Indeed, such a possession has been adverse and hostile to the claims

of the owners 0f the property, including the Soos. After all, they claim in their own Motions that

they had the right t0 build the fence Where they did. See Defs. Supp. Mot. t0 Dism, EX. A (Soo

Aff.). Finally, such possession has been consistent and continuous for much longer than the

statutory period. See Pletta Aff. Mr. Pletta states in his afﬁdavit that the gate has been in

continuous use since 1997, 23 years ago. Id. Further, the Kadleck Survey states that the gate has

protruded into the adjoining lot since at least 2008. See P1. 2d Am. Pet, EX. A; Exhibit C. In

summary, Plaintiff has a gate that has been in use for over a decade that has protruded into

Defendants’ (and their predecessors’) property the entire time. This gate has been in use for its

entire existence. Regardless 0f the size 0f the land it occupies, a legally sufﬁcient argument can

be made that it has been adversely possessed by Plaintiff.

22. This argument applies equally t0 the portion of the property 0n the west (Plaintiff s) side

of the 01d fence. Since the Johnsons built the 01d fence in 2005, Plaintiff and its predecessors—in—

interest (the Plettas) have visibly appropriated and possessed this strip 0f land by using it for all

manner of storage and activities, and even being complained 0f for failing t0 maintain the grass

and weeds. For instance, Plaintiff has used this land to plant bushes, install mulch, play

basketball, store tools, and, most importantly, t0 store large quantities 0f building materials after

its home suffered catastrophic ﬁre damage in 2018. See Pletta Aff. These uses were actual, open,

notorious, and hostile for that entire period. See Pletta Aff. Further, Plaintiff” s usage was

peaceable. While there was litigation between the Plettas and the Johnsons, it was not t0 recover

any portion 0f that disputed strip 0f land. See Pletta Aff.

10
23. In addition (or alternatively), this portion of the property became Plaintiffs based 0n the

theory of boundary by acquiescence. “When there is uncertainty, doubt 0r dispute as t0 Where the

true division line between the lands of the parties may be, they may ﬁx it by parol agreement,

which will be mutually binding upon them, even though they were mistaken as t0 the true

location 0f the line.” Davis v. Miers, 308 S.W.2d 277, 280 (TeX. CiV. App.—East1and 1957).

“when a boundary line between adjoining owners is uncertain or controverted, that boundary line

may be established by implied agreement. Wall v. Carrel], 894 S.W.2d 788, 797 (Tex. App.—

Tyler 1994). Here, the property line was uncertain and controverted between the Plettas and the

Johnsons back in 2005, around the time 0f the building 0f the 01d fence. Pletta Aff. A1. Johnson

and Tim Pletta entered into an agreement whereby the fence would dictate the property line

between the two lots, and both parties always abided by that agreement. Id. This should be

sufﬁcient to establish a primafacie case as t0 each element 0f Plaintiff’s claim 0f a boundary by

acquiescence.

24. Plaintiff, therefore, can produce clear and speciﬁc evidence establishing a primafacie

case for its adverse possession claim 0n two different grounds. It can likewise establish its claim

0f a boundary by acquiescence in the same manner. This Court should deny Defendants’ motions

on those grounds.

2. Trespass

25. Plaintiff’s trespass claim is based, at least in part, upon Defendants building their fence,

at least in part, 0n Plaintiff” s property. Whether that property is Plaintiff by deed 0r by adverse

possession is an open question and related to other claims made by Plaintiff in this case. But

Plaintiff can establish a primafacie case for all elements 0f its trespass claim With clear and

speciﬁc evidence.

11
26. Texas has deﬁned a trespass as encompassing three elements: (1) entry (2) onto the

property of another (3) Without the property owner's consent 0r authorization. Envtl. Processing

Sys., L.C. v. FPL Farming Ltd, 457 S.W.3d 414, 419 (Tex. 2015). First, there have been

multiple entries onto Plaintiff’s property, namely by Defendants’ new fence and Defendants’

drainpipe.

27. According t0 Mr. Pletta, prior to the Defendants building their new fence, Plaintiff’s gate

always opened and closed Without any trouble. Pletta Aff. However, after Defendants new fence

was completed, Plaintiff” s gate had difﬁculty opening and closing, with the friction caused by the

end of the gate rubbing against the Defendants’ fence. Photographs attached hereto and

incorporated herein as Exhibits A-l and A-2 show that there is contact between the two wooden

structures. Plaintiff Claims that the 0.8 feet that the gate protrudes onto the Defendants’ lot is its

by adverse possession. See Part IV.B. 1 supra. If that
,
is true, then the new fence must be at least

partially on Plaintiff’s property, constituting a trespass. Such entry would obviously be without

the property owner’s consent 0r authorization. For instance, Defendants’ Motion is replete with

examples 0f Mr. Pletta opposing the Defendants building their new fence. Mr. Soo himself, in

his afﬁdavit, swears that Mr. Pletta complained to him about the new fence interfering With

Plaintiff’s gate. Def. Supp. M0t., EX. A (“ML Pletta claimed that the new fence interfered with
the operation 0f his driveway gate.”).

28. In addition, if the old fence was the boundary between the two properties by

acquiescence, then building the new fence closer to Plaintiffs house, as Defendant Soo admits t0

in his afﬁdavit, would also be a trespass. As stated in Part IV.B. 1 supra, Plaintiff has a claim for
,

adverse possession 0f the strip 0f land that was 0n Plaintiff s side 0f the fence before Defendants

tore down the old fence and built the new one without approval by 0r notice t0 Plaintiff. This is

12
also the source 0f Plaintiff’s boundary by acquiescence claim, whereby the previous owners 0f

Defendants’ property, the Johnsons, agreed t0 put the 01d fence in the same location it was in

2005, and allowed Plaintiff t0 use the land on its side of the fence for over a decade Without

complaint. See Pletta Aff., Johnson Aff. By tearing down the 01d fence and building the new one

closer t0 Plaintiff” s property than the previous fence had been Without permission, it can be

argued that Defendants trespassed 0n Plaintiff” s property.

29. Finally, Defendants have trespassed by placing a drainage pipe under Plaintiff” s property.

According t0 Mr. Pletta, 0n inspection 0f his property 0n 0r about May 29, 2019, he noticed that

a black plastic drainage pipe was buried under Plaintiff” s property. Photographs 0f this pipe

under Plaintiff’s property are attached hereto and incorporated herein as Exhibits A-3 and A-4.

This claim is not based 0n a claim of adverse possession 0r boundary by acquiescence. Plaintiff

has direct evidence that this pipe was placed under its property. This is certainly an entry onto

their property without authorization,

30. Despite Defendants’ claims t0 the contrary, there is some evidence t0 support Plaintiff s

trespass claim 0n multiple grounds. If the area occupied by its closed driveway gate is Mr.

Pletta’s by adverse possession, there is a reasonable inference that any physical interference with

its opening or closing would indicate that part 0f that interference would be 0n Plaintiff” s

property. Further, the strip 0f land that was 0n Plaintiff’s side 0f the 01d fence, which he has also

occupied and used for the past 10 years and for which he can make primafacz'e adverse

possession and boundary by acquiescence claims, also could reasonably constitute a trespass.

Finally, there is evidence of a trespass related t0 Defendants placing a drainage pipe under

Plaintiff” s property. Given the ample clear and speciﬁc evidence available t0 support multiple

trespass claims, Plaintiff should be allowed to move forward with those claims.

13
3. Declaratory Judgment

3 1. Plaintiff has sought a declaratory judgment in this case t0 essentially have this Court

declare the proper boundaries and ownership With regard to the property along the boundary

between Plaintiff and Defendants’ lots. Under Texas law, “a person “may obtain a determination

under this chapter When the sole issue concerning title t0 real property is the determination 0f the

proper boundary line between adjoining properties.” Tex. CiV. Prac. & Rem. Code § 37.004(c).

This section “speciﬁcally permits resolution 0f boundary disputes through declaratory judgment

actions.” Puga v. Salesi, N0. 01-14-00724-CV, 2015 Tex. App. LEXIS 6292, at *12 (TeX.

App.—H0uston [1st Dist] June 23, 2015, n0 pet).

32. It is unquestionable that Plaintiff is seeking a declaratory judgment t0 determine the

boundary between its and Defendants’ properties. In its Second Amended Petition, Plaintiff

explicitly states that it “requests 0f this Court a declaration establishing forever the property line

by and between Plaintiff and Defendant consistent With the correct boundary line and dimensions

0f the common boundary line. .” P1.
. 2d Am. Pet 14. Defendants claim that their fence is entirely

0n their property. See Defs. Supp. Mot. to Dism. EX. A. This is a justiciable controversy that this

Court has the power t0 resolve.

33. Further, Plaintiff” s request for declaratory judgment is linked to its “Boundary by

Acquiescence” and “Adverse Possession” claims. Plaintiff, in its Second Amended Petition,

states that “Plaintiff requests this Court establish forever the property line by and between

Plaintiff and Defendant consistent with the correct boundary line” between the two properties.

P1. 2d Am. Pet. 12. Bottom line, Plaintiff seeks t0 have this Court determine the disputed

boundary between its property and Defendants’. Under Texas law, this Court clearly has the

14
authority t0 do so. Plaintiff should be allowed to pursue this relief and asks the Court to deny

Defendants’ Motion as t0 this claim.

4. Violation 0fthe Texas Water Code

34. Defendants contend that Plaintiff cannot present a prima facie case for its claim that they

committed Violations 0f the Texas Water Code. However, there is ample photographic and

testimonial evidence to establish Violations of these provisions. Plaintiff has accused Defendants

0f diverting surface water from their property t0 Plaintiff’s in Violation 0f section 11.086 0f the

Texas Water Code. Under that section, “[n]0 person may divert or impound the natural ﬂow of

surface waters in this state, or permit a diversion or impounding by him to continue, in a manner

that damages the property of another by the overﬂow 0f the water diverted 0r impounded.” TeX.

Water Code § 11.086(a). That section gives a person Whose property has been injured by such a

diversion a cause of action to recover damages caused by such an overﬂow.

35. Here, Plaintiff can produce clear and speciﬁc evidence that (a) Defendants diverted or

impounded the natural ﬂow of surface water, and (b) that such water caused damage to

Plaintiff’s property. First, there is clear and speciﬁc evidence that Defendants diverted 0r

impounded the natural ﬂow 0f water. Mr. Pletta, trustee for the Plaintiff trust, states that

Defendants built a dam-like structure out of wooden logs on a low-lying area in their back yard.

In fact, Mr. Pletta took a photograph 0f this dam When he discovered it on May 29, 2019, which

is attached hereto and incorporated herein as “Exhibit A-6.” This clearly shows that a wooden

dam structure is “impounding” 0r “diverting” water that would have been ﬂowing onto

Defendants’ property. It is certainly sufﬁcient t0 make establish a primafacz'e case for a Violation

of section 11.086 0f the Texas Water Code. In fact, the water diversion continues t0 this day. See

Pletta Aff.

15
5. Deed Restriction Violations

36. Plaintiff can present a primafacie case for each element 0f its claim that Defendants

violated deed restrictions. Under the Creekview Estates Deed Restrictions (the “Restrictions”),

which are attached t0 Plaintiff’s Second Amended Petition as Exhibit E, Defendants’ shed and

surrounding area is in Violation of numerous provisions. First, under Section 3.01(e), such

structures must be “in areas attractively screened 0r concealed from View from the neighboring

property, pathways, and streets. However, Defendants’ shed is clearly Visible from Plaintiff’s

property. See Pletta Aff., Exhibit A-9. In addition, Mr. Pletta observed several loose Wires from

his property in Violation of section 3.01(n) 0f the Restrictions. Pletta Aff. Finally, and most

egregiously, Defendants’ shed is not set back anywhere near 8 feet from the property line. Mr.

Pletta has measured the distance, and the base 0f the shed is less than eight feet from his

driveway, which is farther from the shed than the property line. Pletta Afﬁ, Exhibits A-7 and A-

8. These Violations have not been addressed by the HOA. Pletta Aff.

37. Further, Plaintiff has standing to enforce these deed restrictions. Section 4.05 of the

Restrictions empowers a property owner t0 “enforce the [Restrictions] 0n his own behalf by

appropriate action, whether in law 0r in equity” upon failure 0f the Board 0f Directors t0 fail 0r

refuse t0 enforce them. Here, Mr. Pletta has repeatedly asked the President 0f the Homeowner’s

Association, Steve Pratt to handle the shed issue. See Pletta Aff; Exhibit A-l 1. Given their

consistent refusal and failure to deal With these Violations regarding Defendants’ shed, there is

beyond a reasonable case to be made that, according to section 4.05, Plaintiff is empowered to

enforce these deed restrictions 0n its own. Hence this claim in the current lawsuit.

16
38. Given the evidence 0f both Defendants’ failure to comply With the deed restrictions, as

well as the Plaintiff’s standing t0 take appropriate legal action t0 enforce them, this Court should

hold that Plaintiff has made its primafacie case by clear and speciﬁc evidence 0n this claim.

6. Conversion

39. Plaintiff can establish a primafacie case for every element 0f its conversion claim. T0

establish a conversion claim, a party must prove “(1) the plaintiff owned or had possession of the

property 0r entitlement t0 possession; (2) the defendant unlawfully and without authorization

assumed and exercised control over the property to the exclusion 0f, or inconsistent with, the

plaintiff‘s rights as an owner; (3) the plaintiff demanded return 0f the property; and (4) the

defendant refused t0 return the property.” Cypress Creek EMS v. Dolceﬁno, 548 S.W.3d 673,

684 (Tex. App.—Houst0n [lst Dist] 2018). Plaintiff has claimed in its petition that Defendant

converted the 01d fence, which Plaintiff partially owned.

40. Plaintiff owned and possessed the 01d fence. According t0 Mr. Pletta, he paid

approximately $98 for his portion of the fence. Pletta Aff. Further, A1 Johnson, Pletta’s former

next—door neighbor, conﬁrms that he attempted to split the cost of the fence With Pletta. Exhibit

D, p. 2. Further, Defendant unlawfully and Without authorization assumed and exercised control

over the fence when they had it torn down. Id. Finally, Plaintiff made a demand 0n Defendant for

the return 0f the property, Which was refused. Id. As stated above, Plaintiff’s claim for

conversion can be established by clear and speciﬁc evidence, and this Court should allow it to

move forward with said claim.

7. Trespass t0 Try Title

41. Plaintiff can further show that it can establish a primafacie case for its trespass t0 try title

claim. In a trespass-to-try-title action, the plaintiff is required t0 prove its title by proving (1) a

17
regular chain 0f title 0f conveyances from the sovereign to the plaintiff; (2) a superior title t0 that

0f the defendant out 0f a common source; (3) title by limitations; 0r (4) prior possession which

has not been abandoned. Vernon v. Perrien, 390 S.W.3d 47, 54-55 (Tex. App.—El Paso 2012).

Here, Plaintiff is attempting t0 establish title by limitations for both the area occupied by its gate

and the strip 0f land 0n its side 0f the 01d fence. See Part IV.B.1, supra. A trespass t0 try title is
a proper action by Which the court can adjudicate such a boundary dispute. See Vernon, 390

S.W.3d at 54. Plaintiff can easily establish a primafacie case on its trespass t0 try title by clear

and speciﬁc evidence.

8. Quiet Title

42. Plaintiff can establish a primafacie for its quiet title action as well With regard t0 its

claim 0n the strip 0f land . In order t0 establish a case t0 quiet title, a party must demonstrate (i)

an interest in a speciﬁc property, (ii) that title to the property is affected by a claim by the

defendant, and (iii) that claim, although facially valid, is invalid or unenforceable. Id. at 54—55.

Here, Plaintiff has an interest in the property to Which it is seeking to quiet title. See Part IV.B. 1,

supra (Adverse Possession and Boundary by Acquiescence), see also Exhibit G. Plaintiff is

attempting to quiet title t0 the strip 0f land that was 0n its side 0f the 01d fence, but over Which

Defendants built the new fence. However, Defendants have a competing claim to the land. See

Defs. Supp. Mot. to Dism, EX. A (Soo Aff.). Mr. Soo claims that they built the fence entirely on

their property. Finally, While the Soos claim is facially valid, given Plaintiff” s superior rights t0

that land based on adverse possession or boundary by acquiescence. See Part IV.B. 1, supra.

Plaintiff can establish its prima facie case by clear and speciﬁc evidence, and this claim should

not be dismissed by this Court.

9. Permanent Injunctive Relief

18
43. Finally, Defendants have asserted that Plaintiff cannot establish a primafacie case for its

request for permanent injunctive relief by clear and speciﬁc evidence. However, Plaintiff can

indeed d0 so. A party is entitled t0 injunctive relief when it can establish “(1) a wrongful act; (2)

imminent harm; (3) irreparable injury; and (4) no adequate remedy at law.” Leibovitz v. Sequoia

Real Estate Holdings, L.P., 465 S.W.3d 331, 350 (TeX. App.—Dallas 2015). The wrongful act

Plaintiff complains of is the Defendants building a fence 0n what it claims as Plaintiff’s own

property, rendering his driveway gate inoperable. See P1. 2d Am. Pet. Further, the harm is

imminent. Plaintiff has been unable t0 open his gate without signiﬁcant effort each time. See

Pletta Aff. This subj ects him to potential criminal charges every time he opens his gate, as was

demonstrated 0n April 30, 2020. Injury from this inability could deﬁnitely be irreparable,

especially if there is n0 way t0 move the gate without the possibility 0f criminal sanctions, as

well as through the loss and enj oyment 0f land that Plaintiff has used and enj oyed for over a

decade. Pletta Aff. Finally, there is n0 adequate remedy at law for the loss 0f real property that,

by right, Plaintiff should be able to use, but would not be able to if the fence remained in place;

land is irreplaceable. Because Plaintiff can show some clear and speciﬁc evidence for each

element of its request for permanent injunctive relief sufﬁcient t0 make a primafacie case. The

Court should deny Defendants’ Motion 0n that ground.

V.
ATTORNEY’S FEES

44. This Court should ﬁnd that Defendants’ TCPA motion is frivolous 0r ﬁled solely for

delay and award attorney’s fees t0 Plaintiff. Under the TCPA, the trial court has the option, in its

discretion, t0 award attorney’s fees t0 the nonmovant if it ﬁnds that the motion is “frivolous 0r

solely intended to delay” Tex. CiV. Prac. & Rem. Code § 27.009(b). There is surely evidence of

both here. First, Defendants knew that all 0f these causes 0f action accrued prior t0 April 30,

19
2020. Trying t0 establish that claims that accrued prior t0 the Call, the basis for Defendants’ use

0f the TCPA, are based 0n 0r in response t0 that call is frankly ludicrous. In addition, at the time

that Defendants made the Call, they knew that any disputes over the location of the fence were a

civil matter. See Fn. 1, supra, Exhibit F. Further, Defendants refused t0 allow even the si

Case Info

Judge

TOBOLOWSKY, EMILY Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 19, 2020

Case Filing Date

May 14, 2020

County

Parties

BOGGESS, JEFF R Attorney for the Plaintiff
CREEKVIEW OWNERS ASSOCIATION Defendant
ELLIOTT, RICHARD Attorney for the Plaintiff
KRATOVIL, CHRISTOPHER D Attorney for the Defendant
LINDNER, MATTHEW P Attorney for the Plaintiff
MARTIN, J EDWIN Attorney for the Plaintiff
MEADERS, KURT WOOD Attorney for the Defendant
PLETTA, ANN H. Plaintiff
PLETTA, TIMOTHY G Plaintiff
PLETTA, TIMOTHY GERARD Attorney for the Plaintiff
SHERWOOD, JOHN CHARLES Attorney for the Plaintiff
SNYDER, GLENN R Attorney for the Plaintiff
SOO, CECILIA Defendant
SOO, KEN Defendant
TIMOTHY G. PLETTA REVOCABLE TRUST Plaintiff
Christopher Kalis Attorneys for Plaintiffs
Cliff Riley Attorney
Alexander Gette Attorneys for Defendants
Timothy Greene Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: ANN H. PLETTA, et al vs. CECILIA SOO, et al

Preview

Related Topics

Case Info

Parties