Preview
FILED
9/16/2020 5:07 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
NO.
N0. DC20-06816-M
DC20—06816—M
TIMOTHY G.
G. PLETTA, Trustee, § IN THE DISTRICT COURT
for and on behalf of the §
ANN H. PLETTA and TIMOTHY §
G. PLETTA REVOCABLE TRUST,
G. §
and TIMOTHY G. PLETTA, Indv. §
§
Plaintiff,
Plaintiff. §
§
mmmmmmmmmmmmmmmm-
DALLAS COUNTY, TEXAS
vs.
VS. §
§
CECILIA SOO; KENNETH §
SOO, and CREEKVIEW OWNERS §
ASSOCIATION, a Texas §
Non-Profit Corporation,
Noanrofit §
§
Defendant. § 298 JUDICIAL DISTRICT
PLAINTIFF'S FOURTH AMENDED SWORN PETITION
PLAINTIFF‘S
COMES NOW, TIMOTHY G. PLETTA, Trustee, for and on behalf of
the ANN H. PLETTA and TIMOTHY G. PLETTA REVOCABLE TRUST {("THE
JITHE
TRUST")
TRUST“) and TIMOTHY G. PLETTA,
PLETTA. Individually (("PLETT
"PLETTA")
"J in the
above-referenced
above—referenced and cause nwnbered
numbered action complaining of CECILIA
S00,
SOD. KENNETH S00 ("S00") and CREEKVIEW'OWNERS
SOD ("SOD“) CREEKVIEW OWNERS ASSOCIATION, a Texas
HOA") and for causes of action
Non-Profit Corporation ("CREEKVIEW BOA“)
would show the court and the jury the following:
I.
I.
PARTIES
1.
l. TIMOTHY G. PLETTA, Trustee, for and on behalf of the ANN
H. PLETTA and TIMOTHY G.
G. PLETTA REVOCABLE TRUST may be served with
legal process by and through their attorney of record, Timothy G.
Pletta located at 150 Bethel Road, Coppell, Texas 75019.
PLAINTIFF'S FOURTH AMENDED SWORN PETITION Page 1
2.
2. TIMOTHY G.
TIMOTHY G. PLETTA,
PLETTA, is an Individual
is an Individual and
and may be served
may be served
with legal
with legal process
process by and through
by and through their
their attorney
attorney of record, Timothy
of record, Timothy
G.
G. Pletta located
Pletta located at
at 150
150 Bethel
Bethel Road,
Road, Coppell,
Coppell, Texas
Texas 75019.
75019.
3.
3. CECILIA SOO
CECILIA SOO has
has made
made and
and entered
entered aa general
general appearance.
appearance.
4.
4. KENNETH SOO
KENNETH SOO has
has made
made and
and entered general appearance.
entered aa general appearance.
5.
5. CREEKVIEW
CREEKVIEW OWNERS
OWNERS ASSOCIATION
ASSOCIATION is
is aa Texas
Texas Noanrofit
Non-Profit
Corporation has
Corporation has made
made and
and entered
entered aa general
general appearance.
appearance.
II.
II.
DISCOVERY CONTROL PLAN
6.
6. Plaintiffs allege discovery is to be conducted under
level two
level two (2)
(2) of
of the
the Discovery Control Plan.
III.
NATURE OF
0F DISPUTE
7.
7. This
This case
case involves theft, trespass and/or outright
encroachment
encroachment onto
onto THE TRUST'S real property which was acquired by
warranty deed in
warranty'deed in 1997,
1997, and/or title by acquiescence in 2005, and/or
by'acquiescence
title by the
title by the applicable ten (10) period.governing
(10) years limitations period governing
adverse
adverse possession.
possession. Additionally,
Additionally, this
this case
case involves
involves ground water
ground water
diversion,
diversion, multiple
multiple deed
deed restriction
restriction violations
violations knowingly ignored
knowingly ignored
by
by CREEKVIEW
CREEKVIEW HOA
HOA and
and conversion
conversion of
0f THE
THE TRUST's property'located
TRUST‘S property in
located in
Dallas
Dallas County,
County, Texas, by and
Texas, by and between
between adjacent land owners,
adjacent land owners, set
set
forth
forth in
in Exhibit
Exhibit "A"
"A” attached
attached hereto
hereto and
and incorporated herein by
incorporated herein by
reference.
reference.
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
AMENDED SWORN
SWORN PETITION
PETITION Page 22
Page
8.
8. This case
This case also
also involves
involves PLETTA'S
PLETTA's slander
slander per se claims
per se claims
against the
against the 300's,
SOO's, who
who knowingly
knowingly filed
filed aa Police Report, despite
Police Report, despite
their limited
their limited and
and restrictive
restrictive building
building permit,
permit, which the SOO's
which the S00' s
voluntarily accepted
voluntarily accepted from
from the
the City
City of
of Coppell,
Coppell, having been stamped
having been stamped
"All
“All disputes
disputes regarding property
regarding property line,
line, surveys
surveys and
and physical
physical
property are
property are civil
civil in
in nature...“
nature ... " and
and thereafter,
thereafter, ignored
ignored this
this
statement and proceeded
statement proceeded t0
to make defamatory statements
make false and defamatory statements of
of
and concerning
and concerning PLETTA such.as
such as “violently [their] fence" “on
"violently shaking [their] "on
three {3}
three occasions" and alleged false and/or fabricated "damages
(3) occasions"
exceeding $750.00“ driven through the edges of
$750.00" such as nail holes drivEn
their cedar boards (on
their SOO's side of the fence most likely made
(on the SOO'S
by SOO's negligent contractor) but now claimed to be caused by
by
PLETTA,
PLETTA, which lead to PLETTA being charged with a Class A
Misdemeanor
Misdemeanor for
for Criminal Mischief, arrested, and
finger printed and
photographed, Criminal Complaint Number M2015132.
photographed,
IV.
IV .
BACKGROUND FACTS
9.
9. At
At all
all material times PLETTA, who sold transferred and
conveyed
conveyed to the TRUST in 2010,
to the were and are the owner of that
portion of
of real property described as follows:
Warranty Deed,
Deed, dated September 17, 1997,
September 17, 1997, and is recorded
in Volume 88116,
in.Volume 88116, Page 3069, of the Deed
Page 3069, Deed Records
Records of Dallas
County,
Caunty; Texas
Texas,, being
being aa port ion of Lot
portion.of Lot 1, Block-A
l, Block A of Creek
of Creek
View Addition, an
Viequddition, an Addition
Addition to
to the City‘of
the City Cappell, in
of Coppell, in fee
fee
simple
simple of
of aa parcel
parcel of
of residential
residential real
real property located
property located
in
in Dallas
Dallas County,
County, Texa~,
Texag, more
more commonly
commonly known
known as
as 150 East
150 East
Bethel
Bethel Road,
Road, City
City of
of Coppell,
Coppell, Dallas
Dallas County,
County, Texas.
Texas.
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
BLENDED SWORN
SWORN PETITION
PETITION Page 33
Page
10.
10. In 2005,
In 2005, the
the previous
previous adjacent
adjacent land owner constructed
land owner constructed aa
wooden fence
wooden fence and
and stone
stone retaining
retaining wall
wall without survey, without
without aa survey, without aa
permit from
permit from the
the City
City of
of Coppell
Coppell and without permission
and without permission from
from the
the
CREEKVIEW HOA,
CREEKVIEW HOA, the
the latter
latter which
which was
was in
in violation
violation of the parties
of the parties
applicable deed
applicable deed restrictions.
restrictions, The lack
The lack of
of aa survey
survey 0f the boundary
of the boundary
line
line between
between. adjoining
adjoining land
land owners
owners lead
lead to
to uncertainty;
uncertainty; and
and
therefore, the
therefore, the location
location of
of the
the fence being
being built
built was
was questioned,
questioned,
controverted.
disputed and controverted. order to remedy the uncertainty and
In order
dispute, the
dispute, the parties would be replaced "in
parties agreed the wooden fence Would "in
the
the same
same location it before"
it had been located before” work which was
in February 2006.
completed in
11.
ll. In order t0
In or deny whether the previous land
to confirm or
owner's wooden fence and stone retaining wall were constructed on
owner‘s
PLETTA'S real property, PLETTA obtained aa Registered Plat from L.
PLETTA's L.
Lynn
Lynn Kadleck,
Kadleck, Kadleck &
& Associates, aa Registered Professional Land
Registered.Professional
Surveyor,
Surveyor, identifying the location and existence of the adjacent
fence
fence and stone retaining wall. This Plat is dated April 18, 2008,
and set
set forth in Exhibit “B"
"B" attached hereto and incorporated
herein by
by reference.
12.
12. The resulting litigation was docketed
docketed. DC08—01366~F,
DC0B-01366-F,
styled:
styled: Timothy G. Pletta and Ann H. Pletta v. Albert Johnson and
Timothv G.
Kathleen
Kathleen Johnson,
Johnson, resulting,
resulting, in
in part,
part, in
in the
the Johnsons' removing
Johnsons‘ removing
their
their stone
stone wall
wall encroachment
encroachment from
from PLETTA's
PLETTA'S real
real property, which
property, which
did not
did not have
have aa previous
previous agreement
agreement between
between adjoining land owners
adjoining land and
owners and
confirming
confirming the
the location
location of
of the
the 2005
2005 fence,
fence, which
which had “located
been "located
had been
exactly
exactly in
in the
the same
same location
location as
as the
the original fence" as
original fence" as the common
the common
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
AMENDED SWORN
SWORN PETITION
PETITION Page
Page 44
boundary line.
boundary line.
13.
l3. THE TRUST
THE TRUST and
and the
the entire
entire Pletta
Pletta family
family has either used
has either used
their real
their real property,
property, used.their
used their real
real property acquired by agreement
property acquired.by agreement
and/or have
and/or have used
used the
the real
real property peaceable,
property peaceable, actual,
actual, open,
open,
notorious, hostile
notorious, hostile and
and adverse
adverse for
for aa period exceeding ten
period exceeding ten (10)
(10)
years,
years, including
including to
to storing
storing its
its open gate,
open gate, planting
planting bushes,
bushes,
installing mulch,
installing mulch, spraying'weeds, parking vehicles, locating‘tools,
spraying weeds, parking”vehicles, locating tools,
air compressor,
air compressor, jack, erecting
floor jack, erecting and
and using ladders, playing
using ladders, playing
basketball,
basketball, and
and responded to
t0 not less
less than two (2)
(2) written
complaints from
complaints the City of Coppell Code Enforcement regarding the
from the
height 0f
height of Pletta's grass and Pletta's weeds after summer vacation,
and most
and most recently,
recently, Pletta' s
after the Pletta's residence sustained fire
damage,
damage, Pletta 's building materials and shingles for
of Pletta’s
storage of
more
more than
than twelve (12)
(12) months in 2018 through 2019.
Notwithstanding,
Notwithstanding, SOO's have encroached upon THE TRUST’S
TRUST'S real
property by building
property by building aa new wooden fence and claiming that portion
of
of THE
THE TRUST'S real property as their own.
14.
l4. S00 acquired their real property on June 1,
SOO acquired l, 2016. By May
By
19,
19, 2019,
2019, SOO TRUST'S real property in the
SOO claimed ownership to THE TRUST's
front,
front, despite
despite THE
THE TRUST'
TRUST‘Ss underground
underground sprinklers having‘ been
sprinklers having
located
located there,
there, and
and claimed
claimed ownership
ownership to
to THE TRUST'S real
THE TRUST'S property
real property
in
in the
the rear,
rear, by
by burying
burying aa surface
surface water
water drainage pipe onto
drainage pipe and
onto and
under
under ground
ground on
0n THE
THE TRUST'
TRUST‘Ss real
real property.
property. SOO
SOO also directed
also directed
Frontier
Frontier to
to bury
bury cables
cables on
on the
the west
west side
side of
of THE TRUST'S driveway,
THE TRUST'S driveway,
instead
instead of
of the
the east,
east, where
where the
the cables
cables were
were previously
previously buried,
hmried,
resulting
resulting in
in damages
damages exceeding
exceeding $2,000.00
$2,000.00 to
to THE
THE TRUST'S residence
TRUST'S residence
PLAINTIFF'S
PLAINTIFF'S FOURTH WED
FOURTH AMENDED SWORN
SWORN PETITION
PETITION
U‘lli
Page 5
Page
and damaged
and damaged underground
underground sprinkler
sprinkler lines.
lines. Accordingly, THE
Accordingly, THE TRUST
TRUST
sent written
sent written notice
notice and
and demand
demand t0
to vacate
vacate on
on May
May 20, 2019, attached
20, 2019, attached
Exhibit “A"
as Exhibit
as and incorporated
"A" and incorporated herein
herein by
by reference.
reference.
15.
15. Notwithstanding, and
Notwithstanding, and at
at all
all relevant
relevant times
times since
since 1997,
1997,
THE
THE TRUST
TRUST and
and the
the entire
entire Pletta
Pletta family
family' have used
have and been
used and been
responsible for
responsible for the
the real
real property
property made
made the
the basis
basis of
of this
this suit;
suit,
un ti 1 the
until the SOO'S bu i 1 t aa new
S00 ' s built new fence in
in March
March 2020, and encroached
2 0 2 O, and encroached
onto THE
onto THE TRUST'S
TRUST'S real
real property,
property, and
and in
in part,
part, rendered THE TRUST'S
rendered THE TRUST'S
driveway gate t0
driveway to no longer operate
operate without actual and substantial
substantial
interference.
interference.
16.
l6. By building a
By dam, SOO knowingly and intentionally have
a dam,
been diverting
been diverting or
or attempting to
to divert the natural flow of surface
water
water or
or groundwater from their driveway, gutters, and side yard
onto
onto THE
THE TRUST's
TRUST'S real property causing damages to THE TRUST'S real
property.
property.
17.
1?. S00 constructed an auxiliary wooden structure, which is
SOO'ConstruCted
visible,
visible, has
has wires exposed, and is located in the side yard less
than
than eight
eight (8)
(8) feet
feet from
from the lot line, storing
storing garden and other
exterior
exterior tools,
tools, some
some which
which may
may be
be prone
prone to
t0 cause
cause aa fire.
fire. In March
In March
2020,
2020, and
and although
although the
the City
City of
0f Coppell
Coppell Code
Code Enforcement confirmed
Enforcement confirmed
SOO's
SOO'S auxiliary
auxiliary wooden
wooden structure
structure is
is less
legs than
than eight
eight (8)
(8) feet from
feet from
the
the lot
lot line,
line, and
and in
in violation
violation of
of the
the City
City of
0f Coppell
Coppell Ordinance,
Ordinance,
they, the
they, City of
the City of Coppell
Coppell Code
Code Enforcement,
Enforcement, by
by and
and through
through the
the City
City
Attorney,
Attorney, has
has instructed
instructed them
them to
to take
take no
no action.
action.
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
AMENDED SWORN
SWORN PETITION
PETITION Page 66
Pag-e
18.
18. THE TRUST
THE TRUST has
has standing
standing t0
to enforce
enforce the
the applicable
applicable City
City
Code and
Code and deed
deed restrictions,
restrictions, as
as the
the City
City of
of Coppell
Coppell and
and CREEKVIEW
CREEKVIEW
HOA, despite
HOA, despite having
having been
been requested
requested in
in writing,
writing, have
have failed and/or
and/or
refused to
refused to take
take any
any action.
action.
19.
19. SOO has
SOO in conversiou
engaged in conversion by discarding the old
old
fence, relating to that portion
fence, portion previously
previously paid
paid for by THE TRUST.
20.
20. In addition to actual, nominal, trespass, and punitive
damages,
damages, THE TRUST seeks a trespass to try title action and a
declaratory judgment to forever declare the boundary line by and
between THE TRUST and.SOO
between.THE and SOO consistent with.PLETTA‘s
with PLETTA' s warranty deed in
1997,
1997, and/or title by
by acquiescence in 2005, and/or title by the
applicable ten ( 10)
(10) years limitations period governing adverse
possession and seeks aa permanent injunction to remove the wooden
pOSSession
fence
fence which encroached on THE TRUST'
which.encroached TRUST'Ss property, including aa request
to
to the to appoint a
the Court to a surveyor to survey the real property in
question and make aa report to the Court pursuant to TRCP 796.
v.
V.
JURISDICTION AND VENUE
21.
21. This suit is
is brought pursuant
purSuant to the laws of the State of
Texas
Texas for
for damages within the minimal jurisdictional limits of this
Court,
Court, which THE TRUST and PLETTA are entitled to receive as
compensation described below. Accordingly, this Court has
jurisdiction
jurisdiction. over this matter. Venue
'Venue is mandatory
mandatory' in Dallas
County, Texas pursuant to CPRC §§ 15.011.
County, 15.011.
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
AMENDED SWORN
SWORN PETITION
PETITION Page
Page 77
VI.
VI.
NOTICE; CONDITIONS
NOTICE; CONDITIONS PRECEDENT AND DEMAND
PRECEDENT AND DEMAND
22.
22. Pursuant
Pursuant to
to Rule
Rule 54
54 of
of the
the Texas
Texas Rules
Rules of
of Civil
Civil
Procedure, all
Procedure, all other
other conditions
conditions precedent
precedent necessary to maintain
necessary to maintain the
the
causes of
causes of action
action herein
herein have
have been
been performed
performed or have occurred,
or have occurred,
including submitting
including submitting written
written demand
demand to
to vacate letter dated
vacate letter dated May
May 20,
20,
2019, certified mail, attached
attached hereto
hereto as
as Exhibit
Exhibit "A”
"A" and
and
2019, certified mail,
incorporated herein
incorporated herein by
by reference.
reference.
23.
23. THE TRUST-and
THE TRUST and PLETTA incorporate herein by reference the
PLETTA incorporate
TRUST'S Response
TRUST'S to SOO's Motion to Dismiss pursuant to the Texas
Response to
Citizens
Citizens Participation Act,
Participation. Act, including
including' but not limited to its
and all included and incorporated by reference exhibits,
response and
response
attachments, affidavits and evidence, for which judicial notice is
attachments,
requested.
requested.
24.
24. THE
THE TRUST and PLETTA incorporate herein by reference the
TRUST's
TRUST‘S Notice
Notice of
0f Filing Certified Copies of Public Records, for
which
which judicial
judicial notice is
is requested, including but not limited to
said
said "Notice:
“Notice: It
It is the applicant's responsibility to know and
abide
abide by
by the
the accurate
accurate property line and
anfi current floodplain
floodplain
boundaries.
boundaries. This
This permit
permit should
should not
not be
be construed
Construed as approval to
as approval to
remove
remove or destroy the
or destroy property of
the property of others.
others. Be
Be advised
advised that all
that all
disputes
disputes regarding
regarding property
property line,
line, surveys
surveys and
and physical property'are
physical property are
civil
civil in
in nature
nature between
between the
the private
private parties
parties effected
effected per City
the City
per the
of
of Coppell
Coppell attorney.
attorney."11
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
AMENDED SWORN
SWORN PETITION
PETITION Page 8B
Page
VII.
VII.
CLAIM TO
CLAIM TO QUIET
QUIET TITLEféDVERSE
TITLE/ADVERSE POSSESSION
POSSESSION
25.
25. THE TRUST
THE TRUST repeats
repeats and
and alleges
alleges the
the above
above paragraphs
paragraphs set
set
herein and incorporates
forth herein incorporates the
the same
same by
by reference.
reference.
26.
26. material times PLETTA,
At all material PLETTA, who sold
sold transferred and
conveyed to the TRUST in
conveyed in 2010,
2010, of that
were and are the owner of
of real preperty
portion 0f as follows:
property described as
Deed, dated September l7,
Warranty Deed, 17, 1997,
1997, and is recorded
in Volume-88116,
in Volume 88116, Page 3069, of the Deed.Records
Deed Records of Dallas
County, Texas,
County, Texas , being'a portion of Lot 1,
being a portion.of l, Block'A
Block A of Creek
View Addition, an Addition to the City
Viequddition, of Coppell, in fee
City'of
simple 0f a parcel 0f
of a of residential real property located
in Dallas County, Texas, more commonly known as 150 East
in
Bethel Road,
Road, City of Coppell, Dallas County, Texas.
27.
27. In 2005,
2005, the previous adjacent land owner constructed aa
wooden fence and stone retaining wall without aa survey, without aa
permit from the City of
0f Coppell and without permission from the
CREEKVIEW HOA,
HOA, the latter which was in violation of the parties
applicable deed restrictions. The lack of aa survey of the boundary
line between adjoining land owners lead to uncertainty;
uncertainty: and
therefore,
therefore, the location of
0f the fence being built was questioned,
disputed and controverted. In order to remedy the uncertainty and
dispute,
dispute, the parties agreed the wooden fence “in
fence would be replaced "in
the
the same location it
it had been located before" work which was
completed in February 2006.
PLAINTIFF'S
PLAINTIFF'S FOURTH
FOURTH AMENDED
AMENDED SWORN
SWORN PETITION
PETITION Page
Page 99
28.
28. In order
In order to
to confirm
confirm or
or deny
deny whether
whether the previous land
the previous land
owner's wooden
owner's wooden fence
fence and
and stone
stone retaining
retaining wall were constructed
wall were constructed on
on
PLETTA's real
PLETTA‘S real property,
property, PLETTA
PLETTA Obtained
obtained aa Registered Plat from
Registered Plat from L.
L.
Lynn Kadleck,
Lynn Kadleck, Kadleck
Kadleck && Associates,
Associates, aa Registered Professional Land
Registered Professional Land
Surveyor, identifying
Surveyor, identifying the
the location
location and
and existence
existence of the adjacent
of the adjacent
fence and stone
fence and retaining wall.
stone retaining wall. This Plat
This Plat is dated April
is dated April 18,
18, 2008,
2008,
and set
and set forth
forth in
in Exhibit
Exhibit "B“
"B" attached hereto
attached and incorporated
hereto and incorporated
herein by
herein by
Preview
FILED 9/16/2020 5:07 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY NO. N0. DC20-06816-M DC20—06816—M TIMOTHY G. G. PLETTA, Trustee, § IN THE DISTRICT COURT for and on behalf of the § ANN H. PLETTA and TIMOTHY § G. PLETTA REVOCABLE TRUST, G. § and TIMOTHY G. PLETTA, Indv. § § Plaintiff, Plaintiff. § § mmmmmmmmmmmmmmmm- DALLAS COUNTY, TEXAS vs. VS. § § CECILIA SOO; KENNETH § SOO, and CREEKVIEW OWNERS § ASSOCIATION, a Texas § Non-Profit Corporation, Noanrofit § § Defendant. § 298 JUDICIAL DISTRICT PLAINTIFF'S FOURTH AMENDED SWORN PETITION PLAINTIFF‘S COMES NOW, TIMOTHY G. PLETTA, Trustee, for and on behalf of the ANN H. PLETTA and TIMOTHY G. PLETTA REVOCABLE TRUST {("THE JITHE TRUST") TRUST“) and TIMOTHY G. PLETTA, PLETTA. Individually (("PLETT "PLETTA") "J in the above-referenced above—referenced and cause nwnbered numbered action complaining of CECILIA S00, SOD. KENNETH S00 ("S00") and CREEKVIEW'OWNERS SOD ("SOD“) CREEKVIEW OWNERS ASSOCIATION, a Texas HOA") and for causes of action Non-Profit Corporation ("CREEKVIEW BOA“) would show the court and the jury the following: I. I. PARTIES 1. l. TIMOTHY G. PLETTA, Trustee, for and on behalf of the ANN H. PLETTA and TIMOTHY G. G. PLETTA REVOCABLE TRUST may be served with legal process by and through their attorney of record, Timothy G. Pletta located at 150 Bethel Road, Coppell, Texas 75019. PLAINTIFF'S FOURTH AMENDED SWORN PETITION Page 1 2. 2. TIMOTHY G. TIMOTHY G. PLETTA, PLETTA, is an Individual is an Individual and and may be served may be served with legal with legal process process by and through by and through their their attorney attorney of record, Timothy of record, Timothy G. G. Pletta located Pletta located at at 150 150 Bethel Bethel Road, Road, Coppell, Coppell, Texas Texas 75019. 75019. 3. 3. CECILIA SOO CECILIA SOO has has made made and and entered entered aa general general appearance. appearance. 4. 4. KENNETH SOO KENNETH SOO has has made made and and entered general appearance. entered aa general appearance. 5. 5. CREEKVIEW CREEKVIEW OWNERS OWNERS ASSOCIATION ASSOCIATION is is aa Texas Texas Noanrofit Non-Profit Corporation has Corporation has made made and and entered entered aa general general appearance. appearance. II. II. DISCOVERY CONTROL PLAN 6. 6. Plaintiffs allege discovery is to be conducted under level two level two (2) (2) of of the the Discovery Control Plan. III. NATURE OF 0F DISPUTE 7. 7. This This case case involves theft, trespass and/or outright encroachment encroachment onto onto THE TRUST'S real property which was acquired by warranty deed in warranty'deed in 1997, 1997, and/or title by acquiescence in 2005, and/or by'acquiescence title by the title by the applicable ten (10) period.governing (10) years limitations period governing adverse adverse possession. possession. Additionally, Additionally, this this case case involves involves ground water ground water diversion, diversion, multiple multiple deed deed restriction restriction violations violations knowingly ignored knowingly ignored by by CREEKVIEW CREEKVIEW HOA HOA and and conversion conversion of 0f THE THE TRUST's property'located TRUST‘S property in located in Dallas Dallas County, County, Texas, by and Texas, by and between between adjacent land owners, adjacent land owners, set set forth forth in in Exhibit Exhibit "A" "A” attached attached hereto hereto and and incorporated herein by incorporated herein by reference. reference. PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED AMENDED SWORN SWORN PETITION PETITION Page 22 Page 8. 8. This case This case also also involves involves PLETTA'S PLETTA's slander slander per se claims per se claims against the against the 300's, SOO's, who who knowingly knowingly filed filed aa Police Report, despite Police Report, despite their limited their limited and and restrictive restrictive building building permit, permit, which the SOO's which the S00' s voluntarily accepted voluntarily accepted from from the the City City of of Coppell, Coppell, having been stamped having been stamped "All “All disputes disputes regarding property regarding property line, line, surveys surveys and and physical physical property are property are civil civil in in nature...“ nature ... " and and thereafter, thereafter, ignored ignored this this statement and proceeded statement proceeded t0 to make defamatory statements make false and defamatory statements of of and concerning and concerning PLETTA such.as such as “violently [their] fence" “on "violently shaking [their] "on three {3} three occasions" and alleged false and/or fabricated "damages (3) occasions" exceeding $750.00“ driven through the edges of $750.00" such as nail holes drivEn their cedar boards (on their SOO's side of the fence most likely made (on the SOO'S by SOO's negligent contractor) but now claimed to be caused by by PLETTA, PLETTA, which lead to PLETTA being charged with a Class A Misdemeanor Misdemeanor for for Criminal Mischief, arrested, and finger printed and photographed, Criminal Complaint Number M2015132. photographed, IV. IV . BACKGROUND FACTS 9. 9. At At all all material times PLETTA, who sold transferred and conveyed conveyed to the TRUST in 2010, to the were and are the owner of that portion of of real property described as follows: Warranty Deed, Deed, dated September 17, 1997, September 17, 1997, and is recorded in Volume 88116, in.Volume 88116, Page 3069, of the Deed Page 3069, Deed Records Records of Dallas County, Caunty; Texas Texas,, being being aa port ion of Lot portion.of Lot 1, Block-A l, Block A of Creek of Creek View Addition, an Viequddition, an Addition Addition to to the City‘of the City Cappell, in of Coppell, in fee fee simple simple of of aa parcel parcel of of residential residential real real property located property located in in Dallas Dallas County, County, Texa~, Texag, more more commonly commonly known known as as 150 East 150 East Bethel Bethel Road, Road, City City of of Coppell, Coppell, Dallas Dallas County, County, Texas. Texas. PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED BLENDED SWORN SWORN PETITION PETITION Page 33 Page 10. 10. In 2005, In 2005, the the previous previous adjacent adjacent land owner constructed land owner constructed aa wooden fence wooden fence and and stone stone retaining retaining wall wall without survey, without without aa survey, without aa permit from permit from the the City City of of Coppell Coppell and without permission and without permission from from the the CREEKVIEW HOA, CREEKVIEW HOA, the the latter latter which which was was in in violation violation of the parties of the parties applicable deed applicable deed restrictions. restrictions, The lack The lack of of aa survey survey 0f the boundary of the boundary line line between between. adjoining adjoining land land owners owners lead lead to to uncertainty; uncertainty; and and therefore, the therefore, the location location of of the the fence being being built built was was questioned, questioned, controverted. disputed and controverted. order to remedy the uncertainty and In order dispute, the dispute, the parties would be replaced "in parties agreed the wooden fence Would "in the the same same location it before" it had been located before” work which was in February 2006. completed in 11. ll. In order t0 In or deny whether the previous land to confirm or owner's wooden fence and stone retaining wall were constructed on owner‘s PLETTA'S real property, PLETTA obtained aa Registered Plat from L. PLETTA's L. Lynn Lynn Kadleck, Kadleck, Kadleck & & Associates, aa Registered Professional Land Registered.Professional Surveyor, Surveyor, identifying the location and existence of the adjacent fence fence and stone retaining wall. This Plat is dated April 18, 2008, and set set forth in Exhibit “B" "B" attached hereto and incorporated herein by by reference. 12. 12. The resulting litigation was docketed docketed. DC08—01366~F, DC0B-01366-F, styled: styled: Timothy G. Pletta and Ann H. Pletta v. Albert Johnson and Timothv G. Kathleen Kathleen Johnson, Johnson, resulting, resulting, in in part, part, in in the the Johnsons' removing Johnsons‘ removing their their stone stone wall wall encroachment encroachment from from PLETTA's PLETTA'S real real property, which property, which did not did not have have aa previous previous agreement agreement between between adjoining land owners adjoining land and owners and confirming confirming the the location location of of the the 2005 2005 fence, fence, which which had “located been "located had been exactly exactly in in the the same same location location as as the the original fence" as original fence" as the common the common PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED AMENDED SWORN SWORN PETITION PETITION Page Page 44 boundary line. boundary line. 13. l3. THE TRUST THE TRUST and and the the entire entire Pletta Pletta family family has either used has either used their real their real property, property, used.their used their real real property acquired by agreement property acquired.by agreement and/or have and/or have used used the the real real property peaceable, property peaceable, actual, actual, open, open, notorious, hostile notorious, hostile and and adverse adverse for for aa period exceeding ten period exceeding ten (10) (10) years, years, including including to to storing storing its its open gate, open gate, planting planting bushes, bushes, installing mulch, installing mulch, spraying'weeds, parking vehicles, locating‘tools, spraying weeds, parking”vehicles, locating tools, air compressor, air compressor, jack, erecting floor jack, erecting and and using ladders, playing using ladders, playing basketball, basketball, and and responded to t0 not less less than two (2) (2) written complaints from complaints the City of Coppell Code Enforcement regarding the from the height 0f height of Pletta's grass and Pletta's weeds after summer vacation, and most and most recently, recently, Pletta' s after the Pletta's residence sustained fire damage, damage, Pletta 's building materials and shingles for of Pletta’s storage of more more than than twelve (12) (12) months in 2018 through 2019. Notwithstanding, Notwithstanding, SOO's have encroached upon THE TRUST’S TRUST'S real property by building property by building aa new wooden fence and claiming that portion of of THE THE TRUST'S real property as their own. 14. l4. S00 acquired their real property on June 1, SOO acquired l, 2016. By May By 19, 19, 2019, 2019, SOO TRUST'S real property in the SOO claimed ownership to THE TRUST's front, front, despite despite THE THE TRUST' TRUST‘Ss underground underground sprinklers having‘ been sprinklers having located located there, there, and and claimed claimed ownership ownership to to THE TRUST'S real THE TRUST'S property real property in in the the rear, rear, by by burying burying aa surface surface water water drainage pipe onto drainage pipe and onto and under under ground ground on 0n THE THE TRUST' TRUST‘Ss real real property. property. SOO SOO also directed also directed Frontier Frontier to to bury bury cables cables on on the the west west side side of of THE TRUST'S driveway, THE TRUST'S driveway, instead instead of of the the east, east, where where the the cables cables were were previously previously buried, hmried, resulting resulting in in damages damages exceeding exceeding $2,000.00 $2,000.00 to to THE THE TRUST'S residence TRUST'S residence PLAINTIFF'S PLAINTIFF'S FOURTH WED FOURTH AMENDED SWORN SWORN PETITION PETITION U‘lli Page 5 Page and damaged and damaged underground underground sprinkler sprinkler lines. lines. Accordingly, THE Accordingly, THE TRUST TRUST sent written sent written notice notice and and demand demand t0 to vacate vacate on on May May 20, 2019, attached 20, 2019, attached Exhibit “A" as Exhibit as and incorporated "A" and incorporated herein herein by by reference. reference. 15. 15. Notwithstanding, and Notwithstanding, and at at all all relevant relevant times times since since 1997, 1997, THE THE TRUST TRUST and and the the entire entire Pletta Pletta family family' have used have and been used and been responsible for responsible for the the real real property property made made the the basis basis of of this this suit; suit, un ti 1 the until the SOO'S bu i 1 t aa new S00 ' s built new fence in in March March 2020, and encroached 2 0 2 O, and encroached onto THE onto THE TRUST'S TRUST'S real real property, property, and and in in part, part, rendered THE TRUST'S rendered THE TRUST'S driveway gate t0 driveway to no longer operate operate without actual and substantial substantial interference. interference. 16. l6. By building a By dam, SOO knowingly and intentionally have a dam, been diverting been diverting or or attempting to to divert the natural flow of surface water water or or groundwater from their driveway, gutters, and side yard onto onto THE THE TRUST's TRUST'S real property causing damages to THE TRUST'S real property. property. 17. 1?. S00 constructed an auxiliary wooden structure, which is SOO'ConstruCted visible, visible, has has wires exposed, and is located in the side yard less than than eight eight (8) (8) feet feet from from the lot line, storing storing garden and other exterior exterior tools, tools, some some which which may may be be prone prone to t0 cause cause aa fire. fire. In March In March 2020, 2020, and and although although the the City City of 0f Coppell Coppell Code Code Enforcement confirmed Enforcement confirmed SOO's SOO'S auxiliary auxiliary wooden wooden structure structure is is less legs than than eight eight (8) (8) feet from feet from the the lot lot line, line, and and in in violation violation of of the the City City of 0f Coppell Coppell Ordinance, Ordinance, they, the they, City of the City of Coppell Coppell Code Code Enforcement, Enforcement, by by and and through through the the City City Attorney, Attorney, has has instructed instructed them them to to take take no no action. action. PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED AMENDED SWORN SWORN PETITION PETITION Page 66 Pag-e 18. 18. THE TRUST THE TRUST has has standing standing t0 to enforce enforce the the applicable applicable City City Code and Code and deed deed restrictions, restrictions, as as the the City City of of Coppell Coppell and and CREEKVIEW CREEKVIEW HOA, despite HOA, despite having having been been requested requested in in writing, writing, have have failed and/or and/or refused to refused to take take any any action. action. 19. 19. SOO has SOO in conversiou engaged in conversion by discarding the old old fence, relating to that portion fence, portion previously previously paid paid for by THE TRUST. 20. 20. In addition to actual, nominal, trespass, and punitive damages, damages, THE TRUST seeks a trespass to try title action and a declaratory judgment to forever declare the boundary line by and between THE TRUST and.SOO between.THE and SOO consistent with.PLETTA‘s with PLETTA' s warranty deed in 1997, 1997, and/or title by by acquiescence in 2005, and/or title by the applicable ten ( 10) (10) years limitations period governing adverse possession and seeks aa permanent injunction to remove the wooden pOSSession fence fence which encroached on THE TRUST' which.encroached TRUST'Ss property, including aa request to to the to appoint a the Court to a surveyor to survey the real property in question and make aa report to the Court pursuant to TRCP 796. v. V. JURISDICTION AND VENUE 21. 21. This suit is is brought pursuant purSuant to the laws of the State of Texas Texas for for damages within the minimal jurisdictional limits of this Court, Court, which THE TRUST and PLETTA are entitled to receive as compensation described below. Accordingly, this Court has jurisdiction jurisdiction. over this matter. Venue 'Venue is mandatory mandatory' in Dallas County, Texas pursuant to CPRC §§ 15.011. County, 15.011. PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED AMENDED SWORN SWORN PETITION PETITION Page Page 77 VI. VI. NOTICE; CONDITIONS NOTICE; CONDITIONS PRECEDENT AND DEMAND PRECEDENT AND DEMAND 22. 22. Pursuant Pursuant to to Rule Rule 54 54 of of the the Texas Texas Rules Rules of of Civil Civil Procedure, all Procedure, all other other conditions conditions precedent precedent necessary to maintain necessary to maintain the the causes of causes of action action herein herein have have been been performed performed or have occurred, or have occurred, including submitting including submitting written written demand demand to to vacate letter dated vacate letter dated May May 20, 20, 2019, certified mail, attached attached hereto hereto as as Exhibit Exhibit "A” "A" and and 2019, certified mail, incorporated herein incorporated herein by by reference. reference. 23. 23. THE TRUST-and THE TRUST and PLETTA incorporate herein by reference the PLETTA incorporate TRUST'S Response TRUST'S to SOO's Motion to Dismiss pursuant to the Texas Response to Citizens Citizens Participation Act, Participation. Act, including including' but not limited to its and all included and incorporated by reference exhibits, response and response attachments, affidavits and evidence, for which judicial notice is attachments, requested. requested. 24. 24. THE THE TRUST and PLETTA incorporate herein by reference the TRUST's TRUST‘S Notice Notice of 0f Filing Certified Copies of Public Records, for which which judicial judicial notice is is requested, including but not limited to said said "Notice: “Notice: It It is the applicant's responsibility to know and abide abide by by the the accurate accurate property line and anfi current floodplain floodplain boundaries. boundaries. This This permit permit should should not not be be construed Construed as approval to as approval to remove remove or destroy the or destroy property of the property of others. others. Be Be advised advised that all that all disputes disputes regarding regarding property property line, line, surveys surveys and and physical property'are physical property are civil civil in in nature nature between between the the private private parties parties effected effected per City the City per the of of Coppell Coppell attorney. attorney."11 PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED AMENDED SWORN SWORN PETITION PETITION Page 8B Page VII. VII. CLAIM TO CLAIM TO QUIET QUIET TITLEféDVERSE TITLE/ADVERSE POSSESSION POSSESSION 25. 25. THE TRUST THE TRUST repeats repeats and and alleges alleges the the above above paragraphs paragraphs set set herein and incorporates forth herein incorporates the the same same by by reference. reference. 26. 26. material times PLETTA, At all material PLETTA, who sold sold transferred and conveyed to the TRUST in conveyed in 2010, 2010, of that were and are the owner of of real preperty portion 0f as follows: property described as Deed, dated September l7, Warranty Deed, 17, 1997, 1997, and is recorded in Volume-88116, in Volume 88116, Page 3069, of the Deed.Records Deed Records of Dallas County, Texas, County, Texas , being'a portion of Lot 1, being a portion.of l, Block'A Block A of Creek View Addition, an Addition to the City Viequddition, of Coppell, in fee City'of simple 0f a parcel 0f of a of residential real property located in Dallas County, Texas, more commonly known as 150 East in Bethel Road, Road, City of Coppell, Dallas County, Texas. 27. 27. In 2005, 2005, the previous adjacent land owner constructed aa wooden fence and stone retaining wall without aa survey, without aa permit from the City of 0f Coppell and without permission from the CREEKVIEW HOA, HOA, the latter which was in violation of the parties applicable deed restrictions. The lack of aa survey of the boundary line between adjoining land owners lead to uncertainty; uncertainty: and therefore, therefore, the location of 0f the fence being built was questioned, disputed and controverted. In order to remedy the uncertainty and dispute, dispute, the parties agreed the wooden fence “in fence would be replaced "in the the same location it it had been located before" work which was completed in February 2006. PLAINTIFF'S PLAINTIFF'S FOURTH FOURTH AMENDED AMENDED SWORN SWORN PETITION PETITION Page Page 99 28. 28. In order In order to to confirm confirm or or deny deny whether whether the previous land the previous land owner's wooden owner's wooden fence fence and and stone stone retaining retaining wall were constructed wall were constructed on on PLETTA's real PLETTA‘S real property, property, PLETTA PLETTA Obtained obtained aa Registered Plat from Registered Plat from L. L. Lynn Kadleck, Lynn Kadleck, Kadleck Kadleck && Associates, Associates, aa Registered Professional Land Registered Professional Land Surveyor, identifying Surveyor, identifying the the location location and and existence existence of the adjacent of the adjacent fence and stone fence and retaining wall. stone retaining wall. This Plat This Plat is dated April is dated April 18, 18, 2008, 2008, and set and set forth forth in in Exhibit Exhibit "B“ "B" attached hereto attached and incorporated hereto and incorporated herein by herein by