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NO.
ROBERT WILLIAMS AND IN THE DISTRICT COURT
MICHELLE WILLIAMS
Plaintiffs
TH JUDICIAL DISTRICT
PRECISION HOMES CUSTOM
BUILDERS, INC., JW CLOVIS III,
LTD., AND JW CONROE I, LTD.
Defendants MONTGOMERY COUNTY, TEXAS
PLAINTIFFS FOURTH AMENDED PETITION
AND REQUEST FOR DISCLOSURES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiff husband and wife Robert Williams and Michelle Williams, who
complain of Defendant Precision Homes Custom Builders, Inc., JW Clovis III, Ltd., and JW
Conroe I, Ltd., and for cause of action would show the Court the following:
DISCOVERY CONTROL PLAN
Plaintiff intend to conduct discovery under Level 2 of Texas Rules of Civil
Procedure 190.3 and affirmatively plead that this suit is not governed by the expedited actions
process in Texas Rule of Civil Procedure 169 because this suit is governed in part by the Texas
Property Code.
PARTIES
2.1 Plaintiffs are natural persons whose address is 10661 Highway 242, Montgomery
County, Texas, 77385. The last three digits of Robert Williams’ driver’s license and social
security numbers are and , respectively. The last three digits of Michelle Williams’
driver’s license and social security numbers are 440 and , respectively.
2.2 Precision Homes Custom Builder, Inc. (“Precision Homes”), a Texas corporation
whose principal office is 1314 Spring Stuebner, Spring, Texas 77373, may be served with
ocess by serving its registered agent, Jason Wieghat, whose address is Highway 242
Conroe, Texas 77385 Precision Homes has appeared and filed an answer in the lawsuit.
JW Clovis III, LTD (“JW Clovis”), a Texas limited partnership whose principa
office is 806 Avenue U, Marble Falls, Texas 78654, may be served with process by serving its
registered agent, Duane Bingham, whose address is 806 Avenue U, Marble Falls, Texas 78654.
JW Clovis has appeared and filed an answer in the lawsuit.
JW Conroe I, LTD (“JW Conroe”), a Texas limited partnership whose principal
office is 806 Avenue U, Marble Falls, Texas 78654, may be served with process by serving its
registered agent, Duane Bingham, whose address is 806 Avenue U, Marble Falls, Texas 78654.
JW Conroe has appeared and filed an answer in the lawsuit.
JURISDICTION AND VENUE
3.1. This Court has jurisdiction over this proceeding and all parties pursuant to Texas
Civil Practice and Remedies Code 17.042 because the Defendant owns real property in Texas
that is the subject of this lawsuit, and Montgomery County is the mandatory venue pursuant to
Texas Civil Practice & Remedies Code 15.011 because the real property is located in
Montgomery County, Texas.
FACTS
This lawsuit concerns acre tract of land, owned by Plaintiffs, that became
landlocked after Plaintiffs’ purchase from Alfred Schlieske due to the actions of Defendants. The
Plaintiff’s Fourth Amended Original Petition
legal description of the Plaintiffs’ landlocked acre parcel is as follows and referred to herein
as the “One Acre Tract” or “Plaintiffs’ Property”
Being 1.000 acre of land situated in the Matilda Wilburn Survey, A 597,
Montgomery County, Texas, a part of a called 101 acre tract conveyed to Marshall
Holloman as described in Volume 985, Page 637 of the deed records, and being a
part of a 5.00 acre tract, conveyed by deed dated February 5, 1982, from Polo G.
Cantu to Evelyn J. Scalcione and O.T. Medlen recorded under Film Code number
2349 of the real property records of Montgomery County, Texas, said 1.000
acre being more particularly described as follows:
Beginning at a 5/8 inch iron rod found for the southwest corner of said 5.00 acre
tract, the southwest corner of the herein described tract;
Thence North 0 º 11’ 00” East, along the east line of Smith Lane, 60 foot right
way, a distance of 115.04 feet, to a ½ inch iron rod set for the northwest corner of
the herein described tract;
Thence South 89º 54’ 28” East, across said 5.00 acre tract, a distance of 378.65 feet,
to a ½ inch iron rod set for the northeast corner of the herein described tract;
Thence South 0º 11’ 00” West, along the east line of said 5.00 acre tract, a distance
of 115.04 feet, to a 5/8 inch iron rod found for the southeast corner of said 5.00 acre
tract and the southeast corner of the herein described tract;
Thence north 89º 54’ 28” West, along the south line of said 5.00 acre tract, also
being the south line of Lazy River Subdivision (unrecorded), a distance of 378.65
feet, to the Point of Beginning, containing within these metes and bounds 1.000
acre of land
4.2 Prior to the sale of the cre ract to Plaintiffs’ predecessors interest Alfred
and Edith Schlieske, the One Acre Tract of land had been part of an undivided five acre tract of
land, with the following legal description and referred to herein also as the “Five Acre Tract”
Being 5.00 acres of land in the Matilda Wilburn Survey, Abstract No. 597,
Montgomery County, Texas, and a part of a called 101 acre tract conveyed Marshall
Holloman described in Volume 985, Page 637, Deed Records of Montgomery
County, Texas, and more fully described as follows:
Beginning at an iron rod for corner in the South line of the Holloman tract, South
89 degrees 54 minutes 28 thirds East, 366.5 feet from its southwest corner;
Plaintiff’s Fourth Amended Original Petition
Thence: South 89 degrees 54 minutes 2 thirds East, 378.65 feet to an iron rod in
the Holloman South line;
Thence: North 0 degrees 11 minutes East, 574.9 feet to an iron rod in the South line
of a 60 ft. road;
Thence: North 89 degrees 49 minutes West, along the South line of road, 378.65
eet to an iron rod for corner;
Thence: South 0 degrees 11 minutes West, 575.5 feet to the place of beginning and
containing 5.0 acres of land.
This Five Acre Tract had once been part of an undivided 101 acre tract transferred from Naomi
Metcalf to Marshall Holloman on April 8, 1977 (filed in the Montgomery County Real Property
Records on April 11, 2008 in Volume 985, Pages 637 639.)
4.3 In 1977, Marshall Holloman transferred the Five Acre Tract to Daniel L. Aderholdt
and Martha S. Aderholdt. In May of 1979, the Five Acre Tract was transferred from the
Aderholdts to Polo Cantu. In February 1982, Polo Cantu transferred the Five Acre Tract to Evelyn
J. Scalcione and O.T. Medlen, husband and wife
4.4 or about October 12, 1977, Marshall Holloman granted a exclusive access
easement to Bethine Smith for the development of road (hereinafter, “Access Easement”
Thereafter, a road was developed, that was named Smith Lane or Smith Road, and then renamed
Edith Lane , as shown in the current Montgomery County maps (hereinafter, “Access Road”).
Apparently, Evelyn J. Scalcione and O.T. Medlen accessed their residence on their Five Acre Tract
via the Access Road. It is this ccess asement and Access Road which crosses the Access
asement property, that is at issue in this lawsuit.
In approximately 2003, the Montgomery County Commissioners Court voted to change the name of Smith Lane to Edith Lane
at the request of Alvin Schlieske in honor of his mother, Edith Schlieske.
Plaintiff’s Fourth Amended Original Petition
4.5 In 1982, Evelyn J. Scalcione and O.T. Medlen entered into a lease of one acre of
their ive cre ract the subject landlocked One Acre Tract to Alfred and Edith Schlieske
(“Schlieskes”). The Schlieskes used the Access Road as it was the sole access to the One Acre
Tract.
On June 21, 1991, Evelyn J. Scalcione and O.T. Medlen sold 1.022 acres of the
Five Acre Tract to the State of Texas apparently to widen Needham Road for the development of
Highway 242.
On July 10, 1992, the Schlieskes purchased the cre ract that they had been
renting from Evelyn J. Scalcione and O. T. Medlen. At that time, access to the One Acre Tract
was still via the Access Road.
On May 31, 2017, Plaintiffs purchased the cre ract from Alfred Schlieske
(whose wife had died a year earlier). At the time of the transfer and back to 19 , the ccess Road
had been used by the Plaintiffs and their predecessors nterest as the sole access to the
cre ract
On or about June 20, 2017, the ccess asement property was sold to Defendant
JW Clovis III, Ltd. (also “JW Clovis”) , who then sold it to Defendant Precision Homes Custom
Builders, Inc. (also, “Precision Homes”) on or about January 8, 2019 Precision Homes also owns
the land formerly owned by Evelyn J. Scalcione and O.T. Medlen, east of the ccess asement
property lying between the cre ract and Highway 242
Starting in at least 1982, the only access to the One Acre Tract was the Access
Road. In purchasing the One Acre Tract, Plaintiffs relied for their continued usage of the Access
In June 2017, approximately one month after the Plaintiffs purchased their One Acre Tract of land, Stephen
McClain, A.L. McClain Gorski, Stephanie McClain Miller, Larry McClain, Mitzie McClain Bradbury, Pamela
Heemann O’Leary, and John Heemann, purportedly sold, by deed without warranty, the above described Access
Easement property to Defendant JW Clovis III, Ltd
Plaintiff’s Fourth Amended Original Petition
Road on the history of the Access Road having been open to public usage as well as their
predecessors’ exclusive usage of the Access Road starting in the early 2000s. For at least ten years,
the only resident on the Access Road was Alvin Schlieske, who lived on the One Acre Tract. Alvin
Schlieske was the son of Plaintiffs’ predecessor interest, Alfred Schieske. It was Alvin
Schlieske who requested that Smith Lane be changed to Edith Lane to honor his mother before the
Montgomery County Commissioners’ Court, who granted the request.
4.1 Sometime after May 2018, and without the consent of or notice to Plaintiffs,
Defendants JW Clovis and/or JW Conroe made modifications to the Acce Easement property
for the widening of the Access Road at the Highway entry Bollards were placed to prevent
travel beyond the edge of the new entryway and eventually a chain was placed across the bollards
as well as a sign prohibiting passage.
4.1 late 2019 or early 2020, the bollards and chain had been removed ostensibly
allowing ingress and egress by vehicles; Plaintiffs’ access via the Access Road or Access Easement
property is still blocked for all intents and purposes for vehicular travel because the composition
of the current Access Easement property is not sufficient to allow vehicular travel without sinking
into the ground and possibly getting stuck, especially after a significant rain event. Further, the
road constructed by Defendant Precision Homes does not allow passage to Plaintiffs’ Property
without traveling over the curb of the road
4.1 Defendants JW Clovis JW Conroe have recorded an invalid and unenforceable
Easement Agreement in late 2019 that ostensibly governs Plaintiffs usage and enjoyment of the
Access Easement as owners of Plaintiffs Property.
Fn 1.
Plaintiff’s Fourth Amended Original Petition
4.1 From approximately 1982 until approximately 1996, Montgomery County graded
the Access Road once or twice a year. Once the County stopped grading it, Alvin Schlieske, the
son of Alfred and Edith Schlieske, continuously and on a regular basis mowed and maintained the
Access Easement and Access Road by filling the potholes and ruts, as necessary, until he moved
from the One Acre Tract on March 13, 2016 following a fire that destroyed the trailer in which he
was living.
4.1 he legal description of the ccess asement is, as follows:
Being out of the Matilda Wilburn Survey, A 597, Montgomery County, Texas, and
a part of a called 101.0 acre tract conveyed Marshall Holloman described in
Volume 985, Page 637, Deed Records: a more fully described as follows:
Beginning at a point in the North line of the olloman tract S 89’ 49’ E, 100.0 ft.
from the Holloman Northwest corner;
THENCE: S 73’ 07’ E, along the South line of easement 104.4 ft. to a point for
corner;
THENCE: S 89’ 49’ E, 170.2 ft. to a point for corner;
THENCE: South, 576.0 ft. to a point in the Holloman South Line, and the J. W.
Smith North line;
THENCE: East, 60.0 ft. to a point in the Holloman South line;
THENCE: North, 606.0 ft. to a point in the Holloman North line;
THENCE: N 89’ 49’ W, 300.2 ft. to the place of beginning and containing 1.0 acre
of land.
A review of the Montgomery County Tax Records establish that the Access
Easement property was not assessed taxes un approximately 201
Defendants had constructive and actual notice that Plaintiffs’ only access to their
property was the Access Road Because of Defendants’ purposeful acts done in conscious
disregard of Plaintiffs’ apparent right to access his One Acre Tract via the Access Road and in
Plaintiff’s Fourth Amended Original Petition
contravention to Plaintiffs’ easement, Plaintiffs have been damaged. Defendants have acted with
willful, wanton or reckless disregard of Plaintiffs’ rights and exercised fraud, malice or gross
negligence in destroying Plaintiffs’ access to their property abutting the Access Road. Defendants
had reason to know of Plaintiffs’ easement estate and put on inquiry to investigate Plaintiffs’
easement estate and the status of the Access Road. JW Clovis and/or JW Conroe are charged with
notice of the chain of title of the Access Easement property and Access Road which at a minimum
reated an easement by estoppel. They were further advised by Plaintiff Robert Williams of the
easement rights upon which he relied for sole access to Plaintiffs’ Property, yet destruction of
access to the Access Road continued unabated. Precision Homes is also charged with notice of
the chain of title. The legal descriptions in the deeds conveying the Access Easement property to
JW Clovis and, subsequently, Precision Homes labeled the property being conveyed as “Holloman
Estate Smith Road/Edith Lane .640 acre”. Further, Precision Homes had made offers to purchase
Plaintiffs’ Property prior to their further blocking of Plaintiffs’ access so were certainly aware of
Plaintiffs’ Property and the necessity of the Access Road as the sole access to Plaintiffs’ Property
With this lawsuit, Plaintiffs seek to have the Court declare the status of Plaintiffs’
right to an appurtenant access easement estate as an easement by estoppel for public usage, or
implied dedicated road for public usage, or a trespass to try title judgment for a prescriptive
easement, both private and public, or easement by necessity; and order Defendant to restore the
Access Road to its previous condition that allows safe vehicular travel or, alternatively, to pay
damages to Plaintiffs for the costs to restore an access oad, such that Plaintiffs are able to safely
access their Property and monetary damages, including, but not limited to, damages for
Defendants’ interference with Plaintiffs’ usage and enjoyment of their easement rights causing
loss of usage damages a permanent injunction against doing any act that interferes with Plaintiffs’
Plaintiff’s Fourth Amended Original Petition
and Plaintiffs’ successors interest usage and enjoyment of the Access Easement and access
road the Court’s declaration that the Easement Agreement is invalid and unenforceable as to
Plaintiffs’ Property; exemplary damages attorney’s fees and costs
PETITION FOR DECLARATORY JUDGMENT OF EASEMENT BY ESTOPPEL
AGAINST DEFENDANT PRECISION HOMES
Plaintiffs incorporate paragraphs 4.1 through 4. as if fully stated herein.
.2. Marshall Holloman represented that a right to use the property existed by his
conveyance of the Acce s Easement to Bethine Smith and subsequent construction of what became
the Access Road.
5.3 The representation was communicated by words or conduct to a promisee Marshall
Holloman communicated the right to build a road open for public usage to Bethine Smith and the
public by its recordation in the real property records of Montgomery County, Texas, and other
indicia of public usage
5.4 The promise believed the communication. The Access Road was constructed and
thereafter referred to as Smith Road or Smith Lane, and then Edith Lane and members of the
public, including Plaintiffs, the Schlieskes, d Evelyn Scalcione/O.T. Medlen (owners of the
Five Acre Tract) relied upon the road for access to their properties along the Access Road. The
Access Road was open to the public for pedestrian and vehicular usage. The Access Road was
thereafter used in starting in approximately 1978 based on reference to recorded instruments filed.
The promisee relied on the communication. Bethine Smith as the promise relied
on the communication and, thereafter, the Access Road was built no later than 19 and open t
the public Members of the public relied on the communication expressed in the Access Easement
to access their properties
Plaintiff’s Fourth Amended Original Petition
easement estoppel, once created, is binding upon successors in title if
reliance upon the existence of the easement continues. Plaintiffs and Plaintiffs’ predecessors
interest, as members of the public, relied on the Access Easement and Access Road to access their
properties since at least 19 . The Access Easement gave the public the right to use and enjoy the
Access Road perpetually, which the Plaintiffs and Plaintiffs’ predecessors interest also relied
upon in purchasing their property. Furthermore, the Schlieskes’ predecessors interest, Evelyn
Scalcione and O. T. Medlen relied upon the Acce s Easement to provide access to the One Acre
Tract that they carved from their larger Five Acre Tract in 1982 to lease to the Schlieskes and,
without such Access Road it is believed that Ms. Scalcione and Mr. Medlen would have granted
an access easement across their property to reach the One Acre Tract
Defendant Precision Homes, as successor in title of the Access Easement
by the terms of the Access Easement to provide an Access Road for public usage and not block
usage of the Access Road
Plaintiffs request this Court to declare that the Plaintiffs have an easement by
estoppel based upon the Acces Easement and that said easement is perpetual.
Attorney’s Fees: Under Texas Civil Practice & Remedies Code 37.009,
Plaintiff seeks an award of its costs and reasonable and necessary attorney’s fees.
PETITION FOR DECLARATORY JUDGMENT OF EASEMENT BY COMMON
LAW IMPLIED DEDICATION AGAINST DEFENDANT PRECISION HOMES
Plaintiff incorporate paragraphs 4.1 through as if fully stated herein.
Alternatively, a common law easement by dedication was established in
connection with the above described Acces Easement because the owner of the Access Easement
property, Marshall Holloman, was competent to dedicate the property, a public purpose was served
Plaintiff’s Fourth Amended Original Petition
by the dedication, an offer or tender of the dedication was made, and the dedication of the offer or
tender was accepted.
All common law dedications require the following four elements: (1) a person
competent to dedicate, (2) a public purpose served by the dedication, (3) an offer or tender of the
dedication and (4) an acceptance of the offer or tender. These elements may establish an implied
dedication.
It is believed that t es were not assessed against the Access Easement property
during the period of the implied common law dedication until 2017 when Defendant JW Clovis
purchased the Access Easement property.
In deciding to purchase the One Acre Tract Plaintiffs relied on he existence of the
Access Road as available for public usage.
6.6 Plaintiffs request this Court to declare that the Access Road was impliedly
dedicated to Montgomery County and that the Access Road has not been abandoned by
Montgomery County.
Attorney’s Fees: Under Texas Civil Practice & Remedies Code 37.009,
Plaintiff seeks an award of its costs and reasonable and necessary attorney’s fees.
CAUSE OF ACTION FOR TRESPASS TO TRY TITLE EASEMENT
NECESSITY AGAINST PRECISION HOMES
Plaintiff incorporate paragraphs 4.1 through as if fully stated herein.
Additionally, an easement by necessity exists for Plaintiffs. The Plaintiffs seek
access and use of a roadway that is necessary for their use and enjoyment of their property.
An easement by necessity can be established by: 1) a unity of ownership until
severed into the dominant and servient tracts, 2) the claimed access is a necessity and not a mere
Plaintiff’s Fourth Amended Original Petition
convenience, and 3) the necessity existed at the time the properties were severed. Additionally, the
Plaintiff must show the necessity still exists.
The One Acre Tract was unified with the Five Acre Tract owned by Evelyn
Scalcione and O.T. Medlen. Prior thereto, the Five Acre Tract was unified within a 101 acre tract
hat also included the Access Easement property. At the time of the conveyance of the One Acre
Tract only access was provided by the Access Road An access easement was not granted in
the deed to the Schlieskes for the One Acre Tract that had been carved out of their Five Acre Tract.
But for the Access Road, a presumption would arise that Evelyn Scalcione and O. Medlen
intended to grant a roadway to enable the Schlieskes to have full enjoyment of their One Acre
Tract and the failure of to grant such passageway was an oversight.
7.5 The necessity for access to Plaintiffs’ Property continues to exist. Plaintiffs request
this Court to declare that the Plaintiffs have a necessity easement that runs with their property.
7.6 Attorney’s Fees: Under Texas Civil Practice & Remedies Code 37.009,
Plaintiff seeks an award of its costs and reasonable and necessary attorney’s fees.
CAUSE OF ACTION FOR TRESPASS TO TRY TITLE AND, IN
ALTERNATIVE, PRESCRIPTIVE EASEMENT, BOTH PRIVATE AND PUBLIC
AGAINST PRECISION HOMES
Plaintiff incorporate paragraphs 4.1 through 4.18 as if fully stated herein.
rivity of estate exists among Plaintiffs and the previous record owners of the one
acre site, the Schlieskes and Evelyn J. Scalcione and O. T. Medlen. Tex. iv. rac. & em.
§16.023. To satisfy a limitations period, peaceable and adverse possession does not need to
continue in the same person, but there must be privity of estate between each holder and his
successor. See Sterling v. Tarvin, 456 S.W.2d 529, 534 (Tex. Civ. App. Fort Worth 1970, writ
ref’d n.r.e) (where there is privity of estate between a predecessor and plaintiff who claims land
Plaintiff’s Fourth Amended Original Petition
by adverse possession, the period of possession of the current possessor may be tacked to that of
the prior possessor to satisfy the full period required for adverse possession.) To tack periods of
possession, it must be shown that (1) possession and claim of claimant’s predecessors met all
requirements of the limitation statute; (2) possession and claim of a claimant and those of his
predecessors were continuous without interruption; and (3) an earlier occupant’s possession and
claim were passed or transferred to latter occupant by agreement, gift, devise, or inheritance. Dale
v. Stringer, 570 S.W.2d 414, 417 (Tex. Civ. App. Texarkana 1978, writ ref’d n.r.e.).
In the alternative to an easement by estoppe implied dedicated easement, or a
necessity easement, during the Schlieske’s ownership of the One Acre Tract, Plaintiffs acquired
by adverse possession fee title to the Access Road and/or public and/or private prescriptive
easement had come into existence prior to Plaintiffs purchase of the property based upon the
Schlieske exclusive usage of the Access Easement and Access Road for at least ten years and
prior to such exclusive usage, usage by the public in a manner that s open, notorious, continuous,
exclusive, and adverse for the requisite period of time. Texas W. Ry. Co. v. Wilson, 83 Tex. 153,
18 S.W. 325 (1892).
The Plaintiffs request the Court to adjudicate that Plaintiffs have fee title to the
Access Easement property, including the Access Road and/or a prescriptive easement that runs
with their property.
CAUSE OF ACTION FOR TRESPASS AGAINST DEFENDANTS
9.1 Plaintiffs incorporate paragraphs 4.1 through 8.4 as if fully stated herein.
9.2 Plaintiffs owned or had a lawful right to use and enjoy real property; specifically,
the Access Easement property and Access Road.
Plaintiff’s Fourth Amended Original Petition
9.3 Defendants entry was physical, intentional, voluntary and unauthorized. The
modifications to the Access Road and Access Easement property destroyed Plaintiffs’ access to
Plaintiffs’ Property.
9.4 The actions of Defendants have caused damages to Plaintiffs easement, including,
but not limited to, damages to repair or restore the easement
9.5 Plaintiffs have reason to believe that Defendants had actual knowledge of Plaintiffs’
right to usage and enjoyment of an easement estate, but failed to exercise reasonable diligence and
make an inspection of Plaintiffs’ Property and his easement rights as well as the real property
records that would have disclosed the existence of the easement or put a prudent buyer on inquiry.
9.6 Exemplary Damages: Plaintiffs suffered exemplary damages resulting from the
fraud, malice or gross negligence of Defendants in their trespass.
X. CAUSE OF ACTION FOR ABUSE TO EASEMENT AND INTERFERENCE WITH
PLAINTIFFS’ USAGE AND ENJOYMENT OF EASEMENT AGAINST DEFENDANTS
10.1 Plaintiffs incorporate paragraphs 4.1 through 9.6 as if fully stated herein.
Plaintiff owned or had a right to use and enjoy the Access asement and Access
Road without interference from the servient estate owners
Defendants had a duty to not abuse or interfere with Plaintiffs’ easement interest.
Defendants JW Clovis and/or JW Conroe widened the Highway 242 entrance and,
in doing so, blocked Plaintiffs from vehicular access to their property on the Access Road.
Precision Homes thereafter made further improvements that resulted in further blocking Plaintiffs
from accessing their property. Any vehicular access is worsened by the pooling of water during a
heavy rain. Further, Defendants JW Clovis and JW Conroe executed and record the Easement
Agreement (governing usage of the Access Easement) which operates to interfere with Plaintiffs’
Plaintiff’s Fourth Amended Original Petition
usage and enjoyment of his pre existing easement rights because of the uncertainty of the legal
effect of the Easement Agreement on any usage and enjoyment of the Access Easement and Access
Road by Plaintiffs.
The actions of Defendants have caused damages to Plaintiffs loss of usage
Exemplary Damages: Plaintiffs suffered exemplary damages resulting from the
fraud, malice or gross negligence of Defendants in abusing and interfering with Plaintiffs’ usage
and enjoyment of the Access Easement and Access Road.
CAUSE OF ACTION FOR BREACH OF CONTRACT AGAINST
DEFENDANT JW CLOVIS AND PRECISION HOMES
Plaintiffs incorporate paragraphs 4.1 through 10.6 as if fully stated herein.
Defendants are successors to the Marshall Holloman in connection with the Access
Easement. JW Clovis purchased the servient estate from the heirs of Marshall Holloman.
Precision Homes purchased the servient estate from JW Clovis. Plaintiffs are members of the
public who are the intended beneficiaries of the Access Easement and Access Road
The Access Easement provides that Marshal Holloman grants “an easement and
right way upon and across property of the Grantor [Access Easement property] . . . that shall b
a sixty (60) foot easement . . . and shall be used only for the purpose of providing pedestrian and
vehicular ingress and egress . . . The easement, rights, and privileges herein conveyed shall be
perpetual.”
The Access Easement also states that his Easement shall be binding upon the
heirs, executors, administrators, successors and assigns of the parties hereto.” Said Defendants, as
successors to the Grantor, were subject to perform under the Access Easement term and use the
servient estate only for vehicular and pedestrian travel. Defendant JW Clovis violated those terms
Plaintiff’s Fourth Amended Original Petition
allowing the destruction or removal of the Access Road, without restoring pedestrian and
vehicular ac s.
Plaintiffs have been damaged by Defendant breach of contrac by their failure to
use the Access Easement for vehicular access and JW Clovis’ execution and recordation of the
invalid Easement Agreement.
The actions of Defendants have caused damages to Plaintiffs, including, but not
limited to, loss of usage of the Access Easement and Access Road
11.7 Attorney’s Fees: Under Texas Civil Practice & Remedies Code .00
Plaintiff seek an award of its costs and reasonable and necessary attorney’s fees.
XII CAUSE OF ACTION FOR DECLARATORY JUDGMENT THAT EASEMENT
AGREEMENT IS INVALID AND UNENFORCEABLE
Plaintiffs incorporate paragraphs 4.1 through as if fully stated herein.
Defendants JW Clovis or JW Conroe have recorded an invalid and unenforceable
Easement Agreement in late 2019 that essentially operates to interfere with Plaintiffs’ usage and
enjoyment of their valid access easement as created under the Acces Easement because the
Easement Agreement ostensibly binds Plaintiffs to the terms of said Easement Agreement.
Defendants JW Clovis and/or JW Conroe executed and recorded the Easement
Agreement (governing usage of the Access Easement) which operates to interfere with Plaintiffs’
usage and enjoyment of his easement rights that predated the Easement Agreement.
Plaintiffs seek a declaration that the Easement Agreement is void and not
enforceable against Plaintiffs.
Attorney’s Fees: Under Texas Civil Practice & Remedies Code .00
Plaintiff seek an award of its costs and reasonable and necessary attorney’s fees.
Plaintiff’s Fourth Amended Original Petition
Requests for Disclosures
Plaintiff requests that each of the Defendant provide the information or material
listed in Rule 194.2 of the Texas Rules of Civil Procedure.
RAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Robert and Michelle Williams,
respectfully request that Plaintiffs be declared or adjudicated an appurtenant access easement that
runs with Plaintiffs’ Property
In addition, that the Easement Agreement be canceled and declared and adjudged void;
In addition, that Defendant(s) responsible for destroying the access to Plaintiffs’ Property
be ordered to restore the Access Road and Access Easement property or, alternatively, that
Plaintiffs recover damages from the Defendant(s) responsible for destroying Plaintiffs’ access for
the cost to restore an access road or pay the value of the easement to Plaintiffs Property
In addition, that once Plaintiffs’ access has been restored, that Defendants and their
successors interest be enjoined from further abuse to or interference with Plaintiffs’ usage and
enjoyment of the access easement and access road
In addition, that Plaintiffs recover exemplary damages;
In addition, that Plaintiffs recover costs and reasonable and necessary attorney’s fees and
for any other relief at law or in equity to which Plaintiffs are entitled.
Plaintiff’s Fourth Amended Original Petition
Respectfully submitted,
OUGH AW IRM
/s/ Bruce C. Tough
Bruce C. Tough
State Bar No. 20151500
Fed. Adm ID No. 513
51 Rolling Stone Place
Spring, Texas 77373
btough@toughlawfirm.net
Telephone: (281) 681
Facsimile: (281) 681
TTORNEYS FOR LAINTIFF
OBERT AND ICHELLE ILLIAMS
Plaintiff’s Fourth Amended Original Petition
CERTIFICATE OF SERVICE
I certify that on October 29, 2020 a true and correct copy of Plaintiffs’ Fourth Amended
Petition was served on the following in the manner indicated:
Travis Owens [ ] by certified mail, return receipt
WENS AW ROUP P.L.L.C. requested
P.O. Box 8605 [ ] by first class mail
The Woodlands, Texas 77 [ ] by overnight delivery
travis@owens lawgroup.com [ ] by hand delivery
TTORNEY FOR RECISION HOMES USTOM [ ] by facsimile
UILDERS [x] by electronic service
Bradford W. Irelan [ ] by certified mail, return receipt
Irelan McDaniel P.L.L.C. requested
Jeffrey M. Smith [ ] by first class mail
2520 Caroline, Second Floor [ ] by overnight delivery
Houston, Texas 77 [ ] by hand delivery
birelan@IMTexasLaw.com [ ] by facsimile
jsmith@IMTexasLaw.com [x] by electronic service
TTORNEY FOR LOVIS
ONROE
/s/Bruce C. Tough
Bruce C. Tough
Plaintiff’s Fourth Amended Original Petition
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NO. ROBERT WILLIAMS AND IN THE DISTRICT COURT MICHELLE WILLIAMS Plaintiffs TH JUDICIAL DISTRICT PRECISION HOMES CUSTOM BUILDERS, INC., JW CLOVIS III, LTD., AND JW CONROE I, LTD. Defendants MONTGOMERY COUNTY, TEXAS PLAINTIFFS FOURTH AMENDED PETITION AND REQUEST FOR DISCLOSURES TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Plaintiff husband and wife Robert Williams and Michelle Williams, who complain of Defendant Precision Homes Custom Builders, Inc., JW Clovis III, Ltd., and JW Conroe I, Ltd., and for cause of action would show the Court the following: DISCOVERY CONTROL PLAN Plaintiff intend to conduct discovery under Level 2 of Texas Rules of Civil Procedure 190.3 and affirmatively plead that this suit is not governed by the expedited actions process in Texas Rule of Civil Procedure 169 because this suit is governed in part by the Texas Property Code. PARTIES 2.1 Plaintiffs are natural persons whose address is 10661 Highway 242, Montgomery County, Texas, 77385. The last three digits of Robert Williams’ driver’s license and social security numbers are and , respectively. The last three digits of Michelle Williams’ driver’s license and social security numbers are 440 and , respectively. 2.2 Precision Homes Custom Builder, Inc. (“Precision Homes”), a Texas corporation whose principal office is 1314 Spring Stuebner, Spring, Texas 77373, may be served with ocess by serving its registered agent, Jason Wieghat, whose address is Highway 242 Conroe, Texas 77385 Precision Homes has appeared and filed an answer in the lawsuit. JW Clovis III, LTD (“JW Clovis”), a Texas limited partnership whose principa office is 806 Avenue U, Marble Falls, Texas 78654, may be served with process by serving its registered agent, Duane Bingham, whose address is 806 Avenue U, Marble Falls, Texas 78654. JW Clovis has appeared and filed an answer in the lawsuit. JW Conroe I, LTD (“JW Conroe”), a Texas limited partnership whose principal office is 806 Avenue U, Marble Falls, Texas 78654, may be served with process by serving its registered agent, Duane Bingham, whose address is 806 Avenue U, Marble Falls, Texas 78654. JW Conroe has appeared and filed an answer in the lawsuit. JURISDICTION AND VENUE 3.1. This Court has jurisdiction over this proceeding and all parties pursuant to Texas Civil Practice and Remedies Code 17.042 because the Defendant owns real property in Texas that is the subject of this lawsuit, and Montgomery County is the mandatory venue pursuant to Texas Civil Practice & Remedies Code 15.011 because the real property is located in Montgomery County, Texas. FACTS This lawsuit concerns acre tract of land, owned by Plaintiffs, that became landlocked after Plaintiffs’ purchase from Alfred Schlieske due to the actions of Defendants. The Plaintiff’s Fourth Amended Original Petition legal description of the Plaintiffs’ landlocked acre parcel is as follows and referred to herein as the “One Acre Tract” or “Plaintiffs’ Property” Being 1.000 acre of land situated in the Matilda Wilburn Survey, A 597, Montgomery County, Texas, a part of a called 101 acre tract conveyed to Marshall Holloman as described in Volume 985, Page 637 of the deed records, and being a part of a 5.00 acre tract, conveyed by deed dated February 5, 1982, from Polo G. Cantu to Evelyn J. Scalcione and O.T. Medlen recorded under Film Code number 2349 of the real property records of Montgomery County, Texas, said 1.000 acre being more particularly described as follows: Beginning at a 5/8 inch iron rod found for the southwest corner of said 5.00 acre tract, the southwest corner of the herein described tract; Thence North 0 º 11’ 00” East, along the east line of Smith Lane, 60 foot right way, a distance of 115.04 feet, to a ½ inch iron rod set for the northwest corner of the herein described tract; Thence South 89º 54’ 28” East, across said 5.00 acre tract, a distance of 378.65 feet, to a ½ inch iron rod set for the northeast corner of the herein described tract; Thence South 0º 11’ 00” West, along the east line of said 5.00 acre tract, a distance of 115.04 feet, to a 5/8 inch iron rod found for the southeast corner of said 5.00 acre tract and the southeast corner of the herein described tract; Thence north 89º 54’ 28” West, along the south line of said 5.00 acre tract, also being the south line of Lazy River Subdivision (unrecorded), a distance of 378.65 feet, to the Point of Beginning, containing within these metes and bounds 1.000 acre of land 4.2 Prior to the sale of the cre ract to Plaintiffs’ predecessors interest Alfred and Edith Schlieske, the One Acre Tract of land had been part of an undivided five acre tract of land, with the following legal description and referred to herein also as the “Five Acre Tract” Being 5.00 acres of land in the Matilda Wilburn Survey, Abstract No. 597, Montgomery County, Texas, and a part of a called 101 acre tract conveyed Marshall Holloman described in Volume 985, Page 637, Deed Records of Montgomery County, Texas, and more fully described as follows: Beginning at an iron rod for corner in the South line of the Holloman tract, South 89 degrees 54 minutes 28 thirds East, 366.5 feet from its southwest corner; Plaintiff’s Fourth Amended Original Petition Thence: South 89 degrees 54 minutes 2 thirds East, 378.65 feet to an iron rod in the Holloman South line; Thence: North 0 degrees 11 minutes East, 574.9 feet to an iron rod in the South line of a 60 ft. road; Thence: North 89 degrees 49 minutes West, along the South line of road, 378.65 eet to an iron rod for corner; Thence: South 0 degrees 11 minutes West, 575.5 feet to the place of beginning and containing 5.0 acres of land. This Five Acre Tract had once been part of an undivided 101 acre tract transferred from Naomi Metcalf to Marshall Holloman on April 8, 1977 (filed in the Montgomery County Real Property Records on April 11, 2008 in Volume 985, Pages 637 639.) 4.3 In 1977, Marshall Holloman transferred the Five Acre Tract to Daniel L. Aderholdt and Martha S. Aderholdt. In May of 1979, the Five Acre Tract was transferred from the Aderholdts to Polo Cantu. In February 1982, Polo Cantu transferred the Five Acre Tract to Evelyn J. Scalcione and O.T. Medlen, husband and wife 4.4 or about October 12, 1977, Marshall Holloman granted a exclusive access easement to Bethine Smith for the development of road (hereinafter, “Access Easement” Thereafter, a road was developed, that was named Smith Lane or Smith Road, and then renamed Edith Lane , as shown in the current Montgomery County maps (hereinafter, “Access Road”). Apparently, Evelyn J. Scalcione and O.T. Medlen accessed their residence on their Five Acre Tract via the Access Road. It is this ccess asement and Access Road which crosses the Access asement property, that is at issue in this lawsuit. In approximately 2003, the Montgomery County Commissioners Court voted to change the name of Smith Lane to Edith Lane at the request of Alvin Schlieske in honor of his mother, Edith Schlieske. Plaintiff’s Fourth Amended Original Petition 4.5 In 1982, Evelyn J. Scalcione and O.T. Medlen entered into a lease of one acre of their ive cre ract the subject landlocked One Acre Tract to Alfred and Edith Schlieske (“Schlieskes”). The Schlieskes used the Access Road as it was the sole access to the One Acre Tract. On June 21, 1991, Evelyn J. Scalcione and O.T. Medlen sold 1.022 acres of the Five Acre Tract to the State of Texas apparently to widen Needham Road for the development of Highway 242. On July 10, 1992, the Schlieskes purchased the cre ract that they had been renting from Evelyn J. Scalcione and O. T. Medlen. At that time, access to the One Acre Tract was still via the Access Road. On May 31, 2017, Plaintiffs purchased the cre ract from Alfred Schlieske (whose wife had died a year earlier). At the time of the transfer and back to 19 , the ccess Road had been used by the Plaintiffs and their predecessors nterest as the sole access to the cre ract On or about June 20, 2017, the ccess asement property was sold to Defendant JW Clovis III, Ltd. (also “JW Clovis”) , who then sold it to Defendant Precision Homes Custom Builders, Inc. (also, “Precision Homes”) on or about January 8, 2019 Precision Homes also owns the land formerly owned by Evelyn J. Scalcione and O.T. Medlen, east of the ccess asement property lying between the cre ract and Highway 242 Starting in at least 1982, the only access to the One Acre Tract was the Access Road. In purchasing the One Acre Tract, Plaintiffs relied for their continued usage of the Access In June 2017, approximately one month after the Plaintiffs purchased their One Acre Tract of land, Stephen McClain, A.L. McClain Gorski, Stephanie McClain Miller, Larry McClain, Mitzie McClain Bradbury, Pamela Heemann O’Leary, and John Heemann, purportedly sold, by deed without warranty, the above described Access Easement property to Defendant JW Clovis III, Ltd Plaintiff’s Fourth Amended Original Petition Road on the history of the Access Road having been open to public usage as well as their predecessors’ exclusive usage of the Access Road starting in the early 2000s. For at least ten years, the only resident on the Access Road was Alvin Schlieske, who lived on the One Acre Tract. Alvin Schlieske was the son of Plaintiffs’ predecessor interest, Alfred Schieske. It was Alvin Schlieske who requested that Smith Lane be changed to Edith Lane to honor his mother before the Montgomery County Commissioners’ Court, who granted the request. 4.1 Sometime after May 2018, and without the consent of or notice to Plaintiffs, Defendants JW Clovis and/or JW Conroe made modifications to the Acce Easement property for the widening of the Access Road at the Highway entry Bollards were placed to prevent travel beyond the edge of the new entryway and eventually a chain was placed across the bollards as well as a sign prohibiting passage. 4.1 late 2019 or early 2020, the bollards and chain had been removed ostensibly allowing ingress and egress by vehicles; Plaintiffs’ access via the Access Road or Access Easement property is still blocked for all intents and purposes for vehicular travel because the composition of the current Access Easement property is not sufficient to allow vehicular travel without sinking into the ground and possibly getting stuck, especially after a significant rain event. Further, the road constructed by Defendant Precision Homes does not allow passage to Plaintiffs’ Property without traveling over the curb of the road 4.1 Defendants JW Clovis JW Conroe have recorded an invalid and unenforceable Easement Agreement in late 2019 that ostensibly governs Plaintiffs usage and enjoyment of the Access Easement as owners of Plaintiffs Property. Fn 1. Plaintiff’s Fourth Amended Original Petition 4.1 From approximately 1982 until approximately 1996, Montgomery County graded the Access Road once or twice a year. Once the County stopped grading it, Alvin Schlieske, the son of Alfred and Edith Schlieske, continuously and on a regular basis mowed and maintained the Access Easement and Access Road by filling the potholes and ruts, as necessary, until he moved from the One Acre Tract on March 13, 2016 following a fire that destroyed the trailer in which he was living. 4.1 he legal description of the ccess asement is, as follows: Being out of the Matilda Wilburn Survey, A 597, Montgomery County, Texas, and a part of a called 101.0 acre tract conveyed Marshall Holloman described in Volume 985, Page 637, Deed Records: a more fully described as follows: Beginning at a point in the North line of the olloman tract S 89’ 49’ E, 100.0 ft. from the Holloman Northwest corner; THENCE: S 73’ 07’ E, along the South line of easement 104.4 ft. to a point for corner; THENCE: S 89’ 49’ E, 170.2 ft. to a point for corner; THENCE: South, 576.0 ft. to a point in the Holloman South Line, and the J. W. Smith North line; THENCE: East, 60.0 ft. to a point in the Holloman South line; THENCE: North, 606.0 ft. to a point in the Holloman North line; THENCE: N 89’ 49’ W, 300.2 ft. to the place of beginning and containing 1.0 acre of land. A review of the Montgomery County Tax Records establish that the Access Easement property was not assessed taxes un approximately 201 Defendants had constructive and actual notice that Plaintiffs’ only access to their property was the Access Road Because of Defendants’ purposeful acts done in conscious disregard of Plaintiffs’ apparent right to access his One Acre Tract via the Access Road and in Plaintiff’s Fourth Amended Original Petition contravention to Plaintiffs’ easement, Plaintiffs have been damaged. Defendants have acted with willful, wanton or reckless disregard of Plaintiffs’ rights and exercised fraud, malice or gross negligence in destroying Plaintiffs’ access to their property abutting the Access Road. Defendants had reason to know of Plaintiffs’ easement estate and put on inquiry to investigate Plaintiffs’ easement estate and the status of the Access Road. JW Clovis and/or JW Conroe are charged with notice of the chain of title of the Access Easement property and Access Road which at a minimum reated an easement by estoppel. They were further advised by Plaintiff Robert Williams of the easement rights upon which he relied for sole access to Plaintiffs’ Property, yet destruction of access to the Access Road continued unabated. Precision Homes is also charged with notice of the chain of title. The legal descriptions in the deeds conveying the Access Easement property to JW Clovis and, subsequently, Precision Homes labeled the property being conveyed as “Holloman Estate Smith Road/Edith Lane .640 acre”. Further, Precision Homes had made offers to purchase Plaintiffs’ Property prior to their further blocking of Plaintiffs’ access so were certainly aware of Plaintiffs’ Property and the necessity of the Access Road as the sole access to Plaintiffs’ Property With this lawsuit, Plaintiffs seek to have the Court declare the status of Plaintiffs’ right to an appurtenant access easement estate as an easement by estoppel for public usage, or implied dedicated road for public usage, or a trespass to try title judgment for a prescriptive easement, both private and public, or easement by necessity; and order Defendant to restore the Access Road to its previous condition that allows safe vehicular travel or, alternatively, to pay damages to Plaintiffs for the costs to restore an access oad, such that Plaintiffs are able to safely access their Property and monetary damages, including, but not limited to, damages for Defendants’ interference with Plaintiffs’ usage and enjoyment of their easement rights causing loss of usage damages a permanent injunction against doing any act that interferes with Plaintiffs’ Plaintiff’s Fourth Amended Original Petition and Plaintiffs’ successors interest usage and enjoyment of the Access Easement and access road the Court’s declaration that the Easement Agreement is invalid and unenforceable as to Plaintiffs’ Property; exemplary damages attorney’s fees and costs PETITION FOR DECLARATORY JUDGMENT OF EASEMENT BY ESTOPPEL AGAINST DEFENDANT PRECISION HOMES Plaintiffs incorporate paragraphs 4.1 through 4. as if fully stated herein. .2. Marshall Holloman represented that a right to use the property existed by his conveyance of the Acce s Easement to Bethine Smith and subsequent construction of what became the Access Road. 5.3 The representation was communicated by words or conduct to a promisee Marshall Holloman communicated the right to build a road open for public usage to Bethine Smith and the public by its recordation in the real property records of Montgomery County, Texas, and other indicia of public usage 5.4 The promise believed the communication. The Access Road was constructed and thereafter referred to as Smith Road or Smith Lane, and then Edith Lane and members of the public, including Plaintiffs, the Schlieskes, d Evelyn Scalcione/O.T. Medlen (owners of the Five Acre Tract) relied upon the road for access to their properties along the Access Road. The Access Road was open to the public for pedestrian and vehicular usage. The Access Road was thereafter used in starting in approximately 1978 based on reference to recorded instruments filed. The promisee relied on the communication. Bethine Smith as the promise relied on the communication and, thereafter, the Access Road was built no later than 19 and open t the public Members of the public relied on the communication expressed in the Access Easement to access their properties Plaintiff’s Fourth Amended Original Petition easement estoppel, once created, is binding upon successors in title if reliance upon the existence of the easement continues. Plaintiffs and Plaintiffs’ predecessors interest, as members of the public, relied on the Access Easement and Access Road to access their properties since at least 19 . The Access Easement gave the public the right to use and enjoy the Access Road perpetually, which the Plaintiffs and Plaintiffs’ predecessors interest also relied upon in purchasing their property. Furthermore, the Schlieskes’ predecessors interest, Evelyn Scalcione and O. T. Medlen relied upon the Acce s Easement to provide access to the One Acre Tract that they carved from their larger Five Acre Tract in 1982 to lease to the Schlieskes and, without such Access Road it is believed that Ms. Scalcione and Mr. Medlen would have granted an access easement across their property to reach the One Acre Tract Defendant Precision Homes, as successor in title of the Access Easement by the terms of the Access Easement to provide an Access Road for public usage and not block usage of the Access Road Plaintiffs request this Court to declare that the Plaintiffs have an easement by estoppel based upon the Acces Easement and that said easement is perpetual. Attorney’s Fees: Under Texas Civil Practice & Remedies Code 37.009, Plaintiff seeks an award of its costs and reasonable and necessary attorney’s fees. PETITION FOR DECLARATORY JUDGMENT OF EASEMENT BY COMMON LAW IMPLIED DEDICATION AGAINST DEFENDANT PRECISION HOMES Plaintiff incorporate paragraphs 4.1 through as if fully stated herein. Alternatively, a common law easement by dedication was established in connection with the above described Acces Easement because the owner of the Access Easement property, Marshall Holloman, was competent to dedicate the property, a public purpose was served Plaintiff’s Fourth Amended Original Petition by the dedication, an offer or tender of the dedication was made, and the dedication of the offer or tender was accepted. All common law dedications require the following four elements: (1) a person competent to dedicate, (2) a public purpose served by the dedication, (3) an offer or tender of the dedication and (4) an acceptance of the offer or tender. These elements may establish an implied dedication. It is believed that t es were not assessed against the Access Easement property during the period of the implied common law dedication until 2017 when Defendant JW Clovis purchased the Access Easement property. In deciding to purchase the One Acre Tract Plaintiffs relied on he existence of the Access Road as available for public usage. 6.6 Plaintiffs request this Court to declare that the Access Road was impliedly dedicated to Montgomery County and that the Access Road has not been abandoned by Montgomery County. Attorney’s Fees: Under Texas Civil Practice & Remedies Code 37.009, Plaintiff seeks an award of its costs and reasonable and necessary attorney’s fees. CAUSE OF ACTION FOR TRESPASS TO TRY TITLE EASEMENT NECESSITY AGAINST PRECISION HOMES Plaintiff incorporate paragraphs 4.1 through as if fully stated herein. Additionally, an easement by necessity exists for Plaintiffs. The Plaintiffs seek access and use of a roadway that is necessary for their use and enjoyment of their property. An easement by necessity can be established by: 1) a unity of ownership until severed into the dominant and servient tracts, 2) the claimed access is a necessity and not a mere Plaintiff’s Fourth Amended Original Petition convenience, and 3) the necessity existed at the time the properties were severed. Additionally, the Plaintiff must show the necessity still exists. The One Acre Tract was unified with the Five Acre Tract owned by Evelyn Scalcione and O.T. Medlen. Prior thereto, the Five Acre Tract was unified within a 101 acre tract hat also included the Access Easement property. At the time of the conveyance of the One Acre Tract only access was provided by the Access Road An access easement was not granted in the deed to the Schlieskes for the One Acre Tract that had been carved out of their Five Acre Tract. But for the Access Road, a presumption would arise that Evelyn Scalcione and O. Medlen intended to grant a roadway to enable the Schlieskes to have full enjoyment of their One Acre Tract and the failure of to grant such passageway was an oversight. 7.5 The necessity for access to Plaintiffs’ Property continues to exist. Plaintiffs request this Court to declare that the Plaintiffs have a necessity easement that runs with their property. 7.6 Attorney’s Fees: Under Texas Civil Practice & Remedies Code 37.009, Plaintiff seeks an award of its costs and reasonable and necessary attorney’s fees. CAUSE OF ACTION FOR TRESPASS TO TRY TITLE AND, IN ALTERNATIVE, PRESCRIPTIVE EASEMENT, BOTH PRIVATE AND PUBLIC AGAINST PRECISION HOMES Plaintiff incorporate paragraphs 4.1 through 4.18 as if fully stated herein. rivity of estate exists among Plaintiffs and the previous record owners of the one acre site, the Schlieskes and Evelyn J. Scalcione and O. T. Medlen. Tex. iv. rac. & em. §16.023. To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor. See Sterling v. Tarvin, 456 S.W.2d 529, 534 (Tex. Civ. App. Fort Worth 1970, writ ref’d n.r.e) (where there is privity of estate between a predecessor and plaintiff who claims land Plaintiff’s Fourth Amended Original Petition by adverse possession, the period of possession of the current possessor may be tacked to that of the prior possessor to satisfy the full period required for adverse possession.) To tack periods of possession, it must be shown that (1) possession and claim of claimant’s predecessors met all requirements of the limitation statute; (2) possession and claim of a claimant and those of his predecessors were continuous without interruption; and (3) an earlier occupant’s possession and claim were passed or transferred to latter occupant by agreement, gift, devise, or inheritance. Dale v. Stringer, 570 S.W.2d 414, 417 (Tex. Civ. App. Texarkana 1978, writ ref’d n.r.e.). In the alternative to an easement by estoppe implied dedicated easement, or a necessity easement, during the Schlieske’s ownership of the One Acre Tract, Plaintiffs acquired by adverse possession fee title to the Access Road and/or public and/or private prescriptive easement had come into existence prior to Plaintiffs purchase of the property based upon the Schlieske exclusive usage of the Access Easement and Access Road for at least ten years and prior to such exclusive usage, usage by the public in a manner that s open, notorious, continuous, exclusive, and adverse for the requisite period of time. Texas W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S.W. 325 (1892). The Plaintiffs request the Court to adjudicate that Plaintiffs have fee title to the Access Easement property, including the Access Road and/or a prescriptive easement that runs with their property. CAUSE OF ACTION FOR TRESPASS AGAINST DEFENDANTS 9.1 Plaintiffs incorporate paragraphs 4.1 through 8.4 as if fully stated herein. 9.2 Plaintiffs owned or had a lawful right to use and enjoy real property; specifically, the Access Easement property and Access Road. Plaintiff’s Fourth Amended Original Petition 9.3 Defendants entry was physical, intentional, voluntary and unauthorized. The modifications to the Access Road and Access Easement property destroyed Plaintiffs’ access to Plaintiffs’ Property. 9.4 The actions of Defendants have caused damages to Plaintiffs easement, including, but not limited to, damages to repair or restore the easement 9.5 Plaintiffs have reason to believe that Defendants had actual knowledge of Plaintiffs’ right to usage and enjoyment of an easement estate, but failed to exercise reasonable diligence and make an inspection of Plaintiffs’ Property and his easement rights as well as the real property records that would have disclosed the existence of the easement or put a prudent buyer on inquiry. 9.6 Exemplary Damages: Plaintiffs suffered exemplary damages resulting from the fraud, malice or gross negligence of Defendants in their trespass. X. CAUSE OF ACTION FOR ABUSE TO EASEMENT AND INTERFERENCE WITH PLAINTIFFS’ USAGE AND ENJOYMENT OF EASEMENT AGAINST DEFENDANTS 10.1 Plaintiffs incorporate paragraphs 4.1 through 9.6 as if fully stated herein. Plaintiff owned or had a right to use and enjoy the Access asement and Access Road without interference from the servient estate owners Defendants had a duty to not abuse or interfere with Plaintiffs’ easement interest. Defendants JW Clovis and/or JW Conroe widened the Highway 242 entrance and, in doing so, blocked Plaintiffs from vehicular access to their property on the Access Road. Precision Homes thereafter made further improvements that resulted in further blocking Plaintiffs from accessing their property. Any vehicular access is worsened by the pooling of water during a heavy rain. Further, Defendants JW Clovis and JW Conroe executed and record the Easement Agreement (governing usage of the Access Easement) which operates to interfere with Plaintiffs’ Plaintiff’s Fourth Amended Original Petition usage and enjoyment of his pre existing easement rights because of the uncertainty of the legal effect of the Easement Agreement on any usage and enjoyment of the Access Easement and Access Road by Plaintiffs. The actions of Defendants have caused damages to Plaintiffs loss of usage Exemplary Damages: Plaintiffs suffered exemplary damages resulting from the fraud, malice or gross negligence of Defendants in abusing and interfering with Plaintiffs’ usage and enjoyment of the Access Easement and Access Road. CAUSE OF ACTION FOR BREACH OF CONTRACT AGAINST DEFENDANT JW CLOVIS AND PRECISION HOMES Plaintiffs incorporate paragraphs 4.1 through 10.6 as if fully stated herein. Defendants are successors to the Marshall Holloman in connection with the Access Easement. JW Clovis purchased the servient estate from the heirs of Marshall Holloman. Precision Homes purchased the servient estate from JW Clovis. Plaintiffs are members of the public who are the intended beneficiaries of the Access Easement and Access Road The Access Easement provides that Marshal Holloman grants “an easement and right way upon and across property of the Grantor [Access Easement property] . . . that shall b a sixty (60) foot easement . . . and shall be used only for the purpose of providing pedestrian and vehicular ingress and egress . . . The easement, rights, and privileges herein conveyed shall be perpetual.” The Access Easement also states that his Easement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.” Said Defendants, as successors to the Grantor, were subject to perform under the Access Easement term and use the servient estate only for vehicular and pedestrian travel. Defendant JW Clovis violated those terms Plaintiff’s Fourth Amended Original Petition allowing the destruction or removal of the Access Road, without restoring pedestrian and vehicular ac s. Plaintiffs have been damaged by Defendant breach of contrac by their failure to use the Access Easement for vehicular access and JW Clovis’ execution and recordation of the invalid Easement Agreement. The actions of Defendants have caused damages to Plaintiffs, including, but not limited to, loss of usage of the Access Easement and Access Road 11.7 Attorney’s Fees: Under Texas Civil Practice & Remedies Code .00 Plaintiff seek an award of its costs and reasonable and necessary attorney’s fees. XII CAUSE OF ACTION FOR DECLARATORY JUDGMENT THAT EASEMENT AGREEMENT IS INVALID AND UNENFORCEABLE Plaintiffs incorporate paragraphs 4.1 through as if fully stated herein. Defendants JW Clovis or JW Conroe have recorded an invalid and unenforceable Easement Agreement in late 2019 that essentially operates to interfere with Plaintiffs’ usage and enjoyment of their valid access easement as created under the Acces Easement because the Easement Agreement ostensibly binds Plaintiffs to the terms of said Easement Agreement. Defendants JW Clovis and/or JW Conroe executed and recorded the Easement Agreement (governing usage of the Access Easement) which operates to interfere with Plaintiffs’ usage and enjoyment of his easement rights that predated the Easement Agreement. Plaintiffs seek a declaration that the Easement Agreement is void and not enforceable against Plaintiffs. Attorney’s Fees: Under Texas Civil Practice & Remedies Code .00 Plaintiff seek an award of its costs and reasonable and necessary attorney’s fees. Plaintiff’s Fourth Amended Original Petition Requests for Disclosures Plaintiff requests that each of the Defendant provide the information or material listed in Rule 194.2 of the Texas Rules of Civil Procedure. RAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Robert and Michelle Williams, respectfully request that Plaintiffs be declared or adjudicated an appurtenant access easement that runs with Plaintiffs’ Property In addition, that the Easement Agreement be canceled and declared and adjudged void; In addition, that Defendant(s) responsible for destroying the access to Plaintiffs’ Property be ordered to restore the Access Road and Access Easement property or, alternatively, that Plaintiffs recover damages from the Defendant(s) responsible for destroying Plaintiffs’ access for the cost to restore an access road or pay the value of the easement to Plaintiffs Property In addition, that once Plaintiffs’ access has been restored, that Defendants and their successors interest be enjoined from further abuse to or interference with Plaintiffs’ usage and enjoyment of the access easement and access road In addition, that Plaintiffs recover exemplary damages; In addition, that Plaintiffs recover costs and reasonable and necessary attorney’s fees and for any other relief at law or in equity to which Plaintiffs are entitled. Plaintiff’s Fourth Amended Original Petition Respectfully submitted, OUGH AW IRM /s/ Bruce C. Tough Bruce C. Tough State Bar No. 20151500 Fed. Adm ID No. 513 51 Rolling Stone Place Spring, Texas 77373 btough@toughlawfirm.net Telephone: (281) 681 Facsimile: (281) 681 TTORNEYS FOR LAINTIFF OBERT AND ICHELLE ILLIAMS Plaintiff’s Fourth Amended Original Petition CERTIFICATE OF SERVICE I certify that on October 29, 2020 a true and correct copy of Plaintiffs’ Fourth Amended Petition was served on the following in the manner indicated: Travis Owens [ ] by certified mail, return receipt WENS AW ROUP P.L.L.C. requested P.O. Box 8605 [ ] by first class mail The Woodlands, Texas 77 [ ] by overnight delivery travis@owens lawgroup.com [ ] by hand delivery TTORNEY FOR RECISION HOMES USTOM [ ] by facsimile UILDERS [x] by electronic service Bradford W. Irelan [ ] by certified mail, return receipt Irelan McDaniel P.L.L.C. requested Jeffrey M. Smith [ ] by first class mail 2520 Caroline, Second Floor [ ] by overnight delivery Houston, Texas 77 [ ] by hand delivery birelan@IMTexasLaw.com [ ] by facsimile jsmith@IMTexasLaw.com [x] by electronic service TTORNEY FOR LOVIS ONROE /s/Bruce C. Tough Bruce C. Tough Plaintiff’s Fourth Amended Original Petition