Preview
FILED
6/3/2020 12:23PM
FELICIA PITRE
DISTRICT CLERK
1 CIT/ESERVE DALLAS 00.,
CO.,TEXAS
Mata
Alicia DEPUTY
DC-20-07652
CAUSE NO. NO
RUBEN LOPEZ, § IN THE DISTRICT COURT
Plaintiff, §
V.
§
§
§
_
H-160TH JUDICIAL DISTRICT
MARK COWDEN, §
Defendant. § DALLAS COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THE COURT:
PlaintiffRuben Lopez (“Plaintiff”) files this Original Petition seeking declaratory and other
corresponding relief for the Violation of 0f certain neighborhood covenants and deed restrictions, and
would respectfully show the Court as follows.
I. EXECUTIVE SUMMARY
1. This action is brought seeking a declaration that Mr. Mark Cowden (“Defendant”)
violated subdivision deed restrictions. Plaintiff and Defendant own neighboring parcels of
residential property that are subj ect to t0 the terms, restrictions, and conditions in the “Declaration of
Covenants, Conditions, Restrictions, Easements, Charges and Liens 0n on and for Long Creek Estates
Subdivision” (“Subdivision”) in Sunnyvale, Texas (“Declaration”). Defendant’s acts and
omissions violated specific provisions in the Subdivision’s Declaration relating to
t0 a drainage
easement and physical drainage features established by Daedelus Corp., Corp, the developer of the Long
Creek Estates Subdivision (“Developer”).
2. Plaintiff requests the Court enter a judgment declaring that Defendant violated the
restrictions in the Declaration as further detailed below, enforce those restrictions by requiring
Defendant to t0 restore the drainage easement and physical drainage features t0 the original condition
as such existed upon conveyance of the
0f parcel by Developer to
t0 Defendant, and award Plaintiff
attorneys’ fees pursuant to the terms 0f the Declaration and applicable Texas law authorizing such
an award.
II. DISCOVERY
3. To the extent discovery is necessary, Plaintiff proposes that it be conducted
pursuant to the Level 2 procedures of Rule 190 of the Texas Rules of Civil Procedure.
III. PARTIES AND SERVICE
4. Plaintiff Ruben Lopez is a property owner in Sunnyvale, Texas, a home-rule
municipality entirely within Dallas County.
5. Defendant Mark Cowden is a property owner in Sunnyvale, Texas, a home-rule
municipality entirely Within Dallas County. Defendant may be served with process at 472 Calais
Ct., Sunnyvale TX 75182.
IV. JURISDICTION AND VENUE
6. Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Texas
Civil Practice and Remedies Code.
7. This Court has jurisdiction over this dispute pursuant to Sections 24.007 & 24.008
of the Texas Government Code.
V. FACTUAL BACKGROUND
8. As owners of property in the Subdivision, Plaintiff and Defendant are parties t0
restrictive covenants contained in the Declaration. A copy 0f the Declaration is attached t0 this
Petition as Exhibit A. The Declaration was executed and became effective on May 22, 2006, and
was duly recorded with the Dallas County Clerk’s Office 0n the same date. EX. A.
9. Plaintiff owns the property identified as Lot 6 in the original plat map for the
Subdivision, Which was duly and properly record in the Dallas County property records on
February 15, 2005, and which is attached and incorporated by reference to this Petition as
Exhibit B. Defendant owns the property as identified as Lot 5 in Exhibit B. These properties are
located Within the bounds of the property description provided in Exhibit A to the Declaration.
See EX. A; see also EX. B.
10. Defendant came into ownership of the property identified as Lot 5 in Exhibit B on
0r around June 2013. Plaintiff acquired the property identified as Lot 6 in Exhibit B 0n 0r about
February 2018. Upon purchasing said properties, both Plaintiff and Defendant became bound t0
the Declaration pursuant t0 the language established by the Developer therein, specifically “[t]he
Declarant [Daedalus C0rp.] hereby declares that all Long Creek Estates Subdivision residential
lots described Within attached Exhibit ‘A’ attached hereto and incorporated herein, are and shall
be owned, held, mortgaged, transferred, sold, conveyed and occupied subject to the covenants,
conditions, restrictions, easements, charges and liens (sometimes collectively referred to herein as
the “Covenants”) hereinafter set forth.” EX. A at 2. Pursuant t0 Section 7.3 of the Declaration,
the restrictions, conditions, and covenants in the Declaration are binding for 50 years and run With
the land. EX. A § 7.3.
11. Around early 2014, Defendant initiated construction of a residence 0n his property
(Lot 5). During said construction, Defendant removed earth from Within the drainage easement
between Lots 5 and 6, and lowered or otherwise altered an elevated drainage feature that was in
existence at the time the Defendant’s lot was sold t0 him by the Developer. This action
subsequently impacted the natural flow 0f water between the two properties (as such existed at the
time 0f conveyance of Lot 5 from the Developer t0 Defendant) and created a dangerous condition
and 0n ongoing risk of flooding t0 Plaintiff’s and other properties Within the Subdivision due to
impairment of the easement and drainage features therein. This action effectively defeated the
purpose of the drainage easement and corresponding drainage features Which run northwest to
southeast along the property line between Lots 5 and 6 and as further detailed in Exhibit B.
12. Prior t0 Plaintiff’ s purchase of Lot 6 in 2018, Defendant experienced one 0r more
significant flooding events on his property following his lowering and/or alerting of the physical
drainage features Within the drainage easement between Lots 5 and 6 during the initialconstruction
0f Defendant’s residence. After the flooding event(s) and around early 2018, Defendant
constructed a retaining wall in the northwest corner 0f his property and near in proximity to the
drainage easement between Lots 5 and 6 in attempt t0 remedy the flooding t0 his property caused
by his prior actions.
13. During construction 0f said retaining wall, Defendant conductedfurther alteration
of the drainage features within the drainage easement that spans the boundaries of the two
properties, and even encroached upon neighboring Lot 6 in doing so. As reflected in Exhibit B,
both Defendant and Plaintiff presently own two and a half (2.5) feet 0f property across and within
the drainage easement along the borders of their properties, comprising a one-half ownership
between them of the property containing the easement itself which spans five (5) feet across the
boundaries of the two properties. See EX. B.
14. In June 2018, Plaintiff initiated construction of his own residence 0n Lot 6. On 0r
around September 8, 2018, another significant rain and flooding event occurred, causing drainage
and significant flooding 0n both Plaintiff’s and Defendant’s properties. The retaining wall
constructed by Defendant was not adequate to handle the significant flow of water during this
event, and Defendant’s property experienced significant flooding. After this event Plaintiff, as an
emergency measure to address flooding and drainage 0n both his and Defendant’s properties,
constructed his own drainage infrastructure 0n the northeast corner of his property. Plaintiff was
compelled t0 take this action t0 remedy the flooding and drainage issues caused by Defendant’s
prior actions, Which resulted in impairment 0f the drainage easement and drainage features therein.
15. This work was done entirely on Plaintiff’s own property (i.e., and not within the
drainage easement itself) and was necessary for Plaintiff to continue construction and/or
landscaping 0f his property. Upon completion, the presence of the emergency infrastructure
rendered a significant portion 0f Plaintiff’s property along the northeastern and eastern edge
unusable for Plaintiff’s intended purpose. Due t0 inaction of Defendant to address the drainage
and flooding issues his original actions caused, the emergency infrastructure 0n Plaintiff” s property
is still necessary and Plaintiff remains unable t0 adequately level his property for construction
and/or landscaping in this portion of Lot 6 due t0 the presence of the emergency drainage
infrastructure.
16. On 0r about September 2018, legal counsel for Defendant sent correspondence to
Plaintiff suggesting that work by contractors 0n Plaintiff s property, specifically the moving 0f dirt
and filling of a drainage ditch, caused flooding to Defendant’s property. However, regardless of
Plaintiff” s acts t0 install the emergency drainage infrastructure, itwas Defendant’s prior actions as
to the drainage easement and leveling of the drainage features within that altered the natural flow
ofwater as such existed upon conveyance 0f Lot 5 to the Defendant and Which subsequently caused
all the drainage and flooding issues on Defendant’s own property (and others).
17. Since the flooding event in September 2018, Plaintiff has requested that Defendant
restore the easement t0 itsoriginal condition, particularly by reconstructing the drainage features
within that Defendant altered and/or removed. Furthermore, Plaintiff offered t0 share with
Defendant the associated costs incurred in restoration 0f said features t0 return the drainage
easement to itsoriginal condition upon conveyance from the Developer. Defendant refused all
such requests and offers, and has subsequently failed to construct any replacement drainage feature
or take any other remedial measure to remedy 0r otherwise restore the now-defeated easement,
constituting an ongoing Violation 0f Section 4.35 0f the Declaration.
18. Pursuant to Section 4.35 0f the Declaration “[a]11 easements, rights—of—way and
similar burdens authorized herein and/or shown 0n the recorded plat 0f the Subdivision for the
purpose 0f installation 0r maintenance ofutilities and rights—of—way and all such easements, rights-
of-way and similar burdens granted 0r imposed for any such purpose shall be strictly observed by
each Lot Owner 0r purchaser 0f any portion 0f the Subdivision, and shall not be in any manner
obstructed so as t0 defeat 0r hinder in any manner the use of such easement, rights—of—way, or
similar burdens.” EX. A at § 4.35. As expressed above, Defendant’s actions with regard t0 the
drainage easement and drainage features within defeated the purpose 0f the easement and violated
§ 4.35.
19. Section 4.45 prohibits “[t]he digging 0f dirt 0r the removal 0f any dirt from a
Lot. ..except as necessary in conjunction with the landscaping 0f 0r construction 0n such Lot.”
EX. A at § 4.45. Defendant’s removal 0f dirt within the drainage easement, and particularly within
the easement portion on property now owned by Plaintiff, was not necessary in connection with
the construction 0n Defendant’s lot, and such actions therefore violated Section 4.45 of the
Declaration.
VI. CAUSE OF ACTION: DECLARATORY JUDGMENT
20. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded
herein.
21. Pursuant t0 Section 7.6 0f the Declaration, “[e]nforcement of these Covenants may
be initiated by any proceeding at law 0r in equity against any person or persons Violating 0r
attempting t0 Violate them, whether the relief sought is an injunction or recovery of damages, 0r
both, 0r enforcement 0f any lien created by these Covenants.” EX. A at § 7.6.
22. Defendant’s failure to maintain the drainage easement, obstruct it, and defeat its
purpose violates Section 4.35 of the Declaration, and Defendant’s unnecessary removal and/or
moving of the earth 0n both Plaintiff’s and Defendant’s property (resulting in removal of the
drainage features) violated Section 4.45 0f the Declaration.
23. Defendant has failed to comply With the restrictive covenants contained within the
Declaration and running With the lot. The terms and provisions of the Declaration are enforceable
against all property owners Within the Subdivision. The Declaration was properly filed With the
clerk’s office in this county. Thus, this Court should declare that Defendant violated the restrictive
covenants attached t0 the property and enter a judgment requiring the enforcement of these
restrictions.
VII. TRESPASS
24. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded
herein.
25. A defendant commits trespass t0 real property where there is an “unauthorized entry
upon the land 0f another, and may occur when one enters—or causes something t0 enter—
another’s property.” Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 201 1). “[E]Very unauthorized
entry upon land of another is a trespass even if n0 damage is done 0r injury is slight.” Id. (cleaned
up)
26. Here, Defendant’s actions in the removal 0f dirt within the easement segment on
Plaintiff’s property and Defendant’s alteration 0f the physical drainage features causing waters t0
enter Plaintiff’s property were done without authorization and therefore constitute trespass.
Defendant’s refusal t0 take remedial action creates a continued flood risk, and thus a continued
trespass onto Plaintiff’s property. Plaintiff thus asks this Court enter a judgment finding that
Defendant committed a trespass onto Plaintiff’s property, and award money damages to Plaintiff
in amount sufficient to cover costs for damages and any necessary remedial actions.
VIII. PERMANENT INJUNCTION
27. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded
herein.
28. The Declaration expressly grants an owner of a lot the right t0 initiate enforcement
proceedings “against any person 0r persons Violating 0r attempting t0 Violate [the Covenants],
whether the relief sought is an injunction 0r recovery 0f damages, 0r both. .
.” EX. A at § 7.6
(emphasis added).
29. Defendant violated the Declaration, and the restrictive covenants running with the
lot contained there, by removing drainage features 0n his property. Defendant’s actions have
created a great risk 0f dangerous or hazardous condition by impacting the flow 0f water between
the two properties. This change in the land creates ongoing risk 0f flooding to Plaintiff s property
and that 0f third parties. Defendant’s actions constitute a trespass onto Plaintiff’s property. “An
injunction is the proper remedy t0 restrain repeated 0r continuing trespasses where the remedy at
law is inadequate because 0f the nature 0f the injury, or the multiplicity of actions necessary to
obtain redress.” America Energy Rest, LL. C. v.Moore, N0. 13-08-00097-CV, 2008 WL 3984169,
at *7 (Tex. App.—C0rpus Christi Aug. 29, 2008, n0 pet.)(cleaned up).
30. As full remedy can only be achieved by Defendant taking remedial measures 0n his
property even with Plaintiff taking certain intermediary remedial measures, Plaintiff requests that
this Court issue a permanent injunction t0 require Defendant to restore the drainage features 0n his
property t0 prevent continued trespass onto Plaintiff’s property and continued and ongoing
8
Violation of the Declaration as itpertains to Defendant’s actions that have defeated the purpose of
the drainage easement as expressly prohibited by Section 4.35 of the Declaration. EX. A at § 4.35.
3 1. This continuing and ongoing Violation 0f the Declaration can only be remedied by
restoring the easement and drainage features t0 the original condition as such existed at the time
the property was conveyed to the Defendant by the Developer. Plaintiff hereby requests this Court
order Defendant t0 restore the drainage easement, and drainage features contained therein, t0 the
original condition as such existed at the time of property conveyance from the Developer to
Defendant. See EX. A at § 5.5.
IX. ATTORNEYS’ FEES
32. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded here.
33. The Declaration itself provides the right of recovery 0f all costs and expenses,
including reasonable attorneys’ fees, t0 the prevailing party in “any” litigation brought pursuant t0
the Enforcement provisions 0f the Declaration. EX. A at § 7.6.
34. This right to recovery of costs and fees isfurther established in Texas statutory law,
specifically Section 5.006 0fthe Texas Property Code, which provides a mandatory award of such
fees stating “[i]n an action based 0n breach 0f a restrictive covenant pertaining t0 real property,
the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in
addition t0 the party’s costs and claim.” Tex. Prop. Code § 5.006(a) (emphasis added).
35. The right to recovery of costs including reasonable attorneys’ fees is also
recognized in Texas common law, Where various courts around the state have recognized this right
and provided such awards to prevailing parties in suits brought by property owners t0 enforce
restrictive covenants 0f a residential subdivision. See, e.g.,Nash v.Peters, 303 S.W.3d 359 (Tex.
App.—E1 Paso 2009, no pet); see also Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San
Antonio 1985, writ ref‘d n.r.e.).
X. PRAYER
36. For the above reasons, Plaintiff Ruben Lopez prays:
a. The Court grant declaratory judgment in favor 0f the Plaintiff declaring the
Defendant violated the aforementioned restrictions covenants in the Declaration;
b. The Court grant judgment finding that Defendant committed a trespass onto
Plaintiff” s property;
c. The Court issue a permanent injunction t0 prevent Defendant from further
trespass onto Plaintiff’s property and from committing further Violations of the Declaration,
particularly Section 4.35, and order Defendant to restore the drainage easement and drainage
features therein t0 the original condition as such existed upon conveyance 0f Lot 5 from the
Developer to Defendant 01‘,in the alternative, award damages t0 Plaintiff in amount sufficient for
Plaintiff to complete some degree 0f restoration himself;
d. The Court grant Plaintiff reasonable and necessary attorneys’ fees in
accordance With Section 5.006 of the Texas Property Code, as established by Texas common law
regarding such claims for Violations 0f restrictive covenants, and as expressly recognized in
Section 7.6 0f the Declaration, together with costs 0f court; and
e. For any and all other relief t0 Which Plaintiff may be justly entitled in law
or equity.
10
Respectfully submitted,
LLOYD GOSSELINK
ROCHELLE & TOWNSEND, P.C.
816 Congress Avenue, Suite 1900
Austin, Texas 78701
Telephone: (512) 322-5800
Fax: (5 12) 472-0532
By: /s/J. Troupe Brewer
J. TROUPE BREWER
State Bar No. 24082728
tbrewer@lglawfirm.com
GABRIELLE C. SMITH
State Bar No. 24093 172
gsmith@lglawfirm.com
ATTORNEYS FOR PLAINTIFF
11
EXHIBIT A
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II II1111 III33f; 200600185258
‘
CONDO msma‘szsa
ummlmumumIwmmumummuImilmlmmlmu
25 PGS
DECLARATION
DECLARATION
OF
0F
COVENANTS,
COVENANTS, CONDITIONS,
CONDITIONS,
RESTRICTIONS,
RESTRICTIONS, EASEMENTS,
EASEMENTs,
CHARGES AND
CHARGES AND LIENS
LIENS
ON AND
0N AND FOR
FOR
LONG
LONG CREEK ESTATES
CREEK ESTATES SUBDIVISION
SUBDIVISION
DALLAS COUNTY,
DALLAS COUNTY,
TEXAS
TEXAS
This
This DECLARATION
DECLARATION OF
OF COVENANTS,
COVENANTS. CONDITIONS,
CONDITIONS, RESTRICTIONS,
RESTRICTIONS.
EASEMENTS,
EASEMENTS, CHARGES
CHARGES AND
AND LIENS
LIENS is
is made
made and
and effective
effective as
as of the
of the ay
ay of
of May,
May.
2006,
2006. by
by Daedelus
Daedelus Corporation
Corporation (sometimes
(sometimes referred
referred toto herein
herein as the
as the "D
"D c arant"):
c arant"):
PREAMBLE
PREAMBLE
Declarant
Declarant is the
isthe owner
owner and
and developer
developer of of certain
certain residential
residential Lots
Lots within
within aa 20.269
20.269 acre
acre
tract of
tract land
of land now commonly
now commonly known known and described
and described as as the
the Long
Long Creek Estates
Creek Estates Subdivision
Subdivision
(which
(which lots
lots are
are more
more particularly
particularly described
described within
within Exhibit
Exhibit "A,"
“A,” attached
attached hereto
hereto and
and
incorporated
incorporated herein).
herein). proposes to
Declarant proposes
Declarant establish these
to establish these restrictions
restrictions on
on the Long Creek
the Long Creek
Estates
Estates Subdivision
Subdivision property
property now
now and
and yet
yet retain
retain reasonable
reasonable flexibility
flexibility to
to respond
respond to
to
changing or
changing or unforeseen
unforeseen circumstances
circumstances so so as
as to
to guide.
guide, control
control and
and maintain
maintain thethe quality and
quality and
distinction
distinction of the
of the Long
Long Creek Estates
Creek Estates Subdivision
Subdivision project.
project
DECLARATION
DECLARATION
The
The Declarant hereby
Declarant hereby declares
declares that all
that all Long
Long Creek Estates
Creek Estates Subdivision
Subdivision residential
residential
lots described within Exhibit
lots described within Exhibit "A"
“A" attached hereto and incorporated herein. are and shall
attached hereto and incorporated herein, are and shall be
be
owned,
owned, held,
held, mortgaged,
mortgaged, transferred,
transferred, sold,
sold, conveyed
conveyed and
an'd occupied
occupied subject
subject to
to the
the
covenants,
covenants, conditions,
conditions, restrictions easements,
restrictions easements, charges and
charges and liens
liens (sometimes collectively
(sometimes collectively
referred
referred to
to herein
herein as
as the
the "Covenants")
"Covenants") hereinafter set
hereinafter set forth.
forth. To
To better assure
better assure the
the proper
proper
operation
operation to
to promote
promote the
the quality
quality of
of life
lifewithin
within the
the Long
Long Creek
Creek Estates
Estates Subdivision,
Subdivision. the
the
Declarant further
Declarant further declares
declares that:
that:
ACQUISITION
ACQUISITION OF ANY
OF ANY LOT WITHIN
LOT WITHIN THE
THE LONG
LONG CREEK
CREEK
ESTATES
ESTATES SUBDIVISION
SUBDIVISION SHALL
SHALL NOT BECOME
NOT BECOME
EFFECTIVE
EFFECTIVE UNTIL AND
UNTILAND UNLESS:
UNLESS:
(A)
(A) THE
THE "CLOSING
"CLOSING INFORMATION
INFORMATION PACKAGE" AND
PACKAGE" AND
RELATED
RELATED DOCUMENTS
DOCUMENTS HAVE
HAVE BEEN
BEEN PROPERLY
PROPERLY
EXECUTED
EXECUTED BY THE
BY THE DECLARANT
DECLARANT AND AND THETHE
pURCHASEFUTRANSFEREE;
Preview
FILED 6/3/2020 12:23PM FELICIA PITRE DISTRICT CLERK 1 CIT/ESERVE DALLAS 00., CO.,TEXAS Mata Alicia DEPUTY DC-20-07652 CAUSE NO. NO RUBEN LOPEZ, § IN THE DISTRICT COURT Plaintiff, § V. § § § _ H-160TH JUDICIAL DISTRICT MARK COWDEN, § Defendant. § DALLAS COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF THE COURT: PlaintiffRuben Lopez (“Plaintiff”) files this Original Petition seeking declaratory and other corresponding relief for the Violation of 0f certain neighborhood covenants and deed restrictions, and would respectfully show the Court as follows. I. EXECUTIVE SUMMARY 1. This action is brought seeking a declaration that Mr. Mark Cowden (“Defendant”) violated subdivision deed restrictions. Plaintiff and Defendant own neighboring parcels of residential property that are subj ect to t0 the terms, restrictions, and conditions in the “Declaration of Covenants, Conditions, Restrictions, Easements, Charges and Liens 0n on and for Long Creek Estates Subdivision” (“Subdivision”) in Sunnyvale, Texas (“Declaration”). Defendant’s acts and omissions violated specific provisions in the Subdivision’s Declaration relating to t0 a drainage easement and physical drainage features established by Daedelus Corp., Corp, the developer of the Long Creek Estates Subdivision (“Developer”). 2. Plaintiff requests the Court enter a judgment declaring that Defendant violated the restrictions in the Declaration as further detailed below, enforce those restrictions by requiring Defendant to t0 restore the drainage easement and physical drainage features t0 the original condition as such existed upon conveyance of the 0f parcel by Developer to t0 Defendant, and award Plaintiff attorneys’ fees pursuant to the terms 0f the Declaration and applicable Texas law authorizing such an award. II. DISCOVERY 3. To the extent discovery is necessary, Plaintiff proposes that it be conducted pursuant to the Level 2 procedures of Rule 190 of the Texas Rules of Civil Procedure. III. PARTIES AND SERVICE 4. Plaintiff Ruben Lopez is a property owner in Sunnyvale, Texas, a home-rule municipality entirely within Dallas County. 5. Defendant Mark Cowden is a property owner in Sunnyvale, Texas, a home-rule municipality entirely Within Dallas County. Defendant may be served with process at 472 Calais Ct., Sunnyvale TX 75182. IV. JURISDICTION AND VENUE 6. Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Texas Civil Practice and Remedies Code. 7. This Court has jurisdiction over this dispute pursuant to Sections 24.007 & 24.008 of the Texas Government Code. V. FACTUAL BACKGROUND 8. As owners of property in the Subdivision, Plaintiff and Defendant are parties t0 restrictive covenants contained in the Declaration. A copy 0f the Declaration is attached t0 this Petition as Exhibit A. The Declaration was executed and became effective on May 22, 2006, and was duly recorded with the Dallas County Clerk’s Office 0n the same date. EX. A. 9. Plaintiff owns the property identified as Lot 6 in the original plat map for the Subdivision, Which was duly and properly record in the Dallas County property records on February 15, 2005, and which is attached and incorporated by reference to this Petition as Exhibit B. Defendant owns the property as identified as Lot 5 in Exhibit B. These properties are located Within the bounds of the property description provided in Exhibit A to the Declaration. See EX. A; see also EX. B. 10. Defendant came into ownership of the property identified as Lot 5 in Exhibit B on 0r around June 2013. Plaintiff acquired the property identified as Lot 6 in Exhibit B 0n 0r about February 2018. Upon purchasing said properties, both Plaintiff and Defendant became bound t0 the Declaration pursuant t0 the language established by the Developer therein, specifically “[t]he Declarant [Daedalus C0rp.] hereby declares that all Long Creek Estates Subdivision residential lots described Within attached Exhibit ‘A’ attached hereto and incorporated herein, are and shall be owned, held, mortgaged, transferred, sold, conveyed and occupied subject to the covenants, conditions, restrictions, easements, charges and liens (sometimes collectively referred to herein as the “Covenants”) hereinafter set forth.” EX. A at 2. Pursuant t0 Section 7.3 of the Declaration, the restrictions, conditions, and covenants in the Declaration are binding for 50 years and run With the land. EX. A § 7.3. 11. Around early 2014, Defendant initiated construction of a residence 0n his property (Lot 5). During said construction, Defendant removed earth from Within the drainage easement between Lots 5 and 6, and lowered or otherwise altered an elevated drainage feature that was in existence at the time the Defendant’s lot was sold t0 him by the Developer. This action subsequently impacted the natural flow 0f water between the two properties (as such existed at the time 0f conveyance of Lot 5 from the Developer t0 Defendant) and created a dangerous condition and 0n ongoing risk of flooding t0 Plaintiff’s and other properties Within the Subdivision due to impairment of the easement and drainage features therein. This action effectively defeated the purpose of the drainage easement and corresponding drainage features Which run northwest to southeast along the property line between Lots 5 and 6 and as further detailed in Exhibit B. 12. Prior t0 Plaintiff’ s purchase of Lot 6 in 2018, Defendant experienced one 0r more significant flooding events on his property following his lowering and/or alerting of the physical drainage features Within the drainage easement between Lots 5 and 6 during the initialconstruction 0f Defendant’s residence. After the flooding event(s) and around early 2018, Defendant constructed a retaining wall in the northwest corner 0f his property and near in proximity to the drainage easement between Lots 5 and 6 in attempt t0 remedy the flooding t0 his property caused by his prior actions. 13. During construction 0f said retaining wall, Defendant conductedfurther alteration of the drainage features within the drainage easement that spans the boundaries of the two properties, and even encroached upon neighboring Lot 6 in doing so. As reflected in Exhibit B, both Defendant and Plaintiff presently own two and a half (2.5) feet 0f property across and within the drainage easement along the borders of their properties, comprising a one-half ownership between them of the property containing the easement itself which spans five (5) feet across the boundaries of the two properties. See EX. B. 14. In June 2018, Plaintiff initiated construction of his own residence 0n Lot 6. On 0r around September 8, 2018, another significant rain and flooding event occurred, causing drainage and significant flooding 0n both Plaintiff’s and Defendant’s properties. The retaining wall constructed by Defendant was not adequate to handle the significant flow of water during this event, and Defendant’s property experienced significant flooding. After this event Plaintiff, as an emergency measure to address flooding and drainage 0n both his and Defendant’s properties, constructed his own drainage infrastructure 0n the northeast corner of his property. Plaintiff was compelled t0 take this action t0 remedy the flooding and drainage issues caused by Defendant’s prior actions, Which resulted in impairment 0f the drainage easement and drainage features therein. 15. This work was done entirely on Plaintiff’s own property (i.e., and not within the drainage easement itself) and was necessary for Plaintiff to continue construction and/or landscaping 0f his property. Upon completion, the presence of the emergency infrastructure rendered a significant portion 0f Plaintiff’s property along the northeastern and eastern edge unusable for Plaintiff’s intended purpose. Due t0 inaction of Defendant to address the drainage and flooding issues his original actions caused, the emergency infrastructure 0n Plaintiff” s property is still necessary and Plaintiff remains unable t0 adequately level his property for construction and/or landscaping in this portion of Lot 6 due t0 the presence of the emergency drainage infrastructure. 16. On 0r about September 2018, legal counsel for Defendant sent correspondence to Plaintiff suggesting that work by contractors 0n Plaintiff s property, specifically the moving 0f dirt and filling of a drainage ditch, caused flooding to Defendant’s property. However, regardless of Plaintiff” s acts t0 install the emergency drainage infrastructure, itwas Defendant’s prior actions as to the drainage easement and leveling of the drainage features within that altered the natural flow ofwater as such existed upon conveyance 0f Lot 5 to the Defendant and Which subsequently caused all the drainage and flooding issues on Defendant’s own property (and others). 17. Since the flooding event in September 2018, Plaintiff has requested that Defendant restore the easement t0 itsoriginal condition, particularly by reconstructing the drainage features within that Defendant altered and/or removed. Furthermore, Plaintiff offered t0 share with Defendant the associated costs incurred in restoration 0f said features t0 return the drainage easement to itsoriginal condition upon conveyance from the Developer. Defendant refused all such requests and offers, and has subsequently failed to construct any replacement drainage feature or take any other remedial measure to remedy 0r otherwise restore the now-defeated easement, constituting an ongoing Violation 0f Section 4.35 0f the Declaration. 18. Pursuant to Section 4.35 0f the Declaration “[a]11 easements, rights—of—way and similar burdens authorized herein and/or shown 0n the recorded plat 0f the Subdivision for the purpose 0f installation 0r maintenance ofutilities and rights—of—way and all such easements, rights- of-way and similar burdens granted 0r imposed for any such purpose shall be strictly observed by each Lot Owner 0r purchaser 0f any portion 0f the Subdivision, and shall not be in any manner obstructed so as t0 defeat 0r hinder in any manner the use of such easement, rights—of—way, or similar burdens.” EX. A at § 4.35. As expressed above, Defendant’s actions with regard t0 the drainage easement and drainage features within defeated the purpose 0f the easement and violated § 4.35. 19. Section 4.45 prohibits “[t]he digging 0f dirt 0r the removal 0f any dirt from a Lot. ..except as necessary in conjunction with the landscaping 0f 0r construction 0n such Lot.” EX. A at § 4.45. Defendant’s removal 0f dirt within the drainage easement, and particularly within the easement portion on property now owned by Plaintiff, was not necessary in connection with the construction 0n Defendant’s lot, and such actions therefore violated Section 4.45 of the Declaration. VI. CAUSE OF ACTION: DECLARATORY JUDGMENT 20. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded herein. 21. Pursuant t0 Section 7.6 0f the Declaration, “[e]nforcement of these Covenants may be initiated by any proceeding at law 0r in equity against any person or persons Violating 0r attempting t0 Violate them, whether the relief sought is an injunction or recovery of damages, 0r both, 0r enforcement 0f any lien created by these Covenants.” EX. A at § 7.6. 22. Defendant’s failure to maintain the drainage easement, obstruct it, and defeat its purpose violates Section 4.35 of the Declaration, and Defendant’s unnecessary removal and/or moving of the earth 0n both Plaintiff’s and Defendant’s property (resulting in removal of the drainage features) violated Section 4.45 0f the Declaration. 23. Defendant has failed to comply With the restrictive covenants contained within the Declaration and running With the lot. The terms and provisions of the Declaration are enforceable against all property owners Within the Subdivision. The Declaration was properly filed With the clerk’s office in this county. Thus, this Court should declare that Defendant violated the restrictive covenants attached t0 the property and enter a judgment requiring the enforcement of these restrictions. VII. TRESPASS 24. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded herein. 25. A defendant commits trespass t0 real property where there is an “unauthorized entry upon the land 0f another, and may occur when one enters—or causes something t0 enter— another’s property.” Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 201 1). “[E]Very unauthorized entry upon land of another is a trespass even if n0 damage is done 0r injury is slight.” Id. (cleaned up) 26. Here, Defendant’s actions in the removal 0f dirt within the easement segment on Plaintiff’s property and Defendant’s alteration 0f the physical drainage features causing waters t0 enter Plaintiff’s property were done without authorization and therefore constitute trespass. Defendant’s refusal t0 take remedial action creates a continued flood risk, and thus a continued trespass onto Plaintiff’s property. Plaintiff thus asks this Court enter a judgment finding that Defendant committed a trespass onto Plaintiff’s property, and award money damages to Plaintiff in amount sufficient to cover costs for damages and any necessary remedial actions. VIII. PERMANENT INJUNCTION 27. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded herein. 28. The Declaration expressly grants an owner of a lot the right t0 initiate enforcement proceedings “against any person 0r persons Violating 0r attempting t0 Violate [the Covenants], whether the relief sought is an injunction 0r recovery 0f damages, 0r both. . .” EX. A at § 7.6 (emphasis added). 29. Defendant violated the Declaration, and the restrictive covenants running with the lot contained there, by removing drainage features 0n his property. Defendant’s actions have created a great risk 0f dangerous or hazardous condition by impacting the flow 0f water between the two properties. This change in the land creates ongoing risk 0f flooding to Plaintiff s property and that 0f third parties. Defendant’s actions constitute a trespass onto Plaintiff’s property. “An injunction is the proper remedy t0 restrain repeated 0r continuing trespasses where the remedy at law is inadequate because 0f the nature 0f the injury, or the multiplicity of actions necessary to obtain redress.” America Energy Rest, LL. C. v.Moore, N0. 13-08-00097-CV, 2008 WL 3984169, at *7 (Tex. App.—C0rpus Christi Aug. 29, 2008, n0 pet.)(cleaned up). 30. As full remedy can only be achieved by Defendant taking remedial measures 0n his property even with Plaintiff taking certain intermediary remedial measures, Plaintiff requests that this Court issue a permanent injunction t0 require Defendant to restore the drainage features 0n his property t0 prevent continued trespass onto Plaintiff’s property and continued and ongoing 8 Violation of the Declaration as itpertains to Defendant’s actions that have defeated the purpose of the drainage easement as expressly prohibited by Section 4.35 of the Declaration. EX. A at § 4.35. 3 1. This continuing and ongoing Violation 0f the Declaration can only be remedied by restoring the easement and drainage features t0 the original condition as such existed at the time the property was conveyed to the Defendant by the Developer. Plaintiff hereby requests this Court order Defendant t0 restore the drainage easement, and drainage features contained therein, t0 the original condition as such existed at the time of property conveyance from the Developer to Defendant. See EX. A at § 5.5. IX. ATTORNEYS’ FEES 32. Plaintiff incorporates by reference the preceding paragraphs as if fully pleaded here. 33. The Declaration itself provides the right of recovery 0f all costs and expenses, including reasonable attorneys’ fees, t0 the prevailing party in “any” litigation brought pursuant t0 the Enforcement provisions 0f the Declaration. EX. A at § 7.6. 34. This right to recovery of costs and fees isfurther established in Texas statutory law, specifically Section 5.006 0fthe Texas Property Code, which provides a mandatory award of such fees stating “[i]n an action based 0n breach 0f a restrictive covenant pertaining t0 real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition t0 the party’s costs and claim.” Tex. Prop. Code § 5.006(a) (emphasis added). 35. The right to recovery of costs including reasonable attorneys’ fees is also recognized in Texas common law, Where various courts around the state have recognized this right and provided such awards to prevailing parties in suits brought by property owners t0 enforce restrictive covenants 0f a residential subdivision. See, e.g.,Nash v.Peters, 303 S.W.3d 359 (Tex. App.—E1 Paso 2009, no pet); see also Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985, writ ref‘d n.r.e.). X. PRAYER 36. For the above reasons, Plaintiff Ruben Lopez prays: a. The Court grant declaratory judgment in favor 0f the Plaintiff declaring the Defendant violated the aforementioned restrictions covenants in the Declaration; b. The Court grant judgment finding that Defendant committed a trespass onto Plaintiff” s property; c. The Court issue a permanent injunction t0 prevent Defendant from further trespass onto Plaintiff’s property and from committing further Violations of the Declaration, particularly Section 4.35, and order Defendant to restore the drainage easement and drainage features therein t0 the original condition as such existed upon conveyance 0f Lot 5 from the Developer to Defendant 01‘,in the alternative, award damages t0 Plaintiff in amount sufficient for Plaintiff to complete some degree 0f restoration himself; d. The Court grant Plaintiff reasonable and necessary attorneys’ fees in accordance With Section 5.006 of the Texas Property Code, as established by Texas common law regarding such claims for Violations 0f restrictive covenants, and as expressly recognized in Section 7.6 0f the Declaration, together with costs 0f court; and e. For any and all other relief t0 Which Plaintiff may be justly entitled in law or equity. 10 Respectfully submitted, LLOYD GOSSELINK ROCHELLE & TOWNSEND, P.C. 816 Congress Avenue, Suite 1900 Austin, Texas 78701 Telephone: (512) 322-5800 Fax: (5 12) 472-0532 By: /s/J. Troupe Brewer J. TROUPE BREWER State Bar No. 24082728 tbrewer@lglawfirm.com GABRIELLE C. SMITH State Bar No. 24093 172 gsmith@lglawfirm.com ATTORNEYS FOR PLAINTIFF 11 EXHIBIT A 11111111111 II II1111 III33f; 200600185258 ‘ CONDO msma‘szsa ummlmumumIwmmumummuImilmlmmlmu 25 PGS DECLARATION DECLARATION OF 0F COVENANTS, COVENANTS, CONDITIONS, CONDITIONS, RESTRICTIONS, RESTRICTIONS, EASEMENTS, EASEMENTs, CHARGES AND CHARGES AND LIENS LIENS ON AND 0N AND FOR FOR LONG LONG CREEK ESTATES CREEK ESTATES SUBDIVISION SUBDIVISION DALLAS COUNTY, DALLAS COUNTY, TEXAS TEXAS This This DECLARATION DECLARATION OF OF COVENANTS, COVENANTS. CONDITIONS, CONDITIONS, RESTRICTIONS, RESTRICTIONS. EASEMENTS, EASEMENTS, CHARGES CHARGES AND AND LIENS LIENS is is made made and and effective effective as as of the of the ay ay of of May, May. 2006, 2006. by by Daedelus Daedelus Corporation Corporation (sometimes (sometimes referred referred toto herein herein as the as the "D "D c arant"): c arant"): PREAMBLE PREAMBLE Declarant Declarant is the isthe owner owner and and developer developer of of certain certain residential residential Lots Lots within within aa 20.269 20.269 acre acre tract of tract land of land now commonly now commonly known known and described and described as as the the Long Long Creek Estates Creek Estates Subdivision Subdivision (which (which lots lots are are more more particularly particularly described described within within Exhibit Exhibit "A," “A,” attached attached hereto hereto and and incorporated incorporated herein). herein). proposes to Declarant proposes Declarant establish these to establish these restrictions restrictions on on the Long Creek the Long Creek Estates Estates Subdivision Subdivision property property now now and and yet yet retain retain reasonable reasonable flexibility flexibility to to respond respond to to changing or changing or unforeseen unforeseen circumstances circumstances so so as as to to guide. guide, control control and and maintain maintain thethe quality and quality and distinction distinction of the of the Long Long Creek Estates Creek Estates Subdivision Subdivision project. project DECLARATION DECLARATION The The Declarant hereby Declarant hereby declares declares that all that all Long Long Creek Estates Creek Estates Subdivision Subdivision residential residential lots described within Exhibit lots described within Exhibit "A" “A" attached hereto and incorporated herein. are and shall attached hereto and incorporated herein, are and shall be be owned, owned, held, held, mortgaged, mortgaged, transferred, transferred, sold, sold, conveyed conveyed and an'd occupied occupied subject subject to to the the covenants, covenants, conditions, conditions, restrictions easements, restrictions easements, charges and charges and liens liens (sometimes collectively (sometimes collectively referred referred to to herein herein as as the the "Covenants") "Covenants") hereinafter set hereinafter set forth. forth. To To better assure better assure the the proper proper operation operation to to promote promote the the quality quality of of life lifewithin within the the Long Long Creek Creek Estates Estates Subdivision, Subdivision. the the Declarant further Declarant further declares declares that: that: ACQUISITION ACQUISITION OF ANY OF ANY LOT WITHIN LOT WITHIN THE THE LONG LONG CREEK CREEK ESTATES ESTATES SUBDIVISION SUBDIVISION SHALL SHALL NOT BECOME NOT BECOME EFFECTIVE EFFECTIVE UNTIL AND UNTILAND UNLESS: UNLESS: (A) (A) THE THE "CLOSING "CLOSING INFORMATION INFORMATION PACKAGE" AND PACKAGE" AND RELATED RELATED DOCUMENTS DOCUMENTS HAVE HAVE BEEN BEEN PROPERLY PROPERLY EXECUTED EXECUTED BY THE BY THE DECLARANT DECLARANT AND AND THETHE pURCHASEFUTRANSFEREE;