Preview
CAUSE NO. 2018-26058
SHARPSTOWN CIVIC ASSOCIATION,
COUNTY TEXAS
COMES NOW Plaintiff
response to Defendants! motion for summary judg ffs Motion to Strike
Pleadings and would show the Court the following:
(hereinafter referred to as
YIFENG LU AND SUFEN WANG (hereinafter referred to as
"Defendants"), property owners in the Sharpstown subdivision and member of Plaintiff by
virtue of their property ownership.
for breach of contract for Defendants’ violation of the
injunctive relief, statutory damages and
attorney fees.
On July 30, 2018, this Court filed a Docket Control Order, with a "Pleadings" filing
deadline of July 10, 2019. With the exception of the trial docket date, the deadlines in
this order were extended in August, 2019 and May, 2020. Both documents read, in
relevant part: "All previous pre-trial deadlines remain in effect, unless changed by the
On July 10, 2020, without requesting this Court's permission to file a pleading
the pleading deadline had passed, Defendants filed the
"Second Amended General Denial, Declaratory Judgment and Counterclaim" for the first
time alleging affirmative defenses and af declaratory relief.
On September 9, 2020, more than one year after the live docket control order's
without seeking this Court's permission,
Defendants filed their Motion for Summary Judgment on claims not contained in any of
On September 15, 2020, in response to the claims set forth for the first time in
Defendants' summary judgment motion, Plaintiff filed a supplemental pleading to correct
(7) days before trial, pursuant
Court's File, Image No. 81028352 — Docket Control Order
Court's File, Image Nos. 86877822, 90497926 — Trial Preparation Orders
Court's File, Image Nos. 92170641, 92170642 — Plaintiffs 1
MOTION TO STRIKE PLEADINGS
This Court should strike Defendants' Second Amended General Denial, Declaratory Judgment
for the following reasons.
Defendants cannot assert these new claims and defenses—as described supra, the
Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim assert
new defenses and new causes of action against Plaintiff and are therefore prejudicial on
their faces and operate as a surprise to Plaintiff. Therefore, Plaintiff objects to Defendants'
Second Amended General Denial, Declaratory Judgment and Counter Claim
Further, the Court's Docket Control Order expressly states: "07/10/19 PLEADINGS. All
amendments and supplements must be filed by this date."
Defendants are an entire year outside this deadline, and did not seek leave of Court.
Therefore, Plaintiff objects to Defendants' Second Amended General Denial, Declaratory
Judgment and Counter Claim
These deadlines were set forth in the Court's Trial Preparation Order on July 30, 2018.
After the trial date was moved to the Court's Orders Resetting Trial expressly stated: "All
previous pre-trial deadlines remain in effect [...]". Defendants did not seek leave of Court.
Therefore, Plaintiff objects to Defendants' Second Amended General Denial, Declaratory
Judgment and Counter Claim
Even if one disregards the Court's clear orders, Defendants' Second Amended General
Denial, Declaratory Judgment and Counter Claim are still untimely. Defendants were well
Tex. R. Civ. P. 63; , 458 S.W.3d 85, 95 (Tex. App.—El Paso 2014, no pet.)
» 458 S.W.3d at 94-95 (continuance does not alter deadlines in scheduling order; resetting a trial date
order refers to the Texas Rules of Civil Procedure)
aware of their potential defenses and counterclaims prior to and during this lawsuit, but
chose not to allege them until now, long after all deadlines have passed. This is trial by
ambush. Therefore, Plaintiff objects to Defendants' Second Amended General Denial,
Declaratory Judgment and Counter Claim
scenario. Had Defendants asserted these claims and defenses earlier, the parties would
have used different discovery, different strategies, and different trial preparation. As the
wrote, "it asserts a new substantive matter that reshapes the nature of the
trial itself [...]". Therefore, Plaintiff objects to Defendants' Second Amended General
ment and Counter Claim
For these reasons, for the reasons set forth above, Plaintiff ask the Court to strike
Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim
Plaintiff reserves the right to seek sanctions under Chapter 10 of the Texas Civil Practice
& Remedies Code.
Objections to Defendants' Unpleaded Claims and Defenses
In their summary judgment, Defendants attempts to assert affirmative defenses and an
entirely new declaratory judgment action Defendants' prior
pleadings. Plaintiff objects to Defendants’ new defenses and causes of action contained in
their summary judgment to extent th timely live
Holmes, 458 S.W.3d at 9.
pleadings (none of which contain affirmative defenses or counterclaims) and declines
to allow them to be tried by consent.
Objection to Defendants' Untimely Filed Motion
As with Defendants' Second Amended General Denial, Declaratory Judgment and Counter
described supra, Defendants' motion for summary judgment was filed without this
Court's permission more than a year after the expiration of this Court's dispositive
motions deadline.
Defendants are an entire year outside this deadline, and did not seek leave of Court.
Therefore, Plaintiff objects to Defe
Even assuming, , that Defendants’ motion was not untimely or based on issues
Defendants' motion fails for mootness.
Defendant's entire motion rests on the argument that the declarations document
1 Petition did not apply to Defendants' lot.
To Plaintiffs surprise, Defendants were correct—Sharpstown Country Club Terrace,
Section 3 is, in fact actually made up of nine (9) separate declaration documents , each of
However, a clerical error which misidentifies an applicable document does not mean that
no applicable document exists, and within a few days of being put on notice of the clerical
error, Plaintiff filed a supplemental petition to correct that clerical error.
Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 495 (Tex. 1991) (unpleaded claims or defenses that are tried by
express or implied consent of the parties are treate
» 458 S.W.3d at 94-95 (continuance does not alter deadlines in scheduling order; resetting a trial date
order refers to the Texas Rules of Civil Procedure)
Plus three (3) amendments
More importantly, a review of the two documents shows that they contain the same
restrictive covenants, using essentially the same language, and that both documents
provided that:
No improvements of any character shall be created, or the erection
begun, or change made in the exterior design thereof after original
construction, on any lot, until plans and specifications have been
submitted to and approved in writing by the Architectural
It is undisputed that Defendants did not comply with the Association's restrictive
Defendants’ untimely summary judgment motion, which is (1) not supported by
Defendants' pleadings, either timely or untimely, and (2) relies wholly on a minor clerical
error by Plaintiff, has no basis in law or fact, and has been put forth solely to drive up the
costs and fees in this case, as yet another tactic to delay trial.
Accordingly, Defendants’ motion should be denied.
Plaintiff was required to respond to Defendants’ untimely counterclaims and motions.
Consequently, Plaintiff requests payment of costs and its reasonable and necessary
attorney fees incurred in responding to Defendants’ counterclaim pursuant to section
37.009 of the Texas Civil Pr
Wherefore, premises considered, Plaintiff asks that this court (1) strike Defendants' Second
Amended General Denial, Declaratory Judgment and Counter Claim in its entirety as being
untimely; (2) deny Defendants' motion for summary judgment; (3) award attorney's fees
ll other relief to which it is entitled.
Respectfully submitted,
/s/ Shawn R. McKee
Casey Jon Lambright
Sean W. Farrell
swf@lambrightmckee.com
ATTORNEYS FOR SHARPSTOWN CIVIC
CERTIFICATE OF SERVICE
I hereby certify that on September 28, 2020 a true and correct copy of the foregoing
instrument was served upon the following in accordance with Rule 21a of the Texas Rules of
Regular Mail
Facsimile
/s/ Shawn R. McKee
Preview
CAUSE NO. 2018-26058 SHARPSTOWN CIVIC ASSOCIATION, COUNTY TEXAS COMES NOW Plaintiff response to Defendants! motion for summary judg ffs Motion to Strike Pleadings and would show the Court the following: (hereinafter referred to as YIFENG LU AND SUFEN WANG (hereinafter referred to as "Defendants"), property owners in the Sharpstown subdivision and member of Plaintiff by virtue of their property ownership. for breach of contract for Defendants’ violation of the injunctive relief, statutory damages and attorney fees. On July 30, 2018, this Court filed a Docket Control Order, with a "Pleadings" filing deadline of July 10, 2019. With the exception of the trial docket date, the deadlines in this order were extended in August, 2019 and May, 2020. Both documents read, in relevant part: "All previous pre-trial deadlines remain in effect, unless changed by the On July 10, 2020, without requesting this Court's permission to file a pleading the pleading deadline had passed, Defendants filed the "Second Amended General Denial, Declaratory Judgment and Counterclaim" for the first time alleging affirmative defenses and af declaratory relief. On September 9, 2020, more than one year after the live docket control order's without seeking this Court's permission, Defendants filed their Motion for Summary Judgment on claims not contained in any of On September 15, 2020, in response to the claims set forth for the first time in Defendants' summary judgment motion, Plaintiff filed a supplemental pleading to correct (7) days before trial, pursuant Court's File, Image No. 81028352 — Docket Control Order Court's File, Image Nos. 86877822, 90497926 — Trial Preparation Orders Court's File, Image Nos. 92170641, 92170642 — Plaintiffs 1 MOTION TO STRIKE PLEADINGS This Court should strike Defendants' Second Amended General Denial, Declaratory Judgment for the following reasons. Defendants cannot assert these new claims and defenses—as described supra, the Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim assert new defenses and new causes of action against Plaintiff and are therefore prejudicial on their faces and operate as a surprise to Plaintiff. Therefore, Plaintiff objects to Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim Further, the Court's Docket Control Order expressly states: "07/10/19 PLEADINGS. All amendments and supplements must be filed by this date." Defendants are an entire year outside this deadline, and did not seek leave of Court. Therefore, Plaintiff objects to Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim These deadlines were set forth in the Court's Trial Preparation Order on July 30, 2018. After the trial date was moved to the Court's Orders Resetting Trial expressly stated: "All previous pre-trial deadlines remain in effect [...]". Defendants did not seek leave of Court. Therefore, Plaintiff objects to Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim Even if one disregards the Court's clear orders, Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim are still untimely. Defendants were well Tex. R. Civ. P. 63; , 458 S.W.3d 85, 95 (Tex. App.—El Paso 2014, no pet.) » 458 S.W.3d at 94-95 (continuance does not alter deadlines in scheduling order; resetting a trial date order refers to the Texas Rules of Civil Procedure) aware of their potential defenses and counterclaims prior to and during this lawsuit, but chose not to allege them until now, long after all deadlines have passed. This is trial by ambush. Therefore, Plaintiff objects to Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim scenario. Had Defendants asserted these claims and defenses earlier, the parties would have used different discovery, different strategies, and different trial preparation. As the wrote, "it asserts a new substantive matter that reshapes the nature of the trial itself [...]". Therefore, Plaintiff objects to Defendants' Second Amended General ment and Counter Claim For these reasons, for the reasons set forth above, Plaintiff ask the Court to strike Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim Plaintiff reserves the right to seek sanctions under Chapter 10 of the Texas Civil Practice & Remedies Code. Objections to Defendants' Unpleaded Claims and Defenses In their summary judgment, Defendants attempts to assert affirmative defenses and an entirely new declaratory judgment action Defendants' prior pleadings. Plaintiff objects to Defendants’ new defenses and causes of action contained in their summary judgment to extent th timely live Holmes, 458 S.W.3d at 9. pleadings (none of which contain affirmative defenses or counterclaims) and declines to allow them to be tried by consent. Objection to Defendants' Untimely Filed Motion As with Defendants' Second Amended General Denial, Declaratory Judgment and Counter described supra, Defendants' motion for summary judgment was filed without this Court's permission more than a year after the expiration of this Court's dispositive motions deadline. Defendants are an entire year outside this deadline, and did not seek leave of Court. Therefore, Plaintiff objects to Defe Even assuming, , that Defendants’ motion was not untimely or based on issues Defendants' motion fails for mootness. Defendant's entire motion rests on the argument that the declarations document 1 Petition did not apply to Defendants' lot. To Plaintiffs surprise, Defendants were correct—Sharpstown Country Club Terrace, Section 3 is, in fact actually made up of nine (9) separate declaration documents , each of However, a clerical error which misidentifies an applicable document does not mean that no applicable document exists, and within a few days of being put on notice of the clerical error, Plaintiff filed a supplemental petition to correct that clerical error. Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 495 (Tex. 1991) (unpleaded claims or defenses that are tried by express or implied consent of the parties are treate » 458 S.W.3d at 94-95 (continuance does not alter deadlines in scheduling order; resetting a trial date order refers to the Texas Rules of Civil Procedure) Plus three (3) amendments More importantly, a review of the two documents shows that they contain the same restrictive covenants, using essentially the same language, and that both documents provided that: No improvements of any character shall be created, or the erection begun, or change made in the exterior design thereof after original construction, on any lot, until plans and specifications have been submitted to and approved in writing by the Architectural It is undisputed that Defendants did not comply with the Association's restrictive Defendants’ untimely summary judgment motion, which is (1) not supported by Defendants' pleadings, either timely or untimely, and (2) relies wholly on a minor clerical error by Plaintiff, has no basis in law or fact, and has been put forth solely to drive up the costs and fees in this case, as yet another tactic to delay trial. Accordingly, Defendants’ motion should be denied. Plaintiff was required to respond to Defendants’ untimely counterclaims and motions. Consequently, Plaintiff requests payment of costs and its reasonable and necessary attorney fees incurred in responding to Defendants’ counterclaim pursuant to section 37.009 of the Texas Civil Pr Wherefore, premises considered, Plaintiff asks that this court (1) strike Defendants' Second Amended General Denial, Declaratory Judgment and Counter Claim in its entirety as being untimely; (2) deny Defendants' motion for summary judgment; (3) award attorney's fees ll other relief to which it is entitled. Respectfully submitted, /s/ Shawn R. McKee Casey Jon Lambright Sean W. Farrell swf@lambrightmckee.com ATTORNEYS FOR SHARPSTOWN CIVIC CERTIFICATE OF SERVICE I hereby certify that on September 28, 2020 a true and correct copy of the foregoing instrument was served upon the following in accordance with Rule 21a of the Texas Rules of Regular Mail Facsimile /s/ Shawn R. McKee