Loading...
Shea lawsuit actionFAX 214 71~ 8~i0 COOPER & SCULLY, P.C. ~001 Cooper & Scutly, P.C. 900 Jackson Street, Suite ~00 Dailas, Texas 75202 Telephone: 214-712-9500 Fax: 214-712-9540 Fax Cover Sheet To From Date 'rKID CLT/MTR# . Jim Witt, City Manager · Darrell G-M Noga June 10, 2002 (972) 304-7063 No. of Pages, incl. Cover Sheet: 43 505 · 257-10113 Shea v. Coppell, et al. COMMENTS Please review the attached Notice of Removal and Notice of Removed Action which we received from Gary Vodicka. Important/Confidential: This message is intended for the use of the individual or entity to which it is addressed. This message contains information from the law firm or Cooper & Scully, P.C., which may be privileged, c¢}nfidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediatety at our telephone number (214) 712-9409. We will be happy to arrange for the return of this message to us, via the United States Postal Service. at no cost to you. Please call (214) 712-9409 if you do not receive all pages. 06,'10,'2002 15:15 FAX 214 712 9540 COOPER & SCULLY, P.C. ~002 PAUL S~EA, A MEMBER OF THE WYNN~AGE HOMEOWNERS ASSOC., PLAINTIFF, VS. THE CITY OF COPPELL, WAYIHON LEVELL, WYNNPAGE ESTATES, LTD., MARK WAINSCOTT, STERLING WAINSCOTT, INC.; AND PCI CONSTRUCTION, INC. DEFW-NDANTS. DALI~AS COU~Y, T~ ~ 192nd JUDICIAL DISTRICT NOTICE OF REMOVED ACTION TO THE HONORABLE DISTRICT COLrRT: COMES NOW, Paul Shea, Plaintiff-in the above-styled and numbered civil action and files this his Notice of Removed Action and would respectfully ~how unto the Court as follows: 1. On Hay 14, 2002, under Chapter 13 of the Bankruptcy Code in Bankruptcy Court for the Northern District Paul Shea files a voluntary petition 5he United States of Texas, Dallas Division, Case No. 02-34252-BJH-13- 2. This STate Court suit involves claims and causes of action removable under 28 U.S.C. 145~(a) . This is a civil proceeding arising under and related to a case under Title 11 of the United States Code, over which the federal court has jurisdiction under 28 U.s.C. §1334(b) . 3. Deciding the issues raised by =he State Court Suit will directly impac~ upon the Debtor's bankruptcy case. 4. -mlaintiff ==iled a Notice of Removal with the Bankruptcy NOTICE OF REMOVED ACTION 06/10,'2002 15:15 FAX 214 712 9540 COOPER & SCULLY, P.C. ~003 Court on June 6, 2002. Dated this 6th day of June, 2002. Respectfully submitted, By: Gary State Bar N~-~598260 222 W. Los Colinas Blvd., suite 1750 Irving, Texas 75039 (2!4-695-3105 (214) 373-0347 Facsimile ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I, Gary M. Vodicka, do hereby certify that the foregoing was. served upon Roland Love, Winstead, Sechrest & Minick, via fax or' hand delivery to 214-745-5390 or via hand delivery and to Gre~%y Whitmore via hand delivery or via fax to 214- @91-6277,~ an.~ to Darrell Noga, Cooper & Scuily via fax 214-712-9540 or hand~ivery on this the 6th day of June, 2002. ~/~ NOTICE OF REMOVED ACTION - 2 06,'10,'2002 15:15 FAX 214 712 9540 COOPER & SCULLY, P.C. ~004 Gary M. vodicke Law Office of Gary M. Vodicka 222 W. Los Colinas Blvd. suite 1750 Irving, Texas 75039 (214) 695-3105 (214) 373-0347 fax FILED U.S. B A MO'~ U'.P TC"F ATTOrnEY FOR DEBTOR IN THE UNITED STATES BANKRUPTCY COI/RT FOR THE NORTHEP~N DISTRICT OF TEXAS DALLAS DIVISION PAUL SHEA, § DEBTOR. § CASE # 02-3%252-BJH-13 PAUL S~EA Plaintiff v. CITY OF COPPELL, WAYMON LEVELL, AND WI~NNPAGE ESTATES, LTD., Defendants. NOTICE OF REMOVAL TO THE HONORABLE BARBARA J- HOUSER, U.S. BANKRUPTCY JUDGE: COMES NOW, Paul Shea, hereinafter ("Debtor"), and files this his Notice of Removal pursuant to Bankruptcy Rule 9027, and for such would respectfully show unto the Court as follows: Jurisdiction 1. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §1452, 1334, §157, and the Standing Order of Reference on file in this federal district. NOTICE OF REMOVAL 06,'10,~2002 15:16 FAX 214 712 9540 COOPER & SCULLY, P.C. ~005 2. On May 14, 2002, Paul Shea filed a voluntary bankruptcy petition under Chapter !3 cf the Bankruptcy Code in the United States Bankruptcy Court for the Norther~ District of Texas, Dallas Division, Case No. 02-34252-B0-~-13. prior thereto, he was and s~i!l is a party plaintiff in a state court Lawsuit cause number 0i-09918-K, pending in the 192nd judicial District Court of Dallas County, Texas. 3. This State Court Suit involves claims and causes of action removable under 28 U.S.C. !452(a) . This is a civil proceeding arising under and related to a case under Title il of the United States Code, over which this Court has jurisdiction under 28 U.S.C. §1334(b). 4. The Order for Relief was entered on May 14, 2002. This notice of removal is filed timely pursuant to B.R. 9027 (a) (2) . 5. This is a core proceeding under 28 U.S_C. §157(b) (2), including, without limitation, ~157 (b) (2) (A) , (B) , (K) , (M) , and {o]. 6. Deciding the issues raised by the State Court Suit will directly impact upon the Debtor's bankruptcy case. 7. Attached hereto and incorporated herein by reference as if set out in full is Exhibit "A" which is a tr~e and correct copy of all process and pleadings filed in the state court case as of June 5, 2002. The undersigned re.~aested the all files to review to have Jim Hamlin, District Clerk's office to make copies, and the a%tached process and pleadings were all the pleadings and process contained ix the 3 volumes as of June 5, 2002. NOTICE OF REMOVAL - 2 06,'10~2002 15:16 FAX 214 712 9540 COOPER & SCULL¥, P.C. ~006 Respectfully submitted, Oa~ vodicka ~~ ...... state Bar No. 2059 222 W. Los Colinas Blvd., suite 1750 Irving, Texas 75039 (972) 501-i481 (214) 373-0347 FACSIMILE ATTOR/~EY FOR DEBTOR CERTIFICATE OF SERVICE I .hereby certify that a true and correct copy of the foregoing was served upon Roland Love, Winstead, Sechrest & Minick, via fax or hand delivery to 214-745-5390 or via hand delivery and to Gregory Whitmore via hand delivez-y or via fax to 214- 891-6277, and to Darrell Noga, Cooper & Scully via fax 214-712-9540 or hand delivery on this the 6th day of June, 2002. NOTICE OF REMOVAL - 3 06,'10/2002 15:16 FAX 214 712 9540 COOPER & SCULLY, P.C. ~007 06/10,'2002 15:16 FAX 214 712 9540 COOPER & SCULLY, P.C. ~008 06/10/2002 15:17 FAX 214 712 9540 COOPER & SCULLY, P.C. ~009 06/10/2002 15:17 FAX 214 712 9540 COOPER & SCULLY, P.C. ~010 WAYMON LEV'ELL, _WS~NPAGE LX ., t CW_ I SCOXT' a~d STERLI2qG WAI~COTT, IINC. Defendants. 192ND JUDICIAL DISTRICT DEFENDANTS' ORIGINAL A1NSW-E SPECIAJ~ EXCEPTIONS AND COUNTERCLAIMS TO THE HONORABLE COURT: COME NOW, Defendants ~vViymon Levell, Wynnpage Estates, Ltd. CWyrmpage"), Mark Wainscott, and Sterling Wainscott, Inc. (collectively the "Defendants"), Defendants in the above-entitled and numbered cause, and file th/s Original Answer, Special Exceptions, and Counterclaims, and allege and respond as follows: I. GENERAL DENIAL Defendants generally deny each and every material allegation contained in Plaintiffs' Original petition and Jury Demand pursuant to Texas Rule of Civil Procedure 92 and demand strict proof thereof. II. SPECIAL EXCEPTIONS Defendants specially excep~ m all of the causes of action alleged in Plaintiffs' Original Petition and Jury Demand because plaintiffs fail to give adequate notice of the claims and issues to be med. DEFENDANTS' ORIGINAL ANSWER, SPECIA.L EXCEPTIONS, AJq-D COL' '--NTERCL-ad2VI5 Page 1 06/10/2002 15:17 FAX 214 712 9540 COOPER & SCULLY, P.C. ~011 Throughout the Petition; Plaintiffs make multiple allegations of wrongdoing by -"Defendants," but Plaintiffs never identify' what or anything Mark Wainscott and/or Sterling Wainscott, l_nc., did in Connection with such allegations. Defendants, therefore, farther specially except to ali claims against these two Defendants. A. Fraud Defendants further specially except to Plaintiffs' fraud claim because it fails to plead the. minimum allegations required in a petition for fraud. The elements of fraud are (1) a material misrepresentation, (2) which was false, (3) and which was either known to be false when made or was asserted without knowledge of the truth, (4) which was intended to be acted upon, (5) which was relied upon, (6) and which caused injury. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990). plaintiffs petition, however; summarily states, "The actions of Defendant Lex, ell and Wynnpage Estates, Ltd. independently as set forth hereinabove, have resulted in a fraud upon Plaintiffs." plaintiffsr Original Petition and Jury Demand, ¶ 23. Plaintiffs' allegation is only against Levell and Wyrmpage Estates, Ltd.rnot Mark Wainscott or Sterling Wainscott, Inc. Plaintiffs' claim also fails to set forth the elements of fraud or identify any facts supporting their claim. Defendants, therefore, specially except to Plaintiffs' cause of action against them for fraud. B. Estoppel Defendants further specially except to Plaintiffs' claims for estoppel and quasi-estoppel because, here ag~a, Plaintiffs have failed to properly identify the elements of these causes of action and the facts in support thereof. Instead, Plaintiffs' have merely stated, "The actions of Defendants independently as set forth herein results in Defendants being estopped or quasi- estopped from claiming the common areas which have been maintained by the Wyrmpage DEFENDA_NTS' ORIGI[NAL ANSwI~R, SPECIAJL EXCEPTIONS, AaN'D COtJ-NTERCLA1MS Page 2 06/10,'2002 15:18 FAX 214 712 9540 COOPER & SCULLY, P.C. ~012 Homeowners Association are not the common axes or common properties actually maintained." plaintiffs' Ori~l Petition, ~ 28. Defendants further specially except to Plaintiffs' claim for estoppel because Plaintiffs have not identified what type of estoppel applies. The 'doctrine of~estoppel is divided into three categories: estoppel by judgment;-estoppel by deed; and estoppel in psis. See Wilson v. Alexander; 50 S.W.2d 440, 441 (Tex. Civ. App.--F°rt Wox~h 1932', rev'd on other grounds, 77. S.W.2d $73 (Tex. 1935). Here, Plaintiffs have simply pleaded "estoppel" without providing Defendants with notice of what type of estoppel allegedly applies. Defendants further specially except to Plaintiffs' "Count 2 - Estoppel, Promissory Estoppel, and/or Quasi-Estoppel" because Plaintiffs have failed .to identify any elements of either, much less state how either can be a cause of action~ nor have Plaintiffs' identified any facts in support. Quantum Nleruit Defendants further specially except to Plaintiffs' claim for recovery under a theory of quantum meruit. In theix petition, Plaintiffs allege, "The actions of Defendants independently as set forth hereinabove, and have resulted in Plaintiffs [sic] right .to be compensated by quantum recruit." Plaintiffs' Original Petition and Jury Demand ~ 30. This claim fails to identify what alleged act by Defendants entitles Plaintiffs to compensation. To recover under quar~turn recruit, a Plaintiff must Show: (1) that valuable services were rendered or materials were furnished; (2) that the services were rendered for the recipient sought to be charged; (3) t. hat the services or materials were accepted by the person sought to be cha~ged; and (4) that the services and materials were accepted under such circumstances as reasonably notified the defendant/recipient that the plaintiff, in performing the services, expected DEFENDANTS' ORiGINAL ANSWER, SPECIA.L EXCEPTIONS, .~N'D COUN~ERCLA1WIS Page 3 06/10/2002 15:18 FAX 214 712 9540 COOPER & SCULLY, P.C. ~013 to be paid by the recipient. See Vortt Exploration Co. v. Chevron USA, Inc., 787 S.W.2d 942, 944 (Tex. 1990). Here, Plaintiffs have failed to identify services rendered by them or materials furnished for Defendants. Plaintiffs have not identified a single fact in support of tkis claim, thereby providing Defendants with inadequate notice of Pla~tiffs' ~basis for this' cause of action. Defer~dants, therefore, specially except to Plaintiffs' claim for recovery under quantum memit. Plaintiff's petition is overly vague and ambiguous mad fails' to provide Defendants with. fair notice of the claims alleged against them. Defendants, therefore, specially except to Plaintiff's Origiaal Petition and Jury Demand and request the Court order Plaintiffs to file an amended pleading within twenty (20) days, clearly and specifically, setting .forth its causes of action against Defendants and the facts supporting such claims. Should Plaintiffs fail to amend their pleading within twenty (20) days, Defendar~ts request th~ Court sU'ike. Pla~tiffs~ claims. III. COLINTERCLAI~'S A. Bad Faith Plainfiff~' causes of action aga~st Defendants are groundless and have been brought in bad faith. Plaintiffs have no reasonable basis to support their claims that Defendants have committed a fraud, that Defendants are estopped from any defense, that Plaintiffs are entitled to recover damages under quantum recruit, or that Plaintiffs 'are entitled to a declaratory judgment or attorney's fees. Plaintiffs' claims have no basis in law or fact and are not brought in good faith. Defendants' conduct was proper and in accordance with the law of the State of Texas, and their actions w~re previously presented and approved in the proper forum, the City of Coppell. Plaintiffs have presented no viable or legally recognized claims and have brought this suit without arty authority or standing. DEFENDANTS' ORIGINAL ANSV~lgR, SPECIAL EXCEPTIONS, AND COUNTERCLAINI$ ]?age 4 06~0/2002 15:18 712 9540 COOPER & SCULLY, P.C. l~014 Plaintiffs and their counsel were aware of these facts, or would have been aware of these facts had they conducted a reasonable i~quiry as they were obligated to do under the Texas Rules of Civil Procedure. yet, they proceeded to file this suit against the Defendants. Accordingly, Plaintiffs and their counsel have violated Rule 13 of the Texas Rules of Civil Procedure. As a result of Plaintiffs' bad faith claims, Defendants have been required to employ the undersigned counsel and have incurred the expenses of reasonable ~ind necessary attorney's fees. in defending this case. Defendants now bring this action under Texas Kule of Civil Procedure 13 to recover the reasonable expenses they have incurred in defending these, bad faith' and groun.dless causes of action. Accordingly, Defendants are entitled to sanctions as outlined under Texas Kulc of Civil Procedure 215.2(b), including, but not limited to, court costs, attom6y's fees, and stalking Plaintiffs' pleadings. Additionally,. Plaintiffs are liable to Defendants under Texas Civil Practices and Remedies Code (the "Code") sections 9 and 10. Defendants therefore request an award of their costs, reasonable attorney's fees, witness fees, fees of experts, and deposition expenses. Specifically, Plaintiffs have violated Code section 9.011 because their claims have no basis in fact, are frivolous and groundless, and were brought in bad faith. Plaintiffs have also violated Code section 10.001(2) because their claims are not Warranted by existing taw 'or by a non-fxivolous argument fei the extension, modification, or reversal of existing law or the establishment of new law. Further, Plaintiffs have violated Code section 10.001(3) becauSe their allegations have no evidentiary support and are not likely to have evidenfidry support after a reasonable oppormn/ty for further investigation and discovery. As a result of Plaintiffs' groundless and frivolous claims, Defendants have been required to employ the undersigned counsel and have incurred the expenses of reasonable and necessary DEFENI)_~NTS' ORIG1-NA_L ANSWER, SPECIAL EXCEPTIONS, AND COUNTERCLA~S Page 06/10,'2002 15:19 FAX 214 712 9540 COOPER & SCULLY, P.C. ~015 attorney's fees in defending this caze. Defendants therefore request under Texas Civil Practice and Remedies Code sections 9.012(e) and 10.004(c) that Plaintiffs' pleadings be stricken, that Plaintiffs' counsel be Sanctioned, and that Defendants be awarded their costs and reasonable attorney' s fees. B. Torfious Interference with Contractual Relations Plaintiffs have interfered with Wynnpage's contractual relations With Sterling Wainscott;. Inc. Plaintiffs' invasion of Wynnpage's contractual relations has interfered and prevented Wyrmpage from performing under its contract. Plaintiff Paul Shea is a homeownei: in adjoining prope.rt-y who simply seeks to forestall and destroy development of Wynnpage's property on Denton Tap Road and Wyrmpage Drive. Plaintiffs willfully and intentionally committed acts tt~at were calculated to cause damage to Wynnpage in its lawful business. Plaintiffs had actual knowledge of the existence of the contract and of Wyrmpage's interest in it, or knowledge of fact~ and circumstances that would lead a reasonable person to believe in their existence. Plaintiffs' acts were the proximate cause of harm to Wyrmpage, and actual damage and loss has been suffered by Wynnpage. Plaintiffs' maliciouz actions have injured Wynnpage and made performance of its contract more burdensome, difficult, or impossible, or of less or no value to the one entitled to performance. As a result of Plaintiffs' interference v,-ith Wyrmpage's existing contractual relations, Wynnpage is entitled to recover its actual damages incurred as a result of pDintiffs' tortious acts. Because plaintiffs' actions were malicious and intentional, Defendants are entitled to recover exemplary damages as well. See Tex. Civ. Prat. & Rem_ C. § 41.003(a)(2) ('Vernon 1997). EXEMPLARY DAM. AGES DEFEN-DANTS' ORIGINAL .~a'qSWEI:~ SPECIAL EXCEPIION$, .42(D COUNTERCLA1-NI S Page 6 06/10,'2002 15:19 FAX 214 712 9540 COOPER & SCULLY, P.C. ~016 B. Declaratory Judgment Defendants request the Court enter a judgment under Texas Civil Practice and Remedies Code section 37.003 declaring that the City of Coppell owns the real property complained about by Plaintiffs in theft Original Petition and Jury Demand. This p, roperty is not owned by the Wyrmpage Homeowners Association. The property is, and has been for all times relevant to this lawsuit, owned by the City of Coppell. As such, the City of Coppell has the right and authority. to direct and regulate development the property appropriately, including, but not limited to, requiring construction of a roadway for access from Wyrmpage Drive to Lot 1, Block A, Wynn~page Plaza South. Defendants therefore request the Court enter judgment declaring the ownership rights of the parties with respect to the property, Specifically, E/efendants request the Court enter judgment declaring that the property belongs to, and is subject to control by, the City of Coppell. Defendants further request the Court enter judgment declaring that the City of Coppell has the right to require and authorize access to Lot 1, Block A, Wynnpage Plaza South via a curb cut and roadway off ofWynnpage Drive and that Plaintiffs' sole remedies are before the City of Coppell. Defendants further request the Court award their costs and attorney's fees as are equitable and just in accordance with Texas Civil Practice and Remedies Code section 37.009. IV. PRAYER WI-IEREFO~, PREMISES CONSIDERED, Defendants Waymon Levell, Wyrmpage Estates, Ltd., Mark Wainscott, and Sterling Wainscott, Inc., having answered fully herein,, pray: (1) that Plaintiffs take nothing by virtue of their Petition; (2) that the Court grant DefenO*nts' Special Exceptions and strike Plaintiffs' causes of action if Plaintiffs fail m file an amer~ded pleading within twenty (20) days; DEFEND.~2XlTS' ORIGINAL ANSWER~ SPECIAL EXCEPTIONS~ A_ND COUNTERCLAIMS 06/10,'2002 15:19 FAX 214 712 9540 COOPER & SCULLY, P.C. ~017 (3) (4) (5) (6) (7) (9) that Defendants recover their costs, expenses, attorney's fees, witness fees, fees of experts, and deposition expenses incurred herein; that the Court order sanctions against Plaintiffs and their counsel for fili~g'this frivolous lawsuit; that Defendants recover their actual damages for~ Plaintiffs'~ interference with Defendant~' contractual relations; that Defendants recover exemplary damages; that the COurt ,enter judgramat declaring the property 'is rightfully owned by the' City of Coppell, and as such, the City has the fight to require and authorize access to Lot 1, Block A, Wynnpage South via a curb cut and roadway off of Wyrmpage Drive; that the Court enter judgment declaring Plaintiffs' sole remedy is before the City of Coppell; and that Defendants have suet other and further relief to which Defendants may show themselves justly entitled. DEFENDANTS' ORIGINAL ANSWER, SPECIAL EXCEPTIONS, A_~,'D COUNTERCLAIMS Page g 06/10/2002 15:19 FAX 214 712 9540 COOPER & SCULLY, P.C. ~018 Respectfully submitted, WINSTE~ SECHlllgST & MI~ICK P.C. By: G. Roland Love State Bar No. 12591700 Carie P. Pyland - State Bar No. 24013362 5400 Kenaissance Tower 1201 Elm Sueet Dallas, Texas 75270 (214) 745-5400 (214) 745-5390 (Facsimile) ATTORNEYS FOR DEFENDANTS WYNN-PAGE ESTATES, LTD., MARK WAINSCOTT, AND STERLING WAINSCOTT, INC. Suite 1010, 5910 N. Central Expressway Dallas, Texas 75206-5142 (214) 891-6277 (214) 891-6275 (Facsimile) ATTORNEY FOR DEFENDANT WAYMON LEV-ELL DEFENDg2qT$' ORIGINAL _a~NSWER, SPECIzAL EXCEPTIONS, A_ND cOUNTERCLAIMS ?age 9 06/10/2002 15:19 FAX 214 712 9540 COOPER & SCULLY, P.C. ~019 CERTItlCATE OF SERVIC_E - I hereby certify that a true and correct copy of thc foregoing Defendants' Original Answer, Special Exception and Counterclaims has been served on counsel for Plaintiff, by certified mail, return receipt requested, on the 19th day of November, 2001. .VIA CMRRR 7160 3901 9844 5551 2374 Gary M. Vodicka 8300 Douglas Avenue Suite 800 Dallas, Texas 75225 G. Roland Love DEFENDANTS' ORIG]L-~AL ANSWER, SPECIAL EXCEPTIONS, A~'D COUNTERCLAI/VlS Page 10 D AJ-.L A.,$ 1",3566253\1 06/10/2002 15:20 FAX 214 712 9540 COOPER & SCULLY, P.C. ~-.  ~ PAUL SHEA, A ~ER OF THE g IN ~ DISTRICT CO~T OF O~Y, T~S VS. THE CITY OF COPPELL, WAYMON LEV~LL, WYNN~A~E ESTATES, LTD-, MARK WAINSCOTT, STERLING WAINSCOTT, INC.; AND PCI CONSTRUCTION, INC- DEFENDANTS. 192nd JUDICIAL DISTRICT ~020 PLAINTIFF'S SECOND A~R. NDED PETITION AND JURY DEMAND. TO THE HONOR3%BLE JUDGE OF ~AID COURT: COMES NOW, PAUL SKEA, a member of the Wyu_npage Homeowners A~soc., individually, hereinafter ,,Plaintiff" in the above captioned case and files this Plaintiffs Original Petition and Jury Demand complaining of the city of Coppell, Waymon Levell, Wy~npage Estates, Ltd., Mark Wainscott, Sterling wainscott, Inc-, and PCI Const~ction, Inc., hereinafter ,,defendants", and in connection herewith would show unto this Honorable Court the following: JURY DEMAND Pursuant to Art. 1, Section 15 Texas Constitution, ?th ~unendment U.S. Const., and Rule 216 of the Texas Rules of Civil Procedure, Plaintiffs do hereby request a trial by jury of all issues so triable. Discovery Discovery will be conducted under Level 2 of T.R.Civ. P. Rule 190 . PLAINTIFF'S SECOND AMENDED PETITION AND JTFRY DEMAND - i 06,'10,'2002 15:20 FAX 214 712 9540 COOPER & SCULLY, P.C. ~021 complained therefore, action. JURISDICTION and VENUE This Court has jurisdiction of the subject matter of this cause of action and the parties hereto. 2. Plaintiff is a resident of Dalla6 County, Texas, all Defendants are residents of Dallas County, Texas, and the actions of accrued in Dallas County, 'Texas. Venue is,. proper in Dallas COunty, Texas, for these causes of II. PARTIES 3. Paul Shem is an individual and Plaintiff in the above styled and numbered cause of action. 4. Defendant Waymon Levell is an individual and may be served with process at 2331 Gus Thomasson, Suite 126, Dallas, Texas 75228, or wherever he may be found. 5. Wyrn~page Estates, Ltd- is a defendant limited partnership and may be served by serving the president of its general partner, Mr. J. Waymon Levell, President of LT Real Estate Corporation, and he may be served with process at 2331 Gus Thomasson, Suite 126, Dallas, Texas 75228 or wherever he may be fo~d, or by Court Order. 6. Defendant Mark Wainscott is an individual and may be served with process at 4815 Keller Springs, Addison, Texas 75001 or wherever he may be found, or by Court Order. 7. Defendant Sterling Wainscott~ Inc., is a Texas corporation and may be served by serving its President, Larry Sterling, or its PLAINTIFF'S SECOND AMENDED PETITION A/TD O-UI~Y DEMAND - 2 06/10/2002 15:20 FAX 214 712 9540 COOPER & SCULLY, P.C. ~022 Vice-President~ Mark Wain~cott at 4815 Keller springs Addison Texas 75001 or wherever he may be found or by Court Order. 8. The City of Coppell, is a city organized under the laws of the State of Texas,. and may be served by serving its City Manager, Jim witt, 255 Parkway Blvd., Coppell, Texas 75019. 9. PCI Construction, Inc. is a Texas corporation and may be served by serving its president Jason P~weil at 500 West university, Suite 111, McKinney, Texas 75069. III. GER-ERAL FACTUAL STATEM~N~-- · 10. Plaintiff is a homeowner and member in the Wynnpage Homeowners Association in Coppell, Texas. Plaintiff owns Lot 25 of the WSrnnpage subdivision, commonly referred to as 259 Tealwood. Plaintiff's warranty deed is subject to the reservations and covenants recorded in the Declaration, which said covenants and restrictions run with Plaintiff's land. The City of Coppell required the Wynnpage Homeowners Association- to be created by Defendants Lovell and W%rnnpage Estates, Ltd. when D~fendants sought to gain approval ~rom the City in 1991 prior to creating the wynnpage subdivision. Prior to recordation of the Final Plat of wynnpage, the city approved such Final Plat on the condition the5 the Wyrn~page Homeowners Association would ow~ and maintain the common properties which were not used as a street or public thoroughfare (the median and the strips of land from the street to the boundary line), ks required by the city, Defendants Wyr~npage Estates, Ltd. and Waymon Levell executed a Declaration of PLAINTIFF'S SECOND ~NDED PETITION AND JUI{Y DEMAND - 3 06/10/2002 15:20 FAX 214 712 9540 COOPER & SCULLY, P.C. 023 Covenants, Conditions and Restrictions for Wy~mpa~e E~tates, a true and correct copy of which is attached to Plaintiff's original Petition as Exl2ibit "B" and incorporated herein by reference as if set out in full. The Declaration is recorded in Volume 92072 at Page 1519 in the Dallas County Deed Records.~ A certified copy of said Declaration is also filed among the papers of this cause, and Plaintiff requests the Court, trial or appellate, to take judicial notice thereof. 11. Significantly, the Final Plat, drafted solely by Defendants and recorded at Volume 92001, Page 2955, for Wynnpage contains the express language as follow~: "This plat approved subject to all platting ordinances, rules, regulations and resolutions of the City of Coppell, TexaS." On May 14, 1991, Gary seib, the director of Planning and zoning, (the City head who has admitted to Plaintiff over the years that the property in dispute is common area owned by the Homeowners), submitted to the City Counsel Case PD-115 for approval of a preliminary plat of Wynnpage. The City Counsel of Coppell approved such on May 14, 1991 "subject to the followin~ conditions: "10) es=ablish a homeowners association to maintain screening "The motion carried 7-0 with Mayor Pro Tem Smothermon and Councilmem Weaver, Thomas, Morton, Cowman, Robertson and Nelson voting in favor of the motion." Again, on August 13, 1991, Gary Seib, Plar~ning Director submitted to the City Counsel for "Approval of a final plat with the following conditions: PLAIlqTIFF'$ SECOND A14~..NDED PETITION A~-D JURY DEMA/TD - 4 06,'10,'2002 15:21 FAX 214 712 9540 COOPER & SCULLY, P.C. ~024 -- "10) estaJ:~l~sh a homeowne=s as~oc£ation to maintain screening fences, and al! con, non areas." such was approved by the city of Coppe!! on August 13, 1991. Item Number 11 before the city Counsel on August 13, 1991 was consideration of the £inal plat of Wyrn~page subject to those conditions. "The m~tion,carried 6-0 with Mayor Pro Tem Smothermon and Councilmen Weaver, Morton, cowman, ~ober~son, and Nelson voting in favor of the motion." Consistent with the actions oX the City Counsel in 1991, Larry Davis, Development Construction Inspector sent to the Melvin Lewis, Regional Director of the Texas Air Control Board a letter on November 11, 1991 concernin~ W~nnpa~e Estates. The letter reads in important part as follows: "Dear ~r. LeWis, Please allow t~is letter to serve as official notlfica~ion that the streets o'f'the referenced project will be public right-of-way upon final acceptance by the city of Coppell, Dallas County, Texas.' Attached hereto and incorporated herein by reference as if set out in full is Exhibit "C", which is ~ true and correct copy of the City of Coppell's letter. Consistent with the express language of the plat, the express language of the Declaration (recorded as a condition of the plat), PD-115 and the city's conditions, the admissions of Gary Seib, Director of Planning and Zoning to Plaintiff that the homeQwners own the l~nd as common areas, and the admissions of Larry Davis, the ~omeowners have owned and maintained =he land and median used as the entrance to Wynnpage subdivision. Plaintiff has relief upon the actions of the city in paying money over 8 years based upon the actions, and admissions of =he city. PLAINTIFF'S SECOND A3~u4DED PETITIONA~D JURy DEMAND - 5 06,'10/2002 15:21 FAX 214 712 9540 COOPER & SCULLY, P.C. ~025 "' 12.. The Declaration states as follows: ,,THAT W%rnnPa9e Estates, Ltd., a Texas Limited Parunership (the ,,Declarant"), is the owner of all that certain tract of land platted and described a~ Wynnpage Estates.--" ,,Declarant hereby declares that &ll of the property described above shall be held, sold, and conveyed subject to the ~ollowing easements, restrictions, covenants ~nd ~onditions, which are for the purpose of establishing a ~eneral scheme for the development of all of the lots in the Addition and ~or the purpose of enhancing and protecting the value', atzractiveness and desirability of said lots and which shall run with the land and be binding on all parties having or acquiring any right, title or interest i~ the property or any party thereof, and which shall inure to the benefit of each owner thereof." 13. Article I of the Declaration contains the definitional section, and defines certain pertinent terms, to wit: "~b) ,,Association" shall mean and refer to the Wynnpage Estates Homeowners Association.-- which will have the power, duty and responsibility o£ msintaining and administerin~ the Common Properties..." - (e) !,c~mmon Propertie~" shall mean and re,er to (i) the six (6) foot masonrY screening fence along the eastern and northeastern boundaries (lots 1 through 5, Block ! and lots 7 through 14, Block B) of the Addition and any landscaping aszociated therewith; (ii) a six (6) foot wooden screening fence along the southern boundar~ of lots 5 through 12 of block A o~ the Additional and any pLAINTIFF'S SECOND AM~__NDED PETITION A1TD JUICY DE~4A/TD - 6 06/10,'2002 15:21 FAX 214 712 9540 COOPER & SCULLY, P.C. 026 landscapin~ associated therewith; (iii] a six (6) foot masonry screening fence along %he southern boundaz-Y of lot~ L2 through %7 of Block A o f the Addition and any landscaping associated therewith; (iv) an eight (8) foot wooden screening fence with metal posts and caps along the western boundarY of lots 17 through 27 oX Block A of the Addition and any landscaping associated therewith; (vi) the easements associated with items (i) through (v); and (vii). any areas of land, improvements or other property rights within the properties which are known, described or designated or which shall subsequently become known, described or designated as Common Properties intended for or devoted to the common use and enjo~;ment of the Owners, together with any and all improvements that are now or may thereafter be constructed thereon." ,, (f) ,,Declarant" shall mean and refer to Wyrn%page Estates, Ltd., a Texas Limited partnership- (g) ,,Declaration" shall mean and refer to the Declaration of Covenants, conditions and Restrictions for Wy~_npage Estates (h) ,,Member" shall mean and refer to each Owner as provided in Article VII hereo~. (i) ,,Owner" shall mean and refer to everY person or entity who is a record owner of a fee or undivided fee interest in any lot which is subject to the Declaration- (k) ,,~,, shall mean and refer to all of that certain tract of land platted and described as Wynnpage Estates, an Addition to the City of Coppe!l, Texas acccrdin~ to that Plat." 14. A~ticle 11 of the Declaration entitled ,'US~ OF COMMON PLAINTIFF'S SECOND AMENDED pETITION AND JTrRY DEMAND - 7 06/10/2002 15:22 FAX 214 712 9540 COOPER & SCULLY, P.C. 027 pROPERTIES" states ,,The Common properties may be occupied and used as follows: . Maintenance of Common PrO erties- All Section I1 4 landscaping and improvements placed or erected on the Common properties by Declarant shall be owned and maintained by the Association-" Article 1l~is very clear that the ~omeowners A~soc'iation ,'ow~s" all landscaping and improvements placed on or erected on the common Properties including but limited to, the treeS, bermuda grass, sidewalks, and flowerbeds. · ¢5. in 1993 Plaintiff met with Defendant Waymon Levell acting on behalf of himself and Wynnpage Estates, Ltd. At such meeting at Mr. Levell's office, Defendan~ stated to p!aintif~ that he and Wy~lnpage Estates, Ltd. did not case wheuher the W%rnnpage Homeowners Assoc. incorporated or not, they just wanted to stop paying for the maintenance of the common properties, i.e. mowzn~, watering, and repairs to the sprinkler system. Defendants agreed that the Momeowers AssOC. did not need ~o or have to incorporate- ConSistent with the intent of the city o~ Coppell, Waymon Levell and ,Wynnpage Estates, Ltd. in establishing the ~omeowners Association to own and maintain the common areas, so the City, Waymon Levell and/or wynnpage Estates, Ltd. would not have to pay for the maintenance and upkeep of the common areas, Waymon Levell caused a letter to be sent to the president of the Homeowners AssOc., Mr. Paul Shea, Plaintiff herein, which again evidenced his in=eh= that the common areas or proper=ie~ which needed continuous pLAINTIFF'S SECOND AMENDED PETITION A/TD JURY DEMAND - 8 06/10/2002 15:22 FAX 214.712 9540 COOPER & SCULLY, P.C. ~028 maintenance would be owned by the Homeowners Assoc. Attached to Plaintiff's original petition and incorporated herein by reference as if set out in f~ll is Exhibit "A" which is a true and correct copy of said letter. The letter states in pertinent part ,,Dear Mr. Shem: Enclosed is a recorded copy of the Declaration for Estates along with a final As I staled to you on the phone, please be advised effective 2/!/94, we will no longer be maintaining the common properties and have subsequently canceled the landscape maintenance contract, water service and electric service." 16. At a meeting with the Momeowners Association approximately 5 years ago, Mr. Lovell told members thereof that the wynnpage Homeowners As~gciation owned the common areas of land which abutted Wynnpage Drive. Plaintiff contacted the City of Coppell and was told by Gary seib, the head of planning and zoning, that Wynnpage Momeowners Assoc. owned the land which plaintiff, along with other homeowners, had been maintaining over the years. Gary 8eib, director of planning and zoning, also confirmed to plaintiff that no developer could use or cut across t.he Wynnpage Momeowners Association's property without the consent of the homeowners- This is why on 3 or more occasions over the last 8 years, that different developers have contacted Plaintiff and other members of the homeowners association to ascertain whether plaintiff (and the other members) would ,,give" them part of their common area land. PLAINTIFF'S SECOI~D AMENDED PETITION AND 0'URY DE__MAND - 9 06/10/2002 15:22 FAX 214 712 9540 COOPER & SCULLY, P.C. 029 17. The Wynnpa~e Ecmeowners Association has paid for and maintained the common areas of land that abut Wynnpage Drive for 7 to 10 years, incurring approximately $50,000.00 to $60,000.00 in damsges in reliance upon Defendant Love!l's, W~rnnpa~e Estates, and the City of Coppell's false representations- !8. Again,L in 1999, when Defendant Lovell was seeking to develop his property and place a ,'cut through" for an alley way~ onto the common areas (which on numer°us occasions he has stated to WSrnnpage Homeowners Assoc- that they own the common areas) he again represented to certain owners and members that they owned the common properties and areas which Zhe Homeowners Assoc- was 19. Waymon Levell, the City of Coppe!l, and Wynnpage Estates, Ltd.'s, intent in setting apart the common area~ and common properties was to attract residents and owners to buy lots in the subdivision, and to create an attractive entrance for one of the City's subdivisions. On information and belief, Mr. Lovell charged David ~eekly and the other builder, Birkdale, $30,000 to $45,000 per ~ot for each of the 78 lots in the subdivision. Mr. ~oYell had a sizable economic interes5 in ha¥in~ residents buy lots in the subdivision he was developing. And the ciuy had a sizable economic interest in having 78 new residences adding ~o the tax base of the city. In 1992, Mr. Lovell made representations to employees of David weekly and ~irkda!e that the common ~reas or co~on properties Which abut Wynnpage Drive would be ~or the 20. pLaINTIFF'S SECOND A/~ENDED pET__ITION AND JTIRY DEI~A/qD - 10 06/10,'2002 15:22 FAX 214 712 9540 COOPER & SCULLY, P.C. ~030 attractiveness of the subdivision. 21. Wynnpage Homeowners Association has spent thousands of dollars over the last 7 to 10 years maintainin~ and improving the common areas. 22. The only common areas or common properties in the subdivision are as follows: a. wood fence along the western si~e 0f subdivision b. stone fence along southern line of subdivision c. brick and ztone fence along eastern, llne of subdivision with archways d. median area with brick sign ,,Wynnpage" with flowers and landscape surrounding same; and e. area of land from street curb to property line for entrance way (which includes grass, sidewalks, .flowerbeds, and possibly a couple of trees. 23. Wyrmpage Homeowners Association has been told by Mr. Lovell, Wynnpa~e Estates, Ltd., and the City of Coppell that this is part of the common area or common properties belonging to Wynnpage Homeowner~ Association. Such statements and representations were made with the intent that the Wy~_npsge Homeowners Association and owner 'members rely thereon to ~heir detriment. The Wynnpage Homeowners Association and its owners did rely upon such representations to their detriment and damage. 24. Wa~mon Lovell at a recent meetin~ with the MomeOwners AssOciation ~bout ! to 2 months ago, suddenly reversed his course and told the owners that they did not own what he had previously pLAINTIFF'S SECOND AM~SqDED PETITION 06/10/2002 15:23 FAX 214 712 9540 COOPER & SCULLY, P.C. ~031 told them was their common properties- After the recordation of the Final Plat for Wy~npage and the recordation of the Declaration of Covenants, Restrictions (recorded in 1992), Defendants Wynnpage Estates, Mark Wainscott, a~d Sterling wainscott threatened to sue the City of Coppell if the City did not go aiong with and approve their new proposal and new plat which includes a cut through or trespass on the land owned by Plaintiff (ag welI as the' othe~ members of the Wynnpage Homeowners AssOc) Shortly thereafter, the City approved Defendants Sterling Wainscott's, and Wynnpage ~states, Ltd.'s new plat, which is inconsistent with the actions of the Ci=y taken over 10 years ago in creating the- Wynnpage subdivision. The Defendants have breached the Declaration of covenants, Restrictions, recorded as part of a requirement of the City, in 1992. Plaintiff has relied thereon and incurred damages as a result of Mr. Lovell's fraudulent statements, and as a result of the City engaging in inconsistent actions. 25. It is quite obvious why the city has changed its long standing position, and has given no credence to what it did over 10 years ago- Over the last 8 years at least 3 different developers have sought to buy the adjoining property (owned by Defendant W%rnnpage Estates, Ltd.) and place a road over the land owned by Plaintiff. Until recently, the land has sat as unimproved land, generating a small amount of tax revenue for the City. By inconsistently changing its position, the City stands t© gain I0 to 20 times the amount of money in tax revenue over the tax base of the raw land. It is known throughout the general public that PLAT_NTIFF'S SECOND AMENDED PETITION AND JW3~Y DEMAND - 12 06,'10,'2002 15:23 FAX 214 712 9540 COOPER & SCULLY, P.C. ~032 improved land, i.e. office buildings, generates substantial more tax revenue income for the City than does raw land. with this intent, and contrarY to tke City's admissions and actions taken over 10 years ago, the City approved a new Final Plat which has the effect of not only trespassing upon but conve~ion of land owned by the plaintiff- 26. It is clear from the Final Plat of ~ynnpage recorded at Volume 92072, Page 1519, that Defendants Wynnpage Estates, Ltd., Waymon Level!, Mark Wainiscott, and sterling wainscott, inc. own no property interest in the land in qUestion. The paved street pou~ed prior to the recordation of the Final Plat for wynnpage. plaintiff takes no issue with the city that the paved street, used by the general public over the last 10 years, i~ an easement for the general use of the ~ublic. The easement o~ the city in the street is known as ,,Wynnpage Drive"- Any reasonable person, including a la~d surveyor, has no problem in ascertaining the location and of the street easement from either looking at pictures of the property or from a physical inspection thereof. The common properties (the median and the strip of land from tke public street to the boundary), which the City required a ~omeow~ers Association to be created in 199% to own and maintain, have never been used by the general public as an easemenZ or otherwise. The ~omeowners have used such land over the !as~ 10 year~ for many purposes, including an area for children to play. 27. Defendant Sterlin~ wainscott, Inc. recently hired Defendant PCI Const~ction, Inc. to destroy part of the land owned PLAINTIFF' S SECOND AMENDED PETITION AND J0-RY DEMAND ~ 13 06/10/2002 15:23 FAX 214 712 9540 COOPER & SCULLY, P.C. ~033 by Plaintiff. Defendant PCI Construction, Inc. ham trespassed on the land and destroy same to the damage and detriment of Plaintiff. Defendant PCI Construction, Inc. did so knowingly and with gross disregard of Plaintiff[s rights. Therefore, Plaintiff seeks punitive damages against Defendant PCI Construction, Inc- CAUSES OF ACTION COUNT 1- FRAZrD 28. Plaintiffs incorporate all of the allegations set forth in ~aragraphs 1 through 27 hereinabove as if set forth verbatim herein. 29. The actions of Defendant Lovell and Wyrn~page Estates, Ltd. independently as set forth hereinabove, have resulted in a fraud upon plaintiffs. 30. Plaintiffs would request that the Court enter a judgment in the amounU of the damages for said fraud as against the named Defendants. 31. Plaintiffs are e~titled to pre-judgment interest on the amount~of the judgment from the date of said fraud at the highest lawful rate and in the manner prescribed and calculated'bY statute or at common !aw, to the date of the judgment at the highest rate of lawful prejudgment interest, either equitable or statutory, and would request that the Court enter a judgment for the prejudgment interest as against the named Defendants. 32. Plaintiffs are entitled to interest on the judgment from PLAINTIFF'S SECOND AMENDED PETITION AND JURY DEMAND 06,'10,12002 15:23 FAX 214 712 9540 COOPER & SCULLY, P.C. ~034 the date oX the judgment until paid, at the highest lawful post judgment rate of interest and -would request that the Court enter a judgment awarding said post-judgment interest, as against the named Defendants- The actions of De'fendants Waymon Levell, and Wyrnupage Estases, Ltd., were intentional or with gross recklessness to the rights of Plaintiffs sufficient for the jury to award punitive damages, plaintiffs request the Court further 'enter a judgment awarding Plaintiffs said punitive damages found by the jurA; as against Defendants Wa%anon Levell, and Wynnpage Estates, Ltd. COU1TT 2 - ~STOPPEL pROmISSORY ESTOP~QUASI-E$~OPPEL 33. Plaintiffs incorporate all of =he allegations set forth in Paragraphs 1 through 27 hereinab0ve as if set forth verbatim herein. 34. The actions of Defendants independently as set forth hereinabove results in Defendants being estopped or quasi-estopped from claiming the common areas which have been maintained by the Wy~npage ~omeowners Association are not 5he common area or common properties mctually maintained. CouNT 3- 0UANTUMMERUIT 35- 'Plaintiffs incorporate all of the allegations set forth in Paragraphs 1 through 21 hereinabove as if set forth verbatim herein. 36. The actions of Defendants independently as hereinabove, and have resulted in Plaintiff's right comp;ens~ted by quantum meruit. 37~ set forth to being Plaintiffs would request that the Court enter a judgment , , ~ ~ETITION AND J1/~Y DERUuND -.15 PLAiNTIFF,S SECOND AMENDS_ . 06/10/2002 15:24 FAX 214 712 9540 COOPER & SCULLY, P.C. O35 in the amount of the damages for said quantum meruit as against Defendants. 38. Plaintiffs are entitled to.pre-judgment interest on the amount of tke judgment from the date of the beginning of the maintenance and improvements to the common areas at the highest lawful rate and in the maD_net prescribed and calculated by statute or at common law, to the date of ~he judgment'at the highest rate of lawful prejudgment interest, either equitable or statutory, and would request that the Court enter a judgment for the prejudgment interest as against Defendants. 39 Plaintiffs are entitled to interest on the judgment from the date of the judgment until paid, at the highest lawful post- judgment rate of interest and would request that the Court enter a judg~ant awarding said post-judgment interest, as against Defendants- Cou~t 4 - Declarator~ Jud-c~kent 40. Plaintiff incorporates all allegations met forth in paragraph 1-21 hereinabove as set forth as verbatim.herein- 41. Pursuant to the uniform Declaratory Judgment Act, Texas civil practice and Remedies Code §37.001 et. seq., plaintiff hereby petitions the Court to construe the Declaration and hereby declare and decree as follows: (a) that the median area, brick sign .WYATNPAGE", surrounding ~rass, tree, and flowers are part of the ,'common areas" or "common properties" of the Homeo'~ners Association, and that the Homeowners Association owns this common property pursuant to the Declaration; pL___AINTiFF'S SECOND AMENDED PETITION AND JURY DEMAND - 16 06/10/2002 15:24 FAX 214 712 9540 COOPER & SCULLY, P.C. ~036 (b) that the land, ground, grass, and area on each side of the public street ,,Wynnpage" to the limits of the metes and bounds area designated on the Wy~npage Plat are the ,,common areas" or ,,common properties" of the Momeowners Association, and thRt the Homeowners Association owns this common area pursuant to the Declaration and the intent of declarant, Waymon Levell, president of Wy~page Estates, Ltd.; and (c) that defendant Waymon Leve!l has defrauded plaintiff and that plaintiff has been damaged as a result of defendantfs fraud 42. It has been necessary for plaintiff to retain the undersigned attorneys to represent it in the prosecution of these actions,.and pursuant to Texas Civil Practices and Remedies codes, §37.009, plaintiff requests that the Court award costs, expenses, and such reasonable and necessary attorney's fees to it that is equitable and just. Couamt 5 - Esto el, Quasi Estoppel, EstoDpe~tract or Dee~ 43. Plaintif~ incorporates all allegations set forth in paragraph 1-21 hereinabove as set forth as verbatim herein. 44, The actions of Defendants independently as set forth hereinabove, and have resulted in Plaintiff's right to ownership in his land by virtue of the Defendants being estopped, either by quasi-estoppel, estoppel by contract, estoppel by deed, promissory estoppel or equitable estoppel, to now claim that they or anyone else owns an interest in the land. 45. Plaintiffs would request tkat the Court enter a judgment in the'amount of the damages and to quiet title in Plaintiff as pLaINTIFF'S S~COND A~ENDED PETITIONA}~D jw/KY DEMAND. ~ 17 06~'10,'2002 15:24 FAX 214 712 9540 COOPER & SCULLY, P.C. 037 against Defendants- 46. Plaintiffs are entitled to pre-judgment interest on the amount of the judgment from the date of the beginning of the maintenance and improvements to the common areas at the highest lawful rate and in the manner prescribed and calculated by statute or at common law, to the date of the judgment at the.highest rate of lawful prejudgment interest, either equitable or statutory, and would request that the Court enter a judgment for the prejudgment interest, as against Defendants. 47. Plaintiffs are entitled to interes% on the judgment from the 'date o~ the judgment until paid, at the highest lawful post- judgment rate of interest and would request that the Court enter a judgment awarding said post-judgment interest, as against Defendants Count 6 - Action to ulet Title 48. Plaintiff incorporates all allegations set forth in paragraph 1-21 hereinabove as set forth as verbatim herein. 49. The actions of Defendants independently as set forth hereinabove, and have resulted in a dispute between the Final Plat of Wyrunpage and the actions~ of the City pertaining thereto, and the City's recent inconsistent actions (in seeking to maximize its tax revenue) as to whether the strip of the land on the sought side of the street.is a common property owned by the Homeowners of Wynnpage or is part of the City's easement in the street. Defendants have sought to record (and probably already have) another plat which inconsistent with the Wyrnupage Plat recorded in 1992. Such seeks PLAINTIFF'S SECOND AM~ITDED PETITION ~ JURY DEMAND - 18 06/10,'2002 15:24 FAX 214 712 9540 COOPER & SCULLY, P,C. 038 to deprive Plaintiff of his interest in his land. Plaintiff requests'the Court to remove the cloud upon his land and remove the recently recorded plat which acts as a cloud upon plaintiff's land. 50. Plaintiff would request that the Court enter a judgment to quiet title in Plaintiff as against Def~endanus- Plaintiff requests the Court enter a judgment requiring Defendants Lo restore the land to is condition prior to it being destroyed and trespassed' upon. 51. Plaintiff is entitled to pre-judgment interest on the amount of .the judgment from the date of the beginning of the mai~tenahce and improvements to the common areas at the highest lawful rate and in the manner prescribed and calculated by statute or at common law, to the date of the judgment at the highest rate oX lawful prejudgment ink,rest, either equitable or statutor%;, and would request that the Court enter a judgment for the prejudgment interest as against Defendants. 52. plaintiff is entitled to interest on the judgment from the date of the judgmenz until paid, at the highest lawful post- judgment rate of interest and would request that the Court enter a judgment awarding said post-judgment interest, as against Defendants. ~o~,n__t_7 - ~reach of Restrictive Covenm/%t 53. Plaintiff incorporates all allegations set forth in paragraph 1-21 hereinabove as set forth as verbatim herein. :54. The actions of Defendants hereinabove, and have resulted in independently as set forth Defendants breaching the pL~TNTIFF'S SECOND AMENDED PETITIO~ ANI) J-dRY DF/~dqD - 19 06/10/2002 15:25 FAX 214 712 9540 COOPER & SCULLY, P.C. . ~03,~ ..... I restrictive covenants of the Declaration- The City of Coppell was an intended beneficiary of the Declaration and a third party beneficiary thereof- The City of Coppetl was the entity that required.the Declaration creating the ~omeowners ASsociation as a condition of. the approval of the Final Plat. The City had prior knowledge that such Declaration would be recorded, and %he city had constructive notice of same as a publicly recorded instrument. 55. Plaintiff would request that the Court enter a judgment for breach of the restrictive covenants contained in the Declaration as against Defendants. Plaintiff requests the court ente~ a judgment requiring Defendants to restore the land to is condition prior to it being destroyed and trespassed upon. Moreover, Plaintiff requests the court enter a judgment for all of Plaintiff's attorneys fees in breaching said restrictive covenants in accordance with Section 5.06 of the Texas Property Code. 56. Plaintiff is entitled 5o pre-judgment interest on the amount of the judgment from the date of the beginning of the maintenance and improvements to the common areas at the highest lawful rate and in the manner prescribed and calculated by statute or at common law, to the date of the judgment at the highest rate of lawful prejudqment interest, either equitable or statutory, and would request that the Court enter a judgment for the prejudgment interest as against Defendants. 57. plaintiff is entitled to interest on the judgment ~rom the da~e of the judgment until paid, at the highest lawful post- judgment-rate of interest and would request that the Court enter a PLAiNTIFF%S SECOND AMENDED pET!T_i0N ~ 0URY DEMAND - 20 06/10/2002 15:25 FAX 214 712 9540 COOPER & SCUL~Y, P.C. ~040 judgment awardin§ Del endant s. said pos t - judgment interest, as Count $ - Trespas__s 58. Plaintiff inco~orateg all allegations set against forth in paragraph ~-21 hereinabove as set forth as verbatim herein. 59. The actions of Defendants PCI Construction, Inc., Mark Wainscott, Sterling Wainscott, Inc., and Wynnpage Estate Ltd' independently as set forth hereinabove, ~nd have resulted in Defendants trespassing upon Plaintiff's land. 60. Plaintiff would request that the Court enter a judgment for 'trespass as against Defendants. Plaintiff requests the Court enter a judgment requiring Defendants t~ restore the land to is condition prior to it being destroyed and trespassed upon. Moreover, Plaintiff requests the Court enter a judgment for all of Plaintiff's damages incurred as a r~sult of said trespass. 61. Plaintiff is entitled to pre-judgment interest on the amount of the judgment from the date of the beginning of the maintenance and improvements to the common areas at the .highest lawful rate and in the manner prescribed and calculated by statute or at common law, to the date of the judgment at the highest rate of lawful prejudgment interest, either equitable or statutory, and would request that the Court enter a judgment for the prejudgment interest as'against Defendants. 62. Plaintiff is entitled to interest on the judgment from the date of the judgment until paid, at the highest lawful post- judgment rate of interest and would request that the Court enter a PLAINTIFF'S SECOND A2W~qDED PETITION AND JTYRY DEMAND - 21 06/10/2002 15:25 FAX 214 712 9540 COOPER & SCULLY, P.C. ~041 judgment awardin9 said post-judgment interest, as against Defendants.' 63.. The actions of the foregoing Defendants was intentional and aggravated by the kind of malice for which the law imposes punitive damages. Plaintiff requests the Court enter a judgment for punitive damages against said Defendants. V. ATTO~Y'S FEES 64. It has been necessary for Plaintiffs to employ the undersigned attorney to represent them in the prosecution of these causes of action and Plaintiffs rsquest that the Court award to them attorneys fees, costs, and expenses. Plaintiffs additionally request such reasonable and necessary attorney'~ fees in institutin9 and prosecut~n~ these causes of action. Plaintiffs have presented, orally their claims to Defendants, through their a~ent and/or representative(s) . All conditions precedent to Plaintiff's right to recover payment of attorney's fees have been satisfied in full. In the event of an appeal to the court of appeals, Plaintiffs would be further entitled to $50,000.00, as a reasonable attorney's fee; in the event of an appeal to the Texas Supreme Court, Plaintiff would be entitled to an additional $50,000.-00. ~Pd~FORE, PP~EMIS~S CONSIDERED, Plaintiffs pray that Defendants be cited to appear and answer herein, and that after final hearin~ or trial, the Court enter a judgment as pled herein for (~) judgment for at least $50.000.00; (2} pr~-jud~men~ interest PL~TNTIFF'S SECOND AMENDED PETITION AND JURY DEMAND - 22 06/10/2002 15:26 FAX 214 712 9540 COOPER & SCULLY, P.C. ~042 at the maximum rate allowed by law, whether in equity or statutory, to date of filing, plus pre-judgment interest from the date of filing to date of judgment; (3) .postjudgment interest; (4) reasonable necessary attorney's fees and expenses for filing this Plaintiff's Original Petition, counse, ling with plaintiff, pre- filing settlement discussions and review of documents, along with the discovery, and all reasonable attorneys fees thereafter; (5)' award costs oX court; (6) punitive damages; plus (7) such other and further relief, both at law and in equity, to which Plaintiff may show himself to be justly entitled. Respectfully Submitted, Gary M. State Bar No. 20598260 222 W. Los Colinas Blvd. suite 1750 Irving, Texas 75039 ~214) 695-3105 (214) 373-0347 fax ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVIC~ Ii Gary M. Vodicka, do hereby certify that the foregoing was serVed upon Roland Love, Winmtead, Sechrest & Minick, via fax or hand delivery to 214-745-5390 on March 14, 2002, and via fax or hand delivery to Gregory whitmore, 5910 N. Central Expressway, suite i010, Dallas, Texas 75206 on the same date. -' Gary M. Vodicka PLAINTIFF'S SECOND AMENDED PETITION AND JURY DEMAND - 23 06/10,'2002 15:26 FAX 214 712 9540 COOPER & SCULLY, P,C. City With A Beautifu~ Future November 1~, 1991 [~] 043 Coppell. Texas 75019 Mr. Melvin V. Lewis Regional Directoz Texas Air Control Board 6421 Camp Bowie Boulevard Suite ~312 Fort Worth, Texas 76116 RE4 WYNNPAGE ESTATES COPPELL, DALLAS COUNTY. TEXAS L.H. Lacy Co. T.A.C.B. Account No: 90-7060-3 Permit No: 780-070 Dear Mr. Lewis: Please allow this lettez to serve as official notification that the streets of the referenced project wilt be public right-of-way upon final acceptance by the City of Coppell, Dallas County, Texas. We haye been informed by the L.H. Lacy C'ompany that the Plant site is contiguous to %his proposed right-of-way and; therefore, they have requested exer~ption from public notice. If I may be of further assistance, please feel free to call me. Development Construction Inspector LD/lsg WYNNPG. LD