Cause No. 2007-20373-158 DENNIS LEE and SUN OK LEE, IN THE DISTRICT COURT Plaintiff, v. 158TH JUDICIAL DISTRICT JEFFREY SAITOW and PATTI SAITOW, Defendants, Counter-Plaintiffs. DENTON COUNTY, TEXAS AND JURY DEMAND Pursuant to the Texas Rules of Civil Procedure, counter-plaintiffs and defendants Jeffrey Saitow and Patricia Saitow file Defendants First Amended Answer, Defenses, Counterclaims, and Jury Demand, as follows: I. PRELIMINARY STATEMENT It is not even disputed that the Saitow s backyard fence sits on and runs across the Lees golf course easement. Nor is it disputed that the Lees did not make a writing permitting the fence s location. But that is only part of the story. The Lees, in fact, agreed that the Saitows could erect a fence, and make other improvements inside the easement, including the fence. The Saitows relied on that assurance. More specifically, just before moving into their newly constructed home the Saitows erected a very attractive iron fence across their backyard, primarily to keep their retrievers enclosed, and in anticipation of a pool. Then the Lees reneged, and demanded that the fence be removed. If the fence must be moved, it should be the Lees responsibility to pay for its relocation, together with related costs to restore the land, and costs. AND JURY DEMAND Page - 1
II. FACTUAL BACKGROUND GIVING RISE DEFENSES AND COUNTERCLAIM A. The Tour 18 Golf Course and Residential Community. 1. The Saitows built, own, and reside in the newly constructed home within the Tour 18 development having the address 5205 Lighthouse Drive, Flower Mound, Texas 75022. It is their homestead. 2. Tour 18 is a single family home residential development which wraps around the Lees golf course. These homes, including the Saitows, overlook and complement the golf course, and it is fair to say that these are very nice, custom homes. 3. The Saitows do not dispute that the Lees retained and own a seventy-five foot golf course easement well into the back yard of their property. A similar easement was retained all around the golf course prior to construction of the golf course. The Saitows also do not dispute that the Lees did not sign a document formally permitting the Saitows to construct a fence across their backyard within the golf course easement. 4. But that much, taken alone, does not accurately portray how it came to be that the fence encroaches into the golf course easement. As set out below, the Saitows were led to believe by the Lees that their additional construction would be permitted by agreement. B. The Rest of the Easement Story. 1. Plans for the Saitow Home. 5. The plans for the Saitows home included constructing a swimming pool in the backyard, and an attractive, upscale iron fence along a line situated within and across the golf course easement. 6. Other new homes along the same boundary lines were granted similar easement AND JURY DEMAND Page - 2
concessions by the Lees so that golfing usage was matched to new home use. Indeed, the Saitows preconstruction inquiries about the Lees willingness to accommodate granting use of the easement land confirmed this. 2. Negotiating with the Lees. 7. In connection with building their home the Saitows tried in earnest to reach a formal agreement with the Lees, but it was, and is, very hard to get them actually to meet. During all of the purchase, planning, and building phases they personally, and through their representatives (i.e., real estate agent, builder, pool contractor, and a neighborhood attorney) sought to get a real face-to-face meeting with the Lees. Literally dozens of times a meeting was tentatively set, and then the Lees would postpone, or simply not show up at the appointed time. 8. While their house was still under construction, the Saitows real estate agent approached Mr. Lee on the golf course, and asked him when he could be available to discuss a final easement agreement. Mr. Lee s answer was that he did not handle such things personally, and that the Saitows needed to meet with his daughter, Ginny Lee, as she was the person appointed to make such agreements. 9. From there the Saitows sought to meet with Ginny Lee. It took some time, and multiple communications before they received a direct response from Ginny, and a meeting was set for August 23, 2007. 3. The August 3, 2007 Meeting with Ginny Lee. 10. The Saitows -- meaning Patricia for both Saitows, and their real estate agent, Mark Nolan -- met personally with Ginny Lee, as scheduled, on August 23, 2007, at the golf course clubhouse, which is where the Lees have their office. There the Saitows proposed land use within the easement, including the fence line, grass, shrubs, trees, a pool, and so on. After some discussion, AND JURY DEMAND Page - 3
an agreement was, in fact, reached. 11. This was significant, and important to the Saitows, because construction on their home was moving along toward move-in -- planned for mid-november 2007 -- and they needed a suitable backyard fence for their three retriever dogs. At the end of the meeting Ginny assured them that: She spoke with her parents, everything was agreed and in good order, her father would sign a paper, and she would take it to the clubhouse where it could be picked up in the next day or so. The Saitows were delighted and, frankly, relieved. 4. Final Construction, Including the Backyard Fence. 12. Much as before, following the August 23rd meeting the Saitows were not able to get communications back from the Lees, directly or through Ginny. That was not too surprising, however, based on the history. They were nevertheless at ease knowing they could build a fence and move in. So, that is what they did. They obtained a proper building permit, and constructed an attractive, suitable, and expensive iron fence. 5. After the Fence, the Lee s Reneged. 13. After they moved into their new home the Saitows continued to contact Ginny Lee about getting her father s signature. They wanted to start the pool and related improvements, but were reluctant to do more than the fence until they had something in writing from the Lees. Ginny did not return emails or phone calls, however. Eventually Ginny told the Saitows realtor they needed to talk with the Lees lawyer. Soon after that they received a letter from Paul Sewell, Esq. demanding that they take down their fence, and abide the original easement line. The Saitows were stunned. Soon after that, the Lees filed this lawsuit. 6. Looking Forward. 14. The Saitows would not have constructed their fence were it not for Ginny Lee s AND JURY DEMAND Page - 4
affirmatives assurances, made as her father s representative, that permission was granted to do so. If she did not have authority to tell the Saitows there was an agreement, or that her father could still decide against it, then she needed to say so at the August 23rd meeting, or at least before the Saitows built their fence. 15. In other words, if the Saitows will not be permitted to have their fence where it is, and it must be taken down and moved, then it is because the Saitows trusted the Lees and took them at their word. 16. Of course the Saitows still seek an agreement with the Lees. In the event they persist in their hard-line position, however, which is completely different than their agreement made with the Lees, then it is only fair that the Lees share in the economic consequences that were caused by their part in causing this situation. III. GENERAL DENIAL Pursuant to Rule 92 of the Texas Rules of Civil Procedure, defendants generally deny each and every allegation made against them in Plaintiffs Original Petition, and demand strict proof thereof by evidence. IV. AFFIRMATIVE DEFENSES consent. proportionate responsibility. AND JURY DEMAND Page - 5
contributory negligence. estoppel. fraud. laches. license. waiver. contribution. V. COUNTERCLAIMS COUNT ONE: Negligent Misrepresentation. 16. Counter-Plaintiffs incorporate paragraphs 1 through 15 above. 17. As set out above, the Lees, by and through their designated agent, their daughter Ginny Lee: (1) represented in the course of the parties business, in a transaction in which the Lees and the Saitows held pecuniary interests, (2) supplied false information for the guidance of the Saitows in the conduct of their business, (3) did not exercise reasonable care or competence in obtaining or communicating correct and truthful information; and (4) the Saitows suffered pecuniary loss by justifiably relying on Ginny Lee s representation. AND JURY DEMAND Page - 6
18. Therefore, the Saitows are entitled to recover their actual damages. COUNT TWO: Fraud in a Real Estate Transaction Pursuant to Tex. Bus. & Com. Code 27.01(a)(1). 19. Counter-Plaintiffs incorporate paragraphs 1 through 18 above. 20. As set out above, the Lees, by and through their designated agent, their daughter Ginny Lee: (1) made material misrepresentations about her authority, and the Lees assurances regarding their use of the golf course easement; (2) to induce the Saitows into an agreement confirming their permission to use a portion of the golf course easement; (3) that was relied upon by the Saitows; and (4) that caused injury. 21. Therefore, the Saitows are entitled to recover their actual damages, plus reasonable and necessary attorney s fees, expert witness fees, costs for copies of depositions, and costs of court. 1 COUNT THREE: Declaratory Judgment and Claim for Proportionate Responsibility Pursuant to Tex. Civ. Prac. & Rem. Code 33.001, et seq. 22. Counter-Plaintiffs incorporate paragraphs 1 through 21 above. 23. As set out above, the Saitows, as against the Lees, are persons interested under, inter alia, deed instruments, and whose rights, status, or other legal relations are affected by a statute, specifically Tex. Civ. Prac. & Rem. Code 33.001, et seq. 24. Therefore, pursuant to Tex. Civ. Prac. & Rem. Code 37.001, et seq., the Saitows are entitled to obtain a declaration of rights, status, and other legal relations with respect to the Lees, including the parties proportionate responsibility pursuant Tex. Civ. Prac. & Rem. Code 33.001, et seq. 25. Further, pursuant to Tex. Civ. Prac. & Rem. Code 37.009, the Saitows are entitled 1 The Saitows reserve their right, should it become necessary, to bring in Ginny Lee as a cross-defendant and to exemplary damages from her pursuant to Tex. Bus. & Com. Code 27.01(c). AND JURY DEMAND Page - 7
to an award costs and reasonable and necessary attorney s fees. VI. REQUEST FOR RELIEF For the foregoing reasons, defendants counter-plaintiffs Jeffrey Saitow and Patricia Saitow request that the Court enter judgment in their favor, and against the Lees, and that the Court award them: 1. Actual damages; 2. Reasonable and necessary attorney s fees, expert witness fees, costs for copies of depositions, costs of court; plus 3. such other and further relief to which they may show themselves to be entitled at law or in equity. VII. JURY DEMAND The Saitows request a trial by jury on all matters so triable. AND JURY DEMAND Page - 8
Respectfully submitted, CHARLES H. STEEN, P.C. By: Charles H. Steen Texas Bar No. 00785040 The White House on Turtle Creek 2401 Turtle Creek Blvd. Dallas, Texas 75219 Telephone: (214) 559-4446 Telecopier: (214) 559-4423 CERTIFICATE OF SERVICE ATTORNEY FOR DEFENDANTS JEFFREY SAITOW and PATTI SAITOW I certify that I have caused a true and correct copy of the above and foregoing Defendants First Amended Answer and Counterclaims to be served upon plaintiffs Dennis Lee and Sun Ok Lee, by and through their attorney in charge, Mitchell Madden, Madden Sewell, LLP, Four Hickory Centre, 1755 Wittington Place, Suite 300, Dallas, Texas, 75234 via telecopier to (972) 484-7743, on September 25, 2008. Charles H. Steen AND JURY DEMAND Page - 9