Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
DISTRICT COURT OF BLANCO COUNTY, STATE OF TEXAS
River Camp Estates Homeowners' Association, Plaintiff, v. Chalke & Rachael Deaton, Defendants.
Under Rule 000.00 of the T.R.C.P., Defendants Chalke & Rachael Deaton have filed a Motion to Dismiss Plaintiff River Camp Estates Homowners' Association's Complaint. Plaintiff Homeowners' Association opposes this Motion and request that Defendants' Motion be denied for the following reasons: 1) Plaintiff has presented sufficient evidence so as to survive Defendants' Motion, 2) Plaintiff has the legal authority to enforce its restrictive covenants, and 3) Defendants' actions constitute a common law nuisance and violate Article 4.07 of the Declaration of Restrictive Covenants, and 4) public policy precludes the court from dismissing Plaintiff's claim. Defendant's Motion to Dismiss must be denied.
FACTS
Plaintiff Homeowners' Association represents about fifty homeowners in River Camp Estates. (Stip. Facts ¶1.) River Camp is an upscale, affluent community, where residents are bound by a number of restrictive covenants. (Stip. Facts ¶¶3-4.) One such covenant is Article 4.07, which reads as follows: "Noxious or Offensive Activities Prohibited: No noxious or offensive activity shall be conducted on any lot that is or may become a nuisance to the neighborhood." (Stip. Facts Ex. A.)
Defendants Deatons, who own a single home in River Camp, own a pair of North American river otters. (Stip. Facts ¶¶4-8.) Six months ago, these otters terrorized the surrounding community, going on what some neighbors have described as a "rampage." (Stip. Facts ¶¶11-12.) Parties stipulate that the otters did the following: snarled and growled at children, destroyed property of neighbors, and attacked and traumatized neighbors by means of their pungent odor (which otters release, much like a skunk). Id. Because of the otters' conduct, and because such conduct is directly attributable to Defendants Deatons, this case has been brought by Plaintiffs on behalf of the homeowners in the River Camp Estates community.
ISSUE STATEMENT
Given that Plaintiff has presented sufficient evidence so as to survive Defendants' Motion, that the Plaintiff has the legal authority to enforce its restrictive covenants, that the Defendants' actions and inaction constitute a common law nuisance and violate Article 4.07 of the Declaration of Restrictive Covenants, and being that public policy would preclude the court from dismissing Plaintiff's claim, should the court deny Plaintiff's Motion to Dismiss?
ARGUMENT
Defendants' Motion to Dismiss should be denied. Plaintiff River City Homeowner's Association forwards four arguments in opposition to this Motion: 1) that Plaintiff has presented sufficient evidence so as to survive Defendants' Motion, 2) that Plaintiff has the legal authority to enforce its restrictive covenants, 3) that the Deatons' otters constitute a common law nuisance and that possession of these otters violates Article 4.07 of the Declaration of Restrictive Covenants, and that 4) public policy precludes the court from dismissing Plaintiff's claim.
Plaintiff has Presented Sufficient Evidence to Survive Defendants' Motion to Dismiss.
Parties have stipulated a number of facts as to the behavior of the Deatons' otters. Such stipulations indicate these otters were both destructive and offensive. (Stip. Facts ¶¶11-12.) In particular, the otters "devour[ed] ornamental carp" and "[sprayed neighbors with] a strong pungent odor." (Stip. Facts ¶¶11-12.) According to Nugent, only a scintilla of evidence is necessary for a court to deny a Motion to Dismiss. Based solely on the stipulations of fact, there is sufficient evidence [more than the required scintilla], so that the court must deny Defendants' motion. ..:namespace prefix = st1 ns = "schemas-westgroup-com/westlawcitation" />Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562 (Tex Ct. App. 1998). Indeed, a question of material fact has arisen for the jury (i.e. whether the otters are a nuisance?). Such a matter is not for the court to take away from the jury and decide. Because the Plaintiff has presented sufficient evidence to survive the Defendants' Motion to Dismiss, Defendants' Motion must be denied.
Plaintiff has the Legal Authority to Enforce its Restrictive Covenants.
Simms v. Lakewood affirms that a homeowners' association has the legal right to enforce restrictive covenants. Simms v. Lakewood Village Prop. Owners Ass'n Inc., 895 S.W.2d 779, 779 (Tex. Ct. App. 1995). Moreover, Simms notes that a purchaser who has notice of restrictive covenants is bound by such covenants. Id. In the instant case, Plaintiff River City Homeowners' Association has the legal right to enforce the restrictive covenant regarding activities prohibited. Because River City is a new subdivision, having been developed over the past three years, these covenants are fresh and unexpired. (Stip. Facts ¶1.) Along these lines, Plaintiff Homeowners' reported the Defendants' violation of Article 4.07 in a timely fashion, filing suit within six months of the otters' "rampage." (Stip. Facts ¶¶11.) Still, there is no indication that the Deatons were not aware of the community's restrictive covenants, and thus the Defendants are bound by these covenants. For these reasons, Plaintiff has the legal authority to enforce Article 4.07, and to demand the Defendants be enjoined from keeping their otters as pets.
Defendants' Possession of Otters Constitutes a Common Law Nuisance and Violates Article 4.07 of the Declaration of Restrictive Covenants.
Texas law has defined nuisance as follows: "Nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562 (Tex Ct. App. 1998); see also Wickham v. San Jacinto River Auth., 979 S.W.2d 876 (Tex. Ct. App. 1998), Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999). The courts have found that, "A nuisance may arise by causing 1) physical harm to property… 2) physical harm to a person on his property from an assault on his senses or by other personal injury, and 3) emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind." Id. at 562; see also Marantha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92 (Tex Ct. App. 1994). According to the stipulated facts, the otters constitute a nuisance in each and every one of the three ways. With regards to physical harm to property, the otters devoured Mr. and Mrs. Whitestone's ornamental carp. (Stip. Facts ¶11.) Next, with regards to physical harm to a person, the otters "sprayed" Mrs. Whitestone and so offended her that she was traumatized. Id. Finally, many neighbors join together in that they collectively suffer emotional harm through fear, apprehension, and loss of peace of mind.
Neighbors fear that the otters are going to partake in another "rampage," and such fear substantially interferes with their use and enjoyment of their property. Id. River Camp Estates is, after all, an affluent community, and the residents of such a community should not be expected to tolerate such discomfort and annoyance. (Stip. Facts ¶¶3-4.) The residents discomfort is, of course, reasonable, as the otters have terrorized the community once before. Still, the Deatons agree that, by their nature, otters are inherently destructive creatures. (Stip. Facts ¶10.) What is worse is that the Deatons have done nothing to prevent such an incident from happening again, and instead, Defendants have tried only to "buy off" their neighbors by promising to contribute to certain charities. (Stip. Facts ¶13.) Injury to Plaintiff by means of the otters is certain, substantial, and beyond speculation and conjecture. The Defendants must be enjoined from keeping their otters as pets, and their Motion to Dismiss must be denied.
Still, the Deatons are bound to Article 4.07 of the Declaration of Restrictive Covenants. Article 4.07 is broader than is the common law definition of nuisance, reading as follows: "Noxious or Offensive Activities Prohibited: No noxious or offensive activity shall be conducted on any lot that is or may become a nuisance to the neighborhood." (Stip. Facts Ex. A.) Therefore, even if a resident's behavior is not fully a nuisance, if such conduct has the possibility that it "may become a nuisance," the residents are bound and prohibited from such an activity. In the instant case, especially because the Deatons have done nothing to correct the behavior on the part of the otters, the restrictive covenants prohibit Defendants keeping otters.
Public Policy Precludes the Court from Dismissing Plaintiff's Claim.
As a matter of public policy, Plaintiffs' are likely to argue that Article 4.07 unreasonably restricts their usage of their property. After all, the law has traditionally required that, unless notice has been given, land usage should be unfettered. Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999). On the other hand, in that the Defendants were aware of River Camps Estates' Declaration of Restrictive Covenants, the Defendants had received notice that keeping otters was not permitted. As the covenants would suggest, a residential neighborhood like River Camp Estates has been developed and maintained so that residents may live comfortably, not so that residents may showcase otters and allow them to terrorize others. In Simms, the court proposes a balancing test: "Equities favoring a lot owner must be weighed against equities favoring other lot owners who have acquired their property on the strength of restrictions." Simms v. Lakewood Village Prop. Owners Ass'n Inc., 895 S.W.2d 779, 779 (Tex. Ct. App. 1995). Here, the court notes that other residents have relied on restrictive covenants, and that some measure of equity is due these others residents. In the instant case, when balancing the interests of these other residents against the Defendants Deatons, it becomes clear that the near fifty other residents and their interest in comfortable living (i.e. without fear of property damage or attack to them or their children), far outweighs the interest of the Deatons in keeping their "pets." For this public policy reason, because the interests of the residential community far outweigh the interest of the individual Defendants, Defendants Deaton's Motion to Dismiss must be denied and the Defendants must be enjoined from keeping their otters.
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss must be denied. Because the Plaintiff has presented sufficient evidence to survive Defendants' Motion, because the Plaintiff has the legal authority to enforce its restrictive covenants, because the Defendants' otters do constitute a common law nuisance and violate Article 4.07 of the Declaration of Restrictive Covenants, and because public policy precludes the court from dismissing Plaintiff's claim, Defendants' Motion must be denied.
Respectfully submitted,
______________________________
.._____, Trial Counsel for Defendant
Texas Bar No. 000000
Jolly-Ryan & Chase
0000 Nunn Drive
Cold Spring, Kentucky 41076
(859) 000-0000
FAX: (859) 000-0000
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss was served on Bob Law, Bob Law & Associates, 0000 St. Rt. 27, Cold Spring, Kentucky 41076, counsel of record for Defendants, on January 29, 2007, by ordinary U.S. Mail.
______________________________
.._____, Trial Counsel for Defendant
DISTRICT COURT OF BLANCO COUNTY, STATE OF TEXAS
River Camp Estates Homeowners' Association, Plaintiff, v. Chalke & Rachael Deaton, Defendants.
Under Rule 000.00 of the T.R.C.P., Defendants Chalke & Rachael Deaton have filed a Motion to Dismiss Plaintiff River Camp Estates Homowners' Association's Complaint. Plaintiff Homeowners' Association opposes this Motion and request that Defendants' Motion be denied for the following reasons: 1) Plaintiff has presented sufficient evidence so as to survive Defendants' Motion, 2) Plaintiff has the legal authority to enforce its restrictive covenants, and 3) Defendants' actions constitute a common law nuisance and violate Article 4.07 of the Declaration of Restrictive Covenants, and 4) public policy precludes the court from dismissing Plaintiff's claim. Defendant's Motion to Dismiss must be denied.
FACTS
Plaintiff Homeowners' Association represents about fifty homeowners in River Camp Estates. (Stip. Facts ¶1.) River Camp is an upscale, affluent community, where residents are bound by a number of restrictive covenants. (Stip. Facts ¶¶3-4.) One such covenant is Article 4.07, which reads as follows: "Noxious or Offensive Activities Prohibited: No noxious or offensive activity shall be conducted on any lot that is or may become a nuisance to the neighborhood." (Stip. Facts Ex. A.)
Defendants Deatons, who own a single home in River Camp, own a pair of North American river otters. (Stip. Facts ¶¶4-8.) Six months ago, these otters terrorized the surrounding community, going on what some neighbors have described as a "rampage." (Stip. Facts ¶¶11-12.) Parties stipulate that the otters did the following: snarled and growled at children, destroyed property of neighbors, and attacked and traumatized neighbors by means of their pungent odor (which otters release, much like a skunk). Id. Because of the otters' conduct, and because such conduct is directly attributable to Defendants Deatons, this case has been brought by Plaintiffs on behalf of the homeowners in the River Camp Estates community.
ISSUE STATEMENT
Given that Plaintiff has presented sufficient evidence so as to survive Defendants' Motion, that the Plaintiff has the legal authority to enforce its restrictive covenants, that the Defendants' actions and inaction constitute a common law nuisance and violate Article 4.07 of the Declaration of Restrictive Covenants, and being that public policy would preclude the court from dismissing Plaintiff's claim, should the court deny Plaintiff's Motion to Dismiss?
ARGUMENT
Defendants' Motion to Dismiss should be denied. Plaintiff River City Homeowner's Association forwards four arguments in opposition to this Motion: 1) that Plaintiff has presented sufficient evidence so as to survive Defendants' Motion, 2) that Plaintiff has the legal authority to enforce its restrictive covenants, 3) that the Deatons' otters constitute a common law nuisance and that possession of these otters violates Article 4.07 of the Declaration of Restrictive Covenants, and that 4) public policy precludes the court from dismissing Plaintiff's claim.
Plaintiff has Presented Sufficient Evidence to Survive Defendants' Motion to Dismiss.
Parties have stipulated a number of facts as to the behavior of the Deatons' otters. Such stipulations indicate these otters were both destructive and offensive. (Stip. Facts ¶¶11-12.) In particular, the otters "devour[ed] ornamental carp" and "[sprayed neighbors with] a strong pungent odor." (Stip. Facts ¶¶11-12.) According to Nugent, only a scintilla of evidence is necessary for a court to deny a Motion to Dismiss. Based solely on the stipulations of fact, there is sufficient evidence [more than the required scintilla], so that the court must deny Defendants' motion. ..:namespace prefix = st1 ns = "schemas-westgroup-com/westlawcitation" />Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562 (Tex Ct. App. 1998). Indeed, a question of material fact has arisen for the jury (i.e. whether the otters are a nuisance?). Such a matter is not for the court to take away from the jury and decide. Because the Plaintiff has presented sufficient evidence to survive the Defendants' Motion to Dismiss, Defendants' Motion must be denied.
Plaintiff has the Legal Authority to Enforce its Restrictive Covenants.
Simms v. Lakewood affirms that a homeowners' association has the legal right to enforce restrictive covenants. Simms v. Lakewood Village Prop. Owners Ass'n Inc., 895 S.W.2d 779, 779 (Tex. Ct. App. 1995). Moreover, Simms notes that a purchaser who has notice of restrictive covenants is bound by such covenants. Id. In the instant case, Plaintiff River City Homeowners' Association has the legal right to enforce the restrictive covenant regarding activities prohibited. Because River City is a new subdivision, having been developed over the past three years, these covenants are fresh and unexpired. (Stip. Facts ¶1.) Along these lines, Plaintiff Homeowners' reported the Defendants' violation of Article 4.07 in a timely fashion, filing suit within six months of the otters' "rampage." (Stip. Facts ¶¶11.) Still, there is no indication that the Deatons were not aware of the community's restrictive covenants, and thus the Defendants are bound by these covenants. For these reasons, Plaintiff has the legal authority to enforce Article 4.07, and to demand the Defendants be enjoined from keeping their otters as pets.
Defendants' Possession of Otters Constitutes a Common Law Nuisance and Violates Article 4.07 of the Declaration of Restrictive Covenants.
Texas law has defined nuisance as follows: "Nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562 (Tex Ct. App. 1998); see also Wickham v. San Jacinto River Auth., 979 S.W.2d 876 (Tex. Ct. App. 1998), Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999). The courts have found that, "A nuisance may arise by causing 1) physical harm to property… 2) physical harm to a person on his property from an assault on his senses or by other personal injury, and 3) emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind." Id. at 562; see also Marantha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92 (Tex Ct. App. 1994). According to the stipulated facts, the otters constitute a nuisance in each and every one of the three ways. With regards to physical harm to property, the otters devoured Mr. and Mrs. Whitestone's ornamental carp. (Stip. Facts ¶11.) Next, with regards to physical harm to a person, the otters "sprayed" Mrs. Whitestone and so offended her that she was traumatized. Id. Finally, many neighbors join together in that they collectively suffer emotional harm through fear, apprehension, and loss of peace of mind.
Neighbors fear that the otters are going to partake in another "rampage," and such fear substantially interferes with their use and enjoyment of their property. Id. River Camp Estates is, after all, an affluent community, and the residents of such a community should not be expected to tolerate such discomfort and annoyance. (Stip. Facts ¶¶3-4.) The residents discomfort is, of course, reasonable, as the otters have terrorized the community once before. Still, the Deatons agree that, by their nature, otters are inherently destructive creatures. (Stip. Facts ¶10.) What is worse is that the Deatons have done nothing to prevent such an incident from happening again, and instead, Defendants have tried only to "buy off" their neighbors by promising to contribute to certain charities. (Stip. Facts ¶13.) Injury to Plaintiff by means of the otters is certain, substantial, and beyond speculation and conjecture. The Defendants must be enjoined from keeping their otters as pets, and their Motion to Dismiss must be denied.
Still, the Deatons are bound to Article 4.07 of the Declaration of Restrictive Covenants. Article 4.07 is broader than is the common law definition of nuisance, reading as follows: "Noxious or Offensive Activities Prohibited: No noxious or offensive activity shall be conducted on any lot that is or may become a nuisance to the neighborhood." (Stip. Facts Ex. A.) Therefore, even if a resident's behavior is not fully a nuisance, if such conduct has the possibility that it "may become a nuisance," the residents are bound and prohibited from such an activity. In the instant case, especially because the Deatons have done nothing to correct the behavior on the part of the otters, the restrictive covenants prohibit Defendants keeping otters.
Public Policy Precludes the Court from Dismissing Plaintiff's Claim.
As a matter of public policy, Plaintiffs' are likely to argue that Article 4.07 unreasonably restricts their usage of their property. After all, the law has traditionally required that, unless notice has been given, land usage should be unfettered. Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999). On the other hand, in that the Defendants were aware of River Camps Estates' Declaration of Restrictive Covenants, the Defendants had received notice that keeping otters was not permitted. As the covenants would suggest, a residential neighborhood like River Camp Estates has been developed and maintained so that residents may live comfortably, not so that residents may showcase otters and allow them to terrorize others. In Simms, the court proposes a balancing test: "Equities favoring a lot owner must be weighed against equities favoring other lot owners who have acquired their property on the strength of restrictions." Simms v. Lakewood Village Prop. Owners Ass'n Inc., 895 S.W.2d 779, 779 (Tex. Ct. App. 1995). Here, the court notes that other residents have relied on restrictive covenants, and that some measure of equity is due these others residents. In the instant case, when balancing the interests of these other residents against the Defendants Deatons, it becomes clear that the near fifty other residents and their interest in comfortable living (i.e. without fear of property damage or attack to them or their children), far outweighs the interest of the Deatons in keeping their "pets." For this public policy reason, because the interests of the residential community far outweigh the interest of the individual Defendants, Defendants Deaton's Motion to Dismiss must be denied and the Defendants must be enjoined from keeping their otters.
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss must be denied. Because the Plaintiff has presented sufficient evidence to survive Defendants' Motion, because the Plaintiff has the legal authority to enforce its restrictive covenants, because the Defendants' otters do constitute a common law nuisance and violate Article 4.07 of the Declaration of Restrictive Covenants, and because public policy precludes the court from dismissing Plaintiff's claim, Defendants' Motion must be denied.
Respectfully submitted,
______________________________
.._____, Trial Counsel for Defendant
Texas Bar No. 000000
Jolly-Ryan & Chase
0000 Nunn Drive
Cold Spring, Kentucky 41076
(859) 000-0000
FAX: (859) 000-0000
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss was served on Bob Law, Bob Law & Associates, 0000 St. Rt. 27, Cold Spring, Kentucky 41076, counsel of record for Defendants, on January 29, 2007, by ordinary U.S. Mail.
______________________________
.._____, Trial Counsel for Defendant