FILED

DALLAS COUNTY
8/25/2015 3:53:22 PM
FELICIA PITRE
DISTRICT CLERK

1-CIT ES

CAUSE NO. DC-15-07640

FC WP BUILDING LLC,
Plaintiff,

v.
HEADINGTON REALTY AND CAPITAL
LLC, and ELM AT STONEPLACE
HOLDINGS, LLC
Defendant.

IN THE DISTRICT COURT

DALLAS COUNTY TEXAS

68TH JUDICIAL DISTRICT

PLAINTIFFS FIRST AMENDED PETITION AND

APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF
Plaintiff FC WP Building LLC (Plaintiff or Forest City) files this First Amended
Petition and Application for Temporary Injunctive Relief against Defendants Headington Realty
and Capital LLC (Headington) and Elm at StonePlace Holdings, LLC (StonePlace)
(collectively, Defendants), and would respectfully show the Court as follows:
I.
DISCOVERY CONTROL PLAN
1.

Plaintiff intends to conduct discovery in this case under Level 3 of Texas Rules of

Civil Procedure because the issues in dispute are complex and the claims will be better resolved
in accordance with a discovery plan specifically tailored by the Court for the disposition of this
case.
II.
PARTIES
2.

Forest City is a diversified real estate management and development company and

through its affiliate FC WP Building LLC, a Texas Limited Liability Company, is the owner of
the historic Wilson Building in Downtown Dallas.

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 1

3.

Headington is a Texas Limited Liability Company and a real estate management

and development company which owns and operates StonePlace. StonePlace, acting as the tool or
business conduit of Headington, owns certain real property immediately adjacent to the Wilson
Building at 1615 Main Street in Dallas, Texas (The Adjacent Property). Headington has
answered and generally appeared in this lawsuit and will be served pursuant to the Texas Rules of
Civil Procedure.
4.

StonePlace is a Texas Limited Liability Company and may be served with citation

through its registered agent for service of process, Michael E Tregoning, at its registered office,
2711 N. Haskell Avenue, Suite 2800, Dallas, Texas 75204.
III.
JURISDICTION AND VENUE
5.

The Court has subject matter jurisdiction over the case because the damage to the

historic Wilson Building caused by the trespass described below, and the further diminished
market value threatened by the nuisance described below, are within the jurisdictional limits of the
Court.
6.

Venue is proper in Dallas County under Section 15.011 of The Civil Practice and

Remedies Code because permanent damage to the historic Wilson Building is threatened, and the
Wilson Building is located in Dallas County.
IV.
FACTS
7.

Since 2008, Forest City has been the owner of certain real property located in

Downtown Dallas known as the Wilson Building. Originally constructed in 1904, the Wilson
Building was converted in 1999 from office and retail space into 143 loft apartments for residential
use. Because public TIF funds were used to help finance the conversion project, the City of Dallas

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 2

and its citizens, for various reasons, have an interest in preserving the Wilson Building. Consistent
with this public interest, the Wilson Building has been on the National Register of Historic Places
since 1979.
8.

As admitted by Headington in pleadings on file with this Court, Headington owns

Elm at StonePlace Holdings, LLC, which is the owner of property located at 1615 Main Street that
it is adjacent to Plaintiffs property . . . . See Defendants Special Exceptions to Plaintiffs
Original Petition and Request for Declaratory and Injunctive Relief, August 6, 2015, at 1 n.1.
Headington is vicariously liable for the acts and omissions of StonePlace, in addition to its own
acts and omissions, as StonePlace was formed as a mere tool or business conduit of Headington
and is in effect the alter ego of Headington. Given Headingtons financial interest, ownership or
control over StonePlace, there is such a unity between Headington and StonePlace that any
separateness between the two entities has ceased, and holding only StonePlace liable would
result in injustice. Alternatively, Headington is vicariously liable for the acts and omissions of
Stone Place, in addition to its own acts and omissions, because StonePlace was used by Headington
to avoid its legal obligations to Forest City.
9.

In or around 2012, one or both of the Defendants purchased the Adjacent Property.

In a post-acquisition discussion, Defendants told Forest City that they intended to build a retail
structure on the Adjacent Property, and that the proposed building would be 3 stories in height.
Based on this neighborly advice, Forest City concluded that the proposed development was not
likely to interfere in any substantial way with Forest Citys use and enjoyment of the Wilson
Building as rental property for residential use.
10.

In preparation for the new construction of this retail structure, one or both of the

Defendants demolished an existing structure on the Adjacent Property.

The then-existing

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 3

structure, constructed in or around 1911, stood 3 stories tall and abutted the Wilson Building at the
shared property line between the two buildings. During the demolition process, one or both of the
Defendants caused significant damage to the western wall of the Wilson Building, including
damage to bricks, plaster, windows, and in two locations, a complete piercing of the western wall
of the Wilson Building.
11.

Following Defendants demolition of the existing structure and the resulting

damage to the Wilson Building, Forest City and Headington discussed repair of damages to the
western wall. The Defendants however never agreed to give Forest City access for the needed
repair. Instead, Headington revealed its true plans for the Adjacent Property including adding two
extra stories to the proposed retail structure (from three stories to five).
12.

The Building plans for the Adjacent Property reveal that, beginning at the new

constructions fourth story, the new constructions setback from the west wall of the Wilson
Building will be only five feet. The building plans available from the City of Dallas, however, do
not contain elevation drawings for the first three stories of the east wall of the new construction,
the wall immediately adjacent to the damaged western wall of the Wilson Building. The building
plans do contain a photograph of the damage to the Wilson Building with the notation of repair
damages to existing facade. Despite this telling admission of responsibility for damage to the
Wilson Building, Defendants have failed to make, allow, or provide for payment for any such
repairs.
13.

While Defendants refusal to make, allow, or provide for payment for repairs to the

western wall threatens the interior and structural integrity of the affected floors in the Wilson
Building, the two extra stories increasing the height of the proposed retail structure, when coupled
with a setback of only five feet, would block almost entirely the air, light, and view available to a

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 4

number of rental apartments in the Wilson Building, and thereby, substantially impairing Forest
Citys use and enjoyment of the property.
V.
TRESPASS TO REAL PROPERTY
14.

During Forest Citys lawful possession of the Wilson Building, one or both of the

Defendants caused the demolition of the existing structure on the Adjacent Property. In the course
of this demolition, one or both of the Defendants invaded or caused the invasion of the Wilson
Building. This invasion was physical, intentional, voluntary, and caused damage to the Wilson
Building, including actual damage to the bricks, plaster, windows, and in two locations, a complete
piercing of the western wall of the Wilson Building.
15.

As a result of Defendants trespass to real property, Forest City is entitled to recover

damages within the jurisdictional limits of the Court, including the cost of repairs to the Wilson
Building, the loss of the use of the property, and the loss of market value of the property.
VI.
NUISANCE AND PERMANENT DAMAGE TO PROPERTY
A.

Access to Air, Light, and View

16.

Defendants proposed use of the Adjacent Property to construct a retail structure

will constitute a nuisance and will substantially and unreasonably interfere with Forest Citys use
and enjoyment of the historic Wilson Building. Defendants actions are intentional and Defendants
know that this proposed development will cause damage to the Wilson Building. At least eight
apartments in the Wilson Building will be denied almost all access to air, light, and view by the
proposed development, and the damage resulting from this substantial and unreasonable
interference will cause permanent damage to the Wilson Building and thereby significantly
diminish the market value of the property.

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 5

17.

In developing the Adjacent Property, Defendants had a legal duty to avoid

interfering with Forest Citys use and enjoyment of the Wilson Building, the proposed
development constitutes a breach of that duty, and the resulting market value damages will be
proximately caused by the proposed development. These market value damages are unliquidated
and, as is referenced above, are within the jurisdictional limits of the Court.
B.

Access to Repair Defendants Trespass Damages

18.

As a result of Defendants trespass to the Wilson Building described above, the

Wilson Building requires significant repair to its western wall. The repairs to the Wilson Building
require the staging of equipment and supplies, the placement of scaffolding and access by crew
and equipment up to the third story of the Wilson Building. The repairs can only be completed by
external access to the western wall of the Wilson Building, and to date, Defendants have not
provided for these repairs or permitted Forest City to conduct these repairs.
19.

Defendants proposed use of the Adjacent Property to construct a retail structure

abutting the Wilson Buildings western faade will constitute a nuisance and will substantially and
unreasonably interfere with Forest Citys use and enjoyment of the historic Wilson Building, such
construction will also interfere with necessary repairs to the Wilson Building. Defendants refusal
to acknowledge responsibility for the damage to the western wall and its refusal to provide for or
permit the repair of the western wall are intentional, and Defendants know that this proposed
development will cause damage to the Wilson Building. Defendants substantial and unreasonable
interference and trespass will cause permanent damage to the Wilson Building and thereby
significantly diminish the market value of the property.

These market value damages are

unliquidated and, as is referenced above, are within the jurisdictional limits of the Court.

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 6

VII.
DECLARATORY RELIEF
20.

Forest City asks the Court to declare that the development proposed by Defendants

is a nuisance, will substantially and unreasonably interfere with Forest Citys use and enjoyment
of the Wilson Building, and will cause permanent damage to the Wilson Building.
VIII.
APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF
TO PREVENT IRREPARABLE INJURY
21.

Forest City hereby incorporates the allegations contained in paragraphs 1-19 as if

fully set forth herein.

22.

As set forth above, Defendants trespass has caused damage to the Wilson Building

which can only be repaired by external access to the western wall of the Wilson Building. These
repairs will require the staging of equipment and supplies, placement of scaffolding and work by
repair crews over an approximately three to four week period of time. The repair work may require
alternate means of scaffolding as Defendants demolition and construction on the Adjacent
Property progresses.
23.

On or about Friday, July 31, 2015, Defendants received a building permit to begin

construction on the Adjacent Property. As construction progresses, the repair work required due
to Defendants damages to the Wilson Building will become more difficult and cost prohibitive.
Importantly, once Defendants construct the eastern wall of the Adjacent Property to be shared with
the Wilson Building, the damage to the western wall will be entombed and the external access
required to repair Defendants damage will be impossible. Moreover, the exposed external damage
will doubtless cause internal damage from weather and other elements causing additional
degradation of the western wall.
24.

The damage resulting from Defendants trespass threatens permanent damage to

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 7

the Wilson Building. Forest City seeks temporary injunctive relief pending trial herein to avoid
irreparable loss and injury to Forest City.
25.

Forest City seeks temporary injunctive relief pending trial herein to avoid irreparable

loss and injury to the Wilson Building and to Forest City. Specifically, Forest City seeks an order
(a) stopping construction on the Adjacent Property or any other activities restricting Forest Citys
access to the western faade of the Wilson Building, (b) directing the Defendants to grant Forest
City and its authorized employees and agents a temporary license to enter upon and occupy the
Adjacent Property for a reasonable period of time (i) to inspect the western wall to determine the
extent of such damage and scope of necessary repairs, (ii) to solicit bids for such repair work, (iii)
to complete the repair of damages to the Wilson Building caused by Defendants, and (iv) to allow
such other matters reasonably related to the foregoing, including Defendants providing their
reasonable cooperation to Forest city in connection with such license.
26

To obtain a temporary injunction, Forest City must plead and prove a cause of

action against Defendants; a probable right to the relief sought; and probable, imminent, and
irreparable injury. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Plaintiff may
show a probable right of relief by alleging a cause of action and presenting evidence that tends to
sustain it. T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 23-24 (Tex.
App.Houston [1st Dist.] 1998, pet. dismd).
27.

A 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 or enjoy it. Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). The
elements of a nuisance cause of action are (1) plaintiffs private interest in land; (2) defendants
interference with or invasion of that interest by conduct that was (a) negligent; (b) intentional and

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 8

unreasonable; or (c) abnormal and out of place in its surroundings; (3) defendants conduct which
resulted in the substantial interference with the plaintiffs private use and enjoyment of the land;
and (4) the nuisance caused injury to the plaintiff. See Burditt v. Swenson, 17 Tex. 489, 502 (1856);
Aguilar v. Trujillo, 162 S.W.3d 839, 850-51 (Tex. App.El Paso 2005, pet. denied).
28.

It is well established that a nuisance may arise through the causing of physical harm

to or destruction of property. Aguilar, 162 S.W.3d at 850 (citing Walton v. Phillips Petroleum Co.,
65 S.W.3d 262, 270 (Tex. App.El Paso 2001, no pet.)). Defendants construction on the
Adjacent Property threatens permanent, irreparable damage to the western wall of the Wilson
Building and Forest Citys use and enjoyment of the Wilson Building. Defendants actions are
intentional, and Defendants know that the construction has, and will, cause damage to the Wilson
Building. The damage resulting from Defendants substantial and unreasonable interference will
cause permanent damage to the Wilson Building and thereby significantly diminish the market
value of the property. Furthermore, in developing the Adjacent Property, Defendants had a legal
duty to avoid interfering with Forest Citys use and enjoyment of the Wilson Building, the
proposed new construction constitutes a breach of that duty, and the resulting market value
damages will be proximately caused by the new construction. The nuisance caused by the new
construction on the Adjacent Property is imminent and need not be in existence to bring this
application for temporary injunction. See Freedman v. Briarcroft Property Owners, Inc., 776
S.W.2d 212, 216 (Tex. App.Houston [14th Dist.] 1989, no writ).
29.

Trespass to real property is defined as an unauthorized entry upon the land of

another. Mathis v. Barnes, 377 S.W.3d 926, 931 (Tex. App.Tyler 2012, no pet.). The elements
of a trespass cause of action are (1) the plaintiff owned or had a lawful right to possess real
property; (2) the defendant entered the plaintiffs land and the entry was physical, intentional, and

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 9

voluntary; and (3) the defendants trespass caused injury to the plaintiffs right of possession.
Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.Fort Worth 2006, pet. denied).
Defendants trespass of the Wilson Building was physical, intentional, voluntary, and caused
damage to the Wilson Building, which damage will become entombed and thus irreparable with
the progression of Defendants new construction.
30.

Forest City reasonably fears that unless injunctive relief is granted, immediate,

severe, and irreparable loss and injury will be done to Forest City. Forest City hereby requests
that the Court, upon hearing the application for temporary injunction, restrain and enjoin
Defendants and persons acting in concert with Defendants who receive actual notice of the
temporary injunction order to be entered herein from engaging in any further work or development
of the Adjacent Property. Specifically, Plaintiff seeks an Order that Defendants and persons acting
in concert with them who receive actual notice of the temporary injunction order to be entered
herein:
A.

Provide Plaintiff with a copy of all building plans, permits, or other

documents identifying the intended height and setback of the property to be
developed adjacent to the Wilson Building no later than three (3) calendar
days from the entry of the Courts Order;

B.

Stop immediately any construction on the Adjacent Property or any other

activities restricting Forest Citys access to the western faade of the Wilson
Building until further order; and

C.

Grant Forest City and its authorized employees and agents a temporary
license to enter upon and occupy the Adjacent Property for a reasonable
period of time (i) to inspect the western wall to determine the extent of such

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 10

damage and scope of necessary repairs, (ii) to solicit bids for such repair
work, (iii) to complete the repair of damages to the Wilson Building caused
by Defendants, and (iv) to allow such other matters reasonably related to the
foregoing, including Defendants providing their reasonable cooperation to
Forest city in connection with such license.
IX.
PERMANENT INJUNCTIVE RELIEF
31.

Forest City further requests that, upon final trial herein, the Court grant such other

and further injunctive relief as may be necessary to effectuate all rulings made in this matter.
Specifically, Forest City seeks injunctive relief that Defendants be prohibited from interfering
now, or in the future, with Forest Citys use and enjoyment of the historic Wilson Building and
particularly from the described nuisance which will block access to the damaged western wall of
the Wilson Building and which will block almost entirely the air, light, and view available to a
number of rental apartments and thereby permanently damage the Wilson Building.
X.
JURY DEMAND
32.

Forest City demands a trial by Jury and has or will tender the appropriate jury fee.
XI.
REQUEST FOR DISCLOSURE

33.

Under Texas Rules of Civil Procedure 194, Forest City requests that Stone Place

disclose the information or material detailed in Rule 194.2 fifty (50) days from the date of service
of this First Amended Petition or at such other time and place ordered by the Court.

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 11

XII.
PRAYER
34.

WHEREFORE Forest City requests relief for the causes of action described above

as follows:
a.

That after notice and hearing, this Court enter a temporary injunction

restraining and enjoining Defendants and persons acting in concert with Defendants who receive
actual notice of the temporary injunction order to be entered herein from engaging in any
construction or development of the Adjacent Property, specifically that Defendants and persons
acting in concert with them who receive actual notice of the temporary injunction order to be
entered herein: (A) Provide Plaintiff with a copy of all building plans, permits, or other documents
identifying the intended height and setback of the property to be developed adjacent to the Wilson
Building no later than three (3) calendar days from the entry of the Courts Order; (B) Stop
immediately any construction on the Adjacent Property or any other activities restricting Forest
Citys access to the western faade of the Wilson Building until further order; and (C) Grant Forest
City and its authorized employees and agents a temporary license to enter upon and occupy the
Adjacent Property for a reasonable period of time (i) to inspect the western wall to determine the
extent of such damage and scope of necessary repairs, (ii) to solicit bids for such repair work, (iii)
to complete the repair of damages to the Wilson Building caused by Defendants, and (iv) to allow
such other matters reasonably related to the foregoing, including Defendants providing their
reasonable cooperation to Forest city in connection with such license.
b.

That Forest City recover damages against Defendants for the cost of repairs

to the Wilson Building and for the loss of use of the property due to Defendants damage to the
Wilson Building;

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 12

c.

That Forest City recover market value damages against Defendants for the

permanent damage to the Wilson Building;

d.

That Defendants shall not unreasonably interfere with Forest Citys use and

enjoyment of the Wilson Building;

e.

Pre judgment and post judgment interest;

f.

That the Court declare that Forest City is entitled to the continued use and

enjoyment of the Wilson Building free from the nuisance threatened by Defendants proposed
development of property adjacent to the Wilson Building;
g.

Court costs;

h.

Attorneys fees; and

i.

All other relief to which Forest City is entitled.

Respectfully submitted,

James M. Stanton
State Bar No. 24037542
Stanton@stantontrialfirm.com
William G. Compton
State Bar No. 04652350
Compton@stantontrialfirm.com
Stanton Law Firm, P.C.
9400 N. Central Expressway, Suite 1304
Dallas, Texas 75231
Telephone: (972) 233-2300
Facsimile: (972) 692-6812
COUNSEL FOR PLAINTIFF
FC WP BUILDING LLC

PLAINTIFFS FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF PAGE 13

CERTIFICATE OF CONFERENCE
I certify that I have personally conferred with counsel for Defendant Headington Realty
and Capital LLC, who responded by letter indicating that Defendant opposes the relief requested.
Certified to the 25th day of August, 2015, by:

James M. Stanton

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was forwarded on this 25th day of August, 2015, to
the following:
Via electronic service:
William A. Brewer III
wab@brewerattorneys.com
Michael J. Collins
mjc@brewerattorneys.com
Robert M. Millimet
rrm@brewerattorneys.com
Brewer, Attorneys & Counselors
1717 Main Street, Suite 5900
Dallas, Texas 75201
Telephone: (214) 653-4000
Facsimile: (214) 653-1015
Counsel for Defendant
Headington Realty and Capital LLC

James M. Stanton

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