Michael W. Meade v. 823 Properties, LLC

Michael W. Meade sued 823 Properties, LLC on a personal tort theory claiming:



1. Plaintiff, Michael W. Meade ("Meade”), is the owner of record of Lot 28 in Block One (1), of FLOYD ADDITION, a subdivision of Norman, Cleveland County, Oklahoma ("Lot 28” of "Floyd Addition”). According to professional surveys, the southern most boundary line fence for Lot 28 crosses into the platted area for Lot 27, Floyd Additions, by a total of one foot, nine inches (1', 9”). The southern most fence has been continuously existing for more than fifteen years. Indeed, for more than fifteen years, the Plaintiff or his predecessors and privies have been in open, peaceful and exclusive possession of the 1.75 foot strip of land within the fence line of Lot 28, but otherwise a part of Lot 27. Meade is a resident of the State of Texas.



2. Defendant, 823 Properties, L.L.C., is an Oklahoma Limited Liability Company and is the owner of a Lot 27, Floyd Addition, except for that portion of land within the fence line of Lot 28. Defendant Sean Reigar is a resident of the State of Oklahoma.



3. Venue is proper in Cleveland County, pursuant to 12 0.5. §131, §133, and §139 because the lands affected by this action are located in Cleveland County, State of Oklahoma.



FACTUAL ALLEGATIONS



4. According to professional surveys, the southern most boundary line fence for Lot

28 crosses into the platted area for Lot 27 by a total of one foot, nine inches (1', 9”). The southern most fence has been continuously existing for more than fifteen years. Indeed, for more than fifteen years, the Plaintiff or his predecessors and privies have been in open, peaceful and exclusive possession of the 1.75 foot strip of land within the fence line of Lot 28, but otherwise a part of Lot 27.



5. Beginning on or about November 15, 2012, the Defendants have, without the Plaintiffs permission, taken down the fence that separates Lot 27 and 28 on the basis that the Plaintiffs fence wrongfully encroaches upon the Defendant, 823 Properties', Lot 27. While the fence may have indeed been placed on a mistaken boundary line more than fifteen years ago, Oklahoma law is clear that after such length of time, "the fence will be adjudged to be the boundary line between the properties.” See Smith v. Pettzjohn, 1961 OK 246, Par. 12-14.



6. By wrongfully taking down the Plaintiffs fence, located on the Plaintiffs rightful property (albeit by adverse possession), the Defendants have wrongfully damaged the Plaintiff by their trespass and are liable for the damages caused thereby.



COUNT I - TRESPASS



Plaintiff incorporates herein each and every allegation made above.



7. As a result of Defendants' aforementioned actions, Defendants are interfering with Plaintiff property interests, and Meade has suffered and continues to suffer damages for which Defendants are responsible.



8. The Defendants have continued to enter the Plaintiffs land with no legal right to do so. Indeed, the Defendants have willfully, wantonly and maliciously breached the peace in effectuating their trespass, as the Defendants have "torn down” the fence of the Plaintiff in order to gain access to the property. The Defendants' trespass in these circumstances is willful and in bad faith. In fact, the Defendants have willingly and knowingly ignored the Plaintiffs repeated demands, made by himself and through counsel, that Defendants are to stay off the Plaintiffs property.



9. The Plaintiff seeks his actual damages for trespass by Defendants in an amount of less than Seventy Five Thousand Dollars. The Plaintiff has been damaged by the Defendants' willful and wanton trespass, such that the Plaintiff is entitled to his actual damages as well as exemplary damages.



COUNT II- QUIET TITLE



Plaintiff readopts and alleges all foregoing allegations and further states:



10. Regardless of whether the fence may have placed on a mistaken boundary line more than fifteen years ago, Oklahoma law is clear that after such length of time, "the fence will be adjudged to be the boundary ilne between the properties.” See Smith v. Pett(/ohn, 1961 OK 246, Par. 12-14.



11. Plaintiff is entitled to a Judgment that would quiet title for the 1.75 foot strip of land within the southern most boundary line fence for Lot 28 which otherwise crosses into the platted area for Lot 27, Floyd Additions. The southern most fence has been continuously existing for more than fifteen years. Indeed, for more than fifteen years, the Plaintiff or his predecessors and privies have been in open, peaceful and exclusive possession of the 1.75 foot strip of land within the fence line of Lot 28, but otherwise a part of Lot 27.



COUNT III - TEMPORARY RESTRAINING ORI)ER AND TEMPORARY AND



PERMANENT INJUNCTION



Plaintiff readopts and alleges all foregoing allegations and further states:



12. As a result of Defendants' aforementioned actions and threatened continued

actions of interfering with the Plaintiffs possession and enjoyment of his property long within the boundary of his fence, the Plaintiff is entitled to a temporary and permanent injunction. See Smith v. Pettzjohn, 1961 OK 246, Par. 12-t4 (Affirming Judgment granting injunction in boundary line dispute where fence, although mistakenly placed, has existed openly and peacefully and exclusively for more than fifleen years.)



13. Furthermore, based upon the aforementioned actions of the Defendants, Plaintiff will suffer irreparable harm unless, pursuant to OKLA. STAT. TIT. 12, §1381 et seq., the Court enters a temporary restraining order and a temporary injunction prohibiting the Defendants from continuing said actions until such time as the Court has fully ruled on Plaintiffs Petition and adjudicated whether a permanent injunction is merited.



14. The immediate, substantial, and irreparable harm Plaintiff will sustain outweighs any potential damage that Defendants may incur if this Court grants a temporary restraining order and temporary and permanent injunctions.



15. Plaintiff has no other remedy at law.



16. The interest of the public will not be disserved by the Court's granting a temporary restraining order as well as temporary and permanent injunctions.



PRAYER



WHEREFORE, the Plaintiff, Michael W. Meade, respectfully requests this Honorable Court to grant him the following relief:



21. That this Honorable Court enter a temporary restraining order and both temporary and pennanent injunctive relief against Defendants and that an Order issue enjoining Defendants and preventing them and their agents from (1) entering the Plaintiffs' property including the 1.75 foot strip of land within the existing or prior fence boundaries for Lot

28, Floyd Addition, Cleveland County, Oklahoma, and (2) that the Court enjoin the Defendants or their agents from interfering with, hampering, or other wise obstructing the Plaintiffs use of his subject land, or to any of the structures thereon.



22. That this Honorable Court enter an Order determining the rights and limitations of the parties concerning said subject property;



23. That the Court determine the Plaintiffs damages, actual and punitive, for the DefendantsT trespass, in an amount to exceed $5,000, but less than $75,000.



24. That this Honorable Court grant Plaintiffs reasonable attorney's fees, costs, and interest against the Defendants; and



25. That this Honorable Court grant such further and other relief that is just and proper considering the premises.



Defendant 823 Properties, LLC appeared and answered as follows:



1. 823 LLC does not have sufficient knowledge or information in order to form a belief regarding the truth of the allegations in paragraph 1 of the Petition as it regards Plaintiffs ownership of Lot 28, or Plaintiffs residency in the State of Texas. 823 LLC denies the remainder of Plaintiff's allegations in paragraph 1 of the Petition.



2. 823 LLC is the owner of all portions of the real property of Lots 25, 26, and 27, Block 1 in the Floyd Addition, Norman, OK, a.k.a. 930 Elm Avenue, Norman, OK, and therefore Defendant's allegation of partial non-ownership is denied. Defendant Sean Reigar has been dismissed from the case.



3. Admitted.



4. Denied.



5. 823 LLC rightfully relocated a fence that was wrongfully trespassing onto 823 ELC's property at 930 Elm Avenue and as such was disrupting 823 LLC's rights of use of the property. 823 LLC denies the remainder of Plaintiff's allegations in paragraph 5 of the Petition.



6. Paragraphs 6 through 16 of Plaintiff's Petition are Denied.

(823 EEC notes that Plaintiffs Petition skips from paragraph number 16 to paragraph

number 21, as it goes from page 4 to page 5. To the extent there are missing allegations

in missing numbers 17-20, 823 LEC denies them. Furthermore, 823 EEC denies any

allegations as put forth in Plaintiff's Prayer.)



Affirmative Defenses



7. The claims Plaintiff seek are barred by failure of consideration.



8. The claims Plaintiff seek are barred by laches.



9. The claims Plaintiff seek are barred by waiver.



10. The claims Plaintiff seek are barred by estoppel.



11. The claims Plaintiff seek are barred by statute of frauds.



WHEREFORE, Defendant, 823 EEC respectfully prays that the Court:



(a) Rule that Plaintiff takes nothing on his claims against 823 ELC;



(b) Award 823 ELC its costs, including all reasonable attorneys' fees, court costs, expert witness expenses, and all litigation expenses; and



(c) Award 823 LEC any additional relief, at law, or equity, as deemed justified by the Court.



COUNTERCLAIM



1. 823 LLC is the record, title, possessory, equitable and legal owner of all areas within the Lots 25,26, and 27 of Block 1 of the Floyd Addition to the City of Norman, or otherwise known as 930 Elm Avenue, Norman, OK.



2. Meade is the self-proclaimed record owner of the Lot 28 of Block 1 of the Floyd Addition to the City of Norman, or otherwise known as 924 Elm Avenue, Norman, OK.



3. The fence in question, between the two properties mentioned above, was wrongfully trespassing over onto 823 LLC's property by approximately 1.9 feet at the eastern end of the fence and approximately 1.2 feet at the western end of the fence.



4. The fence in question was not in that location for fifteen or more years.



5. As Meade admits, the fence had "been placed on a mistaken boundary line”. But such placement of the fence did not happen more than fifteen years ago. Meade has only owned his property since July 2008.



6. 823 LLC justly and properly relocated the fence in question to the correct lot line that is platted of record between the 823 LLC property and the Meade property.



7. All relocation work of the mistakenly placed fence has been complete and there is no work that remains to be done to correct the mistaken placement of the fence.



8. Meade's property is entirely enclosed and secured by the same fence now in its correct and accurate location on the property line.



9. 823 LLC is in process of constructing a six unit apartment building on 823 LLC's property at 930 Elm.



10. On April 26, 2012, a Mr. and Mrs. KT Meade came to a Pre-Development hearing at the City of Norman that was held to notify neighbors about the proposed zoning and construction.



11. Mr. and Mrs. KT Meade are listed as a "neighbor” in the report from that predevelopment meeting. At such meeting, Mr. and Mrs. KT Meade made comments that they were concerned about the proposed zoning and construction of 823 LLC's project. But at no time did Meade or Mr. and Mrs. Meade state any claim to any disputed property of 823 LLC.



12. At some point prior to Planning Commission hearing on the rezoning, Mr. and Mrs. KT Meade made contact with representatives of 823 LLC and informed them that Meade would not protest the zoning if either: a) 823 LLC would agree to the buy the Meade property (for an asking price that was massively above market value); or b) 823 LLC would agree to enter into a joint venture with 823 LLC in developing both the Meade property and the 823 LLC property into a multifamily project. 823 LLC declined both offers, and subsequently Meade protested the zoning.



13. Meade hired an attorney to actively advocate against the zoning at the Planning Commission hearing.



14. The Planning Commission, City Council, and City of Norman staff all approved of the project, unanimously and the rezoning was granted in August 2012.



15. Videotape evidence will show that Mr. and Mrs. KT Meade were present at the Planning Commission hearing in June 2012, saw and heard the plans for construction, setbacks, etc., and never at any time voiced any claim of right or interest in the disputed strip of land now being sued for.



16. On or about September 27, 2012, representatives of 823 LLC made Meade aware of the encroachment of the fence onto 823 LLC's property.



17. On or about October 2, 2012, K.T. Meade, Jr., "Attorney at Law”, wrote back to

823 LLC's attorney (as attached hereto as EXHIBIT A), and stated as follows:

"In response to your letter dated September 27, this is to respectfully request that you grant us a few days to have our engineering study double checked.



Also, our fence that you propose to remove is a new fence, and in the event your survey is correct, we would like the OpDortunity to relocate il.” (emphasis added)



18. In such letter, Meade made no claim of right of interest in the property around the fence, and instead rather only asked to verify the location and be able to relocate it.



19. Meade admitted that it was a new fence, and thus it could not have been in its present location for more than 15 years as Meade now alleges under sworn affidavit.



20. Subsequently, 823 LLC repeatedly made requests for Meade to relocate the fence and 823 LLC even offered to relocate at 823 LLC's costs as a good faith neighborly gesture.



21. Meade consistently refused to cooperate and delayed any cooperative effort to proceed in removing the wrongfully encroaching fence from 823 LLC's property.



22. 823 LLC made repeated good faith offers to help Meade remove their encroachment, even to the point of proposing to handle all costs of moving the fence and Meade handle only the sprinkler system revisions (for an estimated ballpark cost of $500).



23. Instead of working with 823 LLC to resolve Meade's trespass, for as little as ballpark $500, Meade recklessly and maliciously filed this lawsuit (even suing the attorney for Meade — which was subsequently dismissed upon demand).



24. Meade's behavior and response to 823 LLC since the very commencement of 823 LLC's zoning action has been to aggressively oppose, delay and hinder 823 LLC's efforts to improve 823 LLC's property.



25. Meade has intentionally and wrongfully interfered with 823 LLC's rights to proceed with the use and enjoyment of 823 LLC's property to its borders.



26. After it became clear that Meade was not going to cooperate in assisting to put the fence onto the lot line boundary, 823 LLC proceeded to remove the wrongful trespass from its property.



27. Still however, there remains a trespassing sprinkler system and plumbing that wrongfully extends from the Meade's property over onto 823 LLC's property. Meade has refused to remove the sprinkler system and plumbing that extends out into 823 LLC's property.



COUNT ONE



OUIET TITLE



823 LLC readopts and incorporates all of the above stated allegations and alleges further:



28. Meade has made false and unsubstantiated claims of adverse possession against

823 LLC's property at 930 Elm Ave.



29. Meade has failed to prove any of the elements of adverse possession.



30. 823 LLC should be granted quiet title as to all disputed portions of land owned by

823 LLC.

31. Meade's wrongful claims to title of portions of 823 LLC's property constitute damages to 823 LLC.



COUNT TWO



TRESPASS and NUISANCE



32. Meade's continued encroachment of sprinkler system components and plumbing pipes and accessories from a stone wall fountain constitute a continuing trespass and nuisance.



33. 823 LLC seeks the removal of all such trespassing items across the platted lot boundary.



34. The Court should adjudge that Meade must remove all such trespassing items entirely from the 823 LLC property.



35. Meade's wrongful and continual trespass and nuisance across the platted lot boundary constitute damages to 823 LLC.



WhEREFORE, Defendant, 823 LLC respectfully prays that the Court:



(a) Award 823 LLC judgment on all counts above as to Quiet Title, Trespass and

Nuisance;



(b) Order Meade to remove the sprinlder system, the plumbing, and any and all other

encroaching and trespassing items across the boundaries of the platted lot;



(c) Award 823 LLC damages and remedies in excess of $10,000;



(d) Rule that Plaintiff takes nothing on his claims against 823 LLC;



(e) Award 823 LLC its costs, including all reasonable attorneys' fees, court costs,

expert witness expenses, and all litigation expenses; and



(f) Award 823 LLC any additional relief, at law, or equity, as deemed justified by the

Court.

Settled and dismissed with prejudice.