In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00119-CV
___________________________
PAUL TOLSTYGA, Appellant
V.
TOLL BROS., INC. AND TOLL DALLAS TX, LLC, Appellees
On Appeal from the 352nd District Court
Tarrant County, Texas
Trial Court No. 352-318611-20
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
After sustaining Appellees Toll Brothers, Inc. and Toll Dallas TX, LLC’s
(collectively Toll) objections to Appellant Paul Tolstyga’s summary judgment
evidence, the trial court granted Toll’s traditional motion for summary judgment. In
three issues, Tolstyga complains that the trial court erred by striking the offending
portions of his affidavit and accompanying Exhibits A-1 through A-4 and by granting
Toll’s motion for summary judgment. We affirm.
I. BACKGROUND
This dispute began around 2007 with the development of a residential
subdivision known as The Reserve. Tolstyga owns property neighboring The Reserve
and has made repeated claims of damage to his property, including a pond located on
his property, as a result of the development. Tolstyga’s complaints have resulted in
multiple lawsuits and settlement agreements.
A. Tolstyga – RP25
RP25 was the original developer of The Reserve. Tolstyga made repeated
complaints to RP25 about an increased volume and rate of storm water runoff from
The Reserve and the resulting damage to his property. On October 15, 2007, Tolstyga
and RP25 reached a settlement agreement concerning Tolstyga’s claims. However, on
October 20, 2008, Tolstyga filed suit against RP25, stating that the settlement
agreement was limited to losses, costs, expenses, damages, liabilities, actions, causes of
action, or claims relating to matters that occurred prior to the date of the settlement
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agreement. Tolstyga claimed that excessive water and silt continued to inundate his
pond. He asserted causes of action for violation of the Texas Water Code, as well as
nuisance, trespass, negligence, and breach of contract.
The parties reached a second settlement agreement on December 21, 2009. In
that agreement Tolstyga agreed to release RP25 and its “successors and assigns” from
all claims, demands, liabilities, suits, causes of action, rights or
damages . . . ., whether known or unknown and whether fixed or
contingent that Tolstyga has now or may have based upon or arising out
of or related to any act, fact, conduct or omission, contract, agreement,
obligation, representation, statement, warranty, occurrence, event or
other matter alleged or which might have been alleged in the Lawsuit,
including but not limited to all Claims based on or which might have
been based on, arising out of, or related to the Development, the
Property, the Ponds, and the matters related in the Lawsuit.
As a result of the second settlement agreement, Tolstyga dismissed his suit against
RP25.
B. Tolstyga – Toll
Toll purchased The Reserve from RP25 on April 16, 2010. Shortly after, on
May 23, 2010, Tolstyga contacted an attorney representing Toll and expressed his
ongoing concerns with The Reserve, including excess water and silt on his property.
On August 20, 2010, Tolstyga contacted Tom Murray, Group President of Toll,
asking what his intentions were to help with Tolstyga’s complaints. There were
multiple exchanges between the attorneys for Tolstyga and Toll discussing Tolstyga’s
concerns and Toll’s position with regard to those concerns.
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On October 13, 2010, Tolstyga’s attorney sent Toll’s attorney a list of demands
to avoid litigation that included, among other demands, a solution to slow down the
water; clean-up of the entire pond, including silt RP25 failed to remove;
reimbursement of engineer and attorney fees and the cost of fabric to stop the
sediment; and a flood study. Despite the ongoing discussions between the attorneys,
Tolstyga contacted Murray directly and asked what Toll’s intentions were concerning
his damages. In response, Murray stated that Toll’s intentions had not changed and
that RP25 was the one who had damaged Tolstyga’s pond. Murray noted that Toll
typically removes any additional silt from development after the completion of the
development. Murray stated that the attorneys for both parties had discussed
reasonable measures and encouraged Tolstyga to have his attorney work with Toll’s
attorney on a solution. Despite ongoing negotiations, Toll and Tolstyga never reached
a settlement agreement.
C. Tolstyga – Shannon Nave and Baird, Hampton & Brown, Inc.
Prior to negotiations with Toll, Tolstyga had a preliminary evaluation from an
engineering firm that found that as a result of The Reserve development, there were
greater storm water discharge rates on Tolstyga’s property that could raise water
surface elevations. Tolstyga’s attorney thought it would be helpful in negotiations with
Toll to do another drainage study to presumably show the same results. Tolstyga hired
Shannon Nave, a principal with Baird, Hampton & Brown, Inc., to conduct the study,
and Tolstyga’s attorney told Nave the ultimate goal of the study. Nave completed the
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study in August 2013 and concluded, however, that The Reserve’s detention pond
would provide a lower peak discharge rate at Tolstyga’s property than was
experienced prior to the development and that the water surface on Tolstyga’s
property would not increase. According to Tolstyga, the new study was not helpful to
him and helped validate Toll’s position. After the Nave study, negotiations between
Tolstyga and Toll ended.
In 2017, Tolstyga employed another engineering firm to review Nave’s results.
That study disputed the findings of Nave and agreed with the prior study that The
Reserve Development resulted in greater discharge rates on Tolstyga’s property.
On July 19, 2019, Tolstyga filed suit against Nave and Baird, Hampton &
Brown, Inc. for deceptive trade practices and fraudulent misrepresentation. Tolstyga
complained that as a result of the Nave study, Toll refused to make any changes to
The Reserve, and he was not able to get the monetary and actual relief from Toll for
which his attorney had been negotiating. The trial court granted Nave and Baird,
Hampton & Brown’s motion for summary judgment based upon the statute of
limitations.
D. Tolstyga – The Reserve HOA and Toll
On August 12, 2020, Tolstyga filed suit against The Reserve at Colleyville
Residential Community, Inc. (The Reserve HOA) and RTI Community Management
Associates, Inc. (RTI) alleging causes of action for nuisance, trespass, negligence, and
gross negligence. Tolstyga again sought relief for damages to his property caused by
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the excess water from The Reserve. Tolstyga later amended his pleadings to add Toll
as a defendant and added causes of action against Toll for fraud, breach of contract,
and promissory estoppel.
The trial court signed an Order of Non-Suit Without Prejudice as to the claims
against The Reserve HOA and RTI. The trial court further signed an Order of Partial
Non-Suit Without Prejudice as to Tolstyga’s claims against Toll for nuisance, trespass,
violations of the Texas Water Code,1 and breach of contract.
E. Toll’s Summary Judgment
Prior to Tolstyga filing his notice of non-suit for his claims against The Reserve
HOA and RTI and the partial non-suit of certain claims against Toll, Toll filed a
traditional motion for summary judgment. After the non-suit, the remaining causes of
action against Toll were negligence, gross negligence, fraud, and promissory estoppel.
As relevant to the remaining causes of action, Toll argued that it was entitled to
summary judgment because, as RP25’s “successor and assign,” Tolstyga released his
claims in the second settlement agreement. Toll further argued that the claims for
promissory estoppel and fraud also fail because there was no promise or material
representation by Toll on which Tolstyga reasonably relied. Tolstyga filed a response
in which he argued that because his claims are based upon misrepresentations made
by Toll, the release provision from the second settlement agreement does not apply to
1
We note that Tolstyga’s amended petition does not allege a cause of action
against Toll for violations of the Texas Water Code.
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his claims. Tolstyga included as summary judgment evidence his own affidavit, emails
from Murray and Toll’s attorney, a letter from Toll’s attorney to his attorney, and a
letter from the Texas Commission on Environmental Quality (TCEQ) to Toll.
Toll filed an objection to Tolstyga’s summary judgment evidence, arguing that
Tolstyga’s affidavit violated Rule 408 of the Texas Rules of Evidence; contained
conclusory, inaccurate, and misleading statements; and violated the Sham Affidavit
Rule. The trial court sustained Toll’s objections and struck the offending parts of
Tolstyga’s affidavit as well as the emails and letters. After a hearing, the trial court
granted Toll’s motion for summary judgment and ordered that Tolstyga take nothing
by his alleged claims.
II. ISSUES AND STANDARDS OF REVIEW
Tolstyga argues in his first issue that his affidavit was not a sham and that the
trial court erred by striking it. In his second issue, he argues that the trial court erred
by striking his evidence of Toll’s promises pursuant to Rule 408 of the Texas Rules of
Evidence. In his third issue, he contends that the trial court erred by granting Toll’s
motion for summary judgment because there was a material fact issue regarding his
claims for promissory estoppel, negligence, and fraud.
We review a trial court’s decision to exclude summary-judgment evidence for
an abuse of discretion. Hobson v. Francis, No. 02-18-00180-CV, 2019 WL 2635562, at
*6 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.). A court abuses its
discretion if it acts without reference to any guiding rules or principles. Carpenter v.
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Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). An appellate court must
uphold a trial court’s evidentiary ruling if there is any legitimate basis in the record to
support it. Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 119 (Tex. 1999) (op. on reh’g).
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 863 (Tex. 2010). We consider the evidence presented in the light most favorable
to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). If a trial
court’s order does not specify the grounds upon which it granted summary judgment,
we must affirm if any of the theories presented to the trial court and preserved for
appeal are meritorious. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003).
III. ANALYSIS
A. Exclusion of Tolstyga’s Affidavit and Exhibits
The trial court’s order excluding the offending portions of Tolstyga’s affidavit
and exhibits does not state the basis for the exclusion. We must uphold the ruling if
there is any legitimate basis in the record to support it. Drilex Sys., Inc., 1 S.W.3d at
119. We will first address Tolstyga’s second issue.
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Rule 408 provides:
(a) Prohibited Uses. Evidence of the following is not admissible either to
prove or disprove the validity or amount of a disputed claim:
(1) furnishing, promising, or offering—or accepting, promising to
accept, or offering to accept—a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or statements made during compromise negotiations
about the claim.
(b) Permissible Uses. The court may admit this evidence for another
purpose, such as proving a party’s or witness’s bias, prejudice, or
interest, negating a contention of undue delay, or proving an effort
to obstruct a criminal investigation or prosecution.
Tex. R. Evid. 408.
The record shows, and Tolstyga does not dispute, that the parties were
involved in settlement negotiations at the time of the communications included in
Tolstyga’s summary judgment evidence. Tolstyga contends, however, that Rule 408 is
not applicable because the communications were not made to prove the validity of
any claim that was in dispute. We disagree.
Tolstyga made demands to avoid litigation that included cleaning up his pond.
After making those demands and while the parties were negotiating a settlement,
Tolstyga sent an email to Murray asking what Toll’s intentions were as far as his
damages were concerned. Murray responded by stating that they measured the pond
before closing on the property and that, after the completion of the development,
they would measure again and remove any additional silt. In another communication,
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Toll’s attorney stated, “Toll has consistently acknowledged its obligation to clean Mr.
Tolstyga’s pond and, in fact, has been negotiating toward that end for approximately
two years.” Tolstyga contends that these communications show that there was no
dispute that Toll represented it would clean up his pond.
The communications do not establish that there was no dispute between the
parties as to make Rule 408 inapplicable. Rather, the communications show that as
part of an ongoing dispute, Toll was attempting to negotiate a solution. Murray stated
that it was Toll’s “intention to be a good neighbor” and encouraged Tolstyga to work
with them on a solution. Although the communications show an intention on the part
of Toll to clean up the pond, those intentions were expressed as part of the
negotiation to settle the dispute. We hold that the communications were made during
negotiations of a disputed claim and were inadmissible under Rule 408. Because the
parties were negotiating in an adversarial context, any reliance by Tolstyga on
statements made during the negotiation process was unjustified and unreasonable.
Ortiz v. Collins, 203 S.W.3d 414, 422 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). The trial court did not abuse its discretion in excluding portions of Tolstyga’s
affidavit relying on statements made during settlement negotiations and the
accompanying exhibits. We overrule Tolstyga’s second issue. Because we find that the
trial court did not abuse its discretion in excluding the offending portions of
Tolstyga’s affidavit under Rule 408, we need not address Tolstyga’s first issue that the
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trial court erred by excluding portions of his affidavit as a sham affidavit. See Tex. R.
App. 47.1.
B. Summary Judgment
Tolstyga acknowledges that his remaining claims for negligence, fraud, and
promissory estoppel “rest on Toll’s representations as to its intent to clear the silt
from Tolstyga’s pond once the development was complete.” We held that those
representations were made during the negotiation of a disputed claim and were
inadmissible under Rule 408. Because any reliance by Tolstyga on statements made
during the negotiation process was unjustified and unreasonable, the trial court did
not err by granting summary judgment as to Tolstyga’s claims for negligence, fraud,
and promissory estoppel. See Ortiz, 335 S.W.3d at 422. We overrule Tolstyga’s third
issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: January 25, 2024
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