## In the Court of Appeals Second Appellate District of Texa s at Fort Worth

___________________________ No. 02

- 23

- 00119

- CV

___________________________

On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352 -3 18611

- 20

Before Womack, Wallach, and Walke r, JJ. Memorandum Opinion by Justice Wallach 

### P AUL 

### T OLSTYGA 

### , Ap pellant

V



### . T OLL 

### B ROS 

### ., I NC



### . AND 

### T OLL 

### D A LLAS 

### TX, LLC , Appellees2 MEMORANDUM OPINION After sustaining Appellee s Toll Brothers , Inc. and Toll Dallas T X, LLC ’ s ( collectively Toll) objections to Appellant Pau l Tolstyga ’ s summary judgmen t evidence, the trial cou rt 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 E xhibits A

- 1 through A

- 4 a nd by granting
To ll ’ s mot ion for summary ju dgment. We aff irm.
I. B ACKGROUND This dispute began around 2007 w ith the development of a residential
subdivision know n as The Reserve

. To lstyga owns property neig hboring The Reserve and has made rep eated claims of damage to his property , inc luding a pond located on h is pro perty, as a result of the devel opment. Tolstyga ’ s c omplaints have resulted in multiple lawsuits and settlement agreements.
A. Tol styga – RP25
RP25 was the original devel oper of T he Reserve. Tolstyga made repeated complaints to RP25 about an increase d volume and rate of storm water runoff from
The Reserve and the resulting damage to his property. On October 15, 2007, Tolstyga
and RP 25 reached a settl ement a greement concerning Tolst yga ’ 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, a ctions, causes of action, or claims relating to matters that occurred prior to the date of the settlement3 agree ment
. Tolstyga claimed th at excessive water and silt continued to inundate his pond. He asserted causes of action for v iolation of the Texas W ater C ode, as well as

n uisance , trespass, negli gence, an d breach of contra ct. The parties reached a second settlement agreement on December 21, 2009. I n that agreement Tolstyga agreed to release RP 25 and its “ successors and assig ns ” from all claims, demands, lia bilities, suits, causes o f action, rights o r damages

. . . . , whether known or unknown and whether fixed or contingent that Tolstyga has now or m ay have based upon or arising out of or related to any act, fact, conduct or omission, contract , agreement, obligatio n, representation, state men t, warranty, occur rence, event or other matter alleged or which might have been alleged in the Lawsuit, includi n g but not limited to all Claims based on or which might have been based on, arising o ut of, or related to the Devel opme nt, the Property, the Pon ds, and the matters re lated in the Lawsuit.
As a result of the second settlement agreement, Tols t yga dismissed his suit against
RP25.
B. Tolstyga

– Toll Toll pur cha sed The Reserve from RP25 on A p ril 16, 2010. Shortly after , o n May 23, 2010, Tolstyga contacted an attorney representing Toll and express ed his ongoing concerns with The Reserve , including excess wa ter and silt on his property. On August 20, 2010, Tolstyga contacted Tom Murray, Grou p President of Toll,
aski ng what his intent ions w ere to help with Tolstyga ’ s complaints. There were multiple exchanges between the attorneys for Tolstyga and Toll dis cussing T olstyga ’ s

concer ns and Toll ’ s position with regard to those concern s .4 On O ctober 13, 2010, Tolstyg a ’ 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 th e entire pond , including silt RP25 failed to remove ; reimbursement of eng in eer and attorney fees and the cost of fabric to stop the
sediment ; and a flood st ud y . Despite the ongoing discussions between the attorneys, Tolstyga contacted Murray directly and a s ked what Toll ’ s intentions w ere c oncerning his damages. In respo ns e, Murray stated t hat Tol l ’ s intentions h ad not changed and
that RP25 was the one who had damaged Tolstyga ’s pond

. Murray noted that Toll

t ypica lly removes any additional silt from developm e nt after the completion of the
devel opment
. Mu rr ay stated that the atto rn eys for both par ties had discussed reasonable measures and encouraged Tols t yga to have his atto rney w ork with Toll ’s
attorney on a solution. Despite ongoing negoti ations, Toll and To l s tyga never reached a settlement agre em en t.
C. Tolstyga

– Shan n on Nave and Baird, Hampton & Brown, Inc.
Prior to negoti ations with Toll, Tolstyga had a pr eliminary evaluation from an engineering firm that found that as a result of The Reserve develop ment , there were
greater stor m water discharge rates o n Tolstyga ’ s p ropert y that could raise water
surface elevatio ns. Tols t yga ’ s atto rney thought it would be helpful in negoti ations with
Toll to do another drainage stu dy to presumably show the same results. T o lstyga hired
Shan no n Nave , a princip al wit h Baird, Hamp ton & Brown , Inc., to conduct the stu dy , and Tolstyga’s attorney told Na ve the ultimate goal of the stu dy

. Nave completed the5 study in August 2013 and concluded , however, that The Reserve ’ s detention p ond would provide a lower pe ak dis char ge rate at Tolstyga ’ s property than was experienced prior to the devel opment and that the water s ur face on Tolstyga ’ s property would not increase

. According to Tolstyga, the new study was not helpful to
him and h elpe d validate Toll ’ s pos ition. After the Nave st udy, negotiations between Tolstyga a nd Toll e nded.
In 2017, Tolstyga employed another engineering firm to review Nave ’ s resul ts. That study dispu ted the findings of Nave and a greed with the prior study tha t The
R e serve Devel opment re sulted 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 fraudul ent mis repre sentation

. Tolstyga complained that as a resu lt of the N ave study, Toll r efused 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 negotiati ng. The trial court granted N ave and Baird , Hampton & Brown’s motion f o r summary judgment based upon the statute of
limitations.
D. Tols tyga – The R eserve HOA and Toll On August 12, 2020, Tolstyga filed suit against T he Reserve at Colley ville
Res i dential Community, Inc. ( The Reserve H OA) and RTI Community Man agement Associ a t es , Inc. (RTI) alleging causes of action for nuisance, trespass, negligence , and gross negligence

. Tolstyga again sought relief for damages to his property caused by6 t he excess water from The Reserve. Tolstyga later amended his pleadings to add Toll

as a d efendant and added causes of action against Toll for fraud, breach of contra ct, and promissory estoppel

. The trial court signed an Order of Non

- S uit W i thout Prejudice as to the claims against The Reserve HOA a nd RTI

. The trial court further signed an Ord e r of Partial
No n

- S u it Without Prejudice a s to Tolstyga ’ s c laims against Toll for nuisance, trespass,
violations of the Texas Water C ode , 1 and breach of contract

. E. Toll ’ s Summary Judgm ent Prior to Tolstyga filing his notic e of non

- suit for his claims a ga i n st The Reserve
HOA a nd RTI and the partial non

- suit of certain claims against Toll, Toll filed a
traditional motion for s ummar y judgment. A fter the non

- suit, the remaining causes of action against Toll were negligence, gross negligence, fraud, and prom is s o ry estoppel.
As relevant to the r emaining causes of action, Toll argued that it was entitled to summary judg ment because , as RP25 ’ s “ succe ssor and assig n , ” T olstyga released hi s cl aims in the sec ond settle ment agreement
. Toll further argued that the cla i m s for promissory estoppel and fraud also fail because there was no promise or material representation by T oll o n which Tolstyga reasonab l y relied

. Tolstyga filed a respons e in which he argued that because his clai ms are based upon misreprese n tations mad e b y Toll , the release provision from the second settlement agreement does not apply to

1 We note that Tolstyga ’ s amended pe tition does not alle ge a cause of action against T oll for vio la tions of the Tex as Wate r Code.7 his claims

. Tol styga included as s ummar y judgme nt evidence his own affi davit , emails
from M urr ay 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 Tols tyga ’ s summary judgment evidence , arguing that
T olstyga ’ s affidavit violated Ru le 408 of the Texas Rules of Evidence ; contained conclusory, inaccurat e, and misleading statements ; and violated the Sham Affidavit
Rule . T he t rial court susta ined Toll ’ s objections and struck the offending p arts of Tolstyga ’ s affidavit as well as the emails and letters. After a hearing, the trial c ourt granted Toll ’ s motion f or summary judgment and ordered that Tolstyga take nothing
b y his alleged claims.
II. I SSUES AND S TANDARD S 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 tha t the trial court erred by striki ng hi s evidence of Toll ’ s prom ises pursuant to R u le 408 of the Texas R u les of
Evidence . In his third issue, he contends that the trial court erred by granting Toll ’ s

m otion for summary judgment because there wa s a m aterial fact issue regarding his
claims f or pr omissory estoppel, negligence, and fra ud.
We review a trial court ’ s decision to exclude summary

- judg ment evidence for
an abuse of discretion. Hobson v. Francis , No. 02 -18-00180- CV, 2019 WL 2635562, at
*6 (Tex. Ap p.

— 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.8 Cimarron Hydrocarbons C orp. , 98 S.W.3d 682, 687 (Tex. 2002). An app ellat e court must uphold a tri al 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, 11 9 (Tex. 1999) (op. on reh ’ g)

. We review a su mma ry judgment de novo. Travelers Ins. v. Joachim , 315 S.W.3d 860, 863 (Te x. 2010). We consider the evidence presente d in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregardin g evidence contrary to the nonmovant unless re asona ble jurors
could not. Man n Frankfort S tein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844,
848 (Tex. 2009). We indulge every reasonable inference and resolve a ny doubts in the

nonmovant ’ s favor. 20801, In c. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008 ). If a trial

court ’ s order do es not specify the grounds upon which it gr anted summary judgment , we must affirm if any of the theories presented to the trial court and preserved for appeal are meritorious. Prov id

ent Life & Acc. Ins. Co. v. Knott , 128 S.W.3 d 211 , 216 (Tex. 2003).
III. A NALYSIS A. Exclusion of Tolstyga ’ s Affidavit and Exhibits
The trial court ’s order excluding the offending port ions of Tolstyga ’s affidavit
and exhibits does not state the basis for t he exclusion. We must uphold the ru ling if there is any legitimat e basis in th e record to support it. Drilex Sys., Inc. , 1 S.W.3d at
119

. We will first address Tolstyga ’s second issue.9 Rule 408 provides: (a) Prohibited Uses. Evidence of the following is no t admissible either to prove or d ispro ve the validity or amount of a dispute d claim: (1) furnishing, promising, or offering

— or accepting, p romising to accept, or offering to accept —a valuable consideration in compromising or attempting to comprom ise t he claim ; and (2) conduct or stateme nts made during compromise neg otiations abo ut 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 conte ntion o f undue delay, or proving an effor t to obstruct a criminal investigation or prosecution.
T ex. R. Evid. 408.
The record show s, and T olstyga does not dispute, that the parties were involved in settlement negotiations at the time of the communication s inclu d ed in Tolstyga ’ s summary jud gment evidence . Tolstyga conte nds , however, that Rule 408 is
not app licab le because the communications were not made to prove the validity of
any claim that wa s in dispute

. We disagree. Tolstyga made demands to avoid lit igation that included cleaning up hi s pon d. After making those demands and while the parties we re ne gotiating a settlement, Tolstyga sent a n email to Murray asking what To ll ’ s intentions were as far as his damages were concerned. Murray responded by statin g that t hey measur ed the pond
before closing on th e property an d that , after the completion of the develop me nt , they would measure again and remove any additional silt

. In an other communication,10 Toll ’ s attorney stated, “ Toll ha s con sistently ack nowledged i t s obli g atio n to clean Mr. Tolstyga ’ s pond and, in fact, has been negotiating toward that end for approximately
two years. ” Tolstyga con tends that these communications show that there was no dispute that Toll represent ed it would clean up his pond.
The co mmu ni ca t ions do not establish that there was no dispute between the parties as to make R u le 408 inapplicable

. Rather, the communications show that as part of an ongoing dispute, Toll was attempting to negotiate a solut ion

. Murray state d
that it was Toll ’s “in te nt i on to be a good neighbor ” and encourage d 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 expresse d as part of the

n egotiation t o settle th e disp ut e . We hold that the communications were made during negoti ations of a disputed claim and were inadmissible under Rule 408

. Because the parties were negotiating in an adversarial context, a ny reliance by Tols tyga on statements made during the negoti at ion process was unjustified and unreasonable.
Orti z v. Collins , 203 S.W.3d 414, 422 (Tex. App.

— Houston [1 4th Dist.] 2006, pet

. denied). The trial court did not abuse its discretion in excluding portions of Tolstyg a ’ s

a ffidavit relying on state ments made du ring settle m ent negotiations and the

ac companying exhibits . We overrule Tolstyga ’ s second issue. Because we find that the
trial court did not ab use its discretion in excluding the offending port ions of Tolstyga ’ s affid avit under R u le 408, we n eed not add re ss T olstyga ’ s first issue that the11 trial court erred by excluding po rtions of his affidavit as a sham affidavit. See Tex. R. App. 47 .1

. B. S u mmary Judgment Tolstyga acknowledges that his remaining claims for neg ligen ce, fraud, and promissory estoppel “ re st o n Toll ’ s representations as to i ts intent to clear the silt from Tolstyga ’ s pond once the devel opment was complete. ” We held that those representations were made du ring the negotiation of a d isput ed claim and were
inadmis sible under R ule 408

. Because any r eliance 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 ne glige nce, fraud, and promissor y estoppe l. S ee Orti z

, 335 S.W.3d a t 422. W e overrule Tolstyg a ’ s third
issu e. IV. CONCLUSION
We affirm the trial court ’ s jud gment.

/s/ Mike Wallach M ike Wallach Justice
Delivered: January 25, 2024