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CAUSE NO. 2016-49657
LESLIE RENE GUEST and IN THE DISTRICT COURT
WALTER J. PARKER,
Plaintiffs,
vs. JUDICIAL DISTRICT
CARL RAY MARBURGER,
GREGORY GLEN MARBURGER, and §
THE UNKNOWN HEIRS OF VICK §
JOHN MARBURGER,
Defendants OF HARRIS COUNTY, TEXAS
PLAINTIFFS FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF THIS COURT:
COME NOW, Plaintiffs, LESLIE RENE GUEST and WALTER J. PARKER (collectively,
Plaintiffs”), and file Plaintiffs’ First Amended Petition. In support thereof, Plaintiffs respectfully
show the following unto the Court.
ISCOVERY EVEL
Pursuant to RULE 190 of the TEXAS ULES OF IVIL ROCEDURE, Plaintiffs intend that
discovery in this case be conducted under Discovery Control Plan Level 2.
TRCP ULE LAIM
Plaintiffs further allege that they are seeking monetary relief of $100,000.00 or less and
nonmonetary relief pursuant to RULE 47(c)(2) of the TEXAS ULES OF IVIL ROCEDURE.
I.
ARTIES
Plaintiff, LESLIE RENE GUEST, is an individual residing in Harris County, Texas.
Plaintiff, WALTER J. PARKER, is an individual residing in Harris County, Texas.
Page 1 of
5. Defendant, CARL RAY MARBURGER, is an individual residing in Harris County, Texas,
and he has already been served with citation and filed an answer herein.
6. Defendant, GLEN GREG MARBURGER, is an individual residing in Harris County,
Texas, and he has already been served with citation and filed an answer herein.
7. Defendants, THE UNKNOWN HEIRS OF VICK JOHN MARBURGER, if Vick John
Marburger had heirs-at-law who have or had an interest in the real property that is the
subject of this lawsuit, but whose identity and whereabouts are unknown, in accordance
with Section 17.004 of the Texas Civil Practice and Remedies Code. An attorney’ ad litem
has previously been appointed by this Court to represent such Defendants’ interests.
IV.
JURISDICTION AND VENUE
8. The Court has jurisdiction over the parties to this lawsuit because all parties reside in Texas
and/or conduct business in Texas, and the amount of damages in controversy is within this
Court’s jurisdictional limits.
9. Venue in Harris County is proper in this cause under SECTION 15.011 of the TEXAS CIVIL
PRACTICE AND REMEDIES CODE because this is an action arising out of a dispute regarding
real property located in Harris County, Texas.
V.
FACTS
10. Plaintiffs, LESLIE RENE GUEST and WALTER J. PARKER, are the fee simple owners
of an undivided One-Third (1/3) interest in and to that certain parcel of real property and
the improvements thereon located at 1302 Forest Cove Drive, Humble, Harris County,
Texas 77339 (the “Subject Property”), which is more particularly described as:
Lot one (1), Block Twelve (12), Forest Cove, Section Three (3), U/R; being
the same tract of land described in that certain Special Warranty Deed from
Brett Douglass Russell, as Independent Executor of the Estate of Nancy L.
Plaintiff’s First Amended Petition Page 2 of 16
Marburger, Deceased, to Vick John Marburger, et al., dated June 13, 2005
and recorded in Clerk’s File No. Y662702 in the Real Property Records of
Harris County, Texas; and being the same tract of land described in that
certain Warranty Deed from Gregory Glen Marburger to Leslie Rene Guest,
dated December 18, 2012 and recorded in Clerk’s File No. 20120587851 in
the Real Property Records of Harris County, Texas.
11. CHAPTER 23 of the TEXAS PROPERTY CODE permits joint owners of real property to seek
partition of the property. Specifically, SECTION 23.001 of the TEXAS PROPERTY CODE
states:
A joint owner or claimant of real property or an interest in real property or
a joint owner of personal property may compel a partition of the interest or
the property among the joint owners or claimants under this chapter and
[RULE 756 et seq. of] the TEXAS RULES OF CIVIL PROCEDURE.
12. Plaintiffs filed this lawsuit seeking to partition and sell the Subject Property pursuant to
CHAPTER 23 of the TEXAS PROPERTY CODE and Rule 756 et seq. of the TEXAS RULES OF
CIVIL PROCEDURE.
13. Plaintiffs have paid ad valorem taxes, insurance, and maintenance on the Subject Property
since December 18, 2012.
The Estate of Nancy L. Marburger
14. Although fee simple ownership interests of the Subject Property are presently divided
among Plaintiffs and Defendants, Glen Greg Marburger and Carl Ray Marburger, the
Subject Property was previously owned solely by the Defendants’ mother, Nancy L.
Marburger, as recently as 2005.
15. Nancy L. Marburger passed away on or about February 11, 2005, while domiciled in
Humble, Harris County, Texas.
16. On February 18, 2005, an Application to Probate the Will of Nancy L. Marburger and
Issuance on Letters Testamentary was filed in Cause No. 353757 in Probate Court No. Two
(2), Harris County, Texas.
Plaintiff’s First Amended Petition Page 3 of 16
17. One March 9, 2005, the Probate Court entered an order admitting the Will of Nancy L.
Marburger to probate and appointing Brett Douglas Russell as the Independent Executor
of her estate.
18. Nancy L. Marburger, by and through her Will, devised and bequeathed all of her real,
personal, and mixed property, including the Subject Property, to the following individuals
(collectively, the “Heirs of Nancy L. Marburger”) in equal One-Quarter (1/4) shares:
(1) Brett Douglas Russell, as Trustee of the Carl Ray Marburger Trust;
(2) Vick John Marburger;
(3) Glen Greg Marburger; and
(4) Mary Frances Marburger Gannon.
19. On June 13, 2005, Brett Douglass Russell, as Independent Executor of the Estate of Nancy
L. Marburger, executed a Special Warranty Deed conveying all of Nancy L. Marburger’s
undivided fee simple interest in and to the Subject Property to and among the Heirs of
Nancy L. Marburger, in equal shares according to her Will. The Special Warranty Deed
was subsequently recorded in Clerk’s File No. Y662702 in the Real Property Records of
Harris County, Texas.
Chain of Title Since the Death of Nancy L. Marburger
20. The following flowchart1 is a visual representation of the chain of title from the death of
Nancy L. Marburger on February 11, 2005 until present:
1
A full-page copy of the chain of title flowchart has been attached to this petition as Exhibit “A.”
Plaintiff’s First Amended Petition Page 4 of 16
Conveyance from Mary Marburger Gannon to
the Remaining Heirs of Nancy L. Marburger
21. On June 28, 2005, Mary Marburger Gannon conveyed all of her One-Quarter (1/4) interest
in and to the Subject Property to the remaining Heirs of Nancy L. Marburger, being Vick
John Marburger, Glen Greg Marburger, and Brett Douglass Russell, as Trustee of the Carl
Ray Marburger Trust, in equal shares in that certain Special Warranty Deed recorded in
Clerk’s File No. Y662700 in the Real Property Records of Harris County, Texas.
22. Upon the conveyance by Mary Marburger Gannon, the grantees, Vick John Marburger,
Glen Greg Marburger, and the Carl Ray Marburger Trust each owned and undivided 1/3
interest in the Subject Property.
Death of Vick John Marburger and Intestate Distribution to
Defendants, Glen Greg Marburger and Carl Ray Marburger
23. On or about October 23, 2008, Vick John Marburger died intestate at Park Plaza Specialty
Hospital, 1313 Hermann Drive, Houston, Harris County, Texas 77004.
24. Under information and belief, Vick John Marburger’s sole heirs at law were Defendants,
Glen Greg Marburger, Carl Ray Marburger, and, if she was alive at the time of his death,
Mary Marburger Gannon.
Plaintiff’s First Amended Petition Page 5 of 16
25. The undivided One-Third (1/3) interest in and to the Subject Property owned by Vick John
Marburger was distributed through intestate succession to his heirs at law in equal shares.
26. Accordingly, upon the death of Vick John Marburger on October 23, 2008, the ownership
interests in and to the Subject Property were as follows:
(1) Defendant, Glen Greg Marburger owned a One-Third (1/3) interest;
(2) The Carl Ray Marburger Trust owned a One-Third (1/3) interest; and
(3) The heirs at law of Vick John Marburger owned a One-Third (1/3) interest, which
heirs may include Defendants, Glen Greg Marburger and Carl Ray Marburger,
individually.
Conveyance from Defendant, Glen Greg Marburger,
to Plaintiffs, Leslie Rene Guest and Walter J. Parker
27. On December 18, 2012, Defendant, Glen Greg Marburger, conveyed to Plaintiffs, Leslie
Rene Guest and Walter J. Parker, an undivided One-Third (1/3) interest in and to the
Subject Property in that certain Warranty Deed from Glen Greg Marburger to Leslie Rene
Guest, recorded in Clerk’s File No. 20120587851 in the Real Property Records of Harris
County, Texas.
28. Specifically, the deed describes the Subject Property as being “Lot One (1) Block Twelve
(12) Forest Cove Section Three (3), more commonly known as 1312 Forest Cove Dr.
Humble, Harris County, Texas 77339” and describes the conveyance to Plaintiffs as being
“1/3 one third of said property.”
29. At the time of the conveyance, Plaintiffs, Leslie Rene Guest and Walter J. Parker, were
married. Pursuant to SECTION 3.003 of the TEXAS FAMILY CODE, the One-Third (1/3)
interest in the Subject Property acquired by Leslie Rene Guest is presumed to be
community property.
Plaintiff’s First Amended Petition Page 6 of 16
30. The Plaintiffs’ interest in the Subject Property was purchased with community property
funds and was not acquired by gift, devise, descent, or as recovery for personal injury.
31. If Defendant, Glen Greg Marburger, was an heir at law of Vick John Marburger, he
presently owns an interest in the Subject Property in addition to the One-Third (1/3) interest
that was conveyed to Plaintiffs.
Dissolution of the Carl Ray Marburger Trust
32. On December 29, 2012, Brett Douglas Russell, Trustee of the Carl Ray Marburger Trust,
created under the Will of Nancy L. Marburger, terminated the trust according to its terms.
33. On that date, Brett Douglas Russell, as Trustee for the trust, conveyed all of the One-Third
(1/3) interest in the Subject Property held by the trust to its sole beneficiary, Carl Ray
Marburger, in that certain Deed Without Warranty recorded in Clerk’s File No.
20130005502 in the Real Property Records of Harris County, Texas.
Carl Ray Marburger’s Dispute of Plaintiffs’ Ownership of the Subject Property
and Eviction of Plaintiff Leslie Rene Guest from Her Home
34. In February 2011, Plaintiff, Leslie Rene Guest moved into the home on the Subject
Property.
35. The home was in need of numerous extensive repairs that took Leslie Rene Guest
approximately one (1) year to complete.
36. Plaintiffs, Leslie Rene Guest and Walter J. Parker, paid approximately $45,000.00 in
delinquent taxes and other debts to save the Subject Property from foreclosure.
37. Plaintiffs also paid out-of-pocket costs of at least $12,580.58 to make significant value-add
improvements to the home on the Subject Property.
38. Plaintiffs also furnished the home with personal property worth at least $37,240.74 for the
purpose of using the Subject Property as their homestead residence.
Plaintiff’s First Amended Petition Page 7 of 16
39. Upon the Defendant, Carl Ray Marburger’s, release from prison in 2013, he began a
campaign of harassment and threats of physical violence towards Plaintiffs, Leslie Rene
Guest and Walter J. Parker.
40. On February 1, 2016, Defendant, Carl Ray Marburger filed a forcible detainer lawsuit
against Plaintiff, Leslie Rene Guest, to evict her from the home on the Subject Property in
Cause No. EV42C5090296 in the Justice Court of Harris County, Texas, Precinct Four (4),
Place Two (2).
41. Plaintiff, Leslie Rene Guest, was unable to timely respond to the prompt eviction
proceedings, resulting in the Court granting a default judgment without a hearing on the
merits of the case on March 1, 2016 and subsequently a writ of possession on April 7, 2016.
42. Before Plaintiffs had the opportunity to remove their personal property from the residence,
Defendant, Carl Ray Marburger, took possession and control of the Subject Property and
all of Plaintiffs’ personal property therein.
43. Defendant, Carl Ray Marburger, converted, sold, and transferred at least $37,240.74 worth
of personal property of Leslie Rene Guest and Walter J. Parker without notice and
proceeded to exclude them from the Subject Property, of which they are owners and
tenants-in-common.
VI.
CAUSES OF ACTION
Declaratory Judgment
44. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
Plaintiff’s First Amended Petition Page 8 of 16
45. In addition to and/or in the alternative to any other cause of action, Plaintiffs seek a
declaratory judgment under SECTION 37.001 of the TEXAS CIVIL PRACTICE AND REMEDIES
CODE against Carl Ray Marburger, as detailed below.
46. If Mary Marburger Gannon inherited from Vick John Marburger, Plaintiffs seek a
judgment declaring that Plaintiffs, Leslie Rene Guest and Walter J. Parker, own an
undivided One-Third (1/3) interest in the Subject Property.
Suit to Quiet Title
47. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
48. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a cause
of action against Defendants to quiet title to the Subject Property.
49. Leslie Rene Guest and Walter J. Parker own an undivided One-Third (1/3) interest in the
Subject Property.
50. Carl Ray Marburger and Glen Greg Marburger’s claim to be the only recorded owners of
the Subject Property has placed a cloud upon the title to the Subject Property, which was
subject to Plaintiffs’ possession.
51. Plaintiffs are entitled to have the cloud upon their title to the Subject Property removed.
Judicial Partition
52. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
53. In addition to and/or in the alternative to any other cause of action, Plaintiffs seek a judicial
partition of the Subject Property pursuant to SECTION 23.001 of the TEXAS PROPERTY CODE
and RULE 770 of the TEXAS RULES OF CIVIL PROCEDURE.
54. Plaintiffs own an undivided One-Third (1/3) fee-simple interest in the Subject Property.
Plaintiff’s First Amended Petition Page 9 of 16
55. Plaintiffs are entitled to partition the Subject Property as an owner of an undivided One-
Third (1/3) fee-simple interest in the Subject Property.
56. The Subject Property cannot be equitably partitioned in kind; therefore, the Subject
Property must be sold and the proceeds divided between Plaintiffs and Defendants, Glen
Greg Marburger and Carl Ray Marburger, in proportion to their respective ownership
interests in the Subject Property.
Contribution by Co-Tenants for Maintenance and Repairs
57. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
58. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a cause
of action against Defendants seeking contribution for maintenance and repairs to the
Subject Property.
59. “[A] person who in good faith makes improvements upon property owned by another is
entitled to compensation therefore.” Wagner & Brown, Ltd v. Sheppard, 282 S.W.3d 419,
425 (Tex. 2008); Stephenson v. Luttrell, 107 Tex. 320, 179 S.W. 260, 262 (Tex. 1915);
Sharp v. Stacy, 535 S.W.2d 345, 351 (Tex. 1976); see also Resolution Trust Corp. v. Kemp,
951 F.2d 657, 665 (5th Cir. 1992). “The law implies a contract between him and his
cotenant, authorizing him to spend for him the money which was necessarily spent.” Id.
60. “Because the care, maintenance, upkeep, and preservation of the property rests upon the
owners collectively, a co-tenant in real property, who incurs certain necessary expenses in
the actual preservation of that property and the valuation thereof, is entitled to
reimbursement from the other co-tenant.” Ramos v. Unknown Heirs of Tomasa Gonzalez,
2016 Tex. App. LEXIS 4327, *9-10 (Tex. App. – San Antonio 2016) (citing Poenisch v.
Plaintiff’s First Amended Petition Page 10 of 16
Quarnstrom, 386 S.W.2d 594, 597-98 (Tex. Civ. App. – San Antonio 1965, writ ref’d
n.r.e)); Gonzalez, 552 S.W.2d 175, 181 (Tex. Civ. App. – Corpus Christi 1997, writ ref’d
n.r.e.) (Mem. Op.).
61. Plaintiffs have maintained the Property, including basic repairs to the property which cost
them at least $12,580.58, and Defendants’ 2/3 share of said maintenance is $8,387.05.
62. Plaintiffs made demand more than thirty (30) days prior to filing this claim, and Plaintiffs’
attorneys’ fees are reasonable and customary and were necessarily incurred.
63. On Plaintiffs’ claim for contribution for maintenance and repairs against Defendants,
Plaintiffs seek to recover the following:
(1) actual damages;
(2) reasonable and necessary attorneys’ fees; and
(3) court costs;
Conversion
64. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
65. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a cause
of action against Defendants for conversion.
66. Plaintiffs owned, possessed, or had the right to immediate possession of personal property.
67. Defendants wrongfully exercised dominion or control over the property, causing injury to
Plaintiffs.
68. On Plaintiffs’ conversion cause of action against Defendants, Plaintiffs seek to recover the
following:
Plaintiff’s First Amended Petition Page 11 of 16
(1) actual damages, which specifically includes loss of value and lost profits;
(2) exemplary damages;
(3) pre- and post-judgment interest pursuant to SECTIONS 302.002 and 304.003 of the
TEXAS FINANCE CODE; and
(4) court costs;
Texas Theft Liability Act
69. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
70. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a claim
against Defendants under the THEFT LIABILITY ACT, TEXAS CIVIL PRACTICE AND
REMEDIES CODE §§ 134.001-134.005.
71. Plaintiffs had a possessory right to both real and personal property which Defendants
unlawfully appropriated, secured, or stole without Plaintiffs’ effective consent.
72. Defendants’ unlawful taking was made with the intent to deprive Plaintiffs of the property,
and Plaintiffs sustained damages as a result.
73. On Plaintiffs’ conversion THEFT LIABILITY ACT claim against Defendants, Plaintiffs seek
to recover the following:
(1) actual damages;
(2) exemplary damages;
(3) pre- and post-judgment interest pursuant to SECTIONS 302.002 and 304.003 of the
TEXAS FINANCE CODE;
(4) reasonable and necessary attorney’s fees pursuant to SECTION 134.005(b) of the
TEXAS CIVIL PRACTICE AND REMEDIES CODE; and
(5) court costs;
Plaintiff’s First Amended Petition Page 12 of 16
Unjust Enrichment
74. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
75. In addition to and/or in the alternative to any other cause of action, Plaintiffs seek to recover
damages from Defendants for unjust enrichment.
76. Plaintiffs seek to recover damages for the value of improvements to the Subject Property
provided to Defendants because Defendants obtained the benefit from Plaintiff by fraud,
duress, or taking an undue advantage. The value of the improvements to the Subject
Property provided by Plaintiffs is at least $12,580.58, and Defendants’ 2/3 share of that
amount, which Plaintiffs seek to recover herein, is $8,387.05.
77. Additionally, Plaintiffs seek to recover damages for the value of personal property in the
amount of at least $37,240.74, which personal property was unlawfully appropriated by
Defendants because Defendants obtained the benefit from Plaintiffs by fraud, duress, or
taking an undue advantage.
78. Further, Plaintiffs seek reimbursement of the reasonable rental value of the Subject
Property, which Defendants unlawfully appropriated from Plaintiffs by fraud, duress, or
taking an undue advantage. Plaintiffs estimate the reasonable rental value of the Subject
Property to be $2,200.00 per month and the total value of lost rent since Plaintiffs were
wrongfully evicted from the Subject Property to be $33,000.00 as of July 2017. Plaintiffs
seek to recover Plaintiffs’ 1/3 share of the reasonable rental value of the Subject Property
as of the date of final judgment in this matter, which proportionate amount is $11,000.00
as of July 2017.
Plaintiff’s First Amended Petition Page 13 of 16
Interest
79. Plaintiffs seek pre-judgment interest on actual damages and post-judgment interest on all
sums awarded in the final judgment at the maximum rate allowable by Texas law.
Attorneys’ Fees
80. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though
fully set forth herein.
81. Plaintiffs have been forced to employ the undersigned attorneys to represent them in the
filing of this lawsuit.
82. Pursuant to SECTIONS 37.009 and 134.005(b) of the TEXAS CIVIL PRACTICE AND REMEDIES
CODE, Plaintiffs seek reasonable and necessary attorneys’ fees for the preparation, filing,
and prosecution of this suit, including all reasonable and necessary attorneys’ fees for any
subsequent appeal.
83. In the alternative, Plaintiffs seek reasonable and necessary attorneys’ fees under principles
of equity.
VII.
CONDITIONS PRECEDENT
84. All conditions precedent have been performed or have occurred as required by RULE 54 of
the TEXAS RULES OF CIVIL PROCEDURE.
VIII.
DESIGNATION OF EXPERTS
85. Pursuant to RULE 166b of the TEXAS RULES OF CIVIL PROCEDURE, Plaintiffs hereby
designate the undersigned attorneys, Richard D. Weaver and James H. Foley, as their
experts to testify as to reasonable and necessary attorneys’ fees incurred by Plaintiffs in the
preparation, discovery, and trial of this suit. Plaintiffs also designates any other counsel
associated with the undersigned law firm who may be handling this suit at the time of trial
Plaintiff’s First Amended Petition Page 14 of 16
as its expert on the issue of reasonable and necessary attorneys’ fees incurred by Plaintiffs
in this lawsuit.
IX.
DEMAND FOR JURY TRIAL
86. Plaintiffs demand a trial by jury.
X.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, LESLIE RRENE GUEST and
WALTER J. PARKER, respectfully request that this Court enter a judgment for Plaintiffs against
Defendants, CARL RAY MARBURGER, GLEN GREG MARBURGER, and THE UNKNOWN
HEIRS OF VICK JOHN MARBURGER, awarding damages and all requests for relief herein,
including a declaratory judgment, pre-judgment and post-judgment interest on all sums awarded
as allowed by Texas law, reasonable and necessary attorney’s fees, and for such other and further
relief, both general and special, at law or in equity, to which Plaintiffs may show themselves to be
justly entitled.
Respectfully submitted,
THE WEAVER LAW FIRM
/s/ Richard D. Weaver
Richard D. Weaver
Texas Bar No. 24047083
rweaver@weaverlawyers.com
James Hamilton Foley
Texas Bar No. 24059764
jfoley@weaverlawyers.com
1800 Bering Drive, Suite 1050
Houston, Texas 77057
(713) 572-4900 (Telephone)
(713) 513-5566 (Facsimile)
ATTORNEYS FOR PLAINTIFFS,
LESLIE RENE GUEST and
WALTER J. PARKER
Plaintiff’s First Amended Petition Page 15 of 16
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded to all interested
parties by service on their attorneys of record in accordance with the Texas Rules of Civil
Procedure on this 30th day of June 2017, as follows:
Ernie Garcia Via E-mail: ernie.garcia@attorneyeg.com
7457 Harwin Drive, Suite 345
Houston, Texas 77036
Famose Garner Via E-mail: famosegarner@gmail.com
6201 Bonhomme Road, Suite 354-N
Houston, Texas 77036
/s/ Richard D. Weaver
Plaintiff’s First Amended Petition Page 16 of 16
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CAUSE NO. 2016-49657 LESLIE RENE GUEST and IN THE DISTRICT COURT WALTER J. PARKER, Plaintiffs, vs. JUDICIAL DISTRICT CARL RAY MARBURGER, GREGORY GLEN MARBURGER, and § THE UNKNOWN HEIRS OF VICK § JOHN MARBURGER, Defendants OF HARRIS COUNTY, TEXAS PLAINTIFFS FIRST AMENDED PETITION TO THE HONORABLE JUDGE OF THIS COURT: COME NOW, Plaintiffs, LESLIE RENE GUEST and WALTER J. PARKER (collectively, Plaintiffs”), and file Plaintiffs’ First Amended Petition. In support thereof, Plaintiffs respectfully show the following unto the Court. ISCOVERY EVEL Pursuant to RULE 190 of the TEXAS ULES OF IVIL ROCEDURE, Plaintiffs intend that discovery in this case be conducted under Discovery Control Plan Level 2. TRCP ULE LAIM Plaintiffs further allege that they are seeking monetary relief of $100,000.00 or less and nonmonetary relief pursuant to RULE 47(c)(2) of the TEXAS ULES OF IVIL ROCEDURE. I. ARTIES Plaintiff, LESLIE RENE GUEST, is an individual residing in Harris County, Texas. Plaintiff, WALTER J. PARKER, is an individual residing in Harris County, Texas. Page 1 of 5. Defendant, CARL RAY MARBURGER, is an individual residing in Harris County, Texas, and he has already been served with citation and filed an answer herein. 6. Defendant, GLEN GREG MARBURGER, is an individual residing in Harris County, Texas, and he has already been served with citation and filed an answer herein. 7. Defendants, THE UNKNOWN HEIRS OF VICK JOHN MARBURGER, if Vick John Marburger had heirs-at-law who have or had an interest in the real property that is the subject of this lawsuit, but whose identity and whereabouts are unknown, in accordance with Section 17.004 of the Texas Civil Practice and Remedies Code. An attorney’ ad litem has previously been appointed by this Court to represent such Defendants’ interests. IV. JURISDICTION AND VENUE 8. The Court has jurisdiction over the parties to this lawsuit because all parties reside in Texas and/or conduct business in Texas, and the amount of damages in controversy is within this Court’s jurisdictional limits. 9. Venue in Harris County is proper in this cause under SECTION 15.011 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE because this is an action arising out of a dispute regarding real property located in Harris County, Texas. V. FACTS 10. Plaintiffs, LESLIE RENE GUEST and WALTER J. PARKER, are the fee simple owners of an undivided One-Third (1/3) interest in and to that certain parcel of real property and the improvements thereon located at 1302 Forest Cove Drive, Humble, Harris County, Texas 77339 (the “Subject Property”), which is more particularly described as: Lot one (1), Block Twelve (12), Forest Cove, Section Three (3), U/R; being the same tract of land described in that certain Special Warranty Deed from Brett Douglass Russell, as Independent Executor of the Estate of Nancy L. Plaintiff’s First Amended Petition Page 2 of 16 Marburger, Deceased, to Vick John Marburger, et al., dated June 13, 2005 and recorded in Clerk’s File No. Y662702 in the Real Property Records of Harris County, Texas; and being the same tract of land described in that certain Warranty Deed from Gregory Glen Marburger to Leslie Rene Guest, dated December 18, 2012 and recorded in Clerk’s File No. 20120587851 in the Real Property Records of Harris County, Texas. 11. CHAPTER 23 of the TEXAS PROPERTY CODE permits joint owners of real property to seek partition of the property. Specifically, SECTION 23.001 of the TEXAS PROPERTY CODE states: A joint owner or claimant of real property or an interest in real property or a joint owner of personal property may compel a partition of the interest or the property among the joint owners or claimants under this chapter and [RULE 756 et seq. of] the TEXAS RULES OF CIVIL PROCEDURE. 12. Plaintiffs filed this lawsuit seeking to partition and sell the Subject Property pursuant to CHAPTER 23 of the TEXAS PROPERTY CODE and Rule 756 et seq. of the TEXAS RULES OF CIVIL PROCEDURE. 13. Plaintiffs have paid ad valorem taxes, insurance, and maintenance on the Subject Property since December 18, 2012. The Estate of Nancy L. Marburger 14. Although fee simple ownership interests of the Subject Property are presently divided among Plaintiffs and Defendants, Glen Greg Marburger and Carl Ray Marburger, the Subject Property was previously owned solely by the Defendants’ mother, Nancy L. Marburger, as recently as 2005. 15. Nancy L. Marburger passed away on or about February 11, 2005, while domiciled in Humble, Harris County, Texas. 16. On February 18, 2005, an Application to Probate the Will of Nancy L. Marburger and Issuance on Letters Testamentary was filed in Cause No. 353757 in Probate Court No. Two (2), Harris County, Texas. Plaintiff’s First Amended Petition Page 3 of 16 17. One March 9, 2005, the Probate Court entered an order admitting the Will of Nancy L. Marburger to probate and appointing Brett Douglas Russell as the Independent Executor of her estate. 18. Nancy L. Marburger, by and through her Will, devised and bequeathed all of her real, personal, and mixed property, including the Subject Property, to the following individuals (collectively, the “Heirs of Nancy L. Marburger”) in equal One-Quarter (1/4) shares: (1) Brett Douglas Russell, as Trustee of the Carl Ray Marburger Trust; (2) Vick John Marburger; (3) Glen Greg Marburger; and (4) Mary Frances Marburger Gannon. 19. On June 13, 2005, Brett Douglass Russell, as Independent Executor of the Estate of Nancy L. Marburger, executed a Special Warranty Deed conveying all of Nancy L. Marburger’s undivided fee simple interest in and to the Subject Property to and among the Heirs of Nancy L. Marburger, in equal shares according to her Will. The Special Warranty Deed was subsequently recorded in Clerk’s File No. Y662702 in the Real Property Records of Harris County, Texas. Chain of Title Since the Death of Nancy L. Marburger 20. The following flowchart1 is a visual representation of the chain of title from the death of Nancy L. Marburger on February 11, 2005 until present: 1 A full-page copy of the chain of title flowchart has been attached to this petition as Exhibit “A.” Plaintiff’s First Amended Petition Page 4 of 16 Conveyance from Mary Marburger Gannon to the Remaining Heirs of Nancy L. Marburger 21. On June 28, 2005, Mary Marburger Gannon conveyed all of her One-Quarter (1/4) interest in and to the Subject Property to the remaining Heirs of Nancy L. Marburger, being Vick John Marburger, Glen Greg Marburger, and Brett Douglass Russell, as Trustee of the Carl Ray Marburger Trust, in equal shares in that certain Special Warranty Deed recorded in Clerk’s File No. Y662700 in the Real Property Records of Harris County, Texas. 22. Upon the conveyance by Mary Marburger Gannon, the grantees, Vick John Marburger, Glen Greg Marburger, and the Carl Ray Marburger Trust each owned and undivided 1/3 interest in the Subject Property. Death of Vick John Marburger and Intestate Distribution to Defendants, Glen Greg Marburger and Carl Ray Marburger 23. On or about October 23, 2008, Vick John Marburger died intestate at Park Plaza Specialty Hospital, 1313 Hermann Drive, Houston, Harris County, Texas 77004. 24. Under information and belief, Vick John Marburger’s sole heirs at law were Defendants, Glen Greg Marburger, Carl Ray Marburger, and, if she was alive at the time of his death, Mary Marburger Gannon. Plaintiff’s First Amended Petition Page 5 of 16 25. The undivided One-Third (1/3) interest in and to the Subject Property owned by Vick John Marburger was distributed through intestate succession to his heirs at law in equal shares. 26. Accordingly, upon the death of Vick John Marburger on October 23, 2008, the ownership interests in and to the Subject Property were as follows: (1) Defendant, Glen Greg Marburger owned a One-Third (1/3) interest; (2) The Carl Ray Marburger Trust owned a One-Third (1/3) interest; and (3) The heirs at law of Vick John Marburger owned a One-Third (1/3) interest, which heirs may include Defendants, Glen Greg Marburger and Carl Ray Marburger, individually. Conveyance from Defendant, Glen Greg Marburger, to Plaintiffs, Leslie Rene Guest and Walter J. Parker 27. On December 18, 2012, Defendant, Glen Greg Marburger, conveyed to Plaintiffs, Leslie Rene Guest and Walter J. Parker, an undivided One-Third (1/3) interest in and to the Subject Property in that certain Warranty Deed from Glen Greg Marburger to Leslie Rene Guest, recorded in Clerk’s File No. 20120587851 in the Real Property Records of Harris County, Texas. 28. Specifically, the deed describes the Subject Property as being “Lot One (1) Block Twelve (12) Forest Cove Section Three (3), more commonly known as 1312 Forest Cove Dr. Humble, Harris County, Texas 77339” and describes the conveyance to Plaintiffs as being “1/3 one third of said property.” 29. At the time of the conveyance, Plaintiffs, Leslie Rene Guest and Walter J. Parker, were married. Pursuant to SECTION 3.003 of the TEXAS FAMILY CODE, the One-Third (1/3) interest in the Subject Property acquired by Leslie Rene Guest is presumed to be community property. Plaintiff’s First Amended Petition Page 6 of 16 30. The Plaintiffs’ interest in the Subject Property was purchased with community property funds and was not acquired by gift, devise, descent, or as recovery for personal injury. 31. If Defendant, Glen Greg Marburger, was an heir at law of Vick John Marburger, he presently owns an interest in the Subject Property in addition to the One-Third (1/3) interest that was conveyed to Plaintiffs. Dissolution of the Carl Ray Marburger Trust 32. On December 29, 2012, Brett Douglas Russell, Trustee of the Carl Ray Marburger Trust, created under the Will of Nancy L. Marburger, terminated the trust according to its terms. 33. On that date, Brett Douglas Russell, as Trustee for the trust, conveyed all of the One-Third (1/3) interest in the Subject Property held by the trust to its sole beneficiary, Carl Ray Marburger, in that certain Deed Without Warranty recorded in Clerk’s File No. 20130005502 in the Real Property Records of Harris County, Texas. Carl Ray Marburger’s Dispute of Plaintiffs’ Ownership of the Subject Property and Eviction of Plaintiff Leslie Rene Guest from Her Home 34. In February 2011, Plaintiff, Leslie Rene Guest moved into the home on the Subject Property. 35. The home was in need of numerous extensive repairs that took Leslie Rene Guest approximately one (1) year to complete. 36. Plaintiffs, Leslie Rene Guest and Walter J. Parker, paid approximately $45,000.00 in delinquent taxes and other debts to save the Subject Property from foreclosure. 37. Plaintiffs also paid out-of-pocket costs of at least $12,580.58 to make significant value-add improvements to the home on the Subject Property. 38. Plaintiffs also furnished the home with personal property worth at least $37,240.74 for the purpose of using the Subject Property as their homestead residence. Plaintiff’s First Amended Petition Page 7 of 16 39. Upon the Defendant, Carl Ray Marburger’s, release from prison in 2013, he began a campaign of harassment and threats of physical violence towards Plaintiffs, Leslie Rene Guest and Walter J. Parker. 40. On February 1, 2016, Defendant, Carl Ray Marburger filed a forcible detainer lawsuit against Plaintiff, Leslie Rene Guest, to evict her from the home on the Subject Property in Cause No. EV42C5090296 in the Justice Court of Harris County, Texas, Precinct Four (4), Place Two (2). 41. Plaintiff, Leslie Rene Guest, was unable to timely respond to the prompt eviction proceedings, resulting in the Court granting a default judgment without a hearing on the merits of the case on March 1, 2016 and subsequently a writ of possession on April 7, 2016. 42. Before Plaintiffs had the opportunity to remove their personal property from the residence, Defendant, Carl Ray Marburger, took possession and control of the Subject Property and all of Plaintiffs’ personal property therein. 43. Defendant, Carl Ray Marburger, converted, sold, and transferred at least $37,240.74 worth of personal property of Leslie Rene Guest and Walter J. Parker without notice and proceeded to exclude them from the Subject Property, of which they are owners and tenants-in-common. VI. CAUSES OF ACTION Declaratory Judgment 44. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. Plaintiff’s First Amended Petition Page 8 of 16 45. In addition to and/or in the alternative to any other cause of action, Plaintiffs seek a declaratory judgment under SECTION 37.001 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE against Carl Ray Marburger, as detailed below. 46. If Mary Marburger Gannon inherited from Vick John Marburger, Plaintiffs seek a judgment declaring that Plaintiffs, Leslie Rene Guest and Walter J. Parker, own an undivided One-Third (1/3) interest in the Subject Property. Suit to Quiet Title 47. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 48. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a cause of action against Defendants to quiet title to the Subject Property. 49. Leslie Rene Guest and Walter J. Parker own an undivided One-Third (1/3) interest in the Subject Property. 50. Carl Ray Marburger and Glen Greg Marburger’s claim to be the only recorded owners of the Subject Property has placed a cloud upon the title to the Subject Property, which was subject to Plaintiffs’ possession. 51. Plaintiffs are entitled to have the cloud upon their title to the Subject Property removed. Judicial Partition 52. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 53. In addition to and/or in the alternative to any other cause of action, Plaintiffs seek a judicial partition of the Subject Property pursuant to SECTION 23.001 of the TEXAS PROPERTY CODE and RULE 770 of the TEXAS RULES OF CIVIL PROCEDURE. 54. Plaintiffs own an undivided One-Third (1/3) fee-simple interest in the Subject Property. Plaintiff’s First Amended Petition Page 9 of 16 55. Plaintiffs are entitled to partition the Subject Property as an owner of an undivided One- Third (1/3) fee-simple interest in the Subject Property. 56. The Subject Property cannot be equitably partitioned in kind; therefore, the Subject Property must be sold and the proceeds divided between Plaintiffs and Defendants, Glen Greg Marburger and Carl Ray Marburger, in proportion to their respective ownership interests in the Subject Property. Contribution by Co-Tenants for Maintenance and Repairs 57. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 58. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a cause of action against Defendants seeking contribution for maintenance and repairs to the Subject Property. 59. “[A] person who in good faith makes improvements upon property owned by another is entitled to compensation therefore.” Wagner & Brown, Ltd v. Sheppard, 282 S.W.3d 419, 425 (Tex. 2008); Stephenson v. Luttrell, 107 Tex. 320, 179 S.W. 260, 262 (Tex. 1915); Sharp v. Stacy, 535 S.W.2d 345, 351 (Tex. 1976); see also Resolution Trust Corp. v. Kemp, 951 F.2d 657, 665 (5th Cir. 1992). “The law implies a contract between him and his cotenant, authorizing him to spend for him the money which was necessarily spent.” Id. 60. “Because the care, maintenance, upkeep, and preservation of the property rests upon the owners collectively, a co-tenant in real property, who incurs certain necessary expenses in the actual preservation of that property and the valuation thereof, is entitled to reimbursement from the other co-tenant.” Ramos v. Unknown Heirs of Tomasa Gonzalez, 2016 Tex. App. LEXIS 4327, *9-10 (Tex. App. – San Antonio 2016) (citing Poenisch v. Plaintiff’s First Amended Petition Page 10 of 16 Quarnstrom, 386 S.W.2d 594, 597-98 (Tex. Civ. App. – San Antonio 1965, writ ref’d n.r.e)); Gonzalez, 552 S.W.2d 175, 181 (Tex. Civ. App. – Corpus Christi 1997, writ ref’d n.r.e.) (Mem. Op.). 61. Plaintiffs have maintained the Property, including basic repairs to the property which cost them at least $12,580.58, and Defendants’ 2/3 share of said maintenance is $8,387.05. 62. Plaintiffs made demand more than thirty (30) days prior to filing this claim, and Plaintiffs’ attorneys’ fees are reasonable and customary and were necessarily incurred. 63. On Plaintiffs’ claim for contribution for maintenance and repairs against Defendants, Plaintiffs seek to recover the following: (1) actual damages; (2) reasonable and necessary attorneys’ fees; and (3) court costs; Conversion 64. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 65. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a cause of action against Defendants for conversion. 66. Plaintiffs owned, possessed, or had the right to immediate possession of personal property. 67. Defendants wrongfully exercised dominion or control over the property, causing injury to Plaintiffs. 68. On Plaintiffs’ conversion cause of action against Defendants, Plaintiffs seek to recover the following: Plaintiff’s First Amended Petition Page 11 of 16 (1) actual damages, which specifically includes loss of value and lost profits; (2) exemplary damages; (3) pre- and post-judgment interest pursuant to SECTIONS 302.002 and 304.003 of the TEXAS FINANCE CODE; and (4) court costs; Texas Theft Liability Act 69. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 70. In addition to and/or in the alternative to any other cause of action, Plaintiffs assert a claim against Defendants under the THEFT LIABILITY ACT, TEXAS CIVIL PRACTICE AND REMEDIES CODE §§ 134.001-134.005. 71. Plaintiffs had a possessory right to both real and personal property which Defendants unlawfully appropriated, secured, or stole without Plaintiffs’ effective consent. 72. Defendants’ unlawful taking was made with the intent to deprive Plaintiffs of the property, and Plaintiffs sustained damages as a result. 73. On Plaintiffs’ conversion THEFT LIABILITY ACT claim against Defendants, Plaintiffs seek to recover the following: (1) actual damages; (2) exemplary damages; (3) pre- and post-judgment interest pursuant to SECTIONS 302.002 and 304.003 of the TEXAS FINANCE CODE; (4) reasonable and necessary attorney’s fees pursuant to SECTION 134.005(b) of the TEXAS CIVIL PRACTICE AND REMEDIES CODE; and (5) court costs; Plaintiff’s First Amended Petition Page 12 of 16 Unjust Enrichment 74. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 75. In addition to and/or in the alternative to any other cause of action, Plaintiffs seek to recover damages from Defendants for unjust enrichment. 76. Plaintiffs seek to recover damages for the value of improvements to the Subject Property provided to Defendants because Defendants obtained the benefit from Plaintiff by fraud, duress, or taking an undue advantage. The value of the improvements to the Subject Property provided by Plaintiffs is at least $12,580.58, and Defendants’ 2/3 share of that amount, which Plaintiffs seek to recover herein, is $8,387.05. 77. Additionally, Plaintiffs seek to recover damages for the value of personal property in the amount of at least $37,240.74, which personal property was unlawfully appropriated by Defendants because Defendants obtained the benefit from Plaintiffs by fraud, duress, or taking an undue advantage. 78. Further, Plaintiffs seek reimbursement of the reasonable rental value of the Subject Property, which Defendants unlawfully appropriated from Plaintiffs by fraud, duress, or taking an undue advantage. Plaintiffs estimate the reasonable rental value of the Subject Property to be $2,200.00 per month and the total value of lost rent since Plaintiffs were wrongfully evicted from the Subject Property to be $33,000.00 as of July 2017. Plaintiffs seek to recover Plaintiffs’ 1/3 share of the reasonable rental value of the Subject Property as of the date of final judgment in this matter, which proportionate amount is $11,000.00 as of July 2017. Plaintiff’s First Amended Petition Page 13 of 16 Interest 79. Plaintiffs seek pre-judgment interest on actual damages and post-judgment interest on all sums awarded in the final judgment at the maximum rate allowable by Texas law. Attorneys’ Fees 80. Plaintiffs incorporate paragraphs three (3) through forty-three (43) by reference as though fully set forth herein. 81. Plaintiffs have been forced to employ the undersigned attorneys to represent them in the filing of this lawsuit. 82. Pursuant to SECTIONS 37.009 and 134.005(b) of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, Plaintiffs seek reasonable and necessary attorneys’ fees for the preparation, filing, and prosecution of this suit, including all reasonable and necessary attorneys’ fees for any subsequent appeal. 83. In the alternative, Plaintiffs seek reasonable and necessary attorneys’ fees under principles of equity. VII. CONDITIONS PRECEDENT 84. All conditions precedent have been performed or have occurred as required by RULE 54 of the TEXAS RULES OF CIVIL PROCEDURE. VIII. DESIGNATION OF EXPERTS 85. Pursuant to RULE 166b of the TEXAS RULES OF CIVIL PROCEDURE, Plaintiffs hereby designate the undersigned attorneys, Richard D. Weaver and James H. Foley, as their experts to testify as to reasonable and necessary attorneys’ fees incurred by Plaintiffs in the preparation, discovery, and trial of this suit. Plaintiffs also designates any other counsel associated with the undersigned law firm who may be handling this suit at the time of trial Plaintiff’s First Amended Petition Page 14 of 16 as its expert on the issue of reasonable and necessary attorneys’ fees incurred by Plaintiffs in this lawsuit. IX. DEMAND FOR JURY TRIAL 86. Plaintiffs demand a trial by jury. X. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs, LESLIE RRENE GUEST and WALTER J. PARKER, respectfully request that this Court enter a judgment for Plaintiffs against Defendants, CARL RAY MARBURGER, GLEN GREG MARBURGER, and THE UNKNOWN HEIRS OF VICK JOHN MARBURGER, awarding damages and all requests for relief herein, including a declaratory judgment, pre-judgment and post-judgment interest on all sums awarded as allowed by Texas law, reasonable and necessary attorney’s fees, and for such other and further relief, both general and special, at law or in equity, to which Plaintiffs may show themselves to be justly entitled. Respectfully submitted, THE WEAVER LAW FIRM /s/ Richard D. Weaver Richard D. Weaver Texas Bar No. 24047083 rweaver@weaverlawyers.com James Hamilton Foley Texas Bar No. 24059764 jfoley@weaverlawyers.com 1800 Bering Drive, Suite 1050 Houston, Texas 77057 (713) 572-4900 (Telephone) (713) 513-5566 (Facsimile) ATTORNEYS FOR PLAINTIFFS, LESLIE RENE GUEST and WALTER J. PARKER Plaintiff’s First Amended Petition Page 15 of 16 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was forwarded to all interested parties by service on their attorneys of record in accordance with the Texas Rules of Civil Procedure on this 30th day of June 2017, as follows: Ernie Garcia Via E-mail: ernie.garcia@attorneyeg.com 7457 Harwin Drive, Suite 345 Houston, Texas 77036 Famose Garner Via E-mail: famosegarner@gmail.com 6201 Bonhomme Road, Suite 354-N Houston, Texas 77036 /s/ Richard D. Weaver Plaintiff’s First Amended Petition Page 16 of 16