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LESLIE RENE GUST and WALTER IN THE DISTRICT COURT
J. PARKER
Plaintiff,
JUDICIAL DISTRICT
CARL R. MARBURGER, CARL RAY
MARBURGER TRUST, VIC
MARBURGER and GREGORY
GLEN MARBURGER
Defendant. OF HARRIS COUNTY, TEXAS
DEFENDANT S RESPONSE TO PLAINTIFF APPLICATION FOR A RECEIVER
NOW COMES Defendant, Carl R. Marburger, named Defendant in the above
entitled and numbered cause, and files this Response to Plaintiff’s Application for Appointment of
eceiver, and shows the Court:
FACTS
The real property in question is an undivided share of a parcel commonly known as 1302
Forest Cove Drive, Humble, Harris County, Texas 77339 (Hereinafter “Forest Cove”) On June
13, 2005 this parcel was Deeded to Vick J. Marburger, Glen G. Marburger, Mary F. Marburger,
and Brett D. Russell as Trustee for the Carl Ray Marburger Trust in equal shares. See Exhibit A.
On June 28, 2005, Mary F. Marburger signed a Special Warranty Deed transferring her
interest in Forest Cove to Vick J. Marburger, Glen G. Marburger, and Brett D. Russell as Trustee
for the Carl Ray Marburger Trust in equal shares. See Exhibit B.
On December 29, 2012 the Co Defendant, Carl R. Marburger, received a Deed without
Warranty for Forest Cove from Brett D. Russell as Trustee for the Carl Ray Marburger Trust. See
Exhibit . There is no record of Co Defendant Carl R. Marburger having transferred any of his
interest in Forest Cove.
The named Co-Defendant, Carl Ray Marburger Trust, appears to have no continuing
interest in Forest Cove.
There is no record on file with the Harris County Clerk which shows that the Co-Defendant
Vick J. Marburger ever transferred any of his interest in Forest Cove.
There is no record on file with the Harris County Clerk which shows that the “Plaintiffs
are the legal owner[s] of a one third or one half interest” in Forest Cove as claimed in the Plaintiffs’
Original Petition, which was filed in this Court on July 27, 2016. On September 27, 2016, the
Plaintiffs filed their Application for Appointment of Receiver, but no proof of an ownership
interest in Forest Cove was supplied in that application. On October 17, 2016, the Plaintiffs sent
Notice of this hearing to the Co-Defendant Carl R. Marburger.
ARGUMENT & AUTHORITY
Section 23.001 of the Texas Property Code allows a joint owner to compel a partition of
the interest or the property among the joint owners. Chapter 64 of the Texas Civil Practices and
Remedies Code dictates that a Court of competent jurisdiction may appoint a receiver in an action
between partners or others jointly owning or interested in any property. Before a receiver can be
appointed, section 64.001(b) of the Texas Civil Practices and Remedies Code requires that “the
property or fund must be in danger of being lost, removed, or materially injured.” (Emphasis
added).
In this case, the Plaintiffs have produced no evidence that any such threat of loss, removal,
or material injury exists. Even if the Plaintiffs could produce evidence of a purported sale, as stated
in their application, if the Plaintiffs hold a properly recorded, valid interest in Forest Cove, their
ownership interest is protected. However, the Plaintiffs cannot produce competent evidence or
testimony of any imminent need for the Court to appoint a receiver in this case. The
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Under Chapter 23 of the Texas Property Code, “the party seeking the partition must have
an equal right to possess the land with the other joint owners.” First Nat’l Bank v. Texas Fed. S&L
Ass’n, 628 S.W.2d 497, 498 (Tex. App.—Texarkana 1982, writ ref’d n.r.e.); See also Texas Oil &
Gas Corp. v. Ostrom, 638 S.W.2d 231, 233 (Tex. App.—Tyler 1982, writ ref’d n.r.e.). The Co-
Defendants Carl Ray Marburger, Gregory Glen Marburger, and Vick J. Marburger each have
documents on file with the Harris County Clerk’s Office and attached to this Response which serve
as evidence of a superior right to possession of Forest Cove over each of the Plaintiffs. To date,
the Plaintiffs have produced no evidence that they own any portion of Forest Cove. As such, the
Plaintiffs’ Application for Appointment of Receiver in this matter should be denied.
ATTORNEY’S FEES
Request is made for all costs and reasonable and necessary attorney’s fees incurred by or
on behalf of Co-Defendant Carl R. Marburger, including all fees necessary in preparing a response
to the Plaintiff’s Application for Appointment of Receiver as the Court deems equitable and just,
as provided by Chapter 38 of the Texas Civil Practice and Remedies Code.
PRAYER
Co-Defendant, Carl R. Marburger, prays the Court, after notice and hearing, enters
judgment in favor of Defendant, denies the Plaintiff’s Application for Appointment of Receiver,
awards Defendant’s attorney’s fees, and such other and further relief as Defendant may be entitled
to in law or in equity.
Respectfully submitted,
By:
Ernie Garcia
Texas Bar No. 24072106
7457 Harwin Dr. Suite 345
3
Houston, TX 77036
Tel. (832) 305-7694
Fax. (832) 553-2984
Email: Ernie.Garcia@attorneyeg.com
Attorney for Co-Defendant, Carl R. Marburger
CERTIFICATE OF SERVICE
I certify that on November 1, 2016, a true and correct copy of Defendant’s Response to
Plaintiff’s Application for Appointment of Receiver was served on the Plaintiff.
Ernie Garcia
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LESLIE RENE GUST and WALTER IN THE DISTRICT COURT J. PARKER Plaintiff, JUDICIAL DISTRICT CARL R. MARBURGER, CARL RAY MARBURGER TRUST, VIC MARBURGER and GREGORY GLEN MARBURGER Defendant. OF HARRIS COUNTY, TEXAS DEFENDANT S RESPONSE TO PLAINTIFF APPLICATION FOR A RECEIVER NOW COMES Defendant, Carl R. Marburger, named Defendant in the above entitled and numbered cause, and files this Response to Plaintiff’s Application for Appointment of eceiver, and shows the Court: FACTS The real property in question is an undivided share of a parcel commonly known as 1302 Forest Cove Drive, Humble, Harris County, Texas 77339 (Hereinafter “Forest Cove”) On June 13, 2005 this parcel was Deeded to Vick J. Marburger, Glen G. Marburger, Mary F. Marburger, and Brett D. Russell as Trustee for the Carl Ray Marburger Trust in equal shares. See Exhibit A. On June 28, 2005, Mary F. Marburger signed a Special Warranty Deed transferring her interest in Forest Cove to Vick J. Marburger, Glen G. Marburger, and Brett D. Russell as Trustee for the Carl Ray Marburger Trust in equal shares. See Exhibit B. On December 29, 2012 the Co Defendant, Carl R. Marburger, received a Deed without Warranty for Forest Cove from Brett D. Russell as Trustee for the Carl Ray Marburger Trust. See Exhibit . There is no record of Co Defendant Carl R. Marburger having transferred any of his interest in Forest Cove. The named Co-Defendant, Carl Ray Marburger Trust, appears to have no continuing interest in Forest Cove. There is no record on file with the Harris County Clerk which shows that the Co-Defendant Vick J. Marburger ever transferred any of his interest in Forest Cove. There is no record on file with the Harris County Clerk which shows that the “Plaintiffs are the legal owner[s] of a one third or one half interest” in Forest Cove as claimed in the Plaintiffs’ Original Petition, which was filed in this Court on July 27, 2016. On September 27, 2016, the Plaintiffs filed their Application for Appointment of Receiver, but no proof of an ownership interest in Forest Cove was supplied in that application. On October 17, 2016, the Plaintiffs sent Notice of this hearing to the Co-Defendant Carl R. Marburger. ARGUMENT & AUTHORITY Section 23.001 of the Texas Property Code allows a joint owner to compel a partition of the interest or the property among the joint owners. Chapter 64 of the Texas Civil Practices and Remedies Code dictates that a Court of competent jurisdiction may appoint a receiver in an action between partners or others jointly owning or interested in any property. Before a receiver can be appointed, section 64.001(b) of the Texas Civil Practices and Remedies Code requires that “the property or fund must be in danger of being lost, removed, or materially injured.” (Emphasis added). In this case, the Plaintiffs have produced no evidence that any such threat of loss, removal, or material injury exists. Even if the Plaintiffs could produce evidence of a purported sale, as stated in their application, if the Plaintiffs hold a properly recorded, valid interest in Forest Cove, their ownership interest is protected. However, the Plaintiffs cannot produce competent evidence or testimony of any imminent need for the Court to appoint a receiver in this case. The 2 Under Chapter 23 of the Texas Property Code, “the party seeking the partition must have an equal right to possess the land with the other joint owners.” First Nat’l Bank v. Texas Fed. S&L Ass’n, 628 S.W.2d 497, 498 (Tex. App.—Texarkana 1982, writ ref’d n.r.e.); See also Texas Oil & Gas Corp. v. Ostrom, 638 S.W.2d 231, 233 (Tex. App.—Tyler 1982, writ ref’d n.r.e.). The Co- Defendants Carl Ray Marburger, Gregory Glen Marburger, and Vick J. Marburger each have documents on file with the Harris County Clerk’s Office and attached to this Response which serve as evidence of a superior right to possession of Forest Cove over each of the Plaintiffs. To date, the Plaintiffs have produced no evidence that they own any portion of Forest Cove. As such, the Plaintiffs’ Application for Appointment of Receiver in this matter should be denied. ATTORNEY’S FEES Request is made for all costs and reasonable and necessary attorney’s fees incurred by or on behalf of Co-Defendant Carl R. Marburger, including all fees necessary in preparing a response to the Plaintiff’s Application for Appointment of Receiver as the Court deems equitable and just, as provided by Chapter 38 of the Texas Civil Practice and Remedies Code. PRAYER Co-Defendant, Carl R. Marburger, prays the Court, after notice and hearing, enters judgment in favor of Defendant, denies the Plaintiff’s Application for Appointment of Receiver, awards Defendant’s attorney’s fees, and such other and further relief as Defendant may be entitled to in law or in equity. Respectfully submitted, By: Ernie Garcia Texas Bar No. 24072106 7457 Harwin Dr. Suite 345 3 Houston, TX 77036 Tel. (832) 305-7694 Fax. (832) 553-2984 Email: Ernie.Garcia@attorneyeg.com Attorney for Co-Defendant, Carl R. Marburger CERTIFICATE OF SERVICE I certify that on November 1, 2016, a true and correct copy of Defendant’s Response to Plaintiff’s Application for Appointment of Receiver was served on the Plaintiff. Ernie Garcia 4