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  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
  • First Colony Community Services Association, Inc. v. Clarmont Enterprises, Inc., and Mark W. BloughReal Property - Other Real Property document preview
						
                                

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Filed 1/15/2021 11:57 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Katherine Cavazos CAUSE No21-DCV-280032 FIRST COLONY COMMUNITY IN THE DISTRICT COURT OF SERVICES ASSOCIATION, INC. Plaintiff, FORT BEND COUNTY, TEXAS a CLARMONT ENTERPRISES, INC. and MARK W. BLOUGH Fort Bend County - 400th Judicial District Court —t JUDICIAL DISTRICT Defendants. PLAINTIFF FIRST COLONY COMMUNITY SERVICES ASSOCIATION, INC’S ORIGINAL PETITION COMES NOW, Plaintiff First Colony Community Services Association, Inc. (hereinafter sometimes referred to as “the Association”) and files this its Original Petition against Clarmont Enterprises, Inc. and Mark W. Blough (hereinafter sometimes collectively referred to as “Defendants”) and would respectfully show the Court the following: I DISCOVERY CONTROL PLAN 1 Discovery shall be conducted under a Level 2 discovery control plan pursuant to Rule 190.3 of the Texas Rules of Civil Procedure. I. PARTIES 2 Plaintiff First Colony Community Services Association, Inc. is a Texas Corporation which has a physical address of 4350 Austin Parkway, Sugarland, Texas TTAT9. PLAINTIFF First COLONY COMMUNITY SERVICES ASSOCIATION, INC.’S ORIGINAL PETITION PAGE 1 OF 6 3. Defendant Clarmont Enterprises, Inc. is a Delaware corporation that was licensed to conduct business in the State of Texas. Defendant may be served by serving its registered agent, The Prentice-Hall Corporation System, Inc., at 251 Little Falls Drive, Wilmington, Delaware 19808. 4 Defendant Mark W. Blough is an individual who may be served with process at his usual place of abode in Dallas County at Eee wherever he may be found. il. JURISDICTION AND VENUE 5 The subject matter of this controversy is within the jurisdiction of this Court and the Court has personal jurisdiction over Defendants. 6 Jurisdiction and venue are proper and mandatory in Fort Bend County, as the real property that is the subject matter of this dispute is situated in Fort Bend County. See CPRC § 15.011, 15.001(b). IV. FACTUAL BACKGROUND 7 Plaintiff Association is the owner of a certain 0.426-acre parcel of property located in Fort Bend County, Texas and more particularly described as Greenbelt Reserve “F” in The Market at First Colony according to the plat thereof recorded under Clerk’s File Number 8716987 in the Real Property Records of Fort Bend County, Texas (the “Property”. PLAINTIFF FIRST COLONY COMMUNITY SERVICES ASSOCIATION, INC.’S ORIGINAL PETITION PAGE 2 OF 6 8 This property was acquired from Clarmont Enterprises Inc. by gift deed (the “Gift Deed”) in 1990 and recorded under County Clerk’s File Number 9101052 in the Real Property Records of Fort Bend County, Texas. See Exhibit A. 9. The Gift Deed which conveyed to the Association the Property contains a restrictive covenant which mandates that the “[p]roperty shall be used as a landscape reserve, park, or playground or recreational area for the enjoyment by the Members of First Colony Community Services Association, Inc. and for no other purpose or purposes” (the “Restrictive Covenant”). Despite this language, because of the location and small size of the Property, it has not been used for its intended purpose in the three decades since its conveyance. Therefore, this property brings no benefit to the Association and indeed creates the burden of maintaining the property. 10. Because, through its acquisition of the Property, the Association has incurred a burden without the anticipated offsetting benefit, the Association seeks to sell the Property. Such a sale, however, involves the removal of the Restrictive Covenant which has tied the hands of the Association and left it unable to put the Property to its most productive use. 11. The removal of the Restrictive Covenant would allow potential grantees to purchase the Property with the intent to use it for a purpose other than as a landscape reserve, park or playground, while being certain that they too will not have their hands tied by the language of a Gift Deed signed by their predecessor in interest. 12. Clarmont Enterprises, Inc. was dissolved in October of 2006 and has subsequently forfeited its right to conduct business in Texas. Mr. Blough was an PLAINTIFF First COLONY COMMUNITY SERVICES ASSOCIATION, INC.’S ORIGINAL PETITION PAGE 3 OF 6 executive at Clarmont Enterprises, Inc. and his signature appears on the 1990 Gift Deed to First Colony Community Services Association, Inc. V. CAUSES OF ACTION A Request for a Declaratory Judgment 13. Plaintiff incorporates by reference the foregoing facts alleged in this Petition in support of this claim against Defendants. 14, Plaintiff is a “person” interested under a deed, will, written contract, or other writing constituting a contract whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, who seek to have determined questions of construction relating to the foregoing-described restrictive covenant and who seek to obtain a declaration of rights, status, or other legal relations thereunder within the meaning of the Texas Civil Practice and Remedies Code section 37.004. 15. Plaintiff petitions this Honorable Court pursuant to the Uniform Declaratory Judgments Act, Chapter 37 of the Civil Practice and Remedies Code of Texas, to declare that the Restrictive Covenant has been terminated due to the conditions changing to a degree that would justify termination of the restriction. In the alternative, Plaintiff petitions this Honorable Court pursuant to the Uniform Declaratory Judgments Act, Chapter 37 of the Civil Practice and Remedies Code of Texas, to declare that the Restrictive Covenant is waived and terminate the Restrictive Covenant on Greenbelt Reserve “F” and permit the sale of the Property PLAINTIFF FIRST COLONY COMMUNITY SERVICES ASSOCIATION, INC.’S ORIGINAL PETITION PAGE 4 OF 6 without the restriction and that the court grant the Plaintiff such other and further relief as the court deems just and proper. VI. CONDITIONS PRECEDENT 16. All conditions precedent to Plaintiffs claims for relief have been performed or have occurred. IX. REQUESTS FOR DISCLOSURE 17. Pursuant to Texas Rule of Civil Procedure 194, Plaintiff requests that Defendants disclose, within 50 days of the service of this request, the information or material described in Rule 194.2 of the Texas Rules of Civil Procedure. Xx. P RAYER 18. WHEREFORE PREMISES CONSIDERED, Plaintiff First Colony Community Services Association, Inc., respectfully requests that Defendants be cited to appear and answer, and that Plaintiff be awarded a declaratory judgment decree terminating the Restrictive Covenant on Greenbelt Reserve “F” and permit the sale of the Property without the restriction. Respectfully submitted, ROBERTS MARKEL WEINBERG BUTLER HAILEY PC Sty A4 GREGORY B. GODKIN TBA No. 24002146 ERREN L. CHEN TBA No. 24088783 PLAINTIFF FIRST COLONY COMMUNITY SERVICES ASSOCIATION, INC.’S ORIGINAL PETITION PAGE 5 OF 6 317 Grace Lane, Suite 140 Austin, TX 78746 Tel: (512) 279-7344 ggodkin@rmwbh.com echen@rmwbh.com ATTORNEYS FOR PLAINTIFF FIRST COLONY COMMUNITY SERVICES ASSOCIATION, INC. PLAINTIFF First COLONY COMMUNITY SERVICES ASSOCIATION, INC.’S ORIGINAL PETITION PAGE 6 OF 6 4 ; of. 9101053 EXHIBIT A pr /eecsA 2270 706 LO ( (ot IFT DEED ‘ae TEXAS § § eT DOF FORT BEND § Gp MONT ENTERPRISES, INC.,, a Delaware corporation ("Grantor"), having an office ae an Jacinto, Suite 1850, Dallas, Texas 75201, for and in consideration of the mutual bi e derived therefrom, has GRANTED, GIVEN AND CONVEYED and does hereby G AND CONVEY unto FIRST COLONY COMMUNITY SERVICES ASSOGL ; a Texas non-profit corporation ("Grantee"), having an office address of P. O. Bax 1709, . gar , Texas 77478, subject to the reservations, restrictions, exceptions and conditio re the surface estate in and to all of those certain tracts or parcels of land (the /"Pro, 3 a particularly described in ExhibitA attached hereto and made a part here: all This coat wud by Grantor and accepted by Grantee subject to the following: oh 1 bsisting easements, right-of-ways, prescriptive rights, whether of resently recorded restrictions, reservations, covenants, conditions, oil and affectthe, P: : as fleas + other instruments, other than liens and conveyances, that a y Ve . Taxes for the,yéar of 4990, and subsequent years, the payment of which Grantee assumes, eo | “SH All rights, obligakion’g, ‘and ‘Imatters emanating from and existing by reason of the creation, estab hmeat, wiaintenance, and operation of the Fort Bend County oe ss Levee Improvement Ne. 2 within whose jurisdiction the Property is located in its entirety. ‘, we The exception and reservation by. 0 itself, its successors and assigns, and predecessors in title, in accordantée leir sespective interests of record, of all oil, gas, and other minerals in, of, Property. : 5. All easements, restrictions and ether rs described in or shown on the recorded plat(s) referenced in ExhibitA heret The restriction that the Property s! hall_be“us¢d as a landscape reserve, park, or playground or recreational area for the e the Members of the FIRST COLONY COMMUNITY SERVIC] ‘sé ON, INC. and for no other purpose or purposes. The restriction set ‘ortli covenant running with the Property and Grantee, its successors and assigns. at—Z in. “ paragraph shall constitute a ndto and be binding upon OLA, GIFT DEED-FCCSA Page 1 of 3 11-15-90:ER C foe cnet ee mee ca -o “? (fo CFCo 3 oe VOy nae Soe 2270 707 .VE AND TO HOLD the Property together with all and singular the rights and ces thereto in anywise belonging unto Grantee, its successors and assigns, forever; to the reservations, restrictions, conditions, and provisions hereinabove set out, and Grantor =‘by werd she reby bind itself, its legal representatives and successors to warrant and forever defend all ¢ Property unto Grantee, its successors and assigns, against every person whosoever = ig or to claim the same or any part thereof, by, through or under Grantor, but not Fwise,,. ’ oe a in the execution hereof to evidence its agreement to the covenants, rese! th thor nditions, restrictions, terms, and provisions hereinabove set forth, all of which din, on Grantee and its successors and assigns. EXECUTED. 2é‘of the dates of the acknowledgements hereinafter set forth, but made effective asiof phe y of 1990, “ “ye CLARMONT ENTERPRISES, INC. wey qm fe ("Grantor") Ye, woe Unk 0) Kool — OV “a B pve a of Mark W. Blough, Vic¢\President Le ee rp B ty A h ao G- K] fy. recat BARMAN: MAT Tate tdeaEt. a Bemabl Lr Hebe) Title: tz oP % Or OLONY COMMUNITY SERVICES OCIATION, INC. C bk een DbuLin yb Sandra K. Denton, President Yl? Z op Carl P. Favre, Secretary (Oy LA, ~ oD a Ce “A GIFT DEED-FCCSA Page 2 of 3 11-15-90:ER C foe Namen sao c? i (fo CFCo 3 oe VOy nae OAS, 2270 708 rite Sp 6 'AFE OF TEXAS § ‘0 OF Muss § S wll “ trument was acknowledged before me on the 40¢/_day of Mark W. Blough, Vice President of CLARMONT ENTERPRISES, INC., a ration; on behalf of said corporation. Delaware. ave RER eh A. HO 1 x ak OMivSSION EXPIRES PTE No blic, State o Ne ee Se, won) THE STATE OF Neo oN a COUNTY OF FORT B a This instrument was fore me on the Qi day of 1990, by Sandra K. Dent thy ST COLONY COMMUNITY SERVICES ASSOCIATION, INC, a T: it soto ion, on behalf of said corporation. o Se) @nnot My AaB Nol any t y State of Texas Y(C C a “| we a Ce 7 OLS GIFT DEED-FOCSA Page 3 of 3 ue 11-15-90:ER. oe fof ae, S of . we STATEOF TEAS COUNTY OF FORT antBEND (led he oe het this instrument was dan mate ‘her eon by me and was dul Fil & re af the CilficialRecords of Fort Bend ©) oo Suay, anes 25 sped by me. 71 4 Pad, C oY JAN 8 1991 icame. tger LOUNTY ¢ ERK we eae gilts WAS Qe Comnty Crk, Fort Bend Cou Tams bre Soe “) C< (C eee PLEASE RETURN TO A, 1250 Shoreline pets te 360 Sugar Land, TIAN oe C fe Tosi AaB AB pa AEE hetOps Panaderia c? IC (fe CP } ny Cw 3 Voon