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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
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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
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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 —
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of Mark W. Blough, Vic¢\President
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BARMAN: MAT Tate
tdeaEt. a Bemabl Lr Hebe)
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OCIATION, INC.
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Sandra K. Denton, President
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Carl P. Favre, Secretary
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'AFE OF TEXAS §
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“ 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
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OMivSSION EXPIRES
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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.
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