Preview
FILED
DALLAS COUNTY
7/23/2019 11:26 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC_19_04572 Treva Parker—Ayodele
PATRICK R. OVIATT, IN THE DISTRICT COURT
Plaintifii
V.
WWWWWWWWWW
1931“) JUDICIAL DISTRICT
KRYSTAL M. OVIATT,
Defendant. OF DALLAS COUNTY, TEXAS
PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Patrick R. Oviatt (“Plaintiff”), complaining 0f and about Krystal M. Oviatt
(“Defendant”), and files this Plaintiff’s First Amended Petition and Requestfor Disclosure, and
for its causes 0f action represents unto the Court the following:
I. DISCOVERY CONTROL PLAN
1. Pursuant to TEX. R. CIV. P. 190.3, Plaintiff pleads that discovery be conducted
under Level 2. Pursuant to Texas Rule 0f Civil Procedure 47, Plaintiff seeks non-monetary and
monetary relief over $200,000, but not more than $1,000,000, including damages of any kind,
penalties, costs, expenses, pre-judgment interest, and attorney fees.
II. PARTIES
2. Plaintiff, Patrick R. Oviatt, is an individual residing in Waynesville, North
Carolina.
3. Defendant, Krystal M. OViatt, is an individual residing in Dallas County, Texas,
Who may be served With process by delivering a citation and copy of this Plaintiff” s First Amended
Petition and Request for Disclosure at 109 E. Woodbury Drive, Garland, Texas 75041, 0r Wherever
she may be found.
PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE OF
1 6
III. JURISDICTION AND VENUE
4. Plaintiff seeks non-monetary and monetary relief over $200,000, but not more than
$1,000,000, including damages 0f any kind, penalties, costs, expenses, pre-judgment interest, and
attorneys’ fees.
5. This Court has subject matter jurisdiction under Section 23.002(a) 0f the Texas
Property Code. This Court has personal jurisdiction over Defendant because she resides in the
State 0f Texas.
6. Venue in Dallas County is proper in this cause pursuant t0 Section 23.002(a) of the
Texas Property Code and Section 15.011 0f the Texas Civil Practice and Remedies Code, in that
the property for which partition is sought in this action is located in Dallas County, Texas.
IV. FACTUAL BACKGROUND
7. Plaintiff and Defendant were married 0n December 9, 2006, in Austin, Travis
County, Texas, and separated on or about January 4, 2010.
8. During their marriage, Plaintiff and Defendant acquired the real property located at
109 E. Woodbury Drive, Garland, Texas 75041 (the “Property”), in Dallas County, Texas, Which
is legally described as follows: Ridgewood Park 2, BLK 3 LT 13.
9. Plaintiff and Defendant were divorced 0n March 25, 201 1, in Columbia County,
Georgia. As part 0fthe Final Divorce Decree, the parties entered into a settlement agreement dated
December 20, 2010. With regard to the Property, it was decreed by the court that both Plaintiff
and Defendant had a fifty percent (50%) undivided interest in the Property. The relevant part 0f
the Decree states as follows:
DIVISION OF REAL ESTATE: MARITAL PROPERTY: The parties agree
that the marital home located at 109 East Woodbury Drive, Austin, Texas shall be
retained by both parties With each party owning a 1/2 interest in the property. Said
marital home shall be rented and the proceeds ofthe rented funds shall be deposited
PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 2 OF 6
into a checking account in the parties’ names. Said funds shall be used t0 pay the
mortgage on the marital home and all repairs, taxes, and insurance.
If both of the parties agree the Marital home may be sold and the parties shall
equally divide any equity in said home.
10. Upon information and belief, the Court erroneously described the Property as being
located in Austin, Texas, when in fact, the Property is located at 109 E. Woodbury Drive, Garland,
Texas.
11. Since the divorce, Defendant has been the sole occupant of said Property. Plaintiff
now desires t0 sell said Property pursuant t0 the Decree as Defendant has defaulted on the
mortgage payments. T0 date, Defendant has stated that she would not comply With the amicable
sell 0f the Property. Subsequently, Plaintiff has been compelled to file this lawsuit seeking to
partition and sell the Property.
V. CAUSES OF ACTION
A. Partition
12. Pursuant to Texas Property Code Section 23.001, et seq. and Rule 770 of the Texas
Rules 0f Civil Procedure, Plaintiff seeks a partition of the Property. Plaintiff and Defendant are
co-owners of the undivided interest in certain real property situated in Dallas County, Texas, which
is further described in a Deed recorded in the Official Public Records of Real Property 0f Dallas
County, Texas.
13. Plaintiff seeks a partition of the Property between the parties in accordance with
their respective interests. Pursuant to Texas Property Code Section 23.001, et seq. and Rule 770
0f the Texas Rules 0f Civil Procedure, Plaintiff seeks a partition 0f the Property by Appointment
0f a Receiver or Real Estate Agent to place the property on the real estate market and sell the
Property or by judicial sale. The Property is not susceptible t0 a fair and equitable in-kind division
PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 3 OF 6
because it is a residential lot.
14. Plaintiff is entitled t0 partition of the Property owned by Plaintiff and Defendant.
However, because the Property cannot be equitably be partitioned in kind, the Property should be
sold, and the proceeds divided between Plaintiff and Defendant in proportions t0 the parties’
respective interests in the Property.
B. Declaratorv Judgment Action
15. This suit is brought pursuant to Chapter 37 0f the Texas Civil Practice and
Remedies Code. Section 37.004 ofthat Chapter states, in relevant part: “A person interested under
a deed, Will, written contract, or other writings constituting a contract 0r Whose rights, status, or
other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have
determined any question 0f construction 0r validity arising under the instrument, statute,
ordinance, contract, 0r franchise and obtain a declaration of rights, status, or other legal relations
thereunder.”
16. Plaintiff seeks a declaration of Plaintiff’s and Defendant's respective ownership
interests in the Property. As part 0f her declaratory judgment action, Plaintiff also seeks partition
0f the Property under Chapter 23 of The Texas Property Code, and Rule 756 - 778 of the Texas
Rules 0f Civil Procedure. This is a live controversy because the determination of this issue directly
affects the Plaintiff s rights With regard t0 the Property.
17. Plaintiff is entitled t0 recover reasonable and necessary attorney fees that are
equitable and just under Texas Civil Practice & Remedies Code section 37.009 because this is a
suit for declaratory relief.
C. Attorney’s Fees
18. Plaintiff seeks recovery of his reasonable and necessary attorney’s fees that are
PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 4 OF 6
equitable and just pursuant t0 Texas Civil Practice and Remedies Code Chapter 37.
VI. CONDITIONS PRECEDENT
19. A11 conditions precedent to Plaintiff s claims for relief have been performed or have
occurred.
VII. REQUEST FOR DISCLOSURE
20. Pursuant to Texas Rule 0f Civil Procedure 194, Plaintiff requests that Defendant
disclose, within fifty (50) days of the service of this request, all 0f the information or material
described in Rule 194.2 (a)-(1).
VIII. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the
Defendant be cited t0 appear and answer herein, and that upon final hearing hereof, the Court enter
a decree:
1. Determining that such Property is not susceptible to partition, and directing the sale of the
Property with the net proceeds from such sale t0 be partitioned in accordance With the
respective shares of the parties;
2. Appointing a receiver t0 sell from the sale in
the Property and partition the net proceeds
accordance With the Decree and the law, subject t0 confirmation by the Court upon notice
t0 all Parties;
?P’
Directing the issuance of a writ of partition;
Awarding Plaintiff reasonable and necessary attorney’s fees;
5. Awarding Plaintiff recovery 0f costs, interest, and such other relief to which Plaintiff may
justly be entitled.
PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 5 OF 6
Respectfully submitted,
ALBIN ROACH, PLLC
By: /s/Baleigh Walker Cherry
John J. Mongogna
State Bar N0. 24002627
imongogna@albimoach.com
Baleigh Walker Cherry
State Bar No. 24098566
bchem@albinr0ach.com
5665 Dallas Parkway, Suite 200
Frisco, Texas 75034
Tel: (214) 423-5 1 00
Fax: (214) 423-51 11
ATTORNEYS FOR PLAINTIFF
PLAINTIFF ’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 6 OF 6
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FILED DALLAS COUNTY 7/23/2019 11:26 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC_19_04572 Treva Parker—Ayodele PATRICK R. OVIATT, IN THE DISTRICT COURT Plaintifii V. WWWWWWWWWW 1931“) JUDICIAL DISTRICT KRYSTAL M. OVIATT, Defendant. OF DALLAS COUNTY, TEXAS PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Patrick R. Oviatt (“Plaintiff”), complaining 0f and about Krystal M. Oviatt (“Defendant”), and files this Plaintiff’s First Amended Petition and Requestfor Disclosure, and for its causes 0f action represents unto the Court the following: I. DISCOVERY CONTROL PLAN 1. Pursuant to TEX. R. CIV. P. 190.3, Plaintiff pleads that discovery be conducted under Level 2. Pursuant to Texas Rule 0f Civil Procedure 47, Plaintiff seeks non-monetary and monetary relief over $200,000, but not more than $1,000,000, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees. II. PARTIES 2. Plaintiff, Patrick R. Oviatt, is an individual residing in Waynesville, North Carolina. 3. Defendant, Krystal M. OViatt, is an individual residing in Dallas County, Texas, Who may be served With process by delivering a citation and copy of this Plaintiff” s First Amended Petition and Request for Disclosure at 109 E. Woodbury Drive, Garland, Texas 75041, 0r Wherever she may be found. PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE OF 1 6 III. JURISDICTION AND VENUE 4. Plaintiff seeks non-monetary and monetary relief over $200,000, but not more than $1,000,000, including damages 0f any kind, penalties, costs, expenses, pre-judgment interest, and attorneys’ fees. 5. This Court has subject matter jurisdiction under Section 23.002(a) 0f the Texas Property Code. This Court has personal jurisdiction over Defendant because she resides in the State 0f Texas. 6. Venue in Dallas County is proper in this cause pursuant t0 Section 23.002(a) of the Texas Property Code and Section 15.011 0f the Texas Civil Practice and Remedies Code, in that the property for which partition is sought in this action is located in Dallas County, Texas. IV. FACTUAL BACKGROUND 7. Plaintiff and Defendant were married 0n December 9, 2006, in Austin, Travis County, Texas, and separated on or about January 4, 2010. 8. During their marriage, Plaintiff and Defendant acquired the real property located at 109 E. Woodbury Drive, Garland, Texas 75041 (the “Property”), in Dallas County, Texas, Which is legally described as follows: Ridgewood Park 2, BLK 3 LT 13. 9. Plaintiff and Defendant were divorced 0n March 25, 201 1, in Columbia County, Georgia. As part 0fthe Final Divorce Decree, the parties entered into a settlement agreement dated December 20, 2010. With regard to the Property, it was decreed by the court that both Plaintiff and Defendant had a fifty percent (50%) undivided interest in the Property. The relevant part 0f the Decree states as follows: DIVISION OF REAL ESTATE: MARITAL PROPERTY: The parties agree that the marital home located at 109 East Woodbury Drive, Austin, Texas shall be retained by both parties With each party owning a 1/2 interest in the property. Said marital home shall be rented and the proceeds ofthe rented funds shall be deposited PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 2 OF 6 into a checking account in the parties’ names. Said funds shall be used t0 pay the mortgage on the marital home and all repairs, taxes, and insurance. If both of the parties agree the Marital home may be sold and the parties shall equally divide any equity in said home. 10. Upon information and belief, the Court erroneously described the Property as being located in Austin, Texas, when in fact, the Property is located at 109 E. Woodbury Drive, Garland, Texas. 11. Since the divorce, Defendant has been the sole occupant of said Property. Plaintiff now desires t0 sell said Property pursuant t0 the Decree as Defendant has defaulted on the mortgage payments. T0 date, Defendant has stated that she would not comply With the amicable sell 0f the Property. Subsequently, Plaintiff has been compelled to file this lawsuit seeking to partition and sell the Property. V. CAUSES OF ACTION A. Partition 12. Pursuant to Texas Property Code Section 23.001, et seq. and Rule 770 of the Texas Rules 0f Civil Procedure, Plaintiff seeks a partition of the Property. Plaintiff and Defendant are co-owners of the undivided interest in certain real property situated in Dallas County, Texas, which is further described in a Deed recorded in the Official Public Records of Real Property 0f Dallas County, Texas. 13. Plaintiff seeks a partition of the Property between the parties in accordance with their respective interests. Pursuant to Texas Property Code Section 23.001, et seq. and Rule 770 0f the Texas Rules 0f Civil Procedure, Plaintiff seeks a partition 0f the Property by Appointment 0f a Receiver or Real Estate Agent to place the property on the real estate market and sell the Property or by judicial sale. The Property is not susceptible t0 a fair and equitable in-kind division PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 3 OF 6 because it is a residential lot. 14. Plaintiff is entitled t0 partition of the Property owned by Plaintiff and Defendant. However, because the Property cannot be equitably be partitioned in kind, the Property should be sold, and the proceeds divided between Plaintiff and Defendant in proportions t0 the parties’ respective interests in the Property. B. Declaratorv Judgment Action 15. This suit is brought pursuant to Chapter 37 0f the Texas Civil Practice and Remedies Code. Section 37.004 ofthat Chapter states, in relevant part: “A person interested under a deed, Will, written contract, or other writings constituting a contract 0r Whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question 0f construction 0r validity arising under the instrument, statute, ordinance, contract, 0r franchise and obtain a declaration of rights, status, or other legal relations thereunder.” 16. Plaintiff seeks a declaration of Plaintiff’s and Defendant's respective ownership interests in the Property. As part 0f her declaratory judgment action, Plaintiff also seeks partition 0f the Property under Chapter 23 of The Texas Property Code, and Rule 756 - 778 of the Texas Rules 0f Civil Procedure. This is a live controversy because the determination of this issue directly affects the Plaintiff s rights With regard t0 the Property. 17. Plaintiff is entitled t0 recover reasonable and necessary attorney fees that are equitable and just under Texas Civil Practice & Remedies Code section 37.009 because this is a suit for declaratory relief. C. Attorney’s Fees 18. Plaintiff seeks recovery of his reasonable and necessary attorney’s fees that are PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 4 OF 6 equitable and just pursuant t0 Texas Civil Practice and Remedies Code Chapter 37. VI. CONDITIONS PRECEDENT 19. A11 conditions precedent to Plaintiff s claims for relief have been performed or have occurred. VII. REQUEST FOR DISCLOSURE 20. Pursuant to Texas Rule 0f Civil Procedure 194, Plaintiff requests that Defendant disclose, within fifty (50) days of the service of this request, all 0f the information or material described in Rule 194.2 (a)-(1). VIII. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the Defendant be cited t0 appear and answer herein, and that upon final hearing hereof, the Court enter a decree: 1. Determining that such Property is not susceptible to partition, and directing the sale of the Property with the net proceeds from such sale t0 be partitioned in accordance With the respective shares of the parties; 2. Appointing a receiver t0 sell from the sale in the Property and partition the net proceeds accordance With the Decree and the law, subject t0 confirmation by the Court upon notice t0 all Parties; ?P’ Directing the issuance of a writ of partition; Awarding Plaintiff reasonable and necessary attorney’s fees; 5. Awarding Plaintiff recovery 0f costs, interest, and such other relief to which Plaintiff may justly be entitled. PLAINTIFF’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 5 OF 6 Respectfully submitted, ALBIN ROACH, PLLC By: /s/Baleigh Walker Cherry John J. Mongogna State Bar N0. 24002627 imongogna@albimoach.com Baleigh Walker Cherry State Bar No. 24098566 bchem@albinr0ach.com 5665 Dallas Parkway, Suite 200 Frisco, Texas 75034 Tel: (214) 423-5 1 00 Fax: (214) 423-51 11 ATTORNEYS FOR PLAINTIFF PLAINTIFF ’S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 6 OF 6