Motion for Temporary Restraining Order in Gen Fu Zhang & Limin Wang V. Peterson New Territory Investors, LP| Trellis.Law

On September 18, 2019 a Complaint,Petition was filed involving a dispute between Chichi Chicken Inc., Wang, Limin, Zhang, Gen Fu, Peterson New Territory Investors, Lp, and Chang, Tina, Chichi Chicken Inc., Zhang, Rujia, Peterson New Territory Investors, Lp, for Contract - Other Contract in the District Court of Fort Bend County.

Preview
Filed
6/24/2020 4:24 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Donald Evans
CAUSE NO. 19-DCV-266793

GEN FU ZHANG & LIMIN WANG IN THE DISTRICT COURT OF
Plaintiffs

Vv. FORT BEND COUNTY, TEXAS

PETERSON NEW TERRITORY
INVESTORS, LP and THOMAS L. HUNT,
SUBSTITUTE TRUSTEE 268" JUDICIAL DISTRICT
Defendants

PLAINTIFFS’ THIRD AMENDED PETITION AND REQUEST FOR TEMPORARY
RESTRAINING ORDER WITH REQUEST FOR DISCLOSURE

Plaintiffs Gen Fu Zhang (“Zhang”), Limin Wang (“Wang”) and ChiChi Chicken Inc.

(“ChiChi”), (hereinafter collectively sometimes referred to as “Plaintiffs”) file this Third Amended

Petition and Request for Temporary Restraining Order against Defendants Peterson New

Territory Investors, LP (hereinafter “Defendant” and/or “Landlord”) and Thomas L. Hunt,

Substitute Trustee, and respectfully shows the Court as follows:

I
DISCOVERY

le Plaintiffs request discovery to be conducted under Level 3 of Rule 190 of the Texas

Rules of Civil Procedure.

IL.
PARTIES

2.1 Plaintiff Gen Fu Zhang (“Zhang”), is an individual who resides in Sugar Land,

Fort Bend County, Texas at [i].
2.2 Plaintiff Limin Wang (“Wang”) is the wife of Zhang who resides with her

husband in Sugar Land, Fort Bend County, Texas at Re

=
2.3 ChiChi Chicken Inc (“ChiChi”) is a Texas Corporation, conducting business in

Fort Bend County, Texas.

ZHANG, GEN Fu (CLIENT 18-5004 ) PLAINTIFFS’ THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE | OF 15
24 Defendant Peterson New Territory Investors, LP is a Texas Limited Partnership with

a principal place of business in Houston, Harris County, Texas, and may be served with process by

serving its sole member, Serena Yu at 2606 Grant St., Houston, Texas 77006.

2) Defendant Thomas L. Hunt, Substitute Trustee, may be served with process at 5353

West Alabama, Suite 605, Houston, Texas, 77019.

ll.
VENUE AND JURISDICTION

3.1 Venue is proper in Fort Bend County, Texas because the subject matter pertains to

a commercial lease agreement located in Fort Bend County, Texas.

3.2 The Court has jurisdiction over the controversy because the damages are within

the jurisdictional limits of this Court.

IV.
FACTS

4.1 Plaintiff Gen Fu Zhang (“Plaintiff Zhang”) is a Chinese national who does not read,

write or speak English.

42 In approximately March 2015, an individual named Tina Chang approached Plaintiff

Zhang to solicit funds to open a Frenchy’s Chicken Restaurant franchise (“Frenchy 999
Ss ). Chang

made a series of representations to induce Plaintiff Zhang to invest including, but not limited to the

following:

42.1 That she had lined up a location approved by the Frenchy’s Franchisor located
in Sugar Land Texas;

4.2.2 That the location was under an existing lease that would be assumed by a
corporation she would set up.

4.2.3 That Plaintiff Zhang would be the sole shareholder and Chang would be the
managing operator, initially.

4.2.4 That Chang had an ongoing relationship with Wellington Yu, who purportedly
was a principal and/or officer with Frenchy’s Chicken Holdings, LLC which
purportedly had authority to offer Frenchy’s franchises;

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 2 OF 15
That Chang would operate the Frenchy’ s restaurant;

Tn reliance
upon Chang's representations Plaintiff Zhang agreed to invest for the

operation of a Frenchy’ s franchise already operating and located in Sugar Land Texas;

Upon information and belief, in 2015, Chang set up a Texas corporation named

CHICHI CHICKEN INC., that ultimately operated the Frenchy’ s franchise.

Chang took over the existing Frenchy’ s Franchise on behalf of Zhang and CHICHI

CHICKEN INC’s and opened at its existing location ie. HWY 90A Sugar
Land Texas 77498.

Defendantis the landlord of the leasehold estate.

Upon information and belief, for reasons not fully known to Plaintiff , sometime in

late 2016 or early 2017, CHICHI CHICKEN INC’s franchise rights were lost or forfeited or the

business otherwise failed, due in whole or in part to undisclosed Franchise rights controversies

pertaining in whole or part to Frenchy's Chicken Holdings, LLC and Wellington Yu's lack of

authority to grant a Frenchy’ s franchise.

Chang subsequently advised laintiff Zhang that to save his investment, the

restaurant would have to reopen as a different operation. Chang requested additional funds

open a new operation, a different franchise i.e. Catfish Station, otherwise Plaintiffs original

investment
would be lost. Chang further represented that she would continue to operate the

business, specifically new franchise knownas Catfish Station at the same location.

Upon information
and belief, Chang entered into a franchise agreement on behalf of

CHICHI CHIC EN Inc to open a Catfish Station Franchise all conditionedupon her managing
the

Operation.

In comnection with opening Catfish Station franchise, Chang advised Plaintiff

Zhang, perhaps falsely, that a new lease at the same location was required and that the tenant and

obligor thereunder would be CHICHI CHICKEN INC Plaintiff Zhangcontend that a new lease

‘wes not required norwas necessary. Chang, on behalf
of ChiChi, subsequently
entered into a lease
HANG LIENT
18 5004 LAINTIFFS THIRD ETITION AND REQUEST FOR TRO AGE OF 15
agreement
with landlord. ChiChi is named as a plaintiff herein as an additional or necessary party.

A true and correct copy of the Lease is attached hereto as Exhibit “1”. The Lease also contains a

guaranty that will be referred to herein as the “Guaranty”.

Plaintiff subsequently leamed that Chang, on behalf of Plaintiff Zhang personally,

signed a promissory note in the amount of $600,000 (the “Note”’) and a deed of trustto secure

payment of the Note encumbering the personal residence and homestead of both Plaintiffs Zhang

and Wang _ secure the new and probably unnecessary ease with efendant/landlord;
all pursuant

to a power
of attomey (“POA”) Plaintiff Zhang unwittingly signed. The terms of the Note require

Payment
of the full $600,000 upon demand in the event of default or termination of the Lease,

despite the Lease not making any reference or requirement of a separate ote and deed of trust as

security
for the Lease The deed of trust illegally encumbers the residence of the Plaintiffs which is

their homestead
and will be referredto herein as the “Deed of Trust’. A true and correct copy of the

Note, Deed of Trust and POA are all attached hereto as Exhibit “2”, “3” and “4” respectfully The

property encumbered by the Deed of Trust is commonly known as 13914 Normandy St, Sugarland,

Texas 77498 which will be hereinafter referred to as the “Property”. Plaintiffs
assert that the Note

and Deed of Trust are unenforceable for a lack of consideration.

Plaintiff assert
that the POA did not authorize Chang to sign the Note, Deed of

tust and the Guaranty

Plaintiff Zhang subsequently leamed that Wellington Yu wes formerly mamied to

Serena Yu, the principal of defendant Landlord.

Plaintiff
Zhang contends that efendant knew or should have known that Chang did

not have authority to sign the Note, Deed of Trust and Guaranty. Plaintiffs further contend that all

parties involved in the Lease transaction knew the Property was the residence and homestead of the

Plaintiffs.

Chang subsequently advised laintiff Zhang that she was withdrawing from the
HANG LIENT
18 5004 LAINTIFFS THIRD ETITION AND REQUEST FOR TRO AGE OF 15
Catfish Station Franchise and abandoned her responsibilities with CHICHI CHICKEN INC and the

Catfish Station franchise.

4.15 Plaintiff Zhang through CHICHI CHICKEN INC made good faith efforts to operate

the business, first as Catfish Station and subsequently another fast food restaurant without franchise

affiliation, at landlord’s location. Those efforts were unsuccessful and CHICHI CHICKEN INC was

forced to close. Prior to closing, Zhang attempted to terminate the lease through good faith

settlement negotiations, that to date have been unsuccessful.

4.16 ChiChi has attempted to mitigate damages by lining up a potential new tenant to take

over the space and re-open as a Catfish Station franchise. Landlord has effectively rebuked those

efforts despite Plaintiff Zhang’s willingness to guarantee the new proposed tenant and potentially

subsidize a portion of the rent obligations.

4.17 Landlord has failed to adequately exert efforts to release the premises despite a legal

obligation to do so.

4.18 Upon information and belief, Chang personally, and in concert with others,

including perhaps the Defendant Landlord, took unfair and fraudulent advantage of Plaintiffs

through the series of transactions described above. However, Plaintiffs lack enough information to

bring all viable claims and name all responsible parties currently. With that caveat, Plaintiffs bring

the following claims:

Vv.
DECLARATORY JUDGMENT

el Plaintiffs incorporate and re-allege the allegations set forth in the preceding

paragraphs as if fully set forth verbatim herein.

5.2 Plaintiffs seek a Declaratory Judgment action pursuant to the Texas Practice &

Remedies Code Section 37.001.

3) Pursuant to Section 37.004 of the Texas Civil Practice & Remedies Code, a

ZHANG, GEN Fu (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 5 OF 15
person interested
under a. . . contract or other writings constituting a contract, or whose rights,

status, or other legal relations are affected by a statute . . .or contract, may have determined
any

questions of construction or validity arising out of the statute or contract and obtain a declaration

of rights, status, or other legal relationship thereunder.

Plaintiff seek the following declaration of rights, status, and other legal

relationship, that:

Chang lacked the authority under the POA to sign
the Note, Deed
of Trust
and Guaranty;

efendant knew or should have known that Chang lacked the authority
under
the POA to sign
the Note, Deed of Trust and Guaranty;

the POA lacks the requisite specificity to allow Chang to execute the Note,
Deed of Trust and Guaranty on behalfof ang

the POA lacks the requisite specificity to the enforce the Note, Deed of
Trust and Guaranty

the POA is unenforceable as a matter of law with respect to the Note,
Deed of Trust and Guaranty

The Note, Deed of Trust and Guaranty are void or otherwise
unenforceable as a matterof law;

Zhang and Wang were mamied on Dec. 29, 1982;

the roperty wes purchased during the mamiage of Plaintiffs Zhang and
Wang with community fumds belonging to Zhang and Wang; and is the
community property of Zhang and Wang

Wang was not a party to the POA and did not authorize Chang to act on her
behalfin any capacity;

the Propertyis the residence and homestead of Plaintiffs Zhang and Wang

the Note, Deed of Trust and Guaranty are invalid, unenforceable and of no
effect

in the altemative, the eedof rust unenforceable as to Plaintiff Wang
andto Wang community property and homestead interestin the roperty;

the POA Zhang executed was fraudulently obtained and is thus null and
void or otherwise unenforceable
HANG LIENT
18 5004 LAINTIFFS THIRD ETITION AND REQUEST FOR TRO AGE OF 15
5.4.14 Chang did not have any authority pursuant to the POA to create any
indebtedness on behalf of Plaintiff Zhang;

5.4.15 Chang breached her fiduciary duty to Plaintiff Zhang by executing the
Note and Deed of Trust;

5.4.16 The Deed of Trust should be released and discharged as to the Property;
and

5.4.17 The Note and Deed of Trust are unenforceable for a lack of consideration.

5.5 Plaintiffs are entitled to recover reasonable and necessary attorneys’ fees.

VI.
SUIT TO QUIET TITLE

6.1 Plaintiffs incorporate the allegations set forth in the preceding Paragraphs, as if

fully set forth verbatim. In addition to, or in the alternative, the Plaintiffs seek to quiet title to

their homestead Property. The Plaintiffs assert that the Deed of Trust is invalid and creates a

cloud on Plaintiffs’ Property. Plaintiffs seek a judgment invalidating, releasing and discharging

the Deed of Trust lien quieting title to the Property.

VII.
FAILURE TO MITIGATE

7A ChiChi asserts a Failure to Mitigate Claim against Landlord.

VII.
CONDITIONS PRECEDENT

8.1 All conditions precedent to Plaintiffs’ claim for relief have been performed or

have occurred.

8.2 Pursuant to Rule 47 of the Texas Rules of Civil Procedure, this claim seeks

monetary relief valued at more than $200,000.00 and less than $1,000,000.00.

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 7 OF 15
Ix.
ATTORNEY FEES

91 Plaintiffs incorporate the allegations set forth in the preceding Paragraphs, as if

fully set forth verbatim. Plaintiffs have employed the undersigned attorney to file and prosecute

this suit. As a direct result of Defendant’s conduct, Plaintiffs have incurred reasonable and

necessary attorney fees for having to prosecute this complaint. Plaintiffs are entitled to recover

reasonable and necessary attorney fees for the trial of this action, including any appeals to the

Texas Court of Appeals and/or the Texas Supreme Court.

x.
AUTHENTICATION OF DOCUMENTS

10.1 Notice is given to Defendant that any and all documents produced during discovery

may be used and produced at any pretrial proceeding and/or trial of this matter without the necessity

of authenticating the document. This notice is given pursuant to Rule 193.7 of the Texas Rules of

Civil Procedure.

XI.
REQUEST FOR DISCLOSURE

11.1 Pursuant to Rule 194.2 of the Texas Rules of Civil Procedure, Defendant is

requested to disclose the information and/or materials described in Rule 194.2 of the Texas Rules of

Civil Procedure within fifty (50) days from the date of service of Plaintiff's Original Petition.

XII.

IMMINENT HARM

12.1 Despite the filing of this suit disputing the validity of the POA, Note and Deed of

Trust encumbering the homestead of Plaintiffs, Defendant Thomas L. Hunt, as substitute trustee,

acting on instructions from the Defendant Landlord, New Territory Investors, LP has given

notice that the Property is to be sold by the trustee pursuant to the powers contained in the Deed

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 8 OF 15
of Trust. The foreclosure sale by the trustee has been set for a time between 10:00 a.m. and 4:00

p.m. on April 7, 2020. Attached hereto as Exhibit “5” is a true and correct copy of the Notice of

Foreclosure Sale.

XII.

PROBABLE RIGHT TO RELIEF AND IRREPARABLE HARM

13.1 Plaintiffs incorporate the facts and allegations contained in the previous paragraphs

of this petition as though set forth fully herein. The Plaintiffs assert that they have a probable

tight to the relief requested in this petition. First and foremost, the Property is the homestead of

the Plaintiffs and has been since August 31, 2005 (See Special Warranty Deed conveying the

Property to the Plaintiff Zhang as a married man, executed on August 31, 2005 attached as

Exhibit “6”). The Deed of Trust is invalid because it secures a debt that is not one of the debts

allowed under the Texas Constitution that can be secured by a homestead. It is not a tax lien, it is

not a purchase money lien, it is not an improvement lien for which the "work and material [had

been] contracted for in writing, with the consent of both spouses nor is it a home equity or

reverse mortgage.

13.2 The Texas Constitution specifically protects homesteads from forced sales by

creditors, except for those liens securing one of the debts specifically listed in Article XVI, § 50.

In the instant case there is no such exception. The foregoing constitutional protection is liberally

construed to preserve the homestead in order to protect citizens from losing their homes. See

Kendall Builders Inc. v. Chesson, 149 S.W. 3d 706 (Tex. App.-Austin, 2004, Pet. denied). This

state has historically provided great protection for homesteads. See Mills v. Von Boskirk, 32 Tex.

360 (Tex., 1869). This original case remains good law and these protections have in fact been

codified. The Texas Property Code states that a homestead is "exempt from seizure for the

ZHANG, GEN Fu (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 9 OF 15
claims of creditors except for encumbrances properly fixed on homestead property." Tex. Prop.

Code Annotated Section 41.001(a).

Furthermore, he Guaranty, Note and Deed of Trust sought to be foreclosed were

executed
by Chang as attomey fact for Plaintiff Zhang pursuant to a Texas statutory durable

power of attomey limited only to real estate transactions See POA attached as Exhibit “1”).

Plaintiff Zhang personally never read or signed the Note and Deed of Trust and he asserts that

the POA was obtained by fraudulent means. Even assuming arguendo that the POA is valid,
the

POA did not authorize Chang to act with respect to any banking or other financial institution

transactions”. Those powers were explicitly excluded in the POA. The POA did not give Chang

the authority to execute a Note and create any indebtedness on Zhang's behalf. The POA did not

give Chang the authority to encumber Zhang’s homestead Property. Further, the POA did not

give Chang the authority to have Zhang answer or guarantee the debt of another Lastly the

execution
of the Note Deed of Trust and Guaranty were clearly in breach of the fiduciary duty

Chang owed Plaintiff Zhangpursuantto the POA.

he authority grantedby power
of attomey is strictly construed, so as to exclude

the exercise of any power that is not warranted either by the actual terms used, or as a necessary

means of executing the authority with effect. See Gouldyv. Metcalf, 75 Tex. 455, 12 S.W. 830

(1889) First Nat] Bankv. Kinabrew, 589 S.W.2d 137 (Tex. Civ. App.Tyler 1979) Therefore

the uaranty, Note and the Deed of Trust sought to be foreclosed are a nullity and the Plaintiffs

have a probable right to relief in regard to the claims they have asserted.

Lastly, the Deed of Trust was not executed by Zhang's wife Plaintiff Wang, who

has acommunity and homestead interest in the Property.As mentioned above, the Plaintiffs were

mamied on December 29, 1982 and acquired the Property on August 31, 2005 with community

funds and a loan which
was eventually paid off with community funds. The Defendant Landlord

was aware that Plaintiff Zhang was mamied at the time he executed the Deed of Trust because
HANG LIENT
18 5004 LAINTIFFS THIRD ETITION AND REQUEST FOR TRO AGE 100F 15
the Deed of Trust states the Grantor is “Gen Fu Zhang, a married man”. (See “Deed of Trust”

attached as Exhibit “3”). Even assuming arguendo that the Deed of Trust lien secured one of the

permitted homestead debts, the Deed of Trust would have required Plaintiff Limin Wang’s

signature to be valid. Under Texas law "whether the homestead is the separate property of either

spouse or community property; neither spouse may sell, convey, or encumber the homestead

without the joinder of the other spouse.". Tex. Fam. Code Ann. § 5.001. Therefore, the Plaintiffs

have a probable right to relief as to the claims made in this suit. (See Costello v. Hillcrest State

Bank, 380 S.W.2d 780 (Tex. Civ. App.—Dallas 1964) — court of appeals held that trial court

erred in not granting temporary injunction requested by wife who was not a party to Note and

Deed of Trust encumbering her homestead sought to be foreclosed.).

13.4 Further, in a temporary injunction, "the applicant need only show a probable right

and a probable injury; he is not required to establish that he will finally prevail in the litigation."

Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953);

Persyn v. Ishihara, 608 S.W.2d 279 (Tex. App. -- San Antonio 1980, no writ)

13) Despite this lawsuit being filed disputing the validity of the Guaranty, Note and

Deed of Trust, the Defendants have proceeded to post the Plaintiffs’ homestead Property for

foreclosure and, unless restrained, will sell or cause the Property to be sold. The Plaintiffs will

suffer irreparable injury unless the foreclosure sale is restrained and enjoined. The foreclosure

sale will deprive the Plaintiffs of the use and enjoyment of the Property, which is their

homestead.

XIV.

INADEQUATE REMEDY AT LAW

14.1 The Plaintiffs will show that there is no remedy at law that is clear and adequate

to protect the Plaintiffs’ Property interest against this wrongful foreclosure by the Defendants.

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 11 OF 15
The law recognizes that each and every piece of real estate is unique, and that this is certainly an

element to be considered in deciding whether there has been irreparable damages and an

inadequate remedy at law. Home Sav. of Am., F.A. v. Van Cleave Dev. Co., 737 S.W.2d 58 (Tex.

App.—San Antonio 1987). As mentioned above, the Property is the homestead of the Plaintiffs

that they obtained with community funds and a purchase money loan. The purchase money loan

was paid in full and the home mortgage was released on August 25, 2010. The Plaintiffs

therefore stand to lose not only the home they have shared together since August of 2005, but

also all the substantial equity in the Property. The Plaintiffs therefore request injunctive relief so

that justice may be done, not merely for delay.

XV.
PRAYER

15.1 Plaintiffs request that Defendant be cited to appear and answer, and that upon final

trial, Plaintiffs have judgment against Defendants as follows:

a. The court enter an order declaring that:

1 Chang lacked the authority under the POA to sign the Note, Deed of
Trust and Guaranty;

Defendant knew or should have known that Chang lacked the
authority under the POA to sign the Note, Deed of Trust and
Guaranty;

the POA lacks the requisite specificity to allow Chang to execute the
Note, Deed of Trust and Guaranty on behalf of Zhang;

the POA lacks the requisite specificity to the enforce the Note, Deed
of Trust and Guaranty;

the POA is unenforceable as a matter of law with respect to the Note,
Deed of Trust and Guaranty;

The Note, Deed of Trust and Guaranty are void or otherwise
unenforceable as a matter of law;

Zhang and Wang were married on Dec. 29, 1982;

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS” THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 12 oF 15
the roperty was purchased with commumity funds belonging to
Zhang and Wang; and is the community property of Zhang and
Wang;

‘Wang was not a party to the POA and did not authorize
Chang to act
on her behalf in any capacity;

the roperty is the residence and homestead of Plaintiffs

the note, eedof rust and guaranty are invalid, unenforceable
and
of no effect;

the POA Zhang executed was fraudulently obtained and is thus
null and void or otherwise unenforceable

Chang did not have any authority pursuant to the POA to create
any indebtedness on behalf of Plaintiff Zhang;

Chang breached
her fiduciary duty to Plaintiff Zhangby executing
the Note and Deed ofTrust;

The Deed of Trust should be released and discharged as to the
Property; and

The Note and Deed of Trust are unenforceable for a lack of
consideration.

A reduction and/or limitation on ChiChi’s obligation to Landlord for
landlord's failure to mitigate damages;

Recovery of reasonable and necessary attomey fees for the trial of this
action and all post trial activities including any appeals to the Texas Court
of Appeals and/or the Texas Supreme Court;

All costs of Court;

A temporary restraining orderbe issued without notice to the efendants,
restraining the efendants, their agents, servants, and employees, from
directly or indirectly selling or attempting to sell the roperty at the
foreclosure sale scheduled — April 7, 2020 and that after 14 days of entry
of this temporary restraining order, this order be automatically extended
another 14 days due to the extenuating circumstances caused by COVID

The efendants be cited to appear and show cause, and that on hearing,a
emporary injunction be issued enjoining efendants, their agents,
servants, and employees, from directly or indirectly selling or attempting
to sell the roperty under the power of sale contained inthe eedof rust

HANG LIENT
18 5004 LAINTIFFS THIRD ETITION AND REQUEST FOR TRO AGE 130F 15
during the pendency of this suit, and

g Such further and other relief, at law or in equity, to which Plaintiffs may
be justly entitled.

Respectfully submitted,
By: Law “75 (CES OF RAUL B. ROSEN, P.C.

/ AL
2 -
PAUL B. ROSEN, SB# 17264300
paul@rosenfirm.com
6750 West Loop South, Suite 800
Bellaire, Texas 77401
(713) 222-1502 — phone\(713) 665-6818 - fax
Attorney for Plaintiffs

CO-COUNSEL:
HARVEY LAW GROUP

/s/ Kelly J. Harvey
Kelly J. Harvey
SBN: 09180150
kelly@kellyharvey.com
P.O. Box 131407
Houston, Texas 77219
Tel. 832-922-4000
Fax 832-922-6262

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS’ THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 14 oF 15
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served
upon the parties listed below by e-service, or certified mail pursuant to Tex. R. Civ. P. 21(a) on
this 25th day of June, 2020:

/s/ Kelly J. Harvey
Kelly J. Harvey

Thomas L. Hunt
5353 West Alabama, Suite 605
Houston, Texas, 77019

ZHANG, GEN FU (CLIENT 18-5004 ) PLAINTIFFS’ THIRD AMENDED PETITION AND REQUEST FOR TRO PAGE 15 OF 15
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY
OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE REAL PROPERTY RECORDS: YOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

PETERSON NEW TERRITORY INVESTORS, LP
SHOPPING CENTER LEASE

ARTICLE 1 DEFINITIONS
Defined terms used in this Lease have the meanings assigned below. Other terms may be defined in connection
with their use.
Section 1.1 Landlord: Peterson New Territory Investors, LP, a Texas Limited Partnership.
Section 1.2 Tenant: CHICHI CHICKEN INC.
Section 1.3 Tenant’s Address: 5022Highway 90A , Ste Q, Sugar Land, TX 77498
Section 1.4 Guarantor(s): Gen Fu Zhang, 5022 HWY 90A, Ste Q Sugar Land, TX 77498
Section 1.5 Trade Name: Catfish Station
Section 1.6 Shopping Center: Landlord’s New Territory Shopping Center, located on the land described on
Exhibit “A”.
Section 1.7 Premises: A store unit comprising 2,250 square feet of Rentable Area located within the
Shopping Center at approximately the location shown on Exhibit “B”. Exhibits “A” and “B” are attached solely
for the purpose of locating the Shopping Center and the Premises within the Shopping Center. No promise is
implied by any other information shown on Exhibits “A” and “B”. Any information as to buildings, tenants or
prospective tenants, etc., is subjectto change at any time.
Section 1.8 Rent Payment Address: 2606 Grant Street, Houston, TX 77006
Landlord’s Address: 2606 Grant Street, Houston, TX 77006
Section 1.9 Rent. Rent consists of the following components:
1.9.1 Base Rent: The amount determined as follows:
1.9.1.1 $1.50 per square foot of Rentable Area per month during months 1 through 60 of the
Term;
1.9.1.2 $ 1.75 per square foot of Rentable Area per month during months 61 through 120 of
the Term;
1.9.2 Additional Rent, consisting of the following:
1.9.2.1 Tenant’s Pro Rata Share of Taxes, Tenant’s Pro Rata Share of Insurance Costs, and
Tenant’s Pro Rata Share of Common Area Costs, initially estimated to be $0.63 per month in the aggregate per
square foot of Rentable Area;

@
1.9.2.2 Other Periodic Charges (if applicable); and

Page -1-
1.9.2.3 Other charges designated in this Lease as Additional Rent.
If there is an Option Rider attached to this Lease, Rent during any option period will be determined in
accordance with such Option Rider.
Section 1.10 Permitted Use: Quick Serve/Fast Casual Seafood Restaurant serving fried or grilled fish &
shrimp & fried chicken, excluding sandwiches and po-boys of any kind whatsoever. Tenant shall not deviate
from this Permitted Use Section 1.10.
Section 1.11 Security Deposit: The sum of $25,355.00 which Tenant agrees to deposit with Landlord right
after Tenant signs this Lease.
Section 1.12 Escrow Funds: The sum of $5,355.00 which tenant agrees to deposit with Landlord right after
Tenant signs this lease. The Escrow Fund will be applied to Rent for the last month of the lease term.
Section 1.13 Prepaid Rent: The sum of $4,792.50 which Tenant agrees to deposit with Landlord after Tenant
signs this Lease. The Prepaid Rent will be applied to Rent for the first month (or partial month) of the Term for
which Rent is payable. THIS LEASE IS NOT BINDING UPON LANDLORD UNTIL LANDLORD HAS SIGNED THIS.
LEASE AND THE FULL AMOUNT OF THE SECURITY DEPOSIT AND PREPAID RENT HAS BEEN DEPOSITED WITH
LANDLORD; BUT THIS LEASE IS BINDING UPON TENANT IMMEDIATELY UPON TENANT’S SIGNATURE HERETO.
Section 1.14 Term:
1.14.1 Commencement Date: June 1, 2017. The Term will commence on the Commencement Date
and will continue for a period of 120 calendar months thereafter. The Term may be extended by the parties
upon mutual written agreement.
1.14.2 If the Commencement Date is not the first day of a calendar month, the partial period between
the Commencement Date and the first day of the next succeeding calendar month shall be added to the Term so
that the Term ends on the last day of a calendar month. Rent for such partial calendar month shall be prorated
on a daily basis.
1.14.3 A Lease Year commences on the first day of the first full calendar month within the Term and
ends on. the last day of the twelfth calendar month thereafter; except that if there is a partial month at the
beginning of the Term, the first Lease Year will include such partial calendar month (and therefore will be
longer than twelve [12] months). Each subsequent Lease Year begins the day following the expiration of the
prior Lease Year. The last Lease Year may contain less than 12 calendar months if number of months in the
Term is not an exact multiple of 12.
Section 1.15 Allowance Per Square Foot of Rentable Area: the sum of $____zero (0), which shall be paid
by Landlord in accordance with the terms of this Lease.
Section 1.16 Pre-Term Occupancy: Commencing on the date Landlord tenders the Premises to Tenant,
Tenant may occupy the Premises without payment of Rent to perform any work which Tenant is obligated to
perform in accordance with any Construction Rider attached hereto. Other than the obligation to pay Rent, all of
the other terms and provisions of this Lease (including those relating to Tenant’s Required Insurance) shall be

&
applicable.

Page -2-
&)
Section 1.17 Projected Tender Date: June 1, 2017.
Section 1.18 Number Of Renewal Options: None
Section 1.19 Renewal Term Duration: 0 (zero) months.
Section 1.20 Tenant’s Pro Rata Share: The number of square fect of Rentable Area in the Premises, divided
by the number of square feet of Rentable Area reasonably determined by Landlord to be within the Shopping
Center from time to time.
Section 1.21 Date of this Lease or Date hereof means the date that the latest of the following has occurred:
(i) Landlord and Tenant have each signed this Lease; (ii) Tenant has paid the Security Deposit and Prepaid Rent
to Landlord; (iii) Tenant’s Guarantor(s) (if applicable) have signed the Guaranty attached hereto.
Section 1,22 Addenda: The following Addenda are attached to this Lease:
Personal Guaranty
Rules and Regulations

ARTICLE 2 GRANTING CLAUSE AND QUIET POSSESSION
Section 2.1 Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from
Landlord.
Section 2.2 If Tenant performs all its covenants and agreements, Tenant will have peaceful and quiet
possession of the Premises during the Term, subject to this Lease and any mortgages, leases and other matters to
which this Lease is or becomes subordinate.

ARTICLE3 DELIVERY AND ACCEPTANCE OF PREMISES; TERM OF LEASE; HOLDOVER
Section 3.1 Tenant will accept possession of the Premises when Landlord tenders the Premises to Tenant,
whether such tender is before, on, or after the Projected Tender Date. By occupying the Premises, Tenant will
have accepted the Premises in their then “AS IS” condition and will have acknowledged that the Premises
comply fully with Landlord’s covenants and obligations hereunder, except only as to such items (“Punch List”)
which Tenant reasonably specifies to Landlord in writing within ten (10) days after such tender as not being in
compliance, and which Landlord reasonably agrees are not in compliance.
Section 3.2 Landlord shall not be in default for failing to tender the Premises on or before the Projected
Tender Date, whether such delay is caused by a tenant or occupant of the Premises holding over, for a cause
beyond Landlord’s reasonable control, or for a cause within Landlord’s control. However, if Landlord does not
tender the Premises to Tenant within thirty (30) days following the Projected Tender Date, Landlord may
terminate this Lease in which event both parties shall be released; and if Landlord does not tender the Premises
to Tenant within one hundred eighty (180) days following the Projected Tender Date (plus any period of delay
accountable to any cause beyond Landlord’s reasonable control), then Tenant also may terminate this Lease, in
which event both parties shall be released uniess Landlord tenders the Premises to Tenant within such thirty (30)

i
day period (plus any period of delay accountable to any cause beyond Landlord’s reasonable control).

Page -3- @)
1.9.2.3 Other charges designated in this Lease as Additional Rent.
If there is an Option Rider attached to this Lease, Rent during any option period will be determined in
accordance with such Option Rider.
Section 1.10 Permitted Use: Quick Serve/Fast Casual Seafood Restaurant
Section 1.11 Security Deposit: The sum of $25,355.00 which Tenant agrees to deposit with Landlord right
after Tenant signs this Lease.
Section 1.12 Escrow Funds: The sum of $5,355.00 which tenant agrees to deposit with Landlord right after
Tenant signs this lease. The Escrow Fund will be applied to Rent for the last month of the lease term.
Section 1.13 Prepaid Rent. The sum of $4,792.50 which Tenant agrees to deposit with Landlord after Tenant
signs this Lease. The Prepaid Rent will be applied to Rent for the first month (or partial month) of the Term for
which Rent is payable. THIS LEASE IS NOT BINDING UPON LANDLORD UNTIL LANDLORD HAS SIGNED THIS
LEASE AND THE FULL AMOUNT OF THE SECURITY DEPOSIT AND PREPAID RENT HAS BEEN DEPOSITED WITH
LANDLORD; BUT THIS LEASE IS BINDING UPON TENANT IMMEDIATELY UPON TENANT’S SIGNATURE HERETO.
Section 1.14 Term:
1.14.1 Commencement Date: June 1, 2017. The Term will commence on the Commencement Date
and will continue for a period of 120 calendar months thereafter. The Term may be extended by the parties
upon mutual written agreement.
1.14.2 If the Commencement Date is not the first day of a calendar month, the partial period between
the Commencement Date and the first day of the next succeeding calendar month shall be added to the Term so

that the Term ends on the last day of a calendar month. Rent for such partial calendar month shall be prorated
ona daily basis.
1.14.3. A Lease Year commences on the first day of the first full calendar month within the Term and
ends on the last day of the twelfth calendar month thereafter; except that if there is a partial month at the
beginning of the Term, the first Lease Year will include such partial calendar month (and therefore will be
longer than twelve [12] months). Each subsequent Lease Year begins the day following the expiration of the
prior Lease Year. The last Lease Year may contain less than 12 calendar months if number of months in the
Term is not an exact multiple of 12.
Section 1.15 Allowance Per Square Foot of Rentable Area: the sum of $___zero (0), which shall be paid
by Landlord in accordance with the terms of this Lease.
Section 1.16 Pre-Term Occupancy: Commencing on the date Landlord tenders the Premises to Tenant,
Tenant may occupy the Premises without payment of Rent to perform any work which Tenant is obligated to
perform in accordance with any Construction Rider attached hereto. Other than the obligation to pay Rent, all of
the other terms and provisions of this Lease (including those relating to Tenant’s Required Insurance) shall be
applicable.
Section 1.17 Projected Tender Date: June 1, 2017.
Section 1.18 Number Of Renewal Options: None
aY
Page -2- G)
Section 1.19 Renewal Term Duration: 0 (zero) months.
Section 1.20 Tenant’s Pro Rata Share: The number of square feet of Rentable Area in the Premises, divided
by the number of square feet of Rentable Area reasonably determined by Landlord to be within the Shopping
Center from time to time.
Section 1.21 Date of this Lease or Date hereof means the date that the latest of the following has occurred:
(i) Landlord and Tenant have each signed this Lease; (ii) Tenant has paid the Security Deposit and Prepaid Rent
to Landlord; (iii) Tenant’s Guarantor(s) (if applicable) have signed the Guaranty attached hereto.
Section 1.22 Addenda: The following Addenda are attached to this Lease:
Personal Guaranty
Rules and Regulations

ARTICLE2 GRANTING CLAUSE AND QUIET POSSESSION
Section 2.1 Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from
Landlord.
Section 2.2 If Tenant performs all its covenants and agreements, Tenant will have peaceful and quiet
possession of the Premises during the Term, subject to this Lease and any mortgages, leases and other matters to
which this Lease is or becomes subordinate.

ARTICLE3 DELIVERY AND ACCEPTANCE OF PREMISES; TERM OF LEASE; HOLDOVER
Section 3.1 Tenant will accept possession of the Premises when Landlord tenders the Pr

Case Info

Judge

R. O'Neil Williams Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

June 24, 2020

Case Filing Date

September 18, 2019

County

Parties

Chang, Tina Third Party Defendant
ChiChi Chicken Inc. Plaintiff
ChiChi Chicken Inc. Third Party Defendant
Foster C Johnson Attorney
Foster C Johnson Attorney for the Appellee
Foster C Johnson Attorney for the Defendant
Kevin Dubose Attorney for the Appellant
Paul Rosen Attorneys for Plaintiffs
Paul Rosen Attorney for the Plaintiff
Peterson New Territory Investors, LP Appellee
Peterson New Territory Investors, LP Counter-plaintiff
Peterson New Territory Investors, LP Defendant
Peterson New Territory Investors, LP Third Party Plaintiff
Rosen, Paul B. Appellant
Shawn Bates Attorney for the Defendant
Thomas L Hunt Attorney for the Defendant
Wang, Limin Counter-defendant
Wang, Limin Plaintiff
Zhang, Gen Fu Counter-defendant
Zhang, Gen Fu Plaintiff
Zhang, Rujia Third Party Defendant
Kelly Harvey Attorneys for Plaintiffs

For full print and download access, please subscribe at https://www.trellis.law/.

Complaint,Petition: Gen Fu Zhang & Limin Wang V. Peterson New Territory Investors, LP

Preview

Related Topics

Case Info

Parties