Preview
Filed: 6/17/2021 10:01 AM
J OHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 54507901
By: Lisa Kelly
21-CV-0857 6/17/2021 1:23 PM
NO.
LAKESIDE LUTHERAN CHURCH IN THE DISTRICT COURT
Plaintiff, Galveston County - 122nd District Court
V. ____ JUDICIAL DISTRICT
ECO RESTORATION & CLEANING
SERVICES & FAMILY PROMISE OF
CLEAR CREEK
Defendant. § OF GALVESTON COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION & APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND TEMPORARY AND PERMANENT INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Lakeside Lutheran Church, hereinafter called Plaintiff, complaining of and
about Eco Restoration & Cleaning Services, hereinafter called ERC and about Family Promise of
Clear Lake, hereinafter called Family Promise, and for cause of action would show unto the Court
the following:
L DISCOVERY CONTROL PLAN LEVEL
1 Plaintiff intends that discovery be conducted under Discovery Level 2.
I. PARTIES AND SERVICE
2. Plaintiff, Lakeside Lutheran Church, is a Limited Liability Company whose address
is 1101 South Egret Bay Boulevard, League City, Texas 77573.
3 Defendant Eco Restoration & Cleaning Services, a Limited Liability Company
based in Texas, may be served with process by serving the registered agent of said company,
Amanda K Murphy, at 100 E. Nasa Pkwy, Unit 407, Webster, TX 77598, its registered office.
Service of said Defendant as described above can be effected by personal delivery.
4 Defendant Family Promise of Clear Creek, a Domestic Nonprofit Corporation
Status Conference set 9-16-21
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based in Texas, may be served with process by serving the registered agent of said company,
Connie J. Nyquist, 1011 South Egret Bay, League City, TX 77573, its registered office. Service
of said Defendant as described above can be effected by personal delivery.
I. JURISDICTION AND VENUE
5 The court has jurisdiction over this action to quiet title pursuant to Article V,
Section 8 of the Texas Constitution and Section 26.043(8) of the Texas Government Code.
6. Venue in Galveston County is proper in this cause under Section 15.011 of the
Texas Civil Practice and Remedies Code because this action involves real property located in
Galveston County. The subject matter in controversy is within the jurisdictional limits of this court.
Plaintiff seeks monetary relief of $250,000 or less and non-monetary relief.
Iv. FACTS
7
This is an action to quiet title on real property, declaratory judgment, and breach of
contract. The Property is located at the municipal address of 1101 S Egret Bay Blvd, League City,
TX 77573, in the county of GALVESTON. APN 4604-0003-0022-001, briefly described as ABST
18 PAGE 3/21 PT OF LOT 22 (22-1) DIV C LEAGUE CITY, Subdivision: LEAGUE CITY DIV
C. Municipality/Township of LEAGUE CITY. Legal Lot 22. The Property more particularly
describe above will be referred to as "The Property”.
8 Plaintiff was the rightful owner of The Property. Plaintiff leased a portion of The
Property to Family Promise pursuant to the terms of a lease agreement dated July 1, 2019 and
attached hereto as Exhibit LL-1. Specifically, Plaintiff leased a parsonage on The Property to
Family Promise to be used in their work with the homeless.
9 The recent freeze in February of 2021 caused extensive damage to the parsonage
leased by Family Promise.
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10. There were numerous provisions in the lease agreement between Family Promise
and Plaintiff including but not limited to a provision that required Family Promise not to perform
any repair or remediation work without the express permission of Plaintiff and without allowing
Plaintiff to approve the party performing the work. The provision specifically states, “C.
Completion of Repairs: (1) Tenant may not repair or cause to be repaired any condition, regardless
of the cause, without Landlord's permission. All decisions regarding repairs, Including the
completion of any repair, whether to repair or replace the item, and the selection of contractors,
will be at Landlord's sole discretion.”
1 On April 14, 2021, Plaintiff received a final demand for payment for an outstanding
debt of $36,653.74 from Defendant ERC. Plaintiff had not hired ERC and had not approved their
hiring by Family Promise.
12. A dispute has arisen between ERC and Family Promise regarding what work was
performed at the leased premises and whether that work was authorized. Family Promise claims
that the work performed by ERC was not authorized and ERC claims that the work was authorized,
performed, but the bill was not paid.
13. Considering Plaintiff neither chose ERC nor approved the work allegedly
performed, Plaintiff is in the difficult situation of being in the middle of the dispute of the two
parties. Additionally, Plaintiff has sold The Property at issue to a third party.
14. Defendant, Eco Restoration & Cleaning Services, purports to have an adverse claim
or interest in The Property that operates as a cloud on Plaintiff's title to The Property. The nature
of Defendant's interest in The Property comes in the form of a Mechanic's and Materialmen's Lien
against The Property.
15. The claim or interest of Defendant, Eco Restoration & Cleaning Services, may be
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invalid, unenforceable or without right against Plaintiff as it is alleged that the work performed
was not authorized.
16. Additionally, there is a dispute between Family Promise and Plaintiff regarding the
nature of the lease agreement between the parties. Family Promise alleges that the contract at issue
was a residential contract, however, it is a commercial lease as the entity of Family Promise cannot
enter into a residential tenancy. Tex. Prop. Code Ann. § 92.001(6).
17. ERC has threatened to file a lien against The Property at issue unless it is paid for
the invoice for the disputed work. Because The Property has been sold to a third party, if this
matter is not resolved, it will cause further litigation and damages which will be difficult or
impossible to measure.
18. Unless ERC is immediately enjoined and restrained, Defendant will move forward
with the lien process and cause additional damages and litigation.
V. DECLARATORY JUDGMENT
19. There exists a genuine controversy between the parties herein that would be
terminated by the granting of declaratory judgment. Plaintiff therefore requests that declaratory
judgment be entered as follows:
a. That the agreement between Plaintiff and Defendant Family Promise be
construed as a commercial rather than a residential lease agreement.
20. Pursuant to Section 37.001 et seq of the Texas Civil Practice and Remedies Code,
Plaintiff requests a declaratory judgment that the lease agreement between Plaintiff and Family
Promise is a commercial lease agreement rather than a residential lease agreement.
VI. INJUNCTIVE RELIEF
21. Plaintiff requests that ERC, and all persons or entities claiming under ERC, be
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enjoined from filing a lien for the work performed under the estimate on The Property at issue and
from foreclosing on that lien until the issues pertaining to the work, how ERC came to be hired,
and whether the work was performed and authorized can be fully litigated.
Vil. ELEMENTS FOR INJUNCTIVE RELIEF
22. In light of the above-described facts, Plaintiff seeks recovery from ERC. The nature
of the lawsuit is an action to quiet title, for breach of contract and for declaratory relief.
23: Plaintiff is likely to succeed on the merits of this lawsuit because one of two
situations is true. The first is that the work by ERC was authorized by Family Promise and needs
to be paid to ERC leaving the dispute between Family Promise and Plaintiff. The other is that the
work by ERC was not authorized by Family Promise in which the dispute correctly lies between
Plaintiff and ERC.
24. Unless this Honorable Court immediately restrains the Defendant ERC, Plaintiff
will suffer immediate and irreparable injury, for which there is no adequate remedy at law to give
Plaintiff complete, final and equal relief. More specifically, Plaintiff will show the court the
following:
a. The harm to Plaintiff is imminent because The Property at issue has been
sold to a third party. If ERC pursues the lien against The Property, that third party will
likely move to rescind the sale or file costly litigation.
b This imminent harm will cause Plaintiff irreparable injury in that the
measure of damages for the rescinded sale and the costs of litigation along with attorney’s
fees will be extremely costly and extraordinarily difficult to measure.
Cc. There is no adequate remedy at law which will give Plaintiff complete, final
and equal relief because if the real estate sale is rescinded and litigation moves forward,
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the damages will be vast and extremely difficult to calculate.
vil. BOND
DS: Plaintiff is willing to post a reasonable temporary restraining order bond and
requests the court to set such bond.
xX. REMEDY
26. Plaintiff has met Plaintiff's burden by establishing each element which must be
present before injunctive relief can be granted by this court, therefore Plaintiff is entitled to the
requested temporary restraining order.
27. Plaintiff requests the court to restrain Defendant from filing a lien for the work
performed under the estimate on The Property at issue and from foreclosing on that lien.
28. It is essential that the court immediately and temporarily restrain ERC, Defendant
herein, from filing a lien for the work performed under the estimate on The Property at issue and
from foreclosing on that lien. It is essential that the court act immediately, prior to giving notice to
Defendant and a hearing on the matter because if the lien is filed or foreclosed, then the rescission
of the sales agreement and the litigation which ensues will cause damages which will be extremely
difficult to estimate and to recover.
29. In order to preserve the status quo during the pendency of this action, Plaintiff
requests that the Defendant be temporarily enjoined from filing a lien for the work performed
under the estimate on The Property at issue and from foreclosing on that lien.
30. On final trial on the merits, that the Court permanently enjoin Eco Restoration &
Cleaning Services, Defendant herein, from filing a lien for the work performed under the estimate
on The Property at issue and from foreclosing on that lien.
xX. ATTORNEY'S FEES
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31. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request
is made for all costs and reasonable and necessary attomey's fees incurred by Plaintiff herein,
including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the
Supreme Court of Texas, as the Court deems equitable and just.
XL PRAYER
WHEREFORE, PREMISES CONSIDERED, Lakeside Lutheran Church, Plaintiff herein,
respectfully prays that:
a. Eco Restoration & Cleaning Services, Defendant, will be cited to appear and
answer herein;
b A temporary restraining order will issue without notice to Eco Restoration &
Cleaning Services, Defendant, restraining Defendant, Defendant's officers, agents, servants,
employees, agents, servants, successors and assigns, and attorneys from directly or indirectly filing
a lien for the work performed under the estimate on The Property at issue and from foreclosing on
that lien.
C. The Court sets a reasonable bond for the temporary restraining order;
d After notice and hearing, a temporary injunction will issue enjoining and restraining
Eco Restoration & Cleaning Services, Defendant, Defendant's officers, agents, servants,
employees, successors and assigns, and attorneys from directly or indirectly filing a lien for the
work performed under the estimate on The Property at issue and from foreclosing on that lien, that
Eco Restoration & Cleaning Services will commit the foregoing before notice and a hearing on
Plaintiff's Application for Temporary Injunction.
€. After trial on the merits, the court grant Plaintiff judgment quieting title to The
Property and removing cloud on Plaintiff's title; declaratory judgment; injunctive relief; award of
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attorney's fees and costs, and any other relief at law or in equity to which Plaintiff is entitled.
Respectfully submitted,
we. LIEU
John H, Moon II
Texas Bar No. 24071114
Email: jmoon@moonlawfirm.com
1111 Fairmont Parkway
PASADENA, TX 77504
Tel. (713) 999-9398
Fax. (832) 383-9795
Attorney for Plaintiff
Lakeside Lutheran Church
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
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Preview
Filed: 6/17/2021 10:01 AM J OHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 54507901 By: Lisa Kelly 21-CV-0857 6/17/2021 1:23 PM NO. LAKESIDE LUTHERAN CHURCH IN THE DISTRICT COURT Plaintiff, Galveston County - 122nd District Court V. ____ JUDICIAL DISTRICT ECO RESTORATION & CLEANING SERVICES & FAMILY PROMISE OF CLEAR CREEK Defendant. § OF GALVESTON COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION & APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY AND PERMANENT INJUNCTION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Lakeside Lutheran Church, hereinafter called Plaintiff, complaining of and about Eco Restoration & Cleaning Services, hereinafter called ERC and about Family Promise of Clear Lake, hereinafter called Family Promise, and for cause of action would show unto the Court the following: L DISCOVERY CONTROL PLAN LEVEL 1 Plaintiff intends that discovery be conducted under Discovery Level 2. I. PARTIES AND SERVICE 2. Plaintiff, Lakeside Lutheran Church, is a Limited Liability Company whose address is 1101 South Egret Bay Boulevard, League City, Texas 77573. 3 Defendant Eco Restoration & Cleaning Services, a Limited Liability Company based in Texas, may be served with process by serving the registered agent of said company, Amanda K Murphy, at 100 E. Nasa Pkwy, Unit 407, Webster, TX 77598, its registered office. Service of said Defendant as described above can be effected by personal delivery. 4 Defendant Family Promise of Clear Creek, a Domestic Nonprofit Corporation Status Conference set 9-16-21 1| based in Texas, may be served with process by serving the registered agent of said company, Connie J. Nyquist, 1011 South Egret Bay, League City, TX 77573, its registered office. Service of said Defendant as described above can be effected by personal delivery. I. JURISDICTION AND VENUE 5 The court has jurisdiction over this action to quiet title pursuant to Article V, Section 8 of the Texas Constitution and Section 26.043(8) of the Texas Government Code. 6. Venue in Galveston County is proper in this cause under Section 15.011 of the Texas Civil Practice and Remedies Code because this action involves real property located in Galveston County. The subject matter in controversy is within the jurisdictional limits of this court. Plaintiff seeks monetary relief of $250,000 or less and non-monetary relief. Iv. FACTS 7 This is an action to quiet title on real property, declaratory judgment, and breach of contract. The Property is located at the municipal address of 1101 S Egret Bay Blvd, League City, TX 77573, in the county of GALVESTON. APN 4604-0003-0022-001, briefly described as ABST 18 PAGE 3/21 PT OF LOT 22 (22-1) DIV C LEAGUE CITY, Subdivision: LEAGUE CITY DIV C. Municipality/Township of LEAGUE CITY. Legal Lot 22. The Property more particularly describe above will be referred to as "The Property”. 8 Plaintiff was the rightful owner of The Property. Plaintiff leased a portion of The Property to Family Promise pursuant to the terms of a lease agreement dated July 1, 2019 and attached hereto as Exhibit LL-1. Specifically, Plaintiff leased a parsonage on The Property to Family Promise to be used in their work with the homeless. 9 The recent freeze in February of 2021 caused extensive damage to the parsonage leased by Family Promise. 2| 10. There were numerous provisions in the lease agreement between Family Promise and Plaintiff including but not limited to a provision that required Family Promise not to perform any repair or remediation work without the express permission of Plaintiff and without allowing Plaintiff to approve the party performing the work. The provision specifically states, “C. Completion of Repairs: (1) Tenant may not repair or cause to be repaired any condition, regardless of the cause, without Landlord's permission. All decisions regarding repairs, Including the completion of any repair, whether to repair or replace the item, and the selection of contractors, will be at Landlord's sole discretion.” 1 On April 14, 2021, Plaintiff received a final demand for payment for an outstanding debt of $36,653.74 from Defendant ERC. Plaintiff had not hired ERC and had not approved their hiring by Family Promise. 12. A dispute has arisen between ERC and Family Promise regarding what work was performed at the leased premises and whether that work was authorized. Family Promise claims that the work performed by ERC was not authorized and ERC claims that the work was authorized, performed, but the bill was not paid. 13. Considering Plaintiff neither chose ERC nor approved the work allegedly performed, Plaintiff is in the difficult situation of being in the middle of the dispute of the two parties. Additionally, Plaintiff has sold The Property at issue to a third party. 14. Defendant, Eco Restoration & Cleaning Services, purports to have an adverse claim or interest in The Property that operates as a cloud on Plaintiff's title to The Property. The nature of Defendant's interest in The Property comes in the form of a Mechanic's and Materialmen's Lien against The Property. 15. The claim or interest of Defendant, Eco Restoration & Cleaning Services, may be 3] invalid, unenforceable or without right against Plaintiff as it is alleged that the work performed was not authorized. 16. Additionally, there is a dispute between Family Promise and Plaintiff regarding the nature of the lease agreement between the parties. Family Promise alleges that the contract at issue was a residential contract, however, it is a commercial lease as the entity of Family Promise cannot enter into a residential tenancy. Tex. Prop. Code Ann. § 92.001(6). 17. ERC has threatened to file a lien against The Property at issue unless it is paid for the invoice for the disputed work. Because The Property has been sold to a third party, if this matter is not resolved, it will cause further litigation and damages which will be difficult or impossible to measure. 18. Unless ERC is immediately enjoined and restrained, Defendant will move forward with the lien process and cause additional damages and litigation. V. DECLARATORY JUDGMENT 19. There exists a genuine controversy between the parties herein that would be terminated by the granting of declaratory judgment. Plaintiff therefore requests that declaratory judgment be entered as follows: a. That the agreement between Plaintiff and Defendant Family Promise be construed as a commercial rather than a residential lease agreement. 20. Pursuant to Section 37.001 et seq of the Texas Civil Practice and Remedies Code, Plaintiff requests a declaratory judgment that the lease agreement between Plaintiff and Family Promise is a commercial lease agreement rather than a residential lease agreement. VI. INJUNCTIVE RELIEF 21. Plaintiff requests that ERC, and all persons or entities claiming under ERC, be 4| enjoined from filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien until the issues pertaining to the work, how ERC came to be hired, and whether the work was performed and authorized can be fully litigated. Vil. ELEMENTS FOR INJUNCTIVE RELIEF 22. In light of the above-described facts, Plaintiff seeks recovery from ERC. The nature of the lawsuit is an action to quiet title, for breach of contract and for declaratory relief. 23: Plaintiff is likely to succeed on the merits of this lawsuit because one of two situations is true. The first is that the work by ERC was authorized by Family Promise and needs to be paid to ERC leaving the dispute between Family Promise and Plaintiff. The other is that the work by ERC was not authorized by Family Promise in which the dispute correctly lies between Plaintiff and ERC. 24. Unless this Honorable Court immediately restrains the Defendant ERC, Plaintiff will suffer immediate and irreparable injury, for which there is no adequate remedy at law to give Plaintiff complete, final and equal relief. More specifically, Plaintiff will show the court the following: a. The harm to Plaintiff is imminent because The Property at issue has been sold to a third party. If ERC pursues the lien against The Property, that third party will likely move to rescind the sale or file costly litigation. b This imminent harm will cause Plaintiff irreparable injury in that the measure of damages for the rescinded sale and the costs of litigation along with attorney’s fees will be extremely costly and extraordinarily difficult to measure. Cc. There is no adequate remedy at law which will give Plaintiff complete, final and equal relief because if the real estate sale is rescinded and litigation moves forward, 5| the damages will be vast and extremely difficult to calculate. vil. BOND DS: Plaintiff is willing to post a reasonable temporary restraining order bond and requests the court to set such bond. xX. REMEDY 26. Plaintiff has met Plaintiff's burden by establishing each element which must be present before injunctive relief can be granted by this court, therefore Plaintiff is entitled to the requested temporary restraining order. 27. Plaintiff requests the court to restrain Defendant from filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien. 28. It is essential that the court immediately and temporarily restrain ERC, Defendant herein, from filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien. It is essential that the court act immediately, prior to giving notice to Defendant and a hearing on the matter because if the lien is filed or foreclosed, then the rescission of the sales agreement and the litigation which ensues will cause damages which will be extremely difficult to estimate and to recover. 29. In order to preserve the status quo during the pendency of this action, Plaintiff requests that the Defendant be temporarily enjoined from filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien. 30. On final trial on the merits, that the Court permanently enjoin Eco Restoration & Cleaning Services, Defendant herein, from filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien. xX. ATTORNEY'S FEES 6| 31. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request is made for all costs and reasonable and necessary attomey's fees incurred by Plaintiff herein, including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just. XL PRAYER WHEREFORE, PREMISES CONSIDERED, Lakeside Lutheran Church, Plaintiff herein, respectfully prays that: a. Eco Restoration & Cleaning Services, Defendant, will be cited to appear and answer herein; b A temporary restraining order will issue without notice to Eco Restoration & Cleaning Services, Defendant, restraining Defendant, Defendant's officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys from directly or indirectly filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien. C. The Court sets a reasonable bond for the temporary restraining order; d After notice and hearing, a temporary injunction will issue enjoining and restraining Eco Restoration & Cleaning Services, Defendant, Defendant's officers, agents, servants, employees, successors and assigns, and attorneys from directly or indirectly filing a lien for the work performed under the estimate on The Property at issue and from foreclosing on that lien, that Eco Restoration & Cleaning Services will commit the foregoing before notice and a hearing on Plaintiff's Application for Temporary Injunction. €. After trial on the merits, the court grant Plaintiff judgment quieting title to The Property and removing cloud on Plaintiff's title; declaratory judgment; injunctive relief; award of 7\ attorney's fees and costs, and any other relief at law or in equity to which Plaintiff is entitled. Respectfully submitted, we. LIEU John H, Moon II Texas Bar No. 24071114 Email: jmoon@moonlawfirm.com 1111 Fairmont Parkway PASADENA, TX 77504 Tel. (713) 999-9398 Fax. (832) 383-9795 Attorney for Plaintiff Lakeside Lutheran Church PLAINTIFF HEREBY DEMANDS TRIAL BY JURY 8|