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CAUSE
THE WOODLAND HILLS § IN THE DISTRICT COURT
RESIDENTIAL COMMUNITY, INC. §
§
VS. § MONTGOMERY COUNTY, TEXAS
LON STERLING SCHUSTER § ________ JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
AND REQUEST FOR DECLARATORY RELIEF
COMES NOW, The Woodlands Hills Residential Community, Inc. (“Plaintiff”), and files
this Plaintiff’s Original Petition and Request for Declaratory Relief, complaining of Lon Sterling
Schuster Defendant”), and for cause of action would show unto the Court the following:
DISCOVERY PLAN
Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiff alleges that
it intends to conduct discovery under Level Two (2) of Rule 190.3 of the Texas Rules of Civil
Procedure.
RELIEF SOUGHT RULE 47
Plaintiff affirmatively pleads that it seeks monetary relief of $,000 or less and
monetary relief.
PARTIES
Plaintiff is a Texas non profit corporation transacting business in Montgomery
County, Texas.
4. Defendant, Lon Sterling Schuster, is an individual who may be served at 202 Rose
Gum Court, Willis, Texas 77318, or wherever else he may be found.
VENUE
Venue is proper in Montgomery County, Texas, because all of the events, or a
substantial portion of events, bringing rise to this cause of action occurred in Montgomery County,
Texas. The property in which foreclosure is being sought is located in Montgomery County, Texas.
This case is within the jurisdictional limits of this court.
NATURE OF THE CASE
This lawsuit has been filed by Plaintiff to collect delinquent assessments due and
owing on property owned by the Defendants and to foreclose Plaintiff's lien on such property.
Plaintiff has been organized for the purpose of caring for and maintaining
Woodland Hills (the "Subdivision"), and generally attending to the best interest of the property
owners in the Subdivision.
The Defendant the owner of a lot in the Subdivision, said lot being commonly
known as 202 Rose Gum Court, Willis, Texas 77318 and being legally described as follows:
LOT THIRTY SIX (36) IN BLOCK ONE (1) OF THE WOODLANDS HILLS
SEC. 7, A SUBDIVISION IN MONTGOMERY COUNTY, TEXAS,
ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN
CABINET Z, SHEET(S) 6128 31, OF THE MAP RECORDS OF
MONTGOMERY COUNTY, TEXAS(the "Property").
The Woodlands Hills Master Covenant as supplemented and amended from time
to time ("Declaration") was recorded in the office of the County Clerk of Montgomery County,
Texas. Thereafter, the Defendant took title to the Property by Special Warranty Deed with Vendors
Lien, and the Property is subject to the covenants, conditions, limitations, and stipulations set forth
in the Declaration.
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Section 204.010(a)(9) of the Texas Property Code provides that Plaintiff may
impose and receive payments, fees, or charges for the use, rental, or operation of common area
and for services provided to owners of real property in the Subdivision.
The Declaration and Section 204.010(a)(9) of the Texas Property Code provide that
all owners of real property in the Subdivision are required to pay assessments to Plaintiff in order
to meet the common expenses of the Subdivision. Failure to do so will cause an owner to also be
assessed reasonable and necessary attorneys' fees in connection with any collection proceedings,
late charges, costs of collection and interest on past due assessments.
DEFAULT
Although often requested to do so, orally and in writing, the Defendant ha failed
and refused, and continue to fail and refuse, to pay Plaintiff all such assessments properly due and
owing. Defendant’s failure to pay the aforementioned assessments in accordance with the
Declaration represents a material breach of the covenants between the parties, for which Plaintiff
is entitled to recover damages for delinquent assessments, and maximum attorneys' fees and
interest as allowable by law. Plaintiff is further entitled to such other assessments, interest, late
fees, costs of collection, and reasonable attorneys' fees as will continue to accrue subsequent to the
filing of this lawsuit.
All just and lawful offsets, payments and credits have been allowed.
DECLARATORY JUDGMENT
The Defendant holds title to the Property subject to a lien reserved by Plaintiff to
secure the above described assessments and other charges consistent with the terms and provisions
of the Restrictions.
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Plaintiff seeks a declaration pursuant to Chapter 37 of the Texas Civil Practice and
Remedies Code that it has a valid lien against the Property owned by the Defendant and that
Plaintiff is entitled to foreclosure of said lien in order to recover the assessments and any other
charges due and owing from the Defendant.
Plaintiff seeks foreclosure of the hereinabove described lien and therefore seeks an
Order of Sale and Writ of Possession against the Defendant with respect to the Property.
Furthermore, Plaintiff seeks to have the proceeds of such sale be applied against the total amount
of Plaintiff's claim against the Defendant.
All conditions precedent to Plaintiff's right to recover from the Defendant have
occurred, been performed, or been waived by the Defendant.
QUANTUM MERUIT
In the alternative, without waiving any of the foregoing, Plaintiff will show that the
Defendant ha received the use and benefit of services from the Plaintiff and is thereby indebted
to Plaintiff in quantum meruit. The Defendant obligated by law to pay a reasonable value for
services which are rendered pursuant to the Declaration and received by the Defendant. Plaintiff
is now suing the reasonable value of the service which is provided to the Defendant.
ATTORNEYS’ FEES
Consistent with the terms and provisions of the Declaration, Plaintiff seeks to
recover its reasonable attorneys' fees herein. Plaintiff has made written demand upon the
Defendant for payment at least 30 days prior to trial herein. However, the Defendant has failed to
tender full payment of the amount due and owing, forcing Plaintiff to seek the legal services of
Hoover Slovacek LLP to represent it in this action. Plaintiff would respectfully show unto this
Court that the recovery of attorneys' fees is authorized pursuant to the Declaration, Chapters 37
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and 38 of the Civil Practice & Remedies Code, and Sections 204. 010, 209.008 and 5.006 of the
Texas Property Code. Plaintiff therefore sues the Defendant for reasonable attorneys' fees,
including the Court's approval of additional attorneys' fees in the event of an appeal.
Pursuant to Rule 166b of the Texas Rules of Civil Procedure, Plaintiff hereby
designates the undersigned attorney, Curtis McCreight, as its expert to testify as to reasonable and
necessary attorneys’ fees incurred by Plaintiff in the preparation, discovery, and trial of this
lawsuit. Plaintiff also designates any other counsel associated with the undersigned law firm who
may be handling this suit at the time of trial as its expert on the issue of reasonable and necessary
attorneys’ fees incurred by the Plaintiff in this lawsuit.
PRAYER
WHEREFORE, Plaintiff requests and prays that the Defendant be cited to appear and
answer, and that upon final trial hereof, Plaintiff have and recover as follows:
Judgment against Defendant for delinquent assessments and interest, late
fees, and costs of collection on all such past due sums at the maximum rate
allowed by law from the respective dates due until paid;
Declaration that Plaintiff has a valid lien on the Property;
Foreclosure of the lien on the Property securing the Defendant’s obligations
to Plaintiff, and for an Order of Sale and against the Defendant for the
Property with a further order that the proceeds of such sale be applied
against the total amount of Plaintiff's claim as set forth herein;
Reasonable attorneys' fees through time of trial and such further attorneys'
fees in the event this matter is appealed;
All costs of Court expended by Plaintiff herein;
Post-judgment interest at the highest rate allowed by law on the attorneys’
fees awarded herein from the date of judgment until paid; and
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All such other and further relief, both general and special, legal and
equitable, to which Plaintiff may be justly entitled.
Respectfully submitted,
HOOVER SLOVACEK LLP
By: /s/ Curtis McCreight
Curtis McCreight
State Bar No. 00794980
Galleria Tower II
5051 Westheimer, Suite 1200
Houston, Texas 77056
(713) 977-8686/Fax: (713) 977-5395
mccreight@hooverslovacek.com
ATTORNEYS FOR PLAINTIFF
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CAUSE THE WOODLAND HILLS § IN THE DISTRICT COURT RESIDENTIAL COMMUNITY, INC. § § VS. § MONTGOMERY COUNTY, TEXAS LON STERLING SCHUSTER § ________ JUDICIAL DISTRICT PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DECLARATORY RELIEF COMES NOW, The Woodlands Hills Residential Community, Inc. (“Plaintiff”), and files this Plaintiff’s Original Petition and Request for Declaratory Relief, complaining of Lon Sterling Schuster Defendant”), and for cause of action would show unto the Court the following: DISCOVERY PLAN Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiff alleges that it intends to conduct discovery under Level Two (2) of Rule 190.3 of the Texas Rules of Civil Procedure. RELIEF SOUGHT RULE 47 Plaintiff affirmatively pleads that it seeks monetary relief of $,000 or less and monetary relief. PARTIES Plaintiff is a Texas non profit corporation transacting business in Montgomery County, Texas. 4. Defendant, Lon Sterling Schuster, is an individual who may be served at 202 Rose Gum Court, Willis, Texas 77318, or wherever else he may be found. VENUE Venue is proper in Montgomery County, Texas, because all of the events, or a substantial portion of events, bringing rise to this cause of action occurred in Montgomery County, Texas. The property in which foreclosure is being sought is located in Montgomery County, Texas. This case is within the jurisdictional limits of this court. NATURE OF THE CASE This lawsuit has been filed by Plaintiff to collect delinquent assessments due and owing on property owned by the Defendants and to foreclose Plaintiff's lien on such property. Plaintiff has been organized for the purpose of caring for and maintaining Woodland Hills (the "Subdivision"), and generally attending to the best interest of the property owners in the Subdivision. The Defendant the owner of a lot in the Subdivision, said lot being commonly known as 202 Rose Gum Court, Willis, Texas 77318 and being legally described as follows: LOT THIRTY SIX (36) IN BLOCK ONE (1) OF THE WOODLANDS HILLS SEC. 7, A SUBDIVISION IN MONTGOMERY COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN CABINET Z, SHEET(S) 6128 31, OF THE MAP RECORDS OF MONTGOMERY COUNTY, TEXAS(the "Property"). The Woodlands Hills Master Covenant as supplemented and amended from time to time ("Declaration") was recorded in the office of the County Clerk of Montgomery County, Texas. Thereafter, the Defendant took title to the Property by Special Warranty Deed with Vendors Lien, and the Property is subject to the covenants, conditions, limitations, and stipulations set forth in the Declaration. Page | Section 204.010(a)(9) of the Texas Property Code provides that Plaintiff may impose and receive payments, fees, or charges for the use, rental, or operation of common area and for services provided to owners of real property in the Subdivision. The Declaration and Section 204.010(a)(9) of the Texas Property Code provide that all owners of real property in the Subdivision are required to pay assessments to Plaintiff in order to meet the common expenses of the Subdivision. Failure to do so will cause an owner to also be assessed reasonable and necessary attorneys' fees in connection with any collection proceedings, late charges, costs of collection and interest on past due assessments. DEFAULT Although often requested to do so, orally and in writing, the Defendant ha failed and refused, and continue to fail and refuse, to pay Plaintiff all such assessments properly due and owing. Defendant’s failure to pay the aforementioned assessments in accordance with the Declaration represents a material breach of the covenants between the parties, for which Plaintiff is entitled to recover damages for delinquent assessments, and maximum attorneys' fees and interest as allowable by law. Plaintiff is further entitled to such other assessments, interest, late fees, costs of collection, and reasonable attorneys' fees as will continue to accrue subsequent to the filing of this lawsuit. All just and lawful offsets, payments and credits have been allowed. DECLARATORY JUDGMENT The Defendant holds title to the Property subject to a lien reserved by Plaintiff to secure the above described assessments and other charges consistent with the terms and provisions of the Restrictions. Page | Plaintiff seeks a declaration pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code that it has a valid lien against the Property owned by the Defendant and that Plaintiff is entitled to foreclosure of said lien in order to recover the assessments and any other charges due and owing from the Defendant. Plaintiff seeks foreclosure of the hereinabove described lien and therefore seeks an Order of Sale and Writ of Possession against the Defendant with respect to the Property. Furthermore, Plaintiff seeks to have the proceeds of such sale be applied against the total amount of Plaintiff's claim against the Defendant. All conditions precedent to Plaintiff's right to recover from the Defendant have occurred, been performed, or been waived by the Defendant. QUANTUM MERUIT In the alternative, without waiving any of the foregoing, Plaintiff will show that the Defendant ha received the use and benefit of services from the Plaintiff and is thereby indebted to Plaintiff in quantum meruit. The Defendant obligated by law to pay a reasonable value for services which are rendered pursuant to the Declaration and received by the Defendant. Plaintiff is now suing the reasonable value of the service which is provided to the Defendant. ATTORNEYS’ FEES Consistent with the terms and provisions of the Declaration, Plaintiff seeks to recover its reasonable attorneys' fees herein. Plaintiff has made written demand upon the Defendant for payment at least 30 days prior to trial herein. However, the Defendant has failed to tender full payment of the amount due and owing, forcing Plaintiff to seek the legal services of Hoover Slovacek LLP to represent it in this action. Plaintiff would respectfully show unto this Court that the recovery of attorneys' fees is authorized pursuant to the Declaration, Chapters 37 Page | and 38 of the Civil Practice & Remedies Code, and Sections 204. 010, 209.008 and 5.006 of the Texas Property Code. Plaintiff therefore sues the Defendant for reasonable attorneys' fees, including the Court's approval of additional attorneys' fees in the event of an appeal. Pursuant to Rule 166b of the Texas Rules of Civil Procedure, Plaintiff hereby designates the undersigned attorney, Curtis McCreight, as its expert to testify as to reasonable and necessary attorneys’ fees incurred by Plaintiff in the preparation, discovery, and trial of this lawsuit. Plaintiff also designates any other counsel associated with the undersigned law firm who may be handling this suit at the time of trial as its expert on the issue of reasonable and necessary attorneys’ fees incurred by the Plaintiff in this lawsuit. PRAYER WHEREFORE, Plaintiff requests and prays that the Defendant be cited to appear and answer, and that upon final trial hereof, Plaintiff have and recover as follows: Judgment against Defendant for delinquent assessments and interest, late fees, and costs of collection on all such past due sums at the maximum rate allowed by law from the respective dates due until paid; Declaration that Plaintiff has a valid lien on the Property; Foreclosure of the lien on the Property securing the Defendant’s obligations to Plaintiff, and for an Order of Sale and against the Defendant for the Property with a further order that the proceeds of such sale be applied against the total amount of Plaintiff's claim as set forth herein; Reasonable attorneys' fees through time of trial and such further attorneys' fees in the event this matter is appealed; All costs of Court expended by Plaintiff herein; Post-judgment interest at the highest rate allowed by law on the attorneys’ fees awarded herein from the date of judgment until paid; and Page | All such other and further relief, both general and special, legal and equitable, to which Plaintiff may be justly entitled. Respectfully submitted, HOOVER SLOVACEK LLP By: /s/ Curtis McCreight Curtis McCreight State Bar No. 00794980 Galleria Tower II 5051 Westheimer, Suite 1200 Houston, Texas 77056 (713) 977-8686/Fax: (713) 977-5395 mccreight@hooverslovacek.com ATTORNEYS FOR PLAINTIFF Page |