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Received and E-Filed for Record
8/6/2019 11:57 AM
Melisa Miller, District Clerk
Montgomery County, Texas
19-08-10652 Deputy Clerk, Megan Shiflett
Cause No. __________________
BENTWATER PROPERTY OWNERS § IN THE DISTRICT COURT OF
ASSOCIATION, INC., §
Plaintiff, §
§
VS. § MONTGOMERY COUNTY, TEXAS
§
ALEJANDRO ALAVEZ BELLO, § Montgomery County - 284th Judicial District Court
Defendant, §
§ _____ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION AND REQUESTS FOR DISCLOSURE
Plaintiff, Bentwater Property Owners Association, Inc., in this lawsuit, would respectfully
show the Court the following.
I. PARTIES; SERVICE OF PROCESS
Plaintiff is a non-profit corporation existing under and by virtue of the laws of the State
of Texas with its principal office being located in Montgomery County, Texas.
Defendant, Alejandro Alavez Bello, is a resident of Montgomery County, Texas, and may
be served with process at 11 Paloma Pines Pl, Spring, Texas 77389, or wherever Alejandro Alavez
Bello may be found.
II. JURISDICTION AND VENUE
Pursuant to Texas Civil Practice and Remedies Code, jurisdiction and venue of this case
properly lie in Montgomery County, Texas, in that Montgomery County is the county in which
all or part of the property made the basis of this cause is located and/or is the county of
Defendant’s residence at the time the cause of action accrued.
This lawsuit seeks monetary relief of one hundred thousand dollars ($100,000.00) or less
and non-monetary relief. The damages sought are within the jurisdictional limits of the court.
III. DISCOVERY CONTROL PLAN
Discovery in this matter will be controlled by Discovery Control Plan Level 2 described
in Rule 190.3 of the Texas Rules of Civil Procedure.
IV. RELEVANT RESTRICTIVE COVENANTS AND TYPE OF CAUSE OF ACTION
“Restrictive Covenant” means any covenant, condition, or restriction contained in a
dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative. TEX.
PROP. CODE ANN. § 202.001(4) (Vernon 1995).
There are recorded certain restrictive covenants (Restrictions) providing for the creation of
assessments and other charges to be paid to the Plaintiff that are the responsibility of the owner
or owners of each lot under the jurisdiction of the Plaintiff. These Restrictions and
amendments, if any, run with the land, are enforceable at law, and are recorded in the Official
Public Records of Real Property of Montgomery County, Texas.
These Restrictions and amendments, if any, continue to be valid and enforceable against
all properties under the jurisdiction of the Plaintiff.
These Restrictions constitute a legally binding and enforceable contract between the
Plaintiff and Defendant. Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App. –Houston
[1st Dist.] 1994, no writ); See also Dunn v. Polly Ranch Homeowners Association, 943 S.W.2d 906.
Defendants’ failure to pay assessments to the Plaintiff constitutes a material breach of the
contract. Defendants’ breach of the contract caused Plaintiff to suffer monetary damages in the
form of unpaid assessments, interest, late fees, attorney’s fees, costs of court and other charges.
It has become necessary for the Plaintiff to bring this case to: (1) obtain a judgment for
unpaid assessments and other charges legally due and owing to the Plaintiff; and (2) foreclose
its lien for unpaid assessments and other charges legally due and owing to the Plaintiff that are
secured by the Plaintiff’s lien on the property in question.
V. OWNERSHIP OF PROPERTY
According to a deed recorded in the office of the County Clerk of Montgomery County,
Texas, Defendant is the owner of a tract of land described as Lot Nine (9), Block Two (2) of
Bentwater, Section Thirty-Three (33), a subdivision situated in the James J. Foster Survey, A-203,
Montgomery County, Texas, according to the map or plat thereof recorded in Cabinet G, Sheets 47-A
through 48-A of the Map Records of Montgomery County, Texas in Montgomery County, Texas
(Property). The street address of the Property is 107 Hampton Glen Road, Montgomery, TX
77356. The Property is encumbered by the Restrictions and amendments, if any.
VI. PLAINTIFF’S AUTHORITY TO ENFORCE THE
RESTRICTIVE COVENANTS
A property owners’ association may initiate litigation affecting the enforcement of a
restrictive covenant or the protection, preservation, or operation of the property covered by the
dedicatory instrument. TEX. PROP. CODE ANN. § 202.004(b) (Vernon 1995).
VII. NOTICE OF RESTRICTIVE COVENANTS
An instrument that is properly recorded in the proper county is notice to all persons of
the existence of the instrument. TEX. PROP. CODE ANN. § 13.002 (Vernon 1984).
The Restrictions have been properly recorded in the Official Public Records of Real
Property of Montgomery County, Texas.
Despite notice of the Restrictions, Defendant is violating the Restrictions by failing to
pay to Plaintiff the assessments and other charges authorized by the Restrictions or applicable
law.
VIII. REQUEST FOR JUDGMENT ON ALL AMOUNTS DUE TO PLAINTIFF
The Restrictions obligate the owner or owners of each lot under the jurisdiction of the
Plaintiff to pay to the Plaintiff assessments and other charges. Subsequent to the date the
Restrictions were filed in the Official Public Records of Real Property of Montgomery County, Texas,
the Defendant obtained an ownership interest in the Property. Upon the Defendant obtaining an
ownership interest in the Property, the Defendant became obligated to pay to the Plaintiff
assessments and other charges, all as set forth in the Restrictions.
Defendant has been mailed statements from Plaintiff requesting payment of the amount
due and owing to the Plaintiff but, despite such requests, Defendant has failed and refused, and
continues to fail and refuse to pay such amount. Attached as Exhibit A is a breakdown of the
amount owed as of the date of filing this Original Petition. The breakdown does not reflect the
total amount of attorney’s fees owed as a result of the collection of assessments and other
charges owed. Interest will continue to accrue on the principal balance until the total amount
due is paid in full.
For the above-described reasons, the Defendant is obligated to pay to the Plaintiff the
balance due for unpaid assessments and other charges authorized by the Restrictions or applicable
law together with court costs and reasonable attorney’s fees.
Plaintiff requests judgment against the Defendant for all amounts that are legally due and
owing to Plaintiff.
IX. REQUEST FOR FORECLOSURE OF PLAINTIFF’S LIEN ONAMOUNTS
SECURED BY PLAINTIFF’S LIEN ON THE PROPERTY
The Restrictions reserve to Plaintiff a lien on the Property to secure the payment of
assessments and certain other charges due and owing on the assessment account of the Property.
Plaintiff is entitled to foreclose its lien on the portion of the total amount due and owing to
the Plaintiff that is secured by the Plaintiff’s lien on the Property.
X. ATTORNEY’S FEES AND COSTS
Plaintiff is entitled to recover attorney’s fees pursuant to the Restrictions.
In addition, and/or in the alternative, in an action based on breach of a restrictive
covenant pertaining to real property, the Court shall allow to a prevailing party who asserted
the action reasonable attorney’s fees in addition to the party’s costs and claim. TEX. PROP. CODE
ANN. § 5.006 (Vernon 1984).
In the alternative, Plaintiff is entitled to recover its reasonable attorney’s fees and costs
pursuant to Section 38.001 of the Civil Practice & Remedies Code for a breach of contract.
Plaintiff designates the undersigned attorneys as expert witnesses on reasonable and
necessary attorney’s fees and costs of litigation incurred by the Plaintiff in connection with this
suit.
XI. REQUESTS FOR DISCLOSURE
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, each Defendant in this lawsuit
is requested to disclose, within fifty (50) days of service of this Plaintiff’s Original Petition and
Requests for Disclosure, the information or material described in Rule 194.2.
XII. CONDITIONS PRECEDENT
All conditions precedent have been performed or have occurred. TEX. R. CIV. P. 54.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Plaintiff prays that the Defendant be
cited to appear and answer this Petition and, that on a full and final hearing on this cause, that:
1. The Plaintiff have judgment against Defendant for all charges legally due and
owing to the Plaintiff on the assessment account of the Property that are not
secured by the Plaintiff’s lien on the Property together with any additional
unsecured charges that may accrue prior to judgment;
2. The Plaintiff have judgment against Defendant for all charges legally due and
owing to Plaintiff on the assessment account of the Property that are secured by the
Plaintiff’s lien on the Property together with any additional charges that are
secured by the Plaintiff’s lien on the Property that may accrue prior to judgment;
3. The Plaintiff be awarded reasonable attorney's fees (plus additional reasonable
post-judgment attorney fees and expenses) and costs pursuant to the terms of the
Restrictions and/or the Texas Property Code;
4. The Plaintiff have foreclosure of its lien created by the provisions of the Restrictions
on the amounts awarded for numbers 2 and 3 above on the following described
Property owned by the Defendant:
Lot Nine (9), Block Two (2) of Bentwater, Section Thirty-Three (33), a subdivision situated
in the James J. Foster Survey, A-203, Montgomery County, Texas, according to the map or
plat thereof recorded in Cabinet G, Sheets 47-A through 48-A of the Map Records of
Montgomery County, Texas more commonly known as 107 Hampton Glen Road,
Montgomery, TX 77356;
5. An Order of Sale shall issue to any sheriff or any constable within the State of Texas,
directing the sheriff or constable to seize and sell the Property the same as under
execution, in satisfaction of the final judgment in this cause subject to any superior
liens provided for in the Restrictions or at law, if any;
6. The Plaintiff be allowed all such writs and processes as may be necessary to enforce
and collect the final judgment in this cause, including all reasonable attorney’s fees
incurred in any such proceedings, and that execution issue for the judgment; and
7. The Plaintiff be awarded post-judgment interest on the entire amount awarded,
including attorney’s fees, at the interest rate authorized in the Restrictions or, where
applicable, at the highest rate allowed by law, from the date of judgment until fully
paid, together with all costs of court, and all such other and further relief, special or
general, at law or in equity, to which Plaintiff may show itself justly entitled or as
the Court may deem just.
Respectfully submitted
ROBERTS MARKEL WEINBERG BUTLER HAILEY PC
/s/ Edward (Teddy) Holtz
Edward (Teddy) Holtz
TBN: 24085382
tholtz@rmwbh.com
2800 Post Oak Boulevard, Suite 5777
Houston, Texas 77056
(713) 780-4135
Attorneys for Plaintiff
EKH/KC/KC 1111-00339
ITEMIZATION OF AMOUNT DUE
(“S” = Secured; “U” = Unsecured)
Year Type Amount
2018 Assessments (S) $866.00
2018 Interest (S) $100.97
2018 Late Fees (U) $50.00
2019 Assessments (S) $699.00
2019 Interest (S) $11.64
2019 RMWBH Collection Attorney Fees (S) $685.50
Total $2,413.11
* The Total Amount Due does not include attorney’s fees and court costs
related to the preparation and filing of this lawsuit, additional
assessments and other charges that may accrue on your assessment
account prior to a final judgment, and interest on unpaid assessments
that may accrue prior to judgment.
EXHIBIT A
Preview
Received and E-Filed for Record 8/6/2019 11:57 AM Melisa Miller, District Clerk Montgomery County, Texas 19-08-10652 Deputy Clerk, Megan Shiflett Cause No. __________________ BENTWATER PROPERTY OWNERS § IN THE DISTRICT COURT OF ASSOCIATION, INC., § Plaintiff, § § VS. § MONTGOMERY COUNTY, TEXAS § ALEJANDRO ALAVEZ BELLO, § Montgomery County - 284th Judicial District Court Defendant, § § _____ JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION AND REQUESTS FOR DISCLOSURE Plaintiff, Bentwater Property Owners Association, Inc., in this lawsuit, would respectfully show the Court the following. I. PARTIES; SERVICE OF PROCESS Plaintiff is a non-profit corporation existing under and by virtue of the laws of the State of Texas with its principal office being located in Montgomery County, Texas. Defendant, Alejandro Alavez Bello, is a resident of Montgomery County, Texas, and may be served with process at 11 Paloma Pines Pl, Spring, Texas 77389, or wherever Alejandro Alavez Bello may be found. II. JURISDICTION AND VENUE Pursuant to Texas Civil Practice and Remedies Code, jurisdiction and venue of this case properly lie in Montgomery County, Texas, in that Montgomery County is the county in which all or part of the property made the basis of this cause is located and/or is the county of Defendant’s residence at the time the cause of action accrued. This lawsuit seeks monetary relief of one hundred thousand dollars ($100,000.00) or less and non-monetary relief. The damages sought are within the jurisdictional limits of the court. III. DISCOVERY CONTROL PLAN Discovery in this matter will be controlled by Discovery Control Plan Level 2 described in Rule 190.3 of the Texas Rules of Civil Procedure. IV. RELEVANT RESTRICTIVE COVENANTS AND TYPE OF CAUSE OF ACTION “Restrictive Covenant” means any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative. TEX. PROP. CODE ANN. § 202.001(4) (Vernon 1995). There are recorded certain restrictive covenants (Restrictions) providing for the creation of assessments and other charges to be paid to the Plaintiff that are the responsibility of the owner or owners of each lot under the jurisdiction of the Plaintiff. These Restrictions and amendments, if any, run with the land, are enforceable at law, and are recorded in the Official Public Records of Real Property of Montgomery County, Texas. These Restrictions and amendments, if any, continue to be valid and enforceable against all properties under the jurisdiction of the Plaintiff. These Restrictions constitute a legally binding and enforceable contract between the Plaintiff and Defendant. Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App. –Houston [1st Dist.] 1994, no writ); See also Dunn v. Polly Ranch Homeowners Association, 943 S.W.2d 906. Defendants’ failure to pay assessments to the Plaintiff constitutes a material breach of the contract. Defendants’ breach of the contract caused Plaintiff to suffer monetary damages in the form of unpaid assessments, interest, late fees, attorney’s fees, costs of court and other charges. It has become necessary for the Plaintiff to bring this case to: (1) obtain a judgment for unpaid assessments and other charges legally due and owing to the Plaintiff; and (2) foreclose its lien for unpaid assessments and other charges legally due and owing to the Plaintiff that are secured by the Plaintiff’s lien on the property in question. V. OWNERSHIP OF PROPERTY According to a deed recorded in the office of the County Clerk of Montgomery County, Texas, Defendant is the owner of a tract of land described as Lot Nine (9), Block Two (2) of Bentwater, Section Thirty-Three (33), a subdivision situated in the James J. Foster Survey, A-203, Montgomery County, Texas, according to the map or plat thereof recorded in Cabinet G, Sheets 47-A through 48-A of the Map Records of Montgomery County, Texas in Montgomery County, Texas (Property). The street address of the Property is 107 Hampton Glen Road, Montgomery, TX 77356. The Property is encumbered by the Restrictions and amendments, if any. VI. PLAINTIFF’S AUTHORITY TO ENFORCE THE RESTRICTIVE COVENANTS A property owners’ association may initiate litigation affecting the enforcement of a restrictive covenant or the protection, preservation, or operation of the property covered by the dedicatory instrument. TEX. PROP. CODE ANN. § 202.004(b) (Vernon 1995). VII. NOTICE OF RESTRICTIVE COVENANTS An instrument that is properly recorded in the proper county is notice to all persons of the existence of the instrument. TEX. PROP. CODE ANN. § 13.002 (Vernon 1984). The Restrictions have been properly recorded in the Official Public Records of Real Property of Montgomery County, Texas. Despite notice of the Restrictions, Defendant is violating the Restrictions by failing to pay to Plaintiff the assessments and other charges authorized by the Restrictions or applicable law. VIII. REQUEST FOR JUDGMENT ON ALL AMOUNTS DUE TO PLAINTIFF The Restrictions obligate the owner or owners of each lot under the jurisdiction of the Plaintiff to pay to the Plaintiff assessments and other charges. Subsequent to the date the Restrictions were filed in the Official Public Records of Real Property of Montgomery County, Texas, the Defendant obtained an ownership interest in the Property. Upon the Defendant obtaining an ownership interest in the Property, the Defendant became obligated to pay to the Plaintiff assessments and other charges, all as set forth in the Restrictions. Defendant has been mailed statements from Plaintiff requesting payment of the amount due and owing to the Plaintiff but, despite such requests, Defendant has failed and refused, and continues to fail and refuse to pay such amount. Attached as Exhibit A is a breakdown of the amount owed as of the date of filing this Original Petition. The breakdown does not reflect the total amount of attorney’s fees owed as a result of the collection of assessments and other charges owed. Interest will continue to accrue on the principal balance until the total amount due is paid in full. For the above-described reasons, the Defendant is obligated to pay to the Plaintiff the balance due for unpaid assessments and other charges authorized by the Restrictions or applicable law together with court costs and reasonable attorney’s fees. Plaintiff requests judgment against the Defendant for all amounts that are legally due and owing to Plaintiff. IX. REQUEST FOR FORECLOSURE OF PLAINTIFF’S LIEN ONAMOUNTS SECURED BY PLAINTIFF’S LIEN ON THE PROPERTY The Restrictions reserve to Plaintiff a lien on the Property to secure the payment of assessments and certain other charges due and owing on the assessment account of the Property. Plaintiff is entitled to foreclose its lien on the portion of the total amount due and owing to the Plaintiff that is secured by the Plaintiff’s lien on the Property. X. ATTORNEY’S FEES AND COSTS Plaintiff is entitled to recover attorney’s fees pursuant to the Restrictions. In addition, and/or in the alternative, in an action based on breach of a restrictive covenant pertaining to real property, the Court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim. TEX. PROP. CODE ANN. § 5.006 (Vernon 1984). In the alternative, Plaintiff is entitled to recover its reasonable attorney’s fees and costs pursuant to Section 38.001 of the Civil Practice & Remedies Code for a breach of contract. Plaintiff designates the undersigned attorneys as expert witnesses on reasonable and necessary attorney’s fees and costs of litigation incurred by the Plaintiff in connection with this suit. XI. REQUESTS FOR DISCLOSURE Pursuant to Rule 194 of the Texas Rules of Civil Procedure, each Defendant in this lawsuit is requested to disclose, within fifty (50) days of service of this Plaintiff’s Original Petition and Requests for Disclosure, the information or material described in Rule 194.2. XII. CONDITIONS PRECEDENT All conditions precedent have been performed or have occurred. TEX. R. CIV. P. 54. PRAYER WHEREFORE, PREMISES CONSIDERED, the Plaintiff prays that the Defendant be cited to appear and answer this Petition and, that on a full and final hearing on this cause, that: 1. The Plaintiff have judgment against Defendant for all charges legally due and owing to the Plaintiff on the assessment account of the Property that are not secured by the Plaintiff’s lien on the Property together with any additional unsecured charges that may accrue prior to judgment; 2. The Plaintiff have judgment against Defendant for all charges legally due and owing to Plaintiff on the assessment account of the Property that are secured by the Plaintiff’s lien on the Property together with any additional charges that are secured by the Plaintiff’s lien on the Property that may accrue prior to judgment; 3. The Plaintiff be awarded reasonable attorney's fees (plus additional reasonable post-judgment attorney fees and expenses) and costs pursuant to the terms of the Restrictions and/or the Texas Property Code; 4. The Plaintiff have foreclosure of its lien created by the provisions of the Restrictions on the amounts awarded for numbers 2 and 3 above on the following described Property owned by the Defendant: Lot Nine (9), Block Two (2) of Bentwater, Section Thirty-Three (33), a subdivision situated in the James J. Foster Survey, A-203, Montgomery County, Texas, according to the map or plat thereof recorded in Cabinet G, Sheets 47-A through 48-A of the Map Records of Montgomery County, Texas more commonly known as 107 Hampton Glen Road, Montgomery, TX 77356; 5. An Order of Sale shall issue to any sheriff or any constable within the State of Texas, directing the sheriff or constable to seize and sell the Property the same as under execution, in satisfaction of the final judgment in this cause subject to any superior liens provided for in the Restrictions or at law, if any; 6. The Plaintiff be allowed all such writs and processes as may be necessary to enforce and collect the final judgment in this cause, including all reasonable attorney’s fees incurred in any such proceedings, and that execution issue for the judgment; and 7. The Plaintiff be awarded post-judgment interest on the entire amount awarded, including attorney’s fees, at the interest rate authorized in the Restrictions or, where applicable, at the highest rate allowed by law, from the date of judgment until fully paid, together with all costs of court, and all such other and further relief, special or general, at law or in equity, to which Plaintiff may show itself justly entitled or as the Court may deem just. Respectfully submitted ROBERTS MARKEL WEINBERG BUTLER HAILEY PC /s/ Edward (Teddy) Holtz Edward (Teddy) Holtz TBN: 24085382 tholtz@rmwbh.com 2800 Post Oak Boulevard, Suite 5777 Houston, Texas 77056 (713) 780-4135 Attorneys for Plaintiff EKH/KC/KC 1111-00339 ITEMIZATION OF AMOUNT DUE (“S” = Secured; “U” = Unsecured) Year Type Amount 2018 Assessments (S) $866.00 2018 Interest (S) $100.97 2018 Late Fees (U) $50.00 2019 Assessments (S) $699.00 2019 Interest (S) $11.64 2019 RMWBH Collection Attorney Fees (S) $685.50 Total $2,413.11 * The Total Amount Due does not include attorney’s fees and court costs related to the preparation and filing of this lawsuit, additional assessments and other charges that may accrue on your assessment account prior to a final judgment, and interest on unpaid assessments that may accrue prior to judgment. EXHIBIT A