Preview
Filed 10 May 17 P3:38
LorenJ ackson - District Clerk
2010-30804
/ Court: 151 Harris Coun
ED101) 015788609
By: Nelson Cuero
Case No.
Juan Fabela and Jessicka Fabela In The District Court of
vs Harris County, Texas
The Estate of Juan Contreras, Deceased 4
and Sandra Contreras Judicial District
Plaintiffs' Original Petition for Specific Performance
TO THE HONORABLE COURT:
Juan Fabela and Jessicka Fabela, Plaintiffs, complain of The Estate of Juan Contreras,
Deceased and Sandra Contreras, Defendants, and for cause of action shows:
Parties/Discovery
1 Plaintiffs are individuals residing in Harris County, Texas.
2. Defendant Sandra Contreras is an individual residing in Harris County, Texas.
Defendant Sandra Contreras is also the representative of the Estate of Juan Contreras, Deceased and
both defendants may be served with process at 13602 Ballantrae Ct., Houston, Harris County, Texas
‘
77015.
3 Plaintiff affirmatively pleads that discovery should be conducted in accordance with
a discovery control plan under Civil Procedure Rule 190.3.
I. Factual Background
4 Sandra Contretas and Juan Contreras were husband and wife. And as such owned
certain real property situated in Harris County, Texas, and described as follows:
Lot Fourteen (14), Block Five (5), of SOUTH HOUSTON, a subdivision in Harris
County, TExas, according to the map or plat thereof recorded in Volume 2, Page 42,
of the Map Records of Harris County, Texas ("the Property").
4 Mr. Contreras died in or around April, 2008. Before his death, in or around March,
a
2008, Mr. Contreras and Mrs. Contreras agreed to sell the Property to Plaintiffs. Plaintiffs and Mr.
Contreras, entered into an agreement in writing under which Plaintiffs agreed to buy and Mr.
Contreras agreed to sell the Property. A copy of that agreement is attached as Exhibit "A" and
incorporated in this petition by reference ("the Agreement").
5 Plaintiffs opened title at Star Tex Title Company and paid Mr. Contreras a total of
$40,000.00 towards the purchase price before the closing and transfer of title of the property, with
a remaining balance of $40,000.00 to be paid per the Agreement at the closing and transfer of title
of the property. The advance payment of $40,000.00 was by 3 checks, each marked as a deposit, and
dated and delivered and deposited at the end of March, 2008; and the closing was eventually
scheduled for July 18, 2008. At or about the time of the scheduled closing, Mr. Contreras was in the
hospital and directed that the paperwork, including deed, for him to sign be brought to him in the
hospital, which Plaintiffs arranged and happened. And Mr. Contreras executed and had notarized
his closing documents, including deed, which were then returned to the title company. The General
Warranty Deed executed by Mr. Contreras was later recorded under Harris County Clerk's file no.
20080605956. However, despite their acceptance of the $40,000 and Mr. Contreras’ conveyance,
Mrs. Contreras refused to proceed with closing on her one-half interest in the Property. A copy of
that deed is attached as Exhibit "B" and incorporated in this petition by reference ("the Deed").
6 Plaintiffs and Mrs. Contreras are now co-owners of the Property. Plaintiffs each own
an undivided twenty-five percent fee simple in the Property. Mrs. Contreras owns an undivided fifty
percent.
7
Plaintiffs made numerous requests and demands to Mrs. Contreras for Mrs. Contreras
to complete the sale pursuant to the sales contract; or in the alternative, to return the $40,000.00 paid
as part of the purchase price of the Property. To date, Mrs. Contreras has failed and refused.
IL._Factual Bac round
Suit for Specific Performances
8 Plaintiffs have performed all of the obligations imposed on Plaintiffs by the
agreement except payment of the remaining $40,000.00 purchase price. Plaintiffs remain ready,
willing, and able to pay Defendants the agreed purchase price according to the terms of the
Agreement.
9 Mrs. Contreras has failed and refused, and continues to fail and refuse, to execute the
conveyance agreed on by the parties despite Plaintiffs’ requests that Mrs. Contreras do so.
Suit for Partition
10. In the alternative to specific performance, Plaintiffs seck a partition of the
above-described tract of land among the co-owners in accordance with their respective interests, as
set forth above. In this connection, plaintiff estimates the present value of the undivided tract to be
$80,000.00.
11. Plaintiffs are informed and believe and so allege that the above-described and owned
interests comprise the total ownership of the tract sought to be partitioned and that the tract is subject
to no other claim.
Plaintiffs’ Entitlement to Restoration of Advance Payment
12. As stated above, Plaintiffs paid to the defendant the sum of $40,000.00 as an advance
payment on the purchase price pursuant to the terms of the parties Agreement, and Defendants were
to convey good and marketable title to the Property. With no fault of Plaintiffs, Defendants have
failed and refused to do convey good and marketable title to the Property. On September 23, 2008,
Plaintiffs demanded Defendants return of the advance payment made by Plaintiffs, and Defendants
have failed and refused to return it.
13. If specific performance or partition of the Property is denied, the Agreement should
be cancelled and Defendants should return the advance payment made by Plaintiffs.
Money Had and Received and Unjust Enrichment
14. Defendants have obtained a benefit from Plaintiffs through the moneys received from
Plaintiffs as a result of their conduct to which they are not entitled. Plaintiffs have suffered injury
as a result of Defendant's conduct.
Altorney's Fee.
15. According to the terms of the Agreement, Defendants agreed to pay a reasonable
amount as attorney's fees in the event that Plaintiffs should require the services of an attorney to
enforce the provisions of Agreement. As the result of Defendants failure to comply, Plaintiffs have
found it necessary to employ an attorney to make and prosecute this claim. Plaintiffs are therefore
entitled to recover reasonable attorney's fees as are equitable and just.
WHEREFORE, Plaintiffs request that Defendants be cited to appear and answer, and that on
final trial, Plaintiffs have the following relief:
1. Judgment against Defendants, jointly and severally, ordering Defendant Sandra Contreras
to execute a deed as a sufficient conveyance of the Property.
2. If the remedy of specific performance is denied:
adetermination of the share of each of the joint owners of the Property and that such
property is susceptible to partition, and directing partition in accordance with the respective shares
of the parties
appointment of three or more competent and disinterested persons as commissioners
to make such partition in accordance with the decree and the law, subject to confirmation by the
Court on notice to all parties.
a judgment directing the issuance of a writ of partition.
3. In the alternative, if the remedy of specific performance and/or partition is denied,
judgment against Defendants, jointly and severally, for $40,000.00 as damages.
4. Prejudgment and postjudgment interest, as provided by law.
5. Attorney's fees.
6. Costs of suit.
7. Such other and further relief to which Plaintiffs may be justly entitled
Respectfully submitted,
’
iad
DENNIS 1 ALBRIGHT
TBA 00973700
KATHRYN A. LUMPKIN
TBA 24032712
Dennis J. Albright & Associates, P.C.
2201 Market St., Suite 418
Galveston, Texas 77550
Tel: 409.750.8100 and 713.453.2157
Fax: 409.750.8375
Email: dennis.albright@sbcglobal.net
kathryn.lumpkin@sbeglobal.net
Attorneys for Plaintiffs
Preview
Filed 10 May 17 P3:38 LorenJ ackson - District Clerk 2010-30804 / Court: 151 Harris Coun ED101) 015788609 By: Nelson Cuero Case No. Juan Fabela and Jessicka Fabela In The District Court of vs Harris County, Texas The Estate of Juan Contreras, Deceased 4 and Sandra Contreras Judicial District Plaintiffs' Original Petition for Specific Performance TO THE HONORABLE COURT: Juan Fabela and Jessicka Fabela, Plaintiffs, complain of The Estate of Juan Contreras, Deceased and Sandra Contreras, Defendants, and for cause of action shows: Parties/Discovery 1 Plaintiffs are individuals residing in Harris County, Texas. 2. Defendant Sandra Contreras is an individual residing in Harris County, Texas. Defendant Sandra Contreras is also the representative of the Estate of Juan Contreras, Deceased and both defendants may be served with process at 13602 Ballantrae Ct., Houston, Harris County, Texas ‘ 77015. 3 Plaintiff affirmatively pleads that discovery should be conducted in accordance with a discovery control plan under Civil Procedure Rule 190.3. I. Factual Background 4 Sandra Contretas and Juan Contreras were husband and wife. And as such owned certain real property situated in Harris County, Texas, and described as follows: Lot Fourteen (14), Block Five (5), of SOUTH HOUSTON, a subdivision in Harris County, TExas, according to the map or plat thereof recorded in Volume 2, Page 42, of the Map Records of Harris County, Texas ("the Property"). 4 Mr. Contreras died in or around April, 2008. Before his death, in or around March, a 2008, Mr. Contreras and Mrs. Contreras agreed to sell the Property to Plaintiffs. Plaintiffs and Mr. Contreras, entered into an agreement in writing under which Plaintiffs agreed to buy and Mr. Contreras agreed to sell the Property. A copy of that agreement is attached as Exhibit "A" and incorporated in this petition by reference ("the Agreement"). 5 Plaintiffs opened title at Star Tex Title Company and paid Mr. Contreras a total of $40,000.00 towards the purchase price before the closing and transfer of title of the property, with a remaining balance of $40,000.00 to be paid per the Agreement at the closing and transfer of title of the property. The advance payment of $40,000.00 was by 3 checks, each marked as a deposit, and dated and delivered and deposited at the end of March, 2008; and the closing was eventually scheduled for July 18, 2008. At or about the time of the scheduled closing, Mr. Contreras was in the hospital and directed that the paperwork, including deed, for him to sign be brought to him in the hospital, which Plaintiffs arranged and happened. And Mr. Contreras executed and had notarized his closing documents, including deed, which were then returned to the title company. The General Warranty Deed executed by Mr. Contreras was later recorded under Harris County Clerk's file no. 20080605956. However, despite their acceptance of the $40,000 and Mr. Contreras’ conveyance, Mrs. Contreras refused to proceed with closing on her one-half interest in the Property. A copy of that deed is attached as Exhibit "B" and incorporated in this petition by reference ("the Deed"). 6 Plaintiffs and Mrs. Contreras are now co-owners of the Property. Plaintiffs each own an undivided twenty-five percent fee simple in the Property. Mrs. Contreras owns an undivided fifty percent. 7 Plaintiffs made numerous requests and demands to Mrs. Contreras for Mrs. Contreras to complete the sale pursuant to the sales contract; or in the alternative, to return the $40,000.00 paid as part of the purchase price of the Property. To date, Mrs. Contreras has failed and refused. IL._Factual Bac round Suit for Specific Performances 8 Plaintiffs have performed all of the obligations imposed on Plaintiffs by the agreement except payment of the remaining $40,000.00 purchase price. Plaintiffs remain ready, willing, and able to pay Defendants the agreed purchase price according to the terms of the Agreement. 9 Mrs. Contreras has failed and refused, and continues to fail and refuse, to execute the conveyance agreed on by the parties despite Plaintiffs’ requests that Mrs. Contreras do so. Suit for Partition 10. In the alternative to specific performance, Plaintiffs seck a partition of the above-described tract of land among the co-owners in accordance with their respective interests, as set forth above. In this connection, plaintiff estimates the present value of the undivided tract to be $80,000.00. 11. Plaintiffs are informed and believe and so allege that the above-described and owned interests comprise the total ownership of the tract sought to be partitioned and that the tract is subject to no other claim. Plaintiffs’ Entitlement to Restoration of Advance Payment 12. As stated above, Plaintiffs paid to the defendant the sum of $40,000.00 as an advance payment on the purchase price pursuant to the terms of the parties Agreement, and Defendants were to convey good and marketable title to the Property. With no fault of Plaintiffs, Defendants have failed and refused to do convey good and marketable title to the Property. On September 23, 2008, Plaintiffs demanded Defendants return of the advance payment made by Plaintiffs, and Defendants have failed and refused to return it. 13. If specific performance or partition of the Property is denied, the Agreement should be cancelled and Defendants should return the advance payment made by Plaintiffs. Money Had and Received and Unjust Enrichment 14. Defendants have obtained a benefit from Plaintiffs through the moneys received from Plaintiffs as a result of their conduct to which they are not entitled. Plaintiffs have suffered injury as a result of Defendant's conduct. Altorney's Fee. 15. According to the terms of the Agreement, Defendants agreed to pay a reasonable amount as attorney's fees in the event that Plaintiffs should require the services of an attorney to enforce the provisions of Agreement. As the result of Defendants failure to comply, Plaintiffs have found it necessary to employ an attorney to make and prosecute this claim. Plaintiffs are therefore entitled to recover reasonable attorney's fees as are equitable and just. WHEREFORE, Plaintiffs request that Defendants be cited to appear and answer, and that on final trial, Plaintiffs have the following relief: 1. Judgment against Defendants, jointly and severally, ordering Defendant Sandra Contreras to execute a deed as a sufficient conveyance of the Property. 2. If the remedy of specific performance is denied: adetermination of the share of each of the joint owners of the Property and that such property is susceptible to partition, and directing partition in accordance with the respective shares of the parties appointment of three or more competent and disinterested persons as commissioners to make such partition in accordance with the decree and the law, subject to confirmation by the Court on notice to all parties. a judgment directing the issuance of a writ of partition. 3. In the alternative, if the remedy of specific performance and/or partition is denied, judgment against Defendants, jointly and severally, for $40,000.00 as damages. 4. Prejudgment and postjudgment interest, as provided by law. 5. Attorney's fees. 6. Costs of suit. 7. Such other and further relief to which Plaintiffs may be justly entitled Respectfully submitted, ’ iad DENNIS 1 ALBRIGHT TBA 00973700 KATHRYN A. LUMPKIN TBA 24032712 Dennis J. Albright & Associates, P.C. 2201 Market St., Suite 418 Galveston, Texas 77550 Tel: 409.750.8100 and 713.453.2157 Fax: 409.750.8375 Email: dennis.albright@sbcglobal.net kathryn.lumpkin@sbeglobal.net Attorneys for Plaintiffs