Preview
Cause No. 18-12-16925
SUNRISE RANCH PROPERTY OWNERS IN THE DISTRICT COURT OF
ASSOCIATION, INC.,
Plaintiff,
VS. MONTGOMERY COUNTY, TEXAS
LARRY HORN, JR.,
Defendant,
410TH JUDICIAL DISTRICT
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, Sunrise Ranch Property Owners Association, Inc., asks the Court to grant a
summary judgment on its cause of action against the Defendant, Larry Horn, Jr..
I. Introduction
This suit was filed by the Plaintiff to collect past due annual maintenance assessments,
interest and other charges that are due and owing to the Plaintiff pursuant to the applicable
restrictive covenants (Restrictions) and/or state law.
Plaintiff seeks a personal judgment for past due annual maintenance assessments, interest
and other charges on the assessment account of the property at Lot 5, Block 2, of Sunrise Ranch,
Section 4, a subdivision in Montgomery County, Texas, according to the map or plat thereof recorded in
Cabinet V, Sheet 180 of the Map Records of Montgomery County, Texas in Montgomery County, Texas
(Property) also known as 18408 Sunrise Oaks Court, Montgomery, TX 77316. Plaintiff also seeks a
judgment establishing and foreclosing the lien securing the Defendant's obligations and ordering a
sale of the Property subject to any superior liens provided for in the Restrictions or by Jaw for all
amounts due and owing to the Association that are secured by the Association’s lien on the
Property.
Plaintiff also seeks attorney's fees pursuant to the terms of the Restrictions and/or the Texas
Property Code and court costs.
Plaintiff ’s Original Petition and Requests for Disclosure was filed on or about December 26,
2018.
Defendant, Larry Hor, Jr., filed an Answer.
Plaintiff filed this motion for summary judgment based on the fact that (1) Defendant,
Larry Horn, Jr., is the owner of the Property; (2) the Property is encumbered by Restrictions; and,
(3) the Defendant has failed to pay annual maintenance assessments and other charges on the
assessment account of the Property as required by the Restrictions and/or state law.
The Plaintiff filed and served this motion on the Defendant at least twenty-one (21) days before
the motion was set on the Court's oral hearing/submission docket.
IL. Incorporation of Exhibits
All exhibits attached to this Motion for Summary Judgment are fully incorporated by
reference herein for all purposes.
III. Argument and Authorities
When a Plaintiff moves for summary judgment on its cause of action, the Plaintiff must
conclusively prove all essential elements of its claim. MMP, Ltd. V. Jones, 710 S.W.2d 59, 60 (Tex.
1986). The Plaintiff must show that there are no genuine issues of material fact regarding each
element of the Plaintiff's claim, and that the Plaintiff is entitled to judgment as a matter of law.
Id.; Wesson v. Jefferson S. & L. Ass’n, 641 S.W.2d 903, 904-05 (Tex. 1982).
The Plaintiff is entitled to summary judgment as a matter of law because of the
following:
1 The Defendant is the owner of the Property by virtue of a true and correct
copy of the deed which is attached as Exhibit A;
The Property is subject to Restrictions properly recorded and filed in the
Official Public Records of Real Property of Montgomery County, Texas, as
amended, if any, a true and correct copy(s) of which is attached as Exhibit
B;
The Defendant is charged with notice of the Restrictions. 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 Association may impose interest and late charges for late payments of
regular assessments or special assessments. TEX. PROP. CODE. ANN.
§204.010(a)(10) (Vernon 1984);
The Association may, if notice and an opportunity to be heard are given,
collect reimbursement of reasonable costs incurred by the Association
relating to violations of the subdivision’s restrictions TEX. PROP. CODE. ANN.
§204.010(a)(11) (Vernon 1984);
The assessment and collection of annual maintenance assessments and
other charges as sued for herein are authorized by the Article VI of the
Restrictions as amended, if any, (Exhibit B);
Article VI of the Restrictions set forth the creation and reservation of a
lien securing payments of the annual maintenance assessments (Exhibit
B). Article VI of the Restrictions authorizes the Association to foreclose on
said lien (Exhibit B);
Article VI imposes interest at the rate of ten percent (10%) per annum on
assessments not paid within thirty (30) days of the due date (Exhibit B);
For all times relevant to this lawsuit, the Defendant was and continues to
be the owner of the Property (Exhibits A & C);
10. The Defendant was provided with written notice of the Defendant's
failure to pay the annual maintenance assessments (Exhibit D-2);
11. After all offsets and credits have been applied, there remains due,
outstanding and unpaid through June 11, 2019, to the Association the sum
of $1,537.76 (Exhibit C);
12. These amounts were retrieved directly from the business records of the
Plaintiff (Exhibit C). These records are kept in the regular course of
business of the Plaintiff by an individual who is fully authorized to make
said records on behalf of the Plaintiff (Exhibit C);
13. The total amount due does not include attorney's fees or court costs
incurred in connection with the preparation and filing of this lawsuit
(Exhibit ©);
14 The Association has performed all conditions precedent necessary before
filing the above-styled lawsuit, and all conditions precedent have
occurred for recovery (Exhibit C). Demand was made on the Defendant
more than thirty days prior to filing this lawsuit and the debt in question
has not been paid (Exhibit C); and,
15. As a result of the Defendant's failure to make the required annual
maintenance assessment payments in violation of the Restrictions, the
Association was forced to employ the law firm of Roberts Markel
Weinberg Butler Hailey, P.C. to pursue this lawsuit and has incurred
attorney’s fees (Exhibit D).
There are no fact issues in this case. The court may decide this case on the summary
judgment evidence included in the exhibits to this motion.
IV. Attorney’s Fees
The Plaintiff is entitled to recover its reasonable attorney fees pursuant to the Restrictions.
In the alternative, the Plaintiff is entitled to reasonable attorney's fees and costs that were incurred
in the prosecution of this suit pursuant to §5.006 of the Texas Property Code. The Plaintiff has
incurred reasonable attorney’s fees in the amount of $2,469.90 in the prosecution of this suit
(Exhibit D).
Should it become necessary for Plaintiff to obtain a writ of execution and/or order of sale
and have the Property posted for a constable or sheriff's sale in order to collect the amounts
awarded in this judgment, Plaintiff will incur additional reasonable attorney’s fees in the amount of
$1,800.00 (Exhibit D). Should the Defendant file a Motion for New Trial that is subsequently denied
or overruled, the Plaintiff will incur additional reasonable attorney's fees in the amount of $1,000.00
(Exhibit D). Should the final judgment in this case be unsuccessfully appealed by Defendant to a
State of Texas Court of Appeals, the Plaintiff will incur additional reasonable attorney’s fees in the
amount of $5,805.00 (Exhibit D). Should the final judgment of the State of Texas Court of Appeals
be unsuccessfully appealed by Defendant to the Texas Supreme Court, the Plaintiff will incur
additional reasonable attorney’s fees in the amount of $5,805.00 (Exhibit D).
V. Conclusion
Plaintiffs summary judgment evidence establishes that: (1) Defendant, Larry Horn, Jr., is
the owner of the Property; (2) there are Restrictions encumbering the Property that are in full force
and effect; and, (3) the Defendant has, in violation of the Restrictions, failed to pay required annual
maintenance assessments and other charges on the assessment account of the Property in the
above-described manner.
As there are no genuine issues of material fact regarding the Plaintiff's claim, the Plaintiff is
entitled to summary judgment as a matter of law.
Prayer
For these reasons, the Plaintiff asks the Court to grant this motion and sign a Final Summary
Judgment that includes the following:
That Defendant, Larry Horm, Jr., shall pay to the Plaintiff, Sunrise Ranch
Property Owners Association, Inc., $1,537.76 as the total amount due on the
assessment account of the Property that is secured by the Plaintiff's lien on
the Property through June 11, 2016;
That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch
Property Owners Association, Inc., its reasonable attorney’s fees in the
amount of Two Thousand Thirty-Eight and 00/100 Dollars ($2,038.00);
That Plaintiff, Sunrise Ranch Property Owners Association, Inc., have
FORECLOSURE of its lien created by the provisions of the Restrictions on
the amounts described in numbers 1 and 2 above (and on post-judgment
attorney’s fees described below, if any) on the following described property
owned by the Defendant, Larry Horn, Jr.:
Lot 5, Block 2, of Sunrise Ranch, Section 4, a subdivision in Montgomery
County, Texas, according to the map or plat thereof recorded in Cabinet V, Sheet
180 of the Map Records of Montgomery County, Texas and more commonly
known as 18408 Sunrise Oaks Court, Montgomery, TX 77316;
That 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 this Final Summary Judgment
subject to any superior liens provided for in the Restrictions or at law, if any;
and, if the Property cannot be found, or if the proceeds of such sale be
insufficient to satisfy the judgment, then to take the money or any balance
thereof remaining unpaid, out of any other property of the Defendant, as in
the case of ordinary executions. If any surplus remains after the payment of
the sums adjudged to be due, it shall be paid to Defendant, Larry Horn, Jr.;
That, in the event it oe necessary for Plaintiff, Sunrise Ranch
Property Owners Association, Inc., to obtain a writ of execution and/or an
order of sale and have the Property posted for a constable or sheriff's sale in
order to collect the amounts awarded in this judgment, Defendant, Larry
Horn, Jr., shall pay to Plaintiff, Sunrise Ranch Property Owners
Association, Inc., additional attorney reasonable fees and costs in the
amount of $1,800.00;
That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch
Property Owners Association, Inc., additional attorney's fees in the amount
of $1,000.00 should the Defendant file a Motion for New Trial that is
subsequently denied or overruled;
That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch
Property Owners Association, Inc., additional attorney’s fees in the amount
$5,805.00 should the final judgment in this case be unsuccessfully appealed
by Defendant to a State of Texas Appeals Court;
That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch
Property Owners Association, Inc., additional attorney's fees in the amount
of $5,805.00 should the final judgment in this case be unsuccessfully
appealed by Defendant to the Texas Supreme Court;
That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch
Property Owners Association, Inc., costs of court in the amount of $316.90,
process server fees in the amount of $115.00, and 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; and
10. All such other relief 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
CERTIFICATE OF SERVICE
This is to certify that a true and correct photocopy of the attached foregoing document(s)
has been served upon all attorneys of record and/or pro se parties by depositing same with the
United States Postal Service by first class mail, correctly addressed and postage prepaid, or
in the manner indicated on this the ch lay of August, 2019, to such attorneys and/or parties;
Larry Horn, Jr. Lt acs
oretat liye Wt am
18408 Sunrise Oaks Ct
9414 72bb TIO4 24S 5495) b3
Montgomery, TX 77316-4222
(CMRRR and regular first class mail)
s/ Edward (Teddy) Holtz
Edward (Teddy) Holtz
EXHIBITA
AMM eae REBUBLIG TI LE
t
WARRANTY DEED WITH VENDOR'S LIEN
HORN
‘Loan Number: 000600906
‘MIN: 1000317-0000000904-9
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 PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
THE STATE OF TEXAS (
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF MONTGOMERY
THAT VIRGIN HOMES, INC., A TEXAS CORPORATION , hereinafter called “Grantor” (whether
one or more), for and in consideration of the sum of TEN Dollars ($10.00) and other good and valuable
consideration to Grantor paid by LARRY HORN, JR. , A SINGLE PERSON, hereinafter called
“Grantee” (whether one or more), the receipt of which is hereby acknowledged and confessed, and the
further consideration of the execution and delivery by said Grantee of one certain Promissory Note in the
principal Sum of $141,734.00, of even date herewith, payable to the order of SECURITYNATIONAL
MORTGAGE COMPANY, A UTAH CORPORATION, hereinafter called “Mortgagee”, bearing
interest at the rate therein provided; said Note containing the usual reasonable attorney’s fee clause and
various acceleration of maturity clauses in case of default, and being secured by Vendor’s Lien and
superior title retained herein in favor of said Mortgagee, and being also secured by a Deed of Trust of
even date herewith from Grantee to SCOTT R. VALBY, Trustee; and
WHEREAS, Mortgagee has, at the special instance and request of Grantee, paid to Grantor a portion
of the purchase price of the property hereinafter described, as included in the above-described Note, said
Vendor’s Lien against said property securing the payment of said Note is hereby assigned, transferred and
delivered to Mortgagee, Grantor hereby conveying to said Mortgagee the said superior title to said
property, subrogating said Mortgage to all the rights and remedies of Grantor in the premises by virtue of
said liens; and
Grantor has GRANTED, SOLD, and CONVEYED, and by these presents does GRANT, SELL, and
CONVEY unto said Grantee, the following described property, to-wit:
LOT 5, BLOCK 2, OF SUNRISE RANCH, SECTION 4, A SUBDIVISION IN MONTGOMERY
COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN
CABINET V, SHEET 180 OF THE MAP RECORDS OF MONTGOMERY COUNTY, TEXAS.
TO HAVE AND TO HOLD the above-described premises, together with all and singular, the rights
and appurtenances thereunto in anywise belonging unto said Grantee, his heirs and assigns, forever. And
Grantor does hereby bind himself, his heirs, executors, and administrators, to warrant and forever defend
all and singular the said premises unto said Grantee, his heirs and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof.
Taxes for the current year have been prorated and their payment is assumed by Grantee.
This conveyance is made subject to any and all valid and subsisting restrictions, easements, rights of
way, reservations, maintenance charges together with any lien securing said maintenance charges, zoning
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laws, ordinances of municipal and/or other governmental authorities, conditions and covenants, if any,
applicable to and enforceable against the above-described property as shown by the records of the County
Clerk of said County.
The use of any pronoun herein to refer to Grantor or Grantee shall be deemed a proper reference even
though Grantor and/or Grantee may be an individual (either male or female), a corporation, a partnership
or a group of two or more individuals, corporations and/or partnerships, and when this Deed is executed
by or to a corporation, or trustee, the words "heirs, executors, and administrators" or "heirs and assigns’
shall, with respect to such corporation or trustee, be construed to mean "successors and assigns’
It is expressly agreed that the Vendor's Lien is retained in favor of the payee of said Note against the
above-described property, premises, and improvements, until said Note and all interest thereon shall have
been fully paid according to the terms thereof, when this deed shall become absolute.
EXECUTED this 15th day of November, 2012.
RGIN HOMES, INC,,.A TEXAS CORPORATION
By
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Title
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by ilar,
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is instrument was acknowledged before me o1 is ls) ey Noel
of VIRGIN HOMES, INC.,
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A TEXAS CO! RATION , on behalf of said entity.
NOTARY PUBLIC
GRANTEE’S ADDRESS:
18408 SUNRISE OAKS COURT
MONTGOMREY, TEXAS 77316
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FILED FOR RECORD
11/16/2012 3:53PM
TY COUNTY CLERK
MONTGOMERY COUNTY, TEXAS
STATE OF TEXAS
COUNTY OF MONTGOMERY
| hereby certify this instrument was filed in file number
sequence on the date and at the time stamped herein
by me and was duly RECORDED in the Official Public
‘ecords of Montgomery County, Texas.
11/16/2012
‘S
Mb. Lub
County Clerk
Montgomery County, Texas
EXHIBIT B
2004-095998 657-10-1846
DECLARATION OF COVENANTS,
CONDITIONS and RESTRICTIONS of
SUNRISE RANCH SECTION IV
THE STATE OF TEXAS
COUNTY OF MONTGOMERY
This Declaration of Covenants, Conditions and Restrictions, made on the date hereinafter
set forth by Bofemco, Inc., a Texas Corporation d/b/a Sunrise Ranch hereinafter referred to as
“Deciarant’.
WITNESSETH
Whereas, Declarant is the owner of that certain property known as Sunrise Ranch,
Section Four, a subdivision in Montgomery County, Texas, being 22.937 acres of land situated in
the William Atkins Survey, A-3, Montgomery County, TX according to the map or plat thereof
recorded in Cabinet V, Sheets 180/1181, Montgomery County Clerk's File No. 2004-026792 of
the Map Records of Montgomery County, Texas; and
‘Whereas, it is the desire of Declarant to place certain restrictions, covenants, conditions,
stipulations and reservations upon and against such property in order to establish a uniform pian
for the development, improvement and sale of such property, and to ensure the preservation of
such uniform plan for the benefit of both the present and future owners of Lots in said subdivision:
NOW, THEREFORE, Declarant hereby adopts, establishes and imposes upon Sunrise
Ranch, Section Four hereinafter referred to as the “Property”, which is further identified in the
subdivision plat referenced above, and declares the following reservations, easements,
restrictions, covenants and conditions applicable thereto, all of which are for the purpose of
enhancing and protecting the value, desirability and attractiveness of the land, which reservations,
easements, covenants, restrictions and conditions shall run with the land and shall be binding
upon all parties having or acquiring any right, title or interest therein, or any part thereof, and shall
inure to the benefit of each owner thereof.
ARTICLE |
Definitions
Section1, ‘Association” shall mean and refer to Sunrise Ranch Property Owner's
Association.
Section2. “Property and/or Properties” shall mean and refer to Sunrise Ranch, Section
Four, which is further identified in the aforementioned subdivision plat.
ection3. “Lot and/or Lots” shall mean and refer to the Lots shown upon the
subdivision plat which are restricted hereby to use for single family residential dwellings only.
Section4. “Lot” shall mean and refer to Block 1, Lots 1 through 80, Block 2, Lots 1
through 35.
Section5. ‘Owner” shall mean and refer to the record owner, whether one or more
persons or entities, of fee simple title to any Lot which is partof the Properties, but in the eventof
the execution of a contract for sale covering any Lot, the “Owner” shall be the purchaser named in
the contract, but excluding those having such interest merely as security for the performance of an
obligation and those having only an interest in the mineral estate.
in ‘Subdivision Plat" shall mean and refer to the map or plat of Sunrise Ranch,
recorded in Cabinet V, Sheets 180/ 181, inclusive, County Clerk's File No. 2004. 792 of the
Map Records of Montgomery County, Texas.
“Architectural Control Committee” or “Committee” shall mean and refer to
Sunrise Ranch Architectural Control Committee, provided in Article IV hereof.
RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page
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, ihenteci dO dats
657-10-1847
Section8. “Builder-Owner" shall mean and refer to the owner of a Lot who owns such
Lot for the sole purpose of development and sale to third parties, and is designated in writing as a
Builder-Owner by Declarant.
Section9. “Member shall mean and refer to every person or entity who holds a
membership in the Association.
Section
10. “River Authority” shall mean and refer to the San Jacinto River Authority
(SURA’).
Section 11 "Board of Directors” or “Board” shall mean the elected body of Sunrise
Ranch Property Owners Association.
ion 12. “Utility Company” shall mean and fefer to Mid-South Synergy.
Section
13. "Residential Dwelling” shall mean and refer to a single residential dwelling
with garage.
"Improvement" shall mean and refer to any dwelling, garage, swimming
pool, wall, fence and any other object placed on, in or under the Properties.
“Declarant” shall mean and refer to Bofemco, inc., d/b/a Sunrise Ranch, its
successors and assigns.
1 “Resident” shall mean and refer to every person or entity occupying a
Residential Dwelling within the Properties.
Section 17. “Administrator” shall mean the entity administering the maintenance fund.
Section 18. “Unrestricted Reserve” shall mean and refer to any area designated on the
Subdivision Plat as a “Reserve” or “Unrestricted Reserve.”
ARTICLE It
Re
Section1. The Subdivision Plat dedicates for use as such, subject to the fimitations set
forth therein, the private streets and easements shown thereon and such Subdivision Plat further
establishes certain restrictions applicable to the Properties including, without limitation, certain
minimum setback lines. All dedications, limitations, restrictions, and reservations shown on the
Subdivision Plat are incorporated herein and made a part hereof as if fully set forth herein, and
shail be construed as being adopted in each and every contract, deed, or conveyance executed or
to be executed by or on behalf of Declarant, conveying said property or any part thereof, whether
specifically referred to therein or not.
Deciarant reserves the easements and roadways as shown on the
Subdivision Plat for the purpose of constructing, maintaining and repairing a system or systems of
electric lighting, electric power, telegraph and telephone line or lines, gas, water lines, sewers,
storm sewers, drainage ways, cable television or any other utility Declarant sees fit to install in,
across and/or under the Properties.
Declarant reserves the right to make changes in and additions to the above
easements for the purpose of most efficiently and economically installing the improvements.
Should any utility company or cable television company fumishing a service covered by the
general easement herein provided request a specific easement by separate recordable document,
Declarant, without the joinder of any other Owner, shall have the right to grant such easement on
said property without conflicting with the terms hereof.
Section4. Declarant reserves the right, during installations of paving of the streets as
shown on the SubdivisionPlat, to enter onto any Lot or Lots for the purpose of disposing of
excavation from dredged material from the shoreline of the Properties and street excavation,
including the removal of any trees, as necessary, whether or not the Lot or Lots have been
conveyed to and/or contracted for any other Owner or Owners.
Neither Declarant nor any utility company or cable television company using
the easements herein referred to, shall be liable for any damages done by them or their assigns,
RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page
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657-10-1848
their agents, employees or servants to fences, shrubbery, trees, flowers or any other property of
the Owner situated on the land covered by said easements.
Section6. Itis expressly agreed and understood that the title conveyed by Declarant to
any Lot or parce! of land within the Properties by contract, deed or other conveyance shall be
subject to any easement affecting same for roadways or drainage, water, gas, sewer, storm sewer
drainage ways, electric light, electric power, cable service, telegraph or telephone purposes and
shall convey no interest in any pipes, lines, poles or conduits, or in any utility facility or
appurtenances, thereto constructed by or under Declarant or any easement owner, or their agents.
through, along or upon the premises affected thereby, or any part thereof, to serve said land or
any other portion of the Properties, and where not affected, the right to maintain, repair, sell or
Jease such appurtenances to any municipality, other govemmental agency or any public service
corporation or any other party, and such right is hereby expressly reset .
Section7. Utility Easements.
(a) All Lots are subject to the utility easements reflected on the plat or designated in
these Restrictions.
(b) No building shall be located over, under, upon or across any portion of any utility
easement; however, the Owner of each Lot shall have the right to construct, keep and maintain
drives and similar improvements across the utility easement along the front of the Lot and/or along
the side of comer lots adjacent to street right-of-ways and shall be entitled to cross such
easements at all times for purposes of gaining access to and from such Lots.
(c) With the prior approval of the Committee, the Owner of each Lot also shall have the
right to construct, keep and maintain driveways, walkways, steps, air conditioning units and
equipment over, across or upon any utility easement along the side of such Lots ( the “Side Lot
Utility Easement’), other than along any Side Lot Utility Easement which is adjacent to a street
right-of-way and shall be entitled, at all times, to cross, have access to and use the improvements
focated thereon; however, any such improvements placed upon such Side Lot Utility Easement by
the Owner shall be constructed, maintained and used at Owner's risk and the location of such
improvements shall not impede the natural flow of water across the Lot. The Owner of each Lot
subject to said Side Lot Utility Easements shall be responsible for (i) any and all repairs to the
driveways, walkways, steps, air conditioning units and equipment which cross or are located upon.
such Side Lot Utility Easements and (ii) repairing any damage to sai improvements caused by the
Utility District, any public utility or cable television company in the course of installing, operating,
maintaining, repairing, or removing its facilities located within the Side Lot Utility Easements.
(d) The Owner of each Lot shall indemnify and hold harmless Declarant, the Utility
District, public utility companies and cable television company having facilities located over, across
or under utility easements from any loss, expense, suit or demand resulting from injuries to
persons or damage to property in any way occurring, incident to, arising out of, or in connection
with said Owner's installation, maintenance, repair or removal of any permitted improvements
located within utility easements, including where such injury or damage is caused or alleged to be
caused by the sole negligence of such public utility or its employees, officers, contractors or
agents.
(e) In no event shall any Owner construct, maintain or use any of the above described
improvements or any other improvements within any utility easements located along the rear of
‘such Owner's Lot.
In addition to the utility easements shown on the recorded Plat, there is hereby
dedicated a five foot (5’) wide Entergy easement, extending from the surface of the ground
downward, and said easement being two and one-half (2 1/2) feet on each side of underground
electric service lines as now or hereafter constructed and will extend along the route selected by
Mid-South Synergy from Mid-South Synergy’s distribution facilities to the electric meter when and
as located upon Lots and Reserves in the Subdivision. Mid-South Synergy shall have the right to
excavate said Lot easement strip, and to remove objects, structures, growth or protrusions
thereon.
n Re ind Stre t 5 The roads and streets in the Properties
are not dedicated to the public, but shall be operated as private streets with each Owner having an
easement for the use and benefit of such Owner of a Lot fronting thereon or adjacent thereto, with
easements shall include rights of ingress, egress and passage over and along said streets in favor
of the Declarant, the Association, the Owners and their respective legal representatives,
successors and assigns, guests, invitees, licensees, designees and the successor(s)-in-title to
RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page
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657-10-1849
each Lot Owner, and in favor of the invitee and designees of each successor(s)-intitle to each Lot
Owner, but not in favor of the public.
Subject to the terms and conditions of this Section, the private roads and streets in the
Properties as shown on the Plat are hereby dedicated as utility easements strictly for the purpose
of constructing, operating, maintaining or repairing a system(s) of electric lighting, electrical power,
telegraph and telephone lines, gas lines, sewers, water lines, storm drainage (surface or
underground), cable television, or any other utilities that the Declarant sees fit to install (or permit
to be installed) in, across and/or under the Property. The dedication of the private roads and
streets as utility easements shall not affect operation of the roads and streets in this Property as
private roads and streets.
Notwithstanding the operation of the roads and streets in the Property as private streets,
Declarant hereby grants to Law Enforcement Agencies and Officers of Montgomery County and
the State of Texas, other govermmental law enforcement bodies, fire department officials and fire
protection personnel, vehicles and equipment, ambulances, school buses, Montgomery County
officials and personnel and other govemmental officials and personnel, and to the authorized
agents of the Association for performance of the Association's duties and obligations and exercise
of the Association's rights in respect to the Properties, rights of ingress and egress and passage
over and along said private roads and streets of the Properties in connection with the performance
of their official functions.
After the Declarant tums the P.O.A. over to the property owners, the P.O.A. may offer the
streets for Public Dedication upon the affirmative vote of the owners of a majority of the lots. The
city or public entity is not required to accept the streets.
Section Unrestri Re . These restrictions do not apply in any manner
to any areas designated on the Subdivision Plat as “Reserve” or “Unrestricted Reserve.”
ARTICLE Itt
Re
1 Land Use and Building Type. All Lots shall be known and described
as Lots for single family detached residential dwellings only (hereinafter sometimes referred to as
“Residential Lots”), and no structure shall be erected, altered, placed or permitted to remain on
any Residential Lot other than one (1) single family dwelling with an attached fully enclosed
garage for not less than two (2) cars. The garage will be available for parking automobiles at all
times without any modifications being made to the interior of said garage. Such garage shall be
constructed at the same time as the dwelling and act as an integral part of the residential structure,
constructed with the same design, color and materials as the residence. Occupancy of the
dwelling shall not be authorized until the garage is complete. The residential dwelling shall not
exceed a height of thirty-five (35) feet. The height shall be measured from where the highest point
on natural grade of the Lot abuts the structure, except where the slab must be elevated above the
natural grade to achieve minimum slab elevation as required by the Committee. In this situation,
the height shall be measured from the minimum slab elevation established by the Committee.
Garages placed on comer lots may not face the side street and shall be located no closer
to the side fot line than the minimum side lot building setback line as shown on the Subdivision
Plat.
As used herein, the term “Residential Purposes” shall be construed to prohibit the use of
said Lots for garage apartments or apartment houses; and no Lot shall be used for business or
professional purposes of any kind, nor for any commercial or manufacturing purpose. Each Lot
improvement thereon shall be used only as a single family residence. The rental of a dwelling for
occupancy as a residence shall not be construed as a business. No building of any kind or
character shall be moved onto any Lot within said properties without written permission of the
Committee; however, no Residential Dwelling shall be moved onto any Lot within said Properties.
No manufactured homes or mobile homes are allowed on any lots in Sunrise Ranch
Section Four.
Section2. Carports. Carports are not acceptable.
Section3. Architectural Control. No improvement shall be erected, placed or
altered on any Lot until the construction plans and specifications and a plot plan showing the
location of the improvement thereon have been approved by the Architectural Control Committee
RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page
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with respect to harmony with existing structures, design, color, location with respect to topography
and finished grade elevation and compliance with minimum construction standards more fully
provided for herein. The Committee is authorized to grant variances if the variance is reasonable
and if the structure is not inconsistent with the general scheme and harmony of the development.
The builder must be approved in order to ensure that the structure will be built according to the
plans and specifications.
i The minimum square footage of the total living area of
the main residential structure, exclusive of open porches, garages and servants quarters, shall be
as follows:
All Lots - The minimum living area of a one (1) or one and one-half (1 1/2) story residential
structure shall be 1,200 square feet. The minimum living area of a two (2) or two and one-half (2
1/2) story residential structure shall be 1,200 square feet.
Section5. ‘ype of Construction, Materials and Landscaping.
(a) Residences and garages shall be of 50 percent masonry construction, or its
equivalent on its exterior wall area, (stucco is considered masonry) unless approved in writing by
the Committee. The Committee has sole discretion as to the percentage calculation of masonry
used. Detached garages of Lots shall use masonry, equivalent to that on residence, on side
facing street but may have wood siding of a type on all remaining sides and design shall be
approved by the Committee to be located at the rear of the main residence.
() No extemal roofing material other than wood shingles, wood shake, slate, tile,
metal, built up roof, composition (where the type, weight, quality and color has been specifi
approved by the Committee) shall be used on any building in any part of the Properties without the
written approval of the Committee. All roofing material must be applied in accordance with the
manufacturer's specifications. Roof vents, vent stacks, galvanized roof valleys and other roof
items must be painted to match the roof materials. Roof items that appear on cedar shingle roofs
must be painted in such a manner that the color matches a weathered cedar shingle. Galvanized
roof valleys must be primed before being painted to insure the prevention of peeling.
© No window or wall type air conditioners shall be permitted to be used, erected,
placed or maintained on or in any building in any part of the Properties.
(@) Each kitchen in each dwelling or living quarters situated on any Lot shall be
equipped with a garbage disposal unit, which garbage disposal unit shall at all times be kept in a
serviceable condition.
(e) Landscape layout and plans shall first be approved by the Committee before work
commences.
© All roof ventilation (other than ridge ventilators) shall be located to the rear of the
roof ridge line and/or gable of any structure and shall not extend above the highest point of such
Structure, so as not to be visible from any street. The Committee shall have the right to approve
the exceptions to the foregoing in cases where energy conservation and heating/cooling efficiency
require ventilators that, because of the particular roof design, cannot be hidden from view.
Section6. Building Location. No main residence or garage nor any part thereof
‘shall be located on any Lot nearerto the front or rear Lot line or nearer to the side street Lot line
‘than the minimum building lines as shown on the Subdivision Plat.
Upon written request, the Committee may approve deviations from the single family
detached building location requirements provided such deviations do not alter the scope and
intent of the restrictions.
Si 7. Slab
Requirements. All building foundations shall consist of a concrete
slab, unless the Committee approves a different type of foundation when circumstances, such as
topography of the Lot, make it impractical to use a concrete slab of all or any portion of the
foundation of the building improvements constructed on the Lot. The finished slab elevation for all
other structures shall be above the 100 year fiood piain as established by Commissioner's Court of
Montgomery County, Texas, the Montgomery County Engineers Office, and other applicable
governmental authorities. All residential foundations/slabs for all Lots in the subdivision must be a
minimum of eight inches above finished grade of the Lot at the foundation perimeter. The
Committee does not determine whether the structural integrity of the slab is adequate. A structural
engineer should be consulted on these matters. Sufficient soil investigation should be obtained
RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page
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for proper slab design. The Committee may make deviations in the above foundation
requirements provided such deviations do not alter the scope and intent of the restrictions.
Ss n 8. Annoyance or Nuisances. No noxious or offensive activity shall be carried
on upon any Lot nor shall anything be done thereon which may become an annoyance or
nuisance to the neighborhood. No exterior speaker, hom, whistle, bell or other sound device,
except security and fire devices used exclusively for security and fire purposes, shall be located,
used or placed on a Lot. Activities especially prohibited, including but not limited to the following,
are:
a) The performance of work on automobiles or other vehicles upon the Lot or in driveways
or streets abutting Lots except as permitted in Section 22 of this Article.
b) The use of discharge of firearms, firecrackers or other fireworks within the Properties.
¢) Storage of flammable liquids in excess of ten (10) gallons.
d) Activities which may be offensive by reason of odor, fumes, dust, smoke, vision,
vibration or pollution which are hazardous by reason of excessive danger, fire or
ex ive.
Temy re No structure of a temporary character, whether
trailer, basement, tent, shack, garage, bam or other outbuilding shall be maintained or used on
any Lot at any time as a residence, or for any other purpose, either temporarily or permanently;
provided, however, that Declarant reserves the exclusive right to erect, place and maintain such
facilities in or upon any portion of the Properties as in its sole discretion which may be necessary
or convenient while selling Lots, selling or constructing residences and constructing other
improvements upon the Properties. Such facilities may include but not necessarily be limited to
sales and construction offices, storage areas, and signs. Portable toilet facilities shall be placed at
the construction site. Upon approval of the Committee, a contractor building a Residential
Dwelling on a Lot for the Owner of such Lot may place a temporary construction office on the Lot.
No garage, servant's quarters or other permitted accessory structure shall be erected, placed or
maintained on any Lot until construction of the main residential dwelling has commenced. Any
structure on which construction has commenced must be completed within a reasonable length of
time not to exceed 180 days.
Section 10. Signs
Billboards.
and No signs, billboards, posters, or advertising
devices of any character shall be erected, permitted or maintained on any Lot or plot without the
express prior written consent of the Association. All signs, billboards, posters and other
advertising devices shall conform to the Committee's predetermined sign policy. The Association,
Dectarant or their agents shalt have the right to remove any sign not complying with the above
referenced policy and in so doing, shall not be liable and are expressly relieved from any liability
for trespass of other tort in connection therewith or rising from such removal. The right is res
Preview
Cause No. 18-12-16925 SUNRISE RANCH PROPERTY OWNERS IN THE DISTRICT COURT OF ASSOCIATION, INC., Plaintiff, VS. MONTGOMERY COUNTY, TEXAS LARRY HORN, JR., Defendant, 410TH JUDICIAL DISTRICT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, Sunrise Ranch Property Owners Association, Inc., asks the Court to grant a summary judgment on its cause of action against the Defendant, Larry Horn, Jr.. I. Introduction This suit was filed by the Plaintiff to collect past due annual maintenance assessments, interest and other charges that are due and owing to the Plaintiff pursuant to the applicable restrictive covenants (Restrictions) and/or state law. Plaintiff seeks a personal judgment for past due annual maintenance assessments, interest and other charges on the assessment account of the property at Lot 5, Block 2, of Sunrise Ranch, Section 4, a subdivision in Montgomery County, Texas, according to the map or plat thereof recorded in Cabinet V, Sheet 180 of the Map Records of Montgomery County, Texas in Montgomery County, Texas (Property) also known as 18408 Sunrise Oaks Court, Montgomery, TX 77316. Plaintiff also seeks a judgment establishing and foreclosing the lien securing the Defendant's obligations and ordering a sale of the Property subject to any superior liens provided for in the Restrictions or by Jaw for all amounts due and owing to the Association that are secured by the Association’s lien on the Property. Plaintiff also seeks attorney's fees pursuant to the terms of the Restrictions and/or the Texas Property Code and court costs. Plaintiff ’s Original Petition and Requests for Disclosure was filed on or about December 26, 2018. Defendant, Larry Hor, Jr., filed an Answer. Plaintiff filed this motion for summary judgment based on the fact that (1) Defendant, Larry Horn, Jr., is the owner of the Property; (2) the Property is encumbered by Restrictions; and, (3) the Defendant has failed to pay annual maintenance assessments and other charges on the assessment account of the Property as required by the Restrictions and/or state law. The Plaintiff filed and served this motion on the Defendant at least twenty-one (21) days before the motion was set on the Court's oral hearing/submission docket. IL. Incorporation of Exhibits All exhibits attached to this Motion for Summary Judgment are fully incorporated by reference herein for all purposes. III. Argument and Authorities When a Plaintiff moves for summary judgment on its cause of action, the Plaintiff must conclusively prove all essential elements of its claim. MMP, Ltd. V. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The Plaintiff must show that there are no genuine issues of material fact regarding each element of the Plaintiff's claim, and that the Plaintiff is entitled to judgment as a matter of law. Id.; Wesson v. Jefferson S. & L. Ass’n, 641 S.W.2d 903, 904-05 (Tex. 1982). The Plaintiff is entitled to summary judgment as a matter of law because of the following: 1 The Defendant is the owner of the Property by virtue of a true and correct copy of the deed which is attached as Exhibit A; The Property is subject to Restrictions properly recorded and filed in the Official Public Records of Real Property of Montgomery County, Texas, as amended, if any, a true and correct copy(s) of which is attached as Exhibit B; The Defendant is charged with notice of the Restrictions. 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 Association may impose interest and late charges for late payments of regular assessments or special assessments. TEX. PROP. CODE. ANN. §204.010(a)(10) (Vernon 1984); The Association may, if notice and an opportunity to be heard are given, collect reimbursement of reasonable costs incurred by the Association relating to violations of the subdivision’s restrictions TEX. PROP. CODE. ANN. §204.010(a)(11) (Vernon 1984); The assessment and collection of annual maintenance assessments and other charges as sued for herein are authorized by the Article VI of the Restrictions as amended, if any, (Exhibit B); Article VI of the Restrictions set forth the creation and reservation of a lien securing payments of the annual maintenance assessments (Exhibit B). Article VI of the Restrictions authorizes the Association to foreclose on said lien (Exhibit B); Article VI imposes interest at the rate of ten percent (10%) per annum on assessments not paid within thirty (30) days of the due date (Exhibit B); For all times relevant to this lawsuit, the Defendant was and continues to be the owner of the Property (Exhibits A & C); 10. The Defendant was provided with written notice of the Defendant's failure to pay the annual maintenance assessments (Exhibit D-2); 11. After all offsets and credits have been applied, there remains due, outstanding and unpaid through June 11, 2019, to the Association the sum of $1,537.76 (Exhibit C); 12. These amounts were retrieved directly from the business records of the Plaintiff (Exhibit C). These records are kept in the regular course of business of the Plaintiff by an individual who is fully authorized to make said records on behalf of the Plaintiff (Exhibit C); 13. The total amount due does not include attorney's fees or court costs incurred in connection with the preparation and filing of this lawsuit (Exhibit ©); 14 The Association has performed all conditions precedent necessary before filing the above-styled lawsuit, and all conditions precedent have occurred for recovery (Exhibit C). Demand was made on the Defendant more than thirty days prior to filing this lawsuit and the debt in question has not been paid (Exhibit C); and, 15. As a result of the Defendant's failure to make the required annual maintenance assessment payments in violation of the Restrictions, the Association was forced to employ the law firm of Roberts Markel Weinberg Butler Hailey, P.C. to pursue this lawsuit and has incurred attorney’s fees (Exhibit D). There are no fact issues in this case. The court may decide this case on the summary judgment evidence included in the exhibits to this motion. IV. Attorney’s Fees The Plaintiff is entitled to recover its reasonable attorney fees pursuant to the Restrictions. In the alternative, the Plaintiff is entitled to reasonable attorney's fees and costs that were incurred in the prosecution of this suit pursuant to §5.006 of the Texas Property Code. The Plaintiff has incurred reasonable attorney’s fees in the amount of $2,469.90 in the prosecution of this suit (Exhibit D). Should it become necessary for Plaintiff to obtain a writ of execution and/or order of sale and have the Property posted for a constable or sheriff's sale in order to collect the amounts awarded in this judgment, Plaintiff will incur additional reasonable attorney’s fees in the amount of $1,800.00 (Exhibit D). Should the Defendant file a Motion for New Trial that is subsequently denied or overruled, the Plaintiff will incur additional reasonable attorney's fees in the amount of $1,000.00 (Exhibit D). Should the final judgment in this case be unsuccessfully appealed by Defendant to a State of Texas Court of Appeals, the Plaintiff will incur additional reasonable attorney’s fees in the amount of $5,805.00 (Exhibit D). Should the final judgment of the State of Texas Court of Appeals be unsuccessfully appealed by Defendant to the Texas Supreme Court, the Plaintiff will incur additional reasonable attorney’s fees in the amount of $5,805.00 (Exhibit D). V. Conclusion Plaintiffs summary judgment evidence establishes that: (1) Defendant, Larry Horn, Jr., is the owner of the Property; (2) there are Restrictions encumbering the Property that are in full force and effect; and, (3) the Defendant has, in violation of the Restrictions, failed to pay required annual maintenance assessments and other charges on the assessment account of the Property in the above-described manner. As there are no genuine issues of material fact regarding the Plaintiff's claim, the Plaintiff is entitled to summary judgment as a matter of law. Prayer For these reasons, the Plaintiff asks the Court to grant this motion and sign a Final Summary Judgment that includes the following: That Defendant, Larry Horm, Jr., shall pay to the Plaintiff, Sunrise Ranch Property Owners Association, Inc., $1,537.76 as the total amount due on the assessment account of the Property that is secured by the Plaintiff's lien on the Property through June 11, 2016; That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch Property Owners Association, Inc., its reasonable attorney’s fees in the amount of Two Thousand Thirty-Eight and 00/100 Dollars ($2,038.00); That Plaintiff, Sunrise Ranch Property Owners Association, Inc., have FORECLOSURE of its lien created by the provisions of the Restrictions on the amounts described in numbers 1 and 2 above (and on post-judgment attorney’s fees described below, if any) on the following described property owned by the Defendant, Larry Horn, Jr.: Lot 5, Block 2, of Sunrise Ranch, Section 4, a subdivision in Montgomery County, Texas, according to the map or plat thereof recorded in Cabinet V, Sheet 180 of the Map Records of Montgomery County, Texas and more commonly known as 18408 Sunrise Oaks Court, Montgomery, TX 77316; That 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 this Final Summary Judgment subject to any superior liens provided for in the Restrictions or at law, if any; and, if the Property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to take the money or any balance thereof remaining unpaid, out of any other property of the Defendant, as in the case of ordinary executions. If any surplus remains after the payment of the sums adjudged to be due, it shall be paid to Defendant, Larry Horn, Jr.; That, in the event it oe necessary for Plaintiff, Sunrise Ranch Property Owners Association, Inc., to obtain a writ of execution and/or an order of sale and have the Property posted for a constable or sheriff's sale in order to collect the amounts awarded in this judgment, Defendant, Larry Horn, Jr., shall pay to Plaintiff, Sunrise Ranch Property Owners Association, Inc., additional attorney reasonable fees and costs in the amount of $1,800.00; That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch Property Owners Association, Inc., additional attorney's fees in the amount of $1,000.00 should the Defendant file a Motion for New Trial that is subsequently denied or overruled; That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch Property Owners Association, Inc., additional attorney’s fees in the amount $5,805.00 should the final judgment in this case be unsuccessfully appealed by Defendant to a State of Texas Appeals Court; That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch Property Owners Association, Inc., additional attorney's fees in the amount of $5,805.00 should the final judgment in this case be unsuccessfully appealed by Defendant to the Texas Supreme Court; That Defendant, Larry Horn, Jr., shall pay to the Plaintiff, Sunrise Ranch Property Owners Association, Inc., costs of court in the amount of $316.90, process server fees in the amount of $115.00, and 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; and 10. All such other relief 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 CERTIFICATE OF SERVICE This is to certify that a true and correct photocopy of the attached foregoing document(s) has been served upon all attorneys of record and/or pro se parties by depositing same with the United States Postal Service by first class mail, correctly addressed and postage prepaid, or in the manner indicated on this the ch lay of August, 2019, to such attorneys and/or parties; Larry Horn, Jr. Lt acs oretat liye Wt am 18408 Sunrise Oaks Ct 9414 72bb TIO4 24S 5495) b3 Montgomery, TX 77316-4222 (CMRRR and regular first class mail) s/ Edward (Teddy) Holtz Edward (Teddy) Holtz EXHIBITA AMM eae REBUBLIG TI LE t WARRANTY DEED WITH VENDOR'S LIEN HORN ‘Loan Number: 000600906 ‘MIN: 1000317-0000000904-9 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 PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. THE STATE OF TEXAS ( KNOW ALL MEN BY THESE PRESENTS: COUNTY OF MONTGOMERY THAT VIRGIN HOMES, INC., A TEXAS CORPORATION , hereinafter called “Grantor” (whether one or more), for and in consideration of the sum of TEN Dollars ($10.00) and other good and valuable consideration to Grantor paid by LARRY HORN, JR. , A SINGLE PERSON, hereinafter called “Grantee” (whether one or more), the receipt of which is hereby acknowledged and confessed, and the further consideration of the execution and delivery by said Grantee of one certain Promissory Note in the principal Sum of $141,734.00, of even date herewith, payable to the order of SECURITYNATIONAL MORTGAGE COMPANY, A UTAH CORPORATION, hereinafter called “Mortgagee”, bearing interest at the rate therein provided; said Note containing the usual reasonable attorney’s fee clause and various acceleration of maturity clauses in case of default, and being secured by Vendor’s Lien and superior title retained herein in favor of said Mortgagee, and being also secured by a Deed of Trust of even date herewith from Grantee to SCOTT R. VALBY, Trustee; and WHEREAS, Mortgagee has, at the special instance and request of Grantee, paid to Grantor a portion of the purchase price of the property hereinafter described, as included in the above-described Note, said Vendor’s Lien against said property securing the payment of said Note is hereby assigned, transferred and delivered to Mortgagee, Grantor hereby conveying to said Mortgagee the said superior title to said property, subrogating said Mortgage to all the rights and remedies of Grantor in the premises by virtue of said liens; and Grantor has GRANTED, SOLD, and CONVEYED, and by these presents does GRANT, SELL, and CONVEY unto said Grantee, the following described property, to-wit: LOT 5, BLOCK 2, OF SUNRISE RANCH, SECTION 4, A SUBDIVISION IN MONTGOMERY COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN CABINET V, SHEET 180 OF THE MAP RECORDS OF MONTGOMERY COUNTY, TEXAS. TO HAVE AND TO HOLD the above-described premises, together with all and singular, the rights and appurtenances thereunto in anywise belonging unto said Grantee, his heirs and assigns, forever. And Grantor does hereby bind himself, his heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto said Grantee, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Taxes for the current year have been prorated and their payment is assumed by Grantee. This conveyance is made subject to any and all valid and subsisting restrictions, easements, rights of way, reservations, maintenance charges together with any lien securing said maintenance charges, zoning | il GV241-00039TXX (01/10) @ age | 2 es) WiPe Et alll laws, ordinances of municipal and/or other governmental authorities, conditions and covenants, if any, applicable to and enforceable against the above-described property as shown by the records of the County Clerk of said County. The use of any pronoun herein to refer to Grantor or Grantee shall be deemed a proper reference even though Grantor and/or Grantee may be an individual (either male or female), a corporation, a partnership or a group of two or more individuals, corporations and/or partnerships, and when this Deed is executed by or to a corporation, or trustee, the words "heirs, executors, and administrators" or "heirs and assigns’ shall, with respect to such corporation or trustee, be construed to mean "successors and assigns’ It is expressly agreed that the Vendor's Lien is retained in favor of the payee of said Note against the above-described property, premises, and improvements, until said Note and all interest thereon shall have been fully paid according to the terms thereof, when this deed shall become absolute. EXECUTED this 15th day of November, 2012. RGIN HOMES, INC,,.A TEXAS CORPORATION By B Nam’ TAGeu” Fe NOY) Title staTE OF | OK COUNTY OF mM ont by ilar, e Neco, is instrument was acknowledged before me o1 is ls) ey Noel of VIRGIN HOMES, INC., rola, Deo A TEXAS CO! RATION , on behalf of said entity. NOTARY PUBLIC GRANTEE’S ADDRESS: 18408 SUNRISE OAKS COURT MONTGOMREY, TEXAS 77316 Retuxn: au Lax Morn, SE 3 \S4O Foc (Se ks Gout mont Qo THK NBIC I il l GV241-00039TXX (01/10) @ a age2 es) MIPS aia ll Doc# 2012112930 FILED FOR RECORD 11/16/2012 3:53PM TY COUNTY CLERK MONTGOMERY COUNTY, TEXAS STATE OF TEXAS COUNTY OF MONTGOMERY | hereby certify this instrument was filed in file number sequence on the date and at the time stamped herein by me and was duly RECORDED in the Official Public ‘ecords of Montgomery County, Texas. 11/16/2012 ‘S Mb. Lub County Clerk Montgomery County, Texas EXHIBIT B 2004-095998 657-10-1846 DECLARATION OF COVENANTS, CONDITIONS and RESTRICTIONS of SUNRISE RANCH SECTION IV THE STATE OF TEXAS COUNTY OF MONTGOMERY This Declaration of Covenants, Conditions and Restrictions, made on the date hereinafter set forth by Bofemco, Inc., a Texas Corporation d/b/a Sunrise Ranch hereinafter referred to as “Deciarant’. WITNESSETH Whereas, Declarant is the owner of that certain property known as Sunrise Ranch, Section Four, a subdivision in Montgomery County, Texas, being 22.937 acres of land situated in the William Atkins Survey, A-3, Montgomery County, TX according to the map or plat thereof recorded in Cabinet V, Sheets 180/1181, Montgomery County Clerk's File No. 2004-026792 of the Map Records of Montgomery County, Texas; and ‘Whereas, it is the desire of Declarant to place certain restrictions, covenants, conditions, stipulations and reservations upon and against such property in order to establish a uniform pian for the development, improvement and sale of such property, and to ensure the preservation of such uniform plan for the benefit of both the present and future owners of Lots in said subdivision: NOW, THEREFORE, Declarant hereby adopts, establishes and imposes upon Sunrise Ranch, Section Four hereinafter referred to as the “Property”, which is further identified in the subdivision plat referenced above, and declares the following reservations, easements, restrictions, covenants and conditions applicable thereto, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the land, which reservations, easements, covenants, restrictions and conditions shall run with the land and shall be binding upon all parties having or acquiring any right, title or interest therein, or any part thereof, and shall inure to the benefit of each owner thereof. ARTICLE | Definitions Section1, ‘Association” shall mean and refer to Sunrise Ranch Property Owner's Association. Section2. “Property and/or Properties” shall mean and refer to Sunrise Ranch, Section Four, which is further identified in the aforementioned subdivision plat. ection3. “Lot and/or Lots” shall mean and refer to the Lots shown upon the subdivision plat which are restricted hereby to use for single family residential dwellings only. Section4. “Lot” shall mean and refer to Block 1, Lots 1 through 80, Block 2, Lots 1 through 35. Section5. ‘Owner” shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is partof the Properties, but in the eventof the execution of a contract for sale covering any Lot, the “Owner” shall be the purchaser named in the contract, but excluding those having such interest merely as security for the performance of an obligation and those having only an interest in the mineral estate. in ‘Subdivision Plat" shall mean and refer to the map or plat of Sunrise Ranch, recorded in Cabinet V, Sheets 180/ 181, inclusive, County Clerk's File No. 2004. 792 of the Map Records of Montgomery County, Texas. “Architectural Control Committee” or “Committee” shall mean and refer to Sunrise Ranch Architectural Control Committee, provided in Article IV hereof. RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page 10f 15 , ihenteci dO dats 657-10-1847 Section8. “Builder-Owner" shall mean and refer to the owner of a Lot who owns such Lot for the sole purpose of development and sale to third parties, and is designated in writing as a Builder-Owner by Declarant. Section9. “Member shall mean and refer to every person or entity who holds a membership in the Association. Section 10. “River Authority” shall mean and refer to the San Jacinto River Authority (SURA’). Section 11 "Board of Directors” or “Board” shall mean the elected body of Sunrise Ranch Property Owners Association. ion 12. “Utility Company” shall mean and fefer to Mid-South Synergy. Section 13. "Residential Dwelling” shall mean and refer to a single residential dwelling with garage. "Improvement" shall mean and refer to any dwelling, garage, swimming pool, wall, fence and any other object placed on, in or under the Properties. “Declarant” shall mean and refer to Bofemco, inc., d/b/a Sunrise Ranch, its successors and assigns. 1 “Resident” shall mean and refer to every person or entity occupying a Residential Dwelling within the Properties. Section 17. “Administrator” shall mean the entity administering the maintenance fund. Section 18. “Unrestricted Reserve” shall mean and refer to any area designated on the Subdivision Plat as a “Reserve” or “Unrestricted Reserve.” ARTICLE It Re Section1. The Subdivision Plat dedicates for use as such, subject to the fimitations set forth therein, the private streets and easements shown thereon and such Subdivision Plat further establishes certain restrictions applicable to the Properties including, without limitation, certain minimum setback lines. All dedications, limitations, restrictions, and reservations shown on the Subdivision Plat are incorporated herein and made a part hereof as if fully set forth herein, and shail be construed as being adopted in each and every contract, deed, or conveyance executed or to be executed by or on behalf of Declarant, conveying said property or any part thereof, whether specifically referred to therein or not. Deciarant reserves the easements and roadways as shown on the Subdivision Plat for the purpose of constructing, maintaining and repairing a system or systems of electric lighting, electric power, telegraph and telephone line or lines, gas, water lines, sewers, storm sewers, drainage ways, cable television or any other utility Declarant sees fit to install in, across and/or under the Properties. Declarant reserves the right to make changes in and additions to the above easements for the purpose of most efficiently and economically installing the improvements. Should any utility company or cable television company fumishing a service covered by the general easement herein provided request a specific easement by separate recordable document, Declarant, without the joinder of any other Owner, shall have the right to grant such easement on said property without conflicting with the terms hereof. Section4. Declarant reserves the right, during installations of paving of the streets as shown on the SubdivisionPlat, to enter onto any Lot or Lots for the purpose of disposing of excavation from dredged material from the shoreline of the Properties and street excavation, including the removal of any trees, as necessary, whether or not the Lot or Lots have been conveyed to and/or contracted for any other Owner or Owners. Neither Declarant nor any utility company or cable television company using the easements herein referred to, shall be liable for any damages done by them or their assigns, RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page 20f 15 ‘ eben ot toe abe 657-10-1848 their agents, employees or servants to fences, shrubbery, trees, flowers or any other property of the Owner situated on the land covered by said easements. Section6. Itis expressly agreed and understood that the title conveyed by Declarant to any Lot or parce! of land within the Properties by contract, deed or other conveyance shall be subject to any easement affecting same for roadways or drainage, water, gas, sewer, storm sewer drainage ways, electric light, electric power, cable service, telegraph or telephone purposes and shall convey no interest in any pipes, lines, poles or conduits, or in any utility facility or appurtenances, thereto constructed by or under Declarant or any easement owner, or their agents. through, along or upon the premises affected thereby, or any part thereof, to serve said land or any other portion of the Properties, and where not affected, the right to maintain, repair, sell or Jease such appurtenances to any municipality, other govemmental agency or any public service corporation or any other party, and such right is hereby expressly reset . Section7. Utility Easements. (a) All Lots are subject to the utility easements reflected on the plat or designated in these Restrictions. (b) No building shall be located over, under, upon or across any portion of any utility easement; however, the Owner of each Lot shall have the right to construct, keep and maintain drives and similar improvements across the utility easement along the front of the Lot and/or along the side of comer lots adjacent to street right-of-ways and shall be entitled to cross such easements at all times for purposes of gaining access to and from such Lots. (c) With the prior approval of the Committee, the Owner of each Lot also shall have the right to construct, keep and maintain driveways, walkways, steps, air conditioning units and equipment over, across or upon any utility easement along the side of such Lots ( the “Side Lot Utility Easement’), other than along any Side Lot Utility Easement which is adjacent to a street right-of-way and shall be entitled, at all times, to cross, have access to and use the improvements focated thereon; however, any such improvements placed upon such Side Lot Utility Easement by the Owner shall be constructed, maintained and used at Owner's risk and the location of such improvements shall not impede the natural flow of water across the Lot. The Owner of each Lot subject to said Side Lot Utility Easements shall be responsible for (i) any and all repairs to the driveways, walkways, steps, air conditioning units and equipment which cross or are located upon. such Side Lot Utility Easements and (ii) repairing any damage to sai improvements caused by the Utility District, any public utility or cable television company in the course of installing, operating, maintaining, repairing, or removing its facilities located within the Side Lot Utility Easements. (d) The Owner of each Lot shall indemnify and hold harmless Declarant, the Utility District, public utility companies and cable television company having facilities located over, across or under utility easements from any loss, expense, suit or demand resulting from injuries to persons or damage to property in any way occurring, incident to, arising out of, or in connection with said Owner's installation, maintenance, repair or removal of any permitted improvements located within utility easements, including where such injury or damage is caused or alleged to be caused by the sole negligence of such public utility or its employees, officers, contractors or agents. (e) In no event shall any Owner construct, maintain or use any of the above described improvements or any other improvements within any utility easements located along the rear of ‘such Owner's Lot. In addition to the utility easements shown on the recorded Plat, there is hereby dedicated a five foot (5’) wide Entergy easement, extending from the surface of the ground downward, and said easement being two and one-half (2 1/2) feet on each side of underground electric service lines as now or hereafter constructed and will extend along the route selected by Mid-South Synergy from Mid-South Synergy’s distribution facilities to the electric meter when and as located upon Lots and Reserves in the Subdivision. Mid-South Synergy shall have the right to excavate said Lot easement strip, and to remove objects, structures, growth or protrusions thereon. n Re ind Stre t 5 The roads and streets in the Properties are not dedicated to the public, but shall be operated as private streets with each Owner having an easement for the use and benefit of such Owner of a Lot fronting thereon or adjacent thereto, with easements shall include rights of ingress, egress and passage over and along said streets in favor of the Declarant, the Association, the Owners and their respective legal representatives, successors and assigns, guests, invitees, licensees, designees and the successor(s)-in-title to RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page Sof 15 Valenttee Lo vee edb te 657-10-1849 each Lot Owner, and in favor of the invitee and designees of each successor(s)-intitle to each Lot Owner, but not in favor of the public. Subject to the terms and conditions of this Section, the private roads and streets in the Properties as shown on the Plat are hereby dedicated as utility easements strictly for the purpose of constructing, operating, maintaining or repairing a system(s) of electric lighting, electrical power, telegraph and telephone lines, gas lines, sewers, water lines, storm drainage (surface or underground), cable television, or any other utilities that the Declarant sees fit to install (or permit to be installed) in, across and/or under the Property. The dedication of the private roads and streets as utility easements shall not affect operation of the roads and streets in this Property as private roads and streets. Notwithstanding the operation of the roads and streets in the Property as private streets, Declarant hereby grants to Law Enforcement Agencies and Officers of Montgomery County and the State of Texas, other govermmental law enforcement bodies, fire department officials and fire protection personnel, vehicles and equipment, ambulances, school buses, Montgomery County officials and personnel and other govemmental officials and personnel, and to the authorized agents of the Association for performance of the Association's duties and obligations and exercise of the Association's rights in respect to the Properties, rights of ingress and egress and passage over and along said private roads and streets of the Properties in connection with the performance of their official functions. After the Declarant tums the P.O.A. over to the property owners, the P.O.A. may offer the streets for Public Dedication upon the affirmative vote of the owners of a majority of the lots. The city or public entity is not required to accept the streets. Section Unrestri Re . These restrictions do not apply in any manner to any areas designated on the Subdivision Plat as “Reserve” or “Unrestricted Reserve.” ARTICLE Itt Re 1 Land Use and Building Type. All Lots shall be known and described as Lots for single family detached residential dwellings only (hereinafter sometimes referred to as “Residential Lots”), and no structure shall be erected, altered, placed or permitted to remain on any Residential Lot other than one (1) single family dwelling with an attached fully enclosed garage for not less than two (2) cars. The garage will be available for parking automobiles at all times without any modifications being made to the interior of said garage. Such garage shall be constructed at the same time as the dwelling and act as an integral part of the residential structure, constructed with the same design, color and materials as the residence. Occupancy of the dwelling shall not be authorized until the garage is complete. The residential dwelling shall not exceed a height of thirty-five (35) feet. The height shall be measured from where the highest point on natural grade of the Lot abuts the structure, except where the slab must be elevated above the natural grade to achieve minimum slab elevation as required by the Committee. In this situation, the height shall be measured from the minimum slab elevation established by the Committee. Garages placed on comer lots may not face the side street and shall be located no closer to the side fot line than the minimum side lot building setback line as shown on the Subdivision Plat. As used herein, the term “Residential Purposes” shall be construed to prohibit the use of said Lots for garage apartments or apartment houses; and no Lot shall be used for business or professional purposes of any kind, nor for any commercial or manufacturing purpose. Each Lot improvement thereon shall be used only as a single family residence. The rental of a dwelling for occupancy as a residence shall not be construed as a business. No building of any kind or character shall be moved onto any Lot within said properties without written permission of the Committee; however, no Residential Dwelling shall be moved onto any Lot within said Properties. No manufactured homes or mobile homes are allowed on any lots in Sunrise Ranch Section Four. Section2. Carports. Carports are not acceptable. Section3. Architectural Control. No improvement shall be erected, placed or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the improvement thereon have been approved by the Architectural Control Committee RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page 4of 15 1 netted de wt ae 657-10-1850 with respect to harmony with existing structures, design, color, location with respect to topography and finished grade elevation and compliance with minimum construction standards more fully provided for herein. The Committee is authorized to grant variances if the variance is reasonable and if the structure is not inconsistent with the general scheme and harmony of the development. The builder must be approved in order to ensure that the structure will be built according to the plans and specifications. i The minimum square footage of the total living area of the main residential structure, exclusive of open porches, garages and servants quarters, shall be as follows: All Lots - The minimum living area of a one (1) or one and one-half (1 1/2) story residential structure shall be 1,200 square feet. The minimum living area of a two (2) or two and one-half (2 1/2) story residential structure shall be 1,200 square feet. Section5. ‘ype of Construction, Materials and Landscaping. (a) Residences and garages shall be of 50 percent masonry construction, or its equivalent on its exterior wall area, (stucco is considered masonry) unless approved in writing by the Committee. The Committee has sole discretion as to the percentage calculation of masonry used. Detached garages of Lots shall use masonry, equivalent to that on residence, on side facing street but may have wood siding of a type on all remaining sides and design shall be approved by the Committee to be located at the rear of the main residence. () No extemal roofing material other than wood shingles, wood shake, slate, tile, metal, built up roof, composition (where the type, weight, quality and color has been specifi approved by the Committee) shall be used on any building in any part of the Properties without the written approval of the Committee. All roofing material must be applied in accordance with the manufacturer's specifications. Roof vents, vent stacks, galvanized roof valleys and other roof items must be painted to match the roof materials. Roof items that appear on cedar shingle roofs must be painted in such a manner that the color matches a weathered cedar shingle. Galvanized roof valleys must be primed before being painted to insure the prevention of peeling. © No window or wall type air conditioners shall be permitted to be used, erected, placed or maintained on or in any building in any part of the Properties. (@) Each kitchen in each dwelling or living quarters situated on any Lot shall be equipped with a garbage disposal unit, which garbage disposal unit shall at all times be kept in a serviceable condition. (e) Landscape layout and plans shall first be approved by the Committee before work commences. © All roof ventilation (other than ridge ventilators) shall be located to the rear of the roof ridge line and/or gable of any structure and shall not extend above the highest point of such Structure, so as not to be visible from any street. The Committee shall have the right to approve the exceptions to the foregoing in cases where energy conservation and heating/cooling efficiency require ventilators that, because of the particular roof design, cannot be hidden from view. Section6. Building Location. No main residence or garage nor any part thereof ‘shall be located on any Lot nearerto the front or rear Lot line or nearer to the side street Lot line ‘than the minimum building lines as shown on the Subdivision Plat. Upon written request, the Committee may approve deviations from the single family detached building location requirements provided such deviations do not alter the scope and intent of the restrictions. Si 7. Slab Requirements. All building foundations shall consist of a concrete slab, unless the Committee approves a different type of foundation when circumstances, such as topography of the Lot, make it impractical to use a concrete slab of all or any portion of the foundation of the building improvements constructed on the Lot. The finished slab elevation for all other structures shall be above the 100 year fiood piain as established by Commissioner's Court of Montgomery County, Texas, the Montgomery County Engineers Office, and other applicable governmental authorities. All residential foundations/slabs for all Lots in the subdivision must be a minimum of eight inches above finished grade of the Lot at the foundation perimeter. The Committee does not determine whether the structural integrity of the slab is adequate. A structural engineer should be consulted on these matters. Sufficient soil investigation should be obtained RESTRICTIONS - SUNRISE RANCH SECTION FOUR Page 5 of 15 ‘ Wet eet ot ah 657-100-1851 for proper slab design. The Committee may make deviations in the above foundation requirements provided such deviations do not alter the scope and intent of the restrictions. Ss n 8. Annoyance or Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may become an annoyance or nuisance to the neighborhood. No exterior speaker, hom, whistle, bell or other sound device, except security and fire devices used exclusively for security and fire purposes, shall be located, used or placed on a Lot. Activities especially prohibited, including but not limited to the following, are: a) The performance of work on automobiles or other vehicles upon the Lot or in driveways or streets abutting Lots except as permitted in Section 22 of this Article. b) The use of discharge of firearms, firecrackers or other fireworks within the Properties. ¢) Storage of flammable liquids in excess of ten (10) gallons. d) Activities which may be offensive by reason of odor, fumes, dust, smoke, vision, vibration or pollution which are hazardous by reason of excessive danger, fire or ex ive. Temy re No structure of a temporary character, whether trailer, basement, tent, shack, garage, bam or other outbuilding shall be maintained or used on any Lot at any time as a residence, or for any other purpose, either temporarily or permanently; provided, however, that Declarant reserves the exclusive right to erect, place and maintain such facilities in or upon any portion of the Properties as in its sole discretion which may be necessary or convenient while selling Lots, selling or constructing residences and constructing other improvements upon the Properties. Such facilities may include but not necessarily be limited to sales and construction offices, storage areas, and signs. Portable toilet facilities shall be placed at the construction site. Upon approval of the Committee, a contractor building a Residential Dwelling on a Lot for the Owner of such Lot may place a temporary construction office on the Lot. No garage, servant's quarters or other permitted accessory structure shall be erected, placed or maintained on any Lot until construction of the main residential dwelling has commenced. Any structure on which construction has commenced must be completed within a reasonable length of time not to exceed 180 days. Section 10. Signs Billboards. and No signs, billboards, posters, or advertising devices of any character shall be erected, permitted or maintained on any Lot or plot without the express prior written consent of the Association. All signs, billboards, posters and other advertising devices shall conform to the Committee's predetermined sign policy. The Association, Dectarant or their agents shalt have the right to remove any sign not complying with the above referenced policy and in so doing, shall not be liable and are expressly relieved from any liability for trespass of other tort in connection therewith or rising from such removal. The right is res