Preview
~ F I) ASSESSED.
ENTERED
no._ 2006-72961 VERIFY]
\
SHAWN MANDERSCHEID IN THEDistrict COpREo
Vv HARRIS counr¥eficx A 6
OND!
oS
o>, oO”.
OL.
THOMAS VANCE FINGER II
209 JUDICIA L aii
w, er 22, 2 @B
BZ
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ye
PLAINTIFF’S ORIGINAL PETITION FOR SPECIFIC PERFORMANCES e
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, Shawn Manderscheid (“Plaintiff”) and files this his Original
Petition for Specific Performance and complains of Defendant Thomas Vance Finger II
(“Defendant”) and for cause of action would respectfully show the Court the following:
Parties
1 Plaintiff Shawn Manderscheid is an individual residing in Houston, Harris County,
Texas.
2 Defendant Thomas Vance Finger II is an individual who owns property located in
Harris County, Texas, which is the subject matter of this litigation. Defendant may be served with
citation at 4203 Pebble Beach Drive, League City, Texas 77573, or wherever he may be found.
Venue
3 Venue is proper in Harris County, Texas, because the property is located in Harris
County, Texas. Defendant owns certain real property situated in Harris County, Texas, which is
more particularly described in: (i) the Standard Purchase Agreement (the “Agreement”), a copy of
which is attached hereto and incorporated herein for all purposes as Exhibit “A,” and (ii) Exhibit
“B”, a copy of which is attached hereto and incorporated herein for all purposes (hereafter the
“Property”).
518729.1 MRR 74100-00001 11/15/06
RECORDER'S MEMORANDUM
This instrument is of poor quality
atte tine of aging
Discovery
4 This case is a Level 2 case under Rule 190.3 of the Texas Rules of Civil Procedure.
Plaintiff reserves the right to request a Discovery Control Plan by Court Order under Rule 190.4 of
the Texas Rules of Civil Procedure.
Breach of Contract/Specific Performanc:
5 On or about October 9, 2006, Plaintiff and Defendant entered into the Agreement in
which Plaintiff agreed to purchase and Defendant agreed to sell the Property.
6. Plaintiff advanced the earnest money per the Agreement for the Property.
7 Plaintiff has further performed all of the obligations imposed on Plaintiff by the
Agreement. Plaintiff has tendered full performance as required by the Agreement.
8 Defendant has failed and refused, and continues to refuse to execute the conveyance
documents agreed to by the parties despite Plaintiff's request that Defendant do so, as well as
Plaintiff's attempt to resolve this dispute by way of informal discussion as required by the
Agreement. Plaintiff has further requested to submit this dispute to a mutually-agreed upon
mediation service. The parties are in the process of scheduling mediation.
9. Defendant has breached the Agreement. Plaintiff seeks specific performance of the
Agreement.
mmon Law Fraud/Statuto raud
10. Defendant made certain representations to Plaintiff to induce Plaintiff to enter into
the Agreement and to perform under the Agreement, which representations were false. In reliance
upon those false representations, Plaintiff entered into the Agreement, performed under the
519470.1 MRR 74102-00003 11/15/06
~~ A
Agreement, and paid the earnest money for the Property. Such actions by Defendant constitute
common law fraud and statutory fraud under Chapter 27 of the Texas Business and Commerce Code.
11. All conditions precedent have been performed or have occurred; thereby allowing
Plaintiff to bring this cause of action, and thereby establishing Defendant’s liability to Plaintiff.
Attorneys’ Fees
12. Asaresult of Defendant’s breach of the Agreement and statutory fraud, ithas become
necessary for Plaintiff to employ the legal assistance of Hoover Slovacek LLP, Attorneys at Law,
to file this suit on its behalf and assist Plaintiff in the enforcement of the Agreement. In connection
with Plaintiff's employment of the undersigned attorneys, it has agreed to pay said attorneys a
reasonable fee, for which Plaintiff is entitled to full reimbursement pursuant to Chapter 27 of the
Texas Business and Commerce Code and pursuant to Chapter 38 of the Texas Civil Practice and
Remedies Code. In connection therewith, Plaintiff would show that it is entitled to recover its
reasonable and necessary attorneys' fee for the services rendered herein through the trial court level;
plus its reasonable and necessary attorneys’ fees should this case be appealed.
13. Pursuant to Rule 166b of the Texas Rules of Civil Procedure, Plaintiff hereby
designate the undersigned attorney as its expert to testify as to reasonable and necessary attorneys’
fees incurred by Plaintiff in the preparation, discovery, trial of this lawsuit and post-trial activities.
Plaintiff also designate any other counsel associated with the undersigned law firm who may be
handling this suit at the time of trial as its expert on the issue of reasonable and necessary attorneys”
fees.
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendant be cited to
appear and to answer, and that on final trial, Plaintiff have the following relief:
519470.1 MRR 74102-00003 11/15/06
~ A
Judgment against Defendant ordering him to execute and deliver to Plaintiff
a sufficient conveyance of the Property described in Exhibits “A" and “B”
attached to this Petition;
In addition to the remedy of specific performance, judgment against
Defendant for damages in an amount within the jurisdictional limits of the
court,
In the alternative, if the remedy of specific performance is denied, judgment
against the Defendant for the loss of bargain damages in an amount within the
jurisdictional limits of the court;
Judgment against Defendant for exemplary damages;
Prejudgment and postjudgment interest on the damages awarded as provided
by law;
Reasonable and necessary attorneys’ fees for trial, and if necessary, appeal;
Costs of suit; and
Such other and further relief to which Plaintiff may be justly entitled.
Respectfully submitted,
HOOVER SLOVACEK LLP
By:
Magjfius R. Rayps
State Bar No. 051232
Thomas M. Pickford
State Bar No. 15986000
5847 San Felipe, Suite 2200
Houston, Texas 77057
(713) 977-8686 / (713) 977-5395 FAX
ATTORNEYS FOR PLAINTIFF
51$470.1 MRR 741002-00003 11/15/06
VERIFICATION
STATE OF TEXAS §
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared Shawn
Manderscheid known to me to be the person whose name is subscribed hereto, and who, being by
me duly sworn, deposed and said that he is the Plaintiff in the above-entitled and numbered cause;
that he has read the above and foregoing Plaintiff's Original Petition for Specific Performance and
that the statements contained in paragraphs 5 through 9 are within his personal knowledge and are
true and correct.
wn Manderscheid
SUBSCRIBED AND SWORN TO before me by Shawn Manderscheid on this the { § day
of November 2006.
re
NOTARY PUBLIC STATE OF TEXAS
GD)
"Ship ja
aie HINES
omnia
‘oorera 22, 2010"
ence
519470.1 MRR 74102-00003 11/15/06
EXHIBIT “A”
1 MRR 74002-00003 115/06
$19470.1
Standard Purchase Agreement
BEIT KNOWN, the widersigned, _ Shawn Mandarechald (Buyer),
offers to purchase
from, Thornas Vanea Finger 11 (Seller), real estate described
as: Lot_9___, Block 336
aan City/Town of Houston
Harris
arty of,—a sald property more particularly described as:_2209 Shear St,
“ewer, Texas 77007 (address/etp cada)
Purchase Price offered is $2,500.00
Earnest money herewith pald $_500.00
Option money herewith paid 8, 0.00.
Balanee
at closing $2,000.00
Totak $2,500.00
This offer is conditional upon the following terms:
1) Termination Option: Zuyer hay paid. ‘Seller MA$_N/A _ (Option Fee) yor the suvespioted
right to
tsrminate this contract by giving notice of
effective data of thls covdrsach..f Dagar gives notlen af termmnation oli the time the
Option Feo will not
Option Fee [] wil? ath », Gn extrnest money WI ba reftmded to
wilt not be credited to the Sales Price oz:
Buyer. The
&or the purpose of this
parograph,, time ts of tha essence; strict compliance with tha time for performance stoted herein ly
2) This offer 10 purchase is subjectto review, inspection, and written approv
of Buyer's al
financial
parmner,
3) Bayer shall hava the right to assign his interest nthe contrast prior to escrow, Seller agrees to
allow purchaser to show property ta | partners and clients prior to closing. Buyer shalt
en, Jo restructia's ‘proceeds rom sale provided that Sellor’s criginal aspovonevet
sale remains
4) Sade, by geod and marketable
tithe, with
Sil possession to said property available te Buyer at date of closing.
3.) Owner shail include tn the purchase price and transfer, free and clear af encumbrances, all facturcs
on tha property on the data of tris affer, The terms of this offer are detailed in this standard
sales agreement to be executed and will determina what items are to be included or
excluded
ay,
$) The closing shall occur on or bafera October 17th, 2006 _, at she public recording
offica of
Fidelity National Title
440 Lousiana, Suite 100, Houston, Texas 77002
a) Ps offer,
en whan accepted, comprised the eile opreemant of purchaser and seller, and WIS agreed
other representationor agreements have been mada or relied upon.
8) ry it between Seller and Buger related to this transaction which Is not resolved.
Aan oe 2.
ln mentation Dash nawelae chal? fe
~ A
Oct. 9 2006p 10: 26AMerweEETS CONSULTING ENGINEERS, INCnsaction
whioh fe nod No. 6365zh0?. 2 27
informal dircusston wil be submited io awutualy acceptable mediation service, Bosh partis shalt
bear tha mediation
9) Other Terms;, er a rags to pay off all debt for above described Includi
but not limited to taxes owed, llens, and attomey fess, Norn Sq
Ke wil mods,
os
22 Le
ie
Oyler, Ra
Seller initints 19/316 Buyer tn!
102) Bayows Wr Gere Gee
send PAG? hen 8 1S tox
Yehae, Fou buy ors Yen
sel\ors ynihas v
Recolved Time Oct, 7 11:49AM Oayons
Standard Purchase Agreement
dirs
SUBVEN: Seller shail, wide to buyer Sallar’s existing survey of the. to Duyar
ard the Title
will be Chiared Ester
a
Compary, ng wth's affidavit acceptable to ths Tale Company for approval
survey 13 not appraved
by tha Title Company or Buyer's lender, a new survey
Buyer’s oxpenst.
TITLE POLICY: Seller shall provide to Buyer at] Selter’s (Z| Buyer's expense an owner policy of title
insurance (Title Policy),
CEPI ANCE OF ROPERTY ONDITIONS:
a rE ee ome en
proiedSles aeons shail Sse +
Jn addition to releases of existing liens, including prepayment penaldey and
recording fees; releaseof Seller's loan Hability: tex stctemantsor certificates; preparation of deed; ond other
expenses payable by Seiler undar this contract, Seller also agrees to pay an dinount not to exceed
SNA So Ee applied toward Buyer's closing cogs,
BROKER FERS:
AWA hav agreed to pay other broker N/A {name of other
broker)
a commission of 3_N/A dollars upon the successful closing and funding of
iis real estate transaction.
N/A N/A
‘Linting Broker/Assuciate Other Broker/Associste
LUlcensa No Licensa Na,
Office Address Offfea Address:
tey
a
Oct. 9. 2006 10:27AM EEIS CONSULTING ENGINEERS, INC 0. 6
~&) 2806 aloe
Data
Seller Date Buyer Date
Pagedol
Recolved Tlae Oct. 7. 11:49AM
EXHIBIT “B”
Lot Nine (9), Block Three Hundred Thirty-six (336), of the Shearn Addition, an unrecorded
subdivision in Harris County, Texas according to the generally recognized plat thereof, Address
known as 2209 Shearn, Houston, Texas 77007.
519470.1 MRR 741002-00003 11/15/06
Preview
~ F I) ASSESSED. ENTERED no._ 2006-72961 VERIFY] \ SHAWN MANDERSCHEID IN THEDistrict COpREo Vv HARRIS counr¥eficx A 6 OND! oS o>, oO”. OL. THOMAS VANCE FINGER II 209 JUDICIA L aii w, er 22, 2 @B BZ € oO ye PLAINTIFF’S ORIGINAL PETITION FOR SPECIFIC PERFORMANCES e TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, Shawn Manderscheid (“Plaintiff”) and files this his Original Petition for Specific Performance and complains of Defendant Thomas Vance Finger II (“Defendant”) and for cause of action would respectfully show the Court the following: Parties 1 Plaintiff Shawn Manderscheid is an individual residing in Houston, Harris County, Texas. 2 Defendant Thomas Vance Finger II is an individual who owns property located in Harris County, Texas, which is the subject matter of this litigation. Defendant may be served with citation at 4203 Pebble Beach Drive, League City, Texas 77573, or wherever he may be found. Venue 3 Venue is proper in Harris County, Texas, because the property is located in Harris County, Texas. Defendant owns certain real property situated in Harris County, Texas, which is more particularly described in: (i) the Standard Purchase Agreement (the “Agreement”), a copy of which is attached hereto and incorporated herein for all purposes as Exhibit “A,” and (ii) Exhibit “B”, a copy of which is attached hereto and incorporated herein for all purposes (hereafter the “Property”). 518729.1 MRR 74100-00001 11/15/06 RECORDER'S MEMORANDUM This instrument is of poor quality atte tine of aging Discovery 4 This case is a Level 2 case under Rule 190.3 of the Texas Rules of Civil Procedure. Plaintiff reserves the right to request a Discovery Control Plan by Court Order under Rule 190.4 of the Texas Rules of Civil Procedure. Breach of Contract/Specific Performanc: 5 On or about October 9, 2006, Plaintiff and Defendant entered into the Agreement in which Plaintiff agreed to purchase and Defendant agreed to sell the Property. 6. Plaintiff advanced the earnest money per the Agreement for the Property. 7 Plaintiff has further performed all of the obligations imposed on Plaintiff by the Agreement. Plaintiff has tendered full performance as required by the Agreement. 8 Defendant has failed and refused, and continues to refuse to execute the conveyance documents agreed to by the parties despite Plaintiff's request that Defendant do so, as well as Plaintiff's attempt to resolve this dispute by way of informal discussion as required by the Agreement. Plaintiff has further requested to submit this dispute to a mutually-agreed upon mediation service. The parties are in the process of scheduling mediation. 9. Defendant has breached the Agreement. Plaintiff seeks specific performance of the Agreement. mmon Law Fraud/Statuto raud 10. Defendant made certain representations to Plaintiff to induce Plaintiff to enter into the Agreement and to perform under the Agreement, which representations were false. In reliance upon those false representations, Plaintiff entered into the Agreement, performed under the 519470.1 MRR 74102-00003 11/15/06 ~~ A Agreement, and paid the earnest money for the Property. Such actions by Defendant constitute common law fraud and statutory fraud under Chapter 27 of the Texas Business and Commerce Code. 11. All conditions precedent have been performed or have occurred; thereby allowing Plaintiff to bring this cause of action, and thereby establishing Defendant’s liability to Plaintiff. Attorneys’ Fees 12. Asaresult of Defendant’s breach of the Agreement and statutory fraud, ithas become necessary for Plaintiff to employ the legal assistance of Hoover Slovacek LLP, Attorneys at Law, to file this suit on its behalf and assist Plaintiff in the enforcement of the Agreement. In connection with Plaintiff's employment of the undersigned attorneys, it has agreed to pay said attorneys a reasonable fee, for which Plaintiff is entitled to full reimbursement pursuant to Chapter 27 of the Texas Business and Commerce Code and pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code. In connection therewith, Plaintiff would show that it is entitled to recover its reasonable and necessary attorneys' fee for the services rendered herein through the trial court level; plus its reasonable and necessary attorneys’ fees should this case be appealed. 13. Pursuant to Rule 166b of the Texas Rules of Civil Procedure, Plaintiff hereby designate the undersigned attorney as its expert to testify as to reasonable and necessary attorneys’ fees incurred by Plaintiff in the preparation, discovery, trial of this lawsuit and post-trial activities. Plaintiff also designate any other counsel associated with the undersigned law firm who may be handling this suit at the time of trial as its expert on the issue of reasonable and necessary attorneys” fees. WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendant be cited to appear and to answer, and that on final trial, Plaintiff have the following relief: 519470.1 MRR 74102-00003 11/15/06 ~ A Judgment against Defendant ordering him to execute and deliver to Plaintiff a sufficient conveyance of the Property described in Exhibits “A" and “B” attached to this Petition; In addition to the remedy of specific performance, judgment against Defendant for damages in an amount within the jurisdictional limits of the court, In the alternative, if the remedy of specific performance is denied, judgment against the Defendant for the loss of bargain damages in an amount within the jurisdictional limits of the court; Judgment against Defendant for exemplary damages; Prejudgment and postjudgment interest on the damages awarded as provided by law; Reasonable and necessary attorneys’ fees for trial, and if necessary, appeal; Costs of suit; and Such other and further relief to which Plaintiff may be justly entitled. Respectfully submitted, HOOVER SLOVACEK LLP By: Magjfius R. Rayps State Bar No. 051232 Thomas M. Pickford State Bar No. 15986000 5847 San Felipe, Suite 2200 Houston, Texas 77057 (713) 977-8686 / (713) 977-5395 FAX ATTORNEYS FOR PLAINTIFF 51$470.1 MRR 741002-00003 11/15/06 VERIFICATION STATE OF TEXAS § COUNTY OF HARRIS § BEFORE ME, the undersigned authority, on this day personally appeared Shawn Manderscheid known to me to be the person whose name is subscribed hereto, and who, being by me duly sworn, deposed and said that he is the Plaintiff in the above-entitled and numbered cause; that he has read the above and foregoing Plaintiff's Original Petition for Specific Performance and that the statements contained in paragraphs 5 through 9 are within his personal knowledge and are true and correct. wn Manderscheid SUBSCRIBED AND SWORN TO before me by Shawn Manderscheid on this the { § day of November 2006. re NOTARY PUBLIC STATE OF TEXAS GD) "Ship ja aie HINES omnia ‘oorera 22, 2010" ence 519470.1 MRR 74102-00003 11/15/06 EXHIBIT “A” 1 MRR 74002-00003 115/06 $19470.1 Standard Purchase Agreement BEIT KNOWN, the widersigned, _ Shawn Mandarechald (Buyer), offers to purchase from, Thornas Vanea Finger 11 (Seller), real estate described as: Lot_9___, Block 336 aan City/Town of Houston Harris arty of,—a sald property more particularly described as:_2209 Shear St, “ewer, Texas 77007 (address/etp cada) Purchase Price offered is $2,500.00 Earnest money herewith pald $_500.00 Option money herewith paid 8, 0.00. Balanee at closing $2,000.00 Totak $2,500.00 This offer is conditional upon the following terms: 1) Termination Option: Zuyer hay paid. ‘Seller MA$_N/A _ (Option Fee) yor the suvespioted right to tsrminate this contract by giving notice of effective data of thls covdrsach..f Dagar gives notlen af termmnation oli the time the Option Feo will not Option Fee [] wil? ath », Gn extrnest money WI ba reftmded to wilt not be credited to the Sales Price oz: Buyer. The &or the purpose of this parograph,, time ts of tha essence; strict compliance with tha time for performance stoted herein ly 2) This offer 10 purchase is subjectto review, inspection, and written approv of Buyer's al financial parmner, 3) Bayer shall hava the right to assign his interest nthe contrast prior to escrow, Seller agrees to allow purchaser to show property ta | partners and clients prior to closing. Buyer shalt en, Jo restructia's ‘proceeds rom sale provided that Sellor’s criginal aspovonevet sale remains 4) Sade, by geod and marketable tithe, with Sil possession to said property available te Buyer at date of closing. 3.) Owner shail include tn the purchase price and transfer, free and clear af encumbrances, all facturcs on tha property on the data of tris affer, The terms of this offer are detailed in this standard sales agreement to be executed and will determina what items are to be included or excluded ay, $) The closing shall occur on or bafera October 17th, 2006 _, at she public recording offica of Fidelity National Title 440 Lousiana, Suite 100, Houston, Texas 77002 a) Ps offer, en whan accepted, comprised the eile opreemant of purchaser and seller, and WIS agreed other representationor agreements have been mada or relied upon. 8) ry it between Seller and Buger related to this transaction which Is not resolved. Aan oe 2. ln mentation Dash nawelae chal? fe ~ A Oct. 9 2006p 10: 26AMerweEETS CONSULTING ENGINEERS, INCnsaction whioh fe nod No. 6365zh0?. 2 27 informal dircusston wil be submited io awutualy acceptable mediation service, Bosh partis shalt bear tha mediation 9) Other Terms;, er a rags to pay off all debt for above described Includi but not limited to taxes owed, llens, and attomey fess, Norn Sq Ke wil mods, os 22 Le ie Oyler, Ra Seller initints 19/316 Buyer tn! 102) Bayows Wr Gere Gee send PAG? hen 8 1S tox Yehae, Fou buy ors Yen sel\ors ynihas v Recolved Time Oct, 7 11:49AM Oayons Standard Purchase Agreement dirs SUBVEN: Seller shail, wide to buyer Sallar’s existing survey of the. to Duyar ard the Title will be Chiared Ester a Compary, ng wth's affidavit acceptable to ths Tale Company for approval survey 13 not appraved by tha Title Company or Buyer's lender, a new survey Buyer’s oxpenst. TITLE POLICY: Seller shall provide to Buyer at] Selter’s (Z| Buyer's expense an owner policy of title insurance (Title Policy), CEPI ANCE OF ROPERTY ONDITIONS: a rE ee ome en proiedSles aeons shail Sse + Jn addition to releases of existing liens, including prepayment penaldey and recording fees; releaseof Seller's loan Hability: tex stctemantsor certificates; preparation of deed; ond other expenses payable by Seiler undar this contract, Seller also agrees to pay an dinount not to exceed SNA So Ee applied toward Buyer's closing cogs, BROKER FERS: AWA hav agreed to pay other broker N/A {name of other broker) a commission of 3_N/A dollars upon the successful closing and funding of iis real estate transaction. N/A N/A ‘Linting Broker/Assuciate Other Broker/Associste LUlcensa No Licensa Na, Office Address Offfea Address: tey a Oct. 9. 2006 10:27AM EEIS CONSULTING ENGINEERS, INC 0. 6 ~&) 2806 aloe Data Seller Date Buyer Date Pagedol Recolved Tlae Oct. 7. 11:49AM EXHIBIT “B” Lot Nine (9), Block Three Hundred Thirty-six (336), of the Shearn Addition, an unrecorded subdivision in Harris County, Texas according to the generally recognized plat thereof, Address known as 2209 Shearn, Houston, Texas 77007. 519470.1 MRR 741002-00003 11/15/06