Preview
NO.
KRISTEN GILLAM, JAMES HAMNER
GILLAM, JR. AND BRANDI GILLAM
Plaintiff,
Vv.
BEN GILLAM, LAURA CHARLEY,
AMANDA CHARLEY AND ALL
OTHER PERSONS CLAIMING AN
INTEREST IN THE REAL PROPERTY
AT 801 E. 46TH STREET, AUSTIN,
TRAVIS COUNTY, TEXAS 78751 OR
IN THE PERSONAL PROPERTY OF
LELA HAMNER MEDLIN
Defendants.
6/17/2014 9:59:36 AM
Amalia Rodriguez-Mendoza
District Clerk
-1-GN-14-( Travis County
D 1-GN-14-001881 D-1-GN-14-001881
IN THE DISTRICT COURT
419TH
JUDICIAL DISTRICT
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
OF TRAVIS COUNTY, TEXAS
PLAINTIFFS' ORIGINAL PETITION FOR PARTITION OF REAL AND PERSONAL
PROPERTY AND MOTION FOR APPOINTMENT OF RECEIVER
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Kristen Gillam, James Hamner Gillam, Jr. and Brandi Gillam. hereinafter
called Plaintiffs, and bring this action pursuant to Section 23.001 ef seq. of the Texas Property
Code and Rule 756 et seq. of the Texas Rules of Civil Procedure for the partition sale of real
property located in this county and the partition of personal property located with the State of
Texas against Ben Gillam, Laura Charley, Amanda Charley and all other persons claiming an
interest in the real property located at 801 E. 46th Street, Austin, Travis County, Texas 78751 or
in the personal property of Lela Hamner Medlin.
I. Discovery Control Plan
1. Plaintiffs intend that discovery be conducted under Discovery Level 2.
PLAINTIFFS” ORIGINAL PETITION
PAGE | OF 6IL. Parties and Service
2. Plaintiff Kristen Gillam is a resident of the state of Texas whose address is 820 Lisa
Street. Burleson, Texas 76028. The last three numbers of Kristen Gillam's social security number
are 926. Plaintiff James Hamner Gillam, Jr. is a resident of the State of Tennessee whose address
is 8004 Tiger Ct., Spring Hill, TN 37174. Plaintiff Brandi Gillam is a resident of the state of Texas
whose address is 456 Angler Drive, Crowley Texas, 76036.
3. Defendant Ben Gillam is a resident of Texas and may be served with process at his
home at 3309 Keller Road, Temple, Texas by personal delivery.
4. Defendant Laura Charley is a resident of Texas and may be served with process at
her home at 801 E. 46th Street, Austin, Texas 78751 by personal delivery.
5. Defendant Amanda Charley is a resident of Texas and may be served with process
at her home at 801 E. 46th Street, Austin, Texas 78751 by personal delivery.
IIL. Jurisdiction and Venue
6. The District Court has subject matter jurisdiction over this action pursuant to
Section 23.002 of the Texas Property Code. Venue in Travis County is proper in this cause under
Section 15.011 of the Texas Civil Practice and Remedies Code because this action involves real
property as provided by said Section, and this county is where all or part of the real property is
located.
IV. Facts
7. This action is one for Partition under Chapter 23 of the Texas Property Code, and
Rules 756 et seq., of the Texas Rules of Civil Procedure.
8. Plaintiffs and Defendants each own an interest in the real property and
improvements described as LOT 1&2 BLK 11 OLT 16 DIV C RIDGETOP ANNEX, commonly
PLAINTIFFS’ ORIGINAL PETITION PAGE 2 OF 6known as 801 E, 46th Street, Austin, Texas 78751. This real property is hereafter referred to as
"the Property.” In addition, Plaintiffs and Defendants are co-owners of cash held with the State of
Texas as unclaimed property (the “Cash”).
9. Title to the Property is currently in the name of Lela Hamner Medlin who died
intestate on April 21, 2001. Lela Hamner Medlin is either the aunt or great-aunt of each party to
this suit. No probate proceeding was held for Lela Hamner Medlin. Lela Hamner Medlin was
unmarried and had no children at the time of her death. She was preceded in death by her sister
Dorothy Gillam. During her lifetime, Lela Hamner Medlin had two nephews, Ben Gillam
(defendant) and James Gillam (now deceased) and one niece, Mary Gillam (now deceased).
10. James Gillam and Mary Gillam each died intestate after Lela Hamner Medlin and
were unmarried at the time of their deaths. Upon information and belief, no probate proceeding
was held for either James Gillam or Mary Gillam, James Gillam was survived by three children,
Kristen Gillam (Plaintiff), James Gillam, Jr. (Plaintiff) and Brandi Gillam (Plaintiff). Mary Gillam
was survived by three children, Laura Charley (defendant), Amanda Charley (defendant) and an
unknown child.
11. The interest of each party in the Property and the Cash is as follows:
a. Ben Gillam (1/3)
b. Kristen Gillam (1/9)
c. Brandi Gillam (1/9)
d. James Gillam, Jr. (1/9)
e. Laura Charley (1/9)
f. Amanda Charley (1/9)
g. unknown child of Mary Gillam (1/9)
PLAINTIFFS’ ORIGINAL PETITION PAGE 3 OF 612. The Property has an estimated value of $458,164.00 and the cash has an estimated
value of over $500,000.00.
V. Request for Partition
13. Plaintiffs seek (1) a determination that the Property is not susceptible to partition in
kind; (2) an order to sell the Property, and (3) an order partitioning the net sales proceeds of the
Real Property, and partitioning the Cash, among the co-owners in accordance with their respective
interests.
14. Upon information and belief, Defendants Laura Charley and Amanda Charley have
resided in the Property for over ten years without reimbursing the other co-owners for the use of
the Property. Plaintiffs request that the Court allocate among the remaining co-owners of the
Property an amount equal to the amount that co-owner would have received in rental income for
the time the Property was occupied by Laura Charley and Amanda Charley.
VI. Request for Appointment of Attorney ad Litem and Receiver
15. Plaintiffs request that the Court appoint an attorney ad litem to represent the interest
of the class of defendants described as any and all other persons who may claim any title or interest
in the Property whose identities may be unknown to Plaintiffs.
16. Plaintiffs request that the Court appoint as receiver Kimberly Lowe, an Austin
attorney who is board certified in both residential and commercial real estate law and who has
substantial experience as a court-appointed receiver in suits involving the partition of real property.
Plaintiffs specifically request that the Court authorize the receiver to take the following actions:
a. to enter into contracts for the sale of the Property;
b. to execute a deed conveying title to the Property, and to execute any and
all other documents that may be reasonably necessary to effectuate any
sale of the Property;
PLAINTIFFS” ORIGINAL PETITION PAGE 4 OF 617.
Ata closing on the sale of the Property, to pay from the proceeds of the
sale any outstanding balance due on any debt secured by the Property,
including, without limitation, any mortgage debt and unpaid property taxes;
and
to take any and all other actions that, in the discretion of the receiver, are
reasonably necessary or appropriate to sell the Property; and
to withdraw all cash held in the name of Lela Hamner Medlin as
unclaimed property with the state of Texas, or any other bank. credit union.
or depository institution, and to disburse such cash to the persons identified
by the Court as owners.
VII. Attorney Fees
Plaintiffs request recovery of attorney’s fees and court costs incurred in
bringing and prosecuting this action.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the
Defendants be cited to appear and answer herein, and that upon a hearing of the cause, a decree be
entered as follows:
1.
Determining the share of each of the joint owners of the Property and
Cash;
Determining that the Property is not susceptible to partition in kind, and
directing sale of the Property;
Awarding each co-owner of the Property an amount equal to the amount
that co-owner would have received in rental income for the time the Property
was occupied by Laura Charley and Amanda Charley;
Awarding recovery of costs, interest, attorney’s fees, and other such relief
to which Plaintiffs may be justly entitled, and ordering that all such awards that
constitute sums of money be ordered distributed to Plaintiffs from the proceeds
from the sale of the Property;
Awarding each co-owner of the Property the share of remaining net
proceeds from the sale that is attributable to each co-owner’s interest in the
Property, and awarding each co-owner of the Cash such person’s share of the
Cash; and
Awarding Plaintiffs all other relief which the Court determines just and
PLAINTIFFS” ORIGINAL PETITION PAGE 5 OF 6equitable.
Respectfully submitted,
Richey & Paver, P.C.
By, FQ
Kenneth A. Richey, Jr:
Texas Bar No. 2404420
Email: kenneth@richeypaverlaw.com
1910 Justin Lane
Austin, Texas 78757
Tel. (512) 336-2863
Fax. (512) 335-6029
Todd M. Hurd
Texas Bar No: 24025443
TODD HURD & ASSOCIATES
P.O. Box 1741
Burleson, Texas 76097
Tel: (817) 426-4529
Fax: (817) 426-8159
thurd@texasattorneylaw.com
Attorneys for Plaintiffs
PLAINTIFFS’ ORIGINAL PETITION PAGE 6 OF 6CIVIL CASE INFORMATION SHEET
CAUSE NUMBER (FOR CLERK USE ONLY)
A
health
the time of filing,
1. Contact information for person completing case information sheet:
STYLED KRISTEN GILLAM, ET AL.
COURT (FOR CLERK USE ONLY):
E
LLAM, ET AL
(e.g., John Smith v. All American Insurance Co; In re Mary Ann Jones: In the Matter of the Estate of George Jackson)
Names of parties in case:
¢ information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil. family law. probate, or mental
se oF When a post-judgment petition for modification or motion for enforcement is filed in a family law case. The information should be the best available at
Person or entity completing sheet is:
Name:
Kenneth A. Ri Jr,
Address:
1946 Justin Lane
City/State/Zip:
Austin, ‘Texas 78757
Signature
Email,
kenneth@richeypaverlaw.com
Telephone:
512) 336-2863
Fax:
(812) 335-6029
State Bar No:
24044207
Plaintiff(s)/Petitioner(s):
Kristen Gillam, James Hamner Gillam.
Jr_and Brandi Gillam
Defendant(s)/Respondent(s):
Ben Gillam, Laura Charley, Amanda
Charley and all other persons claiming an
interest in the real property at 801 FE. 46"
Street, Austin, Travis County, ‘Texas.
78751 or in the personal property of Lela
Hamner Medlin
[Attach additional page as necessary to list all parties]
Bdatiorney for Plaintifi/Petitioner
Oro Se Plaimtiff/Petitioner
Lititle 1v-D Ageney
Olother,
Additional Parties in Child Support Case
Custodial Parent:
Nor
ustodial Parent:
Presumed Father’
2. Indicate case type, or identify the most important issue in the case (select only 1):
Civil
Family Law
Contract
Injury or Damage
Real Property
Marriage Relationship
Post-judgment Actions
{non-Title IV-D)
Oandtord’renant
CJNon-Competition
CoPartnership
Clother Contract
Product Liability
Da Asbestos/Silica
Clother Product Liability
List Product:
Cother Injury or Damage’
Debt Contract DAAssault/Battery TEminent Domain’ TUAnnulment enforcement
consumer’ TPA Li construction Condemnation C)Dectare Marriage Void CModitication—Custody
Dibeby Contract Cdefamation partition Divorce
C)rraud/Misrepresentation | Afalpractice uiet Title With Children
p ip!
Other debt Contract: CAccountin; |Trespass to Try Title [No Children
ie Pi y
ClLegat Clother Property raternity
Foreclosure OMedical iprocals (UIFSA)
Ghitome t:quity—t'xpedited Cother Professional Osupport Order
Cother Foreclosure Liability: Related to Criminal
Franchise Motor Vehicle Accident ‘elated to Criminal , sonshi
Errante Ebmowr ve rene cere Matters Other Family Law Parent-Child Relationship
CIExpunction
CoJudgment Nisi Judgment
(Non-Disclosure C)Habeas Corpus
Dseizure/orfeiture (Name Change
writ of Habeas Corpus—
Pre-indictment
Dother: of Minority
Olother:
Employment
Other Civil
Oiscrimination
Detaliation
Qermination
Cworkers’ Compensation
CDother Employment:
administrative Appeal
Olamitrust/Untair
Competition
code Violations
Foreign Judgment
Diintetiectual Property
CLawyer Discipline
CoPerpetuate Testimony
Dsecurities/Stock
OTortious Interference
Cotter:
Tlentorce Foreign
Ciprotective Order
Clremoval of Disabilities
DAdoption/Adoption with
Termination
CO child Protection
Ci child Support
Ci custody or Visitation
Cicestational Parenting
(Grandparent Access
Copaternity/Parentage
OTermination of Parental
Rights
Dother Parent-Child
Olother tax
independent Administration
Cother Estate Proceedings
Tax Probate & Mental Health
Co fax Appraisal Probate/Wills/Iniestate Administration CGuardianship—Adult
CTax Delinquency Cabependent Administration CGuardianship—Minor
(imental Health
Olother:
3. Indicate procedure or remedy, if applicable (may select more than 1):
CJarbitration-retated
Qatachment
Tpit of Review
Dcertiorari
Oiciass Action
CVAppeal trom Municipal or Justice Court
LDeclaratory Judgment
CGarnishment
Giinterpleader
License
(Mandamus
CPost-judgment
Liprejudgment Remedy
Coprotective Order
Cyreceiver
Csequestration
(Temporary Restraining Order/Injunction
Coturnover4, Indicate damages sought (do no select if it is a family law case):
Ces than $100,000. including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorneys fees
Eess than $100,000 and non-monetary relief
Lover $100.00 but not more than $200,000
Lover $200,000 but not more than $1,000,000
Dover $1.000.000
Rev 2/13