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  • KRISTEN GILLAM V. BEN GILLAM PARTITION TO PROPERTY (GEN LIT ) document preview
  • KRISTEN GILLAM V. BEN GILLAM PARTITION TO PROPERTY (GEN LIT ) document preview
  • KRISTEN GILLAM V. BEN GILLAM PARTITION TO PROPERTY (GEN LIT ) document preview
  • KRISTEN GILLAM V. BEN GILLAM PARTITION TO PROPERTY (GEN LIT ) document preview
						
                                

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