On April 18, 2018 a
Motion,Ex Parte
was filed
involving a dispute between
Sharpstown Civil Association Inc,
and
Lu, Yifeng,
Wang, Sufen,
for Debt/Contract - Debt/Contract
in the District Court of Harris County.
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AUSE - 26058
SHARPSTOWN CIVIC ASSOCIATION § IN THE DISTRICT COURT
Inc. §
Plaintiff §
§
§
§ HARRIS COUNTY, TEXAS
§
§
YIFENG LU AND SUFEN WANG §
Defendants § 151st JUDICIAL DISTRICT
DEFENDANTS’ TRIAL MOTION TO DISMISS
AND MOTION FOR JUDGMENTAND REPLY TO PLAINTIFFS RESPONSE TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
PRELIMINARY INTRODUCTION AND COMMENT
Plaintiff characterizes the Supplemental Petition and the filing of an entirely new cause of
action as a mere correction of a “clerical error”. But - NINETEEN MONTHS AGO on March 7,
counsel first ALERTED Plaintiff that Defendants were not governed by the contract sued
he undersigned attorney sent the following letter to Plaintiff’s counsel. A copy of the
letter is attached hereto:
Counsel:
I’ve taken the time to review your Original Petiti on and your Motion for Summary
judgment and noted that Exhibit A to the Petition and Exhibit B to the Motion do not appear
to be pertinent to Block 47 where my client’s property is located. Take a look at those
documents and give me a call to discuss.
The Plaintiff’s filing at this very late date, of this entirely new contract action is in fact a
Judicial Admission that the written contract which is the basis of this lawsuit is unenforceable in its
entirety as to the Defendants.
Defendants Sufen Wang and Yifeng Lu ask this Court to grant a judgment as to the
issue of general contract liability and enforceability of a written instrument and in support
thereof would show the following:
ARGUMENT
DEED RESTRICTION LAWSUIT
Defendants assert that they are not liable on all contract based issues asserted by the Plaintiff
Home Owner Association because the Defendants are not subject to the requirement of the contract
upon which Plaintiff’s lawsuit is predicated. Defendants are not parties to the Deed Restriction
Contract marked Exhibit A and filed as a part of Plaintiff’s Original Petition. Defendants Sufen
Wang Yifeng Lu ask that all of the claims by the Plaintiff which are or may be founded in or
predicated upon the described Deed Restriction be dismissed. In support of such contention, the
copy of the restriction and a copy of the deed to the Defendant’s property are attached hereto and
incorporated herein for all purposes. Both documents have been filed with the Plaintiff’s Original
Petition and true and correct copies are attached hereto as a convenience for the Court.
THE CONTRACT
This is a contract case based upon a written agreement. Plaintiff’s petition has filed this
cause of action to enforce a deed restriction contract which was created by the Sandpiper Building
Company in 1967 and filed under the Harris County film code 080-34-0089 and bearing the clerk’s
filed number C570799. That document is marked exhibit A in the original petition as well as to
this motion. The instrument is described in Plaintiff’s petition by the clerk’s file number, and it
was attached to the Plaintiff’s Original Petition and was also “incorporated herein by reference for
all purposes”. The lots and blocks to which the deed restriction instrument pertains are enumerated
in that instrument and do not include the lot and block owned and resided upon by the Defendants.
A copy of the deed to the Defendant’s property was also attached to the Plaintiff’s original petition
and is on file as a part of that pleading. That instrument is marked Exhibit B on the original
Petition as well as on this motion.
CONCLUSION AND ATTORNEY FEES
The evidence presented in this motion shows that the Defendants are not liable under the
terms of the contract which forms the basis for this lawsuit.
Plaintiff requests a declaration that the Defendants are not liable under the Deed Restriction
presented and plead by the Plaintiff and asks for reasonable and necessary attorney fees both as a
prevailing party in accordance with Texas Property Code §5.006 and or Texas Property Code
82.161(b) which provide for mandatory attorney fees to the prevailing party in a deed restriction
dispute.
Defendants have incurred attorney fee expenses for more than 65 hours of billable time and
they ask that the question of attorney fees be set for a hearing before the court to present evidence
of such fees under the lodestar requirements.
PREMISES CONSIDERED, Defendants pray for judgment declaring that the Defendants are
not liable under the restrictions instrument as plead and for such other and further relief to which
Defendants may be entitled.
RESPECTFULLY SUBMITTED,
____________________________
DANIEL JOSEPH FAY
6588 Corporate Drive, Suite 300
Houston, Texas 77036
Telephone: 713/626-2300
Facsimile: 713-772-2301
TBA No. 06868400
E-Mail: danfay@swbell.net
Attorney for Plaintiff
Document Filed Date
October 02, 2020
Case Filing Date
April 18, 2018
Category
Debt/Contract - Debt/Contract
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AUSE - 26058 SHARPSTOWN CIVIC ASSOCIATION § IN THE DISTRICT COURT Inc. § Plaintiff § § § § HARRIS COUNTY, TEXAS § § YIFENG LU AND SUFEN WANG § Defendants § 151st JUDICIAL DISTRICT DEFENDANTS’ TRIAL MOTION TO DISMISS AND MOTION FOR JUDGMENTAND REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PRELIMINARY INTRODUCTION AND COMMENT Plaintiff characterizes the Supplemental Petition and the filing of an entirely new cause of action as a mere correction of a “clerical error”. But - NINETEEN MONTHS AGO on March 7, counsel first ALERTED Plaintiff that Defendants were not governed by the contract sued he undersigned attorney sent the following letter to Plaintiff’s counsel. A copy of the letter is attached hereto: Counsel: I’ve taken the time to review your Original Petiti on and your Motion for Summary judgment and noted that Exhibit A to the Petition and Exhibit B to the Motion do not appear to be pertinent to Block 47 where my client’s property is located. Take a look at those documents and give me a call to discuss. The Plaintiff’s filing at this very late date, of this entirely new contract action is in fact a Judicial Admission that the written contract which is the basis of this lawsuit is unenforceable in its entirety as to the Defendants. Defendants Sufen Wang and Yifeng Lu ask this Court to grant a judgment as to the issue of general contract liability and enforceability of a written instrument and in support thereof would show the following: ARGUMENT DEED RESTRICTION LAWSUIT Defendants assert that they are not liable on all contract based issues asserted by the Plaintiff Home Owner Association because the Defendants are not subject to the requirement of the contract upon which Plaintiff’s lawsuit is predicated. Defendants are not parties to the Deed Restriction Contract marked Exhibit A and filed as a part of Plaintiff’s Original Petition. Defendants Sufen Wang Yifeng Lu ask that all of the claims by the Plaintiff which are or may be founded in or predicated upon the described Deed Restriction be dismissed. In support of such contention, the copy of the restriction and a copy of the deed to the Defendant’s property are attached hereto and incorporated herein for all purposes. Both documents have been filed with the Plaintiff’s Original Petition and true and correct copies are attached hereto as a convenience for the Court. THE CONTRACT This is a contract case based upon a written agreement. Plaintiff’s petition has filed this cause of action to enforce a deed restriction contract which was created by the Sandpiper Building Company in 1967 and filed under the Harris County film code 080-34-0089 and bearing the clerk’s filed number C570799. That document is marked exhibit A in the original petition as well as to this motion. The instrument is described in Plaintiff’s petition by the clerk’s file number, and it was attached to the Plaintiff’s Original Petition and was also “incorporated herein by reference for all purposes”. The lots and blocks to which the deed restriction instrument pertains are enumerated in that instrument and do not include the lot and block owned and resided upon by the Defendants. A copy of the deed to the Defendant’s property was also attached to the Plaintiff’s original petition and is on file as a part of that pleading. That instrument is marked Exhibit B on the original Petition as well as on this motion. CONCLUSION AND ATTORNEY FEES The evidence presented in this motion shows that the Defendants are not liable under the terms of the contract which forms the basis for this lawsuit. Plaintiff requests a declaration that the Defendants are not liable under the Deed Restriction presented and plead by the Plaintiff and asks for reasonable and necessary attorney fees both as a prevailing party in accordance with Texas Property Code §5.006 and or Texas Property Code 82.161(b) which provide for mandatory attorney fees to the prevailing party in a deed restriction dispute. Defendants have incurred attorney fee expenses for more than 65 hours of billable time and they ask that the question of attorney fees be set for a hearing before the court to present evidence of such fees under the lodestar requirements. PREMISES CONSIDERED, Defendants pray for judgment declaring that the Defendants are not liable under the restrictions instrument as plead and for such other and further relief to which Defendants may be entitled. RESPECTFULLY SUBMITTED, ____________________________ DANIEL JOSEPH FAY 6588 Corporate Drive, Suite 300 Houston, Texas 77036 Telephone: 713/626-2300 Facsimile: 713-772-2301 TBA No. 06868400 E-Mail: danfay@swbell.net Attorney for Plaintiff