Preview
Received and E-Filed for Record
6/8/2021 9:02 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Rachel Gallagher
21-06-07955
CAUSE NUMBER __________________
FRF, INC. AND § IN THE DISTRICT COURT
TRAIL BLAZER BUILDERS, LLC, §
PLAINTIFF § Montgomery County - 284th Judicial District Court
§
V. § OF MONTGOMERY COUNTY, TEXAS
§
APRIL SOUND PROPERTY OWNERS §
ASSOCIATION, §
DEFENDANT § ________ JUDICIAL DISTRICT
PLAINTIFFS’ ORIGINAL PETITION
To the Honorable Judge of said Court:
FRF, Inc. (“FRF”) and Trail Blazer Builder, LLC (“Trail Blazer”) now present their
petition against April Sound Property Owners Association (the “POA”), in support of which they
would respectfully show the following.
PARTIES, JURISDICTION, AND VENUE
1. FRF is a Texas corporation doing business sin Montgomery County, Texas.. Trail
Blazer is a Texas limited liability company doing business in Montgomery County, Texas. The
POA is a property owners’ association formed and operating in Texas and doing business in
Montgomery County, Texas. It may be served with process by serving its registered agent
Jennifer Donnato at its registered address, 100 April Park Drive, Montgomery, Texas 77356.
2. Venue is proper in this county because it is the county in which all or
substantially all of the acts and omissions giving rise to this lawsuit occurred1 and because the
POA’s principal office is within this county.2
DISCOVERY LEVEL AND AMOUNT IN CONTROVERSY
3. This case should proceed to discovery under a Level 2 discovery control plan.3
1TEX. CIV. PRAC. & REM. CODE §15002(A)(1).
22 TEX. CIV. PRAC. & REM. CODE §15002(A)(3).
3 TEX. R. CIV. P. 190.3.
Plaintiffs’ Original Petition 1
4. Plaintiffs seek monetary relief more than $200,000.00 but not exceeding
$1,000,000.00.4
FACTUAL BACKGROUND
5. Beginning on December 8, 1985, FRF acquired the legal titles to a number of
undeveloped properties in the April Sound development in Montgomery County, Texas (“April
Sound”). The POA is the duly constituted association controlling, managing, and administering
April Sound and all individuals and entities acquiring interests in real estate in April Sound are
subject to the POA’s authority and the deed restrictions pertaining to April Sound.
6. After it acquired its interests in April Sound FRF assigned contracts for deed to
various third parties. In order to receive deeds to the respective properties, the third-party
assignees must submit plans for their proposed development of the respective tracts to the
POA’s Architectural Control Committee (the “ACC”) and receive approval of same from the ACC.
3. FRF has a duty and an unrestricted, exclusive right to issue approvals of all
assignments of contacts for deed. Those approvals make the parties whom FRF approves owners
of equitable interests in April Sound, which makes them responsible for the payment of their
respective portions of POA’s fees and which also entitles them to have access to the POA’s
regular business records.
4. When FRF approves an assignment of an equitable interest it and/or the
recipient thereof notify the POA. Between 1995 and October, 2020, this was the established
practice between FRF and the POA, and the POA regularly and routinely approved of it.
5. Beginning in October, 2020, the POA began delaying and/or refusing its approval
of FRF’s assignments. It demanded and has continued to demand that it be provided with the
original contracts for deed and most recently for the “chain of title” of all these interests back to
the original holder of same, from which FRF acquired its interests. These demands are without
4 TEX. R. CIV P. 47.
Plaintiffs’ Original Petition 2
authority in, and are in violation of, the express restrictive covenants of April Sound (the
“Restrictive Covenants”).5
6. The POA’s refusal to approve FRF’s assignments of contracts for deed has no
authority in the Restrictive Covenants, and is also a violation of the Restrictive Covenants.
7. The POA’s actions, supra, have impaired and continue to impair FRF’s
ownership, use, and enjoyment of its interests and its ability to transfer same, and they also are
impairing FRF’s business operations. They have interfered and continue to interfere with FRF’s
existing and contemplated business relationships.
8. FRF has assigned contracts for deed to Trail Blazer, which is a residential home
builder. FRF’s assignments make Trail Blazer an owner of equitable interests in the tracts
affected by the contracts. The assignments make Trail Blazer responsible for paying relevant
POA fees — which Trail Blazer has done and continues to do — and entitles them access to the
POA’s records.6
9. Trail Blazer, in turn, has entered into agreements with third parties for the
construction and sale of homes on the April Sound tracts to which it holds contracts for deed.
10. Trail Blazer has presented its assignments to the POA, but the POA has refused to
accept and approve the assignments as it should do. It has refused to change its records to
reflect Trail Blazer as having the sole equitable interest in the relevant tracts and has demanded,
wrongfully, that Trail Blazer present records listing a chain of title back to the original property
owner.
VIOLATION OF RESTRICTIVE COVENANTS
11. The POA’s acts and omissions, supra, violate the express terms and conditions of
the Covenants. The POA has violated, and continues to violate, the Covenants willfully and
intentionally. These willful and intentional violations are the direct, proximate, and producing
5The April Sound Section Seven Reservations, Restrictions and Covenants (the “Covenants”), which one
may find at Volume 857, Pages 622 et seq., of the real property records of Montgomery County, Texas.
6 TEX. PROP. CODE §207.001 ET SEQ.
Plaintiffs’ Original Petition 3
cause of damages to FRF and to Trail Blazer and the damages of each party exceed the minimum
jurisdictional limits of this Court.
13. Plaintiffs are entitled to an injunction against the POA requiring it to accept the
pending and all future assignments of equitable interests, to change its records to reflect Trail
Blazer as the sole owner of the equitable interests in question, and to give Trail Blazer access to
the POA’s records.7
12. The POA’s misconduct has made it necessary for Plaintiffs to retain counsel and
to pay counsel for its services. Plaintiffs are entitled to recover their reasonable and necessary
attorney’s fees from the POA.8
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS
13. The POA is, and at all material times has been, aware of the contractual
relationships existing between FRF and Trail Blazer, between FRF and other assignees, and
between Trail Blazer and third parties.
14. The POA has committed the acts described supra willfully and intentionally,
either with the calculation to cause damage to Plaintiffs in their respective businesses or with
actual knowledge of the contracts and Plaintiffs’ respective interests that would lead a
reasonable person to believe in the existence of the contracts and to foresee reasonably that its
acts interfere with the contracts.
15. The POA’s actions are the direct, producing, and proximate cause of damages to
FRF and to Trail Blazer. These damages exceed the minimum jurisdictional limits of this Court.
16. The POA performed the misconduct recited supra maliciously and/or with such a
degree of recklessness as to constitute gross negligence. Plaintiffs are entitled to recover
exemplary damages from the POA at the highest amount permitted by law.9
CONCLUSION AND PRAYER
7TEX. PROP. CODE §207.001 ET SEQ.
8 TEX. PROP. CODE §5.006(A).
9 TEX. CIV. PRAC. & REM. CODE § 41.001 ET SEQ.
Plaintiffs’ Original Petition 4
Wherefore, premises considered, Plaintiffs respectfully pray that citation issue and that
Defendant be served with process, and required to appear and answer herein. Upon final trial of
this lawsuit Plaintiffs pray for a judgment against Defendant for:
1. Their respective damages;
2. Injunctive relief to require the POA to cease violating the Covenants and to
permit Plaintiffs proper access to its records;
3. Exemplary damages at the highest rate permitted by the laws of this state;
4. Their reasonable and necessary attorney’s fees;
5. Their costs of court;
6. Prejudgment and postjudgment interest at the highest rates permitted by law;
and
7. Such other relief, legal and equitable, as to which they may justly be entitled.
Respectfully submitted,
/s/ James J. Burnett
James J. Burnett
State Bar Number 03426950
The Law Office of James J. Burnett
14090 Southwest Freeway, Suite 300
Sugar Land, Texas 77478
Phone: 281.340.2005
Fax: 210.547.7841
jburnett@jamesburnett.com
Counsel for Plaintiffs
Plaintiffs’ Original Petition 5
Preview
Received and E-Filed for Record 6/8/2021 9:02 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Rachel Gallagher 21-06-07955 CAUSE NUMBER __________________ FRF, INC. AND § IN THE DISTRICT COURT TRAIL BLAZER BUILDERS, LLC, § PLAINTIFF § Montgomery County - 284th Judicial District Court § V. § OF MONTGOMERY COUNTY, TEXAS § APRIL SOUND PROPERTY OWNERS § ASSOCIATION, § DEFENDANT § ________ JUDICIAL DISTRICT PLAINTIFFS’ ORIGINAL PETITION To the Honorable Judge of said Court: FRF, Inc. (“FRF”) and Trail Blazer Builder, LLC (“Trail Blazer”) now present their petition against April Sound Property Owners Association (the “POA”), in support of which they would respectfully show the following. PARTIES, JURISDICTION, AND VENUE 1. FRF is a Texas corporation doing business sin Montgomery County, Texas.. Trail Blazer is a Texas limited liability company doing business in Montgomery County, Texas. The POA is a property owners’ association formed and operating in Texas and doing business in Montgomery County, Texas. It may be served with process by serving its registered agent Jennifer Donnato at its registered address, 100 April Park Drive, Montgomery, Texas 77356. 2. Venue is proper in this county because it is the county in which all or substantially all of the acts and omissions giving rise to this lawsuit occurred1 and because the POA’s principal office is within this county.2 DISCOVERY LEVEL AND AMOUNT IN CONTROVERSY 3. This case should proceed to discovery under a Level 2 discovery control plan.3 1TEX. CIV. PRAC. & REM. CODE §15002(A)(1). 22 TEX. CIV. PRAC. & REM. CODE §15002(A)(3). 3 TEX. R. CIV. P. 190.3. Plaintiffs’ Original Petition 1 4. Plaintiffs seek monetary relief more than $200,000.00 but not exceeding $1,000,000.00.4 FACTUAL BACKGROUND 5. Beginning on December 8, 1985, FRF acquired the legal titles to a number of undeveloped properties in the April Sound development in Montgomery County, Texas (“April Sound”). The POA is the duly constituted association controlling, managing, and administering April Sound and all individuals and entities acquiring interests in real estate in April Sound are subject to the POA’s authority and the deed restrictions pertaining to April Sound. 6. After it acquired its interests in April Sound FRF assigned contracts for deed to various third parties. In order to receive deeds to the respective properties, the third-party assignees must submit plans for their proposed development of the respective tracts to the POA’s Architectural Control Committee (the “ACC”) and receive approval of same from the ACC. 3. FRF has a duty and an unrestricted, exclusive right to issue approvals of all assignments of contacts for deed. Those approvals make the parties whom FRF approves owners of equitable interests in April Sound, which makes them responsible for the payment of their respective portions of POA’s fees and which also entitles them to have access to the POA’s regular business records. 4. When FRF approves an assignment of an equitable interest it and/or the recipient thereof notify the POA. Between 1995 and October, 2020, this was the established practice between FRF and the POA, and the POA regularly and routinely approved of it. 5. Beginning in October, 2020, the POA began delaying and/or refusing its approval of FRF’s assignments. It demanded and has continued to demand that it be provided with the original contracts for deed and most recently for the “chain of title” of all these interests back to the original holder of same, from which FRF acquired its interests. These demands are without 4 TEX. R. CIV P. 47. Plaintiffs’ Original Petition 2 authority in, and are in violation of, the express restrictive covenants of April Sound (the “Restrictive Covenants”).5 6. The POA’s refusal to approve FRF’s assignments of contracts for deed has no authority in the Restrictive Covenants, and is also a violation of the Restrictive Covenants. 7. The POA’s actions, supra, have impaired and continue to impair FRF’s ownership, use, and enjoyment of its interests and its ability to transfer same, and they also are impairing FRF’s business operations. They have interfered and continue to interfere with FRF’s existing and contemplated business relationships. 8. FRF has assigned contracts for deed to Trail Blazer, which is a residential home builder. FRF’s assignments make Trail Blazer an owner of equitable interests in the tracts affected by the contracts. The assignments make Trail Blazer responsible for paying relevant POA fees — which Trail Blazer has done and continues to do — and entitles them access to the POA’s records.6 9. Trail Blazer, in turn, has entered into agreements with third parties for the construction and sale of homes on the April Sound tracts to which it holds contracts for deed. 10. Trail Blazer has presented its assignments to the POA, but the POA has refused to accept and approve the assignments as it should do. It has refused to change its records to reflect Trail Blazer as having the sole equitable interest in the relevant tracts and has demanded, wrongfully, that Trail Blazer present records listing a chain of title back to the original property owner. VIOLATION OF RESTRICTIVE COVENANTS 11. The POA’s acts and omissions, supra, violate the express terms and conditions of the Covenants. The POA has violated, and continues to violate, the Covenants willfully and intentionally. These willful and intentional violations are the direct, proximate, and producing 5The April Sound Section Seven Reservations, Restrictions and Covenants (the “Covenants”), which one may find at Volume 857, Pages 622 et seq., of the real property records of Montgomery County, Texas. 6 TEX. PROP. CODE §207.001 ET SEQ. Plaintiffs’ Original Petition 3 cause of damages to FRF and to Trail Blazer and the damages of each party exceed the minimum jurisdictional limits of this Court. 13. Plaintiffs are entitled to an injunction against the POA requiring it to accept the pending and all future assignments of equitable interests, to change its records to reflect Trail Blazer as the sole owner of the equitable interests in question, and to give Trail Blazer access to the POA’s records.7 12. The POA’s misconduct has made it necessary for Plaintiffs to retain counsel and to pay counsel for its services. Plaintiffs are entitled to recover their reasonable and necessary attorney’s fees from the POA.8 TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS 13. The POA is, and at all material times has been, aware of the contractual relationships existing between FRF and Trail Blazer, between FRF and other assignees, and between Trail Blazer and third parties. 14. The POA has committed the acts described supra willfully and intentionally, either with the calculation to cause damage to Plaintiffs in their respective businesses or with actual knowledge of the contracts and Plaintiffs’ respective interests that would lead a reasonable person to believe in the existence of the contracts and to foresee reasonably that its acts interfere with the contracts. 15. The POA’s actions are the direct, producing, and proximate cause of damages to FRF and to Trail Blazer. These damages exceed the minimum jurisdictional limits of this Court. 16. The POA performed the misconduct recited supra maliciously and/or with such a degree of recklessness as to constitute gross negligence. Plaintiffs are entitled to recover exemplary damages from the POA at the highest amount permitted by law.9 CONCLUSION AND PRAYER 7TEX. PROP. CODE §207.001 ET SEQ. 8 TEX. PROP. CODE §5.006(A). 9 TEX. CIV. PRAC. & REM. CODE § 41.001 ET SEQ. Plaintiffs’ Original Petition 4 Wherefore, premises considered, Plaintiffs respectfully pray that citation issue and that Defendant be served with process, and required to appear and answer herein. Upon final trial of this lawsuit Plaintiffs pray for a judgment against Defendant for: 1. Their respective damages; 2. Injunctive relief to require the POA to cease violating the Covenants and to permit Plaintiffs proper access to its records; 3. Exemplary damages at the highest rate permitted by the laws of this state; 4. Their reasonable and necessary attorney’s fees; 5. Their costs of court; 6. Prejudgment and postjudgment interest at the highest rates permitted by law; and 7. Such other relief, legal and equitable, as to which they may justly be entitled. Respectfully submitted, /s/ James J. Burnett James J. Burnett State Bar Number 03426950 The Law Office of James J. Burnett 14090 Southwest Freeway, Suite 300 Sugar Land, Texas 77478 Phone: 281.340.2005 Fax: 210.547.7841 jburnett@jamesburnett.com Counsel for Plaintiffs Plaintiffs’ Original Petition 5