Unofficial Copy Office of Chris Daniel District Clerk

Filed 11 August 31 A10:02
Chris Daniel - District Clerk
Harris County
ED101J016473419
By: Kyndria Perkins
Cause No. 2011-42579
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Defendants
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133RD JUDICIAL
MOTION TO TRANSFER
VENUE
collectively,
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Carl B. Vickery and .Margaret G. Baker (hereinafter
and file this Motion to Transfer Venue and would respectfully
of
"Vickery and Baker" or "Defendants"),
DISTRICT
TO TRANSFER VENUE, FIRST AMENDED
DEFENSES AND COUNTERCLAIM
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I.
COME NOW Defendants,
OF HARRIS COUNTY, TEXAS
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DEFENDANTS' FIRST AMENDED MOTION
ORIGINAL ANSWER, AFFIRMATIVE
COURT
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show the Court the following:
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Defendants, object to venue in Harris County, Texas and move the Court to transfer this matter to
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District Court in Matagorda County, Texas pursuant to Rules 86 andS'Z? T.R.C r P.
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Matagorda County is the only county of proper venue pursuant to Tex. Civ. Prac. & Rem. Code, §
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15.011. This case is a declaratory judgment suit to determine the rights of the parties related to certain
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deed restrictions and is an action involving an interest in real property thus making it subject to the
mandatory venue provision of Section 15.011 of theTexas Civil Practice and Remedies Code. In re
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CARL B. VICKERY, MARGARET G.
BAKER, MICHAEL A. BARTOSH,
LANA S. BARTOSH, KOKOMO BEACH
HOMES & PROPERTIES, LLC, ROY
BOTARD, and KELLY BOTARD
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Plaintiff
IN THE DISTRICT
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SARGENT BEACH PROPERTY
OWNERS ASSOCIATION
Applied Chern. Magnesias Corp., 206 S.W.3d 114, 49 Tex. Sup. Ct. J. 1006, 168 Oil, &, Gas Rep. 48
(Tex. 2006).
In addition, Defendants object to venue in Harris County, the county in which this action was
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instituted, on the ground that this county is not a proper county and no basis exists mandating or
permitting venue in this county.
II. ORIGINAL
ANSWER
GENERAL DENIAL
Defendants, Carl B. Vickery and Margaret G. Baker generally deny each and every allegation
contained in Plaintiff's
Original Petition and demand strict proof thereof pursuant to the laws and
ill. DEFENSES
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constitution of the State of Texas.
AND AFFIRMATIVE
DEFENSES
affirmative defenses:
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Without limiting their general denial, Vickery and Bakers plead the following defenses and
The Original Petition fails to state a claim on which relief can be granted.
b.
Plaintiffs' claims are barred by the Statute of Frauds.
c.
Plaintiffs' claims are barred by the doctrine of waiver.
d.
Plaintiffs' claims are barred by the doctrine of estoppel.
e.
Plaintiffs' claims violate the rule against perpetuities.
f.
Plaintiffs' claims are barred by laches.
PREMISES CONSIDERED,
Vickery and Baker pray that Plaintiffs have and
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WHEREFORE,
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recover nothing against Defendants and that Vickery and Baker recover from Plaintiffs all costs of Court
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expended and such other and further relief, both legal and equitable, to which Vickery and Baker may
COUNTERCLAIM
IV. DISCOvERY
PLAN
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show themselves justly entitled.
Discovery is intended to be conducted under Level 2 of Rule 190 of the Texas Rules of Civil
Procedure.
V. VENUE
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Venue is proper in Matagorda County, Texas pursuant to Texas Civil Practice and Remedies
Code § 15.011.
VI. PARTIES
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Counter-Plaintiffs,
("Defendants/Counter-Plaintiffs"
or "Vickery and Baker"), are individuals
residing in Harris County, Texas.
Counter-Defendant,
("PlaintifflCounter-Defendant"
or "Sargent Beach Owners Association"),
alleges in its petition that it is a Texas non-profit corporation with its principle place of business in
Sargent, Texas.
VII. FACTS
and Baker assert that Sargent Beach Owners
Association ("SBOA") is nothing more than a group of Sargent Beach property owners with no authority
The Sargent Beach Addition Deed Restrictions
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to act on behalf of any owners other than SBOA members.
(the "Deed Restrictions")
filed in Matagorda
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County real estate record on April 3, 1954, do not provide for an owners association.
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copy of the Deed Restrictions are attached hereto as Exhibit "A".
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Vickery and Baker own lots 24 thru 41 block 15 Abstract 201 Robert Haley, Sargent
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Beach Addition, and lot 22 block 22 Sargent Beach Addition. These lots are completely
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unimproved and are not accessible from a paved road.
VIII. CAUSES OF ACTION
Declaratory :ludgment
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recreational vehicles on their lots.
are parties to this lawsuit based on their alleged intent to place
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improve the property; however,
entity for any permit to
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Vickery and Baker have not made application to any governmental
Pursuant to Section 37.009 et seq. of the Texas Civil Practices and Remedies Code, Vickery and
Baker request that this Court render a declaration of its rights, costs and attorney's fees.
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and belief, Vickery
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Based on information
Pursuant to Section 37.001 et seq. of the Texas Civil Practices and Remedies Code, Vickery and
Baker request that this Court render a declaration of its rights by interpreting the Deed Restrictions, and
declaring the deed restrictions void, unenforceable and of no effect as same are barred by the doctrine of
waiver.
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Pursuant to Section 37.001 et seq. of the Texas Civil Practices and Remedies Code, Vickery and
Baker request that this Court render a declaration of their rights by interpreting the Deed Restrictions, and
declaring the deed restrictions void, unenforceable and of no effect as same are barred by the doctrine of
estoppel.
Pursuant to Section 37.001 et seq. of the Texas Civil Practices and Remedies Code, Vickery and
declaring the deed restrictions void, unenforceable and of no effect as same are barred by the doctrine of
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laches.
Pursuant to Section 37.001 et seq. of the Texas Civil Practices and Remedies Code, Vickery and
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Baker request that this Court render a declaration of their rights by interpreting the Deed Restrictions, and
and of no effect as same violate the rule against
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declaring the deed restrictions void, unenforceable
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perpetuities.
Pursuant to Section 37.001 et seq. of the Texas Civil Practices and Remedies Code, Vickery and
SBOA has no
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Baker request that this Court render a declaration that under the Deed Restrictions,
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authority to act.
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IX. ATTORNEY
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Vickery and Baker request that this Court award attorney's fees and costs pursuant to TEX. CIV.
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PRAC. & REM. CODE § 57.009.
PRAYER
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Baker request that this Court render a declaration of their rights by interpreting the Deed Restrictions, and
Vickery and Baker pray that:
1.
The SBOA take nothing in its claim against Vickery and Baker;
2.
The SBOA be cited to appear and answer the allegations contained in this counter petition;
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3.
Pursuant to Section 37.001 et seq. of the Texas Civil Practices and Remedies Code, this Court
render a declaration of Vickery and Baker's rights under the Deed Restrictions, declaring the
Deed Restrictions void and unenforceable;
4.
Pursuant to Section 37.009 et seq. of the Texas Civil Practices and Remedies Code, this Court
Vickery and Baker be granted any other and further relief, special or general, legal or equitable,
THE
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as they may show themselves to be justly entitled to receive.
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By:
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Cris A. Rasco
State Bar No. 16551600
2709 Texas Avenue
Texas City, Texas 77590
(409) 750-0436 Telephone
(409) 943-5566 Facsimile
ATTORNEY FOR DEFENDANTS,
VICKERY & BAKER
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award Vickery and Baker costs and attorney's fees; and,
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of DEFENDANTS' FIRST AMENDED
MOTION TO TRANSFER VENUE, FIRST AMENDED ORIGINAL ANSWER, AFFIRMATIVE
DEFENSES AND COUNTERCLAIM have been served upon the following parties on this 31 st day
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of August, 2011 .
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Daniel P. Elms
Chelsea L. Hilliard
Bell Nunnally & Martin, LLP
3232 McKinney Ave., Suite 1400
Dallas, Texas 75204-2429
(214) 740-1400 Telephone
(214) 740-1499 Facsimile
ATTORNEYS FOR PLAINTIFF
SARGENT BEACH HOME OWNERS
ASSOCIA nON
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Via facsimile (281) 356-3333 and U.S. Mail
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Richard O. Werlein
32822 Westwood Square West
Magnolia, Texas 77354
(281) 356-7300 Telephone
(281) 356-3333 Facsimile
ATTORNEY FOR DEFENDANTS
MICHAEL A. BARTOSH, LANA S.
BARTOSH and KOKOMO BEACH
HOMES & PROPERTIES, LLC
Via facsimile (214) 740-1499 and U.S. Mail
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