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FILED
2 CIT ESERVE 5/21/2021 5:38 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
Paula Mountique DEPUTY
DC-21-06523
CAUSE NO.
LUIS]. MARTINEZ, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ DALLAS COUNTY, TEXAS
MARIO SERGIO MARTINEZ and §
SYLVIA I'VILL, §
§ 134th
Defendants. § JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
TO THE PRESIDING JUDGE OF
THE ABOVE-ENTITLED COURT:
Plaintiff Luis J. Martinez files his plaintiff’s original petition against Defendants
Mario Sergio Martinez and Sylvia Will, and would respectfully show the Court as
follows:
I.
DISCOVERY CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level 1, pursuant to Texas Rule
of Civil Procedure 190.4.
2. As required by Texas Rule of Civil Procedure 47, Plaintiff alleges monetary
damages of $250,000 or less and non-monetary relief. The damages sought are within the
jurisdictional limits of this Court.
II.
PARTIES
3. Plaintiff Luis]. Martinez is an individual residing in Dallas County, Texas.
PLAINHFF’s ORIGINAL PETITION PAGE 1
4. Defendant Mario Sergio Martinez is an individual residing in Dallas
County, Texas, and may be served with service of process at his place of residence, 1518
Sereno Drive, Dallas, Texas 75218, or wherever else he may be found.
5. Defendant Sylvia Will is an individual residing in Dallas County, Texas,
and may be served with service of process at her place of residence, 10515 Desdemona
Drive, Dallas, Texas 75228, or Wherever else she may be found.
III.
IURISDICTION AND VENUE
6. This Court has subject matter jurisdiction over this cause pursuant to
Article V, Section 8 of the Texas Constitution and Section 24.007 of the Texas Government
Code.
7. This Court has personal jurisdiction over Defendants because they reside
in Texas and do business in Texas within the meaning of Section 17.042 of the Texas Civil
Practice & Remedies Code.
8. Venue is mandatory in Dallas County pursuant to Section 15.011 of the
Texas Civil Practice & Remedies Code because this is an action for partition of real estate
located in Dallas County.
IV.
FACTUAL ALLEGATIONS
9. Plaintiff and Defendants are siblings, the children of Josefina S. Martinez
and Mario Martinez.
10. Mario Martinez predeceased Josefina S. Martinez.
PLAINHFF’s ORIGINAL PETITION PAGE 2
11. On April 7, 2014, Josefina S. Martinez executed a Special Warranty Deed
with Reservation of Enhanced Life Estate, which was recorded in the real property
records of Dallas County on April 15, 2014, as Instrument No. 201400091486, conveying
her real property located at 10514 Desdemona Drive, Dallas, Texas 75228 (the
”Property”), to Plaintiff and Defendants, and reserving to herself a life estate. A true and
correct copy of the deed is attached hereto as Exhibit A.
12. The legal description of the Property is:
LOT 17, BLOCK 0/5361 OF CENTERVILLE TERRACE NO. 2 ADDITION
TO THE CITY OF DALLAS, TEXAS, ACCORDING TO THE MAP
THEREOF RECORDED II\I VOLUME 15, PAGE 367, MAP RECORDS,
DALLAS COUNTY, TEXAS.
13. The Property is a parcel of approximately 7,921 square feet and contains a
single-family home With attached garage containing approximately 1,108 square feet,
built in approximately 1950.
14. Iosefina S. Martinez passed away in November 2019, which extinguished
the reserved life estate.
15. Plaintiff and Defendants now each own one-third of the Property as
tenants-in-common.
16. For the last several years, Plaintiff has resided in the Property and paid all
expenses to protect and preserve the Property, including money paid for taxes, insurance,
maintenance, and repairs.
17. Plaintiff has also paid to upgrade and renovate the Property, which has
increased the market value of the Property.
PLAINHFF’S ORIGINAL PETITION PAGE 3
18. Plaintiff does not want to continue in joint ownership of the Property With
Defendants.
19. The Property is incapable of partition in kind because a fair and equitable
division of the Property cannot be made. Partition in kind is impractical or unfair.
V.
CLAIM FOR PARTITION BY SALE
20. Plaintiff repeats and incorporates by reference the allegations contained in
paragraphs 1 through 19 of this petition as if fully set forth herein.
21. Plaintiff and Defendants are co-tenants-in—cornrnon of the Property.
22. Plaintiff and Defendants cannot agree on the terms under which the
Property could be sold.
23. Plaintiff does not want to continue in joint ownership of the Property with
Defendants.
24. The Property is incapable of partition in kind because the Property is a small
lot that cannot be further subdivided and contains a small single-family home that cannot
be divided or separated as a practical matter.
25. Plaintiff seeks a determination by the Court that Property is not susceptible
to partition in kind, the fractional interests of each of Plaintiff and Defendants, and the
value of the upgrades and renovations Plaintiff has made to the Property.
26. Plaintiff further seeks appointment of a Receiver to sell the Property, pay
the expenses of sale, pay Plaintiff the value of the upgrades and renovations Plaintiff has
made to the Property, and disburse the remaining balance of the sales proceeds to
Plaintiff and Defendants equally.
PLAINHFF’S ORIGINAL PETITION PAGE 4
VI.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that Defendants be Cited to appear
and that after a hearing or trial the Court:
A. Determine that Property is not susceptible to partition in kind, the fractional
interests of each of Plaintiff and Defendants, and the value of the upgrades and
renovations Plaintiff has made to the Property;
B. Appoint a Receiver to sell the Property, pay the expenses of sale, pay
Plaintiff the value of the upgrades and renovations Plaintiff has made to the Property,
and disburse the remaining balance of the sales proceeds to Plaintiff and Defendants
equally;
C. Confirm the conveyance of the Property from the Receiver to the purchaser
such that the purchaser receives good title to the Property;
D. Award Plaintiff costs and expenses of suit herein; and
E. Grant Plaintiff such further relief to which Plaintiff may be justly entitled.
Respectfully submitted, this let day of May 2021.
/s/ I. Robert Amett II
I. Robert Arnett II
Email: barnett@carterarnett.com
Texas Bar No. 01332900
CARTER ARNETT PLLC
8150 N. Central Expressway, Suite 500
Dallas, Texas 75206
(214) 550-8188 Telephone
(214) 550-8185 Facsimile
COUNSEL FOR PLAINTIFF LUIS].
MARTINEZ
PLAINHFF’S ORIGINAL PETITION PAGE 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
J. Robert Arnett, || on behalf ofJ. Robert Arnett, ||
Bar No. 1332900
barnett@carterarnett.com
Envelope ID: 53709766
Status as of 5/24/2021 10:59 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
J. Robert Arnett, ||
barnett@carterarnett.com 5/21/2021 5:38:41 PM SENT
Kathleen Newsome knewsome@carterarnett.com 5/21/2021 5:38:41 PM SENT
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FILED 2 CIT ESERVE 5/21/2021 5:38 PM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS Paula Mountique DEPUTY DC-21-06523 CAUSE NO. LUIS]. MARTINEZ, § IN THE DISTRICT COURT § Plaintiff, § § v. § § DALLAS COUNTY, TEXAS MARIO SERGIO MARTINEZ and § SYLVIA I'VILL, § § 134th Defendants. § JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION TO THE PRESIDING JUDGE OF THE ABOVE-ENTITLED COURT: Plaintiff Luis J. Martinez files his plaintiff’s original petition against Defendants Mario Sergio Martinez and Sylvia Will, and would respectfully show the Court as follows: I. DISCOVERY CONTROL PLAN 1. Plaintiff intends to conduct discovery under Level 1, pursuant to Texas Rule of Civil Procedure 190.4. 2. As required by Texas Rule of Civil Procedure 47, Plaintiff alleges monetary damages of $250,000 or less and non-monetary relief. The damages sought are within the jurisdictional limits of this Court. II. PARTIES 3. Plaintiff Luis]. Martinez is an individual residing in Dallas County, Texas. PLAINHFF’s ORIGINAL PETITION PAGE 1 4. Defendant Mario Sergio Martinez is an individual residing in Dallas County, Texas, and may be served with service of process at his place of residence, 1518 Sereno Drive, Dallas, Texas 75218, or wherever else he may be found. 5. Defendant Sylvia Will is an individual residing in Dallas County, Texas, and may be served with service of process at her place of residence, 10515 Desdemona Drive, Dallas, Texas 75228, or Wherever else she may be found. III. IURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this cause pursuant to Article V, Section 8 of the Texas Constitution and Section 24.007 of the Texas Government Code. 7. This Court has personal jurisdiction over Defendants because they reside in Texas and do business in Texas within the meaning of Section 17.042 of the Texas Civil Practice & Remedies Code. 8. Venue is mandatory in Dallas County pursuant to Section 15.011 of the Texas Civil Practice & Remedies Code because this is an action for partition of real estate located in Dallas County. IV. FACTUAL ALLEGATIONS 9. Plaintiff and Defendants are siblings, the children of Josefina S. Martinez and Mario Martinez. 10. Mario Martinez predeceased Josefina S. Martinez. PLAINHFF’s ORIGINAL PETITION PAGE 2 11. On April 7, 2014, Josefina S. Martinez executed a Special Warranty Deed with Reservation of Enhanced Life Estate, which was recorded in the real property records of Dallas County on April 15, 2014, as Instrument No. 201400091486, conveying her real property located at 10514 Desdemona Drive, Dallas, Texas 75228 (the ”Property”), to Plaintiff and Defendants, and reserving to herself a life estate. A true and correct copy of the deed is attached hereto as Exhibit A. 12. The legal description of the Property is: LOT 17, BLOCK 0/5361 OF CENTERVILLE TERRACE NO. 2 ADDITION TO THE CITY OF DALLAS, TEXAS, ACCORDING TO THE MAP THEREOF RECORDED II\I VOLUME 15, PAGE 367, MAP RECORDS, DALLAS COUNTY, TEXAS. 13. The Property is a parcel of approximately 7,921 square feet and contains a single-family home With attached garage containing approximately 1,108 square feet, built in approximately 1950. 14. Iosefina S. Martinez passed away in November 2019, which extinguished the reserved life estate. 15. Plaintiff and Defendants now each own one-third of the Property as tenants-in-common. 16. For the last several years, Plaintiff has resided in the Property and paid all expenses to protect and preserve the Property, including money paid for taxes, insurance, maintenance, and repairs. 17. Plaintiff has also paid to upgrade and renovate the Property, which has increased the market value of the Property. PLAINHFF’S ORIGINAL PETITION PAGE 3 18. Plaintiff does not want to continue in joint ownership of the Property With Defendants. 19. The Property is incapable of partition in kind because a fair and equitable division of the Property cannot be made. Partition in kind is impractical or unfair. V. CLAIM FOR PARTITION BY SALE 20. Plaintiff repeats and incorporates by reference the allegations contained in paragraphs 1 through 19 of this petition as if fully set forth herein. 21. Plaintiff and Defendants are co-tenants-in—cornrnon of the Property. 22. Plaintiff and Defendants cannot agree on the terms under which the Property could be sold. 23. Plaintiff does not want to continue in joint ownership of the Property with Defendants. 24. The Property is incapable of partition in kind because the Property is a small lot that cannot be further subdivided and contains a small single-family home that cannot be divided or separated as a practical matter. 25. Plaintiff seeks a determination by the Court that Property is not susceptible to partition in kind, the fractional interests of each of Plaintiff and Defendants, and the value of the upgrades and renovations Plaintiff has made to the Property. 26. Plaintiff further seeks appointment of a Receiver to sell the Property, pay the expenses of sale, pay Plaintiff the value of the upgrades and renovations Plaintiff has made to the Property, and disburse the remaining balance of the sales proceeds to Plaintiff and Defendants equally. PLAINHFF’S ORIGINAL PETITION PAGE 4 VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that Defendants be Cited to appear and that after a hearing or trial the Court: A. Determine that Property is not susceptible to partition in kind, the fractional interests of each of Plaintiff and Defendants, and the value of the upgrades and renovations Plaintiff has made to the Property; B. Appoint a Receiver to sell the Property, pay the expenses of sale, pay Plaintiff the value of the upgrades and renovations Plaintiff has made to the Property, and disburse the remaining balance of the sales proceeds to Plaintiff and Defendants equally; C. Confirm the conveyance of the Property from the Receiver to the purchaser such that the purchaser receives good title to the Property; D. Award Plaintiff costs and expenses of suit herein; and E. Grant Plaintiff such further relief to which Plaintiff may be justly entitled. Respectfully submitted, this let day of May 2021. /s/ I. Robert Amett II I. Robert Arnett II Email: barnett@carterarnett.com Texas Bar No. 01332900 CARTER ARNETT PLLC 8150 N. Central Expressway, Suite 500 Dallas, Texas 75206 (214) 550-8188 Telephone (214) 550-8185 Facsimile COUNSEL FOR PLAINTIFF LUIS]. MARTINEZ PLAINHFF’S ORIGINAL PETITION PAGE 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. J. Robert Arnett, || on behalf ofJ. Robert Arnett, || Bar No. 1332900 barnett@carterarnett.com Envelope ID: 53709766 Status as of 5/24/2021 10:59 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status J. Robert Arnett, || barnett@carterarnett.com 5/21/2021 5:38:41 PM SENT Kathleen Newsome knewsome@carterarnett.com 5/21/2021 5:38:41 PM SENT