THE FOLLOWING IS THE NEW AMENDED PETITION FOR INJUNCTION PER NEW DISCOVERY FILED BY REV. JAMES W. HIGGINS AS COMPOSED AND FILED BY HIS LAWYER, ALLEN C. LEE:
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CASE NO: A-15-0339-CV-A
JAMES HIGGINS § IN
THE DISTRICT COURT
Plaintiff §
Vs §
§ 36TH JUDICIAL DISTRICT
ROY SARVER, and JULIAS HJULIAN §
Defendants § ARANSAS COUNTY, TEXAS
FIRST AMENDED ORIGINAL PETITION, AND REQUEST FOR PERMANENT
INJUNCTION
COMES NOW, JAMES
HIGGINS, hereinafter referred to a Plaintiff complaining of
ROY SARVER and
JULIAS R. HJULIAN, DEFENDANTS, AND would show unto this
Honorable Court
the following:
1. Discovery Control Plan
Plaintiff intends
to conduct discovery under level 2/3 of the Texas Rules of Civil
Procedure because
this is a suit involving extensive discovery involving a residential real
estate
transaction
involving interests in land with damages in excess of $100,000.
2. Jurisdiction
This Court has
jurisdiction because this suit involves a private nuisance, stalking, as
defined by Section
42.072 of the Texas Penal Code; Harassment as that offense is defined by
Section 42.07 of
the Texas Penal Code; Conspiracy to Enter into a Private Nuisance;
Section
42.01 (11 A)
stalking when Sarver uses his camera to look into the window of Plaintiff’s private
residence for a
lewd and unlawful purpose; Fraud; and Fraudulent Concealment and Fraudulent
Inducement; and
Violation of the Texas Deceptive Trade Practices Act; and an action involving
the sale and
purchase of real estate in Aransas County, Texas, jurisdiction is also pursuant to
Texas Real Estate
Code, and is also because of the applicability of certain provisions of an
Ordinance known as
“The Abatement of Public Nuisance
Ordinance” by the Aransas County
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Commissioners
Court on the 15th of December 1999, made applicable through Section
343.001
through 343.023 of
the TEXAS HEALTH AND SAFETY CODE.
3. Parties
Plaintiff is a
resident of Aransas County, Texas and resides at 516 Rowe Street,
Rockport, Texas 78382. Defendant, has previously been served in this lawsuit,
Defendant, Julias
R. Hjulian who is
a resident of Rockport, Texas 78382 and has previously been served in this
case.
4. FACTS
Plaintiff
purchased a tract of land from Mathew Ryan on or about the 11th day of
September 2013.
The real property and improvements thereon herein referred to as “The
Property” are situated at 514/516 Rowe Street, Rockport, Aransas County, Texas. A copy of the
real estate
contract is attached hereto as exhibit “A” and made a part hereof by incorporation.
Plaintiff went
into possession of the property and started to clean the area between his lot
and the
next-door property
owned by defendant, Roy Sarver. Sarver came onto Plaintiff’s property and
tried to
intimidate Plaintiff by threatening to assault Plaintiff and stating he would
take action to
reduce the value
of Plaintiff’s Property if he continued to clean
up his property. Plaintiff
constructed a
fence between his land and Sarver’s land. During
that period, Plaintiff discovered
that a portion of
a concrete pad owned by Sarver was encroaching about a foot on Plaintiff’s
land. The
encroachment was buried a few inches under the ground and not clearly visible.
After
conducting
discovery, the former owner, Mathew Ryan asserted that Defendant, Sarver did
not
disclose to him
that he had constructed a series of pipes that connected to a water storage
tank
situated on the
Sarver land. Sarver from the time that Plaintiff started clearing the brush and
debris on his land
began a campaign to intimidate and force Plaintiff to move from his property.
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Ryan had utility
service to city water but Sarver had no such utility connection to city water.
When Plaintiff
discovered that Sarver was apparently stealing water from him, one reason for
the
constant
harassment became apparent. Sarver was trying to keep Plaintiff from
discovering that
he had been
stealing water from Plaintiff to fill his storage tank. A review of Plaintiff’s water
bills reveals a
surge in consumption that was more than plaintiff was normally using on a
monthly basis. It
is estimated before the water line was disconnected from Defendant Sarver’s
land, Sarver had
stolen about $300-400 worth of Plaintiff’s water. As a
result of Sarver’s
activities,
Plaintiff was forced to dig up the pipeline connected to Sarver’s water tank leading to
his discovery of
other pipelines traversing his property at a cost of approximately $3000.
Plaintiff only
recently discovered that Ryan after his purchase of the property from Sarver
only
lived there about
eight months. Ryan had moved to Longview, Texas and only traveled back to
his house in Rockport, Texas intermittently until he sold the
property to Plaintiff. Plaintiff also
learned that Ryan
had given Sarver keys to his house and had allowed Sarver to use the building
next to the house
to repair his vehicles until he rented the property to Plaintiff about six
months
before the sale
and purchase of the property. Plaintiff alleges that Sarver has conducted a
campaign that
amounts to a private nuisance and continues to conduct such a campaign to
harass;
annoy, and subject
Plaintiff to a health hazard by operating his tractor inside a shed next to
Plaintiff’s property so that the noxious fumes cross from Sarver’s property onto Plaintiff’s
property causing
he and his companion who reside in his home to have serious breathing
problems to a
point where his health both physically and mentally have been impaired. Sarver
also burned leaves
or other debris in a barn immediately next to Plaintiff’s bedroom and kitchen
causing such
noxious smoke to enter his premises to the extent that it has become a health
hazard
and continued to
do so until recently. Sarver has also conducted a campaign of playing his style
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of music at a rate
of more than 85 decibels than are allowed according to the police. To
plaintiff’s consternation the police are called to his home and threaten to
file complaints against
Plaintiff for
disorderly conduct when the musical output is less than one/half of the
decibels put
out by Sarver.
Sarver initially installed powerful flood lights on his property which were
directed at the
front door and bedroom windows of Plaintiff’s property and are
endangering
Plaintiff and his
girlfriend when they walk up and down the stairs to the front door of their
home
and the light is
intentionally beamed directly toward them to cause them to fall down the steps
and injure
themselves. He continues this type of harassment by constructing another set of
lights
on his property and
directing them toward Plaintiff’ bedroom window
allowing his camera to
take pictures of
plaintiff and his girlfriend; by intermittently playing music above the 85
decibels
allowed by law;
and by taking an instrument and banging on metal in the building across the
fence from
Plaintiff’s bedroom window at all hours of the
night, particularly after 10:00 p.m.
when plaintiff
tries to sleep.
“The Property” is described as Lots 17 and 18 Bellevue Addition, City of Rockport,
County of Aransas, Texas also known as 514 and 516 Rowe Street.
Plaintiff further
alleges that Defendant, Sarver has conspired with defendants Julius R.
Hjulian, to have
him file false charges of disorderly conduct and attempted assault as part of
the
campaign to harass
and intimidate Plaintiff. Defendant was wrongly convicted of disorderly
conduced in the JP
and County Courts of Aransas County by the State’s introduction of
a video
prepared by Roy
Sarver which he manipulated to indicate that Plaintiff threatened Hjulian with
a
gun. The video and
audio was altered by Sarver to indicate Plaintiff has requested a “gun” when
Plaintiff had
responded to a remark from Sarver at the time stating “Why don’t you get your
gun?” The response by Plaintiff was “I don’t need a gun”. The jury in both cases heard only
the
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word “get gun”. Hjulian was standing next to
Sarver when the conversation occurred then lied to
the prosecutor to
get him to try the cases then to both juries about what had happened. Hjulian
entered into the
conspiracy to harass Plaintiff by constantly riding on his tricycle on the
wrong
side of the road
with his dog. Plaintiff has dogs which were excited by Hjulian’s dog. These
antics were
designed to cause another altercation between himself and plaintiff to the
point
where he could
defend himself by shooting Plaintiff with a gun which he carried each time he
rode his tricycle
on the wrong side of the road. Plaintiff has videos that indicate, Hjulian
would
pause before he
continued to drive by Plaintiff’s house and set
his phone on video so that if a
confrontation did
ensue he would have a record. Hjulian in his affidavit attached to his First
Amended Answer
falsely stated that on August 3, 2015, that Plaintiff threatened to pull
a gun on
him without cause.
Plaintiff again asserts that the tape and video were altered to make it appear
that Hjulian was
threatened when the words, “get the gun” instead of “I don’t need any gun”
were altered to
indicate to the jury that Plaintiff had threatened defendant with a gun.
Additionally, at a
time when the police had confiscated plaintiff’s gun, Plaintiff
asserts that on or
about December 9, 2015 plaintiff was driving in his car to town on the right side of the
lane
when he
encountered Hjulian again driving his tricycle on the wrong side of the road.
Without
getting out of his
car Plaintiff stopped his car and motioned to Hjulian to move to the correct
side
of the road. This
event happened after Hjulian was served with notice of this lawsuit where he
was accused of
civil conspiracy. Plaintiff was aware that Hjulian had a gun and appeared to go
for it. Fearing
that he was about to be shot, plaintiff turned his car to the left and
proceeded
around Hjulian. As
Plaintiff’s car drove by an eye witness
observed that Hjulian had raised his
feet to kick the
side of plaintiff’s car and based on the evidence that
Hjulian’s right wheel had hit
plaintiff’s vehicle near the right rear of plaintiff’s car, it appeared that Hjulian had purposely
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caused the impact
and reported it to police. Police photos of the incident indicated that Hjulian
even moved his
tricycle slightly off of the road to make it appear he was not on the roadway.
Plaintiff did not
see Hjulian actually fall on the ground so was not aware that an accident had
occurred. He
proceeded to the sheriff’s office to inform officers there
that Hjulian had tried to
assault him with a
gun and that he drove around him to prevent his being shot. Plaintiff
affirmatively
pleads that his actions were taken under the defense of “necessity” as he was
subsequently
falsely charged with “Injury to an Elderly Person” and had to go to jail and make a
$10,000 bond. That
felony case was dismissed by the State, then he was charged with aggravated
assault and that
case was dismissed by the State. He was finally charged with failure to stop
and
render aid after
an accident. At the time of the alleged accident, Plaintiff again asserts that
the
facts indicate
that Hjulian had moved the tricycle off the road; He also stated to the police
that he
was not injured’ and admitted that he was carrying a handgun as Plaintiff feared
which made it
necessary that he
take action to protect himself and his passengers who were traveling in his car
and had also
witnessed Hjulian’s threatening actions. Plaintiff is
set for trial in the criminal case
before this case
so expects to be vindicated at trial.
During these past
four years, Plaintiff has been constantly harassed, annoyed, tormented,
been burglarized,
had his tires cut; had his housemate who is nearly blind, harassed and
intimidated to the
point that he doesn’t get out of his house; Sarver has
placed cameras all around
plaintiff’s house to view plaintiff’s activities and
into plaintiff’s bedroom. Despite plaintiff’s
efforts to avoid
the intrusive cameras by building tarps above his fence, Defendant Sarver has
placed cameras on
his property and has run wire on the McLester property and around to another
neighbor’s property so he can attempt to find out what Plaintiff is doing.
Plaintiff again
originally thought Sarver’s activities were related to the
stolen water which was
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alleged in
Plaintiff’s original petition. Over an almost
four year period, Sarver continued the
harassment.
Plaintiff further alleges that Sarver placed his camera at a point where it can
survey
all of plaintiff’s property, even above the Plaintiff’s tarps that are
over twelve feet high.
Within the past 60
days, Plaintiff has had third parties assist him to determine what an
alleged “hurricane shelter” which is about 4’in height, 8-10 feet in length and about 4’ wide with
a metal door that
only opens from the top had actually been used for. The room which was built
by Sarver before
the sale to him by Ryan had been cleaned with chemicals in an effort to make it
difficult to
determine what Sarver had been using the room for. Despite his efforts, a test
has
confirmed that the
room had been used to manufacture illegal drugs. On an occasion when
plaintiff’s investigators were present during the last 45 days, Defendant,
Julias Hjulian trespassed
onto plaintiff’s driveway and took pictures of the vehicles there as well as
presumably the parties
present. He was
contacted by one of the investigators and asked why he was there and apparently
gave an obtuse
answer. This illegal trespass onto Plaintiff’s property
conclusively proves that
Hjulian is in fact
involved with Sarver in a civil and possibly criminal conspiracy to harass
Plaintiff as well
as a cover-up of Sarver’s illegal activities. In the first
criminal trial in the JP Ct,
Hjulian testified
under oath that he barely knew Sarver. Further discovery indicated that they
served together as
Masons for years. Plaintiff alleges that defendants’ actions over the past four
years have caused
plaintiff extreme mental anguish; have caused him to spend money to dig up
the pipes laid by
Sarver; money to have someone survey the property for water damage caused
by Sarver; have
caused him to spend money on attorney fees to defend himself against false
charges brought
against him by Sarver, and his neighbors some of which were dismissed by
agreement in the
mediation. Plaintiff also requests that the Court permanently enjoin defendants
from harassing
and/or stalking Plaintiff and his housemate; threatening to case them bodily
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injury; harassing
them under both civil and applicable criminal statutes; communicating directly
or indirectly in
any threatening manner; going to or near his residence; engaging in conduct
directly
specifically toward Plaintiff and members of his household and friends
including but not
limited to
following plaintiff, or taking any action that is reasonably likely to harass,
annoy,
alarm, abuse,
torment or embarrass the person. Plaintiff further requests that the Court
based on
defendant Hjulian’s conduct with both implied or direct threats to use his gun on
Plaintiff cancel
or suspend his gun
carry license with the State. If their actions are not enjoined and abated,
Plaintiff’s health will continue to deteriorate. Plaintiff is a disabled
Viet Nam Veteran and only
wants to live in
peace with his neighbors.
5. Count One: Common Law Fraud
Plaintiff
incorporates the facts alleged in paragraph 4 herein in the interest of
brevity.
Plaintiff alleges
that the failure to disclose the encroachments and water lines installed by
Sarver
on plaintiff’s land and failure to disclose that fact that Sarver was using the
waterlines to literally
steal water from
Plaintiff and Plaintiff’s recent discovery that his Seller
Mathew Ryan was
induced by Sarver
to purchase the land without disclosure of the encroachment and pipes
Had Plaintiff
known that the encroachments was there or that Sarver was allowed to steal
water
from him, or that
Sarver would turn out to be the “Neighbor from
Hell,” he would not have
purchased the real
property from Ryan. As a producing result and/or proximate result of the
defendant, Sarver’s fraudulent conduct, Plaintiffs alleges that the market value
immediately
before the sale of
the property was the price he paid for the property of $119,616.63 and the
market value of
the property immediately after the sale was $50,000, the difference of which is
$69,616.00. In the
alternative, Plaintiff alleges damages based on the benefit of the bargain rule
in an amount equal
to the cost of remediating his land, damages as a consequence of the
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encroachment in an
amount alleged to be more than $50,000 all of which he prays judgment
against defendant
Ryan.
6. Count Two: Fraud by Non-Disclosure
and Fraudulent Inducement
Plaintiff
incorporates the facts alleged herein in paragraph 4 herein in the interest of
brevity. In the
alternative, Plaintiff alleges that defendant, Sarver committed fraud by
nondisclosure
and fraudulent
inducement in that the failure to disclose the encroachment and the
hidden pipes trans
versing his property to Ryan have reduced the market value of plaintiff’s real
property were intentional
and/or reckless and done with intent that Plaintiff would complete the
purchase of the
property. But for the fraudulent/ alternatively negligent acts of the
defendant,
Sarver which were
only discovered in discovery this year Plaintiff would not have purchased the
property from
Ryan. Plaintiff has been damaged in an amount in excess of $50,000 as a
producing/proximate
result of defendant, Sarver’s acts and prays for a judgment
against him for
such amount.
7. Count Four: Texas Deceptive Trade Practices Act
Plaintiff
incorporates the facts alleged herein in paragraph 4 in the interest of
brevity. In
the alternative,
Plaintiff alleges that he is a consumer under the DTPA because Plaintiff is an
individual who
sought/acquired/goods and services by purchase of “The Property” identified
herein. Defendant,
Sarver is an individual who can be sued under the DTPA. Defendant Sarver
violated the DTPA
when he:
A. engaged in
false, misleading, or deceptive acts or practices that plaintiff relied on to
Plaintiff’s detriment. Specifically, defendant intentionally, recklessly or
negligently failed to
provide
information to Ryan at the time of his sale of the property to Ryan relative to
the
encroachment and
water lines traversing the property which were connected to Roy Sarver’s
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water storage tank
or that Sarver was utilizing the water line without Ryan’s full knowledge and
consent. Plaintiff
alleges that he did not discover the hidden encroachment and water lines until
sometime after
February of 20l4 after he discovered the water line attached to a pipe leading
to
Sarver’s water storage tank. Plaintiff discovered the fact within the
last 30 days that Ryan was
also misled by
Sarver.
Plaintiff further
alleges that it was impracticable for him to give defendant Sarver the 60
days written
notice under the Texas Business & Commerce Code section 17.505 (a) because
the
two year statute
of limitations may have run on the DTPA action unless the discovery rule
applies. Plaintiff
affirmatively pleads that the discovery rule applies to this cause of action.
Plaintiff further
pleads that defendant, Sarver’s wrongful conduct
was a producing cause of
plaintiff’s injury, which resulted in actual losses of over $50,000 since
the sale was closed.
Plaintiff also
alleges that the acts of defendant Sarver were done intentionally,
knowingly, or
recklessly which entitles him to recover treble damages under the Texas
Business
and Commerce Code,
Section 17.50 (d) as well as reasonable attorney fees which are plead and
proved at the time
of trial.
8. Count: Five Private Nuisance
Plaintiff
incorporates the factual allegations contained in paragraph 4 in the interest
of
brevity. In the
alternative, Plaintiff alleges that Defendant, Roy Sarver along with Hjulian
have
engaged in a
private nuisance which has interfered with the use and enjoyment of Plaintiff’s
property in that
the acts of defendants substantially interfere with the use and enjoyment of
land
by causing
unreasonable discomfort or annoyance to persons such as plaintiff of ordinary
sensibilities.
Defendant, Sarver has allowed the noxious and harmful fumes from his tractor,
and
has directly
caused smoke to be released from his shed while he is burning brush or trash in
his
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shed and to
directly spread to plaintiff’s kitchen and bedroom causing
plaintiff extreme breathing
problems to such
an extent that they have to vacate their home or be overcome with the smoke
and noxious odors
emanating from defendant’s property as a proximate result of
defendants
intentional and/or
reckless conduct. Plaintiff alleges that defendant’s conduct regarding the
smoke and gas
fumes occurs whenever the wind is out of the north and spreads directly on to
plaintiff’s land. Such activity has occurred in the past ten days when
defendant Sarver was
burning something
which again caused Plaintiff and his companion breathing problems.
Plaintiff further
alleges that defendant, Sarver is also engaging in a private nuisance in
that he is
utilizing a device to play music that can be heard night and day and plays it
daily and at
such an intense
volume that it interferes with the plaintiff’s peaceful use and
enjoyment of his
land. Such music
is played at all times of the day and night for the past four years and even
during the past 30
days has gotten to the point where plaintiff and his companion have not been
able to sleep
peacefully. Plaintiff also plays music but stops it before ten o’clock at night and
maintains the
volume at a place where it is less than one/half of the 85 decibels that the
police
have indicated
would constitute a nuisance. Defendant plays the music up and until the police
arrive to check to
measure the volume and returns his harassment immediately after the police
leave. Plaintiff
asserts claims of nuisance, trespass, negligence, negligence per se, negligent
endangerment, and
gross negligence as a matter of law because the noise, smoke, odors, gas
fumes are
temporary and occur as the wind changes to blow them across from defendant’s land
over to plaintiff’s land.
Plaintiff further
alleges that defendant, Roy Sarver has failed to maintain his property in
order to reduce
the flow of water over plaintiff’s land when it
rains. Such conduct amounts to
negligence,
negligence per se and causes plaintiff’s land to be
flooded to a point where it has
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damaged the pilings
holding up plaintiff’s house as well as other parts of
his foundation to a
degree where they
have been damaged in excess of $20,000 for which sum plaintiff prays
judgment against
defendant Sarver.
Plaintiff further
alleges that the candle power of the lights that are directed from
defendant Sarver’s property to the entrance of plaintiff’s door to his residence, as well as the
light that is
intentionally directed toward plaintiff’s bedroom window
have caused him and his
companion extreme
mental anguish to the point where they allege that the defendant has
damaged them in
excess of $100,000 for which sum plaintiff prays judgment against defendant
Sarver. Since the
lights are positioned to cause plaintiff damages, defendant alleges that as a
matter of law the
nuisance is permanent entitling him to damages for the diminution of the value
of his land for a
sum in excess of $25,000 for which sum plaintiff prays judgment against the
defendant, Roy
Sarver. Should the defendant’s acts constituting a private nuisance
continue the
value of plaintiff’s land may be reduced to zero.
. Count Six: Conspiracy to Enter into
a Private Nuisance
Plaintiff alleges
that as a part of his plan of harassment and private nuisance, defendant
Sarver engaged in
a conspiracy with Defendant, Hjulian to harass and intimidate Plaintiff by
initially filing
false criminal charges of disorderly conduct and assault and disorderly
conduct.
Plaintiff expects
to file a writ of habeaus corpus to set aside convictions in the JP and County
Court because of
the alteration of the video prepared by Sarver used by defendant, Hjulian to
convince a
prosecutor to file the case. Additionally, Hjulian conspired with Sarver to
harass and
annoy Plaintiff by
attempting to start a new confrontation with Plaintiff by riding up and down
the road in front
of Plaintiff’s house dozens of times over the
period of four years since August
3, 2015 and taking
pictures and using his dog to annoy Plaintiff’s dogs with the
intent of seeking
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a confrontation.
Such harassment have aggravated Plaintiff’s medical
condition causing him to
lose sleep and
suffer extreme mental anguish. Hjulian even trespassed on plaintiff’s property to
take pictures of
the persons who were visiting Plaintiff and the cars they were driving.
Apparently Sarver
and Hjulian were getting nervous that the investigators would find what
Sarver and
possibly Hjulian had been hiding on Plaintiff’s property in the
past. It is
inconceivable that
Hjulian would take such a chance to trespass on Plaintiff’s land and taking
pictures knowing
he could be charged with criminal trespass. The reason why Defendants went
to such trouble to
commit a private nuisance, escalating to criminal acts of harrassment and
stalking by Sarver
finally resulted in the discovery that Sarver had conducted a criminal
enterprise on the
property of Ryan by using the ‘hurricane shelter” to manufacture illegal drugs.
In fact it was
determined that the so-called Hurricane shelter had been used to manufacture
illegal drugs at a
time before and after the land was sold to Ryan. Sarver had Ryan’s keys and
full use of the
property during the years before the land was sold to Plaintiff, Sarver even
this
week uses a bat to
make loud banging noises in his barn located within twenty feet of Plaintiff’s
house and fires
off fire crackers with the intent to annoy, intimidate, and harass Plaintiff.
The
actions of Sarver
and Hjulian have caused extreme mental anguish to Plaintiff as well as
thousands of
dollars in expense to litigate this case and defend himself from the criminal
charges that both
Hjulian and Sarver have falsely filed as well as the expense he has had to go
to
to try to keep
Sarver from using his camera and lights to further harass and annoy him.
Plaintiff’s
personal and
financial reputation of plaintiff and have been damaged. The word “ malicious” by
plaintiff is not
directed to a malicious prosecution case which is premature at this time but to
show that the
Defendants acts are intentional and malicious as opposed to incidental or
accidental all
used to cause damage to Plaintiff. Plaintiff seeks damages against defendants,
Roy
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Sarver, and Julias
R Hjulian, in an amount of $50,000 for the mental anguish, and another
$50,000 to his
personal and financial reputation as a direct and proximate result of defendant’s
unlawful, or
reckless or negligent conduct for which sums plaintiff prays judgment against
these
named defendants.
10. Count Seven: Stalking, a conspiracy to enter into a private
nuisance under the
provisions of a private nuisance, as defined by Section 42.072 of
the Texas Penal Code;
Plaintiff alleges
that defendant, Sarver has committed a private nuisance under the provisions of
the Texas Criminal
Code called Stalking in that he has placed cameras and lights on his property
designed to intrude
into the bedroom of plaintiff and his companion as well as lights and cameras
on the property of
his neighbors with the intent of stalking Plaintiff and his companion. Plaintiff
incorporates the
factual allegations contained in paragraph 4- 10 the interest of brevity.
Again,
despite plaintiff’s efforts to avoid the intrusive cameras by building tarps above
his fence,
Defendant Sarver
has placed cameras on his property and has run wire on the McLester property
and around to
another neighbor’s property so he can attempt to find
out what Plaintiff is doing to
try to learn why
Sarver would go to such an extent to harass Plaintiff. Sarver placed his camera
at a point where
it can survey plaintiff’s property over the twelve feet that
Plaintiff’s. Within the
past 60 days,
Plaintiff has had third parties assist him to determine what an alleged “hurricane
shelter” which is about 4’in height, 8-10
feet in length and about 4’ wide with a metal door that
only opens from
the top had actually been used for. The room had been cleaned with chemicals
in an effort to
make it difficult to determine what Sarver had been using the room for. Despite
his
efforts, a test
has confirmed that the room had been used to manufacture illegal drugs. On an
occasion when
plaintiff’s investigators were present during
the last 45 days, Defendant, Julias
Hjulian trespassed
onto plaintiff’s driveway and took pictures of the
vehicles there as well as
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presumably parties
present. He was contacted by one of the investigators and asked why he was
there and
apparently gave an obtuse answer. As a direct and proximate result of
Defendants’
Stalking,
Plaintiff has lost sleep, and experienced extreme mental anguish and the cost
of
attempting to
prevent defendants from further stalking him and has been damaged in an amount
in excess of
$100.000 for which he prays judgment from the defendants both individually and
collectively.
11. Count Eight Harassment as that
offense is defined by Section 42.07 of the Texas Penal
Code.
Plaintiff
incorporates the factual allegations contained in this petitioner in paragraphs
4,-
11 herein in the
interest of brevity. Plaintiff alleges that as a direct, and proximate result
of
Defendants’, Sarver and Hjulian’s continuing
course of harassment, he has been damaged in an
amount in excess
of $100,000 for which sum he prays judgement against defendant both jointly
and severally.
12. Count Nine: Violations of the Abatement of Public Nuisance Ordinance
Plaintiff alleges
that he has standing under the provisions of the Abatement of Public
Nuisance Ordinance
enacted by the Commissioner’s Court of Aransas County on the 15th of
December 1999 and
alleges that defendant Roy Sarver’s property is
located in an unincorporated
part of Aransas County and is in violation of the act in
the following particulars:
A. Defendant has
placed a sewer line on his property which runs from his residence to a
point on his
property where it is assumed there is a septic tank. The sewer line is located
where
it is more than
ten feet in the air instead of being buried in the ground, and should a storm
or high
wind blow the line
down, depending on the direction of the wind, it presents a clear and present
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danger to
plaintiff’s property if raw sewage is allowed
to be transported by air to plaintiff’s
property.
B. Defendant
Sarver has placed or allowed garbage and tree limbs to be placed on a
public easement on
the street called Amelia east of its intersection with Rowe Street. Defendant
has allowed weeds
and rubbish as well as old cars to be placed on his property as well as old
buckets; sinks,
stoves, Styrofoam coolers, in violation of 343.002 of the Texas Health and
Safety
Codes provisions
regarding refuse, weeds, receptacles, and garbage.
Plaintiff alleges
that such conduct of the defendant constitutes a “public nuisance” as that term is
defined in the
ordinance and provides both a civil and criminal penalty and for injunctive
relief
to cause an
abatement of the conduct alleged herein against defendant. If the condition
remains
unabated for a
period of 30 days after Defendant, Sarver is served with notice of this lawsuit
which provides him
the required notice under the Ordinance, Plaintiff requests that the criminal
penalties provided
in the ordinance be invoked.
13. Injunctive Relief
Plaintiff
incorporates the factual allegations contained in this petition3 in paragraphs
4-12
in the interest of
brevity. Plaintiff further alleges that the
flood lights which are directly toward
his bedroom window
as well as the loud volume of the music being played by defendant Sarver;
the harassment and
stalking is harmful to the health and welfare of plaintiff and his companion
and that if not
stopped immediately by injunctive relief by this Honorable Court that they will
suffer immediate
and irreparable damages for which they have no judicial remedy whether at law
or equity if the
nuisance is not abated. Plaintiff’s request that no
bond be ordered to restrain and
enjoin defendant
from continuing this destructive and harmful conduct. Plaintiff’s pray that a
permanent injunction
issue against the defendants both jointly and severally for the various
17
causes of action
pled herein, alternatively Plaintiff requests that the court issue a temporary
injunction as
prayed for herein and hear it on July 6, 2017 and that after trial that the
temporary
injunction be made
permanent.
14. Attorney Fees
Plaintiff has had
to engage the services of Allen C. Lee, Attorney licensed to practice in
the State of Texas to litigate the issues and causes
of actions alleged herein. Plaintiff prays
judgment against
each of the defendants jointly and severally for such reasonable attorney fees
as
are expended by
Plaintiff in this case against the defendants alleged herein Attorney fees for
the
investigation and
trial for the cases against Sarver and Hjulian are estimated to be $15,000 for
trial level, $7500
for the Court of Appeals level, and $5000 for the Supreme Court with remitter
of those fees if
no appeal is taken.
14. Prayer
Plaintiff prays
that the defendants be cited to appear and that he have a judgment against
the defendants for
damages as alleged and proved herein, for prejudgment and post judgment
interest, costs of
court and such other relief to which he may be justly entitled whether at law
or
equity.
Respectfully
submitted,
Allen C. Lee
Attorney for
Plaintiff
810 Oriole Street
Corpus Christi, Texas 78418
Ph: 361-353-4884
Fax: 361-353-4482
SBN: 12110000
Email: allen@allencleelawfirm.com
