CASE NO:  _A-15-0339-CV-A__

JAMES HIGGINS                                    § IN THE DISTRICT COURT

            Plaintiff                                          §

Vs                                                                §

                                                                    § __36 th__JUDICIAL DISTRICT     

MATHEW G. RYAN,  ROY SARVER,  §

ET AL                                                        §

            Defendants                                     § ARANSAS COUNTY, TEXAS

ORIGINAL PETITION, REQUEST FOR TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION 

COMES NOW, JAMES HIGGINS, hereinafter referred to as Plaintiff complaining of MATHEW G. RYAN, ROY SARVER, JULIAS R. HJULIAS, LILIA MCLESTER, AND CHARLOTTE MCLESTER, 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 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 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, Mathew G. Ryan is a resident of Longview, Texas and may be served at 515 W. Marshall Lane, Longview, Texas 75601.  Defendant, Roy Sarver is a resident of Rockport, Aransas County, Texas, and may be served at 518 Rowe Street, Rockport, Texas 78382. Defendant, Julias R. Hjulias who is a resident of  Rockport, Texas 78382 and may be served at  847 Rowe St. Rockport, Texas.  Defendant, Leia McLester is a resident of Rockport, Aransas County, Texas 78382 and may be served at  535 Seart St, Rockport, Texas 78382.  Defendant, Charlotte McLester is a resident of Aransas County, Texas 78382 and may be served at 535 Steart St, Rockport, Texas, 78382.

4. FACTS

 Plaintiff purchased a tract of land from Mathew Ryan on or about the 15th 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.  Plaintiff on or about the 31st day of January 2014 decided to place 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. Defendant, Mathew Ryan did not disclose the encroachment to Plaintiff at any time before the sale was consummated.  Nor did Ryan disclose that Plaintiff’s land was subject to flooding when it rained due to the construction of various buildings on Sarver’s property.  In fact, Plaintiff did not discover the encroachment until after he had placed a fence on his boundary line and cleaned up the brush and debris.  Defendant, Mathew Ryan  also did not disclose that buried on plaintiff’s land was 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.  Unknown to Plaintiff but apparently known by defendant, Ryan, Sarver had erected  a series of waterlines which traversed Plaintiffs property and ended at a point at the boundary line and connected to a pipe that ran onto defendant Sarver’s land into his storage tank.  In May of 2015 plaintiff came to the understanding that Ryan had allowed Sarver to connect to his water service and subsequently to the City of Rockport’s water service when it was installed in 2007 but, that Sarver had no such utility connection to city water.  When Plaintiff discovered that Sarver was apparently stealing water from him, the 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 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 pipelines transversing his property at a cost of approximately $3000. Defendant Ryan did not disclose the hidden pipelines to plaintiff nor did he disclose that he had allowed Sarver to use the water lines at the time Plaintiff purchased the land. Had he done so or even disclosed that Plaintiff was moving next to Sarver who 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

 “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 McLester, McLester, and Hjulas, to have them file false charges of disorderly conduct and attempted assault as part of the campaign to harass and intimidate Plaintiff which has resulted in a condition which is extremely detrimental to his health and has caused him to have to retain an attorney to defend himself. If their actions are not enjoined and abated, his 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 fraudulently induced Plaintiff to purchase the property. 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 defendant, Ryan.  As a producing result and/or proximate result of the defendant, Ryan’s fraudulent conduct, Plaintiff 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 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, Ryan committed fraud by non-disclosure and fraudulent inducement in that the failure to disclose the encroachment and the hidden pipes trans versing his property 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, Ryan Plaintiff would not have purchased the property. Plaintiff has been damaged in an amount in excess of $50,000 as a producing/proximate result of defendant, Ryan’s acts and prays for a judgment against him for such amount.

7. Count Three:  Breach of Contract

 Plaintiff incorporates the facts alleged in paragraph 4 herein for the sake of brevity. In the alternative, Plaintiff alleges that the defendant Ryan breached contract by providing him with false and misleading information about the condition of the land and Sarver’s continuing unlawful theft of his water. Because of defendant, Ryan’s breach Plaintiff seeks a total rescission of the contract and a return of all of the money he has spent to improve the land because of the breach. Plaintiff also seeks his reasonable attorney fees such provided in paragraph 17 of the sales contract.

8. 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, Ryan is an individual who can be sued under the DTPA.  Defendant Ryan 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 relative to the encroachment and water lines traversing the property which were connected to Roy Sarver’s water storage tank or that Sarver was utilizing the water line with Ryan’s full knowledge and consent. Plaintiff alleges that he did not discover the hidden encroachment until March 2014, and the water lines until April of 20l5 after he discovered the water line attached to a pipe leading to Sarver’s water storage tank.

 Plaintiff further alleges that it was impracticable for him to give defendant Ryan 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, Ryan’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 Ryan 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.

9. 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 the remaining defendants 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 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. 

 Plaintiff further alleges that defendant, Sarver is 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 with intermittent pauses for hours 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 and during the past 30 days has gotten to the point where plaintiff and his companion have not been able to sleep at all. Plaintiff also set up outdoor wi-fi speakers in May of 2015 to filter out Sarver's annoyance, and plaintiff plays his music but stops it before ten o’clock at night and maintains the volume at a level 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 until the police arrive to check to measure the volume and shuts it off before they arrive and returns to 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 defendants 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 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.

10. 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 the other defendants named herein except Mathew Ryan to harass and intimidate Plaintiff by having them file false criminal charges of disorderly conduct and assault. Such charges have damaged the personal and financial reputation of plaintiff and have caused him to incur attorney fees to defend himself from the false and malicious actions of the defendants. Plaintiff seeks damages against defendants, Roy Sarver, Julian Hjulian, Charlotte McLester, and Leila McLester in an amount in excess 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.

11. 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 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.  

 C. 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 section 343.002 of the Texas Health and Safety Codes provisions regarding refuse, weeds, receptacles, and garbage.

 Plaintiff further  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.

12.   Injunctive Relief

 Plaintiff incorporates the factual allegations contained in this petitioner in paragraph 4 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 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,  they will suffer immediate and irreparable damages for which they have no judicial remedy whether at law or equity if the nuisance is not immediately abated. Plaintiff requests that no bond be ordered in order to restrain and enjoin defendant from continuing this destructive and harmful conduct. Plaintiff’s pray that the court set a date for a hearing as soon as possible after defendant Roy Sarver has been served to abate this private nuisance.

13. 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 with fees to be segregated against Ryan for the causes of action plead and proved, and against Sarver and the other defendants for damages alleged and proved against them.  Attorney fees for Ryan are estimated to be $10,000 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; Further, reasonable fees of $10,000 are plead against Roy Sarver and the other named defendants at the trial level. $7500 for an appeal to the Court of Appeals and $5000 for the Texas Supreme Court again with remitters if the case is not appealed.

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