Preview
5/5/2023 5:14 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 75379808
2023-28234 / Court: 190 By: Patricia Jones
Filed: 5/5/2023 5:14 PM
CAUSE NO. seers
DAVID B. HARBERG IN THE DISTRICT COURT OF
Plaintiff,
VS. HARRIS COUNTY, TEXAS
CHRISTINE OLIVIA YUAN,
Defendant. _JSUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION AND
APPLICATION FOR PERMANENT INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, David B. Harberg files this Original Petition and Application For Permanent
Injunction complaining of Defendant Christine Olivia Yuan, and respectfully shows the Court the
following:
TRACKING
This suit arises out of the Defendant’s trespass onto Plaintiff's property, destruction of
Plaintiff's fence, and construction of a new, inferior, fence on Plaintiff's property, all without any
notice to Plaintiff and while Plaintiff was out of town. It is appropriate for a Level II Discovery
Plan pursuant to Tex. R. Cry, P. 190.3. Plaintiff affirmatively pleads that this suit is not governed
by the expedited-actions proceedings in Tex. R. Civ. P. 169, because Plaintiff seeks injunctive
relief, in addition to monetary relief.
PARTIES
1 Plaintiff is an individual and a resident of Harris County, Texas.
>
2 Defendant is an individual and resident of Harris County, Texas. Defendant may
be served with citation at her home address, 2440 Inwood Dr., Houston, Texas 77019.
JURISDICTION AND VENUE
3 Jurisdiction and venue are proper in this Court as the amount in controversy is
within the jurisdictional limits of this Court and all facts giving rise to this suit occurred in Harris
County, Texas. Pursuant to Tex. R. Civ. P. 47(c)(2), Plaintiff declares that he seeks monetary relief
of $250,000 or less and non-monetary relief.
FACTUAL HISTORY
4 Defendant owns property located on Inwood Dr., Houston, Texas (“Defendant’s
Property”).
5 Plaintiff owns property located on Brentwood Dr., Houston, Texas (“Plaintiff's
Property”), more particularly known as:
Lot 5, in Block 37, of River Oaks Addition, Section 1, a Subdivision in Harris County,
Texas, according to the map or plat thereof, recorded in Volume 8, Page 9 of the map
records of Harris County, Texas.
6. Defendant's Property abuts Plaintiff's Property such that they have a common rear
boundary.
7 From at least 1997, the two properties have been divided by at least one fence. In
2010, Plaintiff constructed a new ten foot tall fence on Plaintiff's Property. Plaintiff's 2010 fence
was constructed with larger than standard posts and rails and the pickets and beveled rot boards
were secured with brass screws, all of which have ensured the continued longevity of the fence.
Prior to Defendant’s removal of Plaintiff's fence, the fence was in excellent condition.
8 In September, 2022, while Plaintiff was out of town, without any notice to Plaintiff
and certainly without Plaintiff's consent, Defendant and her agents entered Plaintiffs Property,
demolished Plaintiff's fence, and constructed a new and inferior fence on Plaintiff's Property,
giving Plaintiff the bad side of the fence. Unlike the fence that Plaintiff constructed in 2010, the
new fence is framed with unsightly metal posts, that Defendant placed on Plaintiff's Property
facing Plaintiff's yard, so that Defendant would have a view of the good side of the fence and
Plaintiff would have a view of the bad side of the fence. Because Plaintiff's Property is wider than
Defendant’s Property the inferior new fence is incorrectly joined to the surviving portion of
Plaintiff's 2010 fence, with obvious damage to the 2010 fence post at the connection. The new
fence with its metal posts obviously does not match the existing portion of Plaintiff's 2010 fence.
In the process of placing the metal posts in concrete anchors (on Plaintiff's Property), Defendant
and her agents struck Plaintiffs sprinkler line, damaging the sprinkler line and causing Plaintiff's
shrubs to go without water during the September heat, which ultimately caused the death of several
shrubs. Additionally, Defendant removed ground cover landscape along the new fence and for
several feet into Plaintiff's Property, demonstrating Defendant’s arrogant disregard for Plaintiff
and his property rights.
9 On or about January 9, 2023, Plaintiff provided written notice to Defendant,
demanding that she remove her inferior metal framed fence from Plaintiff's Property and
compensate Plaintiff for the destruction of his fence and damage to his property. To date,
Defendant has refused to remove her fence or otherwise correct the situation, Defendant continues
to willfully trespass on Plaintiff’s Property.
CAUSES OF ACTION
10. Trespass: Plaintiff incorporates by reference the allegations contained in the
paragraphs above. Plaintiff owns and has a lawful right to possess Plaintiff's Property. Plaintiff
has not authorized Defendant to enter onto Plaintiff's Property for any purpose. Indeed, Plaintiff's
2010 fence was obvious notice that Defendant should not enter Plaintiff's Property.
Vi, Knowing that Plaintiff was out of town and without contacting Plaintiff, Defendant and
her agents entered Plaintiff's Property, removed Plaintiff's fence, and installed a new fence. The
new fence currently sits on Plaintiff's Property, denying Plaintiff access and use of a portion of his
property. Despite Plaintiff's written demand that Defendant remove her fence, Defendant
continues to willfully occupy Plaintiff's Property. Defendants’ willful acts of trespass onto
Plaintiff's Property have resulted in actual damages to Plaintiff within the jurisdictional limits of
this Court, including but not limited to damage to Plaintiff's sprinkler system, damage to Plaintiff's
landscaping, the removal of Plaintiff's fence, Defendant’s construction of an inferior fence on
Plaintiff's Property, and Plaintiff's inability to use the portion of his property that Defendant
occupies and refuses to vacate. Additionally, Plaintiff seeks nominal damages and the cost of
restoration of his property, including the cost to remove Defendant’s fence, the cost to replace
Plaintiff's fence, the cost to replace Plaintiff's damaged landscaping, and the cost to repair
Plaintiff's sprinkler system. Finally, because Defendant continues to trespass on Plaintiff's
Property, despite receipt of written notice from Plaintiff, Defendant’s trespass is willful, malicious,
fraudulent, and/or grossly negligent. As a result, Plaintiff seeks exemplary damages.
12. Conversion: Plaintiff incorporates by reference the allegations contained in the
paragraphs above as if set forth herein. Plaintiff owns and has legal possession of Plaintiff's
Property, including the portion of the property where Defendant has willfully trespassed,
excavated, removed Plaintiff's fence, and constructed her unsightly fence.
13. Defendant and her agents unlawfully and without authorization assumed and
exercised dominion and control over Plaintiff's Property and removed Plaintiff's fence, to the
exclusion of and inconsistent with Plaintiff's rights as an owner of Plaintiffs Property and
Plaintiff's fence.
14. Defendants’ conduct was willful. In fact, Defendant waited until Plaintiff was out
of town and did not contact Plaintiff or provide any notice of her intention to convert his fence.
Additionally, Defendant clearly could have seen that Plaintiffs fence continued across the rear
boundary of his property beyond the portion abutting Defendant’s Property. Defendant’s willful
acts of conversion of Plaintiff's 2010 fence have resulted in actual damages to Plaintiff within the
jurisdictional limits of this Court, including but not limited to the cost of replacing Plaintiff's fence
with a fence of like kind and ensuring that the new fence matches the existing 2010 fence or
replacing the remaining 2010 fence so that Plaintiff has a continuous fence of one standard across
his rear boundary as he had before Defendant unlawfully and willfully entered Plaintiff's Property
and removed Plaintiff's fence.
15. Application for Permanent Injunction: Plaintiff incorporates by reference the
allegations contained in the paragraphs above as if set forth herein. Plaintiffrequests that the Court
enter a permanent injunction ordering Defendant to remove her fence from Plaintiff's Property.
Defendant should be restrained and enjoined because:
a. Plaintiff Has Pled Trespass and Conversion and Plaintiff Has a Probable Right to
Relief.
16. Plaintiff has pled and will prove that the Defendant and/or persons acting on her
behalf and at her direction have trespassed onto Plaintiff's Property, entering onto Plaintiff's
Property without Plaintiffs authorization, and willfully remaining on Plaintiff’s Property after
written notice to vacate from Plaintiff. While illegally entering Plaintiff's Property, Defendant has
caused damages to Plaintiff's tangible property, including demolition of Plaintiff's fence, and
Defendant has constructed on Plaintiff's Property a new fence, effectively appropriating portions
of Plaintiffs Property without Plaintiff's consent. Defendant’s trespass is continuing and willful,
as set out above.
17. Further, Plaintiff has pled and will prove that Plaintiff owns and has legal
possession of Plaintiff's Property, including the property on which Defendant removed Plaintiffs
2010 fence, excavated and installed metal fence posts, and constructed her unsightly fence.
Plaintiff will also prove that Defendant unlawfully and without notice or authorization assumed
and exercised dominion and control over Plaintiffs Property and Plaintiff's fence, to the exclusion
of and inconsistent with Plaintiff's rights as an owner of Plaintiff's Property and fence.
b. A Probable, Imminent, and irreparable Injury is Likely to Occur.
18. Without restraining and enjoining Defendant to remove her fence and from
continuing to trespass on Plaintiff's Property probable, imminent, and irreparable injury will result.
Irreparable injury and imminent harm include Defendant’s continued use of Plaintiffs Property
and cloud on the title of Plaintiff's Property through Defendant’s potential claim of ownership of
the portion of Plaintiffs Property under her fence and enclosed within her fence. Irreparable injury
and imminent harm also include Plaintiff's loss of use of the portion of his property under
Defendant’s fence and enclosed within her fence.
19. Because Defendant’s unauthorized possession of Plaintiff's real property is a cloud
on the title of Plaintiff's Property and because this matter involves irreparable injury to Plaintiff's
real property, Plaintiff does not need to prove that he lacks an adequate remedy at law.
20. Conditions Precedent: All conditions precedent to the prosecution of these claims
have been satisfied. Plaintiff has provided Defendant written notice of these claims and Defendant
has refused to remove her fence or compensate Plaintiff for her trespass and conversion.
21. Jury Demand: Plaintiff demands a trial by jury.
WHEREFORE, Plaintiff prays that Defendant Christine Olivia Yuan be cited to appear and
answer this suit and that after trial this Court enter Judgment for Plaintiff, enjoining Defendant to
remove her fence from the Plaintiff's Property, and awarding Plaintiff all damages to which he is
justly entitled, including his actual damages, exemplary damages, prejudgment and post-judgment
interest at the highest rates permitted by law, costs of court, and all other recoverable damages.
Respectfully submitted,
MARTINEZ & MCGUIRE PLLC
Lert
ME ture.
Clint E. McGuire
—
State Bar No. 24013139
clint@mmitriallawyers.com
17227 Mercury Drive, Suite B
Houston, Texas 77058
Telephone: (281) 286-9100
Facsimile: (281) 286-9105
ATTORNEYS FOR IPLAINTIFF
Preview
5/5/2023 5:14 PM Marilyn Burgess - District Clerk Harris County Envelope No. 75379808 2023-28234 / Court: 190 By: Patricia Jones Filed: 5/5/2023 5:14 PM CAUSE NO. seers DAVID B. HARBERG IN THE DISTRICT COURT OF Plaintiff, VS. HARRIS COUNTY, TEXAS CHRISTINE OLIVIA YUAN, Defendant. _JSUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR PERMANENT INJUNCTION TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, David B. Harberg files this Original Petition and Application For Permanent Injunction complaining of Defendant Christine Olivia Yuan, and respectfully shows the Court the following: TRACKING This suit arises out of the Defendant’s trespass onto Plaintiff's property, destruction of Plaintiff's fence, and construction of a new, inferior, fence on Plaintiff's property, all without any notice to Plaintiff and while Plaintiff was out of town. It is appropriate for a Level II Discovery Plan pursuant to Tex. R. Cry, P. 190.3. Plaintiff affirmatively pleads that this suit is not governed by the expedited-actions proceedings in Tex. R. Civ. P. 169, because Plaintiff seeks injunctive relief, in addition to monetary relief. PARTIES 1 Plaintiff is an individual and a resident of Harris County, Texas. > 2 Defendant is an individual and resident of Harris County, Texas. Defendant may be served with citation at her home address, 2440 Inwood Dr., Houston, Texas 77019. JURISDICTION AND VENUE 3 Jurisdiction and venue are proper in this Court as the amount in controversy is within the jurisdictional limits of this Court and all facts giving rise to this suit occurred in Harris County, Texas. Pursuant to Tex. R. Civ. P. 47(c)(2), Plaintiff declares that he seeks monetary relief of $250,000 or less and non-monetary relief. FACTUAL HISTORY 4 Defendant owns property located on Inwood Dr., Houston, Texas (“Defendant’s Property”). 5 Plaintiff owns property located on Brentwood Dr., Houston, Texas (“Plaintiff's Property”), more particularly known as: Lot 5, in Block 37, of River Oaks Addition, Section 1, a Subdivision in Harris County, Texas, according to the map or plat thereof, recorded in Volume 8, Page 9 of the map records of Harris County, Texas. 6. Defendant's Property abuts Plaintiff's Property such that they have a common rear boundary. 7 From at least 1997, the two properties have been divided by at least one fence. In 2010, Plaintiff constructed a new ten foot tall fence on Plaintiff's Property. Plaintiff's 2010 fence was constructed with larger than standard posts and rails and the pickets and beveled rot boards were secured with brass screws, all of which have ensured the continued longevity of the fence. Prior to Defendant’s removal of Plaintiff's fence, the fence was in excellent condition. 8 In September, 2022, while Plaintiff was out of town, without any notice to Plaintiff and certainly without Plaintiff's consent, Defendant and her agents entered Plaintiffs Property, demolished Plaintiff's fence, and constructed a new and inferior fence on Plaintiff's Property, giving Plaintiff the bad side of the fence. Unlike the fence that Plaintiff constructed in 2010, the new fence is framed with unsightly metal posts, that Defendant placed on Plaintiff's Property facing Plaintiff's yard, so that Defendant would have a view of the good side of the fence and Plaintiff would have a view of the bad side of the fence. Because Plaintiff's Property is wider than Defendant’s Property the inferior new fence is incorrectly joined to the surviving portion of Plaintiff's 2010 fence, with obvious damage to the 2010 fence post at the connection. The new fence with its metal posts obviously does not match the existing portion of Plaintiff's 2010 fence. In the process of placing the metal posts in concrete anchors (on Plaintiff's Property), Defendant and her agents struck Plaintiffs sprinkler line, damaging the sprinkler line and causing Plaintiff's shrubs to go without water during the September heat, which ultimately caused the death of several shrubs. Additionally, Defendant removed ground cover landscape along the new fence and for several feet into Plaintiff's Property, demonstrating Defendant’s arrogant disregard for Plaintiff and his property rights. 9 On or about January 9, 2023, Plaintiff provided written notice to Defendant, demanding that she remove her inferior metal framed fence from Plaintiff's Property and compensate Plaintiff for the destruction of his fence and damage to his property. To date, Defendant has refused to remove her fence or otherwise correct the situation, Defendant continues to willfully trespass on Plaintiff’s Property. CAUSES OF ACTION 10. Trespass: Plaintiff incorporates by reference the allegations contained in the paragraphs above. Plaintiff owns and has a lawful right to possess Plaintiff's Property. Plaintiff has not authorized Defendant to enter onto Plaintiff's Property for any purpose. Indeed, Plaintiff's 2010 fence was obvious notice that Defendant should not enter Plaintiff's Property. Vi, Knowing that Plaintiff was out of town and without contacting Plaintiff, Defendant and her agents entered Plaintiff's Property, removed Plaintiff's fence, and installed a new fence. The new fence currently sits on Plaintiff's Property, denying Plaintiff access and use of a portion of his property. Despite Plaintiff's written demand that Defendant remove her fence, Defendant continues to willfully occupy Plaintiff's Property. Defendants’ willful acts of trespass onto Plaintiff's Property have resulted in actual damages to Plaintiff within the jurisdictional limits of this Court, including but not limited to damage to Plaintiff's sprinkler system, damage to Plaintiff's landscaping, the removal of Plaintiff's fence, Defendant’s construction of an inferior fence on Plaintiff's Property, and Plaintiff's inability to use the portion of his property that Defendant occupies and refuses to vacate. Additionally, Plaintiff seeks nominal damages and the cost of restoration of his property, including the cost to remove Defendant’s fence, the cost to replace Plaintiff's fence, the cost to replace Plaintiff's damaged landscaping, and the cost to repair Plaintiff's sprinkler system. Finally, because Defendant continues to trespass on Plaintiff's Property, despite receipt of written notice from Plaintiff, Defendant’s trespass is willful, malicious, fraudulent, and/or grossly negligent. As a result, Plaintiff seeks exemplary damages. 12. Conversion: Plaintiff incorporates by reference the allegations contained in the paragraphs above as if set forth herein. Plaintiff owns and has legal possession of Plaintiff's Property, including the portion of the property where Defendant has willfully trespassed, excavated, removed Plaintiff's fence, and constructed her unsightly fence. 13. Defendant and her agents unlawfully and without authorization assumed and exercised dominion and control over Plaintiff's Property and removed Plaintiff's fence, to the exclusion of and inconsistent with Plaintiff's rights as an owner of Plaintiffs Property and Plaintiff's fence. 14. Defendants’ conduct was willful. In fact, Defendant waited until Plaintiff was out of town and did not contact Plaintiff or provide any notice of her intention to convert his fence. Additionally, Defendant clearly could have seen that Plaintiffs fence continued across the rear boundary of his property beyond the portion abutting Defendant’s Property. Defendant’s willful acts of conversion of Plaintiff's 2010 fence have resulted in actual damages to Plaintiff within the jurisdictional limits of this Court, including but not limited to the cost of replacing Plaintiff's fence with a fence of like kind and ensuring that the new fence matches the existing 2010 fence or replacing the remaining 2010 fence so that Plaintiff has a continuous fence of one standard across his rear boundary as he had before Defendant unlawfully and willfully entered Plaintiff's Property and removed Plaintiff's fence. 15. Application for Permanent Injunction: Plaintiff incorporates by reference the allegations contained in the paragraphs above as if set forth herein. Plaintiffrequests that the Court enter a permanent injunction ordering Defendant to remove her fence from Plaintiff's Property. Defendant should be restrained and enjoined because: a. Plaintiff Has Pled Trespass and Conversion and Plaintiff Has a Probable Right to Relief. 16. Plaintiff has pled and will prove that the Defendant and/or persons acting on her behalf and at her direction have trespassed onto Plaintiff's Property, entering onto Plaintiff's Property without Plaintiffs authorization, and willfully remaining on Plaintiff’s Property after written notice to vacate from Plaintiff. While illegally entering Plaintiff's Property, Defendant has caused damages to Plaintiff's tangible property, including demolition of Plaintiff's fence, and Defendant has constructed on Plaintiff's Property a new fence, effectively appropriating portions of Plaintiffs Property without Plaintiff's consent. Defendant’s trespass is continuing and willful, as set out above. 17. Further, Plaintiff has pled and will prove that Plaintiff owns and has legal possession of Plaintiff's Property, including the property on which Defendant removed Plaintiffs 2010 fence, excavated and installed metal fence posts, and constructed her unsightly fence. Plaintiff will also prove that Defendant unlawfully and without notice or authorization assumed and exercised dominion and control over Plaintiffs Property and Plaintiff's fence, to the exclusion of and inconsistent with Plaintiff's rights as an owner of Plaintiff's Property and fence. b. A Probable, Imminent, and irreparable Injury is Likely to Occur. 18. Without restraining and enjoining Defendant to remove her fence and from continuing to trespass on Plaintiff's Property probable, imminent, and irreparable injury will result. Irreparable injury and imminent harm include Defendant’s continued use of Plaintiffs Property and cloud on the title of Plaintiff's Property through Defendant’s potential claim of ownership of the portion of Plaintiffs Property under her fence and enclosed within her fence. Irreparable injury and imminent harm also include Plaintiff's loss of use of the portion of his property under Defendant’s fence and enclosed within her fence. 19. Because Defendant’s unauthorized possession of Plaintiff's real property is a cloud on the title of Plaintiff's Property and because this matter involves irreparable injury to Plaintiff's real property, Plaintiff does not need to prove that he lacks an adequate remedy at law. 20. Conditions Precedent: All conditions precedent to the prosecution of these claims have been satisfied. Plaintiff has provided Defendant written notice of these claims and Defendant has refused to remove her fence or compensate Plaintiff for her trespass and conversion. 21. Jury Demand: Plaintiff demands a trial by jury. WHEREFORE, Plaintiff prays that Defendant Christine Olivia Yuan be cited to appear and answer this suit and that after trial this Court enter Judgment for Plaintiff, enjoining Defendant to remove her fence from the Plaintiff's Property, and awarding Plaintiff all damages to which he is justly entitled, including his actual damages, exemplary damages, prejudgment and post-judgment interest at the highest rates permitted by law, costs of court, and all other recoverable damages. Respectfully submitted, MARTINEZ & MCGUIRE PLLC Lert ME ture. Clint E. McGuire — State Bar No. 24013139 clint@mmitriallawyers.com 17227 Mercury Drive, Suite B Houston, Texas 77058 Telephone: (281) 286-9100 Facsimile: (281) 286-9105 ATTORNEYS FOR IPLAINTIFF