No. 04-0499-CV

 

Ronald F. Avery

 

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In the District Court

Vs.

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Guadalupe County, Texas

 

Guadalupe-Blanco River Authority;

William E. West Jr.;

David Welsch

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25th Judicial District

 

Plaintiff’s First Amended Original Petition

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

Now comes, Ronald F. Avery, Plaintiff, complaining of Guadalupe-Blanco River Authority (GBRA) and William E. West Jr., General Manager of GBRA and David Welsch, Project Director of Project Development at GBRA and respectfully alleges the following:

1.      

Trial by Jury

The Plaintiff requests a trial on the merits of his cause before a jury of Plaintiff’s peers and is in agreement to the jurisdiction and decisions of the court and courts of appeals all the way to the “Supreme Court of the United States of America” in this cause of action.

2.      

Trespass in Violation of Government Code § 418.023

That on Friday, January 24, 2003, Plaintiff saw people on his property in McQueeney, Texas in Guadalupe County. They were on the island below the Silver Eagle Taphouse that Plaintiff operates. They had a big white hauling truck and a large rubber tired front end loader on Plaintiff’s property. The Plaintiff had not given anyone permission to be on his property and inquired of them what they were doing. They told Plaintiff that they were moving debris from his island and burning it elsewhere. The island had been flooded in July of 2002. Plaintiff asked them who had given them permission to do that on his property and they replied that it was GBRA. The Plaintiff then said that he had not given GBRA permission to come on his property.

3.      

Plaintiff’s Good Faith is not a Contract

Plaintiff told the people they did not have to remove any debris from his property but could burn debris from his property on his property. There was not much debris on the island after the 2002 flood like was the case after the October 1998 flood. Plaintiff did not give any other permission to these GBRA contractors and Plaintiff assumed that said contractors would be finished in the next day or so and be gone.

4.      

Damage done by Trespassing GBRA Contractor by Motor Vehicles under direction of GBRA and GBRA Officials

That on the following day, Saturday, January 25, 2003, at 4:00 PM when Plaintiff arrived at the Taphouse, as is his common practice, he noticed that the GBRA contractors had driven a large tracked bull dozer from across the street and down his paved road without protection ( Exhibit A ) damaging them, and over his curbs breaking them ( Exhibit B ). The Plaintiff, Mr. Avery, noticed that the GBRA contractors had begun to move debris from the Right of Way (ROW) of the abandoned highway 3 bridge and from property on the other side of the ROW and bringing it on to the Plaintiff’s property.

5.      

First Notice to Contractor of Damage

The Plaintiff immediately went down to the island and told the GBRA contractors that GBRA did not have permission to have their contractors on his property and that Plaintiff had not given them permission to damage his property by driving a tracked bull dozer on his paved road and over his curbs. The Plaintiff, Mr. Avery, told the GBRA contractors that GBRA would have to pay for all damage that the contractors did to his property. The Plaintiff could not call GBRA at that time because is was late on Saturday afternoon. Plaintiff waited until Monday morning January 27, 2003 to call GBRA and complain of the damage and notify them that he would be looking for them to pay for all damages done to Plaintiff’s property as the result of their contractors on his island.

6.      

First Notice to GBRA and David Welsch of Damage and Notice that Plaintiff would be Seeking Payment for Damages from GBRA

The Plaintiff called GBRA and spoke to Defendant, David Welsch, and told him to immediately have the GBRA contractors stop damaging his property in McQueeney including the asphalt roads and concrete curbs and gutters that go down to his island. The Plaintiff, Mr. Avery, told Defendant, David Welsch, on the phone that he would be seeking the payment for all damages done by their contractors to his property in McQueeney.

7.      

GBRA and David Welsch Estopped from Claiming Sovereign Immunity and Official Immunity

At no time in this conversation did David Welsch indicate to Plaintiff that GBRA would not pay for damages done to his property. Had Defendant, David Welsch, told Plaintiff at that time that GBRA was not liable for curb and road damage and that they would not pay for damages but would claim sovereign immunity instead and that that I had a contract with the contractor and my only recourse would be through the contractor, the Plaintiff would have immediately stopped all clean up efforts on his property and had the sheriff remove the contractors from his property. But Plaintiff was lead to believe that damage would cease and payment for all damage would be paid for by GBRA as it had been in the past after the flood of 1998.

8.      

Mercy shown to Contractor and GBRA by Plaintiff with understanding by all that GBRA would pay for Restoration in Accordance with prior Cleanup Contract of 1998

The Plaintiff is a licensed architect in the state of Texas and is acquainted with construction and demolition and the difficulty involved and understood the problems the GBRA Contractor was having cleaning up property along the river side and moving debris in places that are most difficult. The Plaintiff had mercy on GBRA and the GBRA Contractor and allowed the clean up efforts to proceed with the understanding by all parties that any damage done to his property would be paid for by GBRA and the contract agreement between GBRA and their clean-up Contractor. The Plaintiff made it clear to Defendant David Welsch both in a phone call and by letter that the damage should be paid for by GBRA as it had been in the past under the PERMIT AND RIGHT OF ENTRY FOR EMERGENCY WATERSHED PROTECTION (EWP) agreement of 1999 ( Exhibit gbra-roe ).

9.      

Violation of Common Practice by GBRA and GBRA Officials

Any public service corporation like GBRA should know that the agreement to hire a contractor should have a retainage amount of 10 to 15 percent of each draw request so that claims such as the one Plaintiff had could be retained and paid at the end of the job. GBRA was notified immediately that Plaintiff intended to make a demand on GBRA for damages and did so in the amount of $13,000. GBRA is without excuse and cannot blame it on their contractor. If anyone should have been talking to Rimrock, Inc. or suing them, it is GBRA.

10.             

GBRA and David Welsch Noticed and Demand made for Payment of Damage

That on Friday, February 21, 2003, Plaintiff sent Defendant, David Welsch, a letter ( Exhibit C ) to remind Defendant of their earlier phone conversation of January 27, 2003 regarding Plaintiff’s notice to all Defendants that Plaintiff would seek payment from GBRA for any damages done to Plaintiff’s property. The said letter of 2/21/03 also reminded Defendant, David Welsch that GBRA had obtained written permission to enter Plaintiff’s property to perform clean-up operations after the flood of October 17, 1998 with the provision that GBRA would pay for any damages done by their contractors. This same letter also reminded Defendant, David Welsch that GBRA did in fact pay $6,500 to Plaintiff for damages done by their contractor. Plaintiff signed a release ( Exhibit D ) on September 13, 1999 to receive the payment for damages done by U.S. Demolition, to Plaintiff’s property. The payment for damages done by GBRA’s Clean-up Contractor in 1999 was the result of one and only one letter ( Exhibit E ), sent to Mr. Larry Moltz at GBRA on May 15, 1999 which is very similar in every way to the letter sent to Defendant David Welsch at GBRA on February 21, 2003. Neither letter has an exact price for damages done. But GBRA’s response to each letter from Plaintiff claiming damages by GBRA was totally opposite.

11.             

Defendants deny liability

That Plaintiff received a letter on February 26, 2003 from Defendant David Welsch ( Exhibit F ) in response to Plaintiff’s letter of February 21, 2003. The Defendant, Mr. Welsch tries to justify denial of the liability of GBRA for the damages done to Plaintiff’s property: 1.) the Plaintiff was aware of the activities of the GBRA Contractor and allowed them to continue, but this only shows good will and good faith on the part of the Plaintiff. 2.) The Defendant also denies the liability of GBRA because the damages mentioned by Plaintiff were “unspecified causes beyond any actual damage,” But Plaintiff clearly stated damage and the causes as curb and road damage that was worse than that done in 1998 coupled with the damage done by not having permission to enter Plaintiff’s property. 3.) Defendant, Welsch also indicates that GBRA is not liable because Plaintiff’s claim was made after the fact, but the date of Plaintiff’s letter is not after the fact and neither was Plaintiff’s phone calls to Welsch notifying GBRA to retain a sufficient amount from contractor to cover the claims of Plaintiff. 4.) Mr. Welsch, then tries to develop some agreement between the GBRA Contractor and the Plaintiff and as a result of this so-called agreement that GBRA was no longer a party to the damage, but this again is GBRA trying to take advantage of Plaintiff’s good will and faith towards the purpose of GBRA and the work of their contractor rather than a contract between Plaintiff and GBRA’s contractor. 5.) Then Defendant, Welsch says he will forward Plaintiff’s complaint and demand for payment of damages to C.J. Hardeman of Rimrock Enterprises, Inc. as if GBRA had nothing to do with the whole thing.

12.             

Plaintiff losses composure and breaks a window at GBRA

That Plaintiff opened the letter from Welsch denying all liability for damages to Plaintiff’s property with all those ridiculous reasons on Thursday morning around 2:30 AM after coming home from tending bar for 10.5 hours at the Taphouse Wednesday night. Plaintiff was tired and when he read this letter he lost his composure and took a large oil drill bit and went to the office of GBRA and through it through their window close to the front door. Plaintiff immediately called 911 on his cell phone and told the dispatcher what he had done and that he would wait until the sheriff’s deputies arrived.


13.             

GBRA Representative discusses situation with Police

When they arrived the Plaintiff showed the officers the letter he received with his own letter attached. The deputies called GBRA and someone from GBRA came over in their car and officers talked to them in their car while Plaintiff was in a police car. The GBRA representative never got out of their car and Plaintiff does not know who it was. After the GBRA representative met with the officers in private with Welsch’s letter with Plaintiff’s letter attached for about 45 minutes they decided to let the Plaintiff go with a warning ticket. While Plaintiff sat in the police car he became remorseful and prayed. When they let Plaintiff go the Plaintiff assumed that he was forgiven and was thankful to God, the police, and GBRA.

14.             

Plaintiff Humiliated

That Plaintiff was devastated, and outraged and angry that GBRA would deny all responsibility for any and all damage to Plaintiff’s property. When Plaintiff finally calmed down he realized that if convicted of breaking the window at GBRA he could loose his license to practice architecture, interior design and to serve alcohol and that his RV Park plans on two pieces of property would also be jeopardized. The Plaintiff was humbled and humiliated that he had been driven to this low level.


15.             

Plaintiff mislead by Friend of Defendants

That a week or so after the window breaking, Plaintiff was visited at the Taphouse one evening by Mr. Hilmar Blumberg who said he was concerned about Plaintiff. Mr. Blumberg said the news of breaking the window was all over town ( Plaintiff’s Affidavit ). The Plaintiff told him that GBRA had damaged his property and denied all responsibility and that he had lost his composure and did something stupid. Mr. Blumberg then asked Plaintiff what he intended to do about the damage to Plaintiff’s property and the Plaintiff answered, “I am going to forget it.” Mr. Blumberg said that would be a good idea. The Plaintiff has seen both Mr. Blumberg and Defendant Welsch at the Oak tavern in Seguin, Texas and knew that they were friends. The Plaintiff deemed the visit from Mr. Blumberg as a messenger from GBRA to find out what Plaintiff’s plans were to resolve the issues of property damage done by GBRA and send Plaintiff a message that GBRA would forget their damage if Plaintiff would forget his.

16.             

Action of Defendants through Friend Estopped GBRA from Criminal Prosecution of Plaintiff

That Plaintiff did, in fact, forget the damage to his property and continued his efforts to get a loan for his planned RV Park thinking that GBRA would also forget since their damage was considerably less than the Plaintiff’s damage. The Plaintiff never told his wife or kids about the incident and only told three of his closest friends at the Taphouse with the instructions to not spread that around. Plaintiff did not tell his said three closest friends until after the visit from Mr. Blumberg stating that it was all over town. Plaintiff’s wife found out about the window incident when the “Notice of Setting” for “Arraignment” came in the mail to Plaintiff’s home on February 28, 2004. The said Notice date was 2/27/04 which is exactly one year from the date of the breaking of the window.

17.             

Plaintiff continues to have good faith

That on Monday March 10, 2003, Mr. Larry Moltz, of GBRA called Plaintiff at his home about 1:20 PM. Mr. Moltz told Plaintiff that GBRA’s Contractor, Rimrock, Inc., wanted to enter the Plaintiff’s island property in McQueeney again to remove some old tires they had left there. Plaintiff told Mr. Moltz that Plaintiff had placed barrels on the asphalt paved road to prevent unauthorized people from entering the property and that Plaintiff wanted to be present to help move the barrels for those  with Plaintiff’s permission to enter the island. Plaintiff told Mr. Moltz how GBRA’s Contractor, Rimrock Inc., could get hold of him to enter the island in Plaintiff’s presence. When Plaintiff went to open the Taphouse, as is the routine at 4:00 PM on the following day he noticed that the tires were off of the island and that the barrels had been moved without the Plaintiff being present.

18.             

Defendants do not attempt to mitigate Damages and use Moltz to enter property again to remove Contractor’s tires

That in the same phone call from Mr. Moltz of 3/10/03, Plaintiff asked Mr. Moltz how the window was doing. Mr. Moltz said that GBRA had gotten it fixed. I asked him how much it cost and Mr. Moltz said he didn’t know. The Plaintiff also asked Mr. Moltz if GBRA was going to send Plaintiff a bill for the window and he replied that he didn’t know anything about that, that somebody else was handling that ( Plaintiff’s Affidavit ). The Plaintiff has never received a bill or a demand for payment for the window replacement.

19.             

Plaintiff Begs Defendants not to Prosecute

That on March 9, 2004, after receiving notice of arraignment on February 28, 2004, the Plaintiff sent an email ( Exhibit G ) and a fax ( Exhibit H ) to GBRA addressed to Mr. Bill West apologizing for breaking the window and asking for mercy. The Plaintiff itemized the loss that could happen to him if he were convicted of class A Criminal Mischief Complaint. The Plaintiff in this letter asked what he could do to get out of the pending prosecution that was filed exactly one year from the offense without an attempt by GBRA to mitigate the damage or have it paid in full by the Plaintiff. Plaintiff in said letter informed GBRA and Defendant Bill West that he could not afford to file suits and sue people. The Plaintiff listed seven things that he could lose if convicted of breaking the window: his license to practice architecture, his interior design license, his beer and wine retailers license; prevention of his tentatively approved loan for $511,000 dollars for the construction of his RV Park called “Cypress Island RV Park,” the lose of his other RV development plans and other things known and not known. No one at GBRA has contacted Plaintiff concerning the window or the prosecution they have commenced.

20.             

Plaintiff is arrested at Plaintiff’s Arraignment at Courthouse

That on March 16, 2004, Plaintiff appeared at court for his arraignment at 9:00 AM. When his name was called he stood and spoke. The judge called a recess and the Plaintiff filed two documents for abatement of defective process and left the court house. An attorney friend of the Plaintiff called Plaintiff and told him that he was needed again at the court house. Plaintiff returned to the court house and when the judge returned he eventually called Plaintiff to the bench and Plaintiff answered the Judge’s questions and the judge had him arrested in the court room and taken to jail.

21.             

Plaintiff’s Friends Discover Defendants’ Desire to Stop Development of Plaintiff’s Property Defendants’ Damaged

While the Plaintiff was in jail his two friends, Hank Goltz and Alan Bacon, went to the office of GBRA to see if GBRA would be inclined to drop the prosecution of Plaintiff if Plaintiff paid for the broken window. The Plaintiff’s two friends met in private with both Defendants William (Bill) West and David Welsch. Defendant Mr. West met with the two friends and was later joined by David Welsch. The two friends of Plaintiff asked Defendant Bill West if he would consider dropping the prosecution if Plaintiff would pay for the window. Mr. West stated that he would consider that if Plaintiff, Avery, would agree to stop the development of his planned RV Park on Plaintiff’s island property in McQueeney below the Taphouse where the damage was done by GBRA’s Contractor. Both of the Plaintiff’s friends, Hank Goltz and Alan Bacon ( Joint Affidavit ) report the remarks concerning the desire of Defendant Bill West to include the stoppage of Plaintiff’s RV Park development on Plaintiff’s property as an element of the agreement to stop the prosecution. That this statement by Mr. West reveals the true design and explanation of Defendants’ actions that are much deeper than curb and road damage done to Plaintiff and window damage done to Defendant. This statement by Mr. West explains why there is no agreement to settle from GBRA. This revealed plan of Bill West to force an unconscionable contract upon Plaintiff which Plaintiff accepted is activity that exceeds his official capacity but uses the powerful mechanism of government to achieve with the intent to damage the property of Plaintiff. This act revives Mr. West’s design of 1994 to stop Avery’s development plans outside of legal means but using his quasi government color to influence others.

22.             

Defendants’ Revive Design to Stop Plaintiff’s Development

That Defendants, GBRA, and Bill West had at all times the quasi public corporate power to take the property of Plaintiff in order to protect the public from the flooding concerns of GBRA and Bill West. But rather than take Plaintiff’s property by eminent domain they devised plans and schemes outside their power to influence and hinder and stop the legal development plans of Plaintiff. That these acts going back to 1994 through 2004 constitute the same design and has caused property damage to Plaintiff in an amount of at least $511,000.

23.             

Defendants’ First Attempt to Stop Development of Plaintiff’s Property in 1994

That on November 18, 1994, Plaintiff sent Defendant Mr. West a certified letter ( Exhibit I ) complaining of Defendant’s call to the County Health Officer, Mr. Woods, at that time, and asking Mr. Woods to deny Plaintiff’s application for the approved Septic System for Cypress Island RV Park on the subject property in McQueeney. Defendant Bill West took this initiative of trying to have Plaintiff’s permit denied without contacting Plaintiff about Defendant’s concerns. Defendant, Bill West sought the denial of Plaintiff’s Septic System permit for his RV Park after it had been approved for almost six weeks.

24.             

County Judge Perceives Potential of Harm absent Authority

That County Judge Jim Sagebiel knew what the limit of his authority was in regard to Plaintiff’s Septic System for the RV Park. Judge Sagebiel was quick to write a letter ( Exhibit ia ) to let Plaintiff know that he did not order Mr. Woods to refuse a permit. This act of promptly notifying Plaintiff that Sagebiel did not interfere with the permit process shows that Judge Sagebiel did not want to be perceived as having tampered with the permit process for Plaintiff’s RV Park. Judge Sagebiel made it clear that he did not have authority to have the County Health Officer deny septic permits on Plaintiff’s RV Park. Any attempt by Judge Sagebiel to interfere with another person’s legal office to have Septic System permits denied without cause would constitute serious property damage and misuse of public office to pressure others. Yet Defendant Bill West has never denied that he did in fact try to have Plaintiff’s approved Septic permit denied in 1994. Defendant West has never responded to Plaintiff’s complaints concerning West’s tampering with the legal officials to put pressure on them to deny permits and stop Plaintiff’s RV Park. Judge Sagebiel said in his letter to Plaintiff that the Judge had spoken with the County Health Officer and was told that the RV Park’s Septic System was in compliance with the State of Texas TNRCC requirements.

25.             

GBRA Employees Libel Plaintiff and use Office to increase impact

Plaintiff was also the victim of a public charge of “racism” made on the front page of the local newspaper, The Seguin Gazette Enterprise, in the effort of Jim Cooksey of GBRA to pass a bond issue in town that Plaintiff and others successfully defeated. All contacts Plaintiff had with GBRA prior to 1994 concerning his RV Park were in 1988. All correspondence by letter and phone calls to and from GBRA were positive and helpful towards the development of an RV Park on Plaintiff’s subject property prior to 1994.

26.             

Defendants’ have no legal way to Stop Development Outside Eminent Domain

That Plaintiff’s letter ( Exhibit I ) resulted in a meeting of Plaintiff and Defendant Bill West on Plaintiff’s subject property to discuss the development of Plaintiff’s RV Park. A memorandum ( Exhibit J ) was made of this meeting and sent to Defendant West with a request to advise Plaintiff of any thing incorrect in the memorandum. Plaintiff never received any corrections from Defendant West. Defendant Bill West stated in item number 13 of said memorandum that GBRA had searched all the records to see if GBRA or the State had purchased a flood easement or right of way that included the island but could find none. Defendant indicated that GBRA had no jurisdiction in regards to the development of Plaintiff’s island property. The acts taken by Defendants were done in an “official capacity” without jurisdiction and under color of law and “public service and welfare” to stop Plaintiff’s half million dollar development.

27.             

Development Plans Approved by All Applicable Jurisdictions

The Plaintiff held a meeting on the subject property with two County Commissioners, Wyatt Kunde and Cesareo Guadarama, and the County Health Officer, George Woods, to inform the Commissioners that the RV Park had been approved and to inform them of Plaintiff’s intent to build a quality safe park. All their questions were answered by both Plaintiff and Mr. Woods and the Commissioners left satisfied and impressed with the plans. A memorandum ( Exhibit K ) was prepared after this meeting and sent to all that were in attendance with a request to notify Plaintiff of any corrections. No corrections were received by Plaintiff.


28.             

Plaintiff’s Development Plans Are Abandoned from 1996 to 2001

That the plans of Plaintiff to build an RV Park in 1994 were abandoned because of lack of sufficient funds to build an RV Park and a nice club house on subject property. The Plaintiff chose to build the club house (Taphouse) first and a parking lot of compacted crushed limestone on the island below for customers of the Taphouse. When the flood of October 17, 1998 came there were no pending plans to build an RV Park on subject property. The 98 flood clean up effort was initiated by GBRA with written permission sought by GBRA and granted by Plaintiff ( Exhibit gbra-roe ). GBRA paid Plaintiff for all damage done by GBRA’s 1998 Flood Cleanup Contractors. Plaintiff never sent GBRA’s 98 flood cleanup contractor any letters nor did Plaintiff make demands on said contractor. The 1998 flood cleanup contractor talked to the Plaintiff and tried to convince Plaintiff that there was little or no damage. The 1998 contractor further said he had no contract with Plaintiff, to which argument the Plaintiff agreed.

29.             

Plaintiff Revives Development Plans for RV Park and Defendants Revive Designs to Stop Development and Deny Due Process and Equal Rights

But four years later Plaintiff was once again able to pursue his original plans to build an RV Park on the island below the Taphouse. Plaintiff had seen the new County Health Officer, Mr. Stan Burrier, and was given some information and by June of 2002 Plaintiff had submitted his completed design for an On Site Sewer Facility to the County Health Officer. Plaintiff had met with Guadalupe Valley Electric Cooperative (GVEC) on the subject property with Plaintiff’s Electrical Engineer in late 2001 and early 2002. But after the flood of July 2002, the river clean up effort initiated about 6 months later by GBRA, was commenced upon Plaintiff’s property without permission of the Plaintiff and when Plaintiff requested payment for the damage done by GBRA’s Contractor, Rimrock Enterprises, Inc., and C.J. Hardeman, Plaintiff was denied payment. Then on March 16, 2004, when Plaintiff’s two friends try to help Plaintiff avoid a prosecution, they hear Defendant, Bill West, state West’s desire to condition the stopping of a prosecution for breaking a window, worth $678, upon Plaintiff’s abandonment of his RV Park on his own property that he has obtained a tentative loan approval in the amount of $511,000. Plaintiff was surprised to hear that GBRA even knew of Plaintiff’s plans as he is not required to apply for any permits from them.

30.             

GBRA entrusted with the job of maintaining good water quality took steps to deny Plaintiff’s Right to develop property without due process and equal rights

Plaintiff has discussed the involvement of Defendants with other RV Park owners on the Guadalupe River that are prone to flooding and that could possibly impact water quality and has found that Defendants have not even been in contact with them nor taken steps to prevent their construction. Acts of GBRA employees in 1994 show that Defendants may be involved with others in the community to harm Plaintiff’s rights because of his religious and political views and the lust for his property and property potential in McQueeney Texas and the future access to federal funds available for the development of adjacent property of which Plaintiff may be an indirect beneficiary.

31.             

Defendants have destroyed improvements and property development right of Plaintiff without just compensation

The use of a criminal prosecution of Plaintiff to obtain the civil end to stop the construction of Plaintiff’s RV Park while Defendants are criminally responsible for the damage they suffered to their window by Plaintiff and reviving their earlier design to stop Plaintiff’s RV Park is a taking of property without just compensation and due process.

32.             

Damage caused by Defendants’ Contractor used to harass and antagonize Plaintiff

The use of Defendants’ own damage to Plaintiff’s curbs and paving caused through their contractor and Defendant’s refusal to pay for damage that they clearly paid for in previous damages done by Defendants’ contractors was also used to pressure Plaintiff and harass and antagonize him.

33.             

Strategic Notice of Arraignment used to Stop Plaintiff’s Property Development

 Plaintiff had just completed bidding out the project once and was presently negotiating with contractors to build the said park when out of nowhere one year after the window breaking incident; the Plaintiff is sent a “Notice of Setting” for Plaintiff’s arraignment. This was the first contact Plaintiff received from Defendants concerning the window since the phone call from GBRA representative, Larry Moltz, and the visit from their friend, Hilmar Blumburg. The Plaintiff’s lender was waiting only upon the selection of a contractor. The new permit for an “On Site Sewer Facility” had been submitted and Plaintiff was told by Hays Environmental Engineering that Stan Burrier had essentially approved the system and was waiting for the formal permit application and payment of the permit fee by Plaintiff.

34.             

Defendants Revive Design of Denial of Plaintiff’s Equal Protection under the Law, Due Process, and taking of Property amounting to at Least One Million Dollars

The Plaintiff was shocked to hear about West’s stated desire to stop Plaintiff’s RV Park. This revived the other acts taken by West in the past to stop Plaintiff’s RV Park development. That Defendants paid for the damage they did while Plaintiff was not planning an RV Park but when Plaintiff revived plans for his RV Park, GBRA refused payment for the same kind of damage they had done earlier. The cost of development loan, the lost loan itself and the impact of encumbering and stigmatizing the property and preventing its development would be near one million dollars.


35.             

GBRA Could Have Foreseen Damage Resulting From Trespass of Their Contractor and Violated Their Own Procedures

That Defendant GBRA, Bill West and David Welsch did change the GBRA method of dealing with the Plaintiff when Plaintiff revived his plans to build an RV Park on his own property. As long as Plaintiff had no plans to build an RV Park, GBRA was cooperative and sought permit to enter but once Plaintiff submitted new plans to the County Health Officer to build “Cypress Island RV Park” the Defendants became very uncooperative, and entered land in violation of government code and their own in-house procedure used earlier. The obvious change in Defendants’ treatment of Plaintiff is now explainable. The presents of Plaintiff’s plans to develop an RV Park determine the response from Defendants.

36.             

The False and Fictional Concept of “State Sovereignty” and “Sovereign Immunity” Has Created a Culture of Arrogance and Disregard for Plaintiff’s Private Property which act to deny Due Process, Equal Rights and all Property Rights in General

Plaintiff does not abandon his claim herein that the State Texas does not have Sovereignty over the People of Texas. Plaintiff maintains that it is this false monarchial fiction that has been merely adopted contrary to the Constitution of Texas through the common law of ancient England that has contributed to the continual violation by public servants of the property rights of the people, which is the sole foundation of the United States and all the states thereof. The People have always been sovereign over the monarchy and the state in any form because the people cannot transfer their Property consisting of their lives, liberties and possessions to the state but only can delegate authority to act for them in the protection of that property on behalf of each citizen. Further, the state cannot waive what it does not possess namely sovereignty and sovereign immunity. Therefore the Texas Tort Claims Act and chapter 101 – 110 of the Texas Civil Practice and Remedy Code are void as if never passed and presently stand in violation of the positive law of the Constitution of Texas Article I Section 1, 2, and 3 created by the sovereign people of Texas. The adoption of monarchial common law cannot stand over the sovereign people of Texas in their right to create the state of Texas by the social contract of the Texas Constitution which Plaintiff claims as his herein. Plaintiff rejects any notion that he is a party to the Texas Tort Claims act and its codification.

37.             

Defendants attempted to damage his property

That Plaintiff is not required to show that his property has been damaged forever, but to only show that Defendants attempted to stop Plaintiff’s right to develop Plaintiff’s property outside their legal authority, and that Defendants did take steps to accomplish that goal and that there was an apparent possibility of its consummation.


38.             

Plaintiff’s Intuition of Unjust Culture of Fictional State Sovereignty and Immunity to Damage Property

That Plaintiff would not have broken the window of a private person who had done damage on Plaintiff’s property but would have sought restitution from legal channels where he and the other private person would be on equal footing. But the Defendants are a quasi public or state government entity and Plaintiff perceived his damage already coming from “legal” channels. Plaintiff was frustrated by “public service” and “legal relief” and lost his composure for just a brief time resulting in a trifling of damage. Even though GBRA paid Plaintiff for the damage done by GBRA’s 1998 flood clean up contractor, U.S. Demolition did come to see Plaintiff and told Plaintiff they owed little or nothing to Plaintiff and Plaintiff did not want to go through all of that again with GBRA’s new 2002 flood clean up contractor, Rimrock Enterprises, Inc.

39.             

Defendants Deceive Agents at Homeland Security to Harm Plaintiff and deny Due Process and Equal Rights and Property Rights

Plaintiff did not break GBRA’s window to injure and kill people or disrupt function of GBRA or to do anything that would effect the foreign or domestic policy of Texas or America as Defendant Bill West permitted Homeland Security Officers to believe while in consultation with them. How else could Agents of Homeland Security recommend to the GBRA General Manager that Plaintiff should be charged under Domestic Terrorism? Plaintiff viewed GBRA as an institution that was there to serve the public but instead of aiding the Plaintiff they were injuring the Plaintiff. Now Plaintiff has trouble sleeping knowing that the office of Homeland Security has advised Defendant to charge Plaintiff under “Domestic Terrorism.” Plaintiff and Defendants know this is ridiculous but Plaintiff is not put at ease by this truth after hearing what Defendant Bill West told Plaintiff’s friends (Joint Affidavit). Plaintiff’s wife also now fears for her husband’s life, liberty and possessions and she too sleeps little. That this kind of charge against Plaintiff by GBRA and other Defendants should not be permitted when Defendants know that GBRA has contributory negligence involved in this trifling of damage. This misguidance of “Homeland Security,” which resulted in a recommended charge of “Domestic Terrorism,” could in fact be punishable against Defendants under the Patriot Act. There are fines for instigating false alarms and alerts of grave matters of terrorism. These threats against Plaintiff should not be taken lightly by the jury or the court. This has injured the Plaintiff and his family in almost inconceivable amounts which Plaintiff will let a jury determine if one million dollars would help stop quasi-public corporations from misuse of the American defense system against those they should serve to avoid a $13,000 claim for street damages. This actual damage amount is unliquidated but Plaintiff thinks one million dollars would be sufficient. Plaintiff also believes that treble damages are in order to deter other government officials from violating the sovereign property rights of citizens. This was not an accident but an act that should be punished and others sent a message about what to avoid in serving the sovereign people of Texas.


40.             

Defendants Have Not Attempted to Mitigate Damages They Suffered Revealing Real Motive of Defendants

Plaintiff, in good faith, had forgotten his damages done by GBRA, some 20 times greater then the damage done by Plaintiff to Defendants, and pursued his own plans to build an RV Park. No Defendant has contacted Plaintiff to mitigate any damages nor have any of them demanded payment for the repair of any window. But one year and one day after letting Mr. Avery go away thinking all would be forgotten and after the visitation by Mr. Blumberg encouraging Plaintiff to forget his own property damages, Plaintiff was served with a notice of arraignment for damages with a penalty of as much as one year in jail and a $4,000 fine. Even now after a visit by Plaintiff’s friends to GBRA and four offers to pay and settle, the Defendants sit quietly waiting to prosecute and convict Avery of $678 in damages in a trial set for July 19, 2004. This shows bad faith on the part of Defendants and further shows another and much more culpable motive than recovery for broken windows.

41.             

Plaintiff has been cheated out of his Rights in the local Court before

The denial of GBRA liability by Defendant David Welsch in his letter of 2/25/03 ( Exhibit F ) was used to frustrate, antagonize, and harass Plaintiff, who they know to be of little stature in the County with little empathy from the court system. There was little avenue for Plaintiff to pursue and in his frustration he broke a window at GBRA costing about $678 to repair (Joint Affidavit). For this $678 damage, of which at least half is due to GBRA’s own contributive omission, GBRA, now holds the life, liberty, possessions, professions, and family of Mr. Avery in their hands. Avery had been in this same local court seven years (from 1989 to 1995) with as many as 6 law suits at once and was kept dirt poor as a result. The Plaintiff had to go to the forth court of appeals twice and to the Supreme Court of Texas three times. At the end he was “victorious” but broke. The history of Plaintiff in this local court is known by many because he had sued some local lawyers and the suit was settled out of court. This was all known to Defendants. Court is the last option for Plaintiff. Plaintiff had been successful in his own defense as a defendant before a week long jury trial but Plaintiff was denied a trial by jury in all actions that he pursued against those that damaged him. Plaintiff never was able to get his causes of action to a jury of his peers.

42.             

Defendants Deny Due Process and Equal Rights to Plaintiff

That the manipulation, intentional or otherwise, of GBRA policy regarding the damages that their contractors do on the land of Plaintiff by Defendants to prevent the development of Plaintiff’s property without authority violates the sole purpose of their existence and reactivates the attempted property damage and libel suffered by Plaintiff in 1994. The act of Defendant Bill West to pressure a County Health Officer to deny Plaintiff’s approved permit for a septic system in 1994 demonstrates West’s willful design to deprive Plaintiff of Due Process and Equal Rights and Property Rights. This act was an attempt to prevent the lawful development of an RV Park on Plaintiff’s property while sitting in quasi public office but in want of authority to stop said development. The RV Park development loan has been tentatively approved for a sum of $511,000. These acts show Defendant Bill West’s willing intent and design to act outside his own authority to pressure others as a public servant to damage Plaintiff’s property worth over a half million dollars on a half million dollar piece of land under color of “public service.”

43.             

Defendants’ Bad Faith Deprivation of Due Process as officers or private individuals

The sworn affidavits of two innocent parties report the desire of Defendant Bill West to use 678 dollars worth of damage (a clear result of their own denial of 13,000 dollars worth of damage to Plaintiff) to make the Plaintiff’s abandon his half million dollar development. These desires and intentions and actions of Defendants are not good faith actions but have an agenda much deeper than a broken window and the mitigation of the damage they sustained. The Defendants Mr. West and Mr. Welsch are using the frustrated outburst of Plaintiff caused by their own refusal to be responsible to attain things they are not entitled to, and to do things they do not have authority to do otherwise as public servants or as private individuals.

44.             

Plaintiff has suffered lost “as is” Value of Property

These actions taken and the designs stated by Defendants do cause the Plaintiff extreme distrust for what these public officials can do to Plaintiff in the future if he does or does not develop his RV Park or attempts to sell his property to another. These Defendants, West and Welsch have damaged the perception of Plaintiff’s property.

45.             

Defendants’ have damaged and or taken real property of Plaintiff amounting to $13,000

That the refusal of Defendants to admit to a $13,000 liability and demand for payment made by Plaintiff and their attempt to place liability upon a supposed agreement between the contractor and Plaintiff has damaged Plaintiff in the amount of at least $13,000.

46.             

Defendants’ use their damage to Plaintiff’s property as leverage

That Defendants David Welsch and Bill West refused to admit liability and have refused to pay the demand upon them made by Plaintiff and have used this event to become partially liable for their own damage at GBRA. Had Defendants not had another agenda, which was to hinder the RV Park development plans of Plaintiff they again would have no broken window and no bargaining tool to prevent the development of Plaintiff’s land by the Plaintiff himself.


47.             

Defendants’ deny Plaintiff his right to develop his property or access to due process

These events caused by bad faith agendas of Defendants Welsch and West against the property rights of Plaintiff have caused Plaintiff to cease plans for the said park at a critical time and defend himself from their designs. These acts constitute a deprivation equal rights, property rights and due process by the state.

48.             

Defendants’ use Criminal Prosecution to achieve Civil Ends against property rights of Plaintiff without due process or Equal Rights

That Plaintiff’s friends Mr. Bacon and Mr. Goltz made a second offer to pay for the window damage if GBRA would drop the prosecution ( Joint Affidavit ). They were told to go bail out Plaintiff instead of paying for the window. That if Defendants Welsch and West are so innocent and not liable why do they continue to refuse to settle the case and get the money for a broken window? Defendants have no refuge but to send Plaintiff, Mr. Avery to jail for a year so he cannot pursue his property rights against them and Mr. West’s efforts to stop Plaintiff’s RV project will be complete. All that stands between Defendants and serious liability is a broken window costing $678.


49.             

Plaintiff in 3rd offer to settle agrees to unconscionable contract terms to avoid Criminal Prosecution

That a third offer to settle and pay for the window and request for mercy was made by Plaintiff to Mr. Bill West at GBRA on the morning of March 18, 2004, ( Exhibit L ) and Plaintiff agreed to abandon his plans for an RV Park and to pay for the window if GBRA would drop the prosecution. Defendants have never replied.

50.             

Plaintiff’s 4th offer to settle

A fourth effort to cure the damage done by plaintiff was made on March 19, 2004. On said date Plaintiff sent to GBRA, by certified mail, a check for $678 to cover the cost of repairing the window at GBRA ( Exhibit M ). The Defendants sent the check back saying it is up to the judge. The fact that Defendants have not responded or rejected four offers to pay for the window and Plaintiff’s agreement with unconscionable contracts shows that they are aware that the $678 window is the only thing that stands between Defendants and serious claims against them.

51.             

Attempt to deprive Plaintiff of Due Process by misrepresentation to Homeland Security

That the Defendant, Mr. West shows fear of his own culpability by having made wild accusations suggesting that the Plaintiff might be a “domestic terrorist” and that he might have a “chemical imbalance.” Mr. West said that he was advised by the Federal government that Plaintiff could be charged under “domestic terrorism.” This is obviously not about “domestic terrorism.” This is about two Defendants working for a state “public service” corporation that have violated property rights of Plaintiff and deprived Plaintiff of access to due process and equal rights to develop his RV Park and are frantically seeking refuge in anything they can to avoid serious consequences. See ( Joint Affidavit ) of Goltz and Bacon attached. That the Defendants are doing more damage as they continue to avoid their legal liability to compensate the Plaintiff for actual specified damages to his property and property rights.

52.             

West lies to Plaintiff’s friends to look good

That Defendant West told Plaintiff’s friends that West had sent Avery an offer to drop the prosecution if Avery would abandon his RV Park development. Avery has never received any kind of offer nor have Defendants ever asked Plaintiff to pay for the window. This was a falsehood told by West in a desperate attempt by West to appear like West had shown good faith and had attempted to settle even if West’s fictitious offer was unconscionable. That Plaintiff, Ron Avery, even accepted West’s offer made to Plaintiff’s friends to drop the prosecution of Avery if Avery would abandon the RV Park development. The Defendants have refused to settle the trifling window damage because they may now perceive that Avery’s going to jail for a year would prevent Avery from ever having justice in front of a jury or credibility in town when he would attempt to hold Defendants responsible for damages to Plaintiff’s curbs and roads and his future RV Park development and livelihood at Plaintiff’s Taphouse property.

53.             

Slander per se and Attempted violation of due process in Defendants’ claim that Plaintiff was a Domestic Terrorist

That Defendants, GBRA and Bill West, have slandered, per se, the Plaintiff by discussing Avery’s trifling window breaking episode, of which GBRA has contributory negligence, with the office of Homeland Security suggesting to these agents that Avery has committed a grievous crime against the people of America. That Defendants, GBRA and Bill West know that Avery is not a “domestic terrorist,” and essentially admitted as much in the meeting with Avery’s friends. No direct or actual damage need be shown to prove the damage of statements and discussions such as these. No matter when these statements were first made to Homeland Security or when they were made to others, the Plaintiff only learned of them when they were made to Plaintiff’s friends only days before Plaintiff brought this suit.

54.             

Slander per se suggesting that Plaintiff had “chemical imbalance”

That Defendants, GBRA and Bill West, have slandered, per se, the Plaintiff by characterizing Avery as a diseased person that has a “chemical imbalance.” Plaintiff is shocked to hear such a report and wonders now if Avery may be subjected to some kind of psychological testing. These statements are strong slanderous accusations resulting in the defamation of Avery’s character. No direct actual damage need be shown to prove the damage under these kinds of statements.

55.             

Earlier steps taken by Defendants to Libel Plaintiff become actionable when same design reactivated

That GBRA employees, back in 1994, also called Avery a “racist” at the very same time that GBRA and Defendant Bill West was trying to prevent Plaintiff from obtaining an already approved septic system permit for his RV Park. This statement was made on the front page of the news paper in Seguin, Texas. These efforts made in 1995 are all revived by Defendants’ newest attempts to stop Plaintiff from developing his RV Park because they are all the same design and all become actionable when the same conspiratorial design is reactivated.

56.             

Defendants take unlawful steps to deprive Plaintiff of due process in stopping his RV Park

That Defendants should not be allowed to hide behind the screen of a so-called “public service” corporation with certain powers of government and “good will” towards the people and orchestrate designs to damage the property and the property rights of private citizens. If Defendants have a legal method to prevent the development of an RV Park on Plaintiff’s property they could have and would have legally stopped the development years ago but they did not then and they do not now have that means. Therefore the activities of Defendants have damaged the property of Plaintiff. That Defendants, GBRA, Bill West and David Welsch continue to use their trifling compliant of a $678 dollar window damage to force an unconscionable result upon the property of Plaintiff.

57.             

Maximum Damages

That Defendants, GBRA and Bill West have misused the public trust of “good will and welfare” to contact other governmental officers to apply their prestigious authority and influence to damage Plaintiff’s property rights and slander his reputation and endanger Plaintiff’s life, liberty and possessions without due process or equal rights. That these acts on the part of Defendants, GBRA, Bill West, David Welsch constitutes an extreme misuse of their quasi public trust and stand in want of sovereignty, and sovereign immunity, or any other kind of immunity to damage private property in excess of two million dollars. And in the public interest to prevent quasi “public service” corporate employees from abusing private citizens in the future, treble damages are justly in view. Therefore, Plaintiff claims maximum damages in the amount of six million dollars ($6,000,000.00).


WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Plaintiff have judgment from each DEFENDANT, jointly and severally, in the amounts above prayed and for such other relief to which he may be entitled at law or in equity.

 

Respectfully Submitted,

________________________________

Ronald F. Avery     Pro Se

1955 Mt. Vernon

Seguin, Texas 78155

830/372-5534

 

 

Certificate of Service

I hereby certify that a true and correct copy of the foregoing was forwarded by certified mail, return receipt requested # ­7099 3220 0001 5083 3363, on this the ____ day of ___________, 2004 to the following:

 

Attorney of Record for Defendants:

 

William S. Helfand

Chamberlain, Hrdlicka, White, Williams & Smith

Attorneys at Law

1200 Smith Street, Suite 1400

Houston, Texas 77002

__________________________________