No. D-202-CV-2013-05465

By on January 17, 2014

FILED IN MY OFFICE
DISTRICT COURT CLERK
7/2/2013 1:15:10 PM
GREGORY T. IRELAND
Kendra Goers
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
No. D-202-CV-2013-05465
KAY DIERS,
Plaintiff,
v.
NATASHA HARRIS,
Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT
AND MANDATORY INJUNCTION AND DAMAGES
Plaintiff, Kay Diers, by and through her attorney, Steider & Associates, P.C. (Timothy D. Steider) for her Complaint for Declaratory Judgment, Mandatory Injunction and Damages against Defendant Natasha Harris states as follows:
1. Plaintiff resides in Bernalillo County, New Mexico.
2. Defendant resides in Bernalillo County, New Mexico.
3. The real property that is the subject of this action is located at 8507 Flower Place NE, and 8515 Flower Place NE, City of Albuquerque, County of Bernalillo, State of New Mexico.
4. Venue is proper in this Court.
5. Plaintiff and Defendant are neighbors who share a common property line upon which a common wall has existed for many years.
6. Since approximately December, 2012, Plaintiff and Defendant have been in a dispute over the common wall, which was damaged when a tree belonging to Defendant fell on it in approximately December 1, 2011.
7. The dispute between the parties has also included another tree in Defendant’s yard (hereinafter referred to as the “leaning tree”), at the southeast corner of her residence, close to Plaintiff’s house, that is leaning significantly toward Plaintiff’s residence, and will likely fall on Plaintiff’s house and do significant damage if it is not removed.
8. The common wall and its foundation have been damaged by roots from several trees in Defendant’s yard that were planted in close proximity to the common wall.
9. Plaintiff has contacted the Defendant and requested she remove the “leaning tree” and repair the wall, and has had many letters written by her Attorney asking Defendant for her cooperation in resolving this dispute.
10. Plaintiff, on various occasions, offered to pay the costs and arrange for the wall repair and tree removal, if the Defendant would simply give her permission to have the work done, but the Defendant refused to grant such permission.
11. Due to the age of the wall, the broken section cannot be repaired properly because matching block is no longer available, so the entire common wall needs to be replaced due to damage and destruction from Defendant’s trees and the impossibility of matching the existing block.
12. Defendant refused Plaintiff’s requests or failed to respond to them for well over a year, and Defendant continues to refuse to take responsibility for the damage done to the common wall by her trees or the “leaning tree” and has failed to have the necessary work done to repair the existing damage and avoid the damage that would occur in the event the “leaning tree” falls.
13. Defendant hired a contractor to perform some work in her back yard, related to the tree damage, in August 2012 and her contractor’s truck damaged one of Plaintiff’s sprinklers which had to be repaired at a cost of $129.47.
COUNT I
DECLARATORY JUDGMENT
14. All previous allegations are incorporated by reference, for any and all purposes, as though fully set forth herein, and all allegations are based upon information and belief.
15. This action is brought pursuant to the Declaratory Judgment Act, Sections 44-6-1 through 44-6-15 NMSA 1978.
16. The District Court has the power to declare the rights, status and other claims of the parties.
17. Defendant is responsible for replacing the common wall due to the damage her trees have caused to the common wall and assuring that the leaning tree does not fall on Plaintiff’s house and continue to pose a serious threat to Plaintiff.
18. Upon information and belief, Defendant received funds from an insurance settlement adequate to repair the damaged wall, but failed to use those funds to have necessary work done.
19. Defendant’s “leaning tree” is a nuisance and poses an imminent threat of irreparable injury for which there is no adequate and complete remedy at law.
20. A dispute exists as to the legal relationship between Plaintiff and Defendant.
WHEREFORE, Plaintiff prays for declaratory judgment of this Court, declaring the rights, duties, and other legal relations between Plaintiff and Defendant, and that such judgment of this Court should declare, and decree, that Defendant is responsible for the damage done by her tree that fell on the common wall, the roots from her trees that have also damaged the common wall and its foundation, and damaged the common wall, and that Defendant shall immediately have the common wall replaced and the “leaning tree” removed, and pay Plaintiff $129.47 for the cost of repair to her broken sprinkler. In the alternative, Plaintiff prays for an order from this Court allowing her contractor(s) to enter Defendant’s property to the extent necessary so they can replace the common wall and remove the “leaning tree”, and award Plaintiff the cost of that work along with an award for the cost to replace her broken sprinkler in the amount of $129.47. Plaintiff further asks this court for and award of costs, attorney’s fees, and such further relief as this Court deems just and proper.
COUNT II
MANDATORY INJUNCTION
21. All previous allegations are incorporated by reference, for any and all purposes, as though fully set forth herein, and all allegations are based upon information and belief.
22. The tree in Defendant’s yard near the southeast corner of Defendants residence, near the southwest corner of Plaintiff’s residence leans toward Plaintiff’s residence to the point it appears imminent it will fall on Plaintiff’s residence and would likely cause irreparable injury for which there is no adequate and complete remedy at law.
23. Defendant is responsible for damage and destruction of the common wall and Plaintiff’s sprinkler and should be required to replace the common wall, remove the leaning tree, and reimburse Plaintiff for the cost of her broken sprinkler in the amount of $129.47.
WHEREFORE, Plaintiff prays for an order from this court requiring Defendant to remove the “leaning tree”, replace the common wall with similar block to match the surrounding walls, and reimburse Plaintiff the cost of replacing her broken sprinkler in the amount of $129.47, and that award Plaintiff the amount of her costs, attorneys fees, and such further relief as this Court deems just and proper.
STEIDER & ASSOCIATES, P.C.
By: /s/ Timothy D. Steider
Timothy D. Steider
Attorney for Plaintiff
3240-D Juan Tabo NE
Albuquerque, New Mexico 87111
(505)237-9880
HCS Pub. January 17, 24, 31, 2014

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