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CAUSE NO. 09559
TIMBERHILL HOLDINGS, LLC IN THE DISTRICT COURT
Plaintiff,
JUDICIAL DISTRICT
GCMS OIL, LLC and G. RUSSEL COOK
and wife, CATHIE COOK
Defendant MONTGOMERY COUNTY, TEXAS
DEFENDANT GCMS OIL, LLC ORIGINAL ANSWER AND COUNTERCLAIM
THE HONORABLE JUDGE SAID COURT:
NOW COMES Defendant, GCMS Oil, LLC GCMS and this Original Answer and
Counterclaim and would show the following:
GENERAL DENIAL
Pursuant to Texas Rule of Civil Procedure 92, GCMS generally denies each and every
one of the allegations contained in Plaintiff s Original Petition and demands strict proof thereof by a
preponderance of the credible evidence or such greater burden as may be required by the Constitution
and the laws of the State of Texas
ADDITIONAL AND AFFIRMATIVE DEFENSES
Pursuant to Texas Rule of Civil Procedure 94, GCMS asserts the following additional
and affirmative defenses:
Plaintiffs’ claims and damages, if any, are barred in whole or in part by estoppel.
Plaintiffs’ claims and damages, if any, are barred in whole or in part by laches.
aintiffs’ claims and damages, if any, are barred in whole or in part by waiver.
Plaintiffs’ claims and damages, if any, are barred in whole or in part because GCMS’
conduct and/or omissions have been at all times privileged and justified.
COUNTERCLAIM
PARTIES
7. Plaintiff and Counter-Defendant, Timberhill Holdings, LLC, (“Timberhill”) is a Texas
limited liability company and has appeared in this case through its attorney of record, Jason D. Kraus,
The Kraus Law Firm, 19500 State Hwy 249, Suite 3350, Houston, Texas 77070.
8. Defendant and Counter-Plaintiff, GCMS, is a Delaware limited liability company and
appears in this action by and through its attorney of record, Corey F. Wehmeyer, SANTOYO
WEHMEYER, P.C., 12400 San Pedro Avenue, Suite 300, San Antonio, Texas 78216.
9. Defendants Russel Cook and Cathie Cook are individuals residing in Montgomery
County.
DISCOVERY PLAN
10. Pursuant to Texas Rule of Civil Procedure 190.4, GCMS intends to conduct discovery
under a Level 2 Discovery Plan.
JURISDICTION, VENUE, AND TRCP 47
11. This Court has proper jurisdiction over the parties and subject matter of this action.
Pursuant to Texas Rules of Civil Procedure 47(c), GCMS seeks monetary relief of $250,000 or less
and non-monetary relief, exempting this case from the expedited action. The amount in controversy
is within the jurisdictional limits of the Court.
12. Under Texas Civil Practice and Remedies Code § 15.062, venue of the main action
establishes venue of GCMS’s counterclaim. Furthermore, under Texas Civil Practice and Remedies
Code § 15.011, venue is mandatory in Montgomery County, Texas, because this lawsuit is an action
for recovery of real property located in Montgomery County, Texas; venue is permissive in
Montgomery County, Texas, pursuant to Texas Civil Practices and Remedies Code § 15.002(a)(1),
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because all or a substantial part of the events or omissions giving rise to the claim occurred in Montgomery
County, Texas.
FACTUAL BACKGROUND
13. GCMS is the owner of the parcel identified as R265209 located in Montgomery
County. GCMS’ property is used as its field office and gas processing plant and can be accessed from
FM1488 through a private road called Sierra Woods Drive.
14. Defendants Russell Cook and Cathie Cook, collectively referred to here as (the
“Cooks”) are the owners of the parcel identified as R49182 located in Montgomery County.
15. In March 2023, Timberhill acquired the property immediately North of GCMS’
property and immediately East of the Cooks’ property with plans to open a children’s recreational
park. Timberhill’s property can be accessed from its South or West side. The property can be accessed
from the South by taking Sierra Woods Road off of FM 1488.1 The Property can be accessed from
the West by taking Superior Road from FM 1488 and turning east on Corporate Woods Drive.
16. To access its property from the South, Timberhill is required to pass directly through
GCMS’ property and gas processing plant. GCMS, however, has historically locked its gate to the
entrance of its property for safety and security reasons.
17. Timberhill admits that it has access to the West side of its property through the Cooks’
property via Corporate Wood Drive, however, it claims that it cannot do so because that road is gated.
Notably, however, the photo on page 6 of Timberhill’s petition shows an open gate allowing access
to Corporate Wood Drive.
18. Additionally, the Cooks’ warranty deed, dated February 3, 2005, contains reservations
and exceptions, allowing Timberhill to pass through the Cooks’ property. Specifically, the warranty
reserves “[a] 60 foot private roadway over and across [the Cooks’ property], as reflected on [the] survey
1 Sierra Woods Road becomes Corporate Wood Drive, North of Timberhill’s property.
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prepared by Joe A. McDaniel, R.P.L.S. No. 4081, dated January 21, 2005, and the rights, if any, of
third parties to use said roadway.” The warranty deed specifically contemplates and reserves the right
of third parties, such as Timberhill, to access and use Corporate Wood Drive.
19. In its Petition, Timberhill claims that it is landlocked from its property, despite having
legal access from the West via Corporate Woods Drive. Nonetheless, Timberhill appears to ask that
this Court grant an implied easement allowing Timberhill to access its property from the South by
cutting through GCMS’ property via Sierra Woods Road.2
20. With its Counterclaim, GCMS seeks a declaration from this Court that Timberhill does
not have an implied easement (under any theory) that would permit Timberhill to access its property
from the South by using the private road that runs across GCMS’ property.
CAUSES OF ACTION
Declaratory Judgment
21. The paragraphs set forth above are incorporated here by reference.
22. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, GCMS
requests a declaratory judgment from this Court that 1) Timberhill does not have a right (by implied
easement or otherwise) to access its property from the South by using the private roadways that run
across GCMS’ property.
23. Declaratory relief is appropriate pursuant to Section 37.009 of the Texas Civil Practice
and Remedies Code because GCMS is an interested party to its property and roadways therein, being
an owner of parcel R265209, and a real, substantial, and live controversy exists between GCMS,
Plaintiff, and Counter-Defendant with respect to the alleged easement in dispute.
2 Timberhill fails to identify the exact location of the purported easement in its Petition.
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24. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, GCMS
requests an award of its costs and reasonable and necessary attorneys’ fees incurred in connection with
its action for declaratory judgment, as are equitable and just.
NOTICE UNDER RULE 193.7
25. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, GCMS hereby gives
notice that documents produced by a party during discovery may be used at any pre-trial proceeding
and/or trial of this matter.
DEMAND FOR JURY TRIAL
26. GCMS hereby makes demand for a trial by jury and contemporaneously has paid the
requisite fee. Request is made that this cause be set on the Court’s jury docket and that the Clerk make
notation of payment of fee on the Court’s docket sheet.
PRAYER
WHEREFORE PREMISES CONSIDERED, GCMS respectfully requests that the Court
deny Timberhill all relief requested in its Original Petition or other live pleading, enter a take-nothing
judgment against GCMS, and award GCMS the following relief:
A. A declaratory judgment that Timberhill does not have an implied easement (under any
theory) that would permit Timberhill to access its property from the South by using the
private road that runs across GCMS’ property;
B. All other declaratory relieve as requested above;
C. An award of all actual, special, and consequential damages against the Plaintiff and Cross-
Defendant as pled for herein;
D. Pre-judgment and post-judgment interest on all damage amounts at the highest rate
permitted by law;
E. Reasonable and necessary attorneys’ fees as pled for herein;
F. All costs of court; and
G. All such other and further relief, general and special, at law and in equity, to which GCMS
may be justly entitled to.
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Respectfully submitted,
SANTOYO WEHMEYER P.C.
IBC Highway 281 North Centre Building
12400 San Pedro Avenue, Suite 300
San Antonio, Texas 78216
Telephone: 210-998-4200
Facsimile: 210-998-4201
By: ____________________
Corey F. Wehmeyer
State Bar No. 24051903
cwehmeyer@swenergylaw.com
Brock Skelley
State Bar No. 24083866
bskelley@swenergylaw.com
Stephanie Dishman
State Bar No. 24092351
sdishman@swenergylaw.com
Damon Deravin
State Bar No. 24126230
dderavin@swenergylaw.com
Kelly Christy
State Bar No. 24125173
kchristy@swenergylaw.com
2603 Augusta Drive, Suite 1100
Houston, Texas 77057
Telephone: (832) 930-3605
ATTORNEYS FOR DEFENDANT
GCMS OIL, LLC
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CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing has, on this 31st
day of July 2023, been served on the following counsel of record via e-service:
Jason D. Kraus
jdk@krausattorneys.com
THE KRAUS LAW FIRM
19500 State Hwy 249, Suite 350
Houston, Texas 77070
ATTORNEY FOR PLAINTIFF
/s/Brock Skelley
Brock Skelley
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CAUSE NO. 09559 TIMBERHILL HOLDINGS, LLC IN THE DISTRICT COURT Plaintiff, JUDICIAL DISTRICT GCMS OIL, LLC and G. RUSSEL COOK and wife, CATHIE COOK Defendant MONTGOMERY COUNTY, TEXAS DEFENDANT GCMS OIL, LLC ORIGINAL ANSWER AND COUNTERCLAIM THE HONORABLE JUDGE SAID COURT: NOW COMES Defendant, GCMS Oil, LLC GCMS and this Original Answer and Counterclaim and would show the following: GENERAL DENIAL Pursuant to Texas Rule of Civil Procedure 92, GCMS generally denies each and every one of the allegations contained in Plaintiff s Original Petition and demands strict proof thereof by a preponderance of the credible evidence or such greater burden as may be required by the Constitution and the laws of the State of Texas ADDITIONAL AND AFFIRMATIVE DEFENSES Pursuant to Texas Rule of Civil Procedure 94, GCMS asserts the following additional and affirmative defenses: Plaintiffs’ claims and damages, if any, are barred in whole or in part by estoppel. Plaintiffs’ claims and damages, if any, are barred in whole or in part by laches. aintiffs’ claims and damages, if any, are barred in whole or in part by waiver. Plaintiffs’ claims and damages, if any, are barred in whole or in part because GCMS’ conduct and/or omissions have been at all times privileged and justified. COUNTERCLAIM PARTIES 7. Plaintiff and Counter-Defendant, Timberhill Holdings, LLC, (“Timberhill”) is a Texas limited liability company and has appeared in this case through its attorney of record, Jason D. Kraus, The Kraus Law Firm, 19500 State Hwy 249, Suite 3350, Houston, Texas 77070. 8. Defendant and Counter-Plaintiff, GCMS, is a Delaware limited liability company and appears in this action by and through its attorney of record, Corey F. Wehmeyer, SANTOYO WEHMEYER, P.C., 12400 San Pedro Avenue, Suite 300, San Antonio, Texas 78216. 9. Defendants Russel Cook and Cathie Cook are individuals residing in Montgomery County. DISCOVERY PLAN 10. Pursuant to Texas Rule of Civil Procedure 190.4, GCMS intends to conduct discovery under a Level 2 Discovery Plan. JURISDICTION, VENUE, AND TRCP 47 11. This Court has proper jurisdiction over the parties and subject matter of this action. Pursuant to Texas Rules of Civil Procedure 47(c), GCMS seeks monetary relief of $250,000 or less and non-monetary relief, exempting this case from the expedited action. The amount in controversy is within the jurisdictional limits of the Court. 12. Under Texas Civil Practice and Remedies Code § 15.062, venue of the main action establishes venue of GCMS’s counterclaim. Furthermore, under Texas Civil Practice and Remedies Code § 15.011, venue is mandatory in Montgomery County, Texas, because this lawsuit is an action for recovery of real property located in Montgomery County, Texas; venue is permissive in Montgomery County, Texas, pursuant to Texas Civil Practices and Remedies Code § 15.002(a)(1), 2 because all or a substantial part of the events or omissions giving rise to the claim occurred in Montgomery County, Texas. FACTUAL BACKGROUND 13. GCMS is the owner of the parcel identified as R265209 located in Montgomery County. GCMS’ property is used as its field office and gas processing plant and can be accessed from FM1488 through a private road called Sierra Woods Drive. 14. Defendants Russell Cook and Cathie Cook, collectively referred to here as (the “Cooks”) are the owners of the parcel identified as R49182 located in Montgomery County. 15. In March 2023, Timberhill acquired the property immediately North of GCMS’ property and immediately East of the Cooks’ property with plans to open a children’s recreational park. Timberhill’s property can be accessed from its South or West side. The property can be accessed from the South by taking Sierra Woods Road off of FM 1488.1 The Property can be accessed from the West by taking Superior Road from FM 1488 and turning east on Corporate Woods Drive. 16. To access its property from the South, Timberhill is required to pass directly through GCMS’ property and gas processing plant. GCMS, however, has historically locked its gate to the entrance of its property for safety and security reasons. 17. Timberhill admits that it has access to the West side of its property through the Cooks’ property via Corporate Wood Drive, however, it claims that it cannot do so because that road is gated. Notably, however, the photo on page 6 of Timberhill’s petition shows an open gate allowing access to Corporate Wood Drive. 18. Additionally, the Cooks’ warranty deed, dated February 3, 2005, contains reservations and exceptions, allowing Timberhill to pass through the Cooks’ property. Specifically, the warranty reserves “[a] 60 foot private roadway over and across [the Cooks’ property], as reflected on [the] survey 1 Sierra Woods Road becomes Corporate Wood Drive, North of Timberhill’s property. 3 prepared by Joe A. McDaniel, R.P.L.S. No. 4081, dated January 21, 2005, and the rights, if any, of third parties to use said roadway.” The warranty deed specifically contemplates and reserves the right of third parties, such as Timberhill, to access and use Corporate Wood Drive. 19. In its Petition, Timberhill claims that it is landlocked from its property, despite having legal access from the West via Corporate Woods Drive. Nonetheless, Timberhill appears to ask that this Court grant an implied easement allowing Timberhill to access its property from the South by cutting through GCMS’ property via Sierra Woods Road.2 20. With its Counterclaim, GCMS seeks a declaration from this Court that Timberhill does not have an implied easement (under any theory) that would permit Timberhill to access its property from the South by using the private road that runs across GCMS’ property. CAUSES OF ACTION Declaratory Judgment 21. The paragraphs set forth above are incorporated here by reference. 22. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, GCMS requests a declaratory judgment from this Court that 1) Timberhill does not have a right (by implied easement or otherwise) to access its property from the South by using the private roadways that run across GCMS’ property. 23. Declaratory relief is appropriate pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code because GCMS is an interested party to its property and roadways therein, being an owner of parcel R265209, and a real, substantial, and live controversy exists between GCMS, Plaintiff, and Counter-Defendant with respect to the alleged easement in dispute. 2 Timberhill fails to identify the exact location of the purported easement in its Petition. 4 24. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, GCMS requests an award of its costs and reasonable and necessary attorneys’ fees incurred in connection with its action for declaratory judgment, as are equitable and just. NOTICE UNDER RULE 193.7 25. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, GCMS hereby gives notice that documents produced by a party during discovery may be used at any pre-trial proceeding and/or trial of this matter. DEMAND FOR JURY TRIAL 26. GCMS hereby makes demand for a trial by jury and contemporaneously has paid the requisite fee. Request is made that this cause be set on the Court’s jury docket and that the Clerk make notation of payment of fee on the Court’s docket sheet. PRAYER WHEREFORE PREMISES CONSIDERED, GCMS respectfully requests that the Court deny Timberhill all relief requested in its Original Petition or other live pleading, enter a take-nothing judgment against GCMS, and award GCMS the following relief: A. A declaratory judgment that Timberhill does not have an implied easement (under any theory) that would permit Timberhill to access its property from the South by using the private road that runs across GCMS’ property; B. All other declaratory relieve as requested above; C. An award of all actual, special, and consequential damages against the Plaintiff and Cross- Defendant as pled for herein; D. Pre-judgment and post-judgment interest on all damage amounts at the highest rate permitted by law; E. Reasonable and necessary attorneys’ fees as pled for herein; F. All costs of court; and G. All such other and further relief, general and special, at law and in equity, to which GCMS may be justly entitled to. 5 Respectfully submitted, SANTOYO WEHMEYER P.C. IBC Highway 281 North Centre Building 12400 San Pedro Avenue, Suite 300 San Antonio, Texas 78216 Telephone: 210-998-4200 Facsimile: 210-998-4201 By: ____________________ Corey F. Wehmeyer State Bar No. 24051903 cwehmeyer@swenergylaw.com Brock Skelley State Bar No. 24083866 bskelley@swenergylaw.com Stephanie Dishman State Bar No. 24092351 sdishman@swenergylaw.com Damon Deravin State Bar No. 24126230 dderavin@swenergylaw.com Kelly Christy State Bar No. 24125173 kchristy@swenergylaw.com 2603 Augusta Drive, Suite 1100 Houston, Texas 77057 Telephone: (832) 930-3605 ATTORNEYS FOR DEFENDANT GCMS OIL, LLC 6 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing has, on this 31st day of July 2023, been served on the following counsel of record via e-service: Jason D. Kraus jdk@krausattorneys.com THE KRAUS LAW FIRM 19500 State Hwy 249, Suite 350 Houston, Texas 77070 ATTORNEY FOR PLAINTIFF /s/Brock Skelley Brock Skelley 7