Preview
Electronically Filed
4/5/2017 11:31:19 AM
Lois Rogers, Smith County District Clerk
Reviewed By: Steven Cowan
CAUSE NO. 16-2512-B
EC TYLER HOUSING PARTNERS, LTD. § IN THE DISTRICT COURT OF
§
V. § SMITH COUNTY
§
TERRY GRAHAM, TREY GRAHAM, and §
TERRY GRAHAM INTERESTS, LTD. § 114TH JUDICIAL DISTRICT
DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER
Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd.(“TGI)”, file
the following original answer to Plaintiff’s First Amended Petition.
I.
Special Exception
Defendants specially except to Plaintiff’s First Amended Petition because it seeks recovery
of damages that Plaintiff is not entitled to recover even if Plaintiff prevails in this lawsuit.
Specifically, Plaintiff seeks to recover “costs of litigation, attorney’s fees, and expert costs
pursuant § 11.0841 of the TEX. WATER CODE for bringing suit for injunctive relief to redress an
unauthorized diversion of surface water.” Plaintiff’s 1st Amended Petition, Para. 67.
Section 11.0841 provides:
“a district court may award the costs of litigation, including
reasonable attorney fees and expert costs, to any political
subdivision of the state, private corporation, or individual that is a
water right holder and that prevails in a suit for injunctive relief to
redress an unauthorized diversion, impoundment, or use of surface
water in violation of this chapter or a rule adopted pursuant to this
chapter.” TEX. WATER CODE § 11.0841.
DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 1 OF 4
To be entitled to the relief sought, Plaintiff must be a “water right holder.” TEX. WATER
CODE § 11.002 defines a “water right” as “a right acquired under Texas law to impound, divert, or
use state water.” “State water” is defined as “water under ordinary flow, underflow and tides of
every flowing river, natural stream, lake, bay, arm of the Gulf of Mexico, and stormwater,
floodwater, or rain water of every river, natural stream, canyon, ravine, depression, and watershed
of the state.” TEX. WATER CODE § 11.021. In this case, Plaintiff complains that Defendants have
allegedly diverted diffuse surface water. In Texas, diffuse surface water is not “state water.”
Instead, diffuse surface water is owned by the owner of the surface over which it flows.
II.
General Denial
Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd., pursuant to
Rule 92, Texas Rules of Civil Procedure, generally deny each and every, all and singular, the
allegations contained in Plaintiff’s First Amended Petition. Such allegations are not true, either in
whole or in part, and Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd.
demand strict proof thereof.
III.
For further answer herein, or in the alternative, Defendant would show that any injuries or
damages of Plaintiffs resulted from the acts, omissions, faults, negligence, and/or intentional acts
of others for whom Defendant is not responsible, and Defendant denies that it is in any way
responsible for any alleged injuries or damages and states that each such action or inaction, was
the sole cause, or alternatively, a proximate, producing, intervening, superseding, or comparative
cause of any such injuries or damages to Plaintiffs. Defendant would further show that the acts
DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 2 OF 4
or omissions of a separate and independent agency not reasonably foreseeable destroyed the causal
connection, if any, between the negligence alleged and the occurrence in question.
IV.
For further answer herein, or in the alternative, Defendant further alleges Plaintiffs’ claims
are barred in whole or in part due to the contributory negligence of Plaintiffs in that Plaintiffs failed
to exercise, by their own acts or omissions, the ordinary care, prudence, or caution of a reasonable
person to avoid the damages as alleged in Plaintiffs’ Fourth Amended Complaint. Such acts or
omissions by Plaintiffs, whether taken together or separately, proximately caused the injuries and
damages to Plaintiffs which are alleged in their Fourth Amended Complaint
V.
For further answer herein, or in the alternative, Defendant affirmatively pleads and invokes
the provisions of Chapters 32 and 33 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, including
the right to receive contribution from any Defendant, the right to obtain credit for any settlement
monies paid by any Defendant or settling party to the Plaintiffs, and any other procedural or
substantive protections or requirements of the chapters, including reserving the right to obtain a
jury finding on liability questions to all claimants, defendants, settling parties, and any person or
entity who may be named as a responsible third party.
VI.
In addition, or in the alternative, Defendant would submit that the occurrence, if any, was
caused by an act of God caused directly and exclusively by the violence of nature, without human
intervention or cause, and could not have been prevented by reasonable foresight or care.
II.
Prayer
DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 3 OF 4
For these reasons, Defendants pray that Plaintiff take nothing by its suit, that its claims be
dismissed with prejudice, and that the Court award Defendants any and other further relief, at law
or in equity, to which they may be justly entitled.
Respectfully submitted,
STARR SCHOENBRUN & COMTE PLLC
110 N. College Avenue, Suite 1700
Tyler, Texas 75702
Telephone: 903-534-0200
Facsimile: 903-534-0511
/s/ KEITH W. STARR
KEITH W. STARR
State Bar No.: 19076650
keith@sscfirm.com
STEVEN W. COMTE
State Bar No.: 24040715
steven@sscfirm.com
CO-COUNSEL FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been forward
via the method indicated on this 5th day of April, 2017, to counsel of record as set forth below:
P. William Stark Via eFileTexas.gov Electronic Service
Amanda R. McKinzie Via eFileTexas.gov Electronic Service
GREENBERG TRAURIG, LLP
220 Ross Avenue, Suite 5200
Dallas, TX 75201
Jimmy M. Negem Via eFileTexas.gov Electronic Service
Joe M. Worthington Via eFileTexas.gov Electronic Service
NEGEM & WORTHINGTON
1828 ESE Loop 323, Suite R-1A
Tyler, TX 75701
/s/ KEITH W. STARR
KEITH W. STARR
DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 4 OF 4
Preview
Electronically Filed 4/5/2017 11:31:19 AM Lois Rogers, Smith County District Clerk Reviewed By: Steven Cowan CAUSE NO. 16-2512-B EC TYLER HOUSING PARTNERS, LTD. § IN THE DISTRICT COURT OF § V. § SMITH COUNTY § TERRY GRAHAM, TREY GRAHAM, and § TERRY GRAHAM INTERESTS, LTD. § 114TH JUDICIAL DISTRICT DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd.(“TGI)”, file the following original answer to Plaintiff’s First Amended Petition. I. Special Exception Defendants specially except to Plaintiff’s First Amended Petition because it seeks recovery of damages that Plaintiff is not entitled to recover even if Plaintiff prevails in this lawsuit. Specifically, Plaintiff seeks to recover “costs of litigation, attorney’s fees, and expert costs pursuant § 11.0841 of the TEX. WATER CODE for bringing suit for injunctive relief to redress an unauthorized diversion of surface water.” Plaintiff’s 1st Amended Petition, Para. 67. Section 11.0841 provides: “a district court may award the costs of litigation, including reasonable attorney fees and expert costs, to any political subdivision of the state, private corporation, or individual that is a water right holder and that prevails in a suit for injunctive relief to redress an unauthorized diversion, impoundment, or use of surface water in violation of this chapter or a rule adopted pursuant to this chapter.” TEX. WATER CODE § 11.0841. DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 1 OF 4 To be entitled to the relief sought, Plaintiff must be a “water right holder.” TEX. WATER CODE § 11.002 defines a “water right” as “a right acquired under Texas law to impound, divert, or use state water.” “State water” is defined as “water under ordinary flow, underflow and tides of every flowing river, natural stream, lake, bay, arm of the Gulf of Mexico, and stormwater, floodwater, or rain water of every river, natural stream, canyon, ravine, depression, and watershed of the state.” TEX. WATER CODE § 11.021. In this case, Plaintiff complains that Defendants have allegedly diverted diffuse surface water. In Texas, diffuse surface water is not “state water.” Instead, diffuse surface water is owned by the owner of the surface over which it flows. II. General Denial Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd., pursuant to Rule 92, Texas Rules of Civil Procedure, generally deny each and every, all and singular, the allegations contained in Plaintiff’s First Amended Petition. Such allegations are not true, either in whole or in part, and Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd. demand strict proof thereof. III. For further answer herein, or in the alternative, Defendant would show that any injuries or damages of Plaintiffs resulted from the acts, omissions, faults, negligence, and/or intentional acts of others for whom Defendant is not responsible, and Defendant denies that it is in any way responsible for any alleged injuries or damages and states that each such action or inaction, was the sole cause, or alternatively, a proximate, producing, intervening, superseding, or comparative cause of any such injuries or damages to Plaintiffs. Defendant would further show that the acts DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 2 OF 4 or omissions of a separate and independent agency not reasonably foreseeable destroyed the causal connection, if any, between the negligence alleged and the occurrence in question. IV. For further answer herein, or in the alternative, Defendant further alleges Plaintiffs’ claims are barred in whole or in part due to the contributory negligence of Plaintiffs in that Plaintiffs failed to exercise, by their own acts or omissions, the ordinary care, prudence, or caution of a reasonable person to avoid the damages as alleged in Plaintiffs’ Fourth Amended Complaint. Such acts or omissions by Plaintiffs, whether taken together or separately, proximately caused the injuries and damages to Plaintiffs which are alleged in their Fourth Amended Complaint V. For further answer herein, or in the alternative, Defendant affirmatively pleads and invokes the provisions of Chapters 32 and 33 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, including the right to receive contribution from any Defendant, the right to obtain credit for any settlement monies paid by any Defendant or settling party to the Plaintiffs, and any other procedural or substantive protections or requirements of the chapters, including reserving the right to obtain a jury finding on liability questions to all claimants, defendants, settling parties, and any person or entity who may be named as a responsible third party. VI. In addition, or in the alternative, Defendant would submit that the occurrence, if any, was caused by an act of God caused directly and exclusively by the violence of nature, without human intervention or cause, and could not have been prevented by reasonable foresight or care. II. Prayer DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 3 OF 4 For these reasons, Defendants pray that Plaintiff take nothing by its suit, that its claims be dismissed with prejudice, and that the Court award Defendants any and other further relief, at law or in equity, to which they may be justly entitled. Respectfully submitted, STARR SCHOENBRUN & COMTE PLLC 110 N. College Avenue, Suite 1700 Tyler, Texas 75702 Telephone: 903-534-0200 Facsimile: 903-534-0511 /s/ KEITH W. STARR KEITH W. STARR State Bar No.: 19076650 keith@sscfirm.com STEVEN W. COMTE State Bar No.: 24040715 steven@sscfirm.com CO-COUNSEL FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forward via the method indicated on this 5th day of April, 2017, to counsel of record as set forth below: P. William Stark Via eFileTexas.gov Electronic Service Amanda R. McKinzie Via eFileTexas.gov Electronic Service GREENBERG TRAURIG, LLP 220 Ross Avenue, Suite 5200 Dallas, TX 75201 Jimmy M. Negem Via eFileTexas.gov Electronic Service Joe M. Worthington Via eFileTexas.gov Electronic Service NEGEM & WORTHINGTON 1828 ESE Loop 323, Suite R-1A Tyler, TX 75701 /s/ KEITH W. STARR KEITH W. STARR DEFENDANTS’ SPECIAL EXCEPTION AND FIRST AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 4 OF 4