Preview
Electronically Filed
7/21/2017 3:00 PM
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, TEXAS
§
TERRY GRAHAM, TREY GRAHAM, and §
TERRY GRAHAM INTERESTS, LTD § 114th JUDICIAL DISTRICT
DEFENDANT TERRY GRAHAM INTERESTS, LTD.’S REPLY TO PLAINTIFF’S
RESPONSE TO DEFENDANT’S MOTION FOR LEAVE TO FILE THIRD-PARTY
PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW TERRY GRAHAM INTERESTS, LTD., Defendant in the above-styled
and numbered cause, and files this its Reply to Plaintiff’s Response to Defendant’s Motion for
Leave to File Third-Party Petition against Todd Winn, individually and d/b/a Todd Winn
Construction and NuRock Construction Services, LLC, and in support thereof would respectfully
show unto the Court the following:
I.
FACTS
Plaintiff owns property that abuts property owned by Defendant TGI. Plaintiff alleges
that Defendant TGI has unlawfully diverted the flow of diffuse surface water from Defendant
TGI’s property onto Plaintiff’s property. Plaintiff’s property is downhill from Defendant TGI’s
property. Defendant TGI has denied Plaintiff’s claims.
Third-Party Defendant Winn is a contractor that provided services to Defendant TGI for
the purpose of cleaning up Defendant TGI’s property in preparation for marketing of such property
for sale. Third-Party Defendant Winn removed trees and underbrush from Defendant TGI’s
property and mulched such materials before spreading the mulch on the ground. If the grade on
DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION
EC TYLER HOUSING V. GRAHAM PAGE 1 OF 5
Defendant TGI’s property has been changed, which Defendant TGI expressly denies, such change
in grade would have been caused by Third Party Defendant Winn. Third-Party Defendant Winn
also provided grading, excavation, and dirt work services to Plaintiff for Plaintiff’s construction
project.
Third-Party Defendant NuRock is the general contractor for Plaintiff’s construction project
and as such is responsible for the construction activities which are occurring or have occurred on
the Plaintiff’s property including work related to grading, excavation, and dirt work.
Although Defendant TGI denies that Plaintiff has been harmed by surface water runoff
from Defendant TGI’s property, any harm potentially incurred was caused in whole or in part by
the negligence of Third-Party Defendants Winn and NuRock.
II.
ARGUMENT & AUTHORITIES
A. TGI’s proposed claims are derivative of NDG’s claims.
Plaintiff is correct that a third-party claim is a derivative claim. Plaintiff argues that in
order to be derivative, the claims must focus on TGI’s uphill property. Plaintiff cites no
authority for that position and a simple reading of Rule 38 dispels that notion.
Under Rule 38, a third party may be brought into a suit when a Defendant alleges that the
third party is liable to either Defendant or Plaintiff for the damages alleged in a plaintiff’s petition.
TEX. R. CIV. P. 38 (identifying a third-party defendant as a party “who is or may be liable to [third
party plaintiff] for all or part of the plaintiff’s claim.”).
Plaintiff alleges its property has been harmed. Defendant TGI, denies that allegation, but
asserts that the alleged harm, if itexists, was caused in whole or part by the activities of the
proposed third-party defendants. The location of those activities is irrelevant. Regardless,
Defendant TGI contends that Winn engaged in activities on Defendant TGI’s property and
DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION
EC TYLER HOUSING V. GRAHAM PAGE 2 OF 5
Plaintiff’s property. Some of Defendant Winn’s activities on Defendant TGI’s property were
undertaken for Defendant TGI’s benefit and some were for the benefit of Plaintiff (most notably
the excavation that occurred along the property line for installation of a masonry wall). The
activities of Winn for the benefit of Plaintiff were engaged in at the direction and within the control
of Third Party Defendant NuRock.
Plaintiff incorrectly asserts that the sole focus of Defendant TGI’s activities are activities
alleged to have occurred on Plaintiff’s property. Plaintiff argues that the contemplated claims are
not derivative because activities on Plaintiff’s property could not create or influence the alleged
diversion of water from Defendant TGI’s property. However, activities on Plaintiff’s property
can absolutely contribute to the alleged harm to Plaintiff’s property. To argue otherwise is
illogical.
In the present case, if Plaintiff was harmed by surface water runoff from Defendant TGI’s
property, Defendant TGI alleges that the alleged harm to Plaintiff’s property, if any, was caused,
in whole or in part, by the negligence of Third-Party Defendants Winn and NuRock resulting from
activities on Defendant TGI’s property or activities on Plaintiff’s property. Specifically,
Defendant TGI alleges that Winn and NuRock’s negligence caused or contributed to cause any
alleged drainage problems that may exist on Defendant TGI’s property or on Plaintiff’s property.
The proposed third-party claims are derivative of Plaintiff’s claim against Defendant TGI
and are accordingly proper claims to assert via the contemplated Third-Party Petition.
B. Fair notice argument
Plaintiff further argues that the Court should deny Defendant TGI’s motion because the
proposed Third Party Petition does not provide fair notice to the proposed third-party defendants.
If the Court grants Defendant TGI’s motion, and Defendant TGI files a third-party petition, third
party defendants will certainly be free to defend against Defendant TGI’s claims in any way they
DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION
EC TYLER HOUSING V. GRAHAM PAGE 3 OF 5
see fit including filing a special exception based upon a lack of fair notice if they deem such to be
warranted. Plaintiff’s argument is premature until the third-party petition is filed and served. In
any event, Plaintiff is making arguments that are not Plaintiff’s to make. Joining the contemplated
third-party defendants does not harm Plaintiff in any way. Joinder does ensure a just disposition
of the case and judicial economy.
C. Adding parties will not necessarily require a continuance.
This matter is presently set for trial on March 19, 2018, approximately eight months from
now. No depositions have been taken in this case to date. Most importantly, the current,
agreed scheduling order set a joinder deadline of June 30, 2017. By agreeing to that deadline,
Plaintiff consented to the joinder of additional parties to the lawsuit on or before the deadline.
As such, Plaintiff’s objection should be considered waived. It is not disputed that Defendant
TGI sought joinder prior to the deadline. Plaintiff’s contention now that joinder by the agreed
deadline would unnecessarily delay the case rings hollow.
III. CONCLUSION
For the reasons stated above, Plaintiff’s arguments against joinder are without merit.
Accordingly, Defendant TGI’s Motion for Leave to File Third Party Petition should be granted.
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant TGI prays that this Court grant
Defendant TGI leave to file it’s Third-Party Petition and for such other relief as Defendant TGI
may show itself to be justly entitled at law or in equity.
DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION
EC TYLER HOUSING V. GRAHAM PAGE 4 OF 5
Respectfully submitted,
STARR SCHOENBRUN & COMTE PLLC
110 N. College Ave., Suite 1700
Tyler, Texas 75702
903-534-0200 Office
903-534-0511 Fax
/s/ KEITH W. STARR
KEITH W. STARR
State Bar No. 19076650
STEVEN W. COMTE
State Bar No. 24040715
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been forwarded
on this 21st day of July 2017, via the method indicated below 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
DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION
EC TYLER HOUSING V. GRAHAM PAGE 5 OF 5
Preview
Electronically Filed 7/21/2017 3:00 PM 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, TEXAS § TERRY GRAHAM, TREY GRAHAM, and § TERRY GRAHAM INTERESTS, LTD § 114th JUDICIAL DISTRICT DEFENDANT TERRY GRAHAM INTERESTS, LTD.’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW TERRY GRAHAM INTERESTS, LTD., Defendant in the above-styled and numbered cause, and files this its Reply to Plaintiff’s Response to Defendant’s Motion for Leave to File Third-Party Petition against Todd Winn, individually and d/b/a Todd Winn Construction and NuRock Construction Services, LLC, and in support thereof would respectfully show unto the Court the following: I. FACTS Plaintiff owns property that abuts property owned by Defendant TGI. Plaintiff alleges that Defendant TGI has unlawfully diverted the flow of diffuse surface water from Defendant TGI’s property onto Plaintiff’s property. Plaintiff’s property is downhill from Defendant TGI’s property. Defendant TGI has denied Plaintiff’s claims. Third-Party Defendant Winn is a contractor that provided services to Defendant TGI for the purpose of cleaning up Defendant TGI’s property in preparation for marketing of such property for sale. Third-Party Defendant Winn removed trees and underbrush from Defendant TGI’s property and mulched such materials before spreading the mulch on the ground. If the grade on DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION EC TYLER HOUSING V. GRAHAM PAGE 1 OF 5 Defendant TGI’s property has been changed, which Defendant TGI expressly denies, such change in grade would have been caused by Third Party Defendant Winn. Third-Party Defendant Winn also provided grading, excavation, and dirt work services to Plaintiff for Plaintiff’s construction project. Third-Party Defendant NuRock is the general contractor for Plaintiff’s construction project and as such is responsible for the construction activities which are occurring or have occurred on the Plaintiff’s property including work related to grading, excavation, and dirt work. Although Defendant TGI denies that Plaintiff has been harmed by surface water runoff from Defendant TGI’s property, any harm potentially incurred was caused in whole or in part by the negligence of Third-Party Defendants Winn and NuRock. II. ARGUMENT & AUTHORITIES A. TGI’s proposed claims are derivative of NDG’s claims. Plaintiff is correct that a third-party claim is a derivative claim. Plaintiff argues that in order to be derivative, the claims must focus on TGI’s uphill property. Plaintiff cites no authority for that position and a simple reading of Rule 38 dispels that notion. Under Rule 38, a third party may be brought into a suit when a Defendant alleges that the third party is liable to either Defendant or Plaintiff for the damages alleged in a plaintiff’s petition. TEX. R. CIV. P. 38 (identifying a third-party defendant as a party “who is or may be liable to [third party plaintiff] for all or part of the plaintiff’s claim.”). Plaintiff alleges its property has been harmed. Defendant TGI, denies that allegation, but asserts that the alleged harm, if itexists, was caused in whole or part by the activities of the proposed third-party defendants. The location of those activities is irrelevant. Regardless, Defendant TGI contends that Winn engaged in activities on Defendant TGI’s property and DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION EC TYLER HOUSING V. GRAHAM PAGE 2 OF 5 Plaintiff’s property. Some of Defendant Winn’s activities on Defendant TGI’s property were undertaken for Defendant TGI’s benefit and some were for the benefit of Plaintiff (most notably the excavation that occurred along the property line for installation of a masonry wall). The activities of Winn for the benefit of Plaintiff were engaged in at the direction and within the control of Third Party Defendant NuRock. Plaintiff incorrectly asserts that the sole focus of Defendant TGI’s activities are activities alleged to have occurred on Plaintiff’s property. Plaintiff argues that the contemplated claims are not derivative because activities on Plaintiff’s property could not create or influence the alleged diversion of water from Defendant TGI’s property. However, activities on Plaintiff’s property can absolutely contribute to the alleged harm to Plaintiff’s property. To argue otherwise is illogical. In the present case, if Plaintiff was harmed by surface water runoff from Defendant TGI’s property, Defendant TGI alleges that the alleged harm to Plaintiff’s property, if any, was caused, in whole or in part, by the negligence of Third-Party Defendants Winn and NuRock resulting from activities on Defendant TGI’s property or activities on Plaintiff’s property. Specifically, Defendant TGI alleges that Winn and NuRock’s negligence caused or contributed to cause any alleged drainage problems that may exist on Defendant TGI’s property or on Plaintiff’s property. The proposed third-party claims are derivative of Plaintiff’s claim against Defendant TGI and are accordingly proper claims to assert via the contemplated Third-Party Petition. B. Fair notice argument Plaintiff further argues that the Court should deny Defendant TGI’s motion because the proposed Third Party Petition does not provide fair notice to the proposed third-party defendants. If the Court grants Defendant TGI’s motion, and Defendant TGI files a third-party petition, third party defendants will certainly be free to defend against Defendant TGI’s claims in any way they DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION EC TYLER HOUSING V. GRAHAM PAGE 3 OF 5 see fit including filing a special exception based upon a lack of fair notice if they deem such to be warranted. Plaintiff’s argument is premature until the third-party petition is filed and served. In any event, Plaintiff is making arguments that are not Plaintiff’s to make. Joining the contemplated third-party defendants does not harm Plaintiff in any way. Joinder does ensure a just disposition of the case and judicial economy. C. Adding parties will not necessarily require a continuance. This matter is presently set for trial on March 19, 2018, approximately eight months from now. No depositions have been taken in this case to date. Most importantly, the current, agreed scheduling order set a joinder deadline of June 30, 2017. By agreeing to that deadline, Plaintiff consented to the joinder of additional parties to the lawsuit on or before the deadline. As such, Plaintiff’s objection should be considered waived. It is not disputed that Defendant TGI sought joinder prior to the deadline. Plaintiff’s contention now that joinder by the agreed deadline would unnecessarily delay the case rings hollow. III. CONCLUSION For the reasons stated above, Plaintiff’s arguments against joinder are without merit. Accordingly, Defendant TGI’s Motion for Leave to File Third Party Petition should be granted. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant TGI prays that this Court grant Defendant TGI leave to file it’s Third-Party Petition and for such other relief as Defendant TGI may show itself to be justly entitled at law or in equity. DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION EC TYLER HOUSING V. GRAHAM PAGE 4 OF 5 Respectfully submitted, STARR SCHOENBRUN & COMTE PLLC 110 N. College Ave., Suite 1700 Tyler, Texas 75702 903-534-0200 Office 903-534-0511 Fax /s/ KEITH W. STARR KEITH W. STARR State Bar No. 19076650 STEVEN W. COMTE State Bar No. 24040715 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded on this 21st day of July 2017, via the method indicated below 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 DEFENDANT TGI’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO FILE THIRD-PARTY PETITION EC TYLER HOUSING V. GRAHAM PAGE 5 OF 5