Preview
Electronically Filed
9/6/2017 1:50 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
§
TERRY GRAHAM, TREY GRAHAM, and §
TERRY GRAHAM INTERESTS, LTD. § 114TH JUDICIAL DISTRICT
DEFENDANT TERRY GRAHAM INTERESTS, LTD.’S COUNTERCLAIM AGAINST
PLAINTIFF EC TYLER HOUSING PARTNERS, LTD.
COMES NOW Defendant/Counter-Plaintiff, Terry Graham Interests, Ltd.(“TGI)”, and
files the following Counterclaim.
I.
PARTIES
1. Defendant/Counter-Plaintiff is Terry Graham Interests, Ltd. (“TGI”).
2. Plaintiff/Counter-Defendant is EC Tyler Housing Partners, Ltd. (“EC Tyler”). EC Tyler
has appeared in this lawsuit and may be served through its attorney of record.
II.
FACTS
3. EC Tyler owns property (“NDG Property”) that abuts property owned by TGI (“TGI
Property”). EC Tyler has constructed or is in the process of constructing an apartment complex
on the NDG Property.
4. During the Construction Project, EC Tyler or contractors for EC Tyler engaged in
significant excavation and grading on portions of the TGI Property at the boundary with the NDG
Property. Such activities were undertaken without the consent of TGI and at the direction and
within the control of EC Tyler. Additionally, cut soils were piled on the TGI Property along the
boundary between the TGI Property and the NDG Property. The referenced excavation, grading,
DEFENDANT TGI’S COUNTERCLAIM
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 1
and storage/piling of cut soils was undertaken to facilitate the installation of a masonry fence along
the boundary between the NDG Property and the TGI Property. Such excavation, grading, and
storage of cut soils on the TGI Property was completed without TGI’s consent.
5. Additionally, EC Tyler or contractors acting at EC Tyler’s direction and within EC Tyler’s
control accessed TGI’s Property without TGI’s consent and dumped construction materials
consisting of broken concrete and other materials on TGI’s property.
III.
CAUSES OF ACTION
6. TGI asserts a cause of action against EC Tyler for trespass. TGI owns and has the lawful
right to possess the TGI Property. EC Tyler entered the TGI Property physically, intentionally,
voluntarily, and without authorization which resulted in injury to TGI’s right of possession. EC
Tyler (1) actually entered the TGI Property; (2) caused someone or something to enter the TGI
Property; (3) aided, assisted, advised, or encouraged the actual trespasser; or (4) ratified or adopted
the act of the trespasser for EC Tyler’s own benefit. Further, EC Tyler’s trespass resulted from
malice or gross negligence.
IV.
DAMAGES
TGI seeks to recover the following damages in an amount within the jurisdictional limits
of the court:
1. Actual damages including, but not limited to, costs of restoration and loss
of use, or alternatively, nominal damages.
2. Exemplary damages in an amount to be determined by the Judge or Jury;
3. Court costs; and
4. Pre-judgment interest and post-judgment interest.
DEFENDANT TGI’S COUNTERCLAIM
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 2
WHEREFORE, PREMISES CONSIDERED, TGI prays that EC Tyler’s cause be
dismissed, that EC Tyler take nothing in this action, and that TGI recover all costs together with
such other and further relief to which it may be justly entitled. Further, TGI prays that upon final
determination of the issues in this case, TGI receive judgment on its counterclaim against EC Tyler
awarding TGI:
1. Actual damages, or alternatively, nominal damages
2. Exemplary damages in an amount to be determined by the Judge or Jury
within the jurisdictional limits of the Court;
3. Court costs; and
4. Pre-judgment interest and post-judgment interest.
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
DEFENDANT TGI’S COUNTERCLAIM
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 3
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 6th day of September, 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
DEFENDANT TGI’S COUNTERCLAIM
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 4
Preview
Electronically Filed 9/6/2017 1:50 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 § TERRY GRAHAM, TREY GRAHAM, and § TERRY GRAHAM INTERESTS, LTD. § 114TH JUDICIAL DISTRICT DEFENDANT TERRY GRAHAM INTERESTS, LTD.’S COUNTERCLAIM AGAINST PLAINTIFF EC TYLER HOUSING PARTNERS, LTD. COMES NOW Defendant/Counter-Plaintiff, Terry Graham Interests, Ltd.(“TGI)”, and files the following Counterclaim. I. PARTIES 1. Defendant/Counter-Plaintiff is Terry Graham Interests, Ltd. (“TGI”). 2. Plaintiff/Counter-Defendant is EC Tyler Housing Partners, Ltd. (“EC Tyler”). EC Tyler has appeared in this lawsuit and may be served through its attorney of record. II. FACTS 3. EC Tyler owns property (“NDG Property”) that abuts property owned by TGI (“TGI Property”). EC Tyler has constructed or is in the process of constructing an apartment complex on the NDG Property. 4. During the Construction Project, EC Tyler or contractors for EC Tyler engaged in significant excavation and grading on portions of the TGI Property at the boundary with the NDG Property. Such activities were undertaken without the consent of TGI and at the direction and within the control of EC Tyler. Additionally, cut soils were piled on the TGI Property along the boundary between the TGI Property and the NDG Property. The referenced excavation, grading, DEFENDANT TGI’S COUNTERCLAIM EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 1 and storage/piling of cut soils was undertaken to facilitate the installation of a masonry fence along the boundary between the NDG Property and the TGI Property. Such excavation, grading, and storage of cut soils on the TGI Property was completed without TGI’s consent. 5. Additionally, EC Tyler or contractors acting at EC Tyler’s direction and within EC Tyler’s control accessed TGI’s Property without TGI’s consent and dumped construction materials consisting of broken concrete and other materials on TGI’s property. III. CAUSES OF ACTION 6. TGI asserts a cause of action against EC Tyler for trespass. TGI owns and has the lawful right to possess the TGI Property. EC Tyler entered the TGI Property physically, intentionally, voluntarily, and without authorization which resulted in injury to TGI’s right of possession. EC Tyler (1) actually entered the TGI Property; (2) caused someone or something to enter the TGI Property; (3) aided, assisted, advised, or encouraged the actual trespasser; or (4) ratified or adopted the act of the trespasser for EC Tyler’s own benefit. Further, EC Tyler’s trespass resulted from malice or gross negligence. IV. DAMAGES TGI seeks to recover the following damages in an amount within the jurisdictional limits of the court: 1. Actual damages including, but not limited to, costs of restoration and loss of use, or alternatively, nominal damages. 2. Exemplary damages in an amount to be determined by the Judge or Jury; 3. Court costs; and 4. Pre-judgment interest and post-judgment interest. DEFENDANT TGI’S COUNTERCLAIM EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 2 WHEREFORE, PREMISES CONSIDERED, TGI prays that EC Tyler’s cause be dismissed, that EC Tyler take nothing in this action, and that TGI recover all costs together with such other and further relief to which it may be justly entitled. Further, TGI prays that upon final determination of the issues in this case, TGI receive judgment on its counterclaim against EC Tyler awarding TGI: 1. Actual damages, or alternatively, nominal damages 2. Exemplary damages in an amount to be determined by the Judge or Jury within the jurisdictional limits of the Court; 3. Court costs; and 4. Pre-judgment interest and post-judgment interest. 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 DEFENDANT TGI’S COUNTERCLAIM EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 3 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 6th day of September, 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 DEFENDANT TGI’S COUNTERCLAIM EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 4