Preview
Electronically Filed
1/4/2018 11:14 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 SECOND AMENDED ANSWER
Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd.(“TGI)”, file
the following Special Exception and Second Amended 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
DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 1 OF 5
water in violation of this chapter or a rule adopted pursuant to this
chapter.” TEX. WATER CODE § 11.0841.
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, Defendants would show that any injuries
or damages of Plaintiff resulted from the acts, omissions, faults, negligence, and/or intentional acts
of others for whom Defendants are not responsible, and Defendants deny that they are in any way
responsible for any alleged injuries or damages and state that each such action or inaction, was the
sole cause, or alternatively, a proximate, producing, intervening, superseding, or comparative
DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 2 OF 5
cause of any such injuries or damages to Plaintiff. Defendants would further show that the acts
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, Defendants further allege Plaintiff’s claims
are barred in whole or in part due to the contributory negligence of Plaintiff in that Plaintiff failed
to exercise, by its own acts or omissions, the ordinary care, prudence, or caution of a reasonable
person to avoid the damages as alleged in Plaintiff’s Amended Petition. Such acts or omissions
by Plaintiff, whether taken together or separately, proximately caused the injuries and damages to
Plaintiff which are alleged in Plaintiff’s Amended Petition.
V.
For further answer herein, or in the alternative, Defendants allege that the alleged negligent
acts of which Plaintiff complains were carried out by an independent contractor of Defendant TGI.
As such, Defendant TGI is not liable for such negligence, if any.
VI.
For further answer herein, or in the alternative, Defendants affirmatively plead and invoke
the provisions of Chapters 32 and 33 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, including
the right to receive contribution from any Defendant or Third-Party Defendant, the right to obtain
credit for any settlement monies paid by any Defendant or settling party to the Plaintiff, 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.
DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 3 OF 5
VII.
In addition, or in the alternative, Defendants 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.
VIII.
Prayer
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/ STEVEN W. COMTE
KEITH W. STARR
State Bar No.: 19076650
keith@sscfirm.com
STEVEN W. COMTE
State Bar No.: 24040715
steven@sscfirm.com
CO-COUNSEL FOR DEFENDANTS
DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 4 OF 5
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 4th day of January 2018, 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/ STEVEN W. COMTE
KEITH W. STARR
DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER
EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 5 OF 5
Preview
Electronically Filed 1/4/2018 11:14 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 SECOND AMENDED ANSWER Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd.(“TGI)”, file the following Special Exception and Second Amended 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 DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 1 OF 5 water in violation of this chapter or a rule adopted pursuant to this chapter.” TEX. WATER CODE § 11.0841. 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, Defendants would show that any injuries or damages of Plaintiff resulted from the acts, omissions, faults, negligence, and/or intentional acts of others for whom Defendants are not responsible, and Defendants deny that they are in any way responsible for any alleged injuries or damages and state that each such action or inaction, was the sole cause, or alternatively, a proximate, producing, intervening, superseding, or comparative DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 2 OF 5 cause of any such injuries or damages to Plaintiff. Defendants would further show that the acts 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, Defendants further allege Plaintiff’s claims are barred in whole or in part due to the contributory negligence of Plaintiff in that Plaintiff failed to exercise, by its own acts or omissions, the ordinary care, prudence, or caution of a reasonable person to avoid the damages as alleged in Plaintiff’s Amended Petition. Such acts or omissions by Plaintiff, whether taken together or separately, proximately caused the injuries and damages to Plaintiff which are alleged in Plaintiff’s Amended Petition. V. For further answer herein, or in the alternative, Defendants allege that the alleged negligent acts of which Plaintiff complains were carried out by an independent contractor of Defendant TGI. As such, Defendant TGI is not liable for such negligence, if any. VI. For further answer herein, or in the alternative, Defendants affirmatively plead and invoke the provisions of Chapters 32 and 33 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, including the right to receive contribution from any Defendant or Third-Party Defendant, the right to obtain credit for any settlement monies paid by any Defendant or settling party to the Plaintiff, 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. DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 3 OF 5 VII. In addition, or in the alternative, Defendants 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. VIII. Prayer 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/ STEVEN W. COMTE KEITH W. STARR State Bar No.: 19076650 keith@sscfirm.com STEVEN W. COMTE State Bar No.: 24040715 steven@sscfirm.com CO-COUNSEL FOR DEFENDANTS DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 4 OF 5 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 4th day of January 2018, 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/ STEVEN W. COMTE KEITH W. STARR DEFENDANTS’ SPECIAL EXCEPTION AND SECOND AMENDED ANSWER EC TYLER HOUSING V. TERRY GRAHAM, ET AL PAGE 5 OF 5