Preview
Electronically Filed
1/18/2019 3:25 PM
Penny Clarkston, Smith County District Clerk
Reviewed By: Terry Morrow
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
DEFENDANTS TERRY GRAHAM, TREY GRAHAM, and TERRY GRAHAM
INTERESTS, LTD.’S MOTION TO COMPEL DISCOVERY RESPONSES
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants, TERRY GRAHAM, TREY GRAHAM, and TERRY
GRAHAM INTERESTS, LTD. and file this their Motion to Compel Discovery Responses, and
in support thereof would respectfully show unto the Court the following:
INTRODUCTION
1. Plaintiff, EC Tyler Housing Partners, Ltd. sued Defendants, Terry Graham, Trey Graham,
and Terry Graham Interests, Ltd. for violations of the Texas Water Code, Negligence,
Negligence Per Se, Gross Negligence, Private Nuisance, Public Nuisance, and Trespass.
2. Discovery in this suit is governed by a Level 3 discovery-control plan. The discovery
period ended on December 30, 2018.
3. The case is set for trial on March 18, 2019.
BACKGROUND
4. On April 5, 2017, Defendants served Plaintiff with Requests for Production in accordance
with Texas Rules of Civil Procedure 21(a) and 21a.
5. Defendants made the following Requests for Production:
DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES
EC TYLER HOUSING V. GRAHAM PAGE 1 OF 5
21. All invoices, work orders, change orders, time sheets, payment receipts, checks,
or other documents that evidence the work of any employee of Plaintiff, contractor,
or subcontractor to restore, remediate, or repair any alleged damage to the NDG
Property.
23. A copy of any “water right” permit that Plaintiff has obtained from the State of
Texas. For purposes of this request, “water right” shall have the meaning assigned
in Chapter 11 of the Texas Water Code.
6. Plaintiff responded to Defendants’ Request for Production on May 12, 2017. Plaintiff made
the following objections and responses to Request for Production numbers 21 and 23:
21. NDG specifically incorporates herein its General Objections. NDG further
objects to this Request as the terms “work orders,” “change orders,” “other
documents,” “evidence,” and “restore” are vague and ambiguous and are capable
of multiple interpretations. NDG also objects to this Request as it is overly broad
and unduly burdensome. NDG further objects to this Request as it seeks to
inappropriately require Plaintiff to marshall all of his evidence on a particular point.
Subject to NDG’s objections, NDG will produce responsive, non-objectionable,
relevant documents, if any, at a time and place agreed upon by the parties.
23. NDG specifically incorporates herein its General Objections. NDG further
objects to this Request as the phrase “water right permit” is vague and ambiguous
and is capable of multiple interpretations. NDG further objects to this Request as it
fails to specify the documents sought with reasonable particularity. NDG further
objects to this Request as it calls for a legal conclusion. NDG further objects to this
Request as it seeks to inappropriately require Plaintiff to marshall all of his evidence
on a particular point. Subject to NDG’s objections, NDG will produce responsive,
non-objectionable, relevant documents, if any, at a time and place agreed upon by
the parties.
ARGUMENTS AND AUTHORITIES
7. The purpose of discovery is to seek the truth, so that disputes may be decided by what the
facts reveal, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550,
555 (Tex. 1990). Discovery may be obtained about any matter relevant to the subject
matter of the case. Tex. R. Civ. P. 192.3 (West 2005). Information is discoverable as long
as it appears “reasonably calculated to lead to the discovery of admissible “evidence.” Id.
8. Defendants’ discovery requests are reasonably calculated to lead to the discovery of
admissible evidence. Plaintiff seeks recovery of costs allegedly incurred for repair,
DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES
EC TYLER HOUSING V. GRAHAM PAGE 2 OF 5
remediation, and/or restoration of Plaintiff’s property allegedly necessitated by diffuse
surface water runoff and accompanying migration of silt, soil, and/or sediments from
Defendants’ property to Plaintiff’s property. Request for Production No. 21 seeks
documents that will describe the work allegedly completed and the costs of such work,
both items that are highly relevant to the claims made by Plaintiff.
9. Additionally, Plaintiff seeks to recover attorney fees and other litigation costs pursuant to
Tex. Water Code §11.841. In order to recover attorney fees and litigation costs pursuant
to Tex. Water Code §11.0841, the Plaintiff must prove that it is a water right holder in the
State of Texas. Tex. Water Code § 11.841(b). Request for Production No. 23 seeks
production of the permit by which Plaintiff acquired any claimed water right. As such,
Request for Production seeks documentary evidence of the Plaintiff’s alleged status as a
water right holder for the purpose of ascertaining whether Plaintiff is potentially entitled to
recover attorney’s fees and other litigation costs under § 11.841. Accordingly, the request
clearly seeks discovery of relevant information.
10. A court may compel a party to respond adequately to Requests for Production. Tex. R. Civ.
P. 215.1(b). Plaintiffs did not respond adequately to Defendants’ Request for Production
numbers 21 and 23 as required by Tex. R. Civ. P. 193.1. Therefore, the Court should compel
Plaintiff to comply with the rule. Plaintiff’s responses are inadequate for the following
reasons:
a. Plaintiff refused to respond fully to Request for production number 21 regarding
information evidencing repair, restoration, or remediation work completed by
Plaintiff, its contractors or sub-contractors. Tex. R. Civ. P. 193.1 requires the party
to make a “complete response” to a discovery request.
DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES
EC TYLER HOUSING V. GRAHAM PAGE 3 OF 5
b. Plaintiff refused to respond fully to Request for production number 23 regarding
water right permits. Tex. R. Civ. P. 193.1 requires the party to make a “complete
response” to a discovery request.
c. Defendants’ discovery requests are within the scope of discovery permitted by Tex.
R. Civ. P. 192.3. Even though Defendants’ requests were proper, Plaintiff refused
to comply with the rule and served objections to Defendants’ request in an effort to
avoid discovery that is clearly authorized under the discovery rules.
CONCLUSION
11. Because Defendants’ requests are within the permissible scope of discovery, and because
Plaintiff failed to properly respond in accordance with the rules, the Court should compel
Plaintiff to respond adequately.
PRAYER
12. WHEREFORE PREMISES CONSIDERED, Defendants respectfully request that the
Court GRANT Defendants’ Motion to Compel and GRANT Defendants all further relief
to which they may be justly entitled.
Respectfully submitted,
STARR SCHOENBRUN & COMTE PLLC
110 North College Avenue, Suite 1700
Tyler, Texas 75702
903-534-0200 Office
903-534-0511 Fax
/s/ Steven W. Comte
STEVEN W. COMTE
State Bar No. 24040715
steven@sscfirm.com
ATTORNEY FOR DEFENDANTS
DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES
EC TYLER HOUSING V. GRAHAM PAGE 4 OF 5
CERTIFICATE OF CONFERENCE
On January 18, 2019, I attempted confer with Bill Stark, attorney for Plaintiff, but was
unable to do so prior to the filing deadline. For purposes of this certificate, it is assumed that
Plaintiff opposes the relief requested herein.
/s/ Steven W. Comte
STEVEN W. COMTE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been forwarded
on this 18th day of January, 2019, 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
Clayton E. Devin Via eFileTexas.gov Electronic Service
Jason Jung Via eFileTexas.gov Electronic Service
3800 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
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
STEVEN W. COMTE
DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES
EC TYLER HOUSING V. GRAHAM PAGE 5 OF 5
Preview
Electronically Filed 1/18/2019 3:25 PM Penny Clarkston, Smith County District Clerk Reviewed By: Terry Morrow 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 DEFENDANTS TERRY GRAHAM, TREY GRAHAM, and TERRY GRAHAM INTERESTS, LTD.’S MOTION TO COMPEL DISCOVERY RESPONSES TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants, TERRY GRAHAM, TREY GRAHAM, and TERRY GRAHAM INTERESTS, LTD. and file this their Motion to Compel Discovery Responses, and in support thereof would respectfully show unto the Court the following: INTRODUCTION 1. Plaintiff, EC Tyler Housing Partners, Ltd. sued Defendants, Terry Graham, Trey Graham, and Terry Graham Interests, Ltd. for violations of the Texas Water Code, Negligence, Negligence Per Se, Gross Negligence, Private Nuisance, Public Nuisance, and Trespass. 2. Discovery in this suit is governed by a Level 3 discovery-control plan. The discovery period ended on December 30, 2018. 3. The case is set for trial on March 18, 2019. BACKGROUND 4. On April 5, 2017, Defendants served Plaintiff with Requests for Production in accordance with Texas Rules of Civil Procedure 21(a) and 21a. 5. Defendants made the following Requests for Production: DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES EC TYLER HOUSING V. GRAHAM PAGE 1 OF 5 21. All invoices, work orders, change orders, time sheets, payment receipts, checks, or other documents that evidence the work of any employee of Plaintiff, contractor, or subcontractor to restore, remediate, or repair any alleged damage to the NDG Property. 23. A copy of any “water right” permit that Plaintiff has obtained from the State of Texas. For purposes of this request, “water right” shall have the meaning assigned in Chapter 11 of the Texas Water Code. 6. Plaintiff responded to Defendants’ Request for Production on May 12, 2017. Plaintiff made the following objections and responses to Request for Production numbers 21 and 23: 21. NDG specifically incorporates herein its General Objections. NDG further objects to this Request as the terms “work orders,” “change orders,” “other documents,” “evidence,” and “restore” are vague and ambiguous and are capable of multiple interpretations. NDG also objects to this Request as it is overly broad and unduly burdensome. NDG further objects to this Request as it seeks to inappropriately require Plaintiff to marshall all of his evidence on a particular point. Subject to NDG’s objections, NDG will produce responsive, non-objectionable, relevant documents, if any, at a time and place agreed upon by the parties. 23. NDG specifically incorporates herein its General Objections. NDG further objects to this Request as the phrase “water right permit” is vague and ambiguous and is capable of multiple interpretations. NDG further objects to this Request as it fails to specify the documents sought with reasonable particularity. NDG further objects to this Request as it calls for a legal conclusion. NDG further objects to this Request as it seeks to inappropriately require Plaintiff to marshall all of his evidence on a particular point. Subject to NDG’s objections, NDG will produce responsive, non-objectionable, relevant documents, if any, at a time and place agreed upon by the parties. ARGUMENTS AND AUTHORITIES 7. The purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Discovery may be obtained about any matter relevant to the subject matter of the case. Tex. R. Civ. P. 192.3 (West 2005). Information is discoverable as long as it appears “reasonably calculated to lead to the discovery of admissible “evidence.” Id. 8. Defendants’ discovery requests are reasonably calculated to lead to the discovery of admissible evidence. Plaintiff seeks recovery of costs allegedly incurred for repair, DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES EC TYLER HOUSING V. GRAHAM PAGE 2 OF 5 remediation, and/or restoration of Plaintiff’s property allegedly necessitated by diffuse surface water runoff and accompanying migration of silt, soil, and/or sediments from Defendants’ property to Plaintiff’s property. Request for Production No. 21 seeks documents that will describe the work allegedly completed and the costs of such work, both items that are highly relevant to the claims made by Plaintiff. 9. Additionally, Plaintiff seeks to recover attorney fees and other litigation costs pursuant to Tex. Water Code §11.841. In order to recover attorney fees and litigation costs pursuant to Tex. Water Code §11.0841, the Plaintiff must prove that it is a water right holder in the State of Texas. Tex. Water Code § 11.841(b). Request for Production No. 23 seeks production of the permit by which Plaintiff acquired any claimed water right. As such, Request for Production seeks documentary evidence of the Plaintiff’s alleged status as a water right holder for the purpose of ascertaining whether Plaintiff is potentially entitled to recover attorney’s fees and other litigation costs under § 11.841. Accordingly, the request clearly seeks discovery of relevant information. 10. A court may compel a party to respond adequately to Requests for Production. Tex. R. Civ. P. 215.1(b). Plaintiffs did not respond adequately to Defendants’ Request for Production numbers 21 and 23 as required by Tex. R. Civ. P. 193.1. Therefore, the Court should compel Plaintiff to comply with the rule. Plaintiff’s responses are inadequate for the following reasons: a. Plaintiff refused to respond fully to Request for production number 21 regarding information evidencing repair, restoration, or remediation work completed by Plaintiff, its contractors or sub-contractors. Tex. R. Civ. P. 193.1 requires the party to make a “complete response” to a discovery request. DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES EC TYLER HOUSING V. GRAHAM PAGE 3 OF 5 b. Plaintiff refused to respond fully to Request for production number 23 regarding water right permits. Tex. R. Civ. P. 193.1 requires the party to make a “complete response” to a discovery request. c. Defendants’ discovery requests are within the scope of discovery permitted by Tex. R. Civ. P. 192.3. Even though Defendants’ requests were proper, Plaintiff refused to comply with the rule and served objections to Defendants’ request in an effort to avoid discovery that is clearly authorized under the discovery rules. CONCLUSION 11. Because Defendants’ requests are within the permissible scope of discovery, and because Plaintiff failed to properly respond in accordance with the rules, the Court should compel Plaintiff to respond adequately. PRAYER 12. WHEREFORE PREMISES CONSIDERED, Defendants respectfully request that the Court GRANT Defendants’ Motion to Compel and GRANT Defendants all further relief to which they may be justly entitled. Respectfully submitted, STARR SCHOENBRUN & COMTE PLLC 110 North College Avenue, Suite 1700 Tyler, Texas 75702 903-534-0200 Office 903-534-0511 Fax /s/ Steven W. Comte STEVEN W. COMTE State Bar No. 24040715 steven@sscfirm.com ATTORNEY FOR DEFENDANTS DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES EC TYLER HOUSING V. GRAHAM PAGE 4 OF 5 CERTIFICATE OF CONFERENCE On January 18, 2019, I attempted confer with Bill Stark, attorney for Plaintiff, but was unable to do so prior to the filing deadline. For purposes of this certificate, it is assumed that Plaintiff opposes the relief requested herein. /s/ Steven W. Comte STEVEN W. COMTE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded on this 18th day of January, 2019, 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 Clayton E. Devin Via eFileTexas.gov Electronic Service Jason Jung Via eFileTexas.gov Electronic Service 3800 Renaissance Tower 1201 Elm Street Dallas, TX 75270 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 STEVEN W. COMTE DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES EC TYLER HOUSING V. GRAHAM PAGE 5 OF 5