Preview
Electronically Filed
8/19/2021 5:43 PM
Penny Clarkston, Smith County District Clerk
Reviewed By: Gina McClung
21-1958-C
CAUSE NO.
CORY M. KOZLOWSKI, JEANNE M. § JUDICIAL DISTRICT COURT
KOZLOWSKI, CONNIE VOLLMER, §
and NIGEL LOVE III, §
§
Plaintiffs §
§
vs. § IN AND FOR
§
REYES R. GOMEZ and MELINDA J. §
GOMEZ, §
§
Defendants § SMITH COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION
Cory M. Kozlowski, Jeanne M. Kozlowski, Connie Vollmer, and Nigel Love III,
Plaintiffs herein, present this Plaintiffs’ Original Petition complaining of Reyes R. Gomez
and Melinda J. Gomez, Defendants herein, and would show to the Court as follows:
I.
Discovery Control Plan
1. Plaintiffs intend to conduct discovery under Level 2, Tex. R. Civ. Proc. 190.3.
II.
Parties
2. Plaintiffs Cory M. Kozlowski and Jeanne M. Kozlowski are husband and wife
residing at 13154 CR 1131, Flint, Texas 75762. Plaintiff Connie Vollmer resides at 12770
CR 1131, Flint, Texas 75762. Plaintiff Nigel Love III resides at 13003 CR 1131, Flint,
Texas 75762.
3. Defendants are husband and wife residing at 12769 CR 1131, Flint, Texas
75762, where they may be served with citation by personal service.
III.
Jurisdiction and Venue
4. The Court has jurisdiction of this suit because the subject matter of the suit
is for violation of Tex. Water Code §11.086 as to real property located in Smith County,
Texas. The damages sought are within the jurisdictional limits of the Court. Plaintiffs seek
monetary relief of $100,000.00 or less and non-monetary relief.
5. Venue is proper is Smith County, Texas, under Tex. Civ. Prac. & Rem. Code
§15.002(a)(1) because all of the events or omissions giving rise to Plaintiffs’ claims
occurred in Smith County, Texas
IV.
Factual Background
6. Defendants own a tract of 8.695 acres in the Don Thomas Quevado Grant,
A-18, Smith County, Texas (Defendants’ Tract). Plaintiffs Kozlowski own a tract of 7.778
acres in the Don Thomas Quevado Grant adjoining Defendants’ Tract. Plaintiff Vollmer
owns a tract of 13.175 acres in the Don Thomas Quevado Grant. Plaintiff Love owns a
tract of 8.37 acres in the Don Thomas Quevado Grant adjoining Defendants Grant.
7. The topography of the area is such that rainwater from Plaintiffs’ properties
naturally drains across and onto Defendants’ Tract. Approximately one year ago,
Defendants built a berm approximately two feet high along their boundary with Plaintiffs and
set atop it a small culvert. The berm blocks the drainage of rainwater from Plaintiffs’
properties and results in the water being retained on Plaintiffs’ properties, creating a
perpetually wet condition which renders the properties unusable by Plaintiffs and resulting
in the deaths of trees and other vegetation growing on those properties from the prevention
Plaintiffs’ Original Petition Page 2
of rainwater draining away in the natural course across Defendants’ Tract. Plaintiffs’
properties have been and are being damaged by the diversion of water by Defendants back
onto their properties without their consent. Defendants have further expressed their intent
to increase the height of the berm and to block the small culvert set on top of it.
8. By letter dated August 24, 2020, Plaintiffs Kozlowski, acting through their
counsel, demanded that Defendants take steps to remove the berm so that the natural flow
of water across the properties would be restored. However, Defendants have failed and
refused to take any steps to remove the berm and to restore the natural flow of water.
V.
Violation of Tex. Water Code §11.086
9. Tex. Water Code §11.086(a) provides that “No person may divert or impound
the natural flow of surface waters in the state, or permit a diversion or impounding by him
to continue, in a manner that damages the property of another by the overflow of the water
diverted or impounded.” Tex. Water Code §11.086(b) grants to a person whose property
is injured by an overflow caused by an unlawful diversion or impoundment remedies at law
or in equity, including damages caused by the overflow.
10. The construction and maintenance of the berm by Defendants on Defendants’
Tract constitutes an unlawful diversion or impoundment of the natural flow of surface
waters onto and across Plaintiffs’ properties which is continuing and which has injured
Plaintiffs’ properties. Plaintiffs are entitled to recover from Defendants damages in excess
of the minimum jurisdictional limits of the Court for injuries to their properties. Plaintiffs are
also entitled to a permanent mandatory injunction ordering Defendants to remove the berm
they have constructed on Defendants’ Tract in order to abate the continued diversion or
Plaintiffs’ Original Petition Page 3
impoundment of surface waters flowing across Plaintiffs’ properties.
WHEREFORE, Plaintiffs Cory M. Kozlowski, Jeanne M. Kozlowski, Connie Vollmer,
and Nigel Love III request that Defendants Reyes R. Gomez and Melinda J. Gomez be
cited to appear and that, upon trial of this case, that Plaintiffs have and recover from
Defendants their damages incurred by reason of Defendants’ conduct and that the Court
enter a permanent mandatory injunction mandating that Defendants remove the berm they
have constructed on Defendants’ Tract and enjoining Defendants from constructing in the
future any structure which diverts or impounds the natural flow of surface waters across
properties owned by Plaintiffs. Plaintiffs seek further recovery of their costs of court
incurred herein.
Respectfully submitted,
LAW OFFICES OF MICHAEL E. GAZETTE
By: /s/ Michael E. Gazette
Michael E. Gazette
State Bar No. 07784500
100 E. Ferguson Street, Ste. 1000
Tyler, Texas 75702
Telephone: (903) 596-9911
Telecopier: (903) 596-9922
Email: megazette@suddenlinkmail.com
ATTORNEY FOR PLAINTIFFS
Plaintiffs’ Original Petition Page 4
Preview
Electronically Filed 8/19/2021 5:43 PM Penny Clarkston, Smith County District Clerk Reviewed By: Gina McClung 21-1958-C CAUSE NO. CORY M. KOZLOWSKI, JEANNE M. § JUDICIAL DISTRICT COURT KOZLOWSKI, CONNIE VOLLMER, § and NIGEL LOVE III, § § Plaintiffs § § vs. § IN AND FOR § REYES R. GOMEZ and MELINDA J. § GOMEZ, § § Defendants § SMITH COUNTY, TEXAS PLAINTIFFS’ ORIGINAL PETITION Cory M. Kozlowski, Jeanne M. Kozlowski, Connie Vollmer, and Nigel Love III, Plaintiffs herein, present this Plaintiffs’ Original Petition complaining of Reyes R. Gomez and Melinda J. Gomez, Defendants herein, and would show to the Court as follows: I. Discovery Control Plan 1. Plaintiffs intend to conduct discovery under Level 2, Tex. R. Civ. Proc. 190.3. II. Parties 2. Plaintiffs Cory M. Kozlowski and Jeanne M. Kozlowski are husband and wife residing at 13154 CR 1131, Flint, Texas 75762. Plaintiff Connie Vollmer resides at 12770 CR 1131, Flint, Texas 75762. Plaintiff Nigel Love III resides at 13003 CR 1131, Flint, Texas 75762. 3. Defendants are husband and wife residing at 12769 CR 1131, Flint, Texas 75762, where they may be served with citation by personal service. III. Jurisdiction and Venue 4. The Court has jurisdiction of this suit because the subject matter of the suit is for violation of Tex. Water Code §11.086 as to real property located in Smith County, Texas. The damages sought are within the jurisdictional limits of the Court. Plaintiffs seek monetary relief of $100,000.00 or less and non-monetary relief. 5. Venue is proper is Smith County, Texas, under Tex. Civ. Prac. & Rem. Code §15.002(a)(1) because all of the events or omissions giving rise to Plaintiffs’ claims occurred in Smith County, Texas IV. Factual Background 6. Defendants own a tract of 8.695 acres in the Don Thomas Quevado Grant, A-18, Smith County, Texas (Defendants’ Tract). Plaintiffs Kozlowski own a tract of 7.778 acres in the Don Thomas Quevado Grant adjoining Defendants’ Tract. Plaintiff Vollmer owns a tract of 13.175 acres in the Don Thomas Quevado Grant. Plaintiff Love owns a tract of 8.37 acres in the Don Thomas Quevado Grant adjoining Defendants Grant. 7. The topography of the area is such that rainwater from Plaintiffs’ properties naturally drains across and onto Defendants’ Tract. Approximately one year ago, Defendants built a berm approximately two feet high along their boundary with Plaintiffs and set atop it a small culvert. The berm blocks the drainage of rainwater from Plaintiffs’ properties and results in the water being retained on Plaintiffs’ properties, creating a perpetually wet condition which renders the properties unusable by Plaintiffs and resulting in the deaths of trees and other vegetation growing on those properties from the prevention Plaintiffs’ Original Petition Page 2 of rainwater draining away in the natural course across Defendants’ Tract. Plaintiffs’ properties have been and are being damaged by the diversion of water by Defendants back onto their properties without their consent. Defendants have further expressed their intent to increase the height of the berm and to block the small culvert set on top of it. 8. By letter dated August 24, 2020, Plaintiffs Kozlowski, acting through their counsel, demanded that Defendants take steps to remove the berm so that the natural flow of water across the properties would be restored. However, Defendants have failed and refused to take any steps to remove the berm and to restore the natural flow of water. V. Violation of Tex. Water Code §11.086 9. Tex. Water Code §11.086(a) provides that “No person may divert or impound the natural flow of surface waters in the state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.” Tex. Water Code §11.086(b) grants to a person whose property is injured by an overflow caused by an unlawful diversion or impoundment remedies at law or in equity, including damages caused by the overflow. 10. The construction and maintenance of the berm by Defendants on Defendants’ Tract constitutes an unlawful diversion or impoundment of the natural flow of surface waters onto and across Plaintiffs’ properties which is continuing and which has injured Plaintiffs’ properties. Plaintiffs are entitled to recover from Defendants damages in excess of the minimum jurisdictional limits of the Court for injuries to their properties. Plaintiffs are also entitled to a permanent mandatory injunction ordering Defendants to remove the berm they have constructed on Defendants’ Tract in order to abate the continued diversion or Plaintiffs’ Original Petition Page 3 impoundment of surface waters flowing across Plaintiffs’ properties. WHEREFORE, Plaintiffs Cory M. Kozlowski, Jeanne M. Kozlowski, Connie Vollmer, and Nigel Love III request that Defendants Reyes R. Gomez and Melinda J. Gomez be cited to appear and that, upon trial of this case, that Plaintiffs have and recover from Defendants their damages incurred by reason of Defendants’ conduct and that the Court enter a permanent mandatory injunction mandating that Defendants remove the berm they have constructed on Defendants’ Tract and enjoining Defendants from constructing in the future any structure which diverts or impounds the natural flow of surface waters across properties owned by Plaintiffs. Plaintiffs seek further recovery of their costs of court incurred herein. Respectfully submitted, LAW OFFICES OF MICHAEL E. GAZETTE By: /s/ Michael E. Gazette Michael E. Gazette State Bar No. 07784500 100 E. Ferguson Street, Ste. 1000 Tyler, Texas 75702 Telephone: (903) 596-9911 Telecopier: (903) 596-9922 Email: megazette@suddenlinkmail.com ATTORNEY FOR PLAINTIFFS Plaintiffs’ Original Petition Page 4