The opinion
ACCEPTED
03-16-00521-CV
12435072
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/30/2016 9:30:22 AM
JEFFREY D. KYLE
CLERK
Cause No. 03-16-00521-CV
IN THE THIRD COURT OF APPEALS FILED IN
AUSTIN, TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
8/30/2016 9:30:22 AM
JEFFREY D. KYLE
WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY, Clerk
Appellant,
v.
CCNG DEVELOPMENT CO., L.P.
Appellee.
APPELLEE'S MOTION TO DISMISS FOR WANT OF JURISDICTION
AND MOTION FOR "JUST DAMAGES" UNDER RULE 45
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
On August 5, 2016, the West Travis County Public Utility Agency ("WTCPUA")
filed a Notice of Appeal of a district court Order Granting Motion for New Trial and
Motion to Reinstate Case (the "Order"). WTCPUA claims this Court has interlocutory
jurisdiction under section 51.041(a)(8), Tex. Civ. Pr. &Rem. Code. WTCPUA is wrong.
Section 51.041(a)(8) allows interlocutory appeals only from an order that grants or
denies a plea to the jurisdiction by a governmental agency. The trial court here did no
such thing. The Order merely granted a simple motion seeking procedural reinstatement
of a lawsuit that was erroneously dismissed due to a clerical error. No plea to the
jurisdiction was before the court. The Order does not decide any jurisdictional issues.
Indeed, the trial judge expressly stated at the hearing that he was only ruling on the
"simple motion" to reinstate, and doing so "without prejudice" to the WTCPUA's right to
"urge in a different hearing a motion to dismiss for lack ofjurisdiction."
CCNG Development Co., L.P. ("CCNG") respectfully requests that the Court
dismiss this improper appeal under Tex. R. App. Pro. 42.3. CCNG further requests that
the Court award "just damages" to CCNG pursuant to Tex. R. App. Pr. 45, as this appeal
is frivolous and was filed for purposes of delay only.
BACKGROUND
CCNG filed its Original Petition in this lawsuit on January 16, 2014. WTCPUA
answered on February 14, 2014. WTCPUA's answer included a Plea to the Jurisdiction
that has never been set for hearing. CCNG filed a First Amended Original Petition on
April 8, 2014. See Exhibit 1.
On July 14, 2016, CCNG's lawsuit was erroneously included in a blanket order
dismissing numerous cases for want of prosecution. See E~ibit 2. The dismissal order
violated Travis County Local Rule 8.3, which requires the Court Administrator to provide
notice to the parties and the opportunity to file a motion to retain before a case is
dismissed for lack of prosecution. The Court Administrator did not provide the required
notice prior to the issuance of the blanket order. See Motion for New Trial and Motion to
Reinstate Case, attached as E~ibit 3, pp. 1-2.
CCNG received notice of the dismissal order on July 25, 2016. On July 26,
CCNG filed a Motion for New Trial and Motion to Reinstate Case and promptly set a
hearing on the Motion for August 5, 2016. Id., p. 5.
On the afternoon of August 4, 2016, right before the hearing scheduled for the
next morning, WTCPUA filed a Response in Opposition to Plaintiff's Motion for New
Trial and Motion to Reinstate Case on the Basis of Lack of Subject Matter Jurisdiction.
2
See E~ibit 4. In its Response, WTCPUA argued that there was no longer a live
controversy because on the eve of the hearing WTCPUA had tendered checks in the
amounts of $552,983 and $582,625 to CCNG, which WTCPUA incorrectly claimed was
all of the relief CCNG sought in its First Amended Petition. Id., p. 4.
WTCPUA's mootness argument is incorrect. In its First Amended Petition,
CCNG seeks as damages for breach of contract "the balance due and owed under the
Utility Agreement," including interest. See E~ibit 1 ¶ 53. CCNG also seeks attorneys'
fees. Id. at ¶ 65. The Utility Agreement specifically provides for recovery of both
interest and attorneys' fees in the event of a default. See E~ibit 4, E~ibit B-1
§§ 10.02(b) & 11.01(c) at pp. 21-23. WTCPUA's two payments on the eve of the
hearing include no amounts for interest or attorneys' fees. CCNG's claims for interest
and attorneys' fees remain pending. They have not been adjudicated by the court, and
they have not been paid by WTCPUA. It is therefore indisputable that the partial
payments tendered by WTCPUA on August 4 did not resolve the live controversy
between the parties.
Further, WTCPUA's partial payments do not moot CCNG's claims seeking a
declaratory judgment to resolve a controversy about how to calculate the date when
Reimbursable Costs become due, a declaration that may apply to future Reimbursable
Costs under the Utility Agreement. See E~ibit 1 ¶ 58. Nor do those partial payments
moot CCNG's claims for injunctive relief to enjoin WTCPUA's directors from denying
service to CCNG. See id. ¶ 62.
3
At the August 5, 2016 hearing on CCNG's Motion, District Judge Scott Jenkins
declined to rule upon any arguments regarding jurisdiction. In granting CCNG's Motion
for New Trial and Motion for Reinstate, the Court specifically pointed out that the
jurisdictional issues would need to be addressed at another time:
"This is without prejudice to your opportunity to continue to argue or
reargue, urge in a different hearing a motion to dismiss for lack of
jurisdiction because the case is moot."
See E~ibit 5, Hearing Transcript, at 17 (Emphasis added). The Court had already noted
that the only matter that had been set for hearing that day was "a simple motion," and that
the Court had very limited time available to hear it: "You're set on the 15-minute rocket
docket. You have seven minutes a side." Id. at 4. Although the PUA Defendants
attempted to make jurisdictional arguments at that hearing based on arguments raised for
the first time on the eve of the hearing, the Court deferred consideration of those
arguments for a later time:
"But what I'm saying is they need to have an opportunity to respond to the
evidence on record. It may be when they have an opportunity to
respond to your 215-page filing last night, they might be able to raise a fact
question that essentially shows that it's not entirely moot."
Id. at 9. The District Judge heard argument only on CCNG's Motion for New Trial and
Motion to Reinstate Case and entered an order granting that Motion. See E~ibit 6.
ARGUMENT
I. The appeal should be dismissed because the Order did not grant or deny a
plea to the jurisdiction by WTCPUA.
Section 51.041(a)(8) of the Texas Civil Practice and Remedies Code provides that:
"(a) A person may appeal from an interlocutory order of a district court, county court at
D
law, statutory probate court, or county court that:... (8) grants or denies a plea to the
jurisdiction by a governmental unit as that term is defined in Section 101.001."
An appellate court lacks jurisdiction over an appeal of an interlocutory order that
does not explicitly rule on a plea to the jurisdiction or implicitly rule on a such a plea by
ruling on the merits of the case. Texas Dept ofPub. Safety v. Salazar', No. 03-11-00206-
CV, 2011 WL 1469429, *1 (Tex. App. Austin 2011, no pet.)(order continuing hearing
on plea to jurisdiction and authorizing discovery was not a grant or denial of plea).
This is particularly true where the trial court explicitly defers a ruling on
jurisdictional issues. Tex. Parks &Wildlife Dept v. Rubio, 483 S.W.3d 797, 799 (Tex.
App.—El Paso 2016, no pet.)(where order denied nonjurisdictional motion for summary
judgment and trial judge expressly stated he was staying ruling on jurisdiction, order was
not grant or denial of plea to jurisdiction); City ofGalveston v. Gray, 93 S.W.3d 587, 590
(Tex. App.Houston [14th Dist.] 2002, pet. denied)(where order continued hearing on
plea to jurisdiction and allowed discovery and trial judge specifically stated he was not
ruling on plea to jurisdiction, order was not grant or denial of plea to jurisdiction);
In this case, there was no plea to the jurisdiction before the trial court at the
August 5 hearing. The only matter set for hearing was CCNG's Motion for New Trial
and Motion to Reinstate Case. The trial court's Order does not address any plea to the
jurisdiction or any jurisdictional argument. There is no implicit denial of a plea to the
jurisdiction. The Order does not rule on any part of the merits of the lawsuit. It simply
administratively reinstates a lawsuit that had been dismissed in error, and without notice
to the parties. The trial court explicitly stated that it was granting the Motion "without
of this Motion. There is no good faith argument that any such ruling has occurred in this
lawsuit. The case law provides no support for any argument that a simple order
reinstating a case that had been erroneously dismissed due to a clerical error is somehow
a ruling on jurisdictional arguments. That is especially true where, as here, the trial court
expressly deferred any such ruling on jurisdiction and left that to be decided "in a
different hearing."
Second, WTCPUA's underlying argument —that there is no longer a live
controversy between the parties — is itself a frivolous contention that is directly
contradicted by the pleadings and the contract that WTCPUA attached to its Response.
The Utility Agreement expressly states that CCNG is entitled to Reimbursable Costs plus
interest and attorneys' fees. See E~ibit 4, E~ibit B-1 §§ 10.02(b) & 11.01(c) at pp. 21-
23. The First Amended Petition seeks the balance due and owed under the Agreement,
plus interest and attorneys' fees. WTCPUA cannot, in good faith, claim that its tender of
checks in the amount of $552,983 and $582,625 is full payment of CCNG's breach of
contract claim. Interest and attorneys' fees are still owed, and CCNG's claims for those
amounts remain pending. Further, CCNG also has asserted claims for declaratory
judgment and injunctive relief that have not yet been resolved or addressed by the Court.l
Third, WTCPUA blatantly misrepresented the record in its arguments to the trial
court:
1 CCNG subsequently updated its claims by filing a Second Amended Petition on August 10, 2016. The
Second Amended Petition includes CCNG's claims for interest, attorneys' fees, declaratory relief, and injunctive
relief, as well as additional claims for service and Reimbursable Costs. These additional claims had been discussed
by the parties for many months during the pendency of CCNG's First Amended Petition, see, e.g., Exhibit 7, but
they were not formally added to CCNG's pleading until after the trial court granted CCNG's Motion for New Trial
and Motion to Reinstate Case.
7
....my response is only five pages. 195 pages of it is the contract, which is
in evidence to demonstrate to the Court — it's a very long contract. And
nowhere in that 195 pages is there any entitlefnent under the contract to
attorneys'fees or interest.
See E~ibit 5, Hearing Transcript, at 10 (emphasis added). As already discussed above,
that statement was false on the face of the documents filed by the WTCPUA itself. The
default provision of the Utility Agreement specifically does entitle CCNG to both
attorneys' fees and interest:
Any costs incurred by CCNG or the MUDs, including but not limited to
engineering fees, construction costs, attorney's fees or other legal or
administrative fees, in implementing such curative actions shall be fully
reimbursed by LCRA within thirty(30) days after notice from CCNG or the
MUDs;LCRA shall pay CCNG interest at a rate determined in accordance
with section 10.02(b) on any such reimbursement amouts that it fails to pay
CCNG within thirty (30) days after notice from CCNG or the MUDs.
See E~ibit 4, E~ibit B-1 § 11.01(c) at 23 (emphasis added).
Fourth, WTCPUA was specifically informed of the absence of any good faith
basis for its appeal, and was specifically provided an opportunity to withdraw the Notice
of Appeal. See E~ibit 7. Despite that notice, WTCPUA refused, injecting unnecessary
delay into this controversy and forcing all parties and this Court to address WTCPUA's
meritless arguments.
Fifth, WTCPUA's Notice of Appeal suggests that WTCPUA filed the Notice for
purposes of delay, rather than in any reasonable belief that it would succeed in the appeal.
The Notice of Appeal claims that: "This interlocutory appeal stays all proceedings in the
trial court pending resolution of this appeal," citing Tex. Civ. Prac. &Rem. Code
§ 51.014(b). But section 51.014(c) states that a denial of a plea to the jurisdiction
described in section 51.014(a)(8) "is not subject to an automatic stay under
Subsection(b)" unless the plea to the jurisdiction "is filed and requested for submission or
hearing before the trial court not later than the later of:
(1) a date set by the trial court in a scheduling order entered
under the Texas Rules of Civil Procedure; or
(2) the 180th day after the date the defendant files:
(A) the original answer;
(B) the first other responsive pleading to the plaintiffs
petition; or
(C) if the plaintiff files an amended pleading that alleges a
new cause of action against the defendant and the
defendant is able to raise a defense to the new cause of
action under Subsection (a)(5), (7), or (8), the
responsive pleading that raises that defense.
In this case, there is no scheduling order. WTCPUA filed its original answer on February
14, 2014. See E~ibit 6. WTCPUA did not request submission or a hearing on a plea to
the jurisdiction within 180 days of February 14, 2014, so the stay does not apply.
CCNG has informed counsel for WTCPUA that its interlocutory appeal is contrary
to the case law and that its mootness argument is contrary to the Utility Agreement and
has requested that WTCPUA withdraw its Notice of Appeal. Counsel for WTCPUA has
repeatedly refused to withdraw the Notice.
CONCLUSION.AND PRAYER
CCNG respectfully requests that the Court dismiss WTCPUA's appeal for want of
jurisdiction under Rule 42.3 and award just damages to CCNG under Rule 45 of the
Texas Rules of Appellate Procedure.
E
Respectfully submitted,
GRAVES,DOUGHERTY,HEARON &MOODY,P.C.
401 Congress Avenue, Suite 2200
Austin, TX 78701
(512)480-5680 hone
(512)480-588 Tel c~ier _n
G. Douglas~ilday
State Bar No. 00787834
dkilday@gdhm.com
Robin A. Melvin
State Bar No. 13929590
rmelvin@gdhm.com
David P. Lein
State Bar No. 24032537
dlein@gdhm.com
ATTORNEYS FOR PLAINTIFF CCNG DEVELOPMENT
Co.,L.P.
CERTIFICATE OF CONFERENCE
As indicated above at pp. 8 & 9, and as shown in E~ibit 7, I hereby certify that I
have conferred with counsel for the Appellant, WTCPUA, about the merits of the
foregoing Motion. Counsel for the WTCPUA has indicated that he is opposed to
dismissal of the WTCPUA's appeal.
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore oing document has been
sent to the following counsel listed below, via email, on this~ay of August, 2016:
James N. Rader
Associate General Counsel
LOWER COLORADO RIVER AUTHORITY
Austin, Texas 78767-0220
(512)578-3559
Fax:(512)473-4010
a ames.radernlcra.org
Jose de la Fuente
James Parker
David Klein
LLOYD GOSSELINK ROCHELLE & TOWNSEND,P.C.
816 Congress Avenue, Suite 1900
Austin, Texas 78701
(512)322-5818
Fax:(512)472-0532
idelafuente(a~lglawfinn.com
dklein~,l~lawfirm.corn
jparker(a~lglawfirm.com
11
EXHIBIT 1
4/8/2014 3:25:32 PM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
D-1-GN-14-000163
NO. D-1-GN-14-000163
CAUSE NO.
CO., L.P.,
CCNG DEVELOPMENT CO., L.P., ~ IN THE DISTRICT COURT OF
Plaintiff,
Plaintiff, §
vs. §
WEST TRAVIS COUNTY PUBLIC §
UTILITY AGENCY,
AGENCY,LOWER §
COLORADO RIVER AUTHORITY,AUTHORITY, and § COUNTY, TEXAS
TRAVIS COUNTY,
LARRY FOX,FOX, MICHAEL MURPHY,
MURPHY, §
RAY WHISENANT,
WHISENANT,BILL GOODWIN,GOODWIN, §
ROBERTS, each in his
and SCOTT ROBERTS, §
official capacity as a director of
of the §
WEST TRAVIS COUNTY PUBLIC §
UTILITY AGENCY,
AGENCY,
Defendants.
Defendants. ~ 345th JUDICIAL DISTRICT
PLAINTIFF'S FIRST
PLAINTIFF'S FIRST AMENDED PETITION
AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COURT:
Plaintiff CCNG
CCNG DEVELOPMENT
DEVELOPMENTCO.,
CO., L.P.
L.P.("CCNG")
("CCNG") files
files this action against
this action the
against the
WEST
WEST TRAVIS
TRAVIS COUNTY
COUNTY PUBLIC
PUBLIC UTILITY
UTILITY AGENCY
AGENCY ("WTCPUA"), LOWER
("WTCPUA"), the LOWER
COLORADO RIVER
COLORADO RIVER AUTHORITY ("LCRA"), and LARRY
AUTHORITY ("LCRA"), LARRY FOX,
FOX,MICHAEL MURPHY,
MICHAEL MURPHY,
RAY WHISENANT,
WHISENANT,BILL GOODWIN, ROBERTS,each in his official capacity as
GOODWIN,and SCOTT ROBERTS,
a director
director of
of WTCPUA.
WTCPUA. Plaintiff
Plaintiff seeks
seeks damages
damages for
for breaches
breaches of
of aautility agreement, a
utility agreement,
judgment on the rights,
declaratory judgment rights, status and legal relations of
ofthe parties under that
parties under agreement,
that agreement,
judgment that WTCPUA's
a declaratory judgment WTCPUA's directors violated CCNG's
CCNG's equal protection rights when
equal protection
they denied Plaintiff's request
request for
for "interim"
"interim'" water
water and
and wastewater service, and
wastewater service, injunctive relief
and injunctive
"interim service"
requiring the directors to provide "interim CCNG.
service" to CCNG.
I. DISCOVERY
DISCOVERY CONTROL
CONTROL PLAN
1. Pursuant to
Pursuant to Rule
Rule 190.1,
190.1, Plaintiffs allege that
Plaintiffs allege discovery is
that discovery intended to
is intended be
to be
conducted under Level 3.
II. BACKGROUND
II. BACKGROUND ANDOVERVIEW
AND OVERVIEW
2.
2. This
This lawsuit seeks remedies
lawsuit seeks remedies for at least
for at least two separate breaches
two separate breaches of
of a contract that
contract that
CCNG entered
CCNG into with
entered into with LCRA in
in 1999.
1999. That contract involved
That contract water and
involved water wastewater
and wastewater
infrastructure
infrastructure improvements that were
improvementsthat were constructed and installed
constructed and installed by
by CCNG
CCNGin Western Travis
in Western Travis
County.
County.
3.
3. Pursuant
Pursuant toto its with LCRA,
contract with
its contract LCRA, CCNG constructed
CCNGconstructed and then
and conveyed the
then conveyed the
water and
water wastewater infrastructure
and wastewater improvements toto LCRA.
infrastructure improvements agreed to
LCRAagreed
LCRA. LCRA reimburse CCNG
to reimburse CCNG
for
for the cost of
the cost of those improvements,
those improvements, with 70% paid
with 70% paid at
at the
the time
time of the
the conveyance,
conveyance, and to be
and 30% to be
paid later time
paid atat a later when certain
time when certain conditions were met
conditions were met on each defined
on each defined tract.
tract. The amount to
total amount
The total to
be paid
be paid was specifically
was specifically calculated
calculated by LCRA, and
by LCRA, the 70%portion
and the 70% portion was
was paid by LCRA.
paid by
4.
4. subsequently
LCRA subsequently conveyed
conveyed the water and
the water wastewater improvements
and wastewater improvements to
to
WTCPUA.The
WTCPUA. conveyance to
The conveyance WTCPUA
to WTCPUA either an
was either
was assignment, with
an assignment, WTCPUA
with WTCPUA assuming
assuming
all liabilities
all liabilities owed by
owed LCRA, or
by LCRA, license that
or a license expressly subject
was expressly
that was to all
subject to all terms
terms and conditions
and conditions
that LCRA
that previously
had previously
LCRA had agreed
agreed upon with CCNG.
upon with CCNG.
5.
5. After
After LCRA's conveyance to
LCRA's conveyance to WTCPUA, some of
WTCPUA,some CCNG's rights
of CCNG's rights to remaining
to remaining
reimbursements
reimbursements have and those
matured, and
have matured, are now
amounts are
those amounts now owed. As to
owed. As two tracts
to two known as
tracts known as the
the
'`Los Robles" tract
"Los Robles" "Spanish Oaks
and "Spanish
tract and Section I,"
Oaks Section I," the remaining conditions
the remaining conditions been met,
have been
have and
met, and
the remaining 30%
the remaining 30% inin reimbursements
reimbursementsisisnow
now due and owing
due and owing toto CCNG. CCNGseeks
CCNG. CCNG the
seeks the
contractually agreed -upon sums
contractually agreed-upon sums for
for the remaining 30%
the remaining 30% owed
owed in reimbursement
in reimbursement for both the
for both Los
the Los
Robles Tract
Robles and Spanish
Tract and Spanish Oaks Section I.I.
Oaks Section
6.
6. In
In the
the same
same contract,
contract, LCRA agreed (on
LCRA agreed behalf of
(on behalf itself and
of itself and its successors
its successors and
and
assigns)
assigns) to
to use
use the infrastructure
the infrastructure improvements
improvements built by
built CCNG"to
by CCNG retail treated
provide retail
"to provide water
treated water
2
and wastewater
and wastewater services
services toto customers
customers on
on the
the CCNG Tract." This
CCNGTract." contractual
This contractual obligation
obligation to
to
provide water and
provide water wastewater services
and wastewater services to and its
CCNGand
to CCNG customers is
its customers absolute and
is absolute unconditional.
and unconditional.
7.
7. Following
Following LCRA's conveyance of
LCRA's conveyance of the infrastructure
the infrastructure improvements to
improvements to WTCPUA,
WTCPUA,
those improvements
those improvements are now being
are now being operated by WTCPUA.
operated by Requests for
WTCPUA. Requests for service under CCNG's
service under CCNG's
contract
contract have been and
have been and are being administered
are being administered by WTCPUA.
by WTCPUA.
8.
8. In December
In December 2013, before the
2013, before the filing
filing of
of this Lawsuit, CCNG
this Lawsuit, submitted a request
CCNGsubmitted request to
to
WTCPUA
WTCPUA for
for water
water and wastewater service
and wastewater service toto support very modest
support aa very modest but
but needed expansion of
needed expansion of
CCNG's office. Despite
CCNG's office. contractual
clear contractual
Despite clear obligations
obligations to
to provide service to
provide service WTCPUA
CCNG,WTCPUA
to CCNG,
has stalled and
has stalled then declined
and then to approve
declined to approve CCNG's request even
CCNG's request though it
even though it has approved other
has approved other
requests from
requests from applicants who lack
applicants who CCNG's contractual
lack CCNG's contractual entitlement. In stalling
entitlement. In stalling then
and then
and
declining
declining CCNG's
CCNG's request
request while approving similar
while approving similar requests from others,
requests from WTCPUAhas
others, WTCPUA violated
has violated
both
both (i)
(i) CCNG's contractual
CCNG's contractual right to
right to service,
service, and (ii) CCNG's
and (ii) constitutional
CCNG's constitutional right to
right equal
to equal
protection
protection of the laws
of the under the
laws under the Texas Constitution.
Texas Constitution. CCNG seeks damages
CCNGseeks for breach
damages for of
breach of
contract, as well
contract, as well as declaratory,
as declaratory, injunctive, other relief.
and other
injunctive, and relief.
III. PARTIES
III. PARTIES
9.
9. Plaintiff
Plaintiff CCNG
CCNG isis a Texas partnership
limited partnership
Texas limited with its
with principal
its principal office Tt•avis
in Travis
office in
County, Texas.
County, Texas.
10.
10. Defendant WTCPUA
Defendant WTCPUA isis aa public created by
agency created
utility agency
public utility Hays County,
by Hays Texas,
County, Texas,
the
the City Cave, Texas,
Bee Cave,
City of Bee and West
Texas, and Travis County
West Travis Municipal Utility
County Municipal District No.
Utility District under
No. 5 under
Chapter 572 of
Chapter 572 of the Texas Local
the Texas Government Code.
Local Government Code. Its
Its principal office is
principal office in Travis
is in County,
Travis County,
Texas. WTCPUA
Texas. WTCPUA been served
has been
has and has
served and has answered in this
answered in cause.
this cause.
3
11.
11. Defendant
Defendant LCRA conservation
LCRA isis a conservation and reclamation
and reclamation district
district created by the
created by the Texas
Texas
Legislature.
Legislature. Its principal
Its principal office is
office in Travis
is in Travis County, Texas. LCRA
County, Texas. LCRAhas
has been
been served
served and
and has
has
answered in
answered in this
this cause.
cause.
12.
12. Defendant
Defendant LARRY
LARRY FOX
FOX isis aa director of WTCPUA.
director of WTCPUA. Mr.
Mr. Fox
Fox may
may be
be served
served with
with
process atat 12117
process Bee Cave
12117 Bee Building 3,
Road, Building
Cave Road, 3, Suite 120, Bee
Suite 120, Bee Cave, Texas 78738.
Cave, Texas 78738.
13.
13. Defendant
Defendant MICHAEL
MICHAEL MURPHY
MURPHY isis aa director of WTCPUA.
director of Mr. Murphy
WTCPUA. Mr. Murphy may be
be
served
served with process at
with process at 12117 Bee Cave
12117 Bee Cave Road, Building 3,
Road, Building Suite 120,
3, Suite Cave, Texas
Bee Cave,
120, Bee Texas 78738.
78738.
14.
14. Defendant RAY WHISENANT
Defendant RAY WHISENANTisis aa director of WTCPUA.
director of Whisenant may
Mr. Whisenant
WTCPUA. Mr. may
be
be served
served with process at
with process 12117 Bee
at 12117 Bee Cave Building 3,
Road, Building
Cave Road, 3, Suite 120, Bee
Suite 120, Texas 78738.
Cave, Texas
Bee Cave, 78738.
15.
15. Defendant BILL GOODWIN
Defendant BILL GOODWINisis aa director of WTCPUA.
director of Goodwin may be
Mr. Goodwin
WTCPUA. Mr. be
served with process
served with at 12117
process at 12117 Bee
Bee Cave
Cave Road, Building 3,
Road, Building Suite 120,
3, Suite 120, Bee Cave, Texas
Bee Cave, 78738.
Texas 78738.
16.
16. Defendant SCOTT
Defendant SCOTT ROBERTS
ROBERTSisis aa director of WTCPUA.
director of Mr. Roberts
WTCPUA. Mr. Roberts may be
may be
served with process
served with process at
at 12117
12117 Bee
Bee Cave
Cave Road, Building 3,
Road, Building 3, Suite
Suite 120, Bee Cave,
120, Bee Texas 78738.
Cave, Texas 78738.
JURISDICTION AND
IV. JURISDICTION
IV. VENUE
ANDVENUE
17.
17. This Court
This has jurisdiction
Court has jurisdiction under Article V, § 8 of the
under Article the Texas Constitution,
Texas Constitution, under
under
Sections and 24.008
24.007 and
Sections 24.007 24.008 of
of the Government Code,
Texas Government
the Texas Code, and
and under Chapter 37
under Chapter of the
37 of Texas
the Texas
Civil Practice
Civil Practice and Remedies
and Code. The
Remedies Code. The amount
amount inincontroversy exceeds the
controversy exceeds minimum
the minimum
jurisdictional limits of
jurisdictional limits Court.
this Court.
of this
18.
18. Venue proper in
Venue isis proper in Travis County, Texas
Travis County, under Section
Texas under 15.002 of the
Section 15.002 the Texas Civil
Texas Civil
Practice and Remedies
Practice and Code because
Remedies Code principle
the principle
because the offices WTCPUAand
of WTCPUA
offices of LCRAare
and LCRA are in Travis
in Travis
County, Texas,
County, and because
Texas, and because allall or substantial
or a substantial part of
part events giving
the events
of the rise to
giving rise to the claims
the claims
occurred
occurred inin Travis
Travis County.
County. Venue proper in
also proper
Venue isis also Travis County
in Travis Section 15.035
under Section
County under of the
15.035 of the
Texas Practice and
Civil Practice
Texas Civil Remedies Code
and Remedies because the
Code because the written contract upon
written contract which suit
upon which suit is brought
is brought
4
provides
provides that
that all obligations
all obligations of the
of parties are
the parties are performable
performable in Travis County,
in Travis County, Texas,
Texas, and
and venue
venue
for
for any action arising
any action under the
arising under the contract shall be
contract shall in Travis
be in County, Texas.
Travis County, Texas.
V. BACKGROUND
V. BACKGROUND FACTS
FACTS
A. LCRA's Agreement With
LCRA's Agreement With CCNG
CCNG
19.
19. In
In 1999, CCNGand
1999, CCNG entered into
LCRAentered
and LCRA into a aUtility Acquisition
Facilities Acquisition
Utility Facilities
Agreement. In
Agreement. In 2002,
2002, CCNG LCRAexecuted
and LCRA
CCNGand executed aa First Amendment to
First Amendment to the
the 1999
1999 agreement.
agreement.
The original
The original 1999 agreement and
1999 agreement and the amendment will
first amendment
the first will be
be referred to herein,
referred to collectively,
herein, collectively, as
as
the "Utility
the Agreement."
"Utility Agreement."
20.
20. CCNG
CCNG and agreed that
LCRAagreed
and LCRA would provide
LCRAwould
that LCRA retail water
provide retail water and wastewater
and wastewater
services
services toto customers
customers within
within the "CCNG Tract."
the"CCNG The "CCNG
Tract." The Tract" is
"CCNG Tract" defined term
is aa defined under the
term under the
Utility
Utility Agreement. CCNGTract
The CCNG
Agreement. The Tract includes both (i)
includes both (i) an original 983-acre
an original tract as
983 -acre tract defined in
as defined in the
the
Utility Agreement, plus
Utility Agreement, plus (ii)
(ii) any additional
any additional real property
real within an
property within agreed -upon area
an agreed-upon area (as specified
(as specified
within the
within Agreement) that
Utility Agreement)
the Utility that is subsequently
is subsequently acquired, owned
acquired, owned or controlled
or controlled by CCNGor
by CCNG or its
its
affiliates
affiliates and
and that CCNGsubsequently
that CCNG designates
subsequently designates part of
as part
as of the CCNG Tract.
the CCNG Tract.
21.
21. agreed to
LCRA agreed construct
to construct certain water and
off -site water
certain off-site wastewater facilities
and wastewater facilities
necessary
necessary toto provide retail water
provide retail water and wastewater services
and wastewater services to CCNGTract
the CCNG
to the "Regional
(the "Regional
Tract (the
Facilities"), atat LCRA's
Facilities"), expense.
LCRA's expense.
22.
22. CCNG agreed
agreed toto construct
construct the water and
the water wastewater facilities
and wastewater facilities within the
within the
boundaries
boundaries of
of the CCNGTract
the CCNG necessary
Tract necessary provide retail
toto provide service to
retail service to the CCNGTract
the CCNG Tract (the
(the
"Internal Facilities"),
"Internal Facilities"), and to
expense, and
CCNG's expense,
atat CCNG's to convey
convey the
the phases of the
phases of Internal Facilities
the Internal Facilities to
to
LCRA as
as they were completed.
they were completed. LCRAagreed
LCRA "shall use"
that itit "shall
agreed that water and
the water
use" the wastewater
and wastewater
facilities
facilities installed by CCNG
installed by CCNG "to
"to provide retail treated
provide retail water and
treated water wastewater
and wastewater services
services to
to
5
customers on
customers on the Tract.'" LCRA
CCNGTract.-
the CCNG LCRAalso
also agreed
agreed to
to reimburse
reimburse CCNG for the
CCNGfor "Reimbursable
the "Reimbursable
Costs" of
Costs" of the
the Internal
Internal Facilities
Facilities in
in two parts.
two parts.
23.
23. LCRA agreed
LCRA agreed to
to reimburse
reimburse CCNG for seventy
CCNGfor percent (70%)
seventy percent (70%) of the Reimbursable
the Reimbursable
Costs of
Costs of a particular
particular phase
phase of
of the Internal Facilities
the Internal Facilities on the
on the date which that
date on which that phase is conveyed
phase is conveyed
to LCRA.
to
24.
24. LCRA agreed
LCRA agreed toto reimburse CCNG for
reimburse CCNG for the remaining thirty
the remaining percent (30%)
thirty percent of the
(30%) of the
Reimbursable Costs
Reimbursable Costs of
of the
the same
same phase
phase of
of the Internal Facilities,
the Internal Facilities, plus interest,
plus interest, within thirty
within thirty days
days
following the occurrence
following the occurrence of
of two
two events:
events:
(a)
(a) the CCNG
the CCNG Tract,
Tract, according
according to
to the tax appraisal
the tax appraisal authority,
authority, has an appraised
has an appraised
value equal
value equal to
to at
at least
least ten
ten times
times the
the amount of LCRA's
amount of LCRA's capital expenditures
capital expenditures for the
for the
design, engineering,
design, engineering, permitting,
permitting, construction
construction and/or acquisition
and/or acquisition of those
of those portions on a pro
portions on pro
rata basis
rata basis of
of the
the Regional
Regional Facilities
Facilities and of the
and of the Internal Facilities
Internal Facilities necessary to
necessary to serve the
serve the
CCNG Tract;
CCNG and
Tract; and
(b)
(b) eighty percent
eighty percent(80%)
(80%) of all living
of all living unit equivalents
unit equivalents ("LUEs") projected
("LUEs") projected to
to
be served
be served by
by any
any previously
previously constructed
constructed phases of the
phases Internal Facilities,
the Internal Facilities, purchased from
purchased from
CCNG by
CCNG by LCRA, have
have connected
connected to
to LCRA water and
regional water
LCRAregional and wastewater system (the
wastewater system (the
"West Travis
``West Travis County
County Regional System") and
Regional System") and are
are receiving water and
retail water
receiving retail wastewater
and wastewater
service from
service from LCRA.
25.
25. The Utility
The Utility Agreement defines "Reimbursable
Agreement defines Costs" as
"Reimbursable Costs'' all planning,
as all design,
planning, design,
engineering, construction,
engineering, permitting,legal,
construction,permitting, legal,engineering,
engineering,interest and other
interestand other costs
costs and fees
and fees
reasonably incurred
reasonably incurred and
and related
related toto the construction
the construction of Internal Facilities
the Internal
of the Facilities and
and to the extent
to the extent
permitted by
permitted by Texas
Texas Commission
Commission on Environmental
on Environmental Quality regulations
Quality regulations for municipal utility
for municipal utility
financing of
district financing
district of similar
similar facilities.
facilities.
C.6
B.
B. "Reimbursable Costs" Due
"Reimbursable Costs" and Owing
Due and Owing to
to CCNG
CCNG
26.
26. Between 2002
Between 2002 and
and 2009,
2009, CCNG
CCNGconstructed
constructed 18 separate
18 separate phases of the
phases of Internal
the Internal
Facilities and
Facilities and conveyed them toto LCRA.
conveyed them each case,
In each
LCRA. In case, LCRA reimbursed CCNG
LCRAreimbursed of the
CCNG70% of the
Reimbursable Costs
Reimbursable Costs of
of each
each phase of the
phase of the Internal Facilities
Internal Facilities at the time
at the of each
time of conveyance.
each conveyance.
27.
27. In December
In 2009, CCNG
December 2009, CCNGconveyed the phase
conveyed the of the
phase of Internal Facilities
the Internal Facilities necessary
necessary
to serve
to serve Lots
Lots 11 and
and 2,
2, Block
Block A
Aof
of the
the Los
Los Robles Addition located
Robles Addition within the
located within Tract (the
CCNGTract
the CCNG (the
"Los Robles
``Los Robles Addition")
Addition") to
to LCRA. LCRA
LCRAreimbursed
reimbursed CCNG for 70%
CCNGfor 70%of
of the total Reimbursable
the total Reimbursable
Costs of
Costs of those Internal Facilities,
those Internal Facilities, which LCRA
which LCRAdetermined were $1,876,085.84.
determined were $1,876,085.84.
28.
28. On March 2, 2010,
March 2, 2010, CCNG
CCNGsent
sent a letter
letter to
to LCRA requesting
LCRArequesting that LCRA
that reimburse
LCRAreimburse
CCNG for
CCNG for the
the remaining
remaining 30% of the
the Reimbursable
Reimbursable Costs of
Costs the Los
of the Los Robles Internal
Addition Internal
Robles Addition
Facilities, totaled $552,983,
which totaled
Facilities, which plus interest.
$552,983, plus interest.
29.
29. As of
of March 2010, the
March 2010, the Travis Central Appraisal
Travis Central Appraisal District's final tax
District's final appraisal value
tax appraisal value
for the
for the CCNG
CCNGTract
Tract was
was $292,071,360.
$292,071,360. Also as of
Also as March 2010,
of March LCRA's capital
2010, LCRA's expenditures
capital expenditures
for the
for the Regional
Regional Facilities
Facilities and Internal Facilities
and Internal Facilities necessary
necessary serve the
toto serve CCNGTract
the CCNG were
Tract were
$13,231,763. Thus,
$13,231,763. Thus, the
the appraised
appraised value
value of
of the CCNGTract
the CCNG was in
Tract was excess of
in excess 10 times
of 10 times LCRA's
LCRA's
capital expenditures
capital expenditures toto serve
serve the
the CCNG
CCNGTract,
Tract, and the first
and the requirement
first requirement for
for the payment of
the payment the
of the
remaining 30%
remaining 30% of
of the
the Reimbursable
Reimbursable Costs for the
Costs for the Los Robles Addition
Los Robles Internal Facilities
Addition Internal Facilities had
had
been met.
been met.
30.
30. CCNG's March
CCNG's March 2,
2, 2010 letter provided
2010 letter documentation
provided documentation to LCRA
to demonstrating
LCRAdemonstrating
that more
that more than
than 80% of
of the
the LUEs
LUEs projected to be
projected to be served
served by
by the Los Robles
the Los Robles Addition Internal
Addition Internal
Facilities had
Facilities had been
been connected to the
connected to the West
West Travis System and
Regional System
County Regional
Travis County and were receiving
were receiving
retail water
retail and wastewater
water and from LCRA.
wastewater from LCRA. So the second
So the requirement
second requirement for the
for the payment of the
payment of the
remaining 30%
remaining 30% of
of the
the Reimbursable
Reimbursable Costs for the
Costs for Los Robles
the Los Addition also
Robles Addition also had
had been met.
been met.
7
31.
31. LCRA did
did not reimburse CCNG
not reimburse for the
CCNGfor remaining 30%
the remaining 30% of
of the Reimbursable
the Reimbursable
Costs of
Costs of the Los Robles
the Los Addition Internal
Robles Addition Internal Facilities
Facilitiesatatthat
that time. WTCPUAalso
time. WTCPUA also has
has not
not
reimbursed
reimbursed CCNG
CCNG for
for these
these costs.
costs.
32.
32. Subsequent
Subsequent toto the
the filing of this
filing of Lawsuit, an
this Lawsuit, additional
an additional section of
section of the
the CCNG
CCNGTract
Tract
surpassed
surpassed the
the thresholds set forth
thresholds set forth inin the
the Utility
Utility Agreement trigger CCNG's
Agreement toto trigger CCNG's right
right to
to the
the
remaining 30% of
remaining 30% of Reimbursable
Reimbursable Costs. In Spanish
Costs. In Spanish Oaks 1, more
Section 1,
Oaks Section more than
than 80% of the
80% of the LUEs
projected toto be
projected be served by the
served by Spanish Oaks
the Spanish Section 11 Facilities
Oaks Section Facilities have been connected
have been connected to
to the
the West
West
Travis County Regional
Travis County Regional System
System and are receiving
and are receiving retail
retail water and wastewater
water and from LCRA.
wastewaterfrom The
LCRA. The
amount of $582,625,
amount of plus interest
$582,625, plus interest is owed for
is now owed for the Spanish Oaks
the Spanish Section 11 Internal
Oaks Section Facilities,
Internal Facilities,
representing the remaining
representing the remaining 30% owed inin Reimbursable
30% owed Reimbursable Costs. Although LCRA
Costs. Although LCRAhas previously
has previously
reimbursed CCNGfor
reimbursedCCNG for the initial
the initial 70%
70% owed Reimbursable
in Reimbursable
owed in Costs, neither LCRA
Costs, neither nor
LCRA nor
WTCPUAhave
WTCPUA have reimbursed CCNGfor
reimbursed CCNG the remaining
for the 30% owed
remaining 30% owed in Reimbursable
in Reimbursable Costs.
Costs.
C.
C. Transfer
Transfer of System to
of System WTCPUA
to WTCPUA
33.
33. March 2012,
In March
In 2012, LCRA transferred
LCRAtransferred to WTCPUAthe
to WTCPUA right to
the right manage and
to manage control
and control
the Travis County
West Travis
the West Regional System
County Regional System and
and to set rates
to set for services
rates for from the
services from the System pursuant
System pursuant
to Utilities
to a Utilities Installment
Installment Purchase Agreement between
Purchase Agreement LCRAand
between LCRA WTCPUA
and WTCPUA as of
dated as
dated January
of January
17, 2012 (the
17, 2012 (the "Purchase Agreement").
"Purchase Agreement"). Purchase Agreement
The Purchase
The Agreement identified
identified Utility
the Utility
the
Agreement
Agreement asas an infrastructure
an infrastructure agreement thatrequired
agreementthat consentofof aa third
requiredthetheconsent party to
third party the
to the
assignment
assignment of the rights
of the under the
rights under the contract to LCRA.
contract to
34.
34. The Purchase
The Agreement provided
Purchase Agreement provided that, if the
that, if the required consent were
required consent obtained,
not obtained,
were not
then
then to the extent
to the the contact
extent the was not
contact was assignable
not assignable or not
or transferable
not transferable because of
because of the required
the required
consent,
consent, "this Agreement shall
"this Agreement shall not constitute
not constitute an assignment
an assignment or transfer of
or transfer of those contracts ifif such
those contracts such
an assignment
an assignment or transfer
or transfer would constitute
would constitute breach thereof
aa breach thereof or violation
or a violation of any
of law ; absent
any law, absent
8
Required Consent."
Required Consent." The
The Purchase
Purchase Agreement further provided
Agreement further provided that: "In the
that: "In the event Required
event aa Required
Consent pertaining
Consent pertaining toto infrastructure
infrastructure included
included inin the Assets isis not
the Assets not obtained by the
obtained by Operations
the Operations
Transfer Date,
Transfer Date, this
this Agreement shall constitute
Agreement shall constitute aa license
license from LCRA to
from LCRA to [WTCPUA] for
[WTCPUA] for
[WTCPUA]toto possess
[WTCPUA] possess and
and use
use said
said infrastructure
infrastructure subject otherwisetoto the
subject otherwise terms of
the terms the
of the
Agreement by which
Agreement by LCRA obtained
which LCRA rights toto such
obtained rights such infrastructure."
infrastructure."
D. Request for
Request for CCNG's
CCNG's "Consent,"
"Consent," With
With Proposal
Proposal to Fundamentally
to Fundamentally Change the
Change Deal
the Deal
35.
35. and WTCPUA
LCRA and sought CCNG's
WTCPUAsought CCNG's consent an assignment
consent toto an assignment of LCRA's
of LCRA's
rights under
rights under the
the contract
contract toto WTCPUA.
WTCPUA.But
But rather
rather than assigning all
simply assigning
than simply all rights
rights and liabilities
and liabilities
to WTCPUA,
to WTCPUA,the
the proposed "consent" document
proposed "consent'' document included
included proposed changes to
proposed changes to the substance of
the substance of
the Utility
the Utility Agreement
Agreement that
that would
would have fundamentally
have fundamentally changed bargain CCNG
the bargain
changed the had made
CCNGhad with
made with
LCRA. Among
Among other
other proposed
proposed changes,
changes, the
the draft consent to
draft consent assignment purported
to assignment to (i)
purported to reduce
(i) reduce
CCNG's entitlement
entitlement to
to water
water and
and wastewater
wastewater services, and (ii)
services, and (ii) eliminate obligation
WTCPUA's obligation
eliminate WTCPUA's
to pay
to pay Reimbursable
Reimbursable Costs. CCNG
Costs. CCNGhas
has never
never agreed
agreed to reduce its
to reduce contractual
its contractual entitlement
entitlement to
to
services, and
services, and CCNG
CCNG isis not interested inin doing
not interested doing so.
so. Further, CCNGhas
Further, CCNG agreed to
never agreed
has never eliminate
to eliminate
its right
its right to
to receive
receive the
the remaining
remaining 30%
30% of Reimbursable
of Reimbursable Costs that
Costs owed, and
are owed,
that are will become
and will become
owed, toto CCNG, and
owed, and CCNG
CCNG isis not
not interested
interestedinin doing For those
doingso.so. For reasons,
those reasons, CCNG has not
CCNGhas not
executed the
executed the document that purported
document that purported toto make
make those changes while
those changes consenting
also consenting
while also toto the
the
assignment to
LCRA's assignment
LCRA's WTCPUA.~
to WTCPUA.'
36.
36. In early
In early 2013,
2013, representatives
representatives WTCPUAtook
of WTCPUA
of took the position
the position that
that it would not
it would not
approve service
approve service toto CCNG
CCNG unless agreed toto its
unless CCNG agreed its request reduction
for reduction
request for of CCNG's
of CCNG's
contractual rights.
contractual rights. On
On March
March 20,
20, 2013,
2013, CCNG communicated its
CCNGcommunicated its concerns WTCPUA's
about WTCPUA's
concerns about
position toto WTCPUA's
position WTCPUA's counsel.
counsel. Attached
Attached as
as "Exhibit true and
A"isis aa true
"Exhibit A" correct copy
and correct of that
copy of letter,
that letter,
~ CCNG and
CCNG and WTCPUA
WTCPUA have
have engaged
engaged inin extensive
extensive negotiations,
negotiations, from March 2012
from March 2012 to March 2013,
to March over these
2013, over these
and other issues.
and other issues. In
In those
those negotiations,
negotiations, CCNG
CCNG has
has articulated
articulated to
to WTCPUA
WTCPUA the
the concessions
concessions it
it was
was willing
willing to
to make.
make.
But those
But those negotiations
negotiations have never resulted
have never resulted in meeting of
in a meeting of the minds among
the minds among the parties.
the parties.
9
~~
from Armbrust (representing
David Armbrust
from David (representing CCNG)
CCNG)to
to Ms. Lauren Kalisek
Ms. Lauren (representing
Kalisek (representing WTCPUA).
WTCPUA).
Among other
other things, Mr. Armbrust's
things, Mr. Armbrust's letter
letter indicates
indicates that
that CCNG
CCNGwould
would be
be willing
willing to
to make
make some
some
concessions, but not
concessions, but concessions
the concessions
not the requested by
requested WTCPUA.
by WTCPUA.
37.
37. WTCPUA has never
WTCPUA has never responded Mr. Armbrust's
responded toto Mr. March 20,
Armbrust's March 20, 2013 letter.
2013 letter.
E.
E. Failure
Failure to Pay "Reimbursable
to Pay Costs" Due
"Reimbursable Costs" Owing to
and Owing
Due and to CCNG
CCNG
38.
38. Neither
Neither LCRA nor WTCPUA
LCRA nor WTCPUAhas reimbursed
has reimbursed CCNG for
CCNG for the remaining 30% of
the remaining of
the Reimbursable
the Reimbursable Costs
Costs of the Los
of the Los Robles
Robles Lot
Lot 1, Block A
1, Block Internal Facilities.
A Internal Facilities. Further, neither
Further, neither
LCRA
LCRA nor WTCPUAhas
nor WTCPUA has reimbursed
reimbursed CCNG for the
CCNGfor remaining 30%
the remaining Reimbursable
the Reimbursable
30% of the Costs
Costs
of the Spanish
of the Section II Internal
Oaks Section
Spanish Oaks Internal Facilities.
Facilities.
39.
39. The
The 2013 appraised value
final appraised
2013 final value of
of the CCNG
the CCNG Tract
Tract was
was $392,185,036 —greatly
$392,185,036 — greatly in
in
excess of
excess the triggering
of the triggering threshold set forth
threshold set in the
forth in the Utility Agreement to
Utility Agreement require the
to require remaining 30%
the remaining
Reimbursable
inin Reimbursable Costs to
Costs to be paid (i.e.,
be paid (i.e., ten
ten times $13,231,763.77
LCRA's $13,231,763.77
times LCRA's in capital
in expenditures
capital expenditures
to serve the
to serve CCNGTract).
the CCNG Further, as
Tract). Further, discussed above,
as discussed above, for both the
for both Los Robles
the Los Tract and
Robles Tract and
Spanish
Spanish Oaks Section 1,
Oaks Section or more
1, 80% or the LUEs
more of the LUEs projected to be
projected to be served for those
served for those phases have
phases have
connected
connected to
to the WTCPUA
the WTCPUA system,
system, and are receiving
and are water and
receiving water wastewater service.
and wastewater service.
40.
40. The remaining
The remaining 30% of Reimbursable
of Reimbursable Costs due and
Costs isis due owing to
and owing to CCNG both
for both
CCNGfor
the Los Robles
the Los Tract and
Robles Tract and Spanish Oaks Section
Spanish Oaks Section I.I. That obligation
That obligation binding on
is binding
is on LCRA's
LCRA's
successors
successors and
and assigns.
assigns. The failure and
The failure refusal to
and refusal to pay
pay those
those amounts constitutes
owed constitutes
amounts owed breach
a breach
of
of the
the Utility Agreement.
Utility Agreement.
F.
F. Refusal
Refusal to
to Provide
Provide CCNG
CCNG With Service
With Service
41.
41. As noted above, Section
noted above, 11.01 of
Section 11.01 of the Utility Agreement
the Utility provides: "Following
Agreement provides: "Following the
the
completion of construction
completion of construction on
on and,
and, if appropriate,
if appropriate, conveyance by
the conveyance
the CCNGof the
by CCNG Regional
the Regional
Facilities
Facilities and
and the Internal
the Internal Facilities
Facilities LCRA, LCRA
to LCRA,
to shall use
LCRA shall use the Regional Facilities
the Regional Facilities and
and
10
10
Internal Facilities
Internal Facilities toto provide
provide retail
retail treated water and
treated water wastewater services
and wastewater services to
to customers on the
customers on the
CCNG Tract."
CCNG Tract." That obligation is
That obligation is also binding on
also binding on LCRA's successors and
LCRA's successors assigns.
and assigns.
42.
42. On December 23, 2013,
December 23, 2013, CCNG
CCNGfiled
filed aa request for service
request for service with WTCPUA.
with WTCPUA.
CCNG requested
CCNG requested wastewater 10,405 square
serviceforfor 10,405
wastewaterservice square feet
feet of
of office space in
office space in two existing
two existing
buildings that
buildings that already
already receive
receive water
water service
service from WTCPUA.CCNG
from WTCPUA. CCNGalso requested water
also requested water and
and
wastewater
wastewater servicefor
service for 6,960
6,960 square
square feet of office
feet of space inin two
office space proposed buildings.
two proposed CCNG
buildings. CCNG
requested two
requested two additional
additional LUEs
LUEs of water service
of water service and six LUEs
and six LUEs of service for
wastewater service
of wastewater the
for the
office expansion.
office expansion. An
An "LUE"
"LUE" or
or Living
Living Unit Equivalent is
Unit Equivalent is the of water
amount of
the amount water or wastewater
or wastewater
service that
service that WTCPUA
WTCPUAhas
has determined
determined isis sufficient to serve
sufficient to single-family residence.
serve aasingle-family residence.
43.
43. CCNG filed
CCNG filed isis Original Petition in
Original Petition in this
this cause on January
cause on January 16,
16, 2014, complaining of
2014, complaining of
the failure
the failure to pay Reimbursable
to pay Reimbursable Costs owed.
Costs owed.
44.
44. On about
about February
February 12
12 and
and again on February
again on 17, 2014,
February 17, in-house
WTCPUA's in-house
2014, WTCPUA's
engineer told
engineer told CCNG's
CCNG's engineer
engineer that because of
that because of the
the recently-filed WTCPUAstaff
lawsuit, WTCPUA
recently -filed lawsuit, had
staff had
been instructed
been instructed not
not toto process
process any
any CCNG requests
CCNGrequests for services.
for services. WTCPUA's told
counsel told
WTCPUA's counsel
CCNG's counsel
CCNG's that no
counsel that no such
such instruction
instruction been given,
had been
had and that
given, and that the request for
service request
the service for
CCNG's office expansion would
office expansion would be processed.
be processed.
45.
45. As
As WTCPUA's
WTCPUA's February
February 20, 2014 board
20, 2014 meeting was
board meeting approaching,
was approaching, CCNG
CCNG
noticed that
noticed that itsits service request was
service request not on
was not the agenda.
on the colmsel raised
CCNG's counsel
agenda. CCNG's raised this with
this with
WTCPUA's counsel. WTCPUA's
WTCPUA's counsel. counsel stated
WTCPUA's counsel stated that
that CCNG's December 23,
CCNG's December 23, 2013 service
2013 service
request was
request was somehow
somehow submitted
submitted too
too late
late to
to be
be placed on the
placed on agenda of
the agenda WTCPUA
of WTCPUA February 20,
February 20,
2014 Board
2014 Board meeting.
meeting. WTCPUA's
WTCPUA'scounsel
counsel did
did not indicate why
not indicate request submitted
why aa request fifty-nine
submitted fifty-nine
(59) days
(59) days prior to the
prior to the February 20, 2014
February 20, 2014 board meeting was
board meeting insufficient.
was insufficient.
11
11
46.
46. CCNG's request
CCNG's request for
for service
service was
was placed on the
placed on the agenda of WTCPUA's
agenda of March 20,
WTCPUA's March 20,
2014 board
2014 board meeting. In the
meeting. In the days prior to
immediately prior
days immediately to the March 20,
the March 2014 board
20, 2014 meeting, CCNG
board meeting, CCNG
was provided with
was provided with aa draft service availability
draft service availability letter
letter for the CCNG
for the office expansion
CCNG office expansion request. The
request. The
draft service
draft service availability
availability letter
letter stated water and
that water
stated that wastewater would
and wastewater would not
not be
be made available
made available to
to
CCNG for
CCNG for the
the office
office expansion
expansion until
until WTCPUA
WTCPUAcompletes construction
completes construction and begins
and operations of
begins operations of
aa new
new wastewater
wastewater treatment
treatment plant, called the
plant, called the Bohl's
Bohl's Tract
Tract Wastewater Treatment Plant.
Wastewater Treatment Plant.
Completion of
Completion the new
of the new wastewater treatment plant
wastewater treatment plant is currently scheduled
is currently scheduled for summer 2014.
for summer 2014
47.
47. The Utility
The Utility Agreement does not
Agreement does condition
not condition service
service toto the CCNGTract
the CCNG on
Tract on
completion ofof that
completion that project
project or
or any
any other
other project.
project. Under the
Under the terms of the
terms of Utility Agreement,
the Utility Agreement,
WTCPUA
WTCPUAisis not
not entitled
entitled to deny
to deny service
service to CCNGbased
to CCNG upon the
based upon timing of
the timing completing
of completing a
wastewater treatment
wastewater plant.
treatment plant.
48.
48. Prior to
Prior to the
the March
March 20,
20, 2014 board meeting,
2014 board raised these
CCNGraised
meeting, CCNG these concerns with
concerns with
WTCPUA's General Manager. WTCPUA's
General Manager. WTCPUA's General Manager informed
General Manager CCNGthat
informed CCNG that it should
it should
request "interim
request "interim service"
service" from
from WTCPUA
WTCPUA for
for the CCNG
the CCNG office expansion —
office expansion that is,
—that service that
is, service that
would
would begin immediately, before
begin immediately, the Bohl's
before the Bohl's Tract
Tract Wastewater Treatment Plant
Wastewater Treatment Plant is completed and
is completed and
begins operating,
begins operating, atat the
the Board
Board meeting.
meeting. CCNG told the
CCNGtold the General orally and
Manager, orally
General Manager, in writing,
and in writing,
that itit would
that request that
would request that the
the service availability letter
service availability letter be amended toto allow
be amended "interim service."
allow "interim service."
49.
49. At
At its
its March
March 20,
20, 2014
2014 meeting,
meeting, WTCPUA's took up
Board took
WTCPUA's Board three requests
up three for
requests for
"interim service"
"interim service" before
before itit took
took up
up CCNG's
CCNG's request interim service.
for interim
request for In two
service. In two of those three
of those three
cases, WTCPUA's
cases, WTCPUA's contract
contract with
with the requestor expressly
the requestor expressly provided that the
provided that requestor would
the requestor would
receive no
receive no water
water and
and wastewater service from
wastewater service from WTCPUA until completion
WTCPUAuntil completion of
of the
the Bohl's Tract
Bohl's Tract
Wastewater TreatmentPlant.
Wastewater Treatment Plant. The
The third WTCPUA
third WTCPUA contract provided that
contract provided that an building
office building
an office
could not
could not be
be occupied
occupied until
until the
the earlier
earlier of
of the completion of
the completion of the Bohl's Tract
the Bohl's Wastewater
Tract Wastewater
12
Treatment
Treatment Plant
Plant or
or July 1, 2014.
July 1, Despite these
2014. Despite restrictions
these restrictions on
on the
the part of these
part of these other
other applicants,
applicants,
WTCPUA Board voted
WTCPUA Board voted toto approve total of
approve aa total approximately
of approximately 61
61 LUEs of
of "interim
``interim service"
service'" for
for
these three
these requestors.
three requestors.
50.
50. When
When CCNG's
CCNG's request
request for
for service was reached
service was reached on
on the
the agenda, one of
agenda, one of the
the
WTCPUABoard
WTCPUA members asked
Board members asked ifif CCNG was the
CCNGwas applicant that
the applicant that had
had not
not yet
yet finalized
finalized a consent
consent
to assignment
to assignment agreement with WTCPUA.
agreementwith When he
WTCPUA. When he was told that
was told CCNGindeed
that CCNG indeed was
was that
that
applicant, he immediately
applicant, he immediately moved table CCNG's
movedtoto table CCNG's request
request for
for service.
service. The WTCPUABoard
The WTCPUA Board
then went into
then went executive
into executive session. After the
session. After the executive session, Board
executive session, member Murphy
Board member made a
Murphy made
motion toto approve
motion interim service
approve interim the CCNG
service toto the office expansion.
CCNG office expansion. The on this
vote on
The vote motion was
this motion was 2
to 2,
to 2, so did not
so itit did not pass.
pass.
51.
51. As a result
As of the
result of the action
action of WTCPUA
of WTCPUA board, been denied
has been
CCNGhas
board, CCNG service
denied service
despite
despite the
the fact
fact that CCNGhas
that CCNG an express
has an contractual
express contractual entitlement
entitlement to
to service under the
service under the Utility
Utility
Agreement. WTCPUAboard
The WTCPUA
Agreement. The board has
has granted from other
requests from
granted requests applicants
other applicants who lack the
who lack the
contractual
contractual entitlement that CCNG
entitlement that CCNG has. Indeed, the
has. Indeed, applicants have
other applicants
the other have specific contractual
specific contractual
limitations
limitations allowing
allowingWTCPUA service until
deny service
WTCPUAtotodeny until the completion
the completion ofof the Tract
Bohl's Tract
the Bohl's
Wastewater Treatment
Wastewater TreatmentPlant. denying service
In denying
Plant. In CCNG,the
to CCNG,
service to actions of
the actions WTCPUA,acting
of WTCPUA, acting
through
through its
its board, have caused
board, have caused delay
delay and
and added expense toto CCNG's
added expense construction
CCNG's construction project.
project.
CAUSESOF
VI. CAUSES
VI. ACTION
OF ACTION
Breach of Contract
Breach of Contract
52.
52. Plaintiff incorporates
Plaintiff by reference
incorporates by reference the allegations
the allegations in paragraphs
in through 36.
paragraphs 12 through 36.
53.
53. LCRA and
and WTCPUA have breached
WTCPUAhave breached the
the Utility Agreement by
Utility Agreement by its
its failure to
failure to
reimburse CCNG
reimburse CCNGfor the remaining
for the 30% of
remaining 30% of the Reimbursable
the Reimbursable Costs
Costs of
of (i) the Los
(i) the Robles
Los Robles
13
13
Addition Internal
Addition Internal Facilities, and(ii)(ii) Spanish
Facilities,and OaksSection
SpanishOaks SectionI, I, plus
plus interest. seeks as
CCNGseeks
interest. CCNG as
damages
damages the balance due
the balance due and owed to
and owed CCNGunder
to CCNG under the Agreement.
Utility Agreement.
the Utility
54.
54. LCRA and
LCRA WTCPUAhave
and WTCPUA have breached Utility Agreement
the Utility
breached the Agreement by failing to
by failing provide
to provide
water wastewater service
and wastewater
water and customers within
service toto customers the CCNG
within the Tract upon
CCNG Tract upon request. CCNGseeks
request. CCNG seeks
as damages
as damages the
the value the service
value of the service due
due and
and owing
owing under
under the Utility Agreement,
the Utility the additional
Agreement, the additional
expense caused
expense by the
caused by denial of
the denial of interim service, and
interim service, other damages.
and other damages.
55.
55. Section 12.02
Section 12.02 of
of the
the Utility
Utility Agreement
Agreement provides
provides that:
that: "In
"In the
the event LCRAfails
event LCRA fails or
ar
refuses toto timely
refuses timely comply
comply with obligations oror isis unable
LCRA's obligations
with LCRA's unable toto do
do so
so as result of
as aa result LCRA's
of LCRA's
acts or
acts or failure
failure to
to act,
act, CCNG
CCNG shall
shall have the following
have the following remedies: (i) to
remedies: (i) to enforce
enforce this Agreement by
this Agreement by
writ
writ of
of mandamus,
mandamus, specific performance,
specific performance, injunction, or
injunction, or any other remedy
any other available
remedy available atat law
law or in
or in
equity in
equity in a court
court of
of competent jurisdiction
competent jurisdiction including
including but limited to
not limited
but not to an action for
an action for damages.
damages.
CCNG requests
CCNG requests that
that the
the court
court require and/or WTCPUA,by
require LCRA and/or by issuance writ of
issuanceofof aa writ of
mandamus or specific
mandamus or specific performance
performance to immediately comply
to immediately with their
comply with duties to
their duties to reimburse CCNG
reimburse CCNG
and provide
and the CCNG
provide the CCNG Tract
Tract with water and
with water wastewater
and wastewater service.
service. CCNG seeks all
CCNGseeks such
all such
remedies.
remedies.
Declaratory
Declaratory Judgment: WTCPUA
Judgment: WTCPUA
56.
56. Plaintiff incorporates
Plaintiff incorporates by
by reference allegations
the allegations
reference the in paragraphs
in through 36.
paragraphs 12 through 36.
57.
57. A dispute
dispute has
has arisen
arisen among
among the
the parties as toto LCRA's
parties as or WTCPUA's
LCRA's or obligation
WTCPUA's obligation to
to
reimburse CCNG
reimburse CCNG for
for 30% of
of the
the Reimbursable
Reimbursable Costs
Costs of the phases of the
the phases Internal Facilities
the Internal Facilities that
that
CCNG has
CCNG has built or will
built or build pursuant
will build pursuant toto the Utility Agreement.
the Utility This dispute
Agreement. This would be
dispute would be resolved
resolved
by a declaratory
by declaratory judgment entered
judgment pursuant to
entered pursuant to the
the Uniform Declaratory
Uniform Declaratory Judgments Act,
Judgments Chapter
Act, Chapter
37 of
37 of the
the Texas
Texas Civil
Civil Practice
Practice and
and Remedies Code, construing
Remedies Code, construing the
the Utility Agreement.
Utility Agreement.
14
14
58.
58. Plaintiff
Plaintiff asks
asks the
the Court
Court to
to declare
declare that
that the
the Utility
Utility Agreement
Agreement obligates
obligates LCRA
LCRAand
and
WTCPUA
WTCPUA toto reimburse CCNG for
reimburse CCNG for 30% of
of the
the Reimbursable
Reimbursable Costs of a particular
Costs of particular phase
phase of
of the
the
Internal
Internal Facilities
Facilities on
on the
the first
first date
date that:
that: (1)
(1) the
the appraised
appraised value
value of
of the
the CCNG
CCNGTract
Tract is
is in
in excess
excess
of ten times
of ten times the
the amount
amount of
of the capital expenditures
the capi
This text is long and has been trimmed here. Open the source document for the complete record.