# West Travis County Public Utility Agency, on Behalf of Itself and Its Directors, Larry Fox, Michael Murphy, Ray Whisenant, Bill Goodwin, and Scott Roberts, in Their Official Capacities v. CCNG Development Co., L.P.

> Texas Court of Appeals, 3rd District (Austin) · August 30, 2016

URL: https://www.frixlaw.com/law-library/cases/4031177

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** August 30, 2016
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4031177

## Opinion text

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 capital expenditures that
that LCRA
LCRAor
or WTCPUA
WTCPUAhas
has made
made on
on the
the

Regional
Regional Facilities
Facilities and
and Internal
Internal Facilities
Facilities necessary
necessary toto provide
provide retail
retail water
water and
and wastewater
wastewater

service to the
service to CCNGTract;
the CCNG Tract; and (2) 80%
and (2) 80% of all
all LUEs
LUEs projected
projected to
to be
be served
served by
by that
that same
same phase
phase

of the Internal
of the Internal Facilities
Facilities have
have connected
connected to the West
to the West Travis
Travis County
County Regional
Regional Systems.
Systems.

Declaratory
Declaratory Judgment
Judgment and
and Injunctive
Injunctive Relief:
Relief: WTCPUA
WTCPUA Directors
Directors

59.
59. Plaintiff incorporates
Plaintiff incorporates by
by reference the allegations
reference the allegations in
in paragraphs
paragraphs 12 through 36.
12 through 36.

60.
60. publicly -owned utility
A publicly-owned utility may
may not unreasonably
not unreasonably discriminate
discriminate inin the provision
the provision of
of

utility service.
utility service. The constitutional
The constitutional guarantee
guarantee ofofequal protection ofofthe
equal protection the laws,
laws, TEx. Cot~is`r. art.
TEx.CONST. art. I,I,

§§ 3,
3, is violated unless
is violated unless the
the utility service is
utility service available
is available to
to all
all persons similarly
persons similarly situated upon the
situated upon the

same
same terms and conditions.
terms and WTCPUA'sDirectors
conditions. WTCPUA's Directors violated
violated CCNG's constitutional
CCNG's constitutional right to
right equal
to equal

protection when
protection when they
they denied
denied "interim
``interim service"
service" to
to CCNG
CCNG— which has
—which contractual
has aa contractual right
right to
to

service upon
service upon request
request — whilegranting
—while granting`'interim
"interimservice"
service"toto requestors
requestors who
who do
do not
not have
have that
that

contractual
contractual right
right and applied for
and applied for larger
larger quantities
quantities of service.
of service.

61.
61. Plaintiff asks
Plaintiff asks the
the Court
Court to
to declare
declare that
that WTCPUA's
WTCPUA's Directors
Directors violated
violated CCNG's
CCNG's

constitutional right to
constitutional right to equal protection when
equal protection when they
they denied
denied "interim
"interim service"
service" toto CCNG
CCNG—which
— has
which has

a contractual
contractual right
right to
to service
service upon
upon request
request — while granting
—while granting "interim
"interim service"
service" to
to requestors
requestors who

do not
do not have that contractual
have that contractual right
right and applied for
and applied for larger quantities
larger quantities of
of service.
service.

62.
62. Plaintiff
Plaintiff also
also asks
asks the
the court
court toto enjoin
enjoin WTCPUA's directors from
WTCPUA's directors denying ``interim
from denying "interim

service" to
service" to CCNG.
CCNG.

15
15
VII. NO
VII. NOGOVERNMENTAL
GOVERNMENTALIMMUNITY
IMMUNITY

63.
63. Section
Section 271.152
271.152 of the Texas
of the Texas Local
Local Government Code and
Government Code and Section 113.002 of
Section 113.002 of the
the

Civil Practice
Texas Civil
Texas Practice &Remedies Code both
& Remedies Code both waive and LCRA's
waive WTCPUA's and immunity from
LCRA's immunity from this
this

suit. As
suit. Astotothe individual Defendants,
theindividual Defendants, governmental
governmental immunity does
immunity does not bar an
not bar an action
action for
for

declaratory
prospective declaratory
prospective and injunctive
and injunctive relief against
relief Director who
against a Director who has
has violated constitutional
violated aa constitutional

provision while acting
provision while acting in official capacity.
his official
in his capacity.

VIII. CONDITIONSPRECEDENT
VIII. CONDITIONS PRECEDENT

64.
64. All
All conditions
conditions precedent have been
precedent have performed or
been performed have occurred
or have occurred as required by
as required by

Rule of
Texas Rule
Texas of Civil Procedure 54.
Civil Procedure 54.

ATTORNEYS'FEES
IX. ATTORNEYS'
IX.

65.
65. Pursuant toto Chapters
Pursuant 37 and
Chapters 37 and 38
38 of the Texas Civil
the Texas Civil Practice
Practice and Remedies Code
and Remedies Code

and Section
and Section 271.153(a)(3)
271.153(a)(3) of
of the Texas Local
the Texas Local Government Code, Plaintiff
Government Code, Plaintiff seeks
seeks an award of
an award of

their reasonable
their reasonable attorneys'
attorneys' fees incurred inin prosecuting
fees incurred this action.
prosecutingthis Further, in
action. Further, the event
in the event of an
of an

appeal, Plaintiffs
appeal, Plaintiffs would
would be
be entitled
entitled to any
to additional
any additional reasonable
reasonable attorneys' fees
attorneys' which may
fees which may be
be

incurred.
incurred.

JURY TRIAL
X. JURY
X.

66.
66. Plaintiff demands
Plaintiff jury trial
demands a jury and the
trial and required jury
the required jury fee
fee has already been
has already been paid.
paid.

XI. PRAYER
XI. PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff
WHEREFORE,PREMISES Plaintiff CCNG DEVELOPMENT
CCNGDEVELOPMENT CO.,
CO.,

L.P.
L.P. prays this Court
that this
prays that Court render
render judgment:
judgment:

a.a. awarding Plaintiff
awarding Plaintiff such
such damages as are
damages as authorized
are authorized by law for
by law breach of
for breach of the
the Utility
Utility

Agreement;
Agreement;

16
16
b.
b. granting aa writ
granting writ of
of mandamus
mandamus or
or specific performance enforcing
specific performance WTCPUA's
enforcing WTCPUA's

and/or LCRA's
and/or obligations
LCRA's obligations under the
under the Utility Agreement;
Utility Agreement;

c.c. declaring that
declaring that the
the Utility Agreement obligates
Utility Agreement LCRAand
obligates LCRA WTCPUA
and WTCPUA to reimburse
to reimburse

CCNG for
CCNG for 30% of
of the
the Reimbursable
Reimbursable Costs
Costs of particular
of a particular phase of the
phase the Internal Facilities
Internal Facilities on the
on the

first date
first date that:
that: (1)
(1) the
the appraised value of
appraised value of the
the CCNG Tract is
CCNGTract in excess
is in excess of
of ten times the
ten times amount of
the amount of

the capital
the capital expenditures
expenditures that LCRA
that or WTCPUA
LCRA or WTCPUAhas
has made on the
made on Regional Facilities
the Regional Facilities and
and

Internal Facilities
Internal Facilities necessary toto provide
necessary water and
retail water
provide retail and wastewater service to
wastewater service to the
the CCNG Tract;
CCNGTract;

and (2)
and (2) 80%
80% of
of all
all LUEs projected
projected to
to be served by
be served by that same phase
that same of the
phase of Facilities
Internal Facilities
the Internal have
have

connected to
connected to the West Travis
the West Travis County Regional Systems;
County Regional Systems;

d.
d. declaring that
declaring that WTCPUA's
WTCPUA's Directors
Directors have constitutional
violated CCNG's constitutional
have violated right to
right to

equal protection
equal protection by failing
by failing to
to provide ``interim
provide "interim service" to
service" to CCNG and enjoining
CCNGand WTCPUA's
enjoining WTCPUA's

Directors from
Directors denying "interim
from denying service" to
"interim service" to CCNG.
CCNG.

e.e. awarding Plaintiff
awarding Plaintiff its
its reasonable
reasonable attorneys'
attorneys' fees, court, and
costs of court,
fees, costs pre judgment
and pre judgment

post judgment interest;
and post-judgment
and interest; and
and

f.f. granting Plaintiffs
granting Plaintiffs such
such other and further
other and further relief, at law
relief, at law and in equity,
and in equity, as
as this Court
this Court

may deem
deem just and proper.
just and proper.

17
17
Respectfully
Respectfully submitted,
submitted,

GRAVES, DOUGHERTY,
GRAVES, DOUGHERTY,HEARON HEARONSz&MOODY,
MOODY,P.C.
P.C.
401 Congress Avenue,
401 Congress Avenue, Suite
Suite 2200
2200
Austin, TX
Austin, 78701
TX 78701
(512) 480-x.680
(512) 480 Telephone
680 Telephone
(512)
(512) 48Q~588Q Telecopie~r
481-588t!Teleco

C
By:
G. Douglas"Kilday
G. Douglas ilday '`'
State
State Bar No. 00787834
Bar No. 00787834
dkilda~cr ~dl~m.c.am
dkilday@gdhm.com
Robin Melvin
Robin A. Melvin
State Bar
State Bar No. 13929590
No. 13929590
rmelvin(a;~clh~n.com
rmelvin@gdhm.com

ATTORNEYS FORPLAINTIFF
ATTORNEYSFOR PLAINTIFFCCNG
CCNG DEVELOPMENT
DEVELOPMENTCO.,
CO.,L.P.
L.P.

CERTIFICATE OF SERVICE
CERTIFICATE OF

II hereby
hereby certify
certify that and correct
true and
that aa trite copy of
correct copy the foregoing
of the foregoingdocument
documenthashasbee
bee sent to
sent to
the following
the counsel listed
following counsel below, via
listed below, certified
via certified mail, return
mail, receipt requested,
return receipt requested, on this =day
on this day of
of
April, 2014:
April, 2014:

John
John W.W. Rubttom
Rubttom
James Rader
James N. Rader
Madison D. Jechow
Madison Jechow
LOWER COLORADO
LOWER COLORADO RIVER AUTHORITY
AUTHORITY
P.O. BOX
p.0. Box 22~
220
Austin, Texas
Austin, Texas 78767
78767

David Klein
David Klein
LLOYD GOSSELINK ROCHELLE
LLOYD ROCHELLE&& TOWNSEND,
TOWNSEND,P.C.
P.C.
816 Congress Avenue,
816 Congress Avenue, Suite
Suite 1900
1900
Austin,
Austin, Texas 78701
Texas 78701

18
i~?
EXHIBIT 2
DC BK16196 PG1

Filed in The District Court
of Travis County, Texas
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXAS JUL 1 4 2016 70---
70—
At ) f 'I " M.
M.
Velva L. Price,
Price, DistrIi.t.
Distrftt. Clerk

D-1-AG-13-000696 IN RE CAVANAUGH
D-1-AG-13-000710 IN RE PRATT
D-I-AG-13-000737
D-1-AG-13-000737 IN RE BAILEY
D-1-AG-13-000750
D-I -AG-13-000750 IN RE GREER
D-I-AG-13-000829
D-1-AG-13-000829 IN RE SAN MIGUEL
D-1-AG-13-000841 IN RE TREJO
D-I-AG-13-000861
D- I -AG-I3-00086 I IN RE GONZALEZ BENITEZ
D-1-AG-13-000883 IN RE MORRISON
D-1-AG-13-000898
D-I-AG-13-000898 IN RE COLEMAN
D-1-AG-13-000912 IN RE GARBER
D-1-AG-13-000997 IN RE MILLER
D-1-AG-13-001075 IN RE TAYLOR
D-1-AG-13-001 106
D-I-AG-13-001106 IN RE JOSEPH
D-1-AG-13-001165
D-I -AG-13-001165 IN RE SANCHEZ
D-1-AG-13-001168
D-1-AG-I3-001168 IN RE CANTU
D-I-AG-13-001173 IN RE BURKS
D-1-AG-13-001284
D-I-AG-13-001284 IN RE LUGALA
D-1-AG-13-001318 IN RE GONZALEZ
D-1-AG-13-001330 IN RE ALBA
D-1-AG-13-001357 IN RE ORTA
D-I
D-I-AG-13-001368
-AG-13-001368 IN RE PEREZ
D-1-AG-13-001396
D-I-AG-13-001396 IN RE MCDONALD
D-1-AG-13-001406 IN RE GIBOYEAUX
D-1-AG-13-001409 IN RE VILLARREAL
D-1-AG-13-001416 IN RE SELVEY
D-I-AG-13-001421 IN RE MORALES
D-I-AG-13-001429 IN RE RENTERIA
D-1-AG-13-001451
D-I-AG-13-001451 IN RE GONZALES
D-1-AG-13-001463 IN RE CARRINGTON
D-1-AG-13-001531 IN RE RAMIREZ MARTINEZ
D-1-AG-13-001537
D-I-AG-13-001537 IN RE ALVAREZ
D-1-AG-13-001560
D-I-AG-13-001560 IN RE CLOVER
D-1-AG-13-001582 IN RE HENSARLING
D-1-AG-I3-001618
D-1-AG-13-001618 IN RE BRYANT
D-I-AG-13-001624 IN RE FLORES
D-1-AG-13-001724 IN RE MCMILLON
D-I -AG-13-001734
D-1-AG-13-001734 IN RE HANEY
D-1-AG-13-001737
D-I -AG-13-001737 IN RE SIFUENTES
D-1-AG-13-001762 IN RE WILSON
D-1-AG-13-001766
D-1-AG-I3-001766 IN RE SCHAVE
D-1-AG-13-001780 IN RE GARCIA
D- I-AG-13-001781
D-1-AG-13-001781 IN RE ALARCON
D-1-AG-13-001788 IN RE MALDONADO
D- I-AG-13-001821
D-1-AG-13-001821 IN RE GARZA
D-1-AG-13-001824 IN RE BROWN
D-I-AG-13-001825
D-1-AG-13-001825 [N RE BLEVINS
D-I-AG-13-001829 IN RE CAMERON
D-1-AG-13-001868
D- I-AG-13-001868 IN RE FOREMAN
D-1-AG-13-001894
D-I-AG-13-001894 IN RE GRANADOS-MORENO
D-1-AG-13-001907 IN RE LARA COLIN
D-1-AG-13-001928 IN RE 1VANOV
D-1-AG-13-001933 IN RE COOPER
D-1-AG-13-002017 IN RE LEE
D- I -AG-13-002042
D-1-AG-13-002042 IN RE PENSON-RECTOR
D-1-AG-13-002055 IN RE LEWIS
D-I-A0-13-002145 IN RE TANNER
DC BK16196 PG8

ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXAS

D-1-GN-13-003912 RUETTEN V. LEE
D-1-GN-13-003926
D-I-GN-13-003926 CITY OF CARROLLTON VS. ABBOTT
D-1-GN-13-003942 EBCO VS CHAMPION SITE
D-I
D-1 -GN-13-003950
-GN-I3-003950 LARRY C MILLS VS BROOKS
D-1-GN-13-003953 ACI DESIGN VS MY BAR
D-I-GN-13-003961 ALLISON RASP VS AMY GROSS
D-1-GN-13-003971 KENNETH HARDIN VS CRAWFORD
D-1-GN-13-003982
D-1-GN- 13-003982 DELAINE JAMES INC VS COBALT
D-1-GN-13-003993
D-I-GN-13-003993 MARKARIAN V. TEXAS DPT OF MV
D-1-GN-13-004015 DEUTSCHE BANK V CAMPOS
D-I-GN-13-004020
D-1-GN-13-004020 TD BANK USA NA VS ERAZO
D-I-GN-13-004043 HIGHT V. INVENIO MARKETING
D-I-GN-13-004064
D- I -GN-13-004064 PEOPLES V AUSTIN COMMUNITY COL
D-I-GN-13-004087 DGC REALTY VS TWC
D-1-GN-13-004093 BISCOE V RAUCH
D- I -GN-I3-004094 DR JENNIFER L KIENING VS HARRI
D-1-GN-13-004105 SCI PARMER FUND V. IBC
D-1-GN-13-004119
D-I-GN-13-004119 SUAREZ VS CITY OF AUSTIN
D- 1 -GN-I3-004121
D-1-GN-13-004 121 CUSTOPHARM VS PJW INVESTMENT
D-1-GN- 13-004132
D-1-GN-13-004132 ZBRANEK VS PARTNERS STONE
D-1-GN-13-004142
D-I-GN-13-004142 SHEPARD VS SMITH
D-1-GN- 13-004143 BARKER VS KATHMAN
D-1-GN-13-004 171
D-1-GN-I3-004171 HOLEWYNE V MCGARY
D-1
D- I -GN-13 -004187
-GN-13-004187 MONARCH V. TEXAS COMMISSION
D-1-GN-13-004190 CARRASCO V NEDELKOFF
D-1-GN-13-004191 KEEFER VS H2OXIDATION LLC
D-
D-1-GN-13-004199
I -GN-13-004199 LEWIS CONCRETE VS KIVA INC
D-1-GN-13-004212
D-1-GN- 13-004212 HARDEN HEALTHCARE V. JORDE
D-1-GN-13-004230 IN RE VIA METROPOLITAN
D-1-GN-13-004231
D-I-GN-13-004231 DR SWANSON CO VS FIELDTURF USA
D-1-GN-13-004237
0-1-GN-13-004237 CAL TEX LUMBER V. TWC
D-1-GN-13-004245 DARTT VS CBA DESIGN AND BUILD
D-1-GN-13-004246 TERRY ASSET V TEXAS HEALTH
D-1-GN-13-004255 PROGRESSIVE V. THORNTON
D-I-GN-13-004305
D- I -GN-13-004305 HUGHBANKS V PATINO
D-1-GN-13-004328 DISCOVER BANK VS CROFFORD
D-I-GN-13-004341 HOUSING AUTHORITY V. ABBOTT
D-1-GN-13-004345 OVALS V QUSSAD MORTGAGE CORP
D-I-GN-13-004355
D-1-GN-13-004355 SUSAN SMITH VS CW VENTURES INC
D-1-GN-13-004362 IN RE GRISELDA SANCHEZ
D-1-GN-13-004364 BONILLA HERNANDEZ V CONN APPLI
D-1-GN-13-004371 DEER OAKS VS AUS TEX UTILITY
D-I-GN-14-000009 INDEPENDENT BANK V. VANOUNOU
D-1-GN- I 4-000016 ACCC GENERAL AGENCY V JACKSON
D-1-GN-14-000022 TEXAS MUTUAL VS INLAND SITE
D-1-GN-14-000025 JOHNSON V. TEXAS DEPARTMENT OF
D-1-GN-14-000035 TRIEAGLE ENERGY VS SUSAN COMBS
D-1-GN-14-000065
0-1-GN-14-000065 COUNTRYSIDE NURSERY V LORANC
D-1
D-1-GN-14-000069
-GN-14-000069 STATE FARM MUTUAL V ARROYASOSA
D-1-GN-14-000083
D-I -GN-14-000083 DAWSON V. PENNA
D-i-GN-14-000101 BENTON VS RESENDIZ
D-1-GN-14-000153 CALIBER HOLDINGS V SUSAN COMBS
D-1-GN-14 -000160
D-1 -GN-14-000160 FIRSTMARK CREDIT V RMG HOLDING
D- I -GN-14-000163
D-1-GN-14-000163 CCNG DEVELOPMENT V WEST TRAVIS
D-1-GN-14-000190 ECOENERGY V. TX ST SECURITIES
D- I -GN-14-000196
D-I-GN-14-000196 TEXAS CAPITAL BANK V MCGEE
D-1-GN-14-000202 AKA BUILDERS VS FREEMAN
DC BK16196 PG10

ORDER OF
OF DISMISSAL
DISMISSAL
THE DISTRICT
FROM THE DISTRICT COURTS
COURTS OF
OF TRAVIS
TRAVIS COUNTY,
COUNTY, TEXAS

On the 20th day of May, 2016, the matter of dismissal for want of

prosecution came on for consideration by the Court in the above-styled and numbered

causes; and it appearing to the Court that these causes of action have been pending in the

District Courts of Travis County, Texas, for a period of time in excess of the standards set

forth in Rule 6 of the Texas Rules of Judicial Administration and the Local Rules of Civil

Procedure for the Travis County District Courts; that the notice of the Court's intention to

dismiss these causes for want of prosecution was sent to all parties and attorneys of

record whose addresses are in the files of the District Clerk of Travis County, Texas; and

that said causes should be dismissed for want of prosecution.

It is therefore ORDERED, ADJUDGED and DECREED that the above-styled

and numbered causes be, and are hereby DISMISSED for want of prosecution.

Signed this 14th day of July, 2016

0.4 I I
strict Jud e Pr
EXHIBIT 3
7/26/2016 3:04:00 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-14-000163
NO. D-1-GN-14-000163
CAUSE NO. Nancy Rodriguez

CCNG DEVELOPMENT CO., L.P.,
CO., L.P., § IN THE DISTRICT COURT OF
Plaintiff,
Plaintiff, §
§
vs. §
§
WEST TRAVIS COUNTY PUBLIC §
AGENCY, LOWER
UTILITY AGENCY, §
COLORADORIVER
COLORADO RIVERAUTHORITY,
AUTHORITY,and and § COUNTY, TEXAS
TRAVIS COUNTY,
LARRY FOX,FOX, MICHAEL MURPHY,
MURPHY, §
RAY WHISENANT,
RAY WHISENANT,BILL BILL GOODWIN, §
GOODWIN,
ROBERTS, each in his
and SCOTT ROBERTS, §
official capacity as a director of
ofthe §
WEST TRAVIS COUNTY PUBLIC §
AGENCY,
UTILITY AGENCY, §
Defendants. §
Defendants. 345th JUDICIAL DISTRICT
345`"

PLAINTIFF'S MOTION
PLAINTIFF'S MOTIONFOR
FORNEW
NEW TRIAL
TRIALAND
AND MOTION
MOTION TO
TO REINSTATE
REINSTATE CASE

TO THE HONORABLE JUDGE OF SAID COURT:
COURT:

CCNG Development
Plaintiff CCNG Development Co.,
Co., L.P.
L.P. files
files this Motion Motion to
Motion for New Trial and Motion

Case, and in support thereof
Reinstate Case, thereof respectfully shows as follows:

I.
Motion for New Trial and Motion to Reinstate Case
New Trial

1. On July 14,
14, 2016,
2016, the
the Court
Court erroneously included this cause in aa blanket
erroneously included order
blanket order

dismissing numerous
dismissing numerous cases
cases for
for want
want of
of prosecution.
prosecution. The
The inclusion
inclusion of
of this
this cause
cause in that
that blanket
blanket

order was in violation of
of the Travis County Local Rules and the requirements of
of Due Process of
of

Law. Local Rule 8.3 states that the Court Administrator:

notice that certain cases will be dismissed
...will give notice
...will dismissed for want
want of
ofprosecution.
prosecution.
Such matters will be
Such be dismissed
dismissed summarily
summarily without
without further
further proceedings on the
proceedings on
dismissal date
~lismissczl date indicated
indicated in
in the notice of thereafter unless at
of dismissal or thereafter czt least
partyfiles
one party files a motion retain that complies with the requirements
motion to retain requirements of this
chapter.

(Emphasis added.) The
(Emphasis The procedure
procedure described
described in
in the
the Local
Local Rules
Rules is
is consistent
consistent with
with Due
Due Process,
Process,

as it requires that parties
parties be
be given
given notice
notice and
and an
an opportunity
opportunity to
to be
be heard
heard before
before any
any dismissal.
dismissal.
The procedure leading
The procedure leading to
to the
the erroneous
erroneous dismissal
dismissal of this
this cause
cause did
did not
not provide
provide CCNG with either
CCNGwith either

notice or an
notice or an opportunity
opportunity to be heard,
to be heard, and
and accordingly
accordingly did not
did not comply
comply with
with Due Process.
Process.

2.
2. The Court Administrator
The Court Administrator did not
did not provide notice required
the notice
provide the required by Local Rule
by Local Rule 8.3.
8.3.

The Court's docket
The Court's docket reflects
reflects no
no notice.
notice. Ex. 1 (court's
Ex. 1 docket). Plaintiff's
(court's docket). attorneys did
Plaintiffs attorneys did not
not receive
receive

the required notice.
the required notice. Ex.
Ex. 2 (affidavit
(affidavit of G.
of G. Douglas
Douglas Kilday)
Kilday) at
at ¶¶ 4-5. Similarly,
4-5. Similarly, the LCRA's
the LCRA's rif
attorneys did
attorneys not receive
did not receive the required notice.
the required notice. Id.
Id. The
The first of any
notice of
first notice any dismissal
dismissal that Plaintiff
that Plaintiff

received
received was
was after
after the
the fact.
fact. ItIt was mailed by
was mailed the Court
by the Court on
on July
July 22,
22, 2016
2016 and
and arrived
arrived on July 25,
on July 25,

2016. Id. atat ¶5.
2016. Id. ¶5. It
It reflected
reflected that
that this
this cause
cause had been dismissed
had been dismissed 11
11 days earlier, on
days earlier, on July
July 14,
14, 2016.
2016.

Ex.
Ex. 2-B
2-B (notice).
(notice).'l

3.
3. Had Plaintiff
Had Plaintiff received
received the notice required
the notice required by Local Rule
by Local Rule 8.3,
8.3, Plaintiff
Plaintiff would
would have
have

filed Motion to
filed a Motion Retain this
to Retain cause for
this cause for the
the following
following reasons.
reasons.

4.
4. Plaintiff filed
Plaintiff filed this
this breach
breach of
of contract action in
contract action in January
January 2014.
2014. The Lower Colorado
The Lower Colorado

River Authority
River ("LCRA") owes
Authority ("LCRA") Plaintiff reimbursement
owes Plaintiff reimbursement for water
for water and wastewater infrastructure
and wastewater infrastructure

that Plaintiff
that Plaintiff constructed
constructed part for
inin part the LCRA's
for the The LCRA
benefit. The
LCRA's benefit. LCRAclaims
claims to
to have assigned its
have assigned its

reimbursement obligation
reimbursement obligation toto the
the West
West Travis
Travis County Public Utility
County Public Agency (the
Utility Agency "WTCPUA").
(the "WTCPUA").

However, the
However, the WTCPUA
WTCPUA has
has not unconditionally
not unconditionally agreed to
agreed to honor
honor the obligations
the obligations owed to
owed CCNG,
to CCNG,

and has
and has not honored those
not honored those obligations.
obligations.

5.
5. The parties
The parties engaged
engaged in
in settlement
settlement discussions
discussions immediately
immediately after the
after Defendants
the Defendants

answered. Ex.
answered. Ex. 22 at ¶ 3.
at ~ 3. Those
Those discussions
discussions lasted
lasted until approximately
until approximately one month
one month ago,
ago, id., when
id., when

the WTCPUA
the abruptly reneged
WTCPUAabruptly reneged on
on earlier
earlier commitments
commitments that
that were fundamental
were fundamental to the
to the proposed
proposed

settlement. As
settlement. As the
the settlement
settlement discussions Plaintiff served
proceeded, Plaintiff
discussions proceeded, discovery requests
served discovery in April
requests in April

Plaintiff's counsel
' Plaintiff's counsel has has conferred
conferred withwith the
the Court
Court Administrator's
Administrator's office
office to determine whether
to determine whether that
that office nonetheless
office nonetheless
believes that
believes that itit issued
issued thethe required
required notice.
notice. AArepresentative
representative of
of the
the Court Administrator's
Court Administrator's office has
office advised that
has advised that
notices are
notices are typically
typically sent
sent automatically,
automatically, but
but that
that several
several attorneys
attorneys havehave indicated
indicated that
that no notice
notice was received for
was received the
for the
July 14,
July 2016 dismissal
14, 2016 dismissal docket.
docket. Ex.Ex. 22atat 114.
¶ 4.

2
2014. The
2014. The WTCPUA
WTCPUAand
and LCRA, however, requested
LCRA,however, requested that
that the Plaintiff extend
the Plaintiff extend its
its discovery
discovery

deadlines 22
deadlines 22 times,
times, while
while the
the parties continued settlement
parties continued settlement negotiations. As reflected
negotiations. As reflected by
by the
the Rule
Rule

11
11 agreements attached asas Exhibit
agreements attached Exhibit 2-A
2-A toto this Motion, as
this Motion, gesture of
as a gesture of good faith the
good faith Plaintiff
the Plaintiff

agreed toto all
agreed all 22 of those
those requests.
requests. The
The last
last agreed extension expired
agreed extension on June
expired on June 16, 2016. Despite
16, 2016. Despite

having
having received
received the
the Plaintiff's
Plaintiff's requests over 2 years
requests over years and
and 3 months
months ago,
ago, the WTCPUAhas
the WTCPUA still
has still

not
not produced
produced aa single
single document.
document.

6.
6. The Plaintiff
The Plaintiff has
has also
also attempted confer with
to confer
attempted to with Defendants
Defendants about trial date.
about a trial date. The
The

LCRA has
LCRA has been responsive to
been responsive to these
these attempts.
attempts. The WTCPUAhas
The WTCPUA has not. recently as
not. As recently as last week,
last week,

the undersigned
the undersigned proposed the
proposed week of
the week of October
October 31,
31, 2016 in order
2016 in order to
to accommodate conflict that
accommodate a conflict that

attorneys for
attorneys for the WTCPUAhave
the WTCPUA during the
have during the first
first month September. The
month of September. WTCPUA
The WTCPUA would not
would not

agree to
agree that date,
to that date, but would also
but would also not
not propose any other
propose any date.
other date.

7.
7. The Plaintiff
The Plaintiff intends toto quickly
intends quickly pursue cause through
this cause
pursue this through trial. Plaintiff
trial. Plaintiff will
will

update its
update its claims
claims by
by filing
filing aa Second
Second Amended Petition immediately
Amended Petition immediately upon the
upon reinstatement
the reinstatement of
of

this Cause.
this Cause. The
The Second
Second Amended Petition will
Amended Petition will reflect additional claims
reflect additional for Reimbursable
claims for Reimbursable Costs
Costs

owed, and
owed, and service
service requests
requests not
not yet approved, as
yet approved, as the parties have
the parties have been discussing.
been discussing.

II.
II.
Prayer
Prayer

WHEREFORE, CONSIDERED,Plaintiff
WHEREFORE,PREMISES CONSIDERED, Plaintiff prays that this
prays that Court:
this Court:

a.a. grant Plaintiff's
grant Plaintiff's Motion
Motion for
for New Trial and
New Trial and Motion
Motion to Reinstate Case;
to Reinstate Case;

b.
b. reinstate
reinstate this
this cause
cause on
on the Court's docket;
the Court's docket;

c.c. this cause
set this
set for trial
cause for on October
trial on October 31,
31, 2016;
2016; and
and

d.
d. grant Plaintiff
grant Plaintiff such
such other
other and further relief,
and further at law
relief, at law and in equity,
and in equity, as
as this Court may
this Court

deem
deem just and proper.
just and proper.

3
Respectfully submitted,
Respectfully submitted,

GRAVES, DOUGHERTY,
GRAVES, DOUGHERTY,HEARON HEARONBL&MOODY,
MOODY,P.C.
P.C.
401 Congress
401 Congress Avenue,
Avenue, Suite 2200
Suite 2200
Austin, 78701
TX 78701
Austin, TX
(512)
(512) 480-56elephone
480-56 elephone
(5 480-5"80
(5 er
~ 480-5 ;x'80 ~ el, co er

By:
Douglas Ki~day
G. Douglas Ki day
State Bar
State No. 00787834
Bar No. 00787834
dkilday@gdhm.com
dkilday@gdhm.com
Robin A. Melvin
Robin Melvin
State Bar
State Bar No.
No. 13929590
13929590
rmelvin@gdhm.com
rmelvin@gdhm.com
David P.
David P. Lein
Lein
State
State Bar
Bar No. 24032537
No. 24032537
dlein@gdhm.com
dlein@gdhm.com

ATTORNEYS FORPLAINTIFF
ATTORNEYSFOR PLAINTIFFCCNG
CCNGDEVELOPMENT
DEVELOPMENTCO.,
Co.,L.P.
L.P.

OF SERVICE
CERTIFICATE OF
CERTIFICATE

II hereby
hereby certify that a true
certify that true and
and correct
correct copy
copy of of tIte foregoing document
t e foregoing document has been sent
has been sent to
to
the following
the following counsel
counsellisted
listedbelow, viaemail,
below,via email,ononthisthis 201Rayay ofof July,
July, 2016:
2016:

Rader
James N. Rader
James
Associate General Counsel
Associate General Counsel
LOWER COLORADO
LOWER COLORADO RIVER AUTHORITY
AUTHORITY
Austin, 78767-0220
Texas 78767-0220
Austin, Texas
(512) 578-3559
(512) 578-3559
Fax: (512)
Fax: (512) 473-4010
473-4010
i ames.radernlcra.orb
james.rader@lcra.org

James Parker
James Parker
David Klein
David Klein
LLOYD GOSSELINKROCHELLE
LLOYD ROCHELLE8L& TOWNSEND,
TOWNSEND,P.C.
P.C.
816 Congress
816 Avenue, Suite
Congress Avenue, 1900
Suite 1900
Austin,
Austin, Texas 78701
Texas 78701
322-5818
(512) 322-5818
(512)
Fax: (512)472-0532
Fax: (512) 472-0532
l~lawfirm.com
dklein@lglawfirm.com
dklei~l,c~
~1 awfirm. c om
jparker@lglawfirm.com
j.parker,~a,l

G. Douglas ilday

4
C!
CERTIFICATE OFCONFERENCE
CERTIFICATE OF CONFERENCE

II hereby
hereby certify
certify that
that onon July
July 25,25, 2016,
2016, II conferred with James
conferred with James Rader,
Rader, counsel for the
counsel for the
LCRA, regarding
regarding thisthis motion.
motion. Mr. Rader indicated
Mr. Rader indicated that
that the
the LCRA
LCRA does does notnot oppose the relief
oppose the relief
requested
requested inin this Motion. II separately
this Motion. separately called
called David
David Klein,
Klein, counsel
counsel forfor the
the WTCPUA,
WTCPUA,to to learn
learn
whether thetheWTCPUA
whether WTCPUA opposed
opposed this this
Motion.
Motion. Mr. Mr.
KleinKlein
wa wait
n ~ t ailable,
ailable, and
and hehe has
has notnot
returned
returned my my call.
call. ~ ~ ~
~ ~ ~~

_ ~ ~ ` ~'

G. Douglas
G. Douglas Iilday
lday

NOTICE OF HEARING
NOTICE OF HEARING

Please
Please take
take notice
notice that
that this Motion has
this Motion been set
has been set for
for hear
heari on Friday, August
on Friday, 2016 at
5, 2016
August 5, at
9:00 am,
9:00 am,atatthetheTravis
TravisCounty
CountyDistrict
DistrictCourt,
Court,10001000
G G dalupe,
dalupe,u.tiu ti Texas.
Texas.
i
~°
v

•

G.
G. Douglas ilday
Douglas ilday '~

5
EXHIBIT 1
Travis County
Travis County -- AARO - Details
AARO-Details Page 11 of
Page of 2

~~ (https://www.traviscountytx.gov)
(https://www.traviscountytx.gov)

District
District Clerk AARO--Attorney
Clerk -- AARO Access to
Attorney Access Records Online
to Records Online

Details
Details
Updated : Monday, July
Updated :Monday, 25, 2016
July 25, 2016 5:08:43
5:08:43 AM
AM

Cause Number
Cause Number D-1-GN-14-000163
D-1-GN-14-000163 Request Documents(/aaro/Content/record_search
Request Documents (/aaro/Content/record_search
Style
Style CCNGDEVELOPMENTVWESTTRAVIS
CCNG DEVELOPMENT V WEST TRAVIS
Filed Date
Filed Date 1/16/2014
1/16/2014 New Search(/aaro/)
New Search (/aaro/)
Court
Court 345
345
Type
Type BREACH OF CONTRACT
BREACHOF CONTRACT (GEN LIT ))
(GEN LIT
Case Status
Case Status DISM WANT
WANT PROS
PROS
Action/Offense
Action/Offense
Hearing Date
Hearing Date 20/5/2016 01:45 PM
20/5/2016 01:45 PM

Attorney
Attorney Type
Type Party --Full/Business
Party Full/Business Party
Party --Person
Person
DEFENDANT
DEFENDANT ROBERTS , SCOTT
ROBERTS,SCOTT
DEFENDANT
DEFENDANT GOODWIN ,,BILL
GOODWIN BILL
DEFENDANT
DEFENDANT WHISENANT
WHISENANT,, RAY
RAY
DEFENDANT
DEFENDANT MURPHY
MURPHY ,MICHAEL
, MICHAEL
DEFENDANT
DEFENDANT FOX,
FOX,LARRY
~,4RRY
RADER JAMES N
RADERJAMES DEFENDANT LOWER
DEFENDANT COLORADO RIVER
LOWERCOLORADO AUTHORITY
RIVERAUTHORITY
KILDAY PLAINTIFF
DOUGLAS PLAINTIFF
GLEN DOUGLAS
KILDAYGLEN CCNG DEVELOPMENTCO
CCNG DEVELOPMENT CO LP
MELVIN
MELVINROBIN A
A PLAINTIFF
PLAINTIFF CCNG DEVELOPMENT
CCNG CO LP
DEVELOPMENTCO
KLEINDAVIDJASON
KLEIN DAVID JASON DEFENDANT WESTTRAVISCOUNTYPUBLICUTILITYAGENCY
DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY

Date
Date Court
Court Party
Party Description
Description Category
Category Pages
Pages
7/14/2016
7/14/2016 LJL
LJL DWOPBLANKETORDER
DWOP BLANKET ORDER ORD
ORD 0
0 not available
PDF not available
3/9/2015
3/9/2015 345
345 PL OTHER FILING
OTHER FILING OTHER
OTHER 1
1 Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
barCodeld=3921065)
barCodeld=3921065)
4/8/2014
4/8/2014 345
345 PL AMENDED
AMENDED PET-PL
PET-PL 18
18 Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
PETITION/SUPPLEMENTAL barCodeld=3451955)
barCodeld=3451955)
2/14/2014
2/14/2014 345
345 DF
DF ANSWER & ADDITIONAL
ANSWER&ADDITIONAL ANS-RESP 4 Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
PLEADING
PLEADING barCodeld=3379421)
barCodeld=3379421)
2/13/2014
2/13/2014 345
345 DF
DF ORIGINAL ANSWER
ORIGINAL ANSWER ANS-RESP 2 Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
barCodeld=3379617)
barCodeld=3379617)
1/27/2014
1/27/2014 345
345 DF
DF EXECUTEDSERVICE
EXECUTED SRVPROCESS
SRVPROCESS 2 Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
barCodeld=3355729)
barCodeld=3355729)
1/27/2014
1/27/2014 345
345 DF
DF EXECUTED
EXECUTEDSERVICE SRVPROCESS 2
SRVPROCESS Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
barCodeld=3355728)
barCodeld=3355728)
1/17/2014
1/17/2014 345
345 DF
DF ISS:CITATION
ISS:CITATION ISSUANCE 0
0 not available
PDF not available
1/17/2014
1/17/2014 345
345 DF
DF ISS:C ITATION
ISS:CITATION ISSUANCE 0
0 not available
PDF not available
1/16/2014
1/16/2014 345
345 PL ORIGINAL PET-PL
PET-PL 10
10 Download (/aaro/Default/GetPdf?
Download (/aaro/Default/GetPdf?
PETITION/APPLICATION
PETITION/APPLICATION barCodeld=3345230)
barCodeld=3345230)

co.travi s.tx. us/aaro/
https://public.co.travis.tx.us/aaro/
hops://public. 7/25/2016
7/25/2016
EXHIBIT 2
CAUSE NO. D-1-GN-14-000163
CAUSE D-1-GN-14-000163

CCNG DEVELOPMENT
CCNG DEVELOPMENT CO., L.P.,
CO., L.P., IN THE
IN THE DISTRICT COURTOF
DISTRICT COURT OF

§
Plaintiff,
Plaintiff,

§
vs.
vs.

§
WESTTRAVIS COUNTY
WEST COUNTY PUBLIC

§
UTILITY
UTILITY AGENCY,
AGENCY, LOWER LOWER

§
COLORADO RIVER AUTHORITY,
COLORADO AUTHORITY, and and TRAVIS COUNTY,
COUNTY, TEXAS
TEXAS

§
LARRY
LARRY FOX, MICHAELMICHAEL MURPHY, MURPHY,

§
RAY WHISENANT,BILL
RAY WHISENANT, GOODWIN,
BILL GOODWIN,

§
and SCOTT
and SCOTT ROBERTS,
ROBERTS, each each in
in his
his

§
official
official capacity as aa director
capacity as director of
of the
the

§
WESTTRAVIS COUNTY
WEST COUNTY PUBLIC

§
UTILITY AGENCY,
UTILITY AGENCY,
§
Defendants.
Defendants. §
345 t JUDICIAL
345th
" DISTRICT
JUDICIAL DISTRICT

OF G. DOUGLAS
AFFIDAVIT OF DOUGLAS KILDAY
KILDAY

THE STATE
THE STATE OF TEXAS
TEXAS §

COUNTY OF TRAVIS
COUNTY OF §

BEFORE ME,
BEFORE ME, the
the undersigned
undersigned authority,
authority, personally
personally appeared G. Douglas
appeared Kilday,
Douglas Kilday,

after being
who after being duly
duly sworn, did depose
sworn, did depose and
and state as follows:
state as follows:

1. My
1. Myname
name isis Douglas Kilday. II am
Douglas Kilday. aman
an attorney
attorney for Plaintiff CCNG
for Plaintiff Development Co.
CCNGDevelopment Co.

in this
in this in
in this
this cause.
cause. All
All of
of the
the facts
facts in
in this
this affidavit
affidavit are true
are true and correct, and
and correct, and all
all are
are

within my
within my personal
personal knowledge.
knowledge.

2.
2. II am the
the lead attorney for
lead attorney Plaintiff in
for Plaintiff in this cause. II signed
this cause. signed and filed Plaintiff's
and filed Original
Plaintiff's Original

Petition and
Petition and Plaintiff's
Plaintiff's Original
Original Petition. Myaddress,
Petition. My address, phone number, fax
phone number, number and
fax number and

email address appear
email address appear on both pleadings.
on both pleadings.

3. Since the
3. Since the time
time when
when this lawsuit was
this lawsuit was filed, the parties
filed, the parties have engaged in
have engaged lengthy
in lengthy

negotiations over
settlement negotiations
settlement over many
many months. negotiations
Those negotiations
months. Those began immediately
began immediately

after the
after the Defendants appeared, and
Defendants appeared, they continued
and they into early
continuedinto earlyJune
June2016. result
2016. As a result
of those negotiations,
of those negotiations, the Defendants
the Defendants requested
requested numerous extensions
numerous extensions for their
for their

respond toto our
deadline toto respond
deadline written discovery
our written discovery requests. Wehave
requests. We have accommodated
accommodated those
those

requests. On March
requests. On March 9,
9, 2015,
2015, II filed
filed with
with the
the Court Rule 11
Court aa Rule 11 Agreement reflecting
Agreement reflecting

ninth of
the ninth
the of twenty-two
twenty-two agreements
agreements II made
made to extend discovery
to extend discovery deadlines
deadlines for the
for the

Defendants. That filing
Defendants. That filing also
also reflected
reflected my
my address,
address, phone number, fax
phone number, fax number,
number, and
and

email address. True
email address. True and
and correct
correct copies of Rule
copies of Rule 11
11 agreements
agreements reflecting
reflecting all twenty-
all twenty-

two extensions
two are attached
extensions are attached to
to this affidavit
this affidavit as Exhibit 2-A.
as Exhibit 2-A.

4.
4. II never
never received
received a notice
notice that
that this
this case
case would
would be dismissed unless
be dismissed unless one
one of
of the
the parties
parties

filed
filed a motion
motion to retain the
to retain the case.
case. That
That is,
is, I never
never received the notice
received the notice contemplated
contemplated by
by

Local
Local Rule 8.3. IIhave
Rule 8.3. have conferred with James
conferred with Rader, counsel
James Rader, counsel for
for the
the LCRA,
LCRA, who
who

confirmed toto me that
confirmed that he
he also
also did
did not
not receive
receive the notice contemplated
the notice contemplated by Local Rule
by Local Rule

8.3.
8.3. II spoke
spoke with
with aa representative
representative of the
of the Court Administrator's
Court Administrator's Office, who
Office, who reported
reported

to me
to me that
that those
those notices
notices are
are typically
typically sent automatically,
sent automatically, but that
but several attorneys
that several attorneys

have indicated
have indicated that
that no
no notice received for
notice was received for the July 14,
the July 14, 2016 dismissal docket.
2016 dismissal docket.

5. II am familiar
5. familiar with the records
with the records kept
kept by
by my law firm
my law for this
firm for this case.
case. I have
have reviewed my
reviewed my

firm's file.
firm's file. It
It contains
contains no notice from
no notice from the
the Court stating that
Court stating this case
that this case would
would be
be

dismissed
dismissed unless
unless one
one of
of the parties files
the parties files aa motion
motion to retain. The
to retain. The first
first time my firm
time my firm

received any
received notice related
any notice related to dismissal was
to dismissal on July
was on July 25,
25, 2016, when my
2016, when firm received
my firm received

notice stating
notice that this
stating that this case had been
case had been dismissed
dismissed eleven
eleven days earlier, on
days earlier, on July
July 14,
14, 2016.
2016.

A true
A true and
and correct
correctcopy
copyofofthat
thatnotice
noticeis isa a ch d to
to this affidavits s Exhibit
this affidavit 2-B.
Exhibit 2-B.

G. Douglas ilday

TOAND
SWORNTO
SWORN ANDSUBSCRIBED
SUBSCRIBEDBEFOREME
BEFORE this this thth day
ME day of July, 2016.
of July, 2016.
*tar
j
/!Y./Y/Yt.IlllIJYI/IY
. _▪ .SPY v,1;, P°°~
...... ~JEANNETTE LANGER My
My Commission Expires: (.0
Commission Expires:
'"-•••'? L.P.
L.P. v.v. West
West Travis County
TYavis County
Public LltilityAgency,
Public Utility al.; In
et al.;
Agency, et In the
the 345`'x Judicial
345th Judicial District Court, Travis
District Court, Travis County, Texas
County, Texas

Gentlemen:
Gentlemen:

As
As we
we discussed
discussed yesterday,
yesterday, this
this letter
letter confirms
confirms my agreement to
my agreement to grant twentieth
grant aa twentieth
extension
extension of the deadline for all responses
of the deadline for all responses to
to discovery
discovery requests
requests that
that were
were served
served by
by CCNG
CCNG
Development Co.,
Development Co., L.P.
L.P.("CCNG")
("CCNG") on on or
or about
about AprilApril 16, With the
2014. With
16, 2014. the nineteenth extension,
nineteenth extension,
the
the deadline was April
deadline was 21, 2Q16.
April 21, (See my letter
2016. (See letter toto you
you dated
dated April 12, 2016}
April 12, With this
2016) With twentieth
this twentieth
extension,
extension, the due date
the due date forfor all
all Defendants
Defendants to
to respond
respond to
to all
all discovery
discovery requests
requests served
served by
by CCNG
CCNG
shall be
shall May 26,
be May 26, 2016.
2016.

Please Iet
Please let me know
know ifif you
you would
~rould like discuss this
to discuss
like to matter further.
this matter further.

Sincerely,
Sincerely,

GRAVES RTY, Moony, P.C.
TY, HE 0 & MOODY, P.C.

I:By:
DouglasKilday
. Douglas ilday

GDK/j yl
yl
cc:
cc: client (via email)
client (via email)
Robin A.
Robin Melvin [firm]
A. Melvin [firm]

2516804.1
2516804.1
CongressAvenue
401 Congress
401 Suite 2200
Avenue Suite 2200 Austin, Texas 78701
Austin, Texas 512.480.5600
78701 512.480.5600 www.gdhm.com
www.gdhm.com
GD
GD Douglas Kilday
G. Douglas
G. Kilday
MM
M 512.480.5680
512.480.5680
512.480.5880 (fax}
512.480.5880 (fax)
DOUGHERTY
GRAVES DOUGHERTY
GRAVES HEARON&
HEARON &MOODY
MOODY dkilday@gdhm.com
dkilday@gdhm.com

A PROFESSIONAL
PROFESSIONAL CORPORATION
CORPORATION MAILING ADDRESS:
MAILING ADDRESS:
P.O. Box
P.O. Box 98
98
Austin, TX
Austin, 7876-99987
TX 7876-99987

June 9,
June 9, 2Q16
2016

David Klein
David Klein Via
Via Electronic Mail (dklein~lglawf
Electronic Mail rm. com)
(dklein@lglawfirm.com)
LLOYD GOSSELINK
LLOYD GOSSELINKROCHELLE
ROCHELLESz& TOWNSEND, P.C.
TOWNSEND,P.C.
816 Congress
816 Congress Avenue, 1900
Suite 1900
Avenue, Suite
Austin,
Austin, Texas 78701
Texas 78701

James Rader
James Rader Via
Via Electronic Mail (janzes.
Electronic Mail ~adeYnlcra, oy~,~))
(fames.rader@lcra.org
LOWER COLORADO
LOWER COLORADO RIVER AUTHORITY
AUTHORITY
3700 Lake
3700 Austin Boulevard
Lake Austin Boulevard
Austin, 78703
Texas 78703
Austin, Texas

RE:
RE: Cause No.
Cause D-1-GN-14-000163;
No. D-1-GN-14-000163; CCNG Development
CCNG Development Co., Co., L.P,
L.P. v.v. West
West Travis County
Travzs County
Utility Agency,
Public Utility
Public et al.;
Agency, et In the
al.; In the 345 Judicial District
th Judicial District
345th Court,
Court, Travis
Travis County,
County, Texas
Texas

Gentlemen:
Gentlemen:

As we
we discussed
discussed today,
today, this
this letter
letter confirms
confirms my agreement to
myagreement grant aatwenty-second
to grant twenty-second
extension of
extension of the
the deadline
deadline forfor all
all responses
responses to to discovery requests that
discovery requests that were served by
were served by CCNG
CCNG
DevelopmentCo.,
Development Co., L.P.
L.P.("CCNG")
("CCNG") on on or or about April 16, 2014. With the
about April 16, 2014. With the twentieth-first twentieth -first
extension, the
extension, the deadline
deadline waswas June
June 9, (See my Letter
2016. {See
9, 2016. letter toto you dated May 26,
you dated 26, 2016} With this
2016) With this
twenty-second extension,
twenty-second extension, the
the due
due date
date forfor all
all Defendants
Defendants to respond to
to respond to all
all discovery requests
discovery requests
served by
served by CCNG
CCNGshall be June
shall be 17, 2016.
June 17, 2016.

Please let
Please let me know
know if
if you
you would
would like
like to
to discuss matter further.
this matter
discuss this further.
~..~.~~,
Sincerely,

OODY, P.C.

By:
G. Douglas ilday

GDK/j yl
GDKJjyI
cc:
cc: (via email)
client (via
client email)
Robin A. Melvin
Robin [firm]
Melvin [firm]

2558528.1
2558528.1
CongressAvenue
401 Congress
401 Avenue Suite
Suite 2200
2200 Austin, Texas 78701
Austin, Texas Si2.480.5600
78701 512.480.5600 www.gdhm.com
www.gdhm.com
EXHIBIT 2-B
NOTICE OF COURT SETTING
IN THE
IN THE DISTRICT COURTS ()F
DISTFtIC'I' CQURT`S OF TRAVIS COUNTY, TEXAS
COtJN"["Y, TEXAS

FOR CAUSE
}~OI: C'AlJS11~IC). I -GN-14-000163
D-l-U~~-1.4~-Of~0163
NO. D-

CCNG
CCNG DEVELC}P~~E~T
DEVELOPMENT CO I.,P
C{) LP
~r
VS.cy
WEST "I"IZAVIS
W~;S'1" LrTILITY AGEI'~C:"Y
C(?UNTY PUBLIC UTILITY
TRAVIS COUNTY AGENCY

THE MOTION
CPC)N `CI-IE
UPON MOTION OF THE THE COUIZ'T
COURT Ti -[E 11~~30VE
THE ABOVE C~,S~; HAS .BE:C:T~t
CASE TIAS BEEN
Z)IS11~II55~U
DISMISSED FOR WANT'OF
FORWANT P~2USl~CIJTIUN
C7i~ PROSECUTION
i~N
ON July
July 14,
14, 2016.
2016.

V~LVF1 L.
VELVA l.a.:PIZ:CC
PRICE
DISTRICT CLERK
I7IS`I"RI:C;"1' CLERK
TRAVIS COUNTY, TEXAS

DATED:
DATED: 7! 14/21)16
7/14/2016

300
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C)I'~IC;E; C3F
OFFICE OF ~COURT AUMINISTItAT'Ogt
t~URT ADMINISTRATOR U.S.POSTAGE>>P1INEr BON
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"I'RtIVIS COUNTY COURTHOUSE
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P.O BdX
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0000334691,1UL 22 20

MELVIN ROBIN t~A
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401 CC3NCRI:sSS AVE., St7ITE 22~`U
AVE., SUITE 22410
AUSTIN TX 78701
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EXHIBIT 4
CAUSE NO. D-1-GN-14-000163

CCNG DEVELOPMENT CO., L.P., § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§
WEST TRAVIS COUNTY PUBLIC §
UTILITY AGENCY, LOWER §
COLORADO RIVER AUTHORITY, and § 345th JUDICIAL DISTRICT
LARRY FOX, MICHAEL MURPHY, §
RAY WHISENANT, BILL GOODWIN, §
and SCOTT ROBERTS, each in his §
official capacity as a director of the §
WEST TRAVIS COUNTY PUBLIC §
UTILITY AGENCY, §
§
Defendants. § TRAVIS COUNTY, TEXAS

DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY’S RESPONSE
IN OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL AND
MOTION TO REINSTATE CASE ON THE BASIS OF
LACK OF SUBJECT MATTER JURISDICTION

Defendant West Travis County Public Utility Agency (“WTCPUA”), on behalf of itself

and its Directors, Larry Fox, Michael Murphy, Ray Whisenant, Bill Goodwin, and Scott Roberts,

who are sued in their official capacities, responds to the Motion for New Trial and Motion to

Reinstate Case (the “Motion”) of Plaintiff CCNG Development Co., L.P. (“CCNG”) on the basis

that the Court lacks subject matter jurisdiction over the case:

I.
EXECUTIVE SUMMARY

A live case-in-controversy is a requirement for the Court to exercise subject matter

jurisdiction over a matter. Since the dismissal of this case, WTCPUA has paid all amounts that

CCNG claims are due and owed to it in its First Amended Petition. Accordingly, there is no live

case-in-controversy between the parties, and the Court lacks subject matter jurisdiction.
II.
BACKGROUND FACTS1

WTCPUA is a governmental entity that operates the water and wastewater system

formerly operated by the Lower Colorado River Authority (“LCRA”) located in western Travis

and northern Hays County (the “LCRA System”). (Pl.’s 1st Am. Pet. at ¶¶10, 33-34.) As part of

the transfer of the LCRA System to WTCPUA in 2012, LCRA assigned certain contracts to

WTCPUA. (Id. at ¶34.) Among those contracts assigned to WTCPUA was the 1999 Utility

Facilities Acquisition Agreement (the “Utility Agreement”) between CCNG and LCRA. (Id. at

¶¶19, 34.)

Under the Utility Agreement, CCNG agreed to construct certain water and wastewater

facilities, for which it would receive reimbursement from LCRA upon meeting certain metrics.

(Id. at ¶22.) CCNG alleges that LCRA assigned the liability for such reimbursements to

WTCPUA in 2012 along with other transfers. (Id. at ¶¶33-34.) CCNG further alleges that it has

met the metrics on two tracts, Los Robles Addition and Spanish Oaks Section I, entitling it to

reimbursement under the Utility Agreement in the amount of $552,983 and $582,625,

respectively. (Id. at ¶¶26-32.) In addition, CCNG claims that it is entitled to water and

wastewater service on its office expansion project. (Id. at ¶46.)

1
In opposition to CCNG’s Motion for New Trial and Motion to Reinstate Case, WTCPUA attaches the following
Exhibits, which are incorporated by reference as though fully set forth herein:
Exhibit A: Affidavit of James F. Parker, III.
Exhibit 1: A true and correct copy of the August 4, 2016, letter from James F. Parker, III to G.
Douglas Kilday, with enclosures.
Exhibit B: Affidavit of Curtis Wilson
Exhibit 1: A true and correct copy of the Utility Facilities Acquisition Agreement between CCNG
Development Co., L.P. and the Lower Colorado River Authority.
Exhibit 2: A true and correct copy of the Minutes of the April 17, 2014, meeting of the Board of
Directors of the West Travis County Public Utility Agency.

DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION TO REINSTATE CASE—PAGE 2
Shortly after this lawsuit was filed, WTCPUA granted CCNG’s service request for its

office expansion project. (Ex. B2.) Accordingly, CCNG has had service on its office expansion

project since 2014. (Ex. B.)

In addition, WTCPUA has paid the amounts that CCNG claims are due and owed for

reimbursement on the Los Robles Addition and Spanish Oaks Section I. On August 4, 2016,

WTCPUA transmitted to CCNG two checks for $552,983 and $582,625. (Ex. A1.) CCNG does

not seek any additional amount due and owed under the provisions of the Utility Agreement.

III.
ARGUMENT AND AUTHORITIES

The Court should not reinstate a case over which it has no subject matter jurisdiction in

the first place. And inasmuch as CCNG’s claims have been mooted by performance or payment,

there is no controversy between the parties and the Court lacks jurisdiction.2

A. A live case-in-controversy is a predicate to the Court’s exercise of subject matter
jurisdiction.

Standing is a constitutional prerequisite to maintaining suit in federal or state court.

South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex.2007); Williams v. Lara, 52 S.W.3d

171, 178 (Tex.2000). “The general test for standing in Texas requires that there (a) shall be a

real controversy between the parties, which (b) will be actually determined by the judicial

declaration sought.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446

(Tex.1993) (quoting Board of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722, 724 (Tex.

1955)). As a component of subject matter jurisdiction, standing is never presumed and cannot be

waived. Id. at 443-45.

2
WTCPUA does not style this Response a “plea to the jurisdiction” because the case has been dismissed for want of
prosecution. Accordingly, there is no active case over which the Court has asserted jurisdiction. However, from the
standpoint that a reinstatement of the case would constitute an exercise of jurisdiction by the Court, WTCPUA urges
the Court to deny the Motion, and WTCPUA’s Response is therefore the functional equivalent of a plea to the
jurisdiction.

DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION TO REINSTATE CASE—PAGE 3
Standing requires that a controversy must between the parties at every stage of the legal

proceedings. See Rawlings v. Gonzalez, 407 S.W.3d 420, 425 (Tex. App.—Dallas 2013, no

pet.). “If a controversy ceases to exist—the issues are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome—the case becomes moot.” Id. (quoting Williams v.

Lara, 52 S.W.3d 171, 184 (Tex.2001)). “If a case becomes moot, the parties lose standing to

maintain their claims.” Id.

B. There is no live case-in-controversy between WTCPUA and CCNG set forth in
Plaintiff’s First Amended Petition.

CCNG raises three claims in its First Amended Petition: (a) denial of water and

wastewater service on its office extension project, (2) failure to pay a reimbursement of $552,983

in connection with utilities installed on the Los Robles Addition and (3) failure to pay a

reimbursement of $582,625 in connection with utilities installed on the Spanish Oaks Section I

tract. (Pl.’s 1st Am. Pet.) The undisputed evidence shows, however, that all of these claims

have been satisfied. WTCPUA provided the service CCNG requested to the office extension

project in April 2014. (Ex. B.) WTCPUA paid reimbursements of $552,983 and $582,625 on

August 4, 2016. (Ex. A.) In other words, CCNG has received 100 cents on the dollar for what it

claims in the First Amended Petition.

CCNG argues that there is a controversy between the parties arising from its alleged

entitlement to attorneys’ fees and interest.3 But inasmuch as CCNG is not entitled to any

contract damages, it cannot be a “prevailing party” entitled to attorneys’ fees under Chapter 38 of

the Civil Practice & Remedies Code. See Intercontinental Gp. P’ship v. KB Home Lone Star

L.P., 295 S.W.3d 650, 655 (Tex. 2009) (“A zero on damages necessarily zeroes out ‘prevailing

3
“Parties are free to contract for a fee-recovery standard either looser or stricter than” that set forth in Chapter 38 of
the Civil Practice & Remedies Code. Intercontinental Gp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650
(Tex. 2009). The Agreement, however, contains no contractual right to either attorneys’ fees or interest. (Ex. A2.)
CCNG alleges its right to attorneys’ fees arises solely out of Chapter 38. (Pl.’s 1st Am. Pet. at ¶65.)

DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION TO REINSTATE CASE—PAGE 4
party’ status.”). Likewise, an award of prejudgment interest necessarily implies a judgment on

which the plaintiff recovered damages, as any interest rate on $0 will always yield $0 in interest,

no matter how often it is compounded.

Because CCNG has received the service for which it seeks specific performance and has

received the amounts it claims are due and owed, there is no controversy between the parties.

Instead, CCNG’s claims are moot. It lacks standing, and the Court lacks subject matter

jurisdiction.

C. CCNG cannot reopen this case to serve as a shell for future allegations.

Since it has no live claims in its First Amended Petition, CCNG promises to file a Second

Amended Petition if this case is reinstated, alleging “additional claims for Reimbursable Costs

owed, and service requests not yet approved.” (Pl.’s Mot. for New Trial at ¶7.) But why? If it

has new claims, those claims can be brought in a new lawsuit.

In essence, CCNG asks the Court to reinstate a case that has no active dispute, just to

preserve a cause number. That “14” cause number will then allow CCNG to “quickly pursue this

cause through trial,” which it would like to set less than three months from now. (Id. at ¶¶6-7.)

WTCPUA would obviously be unable to prepare its defense to such claims—the details of which

remain a mystery—in such little time.

And that is CCNG’s purpose.

The Court should reject CCNG’s gamesmanship. There is no case in controversy in this

case as it is presently pleaded, and as a result the Court lacks subject matter jurisdiction. The

Court cannot grant a new trial and reinstate a case over which it lacks subject matter jurisdiction.

Accordingly, the Court should deny CCNG’s Motion.

WHEREFORE, PREMISES CONSIDERED, Defendant West Travis County Public

Utility Agency, on behalf of itself and its Directors sued in their official capacities, respectfully

DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION TO REINSTATE CASE—PAGE 5
pray the Court to deny the Motion for New Trial and Motion to Reinstate the Case of Plaintiff

CCNG Development Co., L.P. for lack of subject matter jurisdiction.

Respectfully submitted,

LLOYD GOSSELINK
ROCHELLE & TOWNSEND, P.C.
816 Congress Avenue, Suite 1900
Austin, Texas 78701
Telephone: (512) 322-5800
Facsimile: (512) 472-0532

By: /s/ Jose E. de la Fuente
JOSE E. de la FUENTE
State Bar No. 00793605
jdelafuente@lglawfirm.com
DAVID J. KLEIN
State Bar No. 24041257
dklein@lglawfirm.com
JAMES F. PARKER, III
State Bar No. 24027591
jparker@lglawfirm.com

ATTORNEYS FOR DEFENDANT

DEFENDANT WEST TRAVIS COUNTY PUBLIC UTILITY AGENCY’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION TO REINSTATE CASE—PAGE 6
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been
forwarded to the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4031177. Public record. Not legal advice.