CAUSE NO.

____________________
CORPUS CHRISTI PROCUREMENT, INC
D/B/A THE GRILL AT BREWSTER
STREET, ELEANORS COFFEE BAR AND
MARKET, LLC, B&B RESTAURANT GROUP,
LLC D/B/A SHORELINE SANDWICH
COMPANY, BRITE STAR CONSTRUCTION,
L.P., BRITE STAR REMODELING, LLC, GWTF
INVESTMENT LLC, MUSTANG ISLAND
TOWNHOME CONSTRUCTION, LP, VBB
CONSTRUCTION, LLC, NEMO COURT
CONSTRUCTION, LLC, TEASE SALON,
LIMITED LIABILITY COMPANY, KEVIN
MURPHY, INDIVIDUALLY, RICHARD
MARLOW PROCTOR, INDIVIDUALLY, ASHLE
ALIGNO, INDIVIDUALLY, MELISSA GUERRA,
INDIVIDUALLY, TBVB, LLC D/B/A SALON
SALON, SONNY VILLARREAL,
INDIVIDUALLY, ALEYDA DELGADO,
INDIVIDUALLY, AND DAVIS EIERMANN,
INDIVIDUALLY
Plaintiffs
VS.
VALERO REFINING-TEXAS, LP, AND
ERGON ASPHALT & EMULSIONS, INC.
Defendants

IN THE COUNTY COURT AT LAW

NO. ____

NUECES COUNTY, TEXAS

PLAINTIFFS ORIGINAL PETITION AND REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs, Corpus Christi Procurement, Inc. d/b/a The Grill at Brewster Street; Eleanors
Coffee Bar and Market, LLC; B&B Restaurant Group, LLC d/b/a Shoreline Sandwich Company;
Brite Star Construction, L.P.; Brite Star Remodeling, LLC; GWTF Investments, LLC; Mustang Island
Townhome Construction, LP; VBB Construction, LLC; Nemo Court Construction, LLC; Tease
Salon, Limited Liability Company; Kevin Murphy, Individually; Ashle Aligno, Individually; Melissa
Guerra, Individually; TBVB, LLC d/b/a Salon Salon; Sonny Villarreal, Individually; Aleyda Delgado,
Individually; and Davis Eiermann, Individually (hereinafter Plaintiffs), file this their Original

Petition and Request for Disclosure against Defendants Valero Refining-Texas, LP and Ergon Asphalt
& Emulsions, Inc., (hereinafter Defendants), and for cause of action would show the Court as
follows:
I.
DISCOVERY-CONTROL PLAN
1.1

Plaintiffs intend to conduct discovery under Level 3 of Texas Rule of Civil Procedure

190.4 and affirmatively plead that this suit is not governed by the expedited-actions process in Texas
Rule of Civil Procedure 169 because Plaintiffs seek relief over $100,000.00.
II.
RELIEF
2.1

Plaintiffs seek monetary relief over $1,000,000.00.

III.
PARTIES

3.1

Plaintiff Corpus Christi Procurement, Inc. d/b/a The Grill at Brewster Street

(Brewster Street), is a Texas corporation, with its principal place of business in Corpus Christi,
Nueces County, Texas.
3.2

Plaintiff Eleanors Coffee Bar and Market, LLC (Eleanors) is a Texas limited liability

company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.3

Plaintiff B&B Restaurant Group, LLC d/b/a Shoreline Sandwich Company

(Shoreline Sandwich) is a Texas limited liability company, with its principal place of business in
Corpus Christi, Nueces County, Texas.
3.4

Plaintiff Brite Star Construction, L.P. (Brite Star Construction) is a Texas limited

partnership, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.5

Plaintiff Brite Star Remodeling, LLC (Brite Star Remodeling) is a Texas limited

liability company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.6

Plaintiff GWTF Investment LLC (GWTF) is a Texas limited liability company, with

its principal place of business in Corpus Christi, Nueces County, Texas.

3.7

Plaintiff Mustang Island Townhome Construction, LP (Mustang Island) is a Texas

limited partnership, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.8

Plaintiff VBB Construction, LLC (VBB Construction) is a Texas limited liability

company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.9

Plaintiff Nemo Court Construction, LLC (Nemo Court) is a Texas limited liability

company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.10

Plaintiff Tease Salon, Limited Liability Company (Tease), is a Texas limited liability

company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.11

Plaintiff Kevin Murphy (Murphy) is an individual residing in Corpus Christi, Nueces

County, Texas.
3.12

Plaintiff Richard Marlow Proctor (Proctor) is an individual residing in Corpus

Christi, Nueces County, Texas.

3.13

Plaintiff Ashle Aligno (Aligno) is an individual residing in Corpus Christi, Nueces

County, Texas.
3.14

Plaintiff Melissa Guerra (Guerra) is an individual residing in Corpus Christi, Nueces

County, Texas.
3.15

Plaintiff TBVB, LLC d/b/a Salon Salon, (Salon Salon), is a Texas limited liability

company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.16

Plaintiff Sonny Villarreal (Villarreal) is an individual residing in Corpus Christi,

Nueces County, Texas.

3.17

Plaintiff Aleyda Delgado (Delgado) is an individual residing in Corpus Christi,

Nueces County, Texas.

3.18

Plaintiff Davis Eiermann (Eiermann) is an individual residing in Corpus Christi,

Nueces County, Texas.

3.19

Defendant, Valero Refining-Texas, L.P., is a Texas corporation doing business in

Texas with its principal office located in San Antonio, Bexar County, Texas.
3.20

Defendant, Ergon Asphalt & Emulsions, Inc. (Ergon), is a Mississippi corporation

licensed to and doing business in Texas.

IV.
JURISDICTION & VENUE
4.1

This Court has jurisdiction over the lawsuit because the amount in controversy exceeds

this Courts minimum jurisdictional requirements.

4.2

Venue is proper in Nueces County, Texas pursuant to Texas Civil Practice and

Remedies Code 15.002(b)(1) because the incident made the basis for this lawsuit occurred in Nueces
County, Texas. Specifically, the City of Corpus Christis water supply was contaminated due to a backflow incident at the Valero Plant located in Nueces County, Texas.
V.
FACTUAL BACKGROUND
5.1

Late in the evening on December 14, 2016, the City of Corpus Christi (the City) sent

a notice informing citizens that a Back-Flow Incident Leads to Discontinuation of Tap Water Usage
Citywide Until Further Notice.
5.2

The Contamination Notice stated: Late today an unknown chemical substance may

have contaminated the City of Corpus Christi drinking water due to a recent back-flow incident in the
industrial district, and further advised citizens to avoid tap water usage until further notice.
5.3

Citizens of the City were specifically warned against treating the water themselves, that

[b]oiling, freezing, filtering, adding chlorine or other disinfectants, or letting the water stand will not
make the water safe, and that all contact with tap water should be avoided[o]nly bottled water
should be used for all drinking, beverage and food preparation (including baby formula and juice),
making ice, brushing teeth, washing dishes or clothes, washing hands, and bathing until further
notice.

5.4

Plaintiff Brewster Street is a full-service restaurant located in Corpus Christi, Texas

that has incurred significant damages because of the water contamination.

5.5

Plaintiff Eleanors is a full-service coffee bar and market located in Corpus Christi,

Texas that has incurred significant damages because of the water contamination.
5.6

Plaintiff Shoreline Sandwich is a full-service restaurant with multiple locations in

Corpus Christi, Texas that has incurred significant damages because of the water contamination.
5.7

Plaintiff Brite Star Construction is a construction company located in Corpus Christi,

Texas that has incurred significant damages because of the water contamination.
5.8

Plaintiff Brite Star Remodeling is a construction and remodeling company located in

Corpus Christi, Texas that has incurred significant damages because of the water contamination.
5.9

Plaintiff Mustang Island is a construction company located in Corpus Christi, Texas

that has incurred significant damages because of the water contamination.

5.10

Plaintiff VBB Construction is a construction company and also a holder of rental

properties located in Corpus Christi, Texas that has incurred significant damages because of the water
contamination.
5.11

Plaintiff Nemo Court is a construction company and also a holder of rental properties

located in Corpus Christi, Texas that has incurred significant damages because of the water
contamination.
5.12

Plaintiff Tease Salon is a full-service salon and spa located in Corpus Christi, Texas

that has incurred significant damages because of the water contamination.

5.13

Plaintiff Murphy is the owner and operator of Plaintiff Tease located in Corpus Christi,

Texas that has incurred significant damages because of the water contamination.
5.14

Plaintiff Aligno is a hair stylist working for Plaintiff Tease in Corpus Christi, Texas

that has incurred significant damages because of the water contamination.

5.15

Plaintiff Guerra is a hair stylist working for Plaintiff Tease in Corpus Christi, Texas

that has incurred significant damages because of the water contamination.

5.16

Plaintiff Salon Salon is a full-service salon and spa located in Corpus Christi, Texas

that has incurred significant damages because of the water contamination.

5.17

Plaintiff Villarreal is a hair stylist working for Plaintiff Salon Salon located in Corpus

Christi, Texas that has incurred significant damages because of the water contamination.
5.18

Plaintiff Delgado is a professional housekeeper located in Corpus Christi, Texas and

has incurred significant damages because of the water contamination.

5.19

Plaintiff Eiermann is a professional tattoo artist located in Corpus Christi, Texas and

has incurred significant damages because of the water contamination.

5.20

As of the date of this filing, the water restriction has not been lifted and Plaintiffs

continue to incur significant damages.

5.21

Upon information and belief, Defendants conduct caused a back-flow incident at

the Valero Plant in Corpus Christi, Texas (the Valero Plant) which injected an asphalt emulsifier
pollutant called Indulin AA-86 into the Citys water supply.
5.22

Indulin AA-86 is considered hazardous by the OSHA Hazard Communication

Standard. See http://www.sfm.state.or.us/CR2K_SubDB/MSDS/INDULIN_AA_86.PDF.

It

causes respiratory tract, eye and skin burns, can cause an allergic skin reaction and can cause target
organ damage. See id. Moreover, it is corrosive to the respiratory system and can cause serious health
effects. See id.

VI.
CAUSES OF ACTION
A.

NEGLIGENCE
6.1

Plaintiffs incorporate the foregoing allegations as if set forth verbatim.

6.2

Plaintiffs allege that the back-flow incident and the resulting injuries and damages

suffered by Plaintiffs were caused by the negligence and fault of Defendants. Specifically, these acts
and/or omissions include, but are not limited to the following:
a.

Failure to maintain a safe work place;

b.

Failure to have a reliable system or device at the Valero Plant to prevent the
release or warn of the release;

c.

Failure to perform work in a safe and prudent manner;

d.

Failure to exercise reasonable and prudent care in the operations which were
occurring at the Valero Plant on the date(s) at issue;

e.

Failure to implement, follow and enforce proper operations procedures;

f.

Failure to implement, follow and enforce proper safety procedures;

g.

Failure to implement, follow and enforce proper hazard analysis;

h.

Operating the Valero Plant with institutional ignorance of or defiance to a

culture of safety and accountability;

i.

Failure to inspect and maintain equipment associated with the refining process;

j.

Ignoring process safety hazard data related to past incidents and

toxic/chemical releases at the Valero Plant;

k.

Causing and permitting to be caused a release of numerous toxic chemicals

which resulted in contamination of the Citys water supply on which Plaintiffs
rely;

l.

Operating the Valero Plant without appropriate and trained staffing and
supervision of plant units;

m.

Operating the Valero Plant with equipment and processes that defy reasonable
engineering, industry and regulatory practices;

n.

Managerial acceptance or encouragement of normalized deviation from

appropriate refining procedures;

6.3

o.

Failing to implement, follow, enforce and/or train regarding proper hazard

analysis;

p.

Failing to maintain a reliable system and/or device at the Plant to prevent the
release or to warn of the release of toxic and poisonous chemicals;

q.

Undertaking a conscious effort to reduce costs and staffing at the expense of

safety;

r.

Continuing to operate damaged and dysfunctional equipment at the expense

of safety and well-being of the workers at the Valero Plant and the Corpus
Christi/Nueces County community;

s.

Failing to adopt proper operating procedures;

t.

Failing to comply with proper operating procedures;

u.

Improperly supervising and failing to supervise operation of the Plant unit at

issue;

v.

With respect to the backflow incident, failing, purely out of consideration of

costs and profits, to shut down the implicated unit to make the necessary
repairs for the protection of the community;

w.

Failing to warn residents of the affected community after it was known that
dangerous and toxic chemicals were being released into the water supply;

x.

Ratifying and approving improper and dangerous operating procedures,

routines and practices;

y.

Failing to make proper modifications and perform appropriate maintenance;

z.

Failing to budget proper maintenance and required modifications,

improvements and updates to the equipment and facility;

aa.

Failing to properly warn and notify the neighboring residents regarding the
release and dangers from prior and subsequent contamination events; and

bb.

Such other acts and omissions which may be discovered and presented at trial.

As a result of these negligent acts and/or omissions, Plaintiffs have suffered injuries

and damages.
B.

GROSS NEGLIGENCE
6.4

Plaintiffs incorporate the foregoing allegations as if set forth verbatim.

6.5

Plaintiffs would show that the conduct of the Defendants described herein constitutes

gross negligence as defined Texas Civil Practice & Remedies Code 41.001(11)(A)-(B). Defendants are
liable to Plaintiffs for gross negligence, including but not limited to:

6.6

a.

Defendants consciously and/or deliberately engaged in recklessness, willfulness,

wantonness and/or malice through Defendants actions and/or inactions and
Defendants should be liable in punitive and exemplary damages to Plaintiffs;

b.

Defendants actions or inactions directly and proximately caused severe injuries

to Plaintiffs, which resulted in the damages detailed herein.

Defendants grossly negligent conduct proximately caused Plaintiffs severe injuries and

damages. As a result of such gross negligence, Plaintiffs are entitled to exemplary damages.
C.

NEGLIGENCE PER SE
6.7

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.8

Defendants actions violate Texas law (including without limitation, the Texas Clean Air

Act, Chapter 382 of the Texas Health and Safety Code, Chapter 7 of the Texas Water Code, and TCEQ
rules and orders promulgated under these statutes) which are intended to protect the publics health and
safety by regulating plant operations, emissions and the reporting of toxic chemical emissions, releases,
leaks and spills. Plaintiffs are among those classes of persons intended to be protected by the
environmental laws of the State of Texas.
6.9

As a result of these acts and omissions by Defendants, such violations of state law have

resulted in a breach of duty to Plaintiffs. Moreover, Defendants continuous and inexcusable violations
of state laws and regulations have been and are presently the proximate cause of Plaintiffs severe injuries
and damages.
D.

RES IPSA LOQUITOR

6.10

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.11

Plaintiffs also specifically plead the doctrine of res ipsa loquitor. Plaintiffs would show that

the character of the water contamination is such that it would not ordinarily happen in the absence of

negligence and the acts or omissions of the equipment and personnel that led to the releases were under
the control of Defendants, their agents, servants, employees and vice- principals at all relevant times.
E.

STRICT LIABILITY FOR ULTRAHAZARDOUS ACTIVITY

6.12

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.13

Plaintiffs further allege that the operation of the Valero Plant in its original and

damaged/defective condition was extremely hazardous and fraught with danger, and therefore,
constituted an ultra-hazardous activity under Texas law.
6.14

Accordingly, Defendants are strictly liable for Plaintiffs injuries and damages proximately

caused by the release of toxic chemicals into the Citys water supply.
F.

COMMON LAW ASSAULT AND BATTERY

6.15

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.16

Defendants exposed Plaintiffs to toxic chemicals as a result of the backflow incident.

Plaintiffs allege that Defendants conduct of releasing these chemicals was committed purposefully, or
was committed with substantial knowledge that harm would result to Plaintiffs. Defendants purposefully
contacted Plaintiffs bodies, or had substantial knowledge that their actions would cause such contact,
and the resulting harm that occurred. Such contact harmed Plaintiffs. Plaintiffs therefore seek all damages
allowed by law for such assault and battery.
6.17

Plaintiffs would further show that Defendants conduct was deliberate and intentional or

was committed with substantial knowledge that thousands of people would be exposed to toxic
chemicals and severely harmed by Defendants conduct. By deliberately and intentionally exposing
Plaintiffs and others who worked or lived near the Valero Plant to the hazards of toxic chemicals,
Defendants committed aggravated assault upon Plaintiffs and others, such conduct having proximately
caused the incident in question, and the resulting injuries and damages to Plaintiffs.
G.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

6.18

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.19

Plaintiffs would show that the conduct of Defendants, as more particularly described

above, was intentional, reckless, extreme and outrageous, and inflicted severe emotional distress on
Plaintiffs.
H.

PUBLIC AND PRIVATE NUISANCE AND NUISANCE AS A MATTER OF LAW

6.20

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.21

Plaintiffs own or occupy land near the Plant and affected by Defendants conduct during

the relevant time period.

6.22

Defendants acts and omissions, beginning in December 2016 caused the Valero Plant to

be a private and public nuisance and a nuisance per se.

6.23

The ongoing release of chemicals substantially trespassed upon, interfered with, and

invaded the Plaintiffs use and enjoyment of their land, as well as the interests of those owning or
occupying land in or near the Plant by Defendants intentional conduct, negligence, gross negligence,
and negligence as a matter of law. Defendants acts and omissions clearly impair the comfortable
enjoyment of life and property for those who own or occupy property near the Valero Plant and have
caused such persons extreme annoyance, discomfort, fear and loss of peace of mind.
6.24

Further, the acts and omissions complained herein caused contamination of the

Plaintiffs property, and the water on, coming to, and adjacent to the Plaintiffs property, and further
caused the Plaintiffs property to be contaminated with toxins. This contamination was and is harmful
to the health of one or more Plaintiffs property owners, was and is offensive to their senses, and will
obstruct the free use and enjoyment of their property.
6.25

Defendants, for their own purpose and economic profit, chose to create, handle and

maintain the aforementioned toxins at the Plant. In doing so, Defendants released into the water system,
surface water and/or subsurface water to become contaminated which, as a matter of law, constitutes an
abnormally dangerous activity.

6.26

Defendants conduct in producing toxins and causing them to contaminate the property

and water of one or more Plaintiffs is actionable under the rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous conditions or activities or instrumentalities.
6.27

Because Defendants created an abnormally dangerous condition and because Defendants

engaged in an abnormally dangerous activity, Defendants are strictly liable to the Plaintiffs for any harm
and injury caused by the abnormally dangerous toxins.
6.28

As a direct and proximate consequence of the nuisance created by Defendants, Plaintiffs

have been damaged.

I.

TRESPASS
6.29

Plaintiffs incorporate the foregoing allegations herein as if set forth verbatim.

6.30

Plaintiffs would show that Defendants, in furtherance of their business interests, caused

the aforementioned toxins to be produced and released during the conduct of their business at the Valero
Plant.
6.31

Defendants, at all relevant times, negligently, recklessly or intentionally, or as a result of

the abnormally dangerous activity of producing toxins at the Valero Plant, caused the property of
Plaintiffs to be invaded by the aforementioned toxins, causing great harm and substantial harm to the
person, land and chattels of the property-owning Plaintiffs.
VII.
DAMAGES
7.1

Plaintiffs seek unliquidated damages in an amount that is within the jurisdictional limits

of this Court, including compensatory and monetary damages from Defendants to compensate it for the
damages incurred.
7.2

As a direct and proximate result of the conduct of Defendants, Plaintiffs are entitled to

damages for the injuries they have sustained as a result of this incident.

VIII.
EXEMPLARY DAMAGES
8.1

As a result of the gross negligence of Defendants, they should have exemplary damages

assessed against them in such an amount as the jury may find appropriate.
8.2

Such gross negligence was a proximate cause of the incident made the basis of this suit,

the injuries to Plaintiffs, and the damages sustained by the Plaintiffs.

IX.
JURY DEMAND
9.1

Plaintiffs demand a jury trial and tenders the appropriate fee with this petition.
X.
CONDITIONS PRECEDENT

10.1

All conditions precedent to Plaintiffs claims for relief have been performed or have

occurred.
XI.
REQUEST FOR DISCLOSURE
11.1

Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs request that Defendants

disclose, within fifty (50) days of the service of this request, the information or material described in Rule
194.2.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to appear
and answer herein, that this cause be set for trial before a jury, and that Plaintiffs have and recover
judgment of and from Defendants, jointly and severally, for their actual damages in such amount as the
evidence may show and the jury may determine to be proper, together with prejudgment interest, postjudgment interest, costs of court, and such other and further relief to which they may show themselves
to be justly entitled.

Respectfully submitted,
By:

/s/ Clif Alexander

Clif Alexander
Texas Bar No. 24064805
clif@a2xlaw.com
Austin W. Anderson
Texas Bar No. 24045189
austin@a2xlaw.com
Lauren E. Braddy
Texas Bar No. 24071993
lauren@a2xlaw.com
ANDERSON2X, PLLC
819 N. Upper Broadway
Corpus Christi, Texas 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
ATTORNEYS FOR PLAINTIFFS