NO.

REFUGIO REYES § IN THE DISTRICT COURT OF

§
§
V. § HARRIS COUNTY, TEXAS
§
§
INTERCONTINTAL TERMINALS §
COMPANY, LLC § JUDICIAL DISTRICT

PLAINTIFF’S ORIGINAL PETITION, REQUESTS FOR

DISCLOSURES, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff, Refugio Reyes, files this Original Petition and Application for Temporary

Restraining Order against Defendant, Intercontinental Terminals Company, LLC, and alleges as

follows:

DISCOVERY-CONTROL PLAN

1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

Procedure 190.4 and affirmatively pleads that this suit is not governed by the expedited-actions

process in Texas Rule of Civil Procedure 169 because Plaintiff seeks injunctive relief.

CLAIM FOR RELIEF

2. Plaintiff seeks monetary relief of $75,000 or less and nonmonetary relief.

PARTIES

3. Refugio Reyes is a citizen of the State of Texas, and is a resident of Deer Park,

Texas.

4. Defendant Intercontinental Terminals Company, LLC is a Delaware Limited

Liability Company, with its principal place of business at 1021 Main St, STE 1150, Houston, TX

77002. Intercontinental Terminals LLC may be served through its registered agent at CT

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Corporation System, 1999 Bryan St., STE 900, Dallas, TX 75201.

JURISDICTION

5. Jurisdiction is proper because Defendant ITC is registered to do business in Texas

and has a principal place of business in Harris County, Texas.

VENUE

6. Harris County, Texas is proper venue because the conduct that gives rise to the

injuries complained herein occurred in Harris County, Texas.

FACTS

7. On March 17, 2019, at the Intercontinental Terminals tanking facility in Deer

Park, Texas in Harris County, Texas, an industrial fire ignited. For the next three days the fire

raged as concerned citizens watched a dark black cloud of smoke engulf the surrounding areas

for miles. The fire was fueled by chemicals contained in multiple industrial chemical holding

tanks present at the ITC Deer Park facility. The tanks fueling the industrial fire contained

chemicals including naphtha, xylene, and pyrolysis gas. Following the 4-day industrial fires the

cities of Deer Park, Pasadena, and Laporte were ordered to shelter in place. On multiple

occasions air quality tests revealed chemical exposure in the air of a range of chemicals

including benzene, a highly toxic chemical agent.

8. As shelter in place alarms rang throughout the cities, the public sheltered

COUNT 1 – PRIVATE NUISANCE

9. Defendant created an interference with Plaintiff’s private interest in his personal

property in 914 Briarwood, Deer Park, Texas. Specifically, Defendant ITC’s negligent and/or

unreasonable conduct creating and failing to extinguish the March 17th industrial fire resulted in

the condition that substantially interfered with Plaintiff’s private land use and enjoyment of the

land. Specifically, ITC’s conduct resulted in multiple shelter in place emergency advisories for

2
the City of Deer Park. As a result, Plaintiff was forced to secure all air entry points and turn off

the air conditioning cooling system in his home for hours at a time. Defendant ITC’s conduct

resulted in Plaintiff sitting indoors, as the emergency sirens went off, in fear for his life. The

nuisance caused by Defendant ITC was a direct and proximate cause of his injuries.

10. Plaintiff suffers and continues to suffer

11. Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court.

Additionally, Plaintiff seeks a temporary restraining order and injunction in efforts to preserve all

relevant evidence at this time.

DAMAGES

12. The actions and conduct of the Defendant set forth above are the proximate cause

of Plaintiff’s serious injuries. Plaintiff’s damages include, but are not limited to, loss of market

value use of property, sickness, annoyance, discomfort, and other substantial bodily injury

caused by the nuisance that impairs the comfortable enjoyment of his real property. In reasonable

probability, Plaintiff will continue to suffer these damages in the future.

EXEMPLARY DAMAGES

13. Plaintiff’s injury resulted from defendant’s gross negligence, malice, or fraud,

which entitles plaintiff to exemplary damages under Texas Civil Practice & Remedies Code

section 41.003(a). Specifically, Defendant’s gross negligence in its creation of the industrial fire,

as well as its failure to contain and extinguish the fire resulted in a four-day continuation of

Plaintiff living in fear for his life.

EQUITABLE RELIEF

14. Plaintiff seeks a temporary restraining order

JURY DEMAND

15. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

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 CONDITIONS PRECEDENT

16. All conditions precedent to plaintiff’s claim for relief have been performed or

have occurred.

REQUEST FOR DISCLOSURE

17. Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant

disclose, within 50 days of the service of this request, the information or material described in

Rule 194.2.

OBJECTION TO ASSOCIATE JUDGE

18. Plaintiff objects to the referral of this case to an associate judge for hearing a trial

on the merits or presiding at a jury trial.

PRAYER

19. For these reasons, plaintiff asks that the Court issue citation for defendant to

appear and answer, and that plaintiff be awarded a judgment against defendant for the following:

a. Actual damages;

b. Such equitable relief enjoining Defendant from destruction of all relevant

evidence;

c. Exemplary damages;

d. Prejudgment and post-judgment interest;

e. Court costs;

f. Attorney fees; and

g. All other relief to which plaintiff is entitled.

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 Respectfully submitted,

FARRAR & BALL, LLP

/s/ William R. Ogden

WILLIAM R. OGDEN
State Bar No. 24073531
1010 Lamar, Ste. 1600
Houston, Texas 77002
Office: (713) 221-8300
Facsimile: (713) 221-8301
Email: [email protected]

CHANCE MCMILLAN
State Bar No. 24078981
4400 Louisiana St, Ste 1200
Houston, Texas 77002
Office: 281-888-2131
Facsimile: 832-831-2175
Email: [email protected]

ATTORNEYS FOR PLAINTIFF

5
 NO.

REFUGIO REYES § IN THE DISTRICT COURT OF

§
§
V. § HARRIS COUNTY, TEXAS
§
§
INTERCONTINTAL TERMINALS §
COMPANY, LLC § JUDICIAL DISTRICT

PLAINTIFF’S APPLICATION FOR TEMPORARY RESTRAINING ORDER AND

TEMPORARY INJUNCTION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES REFUGIO REYES (“Plaintiff”), and files this Plaintiff’s Application For

Temporary Restraining Order and Temporary Injunction (“Application”), and in support thereof

would respectfully show unto the Court the following:

I.
FACTS

1. On March 17, 2019, at the Intercontinental Terminals tanking facility in Deer

Park, Texas in Harris County, Texas, an industrial fire ignited. For the next three days the fire

raged as concerned citizens watched a dark black cloud of smoke engulf the surrounding areas

for miles. The fire was fueled by chemicals contained in multiple industrial chemical holding

tanks present at the ITS Deer Park facility. The tanks fueling the industrial fire contained

chemicals including naphtha, xylene, and pyrolysis gas. Following the 4-day industrial fires the

cities of Deer Park, Pasadena, and Laporte were ordered to shelter in place. On multiple

occasions air quality tests revealed chemical exposure in the air of a range of chemicals

including benzene, a highly toxic chemical agent.

6
 II.
APPLICATION FOR TEMPORARY RESTRAINING ORDER
AND TEMPORARY INJUNCTION

2. Plaintiff hereby incorporates Section I above as evidence of wrongful acts

committed by the Defendant. Plaintiff asks this Court to issue a temporary restraining order and,

upon hearing, a temporary injunction enjoining Defendant from destruction of all relevant

evidence including, but not limited to, emails, radio transmissions, memorandums, and other

documents relating to or referencing the March 17, 2019 industrial fire. Such relief is necessary

so that the parties may ensure proper preservation of evidence for use in litigation and avoid any

prejudice that the parties may suffer due to spoliation.

3. Unless Defendant is immediately so restrained and enjoined, Plaintiff will suffer

immediate and irreparable injury, loss, or damage as stated herein before notice can be served

and a hearing had on the matters stated herein. Plaintiff fears that if evidence preservation is not

properly addressed now, Plaintiff will suffer ongoing problems well into the future, including but

not limited to an inability to properly and adequately investigate his claims and gather evidence

for this litigation. Plaintiff therefore has no adequate remedy at law.

4. A temporary restraining order and temporary injunction are required to maintain

the status quo, prevent further destruction of potential evidence, and avoid the risk of spoliation.

The harm is imminent and ongoing.

5. Plaintiff is willing to post bond. Plaintiff therefore requests a bond appropriate for

these circumstances be ordered.

6. Plaintiff asks the Court to set her application for temporary injunction for hearing

and, after the hearing, issue a temporary injunction against Defendant for the reasons set for

above.

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 III.
CONDITIONS PRECEDENT

7. All conditions precedent have been met, waived, or are excused.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendant

herein be duly cited in terms of law to appear and answer herein, or voluntarily appear and

answer herein, and that upon final hearing of this matter that Plaintiff have judgment against

Defendant for a Temporary Restraining Order and a Temporary Injunction. Plaintiff prays for

all relief, special and general, at law and in equity, to which she may show herself to be justly

entitled.

Respectfully submitted,

FARRAR & BALL, LLP

/s/ William R. Ogden

WILLIAM R. OGDEN
State Bar No. 24073531
1010 Lamar, Ste. 1600
Houston, Texas 77002
Office: (713) 221-8300
Facsimile: (713) 221-8301
Email: [email protected]

CHANCE MCMILLAN
State Bar No. 24078981
4400 Louisiana St, Ste 1200
Houston, Texas 77002
Office: 281-888-2131
Facsimile: 832-831-2175
Email: [email protected]

ATTORNEYS FOR PLAINTIFF