3/10/2021 9:50 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-21-001097______D-1-GN-21-001097 Ruben Tamez A2/FALLS ON BULL CREEK, LLC, § IN THE DISTRICT COURT ET AL. § § Plaintiffs, § § v. § TRAVIS COUNTY, TEXAS § § CITY OF AUSTIN D/B/A AUSTIN § ENERGY, § § Defendant. § 250TH_____ JUDICIAL DISTRICT

PLAINTIFFS’ ORIGINAL PETITION

Plaintiffs A2/Falls on Bull Creek, LLC, PAC Apartments, LLC, and Treehouse Apartments

Austin, LLC file this Original Petition, complaining of Defendant City of Austin d/b/a Austin

Energy, and for cause of action would show the Court as follows:

DISCOVERY CONTROL PLAN

1. Discovery is intended to be conducted under Level 3 pursuant to Texas Rule of

Civil Procedure 190.4.

CLAIMS FOR RELIEF

2. Pursuant to Texas Rule of Civil Procedure 47, plaintiffs are presently seeking monetary relief over $200,000.00 but less than $1,000,000.00.

PARTIES

3. Plaintiff A2/Falls on Bull Creek, LLC (“Falls on Bull Creek”) is a limited liability company organized under the laws of Delaware with its principal place of business in Harris

County and/or Travis County, Texas. 4. Plaintiff PAC Apartments, LLC (“Park at Crestview”) is a limited liability company organized under the laws of Delaware with its principal place of business in Harris County and/or

Travis County, Texas.

5. Plaintiff Treehouse Apartments Austin, LLC (“Treehouse”) is a limited liability company organized under the laws of Delaware with its principal place of business in Harris

County and/or Travis County, Texas.

6. Falls on Bull Creek, Park at Crestview and Treehouse shall be collectively referred to as “Plaintiffs.”

7. Defendant City of Austin d/b/a Austin Energy (“Austin Energy”) is a public utility owned by the City of Austin. Austin Energy can be served with process by serving

Jannette Goodall, City Clerk, Austin City Hall, 301 W. Second Street, Suite 1120, Austin, Texas

78701.

8. A municipality’s operation and maintenance of a public utility is a proprietary function. As such, Austin Energy is not shielded by governmental immunity.

JURISDICTION AND VENUE

9. The damages sought herein are within the jurisdictional limits of this Court.

10. All or a substantial part of the events or omissions giving rise to the claims asserted herein occurred in Travis County, Texas. Venue is therefore proper in Travis County,

Texas pursuant to Sections 15.002(a)(1) of the Texas Civil Practice & Remedies Code.

FACTUAL BACKGROUND

A. Austin Energy’s Duties

11. Austin Energy is a transmission and distribution utility responsible for the safe and reliable delivery of electric power to customers throughout the greater Austin area, including to all of the properties owned by Plaintiffs as set forth below. 2

12. Under applicable law, Austin Energy must, among other things, (a) use reasonable diligence to provide a continuous and adequate delivery of electric power; (b) construct, own, operate and maintain its delivery systems in accordance with good utility practices; and (c) discharge its responsibilities in a neutral manner, not favoring or burdening any particular customer such as Plaintiffs.

13. Applicable law further requires Austin Energy to “make reasonable efforts to prevent interruptions of services” and “make reasonable provisions to manage emergencies resulting from failure of service.”

B. Winter Storm Uri

14. A winter storm (Uri) spread snow and ice across Texas from approximately

February 12, 2021 through February 16, 2021. In addition to snow and ice, Texas experienced extremely cold temperatures that lasted through at least February 20, 2021.

C. Plaintiffs’ Damages

15. Falls on Bull Creek is the owner of a multi-family property with 344 units located at 8527 North Capital of Texas Highway, Austin, Texas. Falls on Bull Creek was without electric power from February 15 to February 20, 2021. As a direct and proximate result of the loss of electric power, Falls on Bull Creek had burst pipes and water damage.

16. Park at Crestview is the owner of a multi-family property with 248 units located at

8220 Research Blvd., Austin, Texas. Park at Crestview was without electric power from February

13 to February 16, 2021. As a direct and proximate result of the loss of electric power, Park at

Crestview had burst pipes and water damage (including several collapsed ceilings).

17. Treehouse is the owner of a multi-family property with 297 units located at 2501

Wickersham Lane, Austin, Texas. Treehouse was without electric power from February 15 to

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February 18, 2021. As a direct and proximate result of the loss of electric power, Treehouse had burst water pipes and water damage.

D. Austin Energy’s Refusal to Implement Recommended Practices

18. Texas has previously experienced severe cold weather events in at least 1983, 1989,

2003, 2006, 2008, 2010 and 2011. Thus, Uri was not unprecedented, unforeseeable or unexpected.

19. The 2011 cold weather event resulted in significant power outages. The Federal

Energy Regulatory Commission and the North American Electric Reliability Corporation thereafter created a joint task force to understand the cause of the outages. Upon the conclusion of its investigation, the task force issued a several-hundred page report that included extensive recommendations.

20. Among other things, the report recommended that transmission operators (such as

Austin Energy):

a. consider preparation for the winter season as critical as preparation for the summer peak season;

b. consider developing mechanisms to verify that units that have fuel switching capabilities can periodically demonstrate those capabilities;

c. take the steps necessary to ensure that black start units can be initiated during adverse weather and emergency conditions;

d. require generator owners/operators to provide accurate ambient temperature design specifications and verify that temperature limit information is kept current and use this information to determine whether individual generation units will be available during extreme weather events;

e. obtain from generator owners/operators their forecasts of real output capacity in advance of an anticipated severe weather event and that such forecasts should take into account both the temperature beyond which the availability of the generating unit cannot be assumed and the potential natural gas curtailments;

f. ensure that transmission facilities are capable of performing during cold weather conditions;

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g. examine their emergency communications protocol or producers to ensure that not too much responsible is placed on a single system operator or on other key personnel during an emergency;

h. conduct critical load review for gas production and transmission facilities and determine the level of protection such facilities should be accorded in the event of system stress or load shedding;

i. conduct proper load shedding procedures and conduct periodic drills to maintain their load shedding skills.

21. More interested in profits than providing a safe and reliable source of electric power, Austin Energy, upon information and belief, failed to implement the recommendations set forth above as well as others put forward in the report. Upon information and belief, Austin

Energy’s refusal to implement these recommendations was the cause of the electric power outages suffered by Plaintiffs.

E. Service Outages Resulting from Uri

22. On February 15, 2021, Austin Energy issued a press release advising that the

Electric Reliability Council of Texas (“ERCOT”) has declared an energy emergency. Austin

Energy advised that rotating outages would be needed and described rotating outages as “typically limited to 10 to 40 minutes – but may last longer – before being rotated to another location.”

23. As noted above, Plaintiffs’ outages lasted anywhere from 3 days to 5 days. Had

Austin Energy truly engaged in rotated outages as represented in the press release, Plaintiffs’ would not have suffered freezing pipes and the damages resulting therefrom. Austin Energy’s implementation of the outages was not reasonable or neutral.

CAUSE OF ACTION

COUNT I – NEGLIGENCE

24. Paragraphs 1-23 above are incorporated by reference.

25. Austin Energy owed Plaintiffs a duty to, among other things:

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(a) safely and reliably deliver electric power;

(b) use reasonable diligence to provide a continuous and adequate delivery of electric power;

(c) construct, own, operate and maintain its delivery systems in accordance with good utility practices;

(d) discharge its responsibilities in a neutral manner, not favoring or burdening any particular customer;

(e) make reasonable efforts to prevent interruptions of service; and

(f) make reasonable provisions to manage emergencies resulting from failure of service.

26. Through its acts and omission as described above, Austin Energy breached its duties to Plaintiffs.

27. Austin Energy’s conduct constitutes negligence per se.

28. As a direct and proximate result of Austin Energy’s acts and omissions, Plaintiffs lost power at their properties and suffered the damages described herein.

29. Austin Energy’s acts and omissions described above involved an extreme degree of risk or harm to others, including Plaintiffs. Despite knowledge of this extreme risk of harm, Austin

Energy persisted in performing the acts and omissions described herein with conscious indifference to, and reckless disregard of, the rights, safety and welfare of others, including

Plaintiffs. Such gross negligence was a proximate cause of Plaintiffs’ injuries and entitles

Plaintiffs to an award of exemplary damages.

CONDITIONS PRECEDENT

30. All conditions precedent have occurred or been performed.

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JURY DEMAND

31. Plaintiffs hereby demand a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that after a final trial on the merits, the Court enter judgment awarding Plaintiffs the following:

(1) actual damages;

(2) exemplary damages;

(3) pre-judgment and post-judgment interest as allowed by law at the maximum legal rate;

(4) costs of court; and

(5) all such other and further relief, both general and special, at law and in equity, to which Plaintiffs may be justly entitled.

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Respectfully submitted,

By: /s/ Michael E. Richardson Robert C. Hilliard State Bar No. 09677700 [email protected] Michael E. Richardson State Bar No. 24002838 [email protected] Marion M. Reilly State Bar No. 24079195 [email protected] Hilliard Martinez Gonzales LLP 719 S. Shoreline Blvd. Corpus Christi, Texas 78401 Telephone: (361) 882-1612 Facsimile: (361) 882-3015

[email protected] *service by e-mail to this address only

ATTORNEYS FOR PLAINTIFFS

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