Topletz Wants Lawsuit Tossed
Topletz Wants Lawsuit Tossed
Topletz Wants Lawsuit Tossed
DALLAS COUNTY
1/4/2016 4:01:17 PM
FELICIA PITRE
DISTRICT CLERK
Dennis Topletz, Casey Topletz, Vickie Topletz, and Steven Topletz are
The real properties named by the City as 2501 Bethurum Ave., Dallas,
Texas, In Rem; 1231 Iowa Ave., Dallas, Texas, In Rem; 2603 Modree Ave., Dallas, Texas,
In Rem; 3803 Octavia St., Dallas, Texas, In Rem; 1304 Pennsylvania Ave., Dallas, Texas,
In Rem; 2705 Pennsylvania Ave., Dallas, Texas, In Rem; and 1203 Strickland St., Dallas,
Texas are hereafter referred to collectively as the Defendant Properties).
4.
The Defendant Properties and the Topletz Properties (as defined below)
of the Estate of Jack Topletz, and 3737 Guaranty St., Dallas, Texas, in rem (hereafter the
Levin Defendants) have already appeared and answered herein.
INTRODUCTION
6.
This is an action by the City against the Individual Defendants, the Levin
(2)
(3)
Close the Defendant Properties for a period of one (1) year from the
date of final judgment in this action;
(b)
1 The City offers no explanation of what these specific requirements are or would be or any legal basis for the
2 References to the City Code are hereafter cited as City Code, ______.
(c)
CODE
64.001
and
TEXAS
LOCAL
GOVERNMENT
CODE
OF
Dallas Police Department to enter into and onto the Topletz Properties, without the
necessary warrants or compliance with probable cause requirements, for the purpose of
inspecting and searching the Topletz Properties for alleged violations of the Dallas
City Code by the Topletz Defendants and their tenants.
PROCEDURAL HISTORY
8.
Defendants have this day filed their Defendants Plea in Abatement (the
have been filed subject to the Courts rulings on this Motion and the Venue Motion.
PLEA TO THE JURISDICTION
10.
Defendants would show that the Court lacks subject matter jurisdiction of
the claims and causes of action asserted by the City herein for one or more of the
following reasons:
(a)
The City has failed to exhaust the required administrative remedies in that
it has failed to comply with the requirements and prerequisites of Section
214.003(b) of the TEXAS LOCAL GOVERNMENT CODE prior to filing its action
for the appointment of a receiver.
(b)
The City has failed to exhaust the required administrative remedies in that
it has failed to implement and comply with the requirements of the City
Code under Sections 27-16.3 et seq. of Article IV-a to initiate actions before
the Municipal Court relating to enforcement of ordinances for the
abatement of an urban nuisance.
(c)
The City has failed to exhaust the required administrative remedies in that
it has failed to implement and comply with the alternative administrative
requirements of the City Code under Sections 27-16.12 et seq. of Article IVb relating to enforcement of public heath and safety ordinances under
Chapter 54 of the TEXAS LOCAL GOVERNMENT CODE.
(d)
The injunctive relief requested by the City for the abatement of alleged
common nuisance as to the Defendant Properties is not ripe for
adjudication since there has been no final determination that Topletz
Defendants or Defendant Properties are actually in violation of Dallas City
Code.
(e)
The request by the City for the appointment of a receiver over the
Properties is not ripe for adjudication since there has been no final
determination that Topletz Defendants or Defendant Properties are
actually in violation of Dallas City Code.
A.
Defendants would request that the Court dismiss this action for lack of
jurisdiction for the reason that the City has failed to comply with the requirements of
Section 214.003(b) of the TEXAS LOCAL GOVERNMENT CODE.
12.
The statutory basis asserted by the City as authority for the appointment
action for the appointment of a receiver under Section 214.003(b), it must have complied
with and completed the three requirements thereof:
(a)
There must have been a prior determination by the Municipal Court that
the Defendants and their Properties are in violation of the City ordinances
in question [TEX. LOCAL GOVT. CODE 214.003(b)(1)];
(b)
and/or
their
Properties
[TEX.
LOCAL
GOVT.
CODE
214.003(b)(3)].
14.
Nowhere in the Citys Petition is there any indication that the City has
complied with and met the requirements of TEX. LOCAL GOVT. CODE 214.003(b).
15.
In fact, there are no facts whatsoever alleged by the City that any citations
have been issued for code violations to the Defendants and/or their Properties, that any
notices required by the statute and the City Code have been given, or that there have
been any final, non-appealable determinations by the Municipal Court that the
Defendants and/or their Properties have indeed violated any of the City ordinances in
question.
16.
As such, Defendants request that the Court dismiss this action for lack of
jurisdiction for the reason that the City has complied with the requirements of TEX.
LOCAL GOVT. CODE 214.003(b).
B.
Defendants would further request that the Court dismiss this action for
the reason that the City has failed to implement and comply with the following
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 8
requirements of the City Code under Sections 27-16.3 et seq. of Article IV-a relating to
enforcement of ordinances for the abatement of an urban nuisance:
(a)
(b)
(c)
(d)
(e)
18.
As such, Defendants request that the Court dismiss this action for the
reason that there has been no final, non-appealable determination under the applicable
provisions of the City Code as set forth above that the Defendants and/or their
properties are in violation of the ordinances in question.
C.
this action for the reason that the City has failed to implement and comply with the
following alternative administrative requirements of the City Code under Sections 2716.12 et seq. of Article IV-b relating to enforcement of public heath and safety ordinances
under Chapter 54 of the TEXAS LOCAL GOVERNMENT CODE:
(a)
(c)
The filing of an answer to the citation by the property owner (City Code
27-16.15);
(d)
(e)
20.
As such, Defendants request that the Court dismiss this action for the
reason that there has been no final, non-appealable determination under the applicable
provisions of the City Code as set forth above that the Defendants and/or their
properties are in violation of the ordinances in question.
D.
As noted above, Defendants would show that, in its Petition, the City
asserts claims for injunctive relief and the appointment of a receiver under TEXAS LOCAL
GOVERNMENT CODE 214.003 relating to the Defendants and their Properties.
22.
However, Defendants would show that the Petition does not present a
justiciable controversy that is ripe for determination by this Court for the reason that
there has been no final non-appealable determination or judgment that the Defendants
and/or their Properties are in violation of any provisions of the City Code.
23.
In Reno v. Catholic Social Servs., Inc., the United States Supreme Court has
stated that the ripeness doctrine is drawn both from Article III limitations on judicial
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 10
power and from prudential reasons for refusing to exercise jurisdiction. 509 U.S. 43, 57
n.18 (1993) (citing Buckley v. Valeo, 424 U.S. 1, 114 (1976).
24.
The basic rationale [behind the ripeness doctrine] is to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements. Abbott Labs. v. Gardner, 387 U.S.
136, 148 (1967).
Supra at 544. In addition, even the agreement of the parties cannot confer
jurisdiction upon the court where the controversy has not yet ripened to the
point of necessity for judicial determination. Roark & Hardee, supra (holding that
[e]ven when a ripeness question in a particular case is prudential, we may raise
it on our own motion, and cannot be bound by the wishes of the parties.
citing Reno and Regl Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974)).
25.
ripeness is peculiarly a question of timing. Regl Rail Reorganization Act Cases, supra
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 11
at 138; Roark & Hardee, supra at 544 and that a case is generally ripe if any remaining
questions are purely legal ones; conversely, a case is not ripe if further factual
development is required. Id at 545.
26.
In reviewing the Petition filed by the City, nowhere is there any allegation
or indication that the City has actually complied with the terms of the City Code in
issuing citations for the alleged violations, providing notice of such citations, and
allowing the Defendants the opportunity for a hearing before the Municipal Court to
determine whether such alleged code violations have actually occurred in relation to
each of the Defendants and each of their Properties.
27.
of the City Code in question prior to its initiation of this action for injunctive relief and
the appointment of a receiver, the City has placed the proverbial horse in front of the
proverbial cart.
28.
By seeking to restrain and enjoin the Defendants from the operation and
beneficial use of the Properties by its requested injunctive relief, and by its premature
request for the appointment of a receiver to seize control, management, and operation
of the Properties from the Defendants, the City is seeking to deprive the Defendants
and their Tenants of significant rights under the Texas Constitution and United States
Constitution, including:
(a)
The right to not have their property taken, damaged, or destroyed for, or
applied to, public use without adequate compensation being made [Texas
Constitution, Article 1, Section 17(a); 5th Amendment of the United States
Constitution];
(b)
The right to not have their property taken, damaged, or destroyed for, or
applied to, private use [Texas Constitution, Article 1, Section 17(a) and (b);
5th Amendment of the United States Constitution];
(c)
(d)
29.
City, this Court should refuse to exercise jurisdiction over the claims asserted by the
City in the Petition until such time as final determinations have been made as to the
existence of violations of the applicable provisions of the City Code by each of the
Defendants and each of their Properties.
CONCLUSION
30.
hereby request that the Court grant this Plea and dismiss this action for lack of
jurisdiction.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that
the Court set this matter down for hearing prior to any further proceeding herein, and
upon final hearing hereof, the Court enter its order dismissing this action for lack of
jurisdiction, and granting to Defendants such other and further relief, at law or in
equity, to which they may show themselves justly entitled.
Respectfully submitted,
KAPLAN & MOON, PLLC
3102 Maple Ave., Suite 200
Dallas, Texas 75201
Telephone: (214) 522-4900
Telefax: (800) 930-7112
Email: jpmpllc@gmail.com
By:
/s/James P. Moon
JAMES P. MOON
State Bar No. 14316300
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Plea and Motion was
served on counsel of record for Plaintiff, Melissa Miles, and Anna Welch, Dallas City
Attorneys Office, 1500 Marilla St., Dallas, #7DN, Texas 76165, by electronic mail,
telefax, overnight delivery, and/or United States mail, postage prepaid, on this the 4th
day of January, 2016.
/s/ James P. Moon
JAMES P. MOON
FILED
DALLAS COUNTY
1/4/2016 4:08:20 PM
FELICIA PITRE
DISTRICT CLERK
Dennis Topletz, Casey Topletz, Vickie Topletz, and Steven Topletz are
of the Estate of Jack Topletz, and 3737 Guaranty St., Dallas, Texas, in rem (hereafter the
Levin Defendants) have already appeared and answered herein.
4.
The real properties named by the City as 2501 Bethurum Ave., Dallas,
Texas, In Rem; 1231 Iowa Ave., Dallas, Texas, In Rem; 2603 Modree Ave., Dallas, Texas,
In Rem; 3803 Octavia St., Dallas, Texas, In Rem; 1304 Pennsylvania Ave., Dallas, Texas,
In Rem; 2705 Pennsylvania Ave., Dallas, Texas, In Rem; and 1203 Strickland St., Dallas,
Texas are hereafter referred to collectively as the Defendant Properties).
INTRODUCTION
5.
(2)
(3)
Close the Defendant Properties for a period of one (1) year from the
date of final judgment in this action;
(b)
1 The City offers no explanation of what these specific requirements are or would be or any legal basis for the
imposition of such requirements. Obviously, if these requirements are in the nature of regulations or guidelines that
the City would seek to enforce relating to maintaining the ownership, occupancy, condition, or operation of the
Defendant Properties, such requirements would constitute city ordinances and could only be created and imposed
through the normal processes and procedures for promulgating and enacting ordinances under Section 1-6 of the
City Code.
with various provisions of the Dallas City Code (hereafter the City
Code)2 and the impose civil penalties of $1,000.00 per day against the
Topletz Defendants for each of the alleged violations of such City Code;
(c)
CODE
64.001
and
TEXAS
LOCAL
GOVERNMENT
CODE
OF
Dallas Police Department to enter into and onto the Topletz Properties, without the
necessary warrants or compliance with probable cause requirements, for the purpose of
2 References to the City Code are hereafter cited as City Code, ______.
inspecting and searching the Topletz Properties for alleged violations of the Dallas
City Code by the Topletz Defendants and their tenants.
PROCEDURAL HISTORY
7.
Defendants have this day filed their Plea to the Jurisdiction and Motion to
Dismiss (the Dismissal Motion) seeking an order from this Court dismissing this
action for lack of subject matter jurisdiction and for failure to state a claim upon which
relief can be granted, all as set forth in such Dismissal Motion.
8.
Counterclaim set forth herein are filed subject to the Courts rulings on such Dismissal
Motion and Venue Motion.
PLEA IN ABATEMENT
9.
Defendants would hereby request that the Court abate this action for one
The City has failed to comply with the requirements and prerequisites of
Section 214.003(b) of the TEXAS LOCAL GOVERNMENT CODE prior to filing its
action for the appointment of a receiver;
(b)
The City has failed to implement and comply with the requirements of the
City Code under Sections 27-16.3 et seq. of Article IV-a relating to
enforcement of ordinances for the abatement of an urban nuisance;
(c)
The City has failed to implement and comply with the alternative
administrative requirements of the City Code under Sections 27-16.12 et
The City has failed to join all necessary and indispensable parties, i.e., the
tenants of the Defendant Properties and Topletz Properties, in this action
as required by Rule 39(a) of the TEXAS RULES OF CIVIL PROCEDURE.
A.
Defendants would further request that the Court abate this action until
such time as the City has complied with the requirements of Section 214.003(b) of the
TEXAS LOCAL GOVERNMENT CODE.
11.
The statutory basis asserted by the City as authority for the appointment
(a);
(2) notice of violation was given to the record owner of the
property; and
(3) a public hearing as required by Section 214.001(b) has been
conducted.
[Emphasis added.]
12.
action for the appointment of a receiver under Section 214.003(b), it must have complied
with, and completed, the three (3) requirements thereof:
(a)
There must have been a prior determination by the Municipal Court that
the Defendants and their Properties are in violation of the City ordinances
in question [TEX. LOCAL GOVT. CODE 214.003(b)(1)];
(b)
(c)
and/or
their
Properties
[TEX.
LOCAL
GOVT.
CODE
214.003(b)(3)].
13.
Nowhere in the Citys Petition is there any indication that the City has
complied with and met the requirements of TEX. LOCAL GOVT. CODE 214.003(b).
14.
In fact, there are no facts whatsoever alleged by the City that any citations
have been issued for code violations to the Defendants and/or their Properties, that any
notices required by the statute and the City Code have been given, or that there have
been any final, non-appealable determinations by the Municipal Court that the
Defendants and/or their Properties have indeed violated any of the City ordinances in
question.
15.
As such, in the event that the Court elects not to grant the Dismissal
Motion and dismiss the Citys request for the appointment of a receiver, Defendants
request that the Court abate this action until such time as the City has complied with
the requirements of TEX. LOCAL GOVT. CODE 214.003(b).
B.
Defendants would further request that the Court abate this action until
such time as the City has implemented and complied with the following requirements
of the City Code under Sections 27-16.3 et seq. of Article IV-a relating to enforcement of
ordinances for the abatement of an urban nuisance:
(a)
(b)
(c)
(d)
(e)
17.
As such, Defendants request that the Court abate this action until such
time as there has been a final, non-appealable determination under the applicable
provisions of the City Code as set forth above that the Defendants and/or their
properties are in violation of the ordinances in question.
C.
Alternatively, Defendants would further request that the Court abate this
action until such time as the City has implemented and complied with the following
alternative administrative requirements of the City Code under Sections 27-16.12 et seq.
of Article IV-b relating to enforcement of public heath and safety ordinances under
Chapter 54 of the TEXAS LOCAL GOVERNMENT CODE:
(a)
(b)
(c)
The filing of an answer to the citation by the property owner (City Code
27-16.15);
(d)
(e)
19.
As such, Defendants request that the Court abate this action until such
time as there has been a final, non-appealable determination under the applicable
provisions of the City Code as set forth above that the Defendants and/or their
properties are in violation of the ordinances in question.
D.
As noted above, Defendants would show that, in its Petition, the City
asserts claims for injunctive relief and for the appointment of a receiver over the
Defendant Properties and the Topletz Properties (hereafter sometimes referred to
collectively as the Properties).
21.
includes taking possession of certain of the Properties, as well as giving such receiver
the right to enforce leases, make repairs, conduct warrantless searches (disguised as
inspections) of the Properties, impose liens to enforce reimbursement of costs and
expenses, and even demolish or sell such Properties. See Plaintiffs Original Petition,
53, 58, 61, and 69.
22.
(ii)
23.
Clearly, each of the 190 tenants occupying the Properties (the Tenants)
have, and claim, an interest in the Properties, i.e., their leasehold estate, that will be
significantly impaired and impeded, or even terminated, by the injunctive relief and/or
appointment of a receiver as requested by the City.
24.
Defendants would show that it is obvious that the granting of powers and
rights to the receiver to enforce the Defendants written or oral leases, make demands
for collections of rents, evict Tenants that are not in compliance with the terms of their
leases, and even demolish or sell certain of the Properties, will have a devastating and
possible disastrous effect on the contractual, legal, and property rights of the Tenants in
their respective Properties.
26.
receiver, such relief that may be granted by the Court will leave the Defendants subject
to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations
by reason of the Defendants and Tenants respective ownership and leasehold interests
in the Properties.
27.
particularly the powers that it seeks to have this Court vest in a receiver, that such relief
and actions by a receiver will have a significant impact on the contractual and legal
relationships between the Defendants and the Tenants under the terms of their
respective leases and other rental arrangements.
28.
By reason of the very nature of the relief by the City, such acts and
conducts of a receiver under the powers proposed to be granted to it, will inevitably
result in claims of breach and/or violation of the leases by the Defendants and/or the
Tenants, thereby subjecting the Defendants and/or the Tenants to liabilities thereunder,
as well as potential damages arising therefrom.
29.
absence of joining the Tenants in this action, Defendant will have no alternative but to
initiate multiple third-party actions against defaulting Tenants and/or the receiver in
order to protect and enforce its rights and remedies under the terms of such leases,
contracts, and rental arrangements.
30.
Finally, even the Citys own ordinances require the right to participation
and involvement by the Tenants in connection with matter relating to the appointment
set forth on Chapter 27 of the City Code3 (the Rehabilitation Standards), the City
Attorney is well aware that he is required to give notice to all owners of interests in the
Properties:
SEC. 27-16.5. NOTICE OF HEARING BEFORE THE MUNICIPAL
COURT.
(a) The city attorney or the director shall give notice of a municipal
court hearing on the repair, demolition, vacation, or securing of a
structure, or the relocation of the occupants of a structure, to any owner,
mortgagee, or lienholder of the structure. A diligent effort must be made
to discover each owner, mortgagee, or lienholder of the structure and to
give such persons notice of the hearing. [Emphasis added.]
32.
As such, Defendants would show that, by reason of the very nature of the
type of relief requested by the City, as well as the potentially severe and harsh
consequences of the entry of injunctive relief and the appointment of a receiver, each
and every tenant of the Properties, as the owners and holders of an interest in the real
property, are necessary and indispensable parties to the request for relief by the City
and must be joined by the City as parties in this action. See Associated Bankers Credit
Co. v. Meis, 456 S.W.2d 744, 750 (Tex. Civ. App. Corpus Christi 1970, no writ); White v.
Blalock, 199 S.W.2d 850 (Tex. Civ. App., San Antonio, 1947, n.w.h.); Arnold Motor Co. v.
C.I.T. Corporation, 149 S.W.2d 1056 (Tex. Civ. App., Galveston, 1941, n.w.h.); Veal v.
3 The entire basis of the claims of the City relating to relief requested against the Defendant Properties
and the Topletz Properties is based in the Citys alleged violations of Chapter 27 of the Dallas City Code.
See Plaintiffs Original Petition, 29 through 35 and Exhibit 4.
Defendants would therefore request that this action be abated until such
time as the City has amended the Petition and joined the Tenants that are currently
occupying the Properties as defendants herein.
34.
Alternatively, in the event that the City fails to join the Tenants as parties
herein, Defendants request that the Court dismiss this action without prejudice.
D.
Based on the above and foregoing, Defendants would request that the
Court order the abatement of this proceeding until such time as the City has exhausted
any and all administrative or municipal court actions as required by the City Code and
has joined the Tenants as necessary and indispensable parties herein.
36.
Finally, in the event that the City fails or refuses to take such action as
ordered and directed by the Court, Defendants request that the Court dismiss this
action and award to Defendants their reasonable and necessary attorneys fees, costs,
and expenses incurred in connection herewith.
SPECIAL EXCEPTIONS
Failure to State a Claim
37.
the allegations contained in the Petition in that such allegations are defective and
insufficient in that they fail to state of claim upon which relief can be granted for the
reasons that the City has failed to allege sufficient facts that it has complied with the
the Petition in that such allegations are defective and insufficient in that they fail to state
of claim upon which relief can be granted for the reasons that the City has failed to
implement and comply with the requirements of the City Code under Sections 27-16.3 et
seq. of Article IV-a relating to enforcement of ordinances for the abatement of an urban
nuisance.
39.
the Petition in that such allegations are defective and insufficient in that they fail to state
of claim upon which relief can be granted for the reasons that the City has failed to
implement and comply with the alternative administrative requirements of the City
Code under Sections 27-16.12 et seq. of Article IV-b relating to enforcement of public
heath and safety ordinances under Chapter 54 of the TEXAS LOCAL GOVERNMENT CODE.
40.
Defendants therefore request that the Court set these Special Exceptions
down for hearing and that upon hearing hereof, the Court grant such Special
Exceptions and required the city to amend its Petition and set forth specific facts
supporting its right to recovery on the claims and causes of action asserted therein.
41.
In the event that the City fails to amend its Petition within thirty (30) days
from the date of such orders by the Court, Defendants request that the Court dismiss
this action with prejudice and award to Defendants their reasonable attorneys fees,
costs, and expenses incurred in connection with their defense of the claims asserted by
City herein.
VERIFIED DENIAL
42.
Subject to the Dismissal Motion and the Plea in Abatement above, and
OF
specifically deny that the City has joined all necessary and indispensable parties to this
action and that such failure constitutes a defect in the parties.
GENERAL DENIAL
43.
Subject to the Dismissal Motion and the Plea in Abatement above,, and
pursuant to Rule 92 of the TEXAS RULES OF CIVIL PROCEDURE, Defendants deny each and
every, all and singular, the allegations contained in the Plaintiffs Original Petition and
demand strict proof thereof by a preponderance of the credible evidence.
AFFIRMATIVE DEFENSES
Lack of Jurisdiction
44.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on its claims for the reason that this Court lacks subject matter jurisdiction of
certain of the claims asserted by the Plaintiff herein.
Failure to Exhaust Administrative Remedies
45.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on its claims for the reason that Plaintiff has failed to exhaust its administrative
remedies as required by Sections 27-16.3 et seq. of Article IV-a and Sections 27-16.12 et
seq. of Article IV-b of the City Code.
46.
be dismissed until such time as the City has exhausted its judicial and administrative
remedies under the City Code.
No Justiciable Controversy (Ripeness)
47.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on its claims for the reason that there is no justiciable controversy raised by the
claims asserted in the Petition that is ripe for adjudication.
48.
More specifically, until such time as the city has complied with the terms
of its own city code buy exhausting the remedies available to the city through the
municipal court and its administrative citation procedures, the claims asserted in the
petition are no more than a request for an advisory opinion as to the issues raised
thereby.
49.
As such, this action should be dismissed until such time as the City has
complied with the requirements and guidelines of its own City Code, thereby making
these controversies ripe for adjudication by this Court.
Failure to Join Necessary Parties
50.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on its claims for the reason that Plaintiff has failed to join all necessary parties
required for relief hereunder.
51.
be abated until such time as the City has joined all Tenants of the Properties in this
action. Further in the event that the City fails to join such parties, this action should be
dismissed.
Conditions Precedent
52.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on its claims for the reason that all conditions precedent to the right of recovery
by Plaintiff have not occurred.
53.
More specifically, Defendants would show that until such time as the City
has complied with the requirements of TEX. LOCAL GOVT. CODE 214.003(b) regarding
the alleged violations the City ordinances in question, Plaintiff has no right to the
maintain an action for the appointment of a receiver over the Defendants Properties,
or to recover on such claims asserted herein.
54.
Further, Defendants would show that until such time as there has been a
final, non-appealable determination or judgment that the Defendants have violated the
City ordinances in question, Plaintiff has no right to the injunctive or other equitable
relief requested in its Petition, or to recover on its claims asserted herein.
Waiver
55.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on his claims for the reason that, by failing to exhaust its judicial and
administrative remedies under the Dallas City Code and to meet the prerequisites of
TEX. LOCAL GOVT. CODE 214.003(b), the City has waived its right to recovery on the
claims asserted herein.
Estoppel
56.
would assert, by way of further answer and defense, that Plaintiff is not entitled to
recover on his claims for the reason that, by failing to exhaust its judicial and
administrative remedies under the Dallas City Code and to meet the prerequisites of
TEX. LOCAL GOVT. CODE 214.003(b), the City is estopped from asserting any right to
recovery on the claims asserted herein.
COUNTERCLAIM
COME NOW the Defendants, as Counter-Plaintiffs, in the above referenced and
styled cause complaining of the City of Dallas (the City), as Counter-Defendant, and
for cause of action would hereby respectfully show the Court as follows:
INTRODUCTION
57.
judgment under Section 37.004(a) of the TEXAS CIVIL PRACTICE & REMEDIES CODE as to
the construction and validity of Section 214.003(b) of the TEXAS LOCAL GOVERNMENT
CODE and to obtain the declaration of the rights, status, and other legal relations of the
Defendants/Counter-Plaintiffs thereunder.
58.
(b)
59.
DISCOVERY PLAN
63.
Discovery in this case will be conducted under Level 2 as in the main case.
REQUEST FOR DISCLOSURE
64.
OF
requested to disclose, within thirty (30) days of the service of this request, the
information and/or materials described in TRCP Rule 194.2.
FACTUAL BACKGROUND
65.
background set forth in the Petition and in the Defendants Plea in Abatement, Special
Exceptions, and Original Answer set forth above.
CLAIMS AND CAUSES OF ACTION
DECLARATORY JUDGMENT
[TEX. CIV. PRAC. & REM CODE 37.004(a)]
66.
Defendants/Counter-Plaintiffs
hereby
adopt
and
incorporate
the
allegations contained in Paragraphs 1 through 66 above as if such were fully set copied
and forth at length herein.
67.
rights, status, or other legal relations are affected by a statute, i.e., Section 214.003 of the
TEXAS LOCAL GOVERNMENT CODE, who seek to have determined a question of
construction or validity arising under such statute.
68.
declaration of the rights by this Court of their rights with respect to the rights of the
DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL
ANSWER, AND COUNTERCLAIM - Page 21
parties thereunder.
69.
(b)
70.
required to retain the undersigned attorneys to prosecute the claims and causes of
action asserted by the City herein.
71.
As such, pursuant to the provisions of TEX. CIV. PRAC. & REM. CODE
the Court set this matter down for trial and, upon final trial on the merits, Defendants
have judgment over and against Plaintiff, as follows:
(a)
That Plaintiff take nothing by virtue of any and all of its claims asserted
against the Defendants;
(b)
(c)
That Defendants have and recover their reasonable attorneys' fees, costs,
and expenses incurred or to be incurred in connection with the
prosecution of the claims herein;
(d)
(e)
(f)
(g)
Such other and further relief, at law or in equity, to which the Defendants
may show themselves justly entitled.
Respectfully submitted,
KAPLAN & MOON, PLLC
3102 Maple Ave., Suite 200
Dallas, Texas 75201
Telephone: (214) 522-4900
Telefax: (800) 930-7112
Email: jpmpllc@gmail.com
By:
/s/James P. Moon
JAMES P. MOON
State Bar No. 14316300
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing document was served on
counsel of record for Plaintiff, Melissa Miles and Anna Welch, Office of Dallas City
Attorney, 1500 Marilla St., 7DN, Dallas, Texas 75201, by e-service, electronic mail,
telefax, overnight delivery, and/or United States mail, postage prepaid, on this the 4th
day of January, 2016.
/s/ James P. Moon
JAMES P. MOON