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Lake Park-CS 980128 214 965 0010 16:11 ~ ~-'¢'"40L~ $CKSON DLLRD 214 B65 0010 T0'""-'~2304~570 P,01/1~ NICHOLS, ,JACKSON, DILLARD, I-IAGER ~ SMITH, L.L.P. 1800 LINOOL~'~ PLAZA 5OO N. AKARD DALLAS, TEXAS 75201 (214) 965.9900 (214) 965-0010 FAX NAME: Jim Witt Ken Griffin Oreg Jones COMPANY: City of Coppell FAX NO.: DATE: January 28, 1998 FRO~ J. Vavid Vodd, m C.- TRANSMITTED BY: Para. Richardson NUM~BER OF PAGES (Including Cover Sheet): COMMENTS: Cause No. 97-07962-H: Mitchell H. Reitman vs. The City of The Coppell, Texas; Defendant's Summary Judg~erd Motiott THE II~I:ORMATION CONTAil~ED IN TH~ FACSIMiI~ IS ATI'ORNEY PRIViLEGF.,D AND CONFIDENTIAL INFORMATION fNTF~'DED ONLY FOR THE USg- OF TH~ INDIVIDUAL OR FaN'FITY NAMED ABOVE. L= THI~ Rg-Cl~lUd~tT IS NOT THI// INTENDED RECIPi~.24T, YOU ARg- HEREBY NOTi~f~D THAT ANY DISTRIBUTION, DISSEMINATION OR COPYIN~ Ol= THIS COblMIJNICA'flON IS STRICTLY PROHIBITED. I}: YOU HAXq5 I~ECEI'¥1~D THIS IN 15RROR. PLI~ASI:- NOTIFY US IMb, W, DIATELY BY PHON~ AND RE'CORN THE ORIGINAL MF.,SSAGE TO US AT Tl-r~ ABOVE ADDRESS VIA THE U.S POSTAL SERVICE. JAN 28 '98 16:11FR NICHOLS JCKSON DLLRD ~14 965 0010 TO~9725045570 P.02×15 NICHOLS, JACKSON. DILLARD, HAGER & SMITH, L.L.R Attot, r~ys & Coun.'~lo~,s &t Law J~ON C. ~L ~lla~, Tex&~ 75~1 Fax (Z 14) o~ ~L ~u~ 28, ]998 Bryan Haynes CERTIFIED MAIL RRR#Z300219950 2200 Ross Avenue Suite 900 Dallas, Texas 75201 RE: Cause No. 97.07962-11: Mitchell ti. Reitman vs. The City of The Coppell, Texas Dear Mr. Haynes: Please £md enclosed a file-marked and conformed copy of Defendant's Summary Judgment Motion in the above-referenced cause. A hearing on flae foregoing Motion Ires b~en set for February 25, 1998 at 9:00 a.m. in the 160th Juflicial District Cour~ of Dnllas County, Texas. Thank you for your attention to this matter. Very truly yours, NICHOLS, IACKSON, DILLARD, HAGER & SMITH, L.L.P. ~' icl Dodd, III ' lDD/pr Enclosure 15686 JAN 28 '98 16:12 PR NICHOLS JCKSON DLLRD ~14 965 0010 TO 97~304J570 P,OJ×15 Bryan Haynes January28,1998 Page-2- bcc: Ken Griffin Via Facsimile Greg Jones Via Facsimile Jim Witt Via Facsimile 1568§ JAN 28 '98 16:12 FR NICHOLS JCKSON DLLRD 214 965 0010 TO 9?230435?0 P.04/15 MITCHELL H. RE~N, § IN THE Plaint~/Coun~r-Def~d~g VS. ~ 16~H J~ICIAL DIST~CT T~ C~ OF THE COPPELL, TE~ Defendan~unter-Plainfiff. ~ DALLAS COUNTY, TE~S DEFENDANT'S SUMMARY JUDGMENT MOTION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES The City of Coppell ("City"), Defendant herein, and files this Motion for Summary Judgment and Brief in Support, and in support thereof, would respectfully show unto the Court the following: GENERALLY There are no genuine issues of material fact herein and Defendant, City of Coppell is entitled to judgment as a matter of law. In support of this Motion, Defendant relies upon the pleadings, the attached summary judgx,nent evidence, and other documents on file with this Court. This Motion for Summary Judgment embraces all of Plaintiff's claims against the Defendants. Defendant's Summary Judgment Motion - Page JAN 28 '98 16:12 PR NICHOLS JCKSON DLLRD 21d 965 0010 TO 97250d3570 P.05×15 II. THE LEGAL STANDARD Summary judgment is proper if, as a matter of law, the Plaintiff may not succeed upon any of the theories plead. Tex.R.Civ,Proc. 166a. The Defendant has the burden of proving as a matter of law that no material issue of fact exists as to the Plaintiff's cause of action. Griffin v Rowden, 654 $.W.2d 435 (Tcx. 1983). To accomplish this, Defendants need only show that one element of the Plaintiff's cause of action has been conclusively established against the Plaintiff.' Mw/hew v. Town of Sunnyvale, 774 $.W.2d 284, 286-87 (Tex. App.--Dallas 1989) cert. denied 498 U.S. 1087, 111 $.Ct. 963, 112 L.Ecl.2d 1049, Moreover, it is sufficient for summary judgment purposes to showing that a cause of action is barred by the affirmative defense of governmental immunity. City of Houston v Killburn, 849 S.W.2d 810 (Tex. 1993). Alternatively, the Defendant City may show that summary judgment is proper due to a lack of evidence. Pursuant to Rule 166a(i), Defendant City is entitled to summary judgment on thc ground~ that them is no evidence of one or more essential elements of a claim on which the Plaintiff would have the burden of proof at trial. IH. UNDISPUTED FACTS 1. Mr. Mitchell H. Reitman's property referred to herein is defined 603 Lake Park Drive Coppell, Texas or Lake Park Development Lot 9, Block E. 2. Univest Properties dedicated property behind the Mr. Reitman's Property to the City of Coppell in or around February 1994. Plaintiff's Original Petition at 2. Defendant's Summary Judgment Motion - Page 2 JAN 28 '98 1G:13 FR NICHOLS JCKSON DLLRD 214 955 0010 TO 9_.~723043570 P.06×15 3. Mr. Reitman chose to make improvements to property beyond his property-line, including sodding and cultivating the property dedicated to the City beginning on or shortly after June 1993. Id. 4. On or about July 25, 1997 Mr. Reiu'nan had Bill Flaherty construct a $4000.00 fence on the City's property without first obtaining any permits or licenses as required by Coppell City Code § 9-2-2. Id. at 3. 5. Mr. Reitman subsequently informed the City Engineer that the fence was l~ing' completed on City property. Id. The City Engineer agreed to have the discussion of a license placed on the August 12, 1997 CounciI Agenda. Id. 6. The Coppell City Council rejected the proposed permit for Mr. Reitman to fence-in City property and required removal of the constructed fence by August 24, 1997. Id. IV. DECLARATORY JUDGMENT A. Failure to State a Cause of Action Plaintiff has improperly relied upon declaratory judgment for relief. Plaintiff is not requesting the Court to construe an ordinance, contract or franchise of Defendant City rather, he is sseking the Court to order Defendant CiW to grant a license agreement to Plaintiff. Essentially, the Plaintiff is requesting that this Court act as legislative body. This request to the Court is not the proper subject matter of relief under the Declaratory Judgment Act. Rather, the only proper remedy if a city council has denied a permit or license is mandamus. Rash v. City Council of the City of Ho~ton, 557 $.W.2d 324 (Tex. App.--Houston [lst Dist.] 1977, ref'd ri.ne.). Defendant's Summary Judgment Motion - Page JAN 2~ '~ ~G:~4 FR NICHOLS JCKSON DLLRD 214 965 0010 TO 97.,...23043570 P.07/15 Mandamus, however, is only proper to force an official to complete a ministerial act which that official has a clear legal duty to perform. Anderson v. City ~! Seven Points, 806 S.W.2d 791 (Tex. 1991). Therefore, mandamus would not even be proper in this case because Plaintiff is attempting to overrule a discretionary act of the murdcipality's governing body. Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992)(holding mandamus not available to review discretionm-y acts of officials); Same holding, Green v. Heckler, 742 F.2d 237 (5th Cir. I984). Plaintiff is not entitled to a declaratory judgment because Plaintiff has no rights which are affected by any' municipal ordinance, contract or franchise of Defendant City in this matter. This is not a situation wherein Plaintiff and Defendant City have entered into an agreement and the Court is being requested to determine the validity of the agreement. No evidence exists that shows the actions of the council were ministerial. Therefore, summary judgment may be entered as a matter of law, because the Declaratory Judgment Act is not proper. B. Dedication and Adverse Possession For further argument, if such be necessary, Defendant City asserts that a dedication was made by plat prior to Plaintiff's purchase of his home. Plaintiff contends that the dedication of the property behind his home was ineffective due to a misunderstanding as to whether it was in a flood plain, however, Texas law recognizes that a dedication once made and coupled with sales of Iots with reference to map or plat constituting dedication becomes binding and irrevocable. Copeland v. City of Dallas, 454 S.W.2d 279 (Tex.App.--Dallas 1970, ref'd n.r.e.). Moreover, the Texas Supreme Court has held where a developer filed a plat which dedicated certain tracts to the municipality, the dedication was effective and irrevocable as to subsequent owners of the pIatted Defendant's Sun'unary Judgment Motion - Page 4 ,~t~oov ~8H ~B '~ 16=i4 FR N~C.~.HOL~ JCKSON DLLRD ~14 %5 0010 TO ,.,~...2~04J570 P,00/15 lots along the dedicated tract. Adams v. Rowles, 228 S.W.2d 849 (Tex. 1950). In this case, the maps and plats clearly delineate the "park land" to be dedicated. See Appendix A. Plaintiff has failed to raise evidence suggesting that such a plat dedication was ineffective and therefore, the dedication is effective and cannot be challenged. Thus, the Plaintiff's claim rests solely upon his attempt to adversely possess the City's property behind his home. Texas law, however, does not recognize the running of adverse possession against lands dedicated to public use. Ellis v. Jansing, 620 S.W.2d 569 (Tex. 1981);' V~,~oN's A~'~.Te,xns Ov.S-r. A~T. 5517. Thus, residents are precluded from obtaining title by adverse possession to easements that have been dedicated to the public despite construction of fences across those public lands. Bowen v. Ingrain, 896 S.W.2d 331 (Tex. App.--Amarillo 1995)(rejecting the residents' claims of adverse possession despite 10-year-old fences). Likewise, the Plaintiff's attempt at adversely possessing the lands is ineffective because the land is owned by the City of Coppell and therefore immune to adverse possession. Hence, this Court may deny the Plaintiff's claims; declare the Defendant City the title owner Of the tract; and order the removal of the fence. C. Estoppel Plaintiff further contends that the Defendant City is Estopped from preventing his adverse possession of the public lands. Estoppel operates to prevent one who has induced another to act in a particular way from adopting an inconsistent position, attitude, or course of conduct that will cause loss or injury to the other person. Houtchen$ v Matthews, 557 S.W.2d 581,585 (Tex. App.- -Fort Worth 1977, writ dism'd) Additionally, the doctrine of quasi-estoppel precludes a party Defendant' s Summary Judgment Motion - Page JAN 28 '98 16:15 FR NICHOLS JCKSON DLLRD ~1~ 96~ 0010 TO ~ff..~04~570 P.09715 from asserting, to another's disadvantage, a right inconsistent with a position previously taken by him. Stuebner Realty 19 v Cravens Road, 817 S.W.2d 160, 16~ (Tex. App.--Houston [14th Dist.] 1991, no writ). This doctrine applies where it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced, or of which he accepted benefit. /d. Plaintiff claims reliance upon the City Engineer's promise to submit the PlainfiWs fence license to the Council Agenda and other statements during his phone conversation with him. There are two problems with this theory: (1) the Plaintiff had already begun construction on his $4000 fence and (2) statements by the City Engineer can not bind the Defendant City. Reliance applies only when a party actually relied to his detriment. Houtchens, 557 S.W.2d at 585. In this case, however, the Plaintiff had already begun and substantially completed construction on the fence prior to any contact with the Defendant City. Damages would be improper because the Plaintiff did not rely on any statements by the City Engineer, the fence had already been completed, l~sT^-rv3mN'r 2D O1; TORTS § 91 (1996). The City Engineer has also stated that his conversation with Mr. Reitman only verified that the City Council would discuss the issue in an upcoming meeting. See Appendix A. No statement that the license would clearly pass was made./d. Likewise, Mr. Reitman, a former Coppell City Councilman, is no doubt well aware, and Texas law clearly holds that the only way a city can officially act or exercise its power is by and through its governing body acting in its official capacity. City of Cop£ell v. General Homes Corp., 763 S.W.2d 448 (Tex. App.--Dallas I988, err. den.); Cool: v. City of Addi$on, 6256 S.W.2d 650, 657 (Tex..Civ.App.--Dallas 1983, writ tel'd, n.r.e.); ~tirrr~n v. city of Defendant's Summary Judgment Motion - Page ~ ~ ~ '~ ~:~ FR NIGHOLS ~CKSON DLLRD 214 ~G$ 0010 TO ~72~04~570 P.10×15 Tyler, 4~3 S.W.2d 354, 358 (Tex. Civ. App.--Tyler 1969, writ ref'd, n.r.e.). Municipalities cannot be estopped by the acts of its officers or agents done in the exercise of a power not conferred upon them. Hill Farm, Inc. v. Hill County, 425 S.W.2d 414 (Tex. App.--Waco 1968, aff'd 436 S.W.2d 320)(holding the acts of a single county commissioner ineffective to bind the county without a subsequent ratification by the county court). Since the governing body of a municipality acts in its official capacity only by passing an ordinance or resolution, the only action that may have granted the license or estopped the Defendant City from removing the' fence would be a majority vote of the Coppell City Council.. City of San Antonio v. Miclclejohn, 89 Tex. 79, 33 S.W. 735 (1895); City of Coppell v. General Homes Corp., 763 S.W.2d at 452. Consequently, any statements made by the City F~ngineer or any other city official have no legally binding effect. Since no evidence that the Plaintiff relied upon a competem official who could have bound the Defendant City has been submitted, this Court may grant the Rule 166a(i) Summary Judgment Motion. D. Sovereign Immunity For further answer, if such be necessary, the Defendant City of Coppell states that it enjoys sovereign immunity and is absolutely immune from any damages raising in the performance or nonperformance of a discretionary act under Section 101.056, TF_x. Civ. PRAC. & P~.q. CODE. The City of Coppell is a Home-rule city and is a political subdivision of the State of Texas. When performing a governmental function, a political subdivision is only liable for 1) property damage, personal injury or death arising from the use of motor-driven vehicles or equipment, or 2) personal injury or death caused by a condition or use of tangible personal or real property. Tax. Civ. PRAC. & I~M. CODE, § 101.021. A city is not liable for intentional Defendant's Summary Judgment Motion - Page 7 ss~s0o7 JAN 28 '98 16:16 FR NICHOLS JCKSON DLLRD 214 965 ~18 TO 97_~23043570 P.11/15 torts. Jones v. Houston Independent School District, 979 F.2d 1004 ($th Cir. 1992). The law is clear that a city is not liable for the tort of intentional interference with contractual rights. Video International Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1085 (5th Cir. 1988) (relying on the Texas Tort Claims Act in interpreting Texas law). Thus, Plaintiff's claims for damages fail as a matter of law, because the Defendant City enjoys sovereign immunity. E. Attorney's F¢¢~ As a result of Plaintiff/Counter-Defendant's lawsuit against Defendant/Counter-Plaintiff, Defendant/Counter-Plaintiff City was required to employ the law finn of Nichols, Jackson, Dillard, Hager & Smith, L.L.P. to defend the action and file this Counterclaim. Under the authority of the Texas Declaratory Judgment Act, TF_,X. Civ. PRAC. & REM. CODE, Section 37.001, et seq., Defendant City of Coppell claims reasonable attorney's fees, both in trial of this cause and in connection with any subsequent appeal. IV. COUNTERCLAIaM Pursuant to Section 9-2-2 of Defendant/Counter-Plaintiff City's Code, a person is required to have a permit issued before the construction of a fence. See Appendix B. Additionally, Plaintiff/Counter-Defendant Reitman erected the fence on City property without the prior approval of the City and thus, has committed a trespass. See Appendix A. Therefore, Defendant/Counter- Plaintiff City brings this Counterclaim, pursuant to Chapter 54 and 211 of the Local Government Code, to enforce this Ordinance and remedy this trespass and seeks the removal of the fence. As a Defendant's Summary Sudgment Motion - Page 8 $si5oo7 direct and proximate result of tho Plaintiff/Countex-Defendant's actions and omissions as alleged herein. The Defendant/Counter-Plaint/ff has and will continue to be daw, aged and injured by Plaintiff/Counter-Defendant's trespass and maintenance of an unlawful structure, The Defendant/Counter-Plaintiff has no adequate remedy at law for the iqjuries which ar~ continuing and contrary to City Code. For the reasons set forth herein, D~fendent/Countcr-Plaintiff requ~ts that the Court permanently enjoin the Plaintiff/Counter-Defendant from maintain/ag said fence on City property and that Plaint/fi/Counter-Defendant be ordered to rentove said fence front' City property, Plaintiff/Counter-Defendant has violated health and safety codes for which Defendant/Counter. Plaint/ff is entitled to injunctive relief under the cited statutes for abatenteat of the aforementioned conditions. Defendant/Counter-Pla/ntiff requests that this Court issue a writ of injunction granting Defendant/Counter-Plaintiff a permanent injunction which (1) enjoins Plaintiff/Counter-Defendant from the u~e, maintenance, and occupancy of the City's propert~ and requires the Plaintiff/Counter-Defendant to abate and remove the f~.nce and all its appurtenances. As a result of the willful disregard of Plaintiff/Counter-Defendant, Defendant/Counter- Plaint/ff requests that civil penalties be imposed asainst P/a/ntiff/Counter-Dcfendant in favor of Defendant/Countel--Plaintiff in the amount not to exceed One Thousand Dollars ($1,000) a day for every day that the violation continues. In tlz alternative, Defehdant/Counter-Phtint/f~ requests the Court to grant an Or~r authorizing it w go on ?laintiff/Counter-Defcndant's property to rentove the fence structure from the property and to recover the coats theref~ from Plaintiff/Counter- Defendant. The Defendant/Counter-Plaintiff City is entitled to injunctive relief and is not ~'equircd Defendant's Summary Judgment Motion - Page to post bond as security for costs as stated in Section 6.002 of the Texas Civil Practice and Remedies Code. V. CONCLUSION Since Plaintiff/Counter-Defendant has failed to state an actionable claim under the Declaratory Sudgmcnt Act and the undisputed fact do not support a claim derived therefrom on ~he theories of adverse possession or es:opl~l, summazy judgment should bc entered pursuant to Rule' 166a. Furd~ermore, the Defendant/Counter-Plaintiff City has es,l.blished that the Plaintiff/Countcr- D~fcndant is in violation of the Coppell City Code and is trespassing upon City properW. WI~REFORi/:, PREMISF.,S CONSIDERED, Defendant/Counter-Plaintiff City prays that this Motion for Summary ludgrnent bc set for hearing; that upon hearing and consideration that said motion be granted; that summary judgment be entered in favor of Defendant/Counter- Plaintiff against Plaintiff/Counter-Defendant, and that a permanent injunction be issued enjoining Plaintiff/Counter-Defendant from maintajnin$ the fence on City property; that Plainliff/Countcr-' Defendant be ordered to remove thc fence; and that Defendant/Counter-Plaintiff City recover its attorneys fees, civil damages and costs as well as any and all other relief in law and equity to which it is justly entit[cd. Defendant's Summary Sud~ment Motion- Page 10 ss,~oo7 Respectfully Submitted, NICHOLS, ;ACK, SON, DILLARD, HAOER & SMI'rH, L.L.P. J. David Dodd, m Bar Card No. 00757374 Peter G. Smith Bar Card No. 18664300 1800 Lincoln Plaza $00 North Akatd Dallas, T~xas 75201 (214) 965-99OO (114) 9~?.0010 FAX ATFORNI~Y PeR DEPENDANT CITY OF COPPELL CERTIFICATE OF 8RRVIClil This is to certify that on the _,~_ day of January, 1998, a tree and correct copy of the foregoing instrument was served on Plaintiff's attorney of re, cord by depositing the same in the U.S. Mail. Postage Prepaid, Certified Mail, and addressed as follows: Bryan Haynes 2200 Ross Avenue Suim 900 D~, Te~ 75201 ~ ~ ~ Defendant's Summa~ ludgn'tent Motion - Page CAUSE NO. MITCHELL H. REITM~N, § IN ~ D~~ COURT ~a~Co~r-Defen~ VS. ~ 1~ JUDIC~L D~T~ ~ C~ OF ~ COPPELL, ~$ Defen~~uu~-~in~. ~ D~L~ CO~Y, ~ IS O~~D ~at h~ng on ~f~'s ~o~On for ~d is hereby ~t for ~' ~ o'cl~k,, ~M,, on ~e. ff''~'day of o~~~*'Tex~' in ~e Co.room of~ 1~ Dis~c~ C Defendant's Summm3, Judgment Motion - Page 12 sst~o7 · ~ TOTAL PAGE. 15 ~