Topletz Wants Lawsuit Tossed

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    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS -  Page 1 

    CAUSE NO. DC-15-13993

    CITY OF DALLAS, § IN THE DISTRICT COURT §

    Plaintiff and Counter-Defendant §

    § VS. §

    § DENNIS TOPLETZ, INDIVIDUALLY, § AS HEIR OF HAROLD TOPLETZ AND § DBA TOPLETZ INVESTMENTS, § CASEY TOPLEZ, VICKIE TOPLETZ, § STEVEN TOPLETZ, MARVIN L. LEVIN, § BOTH INDIVIDUALLY AND IN HIS § CAPACITY AS THE EXECUTOR OF § 193RD JUDICIAL DISTRICT THE ESTATE OF JACK TOPLETZ, § MONARCH DEVELOPMENT § CORPORATION, 2501 § BETHURUM AVE., DALLAS, TEXAS, § in rem, 3737 GUARANTY ST., § 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, 1203 STRICKLAND ST., § DALLAS, TEXAS, in rem, §

    § Defendants and Counter-Plaintiffs § DALLAS COUNTY, TEXAS

    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS

    TO THE HONORABLE JUDGE OF SAID COURT:

    COMES NOW  DENNIS TOPLETZ (“Dennis Topletz”), Individually, as Heir of

    Harold Topletz, and d/b/a Topletz Investments ; CASEY TOPLEZ  (“Casey Topletz”); 

    VICKIE TOPLETZ  (“Vickie Topletz”);  STEVEN TOPLETZ  (“Steven Topletz”) ;

    DALLAS

    1/4/2016 4

    FELI

    DISTRI

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    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS -  Page 2 

    MONARCH DEVELOPMENT CORPORATION  (“Monarch”);  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, in

    rem, Defendants, in the above-entitled and numbered cause and files this their

    Defendants’ Plea to Jurisdiction and Motion to Dismiss (the “Motion”) in response to

    Plaintiff’s Original Petition (the “Petition”) filed by the City of Dallas (the “City” or

    “Plaintiff”), and in response thereto would respectfully show the Court as follows:

    PARTIES

    1.  Dennis Topletz, Casey Topletz, Vickie Topletz, and Steven Topletz are

    hereafter referred to collectively as the “Individual Defendants”.

    2.  The Individual Defendants and Monarch are hereafter referred to

    collectively as the “Topletz Defendants”.

    3.  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)

    are hereafter referred to collectively as the “Properties”).

    5.  Defendants Marvin L. Levin, individually, and in his capacity as Executor

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    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS -  Page 3 

    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

    Defendants, Monarch, and the Defendant Properties for:

    (a)  Temporary and permanent injunctive relief under Chapters 65 and 125 of

    the TEXAS CIVIL PRACTICE & REMEDIES CODE to:

    (1) Prohibit the Topletz Defendants from maintaining the Defendant

    Properties as a “common nuisance” in violation of Chapter 481 of

    the TEXAS HEALTH & SAFETY CODE;

    (2) Impose “specific requirements”1 on the Defendants to prevent the

    use or maintenance of the Defendants Properties as a common

    nuisance; and

    (3) Close the Defendant Properties for a period of one (1) year from the

    date of final judgment in this action;

    (b)  Temporary and permanent injunctive relief under Chapter 54 of the TEXAS

    LOCAL GOVERNMENT CODE  to require the Topletz Defendants to comply

    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;

    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, §______.”

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    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS -  Page 4 

    (c)  The appointment of a receiver, pursuant to TEXAS CIVIL PRACTICE & 

    REMEDIES CODE  §64.001 and TEXAS LOCAL GOVERNMENT CODE 

    §214.003(b)(1), over One Hundred Ninety (190) residential properties (the

    “Topletz Properties”) owned or managed by the Topletz Defendants for

    the purpose of taking possession of the Topletz Properties; collecting the

    rents and other amounts due; enforce leases; evict tenants; make repairs

    and replacements in compliance with the Dallas City Code; rehabilitate

    such Topletz Properties; impose liens and encumbrances on the Topletz

    properties to recover the costs and expense of ownership, maintenance,

    repair, upkeep, rehabilitation, operation, and management of the Topletz

    Properties; and to perform and exercise such other operational,

    managements, and administrative functions relating to the Topletz

    Properties, including the sale or demolition thereof, as if such receiver

    were the owner of such Topletz Properties.

    7.  In addition, Plaintiff seeks a “continuing” order from the Court, pursuant

    to Rule 196.7 of the TEXAS RULES OF CIVIL PROCEDURE, authorizing the City and the

    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

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    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS -  Page 6 

    (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 IV-

    b 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.  

    Failure to Comply with Prerequisites of TEXAS LOCAL GOVERNMENT CODE  §214.003(b) to Initiate Action for Receiver

    11.  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

    of a receiver over Defendants’’ Properties provides:

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    DEFENDANTS’ PLEA TO THE JURISDICTION AND MOTION TO DISMISS -  Page 7 

    “Sec. 214.003. RECEIVER. (a) A home-rule municipality may bring an action in district court against an owner of property that is not in substantial compliance with:

    (1) the municipal ordinances regarding:

    (A) fire protection; (B) structural integrity; (C) zoning; or (D) disposal of refuse; or

    (2) a municipal ordinance described by Section 54.012(1), (2), (5), (6), (7), or (9).

    (b) Except as provided by Subsection (c), the court may appoint as a receiver for the property a nonprofit organization or an individual with a demonstrated record of rehabilitating properties if the court finds that:

    (1) the structures on the property are in violation of the standards set forth in Section 214.001(b) and an ordinance described by Subsection (a);

    (2) notice of violation was