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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 DISTRICTTHE 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 JURISDICTIONAND 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

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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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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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(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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(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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“Sec. 214.003. RECEIVER. (a) A home-rule municipality may bring an actionin district court against an owner of property that is not in substantialcompliance 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 forthe property a nonprofit organization or an individual with a demonstrated recordof rehabilitating properties if the court finds that:

(1) the structures on the property are in violation of the standardsset forth in Section 214.001(b) and an ordinance described by Subsection(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 beenconducted .”

[Emphasis added.]

13. As such, it is clear that, in order for the City to be entitled to initiate an

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) Notice of the violation(s) of the City ordinances in question must have


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been give to the Defendants prior to the determination of such alleged

violation by the Municipal Court [TEX. LOCAL GOVT. CODE §214.003(b)(2)];

and

(c) A public hearing must have been conducted by the Municipal Court as

required by Section 214.001(b) as to the alleged violation(s) by the

Defendants and/or their Properties [TEX. LOCAL GOVT. CODE

§214.003(b)(3)].

14. Nowhere in the City’s 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.

Failure to Exhaust Remedies - Municipal Court Action (Dallas City Code,Article IV-a, Sections 27-16.3 et seq.)

17. 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


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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) Filing of a petition by City in Municipal Court to initiate the required civil

proceeding (City Code §27-16.4);

(b) Notice of hearing before the Municipal Court (City Code §27-16.5);

(c) Conduct of hearing before the Municipal Court (City Code §27-16.7);

(d) Determination of violation and assessment of penalties Notice of hearing

before the Municipal Court (City Code §27-16.8); and

(e)

Exercise by the Topletz Defendants of their right to appeal any order

entered by the Municipal Court (City Code §27-16.10).

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.

Failure to Exhaust Administrative Remedies – Administrative Proceedings(Dallas City Code, Article IV-b, Sections 27-16.12 et seq.)

19. Alternatively, 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 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) Issuance of an administrative citation containing the information required


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by City Code §27-16.13;

(b) Service of the administrative citation (City Code §27-16.14);

(c) The filing of an answer to the citation by the property owner (City Code

§27-16.15);

(d) Conducting of a hearing on the citation (City Code §27-16.18); and

(e) Exercise by the Topletz Defendants of their right to appeal any

administrative order to the Municipal Court (City Code §27-16.20).

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



D.

Request for Injunctive Relief and Appointment of a Receiver Not RipeBecause No Final Determination of Violations of City Code by Defendants ortheir Properties

21.

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


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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. In reviewing the granting of injunctive relief in relation to the

enforcement to the City of Austin’s ordinance prohibiting smoking in enclosed public

places, the Fifth Circuit Court of Appeals clearly explained in Roark & Hardee, LLP. et al

v. City of Austin, 522 F.3d 533, 545 (5th Cir. 2008) that:

“A court should dismiss a case for lack of ‘ripeness’ when the case isabstract or hypothetical.” Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003)(quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d583, 586 (5th Cir.1987)). The Supreme Court has expounded that “[t]he keyconsiderations [for ripeness] are the fitness of the issues for judicialdecision and the hardship to the parties of withholding courtconsideration.” Id. (citing Abbott Labs., 387 U.S. at 149) (internal quotationomitted).”

25. As the Court in Roark & Hardee also noted:

The “basic rationale [behind the ripeness doctrine] is to prevent the courts,through avoidance of premature adjudication, from entanglingthemselves 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 Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974)).

25. In addition, the courts have consistently held that the question of

“ripeness is peculiarly a question of timing”. Reg’l Rail Reorganization Act Cases, supra


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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. In effect, in failing to obtain final determinations of the alleged violations

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


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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) The right of Defendants not to be deprived of their property, privileges, or

immunities, except by the due course of the law of the land [Texas

Constitution, Article 1, Section 9; 5th and 14th Amendment of the United

States Constitution]; and

(d)

The rights of the Defendants and their Tenants to be secure in their

persons, houses, papers and possessions, from all unreasonable seizures

or searches, and to have no warrant to search any place, or to seize any

person or thing, issued without describing them as near as may be, nor

without probable cause, supported by oath or affirmation [Texas

Constitution, Article 1, Section 9; 4th Amendment to the United States

Constitution].

29. As such in light of the serious nature of such relief as requested by the

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. Based on the above and foregoing arguments and authorities, Defendants


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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 200Dallas, Texas 75201Telephone: (214) 522-4900Telefax: (800) 930-7112Email: [email protected]

By: /s/James P. Moon JAMES P. MOON

State Bar No. 14316300

ATTORNEYS FOR DEFENDANTS DENNISTOPLETZ; CASEY TOPLEZ; VICKIETOPLETZ; STEVEN TOPLETZ; MONARCHDEVELOPMENT CORPORATION; 2501BETHURUM AVE., DALLAS, TEXAS, in rem;1231 IOWA AVE., DALLAS, TEXAS, in rem;2603 MODREE AVE., DALLAS, TEXAS, inrem; 3803 OCTAVIA ST., DALLAS, TEXAS,in rem; 1304 PENNSYLVANIA AVE.,DALLAS, TEXAS, in rem; 2705PENNSYLVANIA AVE., DALLAS, TEXAS, inrem; and 1203 STRICKLAND ST., DALLAS,TEXAS, in rem


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DEFENDANTS’ PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINALANSWER, AND COUNTERCLAIM - 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 DISTRICTTHE 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 IN ABATEMENT, SPECIAL EXCEPTIONS,ORIGINAL ANSWER, AND COUNTERCLAIM

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

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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, subject to the

Defendants’ Pleas to Jurisdiction and Motion to Dismiss (the “Dismissal Motion”) filed

this day, hereby files this their Defendants’ Plea in Abatement, Special Exceptions, and

Original Answer in response to Plaintiff’s Original Petition (the “Petition”) filed by the

City of Dallas (the “City” or “Plaintiff”), and in answer thereto, and for cause of action,

would respectfully show the Court as follows:

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

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,


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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. This is an action by the City against the Individual Defendants, Monarch,

the Levin Defendants, 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

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.


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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) 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.

6. 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

2 References to the City Code are hereafter cited as “City Code, §______.”


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“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. As such, the Pleas in Abatement, Special Exceptions, Answer, and

Counterclaim set forth herein are filed subject to the Court’s rulings on such Dismissal

Motion and Venue Motion.

PLEA IN ABATEMENT

9. Defendants would hereby request that the Court abate this action for one

or more of the following reasons:

(a)

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


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seq. of Article IV-b relating to enforcement of public heath and safety

ordinances under Chapter 54 of the TEXAS LOCAL GOVERNMENT CODE; and

(d) 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.

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

10. 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

of a receiver over the Properties of Defendants provides as follows:

“Sec. 214.003. RECEIVER. (a) A home-rule municipality may bring an actionin district court against an owner of property that is not in substantialcompliance 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 recordof rehabilitating properties if the court finds that:

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


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(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 beenconducted .”

[Emphasis added.]

12. As such, it is clear that, in order for the City to be entitled to initiate an

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) Notice of the violation(s) of the City ordinances in question must have

been give to the Defendants prior to the determination of such alleged

violation by the Municipal Court [TEX. LOCAL GOVT. CODE §214.003(b)(2)];

and

(c) A public hearing must have been conducted by the Municipal Court as

required by Section 214.001(b) as to the alleged violation(s) by the

Defendants and/or their Properties [TEX. LOCAL GOVT. CODE

§214.003(b)(3)].

13. Nowhere in the City’s Petition is there any indication that the City has

complied with and met the requirements of TEX. LOCAL GOVT. CODE §214.003(b).


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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 City’s 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.

Failure to Exhaust Remedies - Municipal Court Action (Dallas City Code,Article IV-a, Sections 27-16.3 et seq.)

16. 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) Filing of a petition by City in Municipal Court to initiate the required civil

proceeding (City Code §27-16.4);

(b) Notice of hearing before the Municipal Court (City Code §27-16.5);

(c)

Conduct of hearing before the Municipal Court (City Code §27-16.7);

(d) Determination of violation and assessment of penalties Notice of hearing

before the Municipal Court (City Code §27-16.8); and


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(e) Exercise by the Topletz Defendants of their right to appeal any order

entered by the Municipal Court (City Code §27-16.10).

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



C.

Failure to Exhaust Administrative Remedies – Administrative Proceedings(Dallas City Code, Article IV-b, Sections 27-16.12 et seq.)

18. 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) Issuance of an administrative citation containing the information required

by City Code §27-16.13;

(b) Service of the administrative citation (City Code §27-16.14);

(c) The filing of an answer to the citation by the property owner (City Code

§27-16.15);

(d) Conducting of a hearing on the citation (City Code §27-16.18); and

(e)

Exercise by the Topletz Defendants of their right to appeal any

administrative order to the Municipal Court (City Code §27-16.20).

19. As such, Defendants request that the Court abate this action until such


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time as there has been a final, non-appealable determination under the applicable



D. Required Joinder of Persons under TEX. R. CIV. PROC. 39(a)

20. 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.

As is clear from an examination of the Petition, such relief requested

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 Plaintiff’s Original Petition,

¶¶53, 58, 61, and 69.

22. Under Rule 39(a) of the TEXAS RULES OF CIVIL PROCEDURE:

“ A person who is subject to service of process shall be joined as a party inthe action if:

(1) in his absence complete relief cannot be accorded among thosealready parties, or

(2) he claims an interest relating to the subject of the action and is so

situated that the disposition of the action in his absence may:

(i) as a practical matter impair or impede his ability to protect thatinterest or


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(ii) leave any of the persons already parties subject to a substantial riskof incurring double, multiple, or otherwise inconsistent obligationsby reason of his claimed interest. If he has not been so joined, thecourt shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a

proper case, an involuntary plaintiff .”

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. In addition, in the event that a receiver proposes to conduct significant

repairs or improvements to a particular Property, the expenditure of such funds will

undoubtedly result in a rental increase to the Tenant of such property. In such an

instance, the Tenant may well be forced with the untenable option of paying the

increased rental amount or having to vacate the Properties, thereby resulting in a

potential breach of the lease by the Topletz Defendant who is the owner of such

Property.

25. 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. In addition, by reason of such powers and rights to be granted to a


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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. Further, it is apparent from a review of the relief requested by the City,

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. As a result of such prospective acts and conduct by a receiver, and in the

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 City’s own ordinances require the right to participation

and involvement by the Tenants in connection with matter relating to the appointment


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of a receiver for Properties.

31. In seeking to enforce the City’s Minimum Urban Rehabilitation Standards

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 MUNICIPALCOURT.

(a) The city attorney or the director shall give notice of a municipalcourt hearing on the repair, demolition, vacation, or securing of astructure, or the relocation of the occupants of a structure, to any owner ,mortgagee, or lienholder of the structure. A diligent effort must be madeto discover each owner, mortgagee, or lienholder of the structure and togive 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 Propertiesand the Topletz Properties is based in the City’s alleged violations of Chapter 27 of the Dallas City Code.See Plaintiff’s Original Petition, ¶¶29 through 35 and Exhibit 4.


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Thomason, 138 Tex. 341, 159 S.W.2d 472.

33. 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. Request for Abatement

35. 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 attorney’s fees, costs,

and expenses incurred in connection herewith.

SPECIAL EXCEPTIONS

Failure to State a Claim

37. Pursuant to TEX. R. CIV. PROC. 91, Defendants hereby specially except to

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


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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;

38. Further, Defendants hereby specially except to 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

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.

Finally, Defendants hereby specially except to 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

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,


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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

pursuant to Rule 93(4) of the TEXAS RULES OF CIVIL PROCEDURE, Defendants hereby

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 Plaintiff’s Original Petition and

demand strict proof thereof by a preponderance of the credible evidence.

AFFIRMATIVE DEFENSES

Lack of Jurisdiction

44. Still urging and relying on the matters hereinabove alleged, Defendants

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




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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. As a result, and as requested in the Dismissal Motion, this action should

be dismissed until such time as the City has exhausted its judicial and administrative

remedies under the City Code.

No Justiciable Controversy (Ripeness)



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



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recover on its claims for the reason that Plaintiff has failed to join all necessary parties

required for relief hereunder.

51. As a result, and as requested in the Plea in Abatement, this action should

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.

Still urging and relying on the matters hereinabove alleged, Defendants


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.


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Waiver



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.

Still urging and relying on the matters hereinabove alleged, Defendants


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. This is a counterclaim by Defendants/Counter-Plaintiffs for declaratory

judgment under Section 37.004(a) of the TEXAS CIVIL PRACTICE & REMEDIES CODE as to


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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. More specifically, Defendants/Counter-Plaintiffs seek a declaration from

this Court as to:

(a) Whether the City is required to comply with the requirements of Section

214.003(b) prior to the initiation of any action or the appointment of a

receiver under such statute; and

(b)

Whether, in the absence of such compliance with the prerequisites of

Section 214.003(b), the City has failed to exhaust its administrative

remedies thereby depriving this Court of jurisdiction of the City’s action

for appointment of receiver.

PARTIES

59.

Defendants/Counter-Plaintiffs have their principal place of business in

Dallas County, Texas and have already appeared herein.

60. The City is a municipality incorporated under the laws of the State of

Texas and has already appeared herein.

JURISDICTION; VENUE

61. Jurisdiction is proper in this Court because the amount in controversy

exceeds the minimum jurisdictional limits of the Court.

62. Venue of this action is proper in Dallas County, Texas.


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DISCOVERY PLAN

63. Discovery in this case will be conducted under Level 2 as in the main case.

REQUEST FOR DISCLOSURE

64. Pursuant to TEXAS RULES OF CIVIL PROCEDURE 194, the City is hereby

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. Defendants/Counter-Plaintiffs hereby refer the Court to the factual

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. & R EM 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. Defendants/Counter-Plaintiffs would show that they are persons whose

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. As such, Defendants/Counter-Plaintiffs are therefore entitled to a

declaration of the rights by this Court of their rights with respect to the rights of the


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parties thereunder.

69. Based on the foregoing, Defendants/Counter-Plaintiffs request that the

Court, upon trial hereof, issue its declarations as follows:

(a) Whether the City is required to comply with the requirements of Section

214.003(b) prior to the initiation of any action or the appointment of a

receiver under such statute; and

(b) Whether, in the absence of such compliance with the prerequisites of

Section 214.003(b), the City has failed to exhaust its administrative

remedies thereby depriving this Court of jurisdiction of the City’s action

for appointment over receiver.

ATTORNEYS’ FEES

70. Defendants/Counter-Plaintiffs would further show that they have been

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

§37.009, Defendants/Counter-Plaintiffs are therefore entitled to recover their reasonable

attorneys’ fees, costs, and expenses incurred or to be incurred in connection with the

defense of the City’s claims, and prosecution of their Counterclaims, as well as the

reasonable attorneys' fees, costs, and expenses incurred in connection with any post-

trial matters and appeals to other courts.

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that


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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) That Defendants, as Counter-Plaintiffs, be granted the declaratory relief

as requested above;

(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) For prejudgment interest on the amounts set forth above;

(e) For post-judgment interest;

(f) Costs of suit; and

(g) Such other and further relief, at law or in equity, to which the Defendants

may show themselves justly entitled.


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Respectfully submitted,

KAPLAN & MOON, PLLC

3102 Maple Ave., Suite 200Dallas, Texas 75201Telephone: (214) 522-4900Telefax: (800) 930-7112Email: [email protected]

By: /s/James P. Moon JAMES P. MOON State Bar No. 14316300

ATTORNEYS FOR DEFENDANTS DENNISTOPLETZ; CASEY TOPLEZ; VICKIETOPLETZ; STEVEN TOPLETZ; MONARCHDEVELOPMENT CORPORATION; 2501BETHURUM AVE., DALLAS, TEXAS, in rem;1231 IOWA AVE., DALLAS, TEXAS, in rem;2603 MODREE AVE., DALLAS, TEXAS, inrem; 3803 OCTAVIA ST., DALLAS, TEXAS,in rem; 1304 PENNSYLVANIA AVE.,DALLAS, TEXAS, in rem; 2705

PENNSYLVANIA AVE., DALLAS, TEXAS, inrem; and 1203 STRICKLAND ST., DALLAS,TEXAS, in rem


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