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CAUSE NO. 22-DCV-291322
MARTIN GOMEZ, IN THE DISTRICT COURT OF
Plaintiff
FORT BEND COUNTY, TEXAS
MELLON REAL ESTATE, INC.,
Defendant 24074 JUDICIAL DISTRICT
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR RECONSIDERATION
AND SUPPLEMENT TO JOINT MOTION FOR CLARIFICATION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant, MELLON REAL ESTATE, INC., and files its Response to
Plaintiff's Motion for Reconsideration and Supplement to Joint Motion for Clarification, and urges
the Court to deny Plaintiff's motion for these reasons:
The General Saving Clause of Loc.Gov’t. Code §311.031 is not applicable to City of
Richmond’s Ordinance 2011-10; and
The cited sections of Part A of the City Ordinances do not operate as a savings clause in
this case;
The court should consider only those arguments before the court during the June 5, 2023
hearing, not Plaintiff's new (and inapplicable) argument regarding the Texas General
Saving Clause or additional Sections from Part A of the City Ordinances;
There Is No Authority For Plaintiff’s Claim That Municipal Ordinances Constitute
“Rule[S] Adopted Under A Code For Purposes Of The General Saving Clause
A The General Savings Clause by its plain language does not apply to a municipal
ordinance.
The Code Construction Act, found at Texas Government Code Chapter 311, was the result
of a statutory revision program begun by the Texas Legislative Council in 1963. See Robbins
Chevrolet Company v. Motor Vehicle Board, 989 S.W.2d 865, 867, (Tex.App.—Austin 1999, writ
denied). The goals of the Legislative Council were codified at Texas Government Code §323.007,
ROUTED TO COURT
RTD TOD.CLERK 07/11/2023 SL
which provides in subsection (a) that “[t]he council shall plan and execute a permanent statutory
revision program for the systematic and continues study of the statutes of this state and for the
formal revisions of the statutes on a topical or code basis. The purpose of the program is to clarify
and simplify the statutes and to make the statues more accessible, understandable and usable.”
(Emphasis added). In particular, the Code Construction Act, which is part of the Texas
Government Code, makes clear that it applies to codes enacted by the1967 60" Legislature or later
as part of a continuing statutory revision program. Tex.Gov’t. Code §311.002(1). Section 311.002
(“Application”), provides as follows:
“This chapter applies to:
(1) each code enacted by the 60" Legislature or a subsequent legislature as part
of the state’s continuing statutory revision program;
(2) each amendment, repeal, revision, reenactment of a code or code provision
by the 60" or a subsequent legislature;
(3) each repeal of a statute by a code; and
(4) each rule adopted under a code.”
Plaintiff incorrectly argues that the General Savings Clause found at Texas Government
Code §311.031 applies and precludes application of the common law rule that repeal of a statute,
or in this case, Richmond Ordnance 2011-10, without a savings clause, operates to nullify
violations of the law which have not been prosecuted prior to the repeal. The plain language ofthe
General Savings Clause makes clear that it applies to a “statute” “code” as opposed to a
municipal ordinance. Tex.Gov’t. Code §311.031(a).
In particular, Section 311.031(a) provides that “the reenactment, revision, amendment, or
repeal of a statute does not affect: (3) any violation of the statute or penalty, forfeiture, or
punishment incurred under the statute before its amendment of repeal. Tex.Gov’t. Code
§311.031(a)(3). Courts interpreting Section 311.031(a) have applied it to the repeal of a Texas
state legislative code. See, e.g., Quick v. City of Austin, 7 S.W.3d 109, 128-130 (Tex.1998)(“The
Legislature’s adoption of the general savings clause in the Code Construction Act indicates a
legislative policy that the repeal of any statute shall not affect the prior operation of that statute
nor extinguish any liability incurred or affect any right accrued or claim arising before the repeal
takes place.”).
Plaintiff in this case has not cited any authority in support of his claim that the General
Savings Clause at §311.031 applies to a municipal ordinance as opposed to a statute or code
enacted by the Texas Legislature. In short, there is simply no basis to claim that Section 311.03 1(a)
applies to the repeal of a municipal ordinance given the clear intent of the Legislature to apply
Section 311.03 1(a) to legislative acts or statutes enacted by the state of Texas.
B Municipal ordinances are not “rules” subject to the General Savings Clause.
Plaintiff claims that because home rule cities like Richmond have the power of self-
government pursuant to Section 51.072 of the Texas Local Government Code that any ordinances
they adopt constitute “rules adopted under a code.” Plaintiff cites no statutory or case law authority
for this proposition with good reason; there is none.
The Texas Local Government Code is one of twenty-seven (27) codes which were enacted
pursuant to the Code Construction Act. See Knight v. International Harvester Credit Corp., 627
S.W.2d 382, 385 (Tex.1982). It is also true that home-rule cities like Richmond have the power of
local self-government pursuant to authority provided to them under Section 51.072 of the Texas
Local Government Code. Tex. Loc’l. Gov’t. Code §51.072. These codes typically will have a
section entitled “Code Construction,” usually found in Section 1.002 of the code, which
specifically incorporates the Code Construction Act (Chapter 311) for purposes of interpreting that
specific code. See, e.g., Texas Agriculture Code, § 1.002; Texas Alcoholic Beverages Code, § 1.02;
Texas Civil Practice & Remedies Code, §1.002; Texas Local Government Code, §1.002).
However, while Section 311.002 of the Code Construction Act talks about its application to “(3)
each repeal of a statute by a code; and (4) each rule adopted under a code”, the plain language of
that section does not indicate that it is intended to extend to a municipal ordinance adopted or
repealed by a home rule city as Plaintiff claims.
When the Code Construction Act discusses “codes” it is referring only to those twenty-
seven adopted as part of the continuing statutory revision program of Texas. See Robbin Chevrolet
Company, 989 S.W.2d at 867-868. Further, when Section 311.002(4) discusses “rules adopted
under a code,” it refers to rules specifically adopted as part of one of twenty-seven codes. See In
re Walkup, 122 S.W.3d 215, 217 (Tex.App.—Houston [1* Dist.] 2003, orig.proceeding)(“The
Code Construction Act applies to the Texas Rules of Civil Procedure as those rules were adopted
under Government Code section 22.004”); See also, Texas Water Code §13.5031 (providing
authority to the Public Utility Commission to adopt rules); Texas Tax Code §111.002(a)(providing
authority to comptroller to adopt rules regarding the collection of taxes and other revenues under
the Tax Code); Texas Government Code §81.072(a)(providing the Texas Supreme Court with
power to adopt rules for the conduct of attorneys). No stretch of the imagination can justify
Plaintiff's claim that because Ordinance 2011-10 was adopted by Richmond pursuant to home rule
authority under §51.072 of the Local Government, that such ordinance is a “rule” subject to the
General Savings Clause of Government Code §311.031 as Plaintiff claims.
IL.
Plaintiff’s Is Correct That The “Plain Language” CCA Applies To Municipal Ordinances,
But That Simply Relates As To General Rules Of Construction-LE., The “Plain Meaning”
Rule; It Does Not Mean That The Saving Clause Of 311.031 Applies To A Municipal
Ordinance.
Plaintiff admits there is no authority to support his claim that the General Savings Clause
of §311.031 applies to municipal ordinance, noting “there is not specific case law on point.”
(Plaintiff's Motion for Reconsideration, pg. 2). Instead, Plaintiff looks to a CLE article! that
address the “plain language” rule found in the Code Construction Act and cases cited in the article
on that rule of statutory interpretation being applied to municipal ordinances. (Plaintiff's Motion
for Reconsideration, pg. 2). The “plain language” principal or rule is particularly embodied in
Section 311.011, which notes that words and phrases should be construed according to the rules
of grammar and common usage. See Entergy Gulf States v. Summers, 282 S.W.3d 433, 437
(Tex.2009).
Additional tools for statutory construction are found at §311.023, which mentions, amongst
other considerations, to look at “(2) circumstances under which the statute was engaged” or “(3)
the legislative history”.” This “plain language” concept is not limited to construction of state
statutes or codes; it applies equally to the construction or municipal ordinances. See Powell v. City
of Houston, 580 $.W.3d 391, 396 (Tex.App.—Houston [1* Dist.] 2019, pet.denied), But what
courts applying the Code Construction Act to ordinances have done is to incorporate the plain
language concepts of the Act, not the “General Savings” clause found at Section 311.031(a). In
fact, as Plaintiff readily admits, he found no cases supporting such a claim. There are none. In
short, authorities applying concepts such as the “plain language rule” to ordinances do not support
a claim that the General Savings Clause also applies to the repeal of a municipal ordinance.
lll.
Recitation To Additional Sections Of Subpart A Of The Richmond Code Or Ordinances
Does Not Support Plaintiffs Claim That Any “Violation” Continued After The 2011
Ordinance Was Expressly Repealed.
As a preliminary matter, Plaintiff keeps saying that because of the lack of streetlights and
sidewalks that the Park was in “violation” of the 2011 Ordinance at the time ofthe 2020 accident
! Citing Turner, Hon. Ryan Kellus and Metteauer, Regan, “War of Words: The Code Construction Act from the
Courtroom to the Court of Criminal Appeals” State Bar of Texas 47" Annual Advanced Criminal Law, July 2021.
so as to form the basis for his negligence per se claim. Defendant has exhaustively briefed in other
motions the fact that any “violation” under the 2011 Ordinance ceased to exist when it was
expressly repealed by UDC §1..104(B). However, the problem with Plaintiff's argument is that it
is only Plaintiff's counsel that is claiming there was a “violation.” That is no evidence. In contrast,
Defendants have presented proof in the form of a letter from the City Manager, Terri Vela, that
the Park was in fact not in “violation” of the 2011 Ordinance at the time of the 2020 incident. It is
axiomatic that there must be a direct causal nexus between any alleged “violation” and the claimed
injury for purposes of a negligence per se claim. In short, whether the Park was or was not in
“violation” of the 2011 Ordinance before its repeal is irrelevant. Such “violation” ceased to exist
when the 2011 Ordinance was repealed by UDC §1.2.104(B).
Sections 1-4(b), 1-9 and 1-10 cited by Plaintiff in the Code of Ordinances to not support
his claim that “violations” remained even after the repeal of the 2011 Ordinance. First, it is
important to note that the Sections Plaintiff cites are found in Subpart A ofthe Code of Ordinances,
whereas the UDC is found in Subpart B. Subpart A, Chapter 101(“General and Administrative
Provisions”), makes clear that “Subpart A of this Code (the “Code of Ordinances”) is a codification
of the general ordinances of the city not specifically pertaining to land development and/or land
use.” In contrast, Subpart B is entitled “Land Development and Land Use.” The very first section
falling under Subpart B is the Uniform Development Code. In short, those general sections clearly
do not trump the more specific sections previously briefed and found in Subpart B, the UDC.
First, Plaintiff's reference to Section 1-4(b) is nonsensical and does not support his general
savings clause argument. Plaintiff has conveniently omitted subpart (a), which provides the
following:
Sec. 1-4. - Effect of repeal of ordinances.
(a) Unless specifically provided otherwise, the repeal of a repealing ordinance does not
revive the ordinance originally repealed or impair the effect of any savings provision
in it.
(b) The repeal or amendment of an ordinance does not affect any punishment or penalty
incurred before the repeal took effect, nor does such repeal or amendment affect any suit,
prosecution or proceeding pending at the time of the amendment or repeal.
As applied to the issues in this case, subsection 1-4(a) is simply stating that to the extent
that UDC §1.1.204(B) repealed the 2011 Ordinance, which itself repealed the 1970 Ordinance,
such repeal did not operate to revive the 1970 Ordinance. Subsection 1-4(b) says that repeal doesn’t
affect “punishment or penalty incurred before ethe repeal,” but there is no evidence that the Park
was subject to any such “punishment or penalty” regarding lack of streetlights or sidewalks before
the 2011 Ordinance was repealed by UDC §1.1.204(B). This argument lacks merit.
Next, Plaintiff cites Section 1-9 for the apparent proposition that the UDC simply continued
in force the 2011 Ordinance’s requirements as to streetlights and sidewalks. But such a
construction is negated by the clear repeal language of Section 1.1.204(B), stating the following:
A Generally. The City Commission finds that the adoption of this UDC necessitates the repeal of all conflicting
ordinances that existed on the effective date.
Repealed Ordinances. The following duly adopted ordinances of the City of Richmond, Texas, that existed on the
effective date priorto the initial adoption of this UDC are hereby repealed:
1. Ord. No. 2011-10, Manufactured Home Ordinances;
Finally, Plaintiff's argument based on Section 1-10 does not preserve “violations” for
purposes of his negligence per se claim. In particular, Section 1-10 discusses not authorizing the
“continuation of any use of a structure or premises in violation of any city ordinance on the
effective date (January 20, 2015) of this Code.” However, as previously noted in Defendant’s
briefing, the Park had not previously received any violations from the City and indeed had been
before and after the enactment of the Code of Ordinances (including the UDC) was operating as a
“lawful” use under licenses issued by the City of Richmond. (Defendant’s Reply to Plaintiff's
Response to Motion for Reconsideration, pp. 5-7).
Iv.
Plaintiff Should Not Be Permitted To Raise Arguments On Reconsideration Based On New
Arguments Or Evidence Not Before The Court At The Time Of The June 5, 2023 Hearing
The parties exhaustively briefed the issues regarding whether the 2011 Ordinance and/or
UDC was the controlling law and whether there were any violations under either prior to the July
5, 2023 hearing on Defendant’s Motion for Reconsideration and Plaintiffs Motion for Partial
Summary Judgment. The arguments regarding the General Savings Clause and/or Sections of the
Code of Ordinances addressed in Plaintiffs Motion for Reconsideration do not involve some type
of “newly discovered evidence;” instead, these are simply legal arguments that easily could have
(but were not) made before the Court at the least hearing. As noted above, these new arguments
do not help Plaintiff. In short, there is no basis to consider these extraneous new arguments.
V.
Prayer
WHEREFORE, PREMISES CONSIDERED, Defendant Mellon Real Estate, Inc. and
Plaintiff Martin Gomez request that the Court DENY Plaintiffs Motion for Reconsideration and
Supplement to the Joint Motion for Clarification, and for such other and further relief, at law and/or
at equity, to which the Parties are justly entitled.
Respectfully submitted,
CLARK HILL PLC
By N- Swot Ney wt
H. Scott Alexander
State Bar No. 00793247
2615 Calder Avenue, Suite 240
Beaumont, Texas 77702
Telephone: 409.351.3800
Facsimile: 409.351.3883
bsiahatgar@clarkhill.com
hsalexander@clarkhill.com
ATTORNEYS FOR DEFENDANT,
MELLON REAL ESTATE, INC.
CERTIFICATE OF SERVICE
Thereby certify that on this the 6" day of July, 2023, a true and correct copy of the foregoing
document was electronically field by E-File Texas with a request for service on counsel for all
parties.
Ne Sat Whey nti
H. Scott Alexander
Preview
CAUSE NO. 22-DCV-291322 MARTIN GOMEZ, IN THE DISTRICT COURT OF Plaintiff FORT BEND COUNTY, TEXAS MELLON REAL ESTATE, INC., Defendant 24074 JUDICIAL DISTRICT DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR RECONSIDERATION AND SUPPLEMENT TO JOINT MOTION FOR CLARIFICATION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant, MELLON REAL ESTATE, INC., and files its Response to Plaintiff's Motion for Reconsideration and Supplement to Joint Motion for Clarification, and urges the Court to deny Plaintiff's motion for these reasons: The General Saving Clause of Loc.Gov’t. Code §311.031 is not applicable to City of Richmond’s Ordinance 2011-10; and The cited sections of Part A of the City Ordinances do not operate as a savings clause in this case; The court should consider only those arguments before the court during the June 5, 2023 hearing, not Plaintiff's new (and inapplicable) argument regarding the Texas General Saving Clause or additional Sections from Part A of the City Ordinances; There Is No Authority For Plaintiff’s Claim That Municipal Ordinances Constitute “Rule[S] Adopted Under A Code For Purposes Of The General Saving Clause A The General Savings Clause by its plain language does not apply to a municipal ordinance. The Code Construction Act, found at Texas Government Code Chapter 311, was the result of a statutory revision program begun by the Texas Legislative Council in 1963. See Robbins Chevrolet Company v. Motor Vehicle Board, 989 S.W.2d 865, 867, (Tex.App.—Austin 1999, writ denied). The goals of the Legislative Council were codified at Texas Government Code §323.007, ROUTED TO COURT RTD TOD.CLERK 07/11/2023 SL which provides in subsection (a) that “[t]he council shall plan and execute a permanent statutory revision program for the systematic and continues study of the statutes of this state and for the formal revisions of the statutes on a topical or code basis. The purpose of the program is to clarify and simplify the statutes and to make the statues more accessible, understandable and usable.” (Emphasis added). In particular, the Code Construction Act, which is part of the Texas Government Code, makes clear that it applies to codes enacted by the1967 60" Legislature or later as part of a continuing statutory revision program. Tex.Gov’t. Code §311.002(1). Section 311.002 (“Application”), provides as follows: “This chapter applies to: (1) each code enacted by the 60" Legislature or a subsequent legislature as part of the state’s continuing statutory revision program; (2) each amendment, repeal, revision, reenactment of a code or code provision by the 60" or a subsequent legislature; (3) each repeal of a statute by a code; and (4) each rule adopted under a code.” Plaintiff incorrectly argues that the General Savings Clause found at Texas Government Code §311.031 applies and precludes application of the common law rule that repeal of a statute, or in this case, Richmond Ordnance 2011-10, without a savings clause, operates to nullify violations of the law which have not been prosecuted prior to the repeal. The plain language ofthe General Savings Clause makes clear that it applies to a “statute” “code” as opposed to a municipal ordinance. Tex.Gov’t. Code §311.031(a). In particular, Section 311.031(a) provides that “the reenactment, revision, amendment, or repeal of a statute does not affect: (3) any violation of the statute or penalty, forfeiture, or punishment incurred under the statute before its amendment of repeal. Tex.Gov’t. Code §311.031(a)(3). Courts interpreting Section 311.031(a) have applied it to the repeal of a Texas state legislative code. See, e.g., Quick v. City of Austin, 7 S.W.3d 109, 128-130 (Tex.1998)(“The Legislature’s adoption of the general savings clause in the Code Construction Act indicates a legislative policy that the repeal of any statute shall not affect the prior operation of that statute nor extinguish any liability incurred or affect any right accrued or claim arising before the repeal takes place.”). Plaintiff in this case has not cited any authority in support of his claim that the General Savings Clause at §311.031 applies to a municipal ordinance as opposed to a statute or code enacted by the Texas Legislature. In short, there is simply no basis to claim that Section 311.03 1(a) applies to the repeal of a municipal ordinance given the clear intent of the Legislature to apply Section 311.03 1(a) to legislative acts or statutes enacted by the state of Texas. B Municipal ordinances are not “rules” subject to the General Savings Clause. Plaintiff claims that because home rule cities like Richmond have the power of self- government pursuant to Section 51.072 of the Texas Local Government Code that any ordinances they adopt constitute “rules adopted under a code.” Plaintiff cites no statutory or case law authority for this proposition with good reason; there is none. The Texas Local Government Code is one of twenty-seven (27) codes which were enacted pursuant to the Code Construction Act. See Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 385 (Tex.1982). It is also true that home-rule cities like Richmond have the power of local self-government pursuant to authority provided to them under Section 51.072 of the Texas Local Government Code. Tex. Loc’l. Gov’t. Code §51.072. These codes typically will have a section entitled “Code Construction,” usually found in Section 1.002 of the code, which specifically incorporates the Code Construction Act (Chapter 311) for purposes of interpreting that specific code. See, e.g., Texas Agriculture Code, § 1.002; Texas Alcoholic Beverages Code, § 1.02; Texas Civil Practice & Remedies Code, §1.002; Texas Local Government Code, §1.002). However, while Section 311.002 of the Code Construction Act talks about its application to “(3) each repeal of a statute by a code; and (4) each rule adopted under a code”, the plain language of that section does not indicate that it is intended to extend to a municipal ordinance adopted or repealed by a home rule city as Plaintiff claims. When the Code Construction Act discusses “codes” it is referring only to those twenty- seven adopted as part of the continuing statutory revision program of Texas. See Robbin Chevrolet Company, 989 S.W.2d at 867-868. Further, when Section 311.002(4) discusses “rules adopted under a code,” it refers to rules specifically adopted as part of one of twenty-seven codes. See In re Walkup, 122 S.W.3d 215, 217 (Tex.App.—Houston [1* Dist.] 2003, orig.proceeding)(“The Code Construction Act applies to the Texas Rules of Civil Procedure as those rules were adopted under Government Code section 22.004”); See also, Texas Water Code §13.5031 (providing authority to the Public Utility Commission to adopt rules); Texas Tax Code §111.002(a)(providing authority to comptroller to adopt rules regarding the collection of taxes and other revenues under the Tax Code); Texas Government Code §81.072(a)(providing the Texas Supreme Court with power to adopt rules for the conduct of attorneys). No stretch of the imagination can justify Plaintiff's claim that because Ordinance 2011-10 was adopted by Richmond pursuant to home rule authority under §51.072 of the Local Government, that such ordinance is a “rule” subject to the General Savings Clause of Government Code §311.031 as Plaintiff claims. IL. Plaintiff’s Is Correct That The “Plain Language” CCA Applies To Municipal Ordinances, But That Simply Relates As To General Rules Of Construction-LE., The “Plain Meaning” Rule; It Does Not Mean That The Saving Clause Of 311.031 Applies To A Municipal Ordinance. Plaintiff admits there is no authority to support his claim that the General Savings Clause of §311.031 applies to municipal ordinance, noting “there is not specific case law on point.” (Plaintiff's Motion for Reconsideration, pg. 2). Instead, Plaintiff looks to a CLE article! that address the “plain language” rule found in the Code Construction Act and cases cited in the article on that rule of statutory interpretation being applied to municipal ordinances. (Plaintiff's Motion for Reconsideration, pg. 2). The “plain language” principal or rule is particularly embodied in Section 311.011, which notes that words and phrases should be construed according to the rules of grammar and common usage. See Entergy Gulf States v. Summers, 282 S.W.3d 433, 437 (Tex.2009). Additional tools for statutory construction are found at §311.023, which mentions, amongst other considerations, to look at “(2) circumstances under which the statute was engaged” or “(3) the legislative history”.” This “plain language” concept is not limited to construction of state statutes or codes; it applies equally to the construction or municipal ordinances. See Powell v. City of Houston, 580 $.W.3d 391, 396 (Tex.App.—Houston [1* Dist.] 2019, pet.denied), But what courts applying the Code Construction Act to ordinances have done is to incorporate the plain language concepts of the Act, not the “General Savings” clause found at Section 311.031(a). In fact, as Plaintiff readily admits, he found no cases supporting such a claim. There are none. In short, authorities applying concepts such as the “plain language rule” to ordinances do not support a claim that the General Savings Clause also applies to the repeal of a municipal ordinance. lll. Recitation To Additional Sections Of Subpart A Of The Richmond Code Or Ordinances Does Not Support Plaintiffs Claim That Any “Violation” Continued After The 2011 Ordinance Was Expressly Repealed. As a preliminary matter, Plaintiff keeps saying that because of the lack of streetlights and sidewalks that the Park was in “violation” of the 2011 Ordinance at the time ofthe 2020 accident ! Citing Turner, Hon. Ryan Kellus and Metteauer, Regan, “War of Words: The Code Construction Act from the Courtroom to the Court of Criminal Appeals” State Bar of Texas 47" Annual Advanced Criminal Law, July 2021. so as to form the basis for his negligence per se claim. Defendant has exhaustively briefed in other motions the fact that any “violation” under the 2011 Ordinance ceased to exist when it was expressly repealed by UDC §1..104(B). However, the problem with Plaintiff's argument is that it is only Plaintiff's counsel that is claiming there was a “violation.” That is no evidence. In contrast, Defendants have presented proof in the form of a letter from the City Manager, Terri Vela, that the Park was in fact not in “violation” of the 2011 Ordinance at the time of the 2020 incident. It is axiomatic that there must be a direct causal nexus between any alleged “violation” and the claimed injury for purposes of a negligence per se claim. In short, whether the Park was or was not in “violation” of the 2011 Ordinance before its repeal is irrelevant. Such “violation” ceased to exist when the 2011 Ordinance was repealed by UDC §1.2.104(B). Sections 1-4(b), 1-9 and 1-10 cited by Plaintiff in the Code of Ordinances to not support his claim that “violations” remained even after the repeal of the 2011 Ordinance. First, it is important to note that the Sections Plaintiff cites are found in Subpart A ofthe Code of Ordinances, whereas the UDC is found in Subpart B. Subpart A, Chapter 101(“General and Administrative Provisions”), makes clear that “Subpart A of this Code (the “Code of Ordinances”) is a codification of the general ordinances of the city not specifically pertaining to land development and/or land use.” In contrast, Subpart B is entitled “Land Development and Land Use.” The very first section falling under Subpart B is the Uniform Development Code. In short, those general sections clearly do not trump the more specific sections previously briefed and found in Subpart B, the UDC. First, Plaintiff's reference to Section 1-4(b) is nonsensical and does not support his general savings clause argument. Plaintiff has conveniently omitted subpart (a), which provides the following: Sec. 1-4. - Effect of repeal of ordinances. (a) Unless specifically provided otherwise, the repeal of a repealing ordinance does not revive the ordinance originally repealed or impair the effect of any savings provision in it. (b) The repeal or amendment of an ordinance does not affect any punishment or penalty incurred before the repeal took effect, nor does such repeal or amendment affect any suit, prosecution or proceeding pending at the time of the amendment or repeal. As applied to the issues in this case, subsection 1-4(a) is simply stating that to the extent that UDC §1.1.204(B) repealed the 2011 Ordinance, which itself repealed the 1970 Ordinance, such repeal did not operate to revive the 1970 Ordinance. Subsection 1-4(b) says that repeal doesn’t affect “punishment or penalty incurred before ethe repeal,” but there is no evidence that the Park was subject to any such “punishment or penalty” regarding lack of streetlights or sidewalks before the 2011 Ordinance was repealed by UDC §1.1.204(B). This argument lacks merit. Next, Plaintiff cites Section 1-9 for the apparent proposition that the UDC simply continued in force the 2011 Ordinance’s requirements as to streetlights and sidewalks. But such a construction is negated by the clear repeal language of Section 1.1.204(B), stating the following: A Generally. The City Commission finds that the adoption of this UDC necessitates the repeal of all conflicting ordinances that existed on the effective date. Repealed Ordinances. The following duly adopted ordinances of the City of Richmond, Texas, that existed on the effective date priorto the initial adoption of this UDC are hereby repealed: 1. Ord. No. 2011-10, Manufactured Home Ordinances; Finally, Plaintiff's argument based on Section 1-10 does not preserve “violations” for purposes of his negligence per se claim. In particular, Section 1-10 discusses not authorizing the “continuation of any use of a structure or premises in violation of any city ordinance on the effective date (January 20, 2015) of this Code.” However, as previously noted in Defendant’s briefing, the Park had not previously received any violations from the City and indeed had been before and after the enactment of the Code of Ordinances (including the UDC) was operating as a “lawful” use under licenses issued by the City of Richmond. (Defendant’s Reply to Plaintiff's Response to Motion for Reconsideration, pp. 5-7). Iv. Plaintiff Should Not Be Permitted To Raise Arguments On Reconsideration Based On New Arguments Or Evidence Not Before The Court At The Time Of The June 5, 2023 Hearing The parties exhaustively briefed the issues regarding whether the 2011 Ordinance and/or UDC was the controlling law and whether there were any violations under either prior to the July 5, 2023 hearing on Defendant’s Motion for Reconsideration and Plaintiffs Motion for Partial Summary Judgment. The arguments regarding the General Savings Clause and/or Sections of the Code of Ordinances addressed in Plaintiffs Motion for Reconsideration do not involve some type of “newly discovered evidence;” instead, these are simply legal arguments that easily could have (but were not) made before the Court at the least hearing. As noted above, these new arguments do not help Plaintiff. In short, there is no basis to consider these extraneous new arguments. V. Prayer WHEREFORE, PREMISES CONSIDERED, Defendant Mellon Real Estate, Inc. and Plaintiff Martin Gomez request that the Court DENY Plaintiffs Motion for Reconsideration and Supplement to the Joint Motion for Clarification, and for such other and further relief, at law and/or at equity, to which the Parties are justly entitled. Respectfully submitted, CLARK HILL PLC By N- Swot Ney wt H. Scott Alexander State Bar No. 00793247 2615 Calder Avenue, Suite 240 Beaumont, Texas 77702 Telephone: 409.351.3800 Facsimile: 409.351.3883 bsiahatgar@clarkhill.com hsalexander@clarkhill.com ATTORNEYS FOR DEFENDANT, MELLON REAL ESTATE, INC. CERTIFICATE OF SERVICE Thereby certify that on this the 6" day of July, 2023, a true and correct copy of the foregoing document was electronically field by E-File Texas with a request for service on counsel for all parties. Ne Sat Whey nti H. Scott Alexander