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TRITON 2414, LLC, AND TRITON 2422, § IN THE DISTRICT COURT OF
LLC, §
Plaintiffs, §
§
v. § DALLAS COUNTY, TEXAS
§
RED AKARD PLACE, LLC, §
§
Defendant. § 95th JUDICIAL DISTRICT
RED AKARD PLACE, LLC’S REPLY IN SUPPORT
OF ITS MOTION TO DISMISS FOR LACK OF JURISDICTION
Defendant Red Akard Place, LLC (“Red Akard”)
to Dismiss and states as follows.
ARGUMENT
If this Court grants Triton’s requested relief, Red Akard will be required to re-open a
Tritons claims, which ignore the text and purpose of the Ordinance, Red Akard cannot remove
the barricades without violating the Ordinance. Because Triton’s claim attacks the validity of a
city ordinance, the city is indispensable in this litigation and this court lacks jurisdiction to
proceed unless and until Triton adds the city as a party.
Including Traffic Associated with Triton.
Contrary to Triton’s argument ard to emplace barricades.
d simply place signs in the area because the ordinance states
that Red Akard must “close, barricade and/or place signs in the area.” But the “and/or” statement
UPPORT OF ITS OTION TO ACK OF URISDICTION OF
in § 11 does not give Red Akard this option. Because “and/or” is “meaningless, indefinite and
im. App. 1951) (quoting
v. Webster, 118 S.W.2d 1082, 1084 (Tex. Civ. App.—Beaumont 1938)), Texas courts view the
term in context to determine whether “and” or “or” applies. See, e.g. Willis Sears Trucking Co.
v. Pate, 452 S.W.2d 782, 785 (Tex. Civ. App.—Beaumont 1970, no writ). In this case,
Ordinance 297905 contemplates that Red Akard will permanently close the abandoned street,
especially given that Red Akard’s obligation to barricade the street continues until “the street
improvements and intersection returns are removed by Red Akard.” Ordinance at § 11. In other
words, Red Akard must barricade the street to prevent any use until Red Akard physically
removes the abandoned street from the city’s street system. Red Akard would not be complying
Section 11 of the Ordinance explicitly requires Red Akard to create a closure
plan and submit that plan to the city, who has exclusive authority over the manner in which Red
Akard closes the street. Ordinance, § 11 (requiring Red Akard to “close, barricade and/or
place signs in the area ... in accordance with detailed plans approved by the Director of
Department of Sustainable Development and Construction”) (emphasis added). Thus, Red Akard
has no discretion to remove the barricades without obtaining approval from the Director of
Department of Sustainable Development and Construction. The Ordinance simply does not allow
Triton Ignores that the City has Exclusive Control Over Its Streets.
The City of Dallas has “excl e public highways, streets,
and alleys of the municipality.” Tex. Transp. Code § 311.001. This results in the city having
“plenary power over all streets and alleys within corporate limits relative to vacation,
UPPORT OF ITS OTION TO ACK OF URISDICTION OF
abandonment or closure.” Jacobs v. City of Denison, 251 S.W.2d 804, 807 (Tex. Civ. App.—
Dallas 1952, no writ). Courts analyzing private easements recognize this principal, and thus
require that any relief this Court grants must “achieve an harmonious balance between the
authority of the City over its streets and the landowner’s right to a full and beneficial use of the
private easement.” Dykes v. City of Houston, 406 S.W.2d 176, 182 (Tex. 1966). This is because
“[a]n individual, even if he is the right to determine when a
Jacobs , the City of Dallas is indispensable because the Court will require its
le remedy on Triton’s injunction claim.
Finally, contrary to Triton’s argument, does not hold that the city has
no interest in this litigation. v. Industrial Co., 296 S.W. 503 (Tex
Comm’n App. 1927). In fact, it demonstrates precisely why the City of Dallas is indispensable.
In that case, the city passed an ordinance abandoning a street a
easement the city owned in that street. at 505 (Noting that the street in question was
“vacated and the city of Dallas [] abandon[ed] all control, jurisdiction, and dominion over the
same as public streets” (quoting relevant city ordinance)). In the ensuing litigation, the City of
Dallas, who was a party, was able to aid resolution of the case by stating the purpose of the
ordinance on the record. The city explained that it “planned to . . . physically close South Lamar
ordinance [did] not physically close the said street.” The city further clarified that it had “no
interest in who secures title to [the street], and to what use is made of sa
same is actually closed or not” and that “such matters [did] not concern the city of Dallas.” Thus,
the court rendered judgment in
UPPORT OF ITS OTION TO ACK OF URISDICTION OF
CONCLUSION
For these reasons, Red Akard respectfully asks the Court to grant its Motion to Dismiss
for Lack of Jurisdiction. Red Akard further requests any other relief, whether in law or in equity,
to which this Court may find it to be justly entitled.
Date: August 31, 2015 Respectfully submitted,
/s/ Jeremy A. Fielding
Jeremy A. Fielding
State Bar No. 24040895
jfielding@lynnllp.com
State Bar No. 24060115
kkrabill@lynnllp.com
State Bar No. 24092085
bbarnes@lynnllp.com
LYNN TILLOTSON PINKER &COX, LLP
Facsimile: 214-981-3839
RED AKARD PLACE, LLC
UPPORT OF ITS OTION TO ACK OF URISDICTION OF
CERTIFICATE OF SERVICE
I certify that on August 31, 2015, a true and correct copy of this document was served on
all counsel of record as indicated below:
rlemay@krcl.com
bclark@krcl.com
OLEMAN OGAN PC.
1601 Elm Street
Attorneys for Plaintiffs
Triton 2414, LLC and Triton 2422, LLC
/s/ Jeremy A. Fielding
Jeremy A. Fielding
4829-8314-5255, v. 1
UPPORT OF ITS OTION TO ACK OF URISDICTION OF
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TRITON 2414, LLC, AND TRITON 2422, § IN THE DISTRICT COURT OF LLC, § Plaintiffs, § § v. § DALLAS COUNTY, TEXAS § RED AKARD PLACE, LLC, § § Defendant. § 95th JUDICIAL DISTRICT RED AKARD PLACE, LLC’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF JURISDICTION Defendant Red Akard Place, LLC (“Red Akard”) to Dismiss and states as follows. ARGUMENT If this Court grants Triton’s requested relief, Red Akard will be required to re-open a Tritons claims, which ignore the text and purpose of the Ordinance, Red Akard cannot remove the barricades without violating the Ordinance. Because Triton’s claim attacks the validity of a city ordinance, the city is indispensable in this litigation and this court lacks jurisdiction to proceed unless and until Triton adds the city as a party. Including Traffic Associated with Triton. Contrary to Triton’s argument ard to emplace barricades. d simply place signs in the area because the ordinance states that Red Akard must “close, barricade and/or place signs in the area.” But the “and/or” statement UPPORT OF ITS OTION TO ACK OF URISDICTION OF in § 11 does not give Red Akard this option. Because “and/or” is “meaningless, indefinite and im. App. 1951) (quoting v. Webster, 118 S.W.2d 1082, 1084 (Tex. Civ. App.—Beaumont 1938)), Texas courts view the term in context to determine whether “and” or “or” applies. See, e.g. Willis Sears Trucking Co. v. Pate, 452 S.W.2d 782, 785 (Tex. Civ. App.—Beaumont 1970, no writ). In this case, Ordinance 297905 contemplates that Red Akard will permanently close the abandoned street, especially given that Red Akard’s obligation to barricade the street continues until “the street improvements and intersection returns are removed by Red Akard.” Ordinance at § 11. In other words, Red Akard must barricade the street to prevent any use until Red Akard physically removes the abandoned street from the city’s street system. Red Akard would not be complying Section 11 of the Ordinance explicitly requires Red Akard to create a closure plan and submit that plan to the city, who has exclusive authority over the manner in which Red Akard closes the street. Ordinance, § 11 (requiring Red Akard to “close, barricade and/or place signs in the area ... in accordance with detailed plans approved by the Director of Department of Sustainable Development and Construction”) (emphasis added). Thus, Red Akard has no discretion to remove the barricades without obtaining approval from the Director of Department of Sustainable Development and Construction. The Ordinance simply does not allow Triton Ignores that the City has Exclusive Control Over Its Streets. The City of Dallas has “excl e public highways, streets, and alleys of the municipality.” Tex. Transp. Code § 311.001. This results in the city having “plenary power over all streets and alleys within corporate limits relative to vacation, UPPORT OF ITS OTION TO ACK OF URISDICTION OF abandonment or closure.” Jacobs v. City of Denison, 251 S.W.2d 804, 807 (Tex. Civ. App.— Dallas 1952, no writ). Courts analyzing private easements recognize this principal, and thus require that any relief this Court grants must “achieve an harmonious balance between the authority of the City over its streets and the landowner’s right to a full and beneficial use of the private easement.” Dykes v. City of Houston, 406 S.W.2d 176, 182 (Tex. 1966). This is because “[a]n individual, even if he is the right to determine when a Jacobs , the City of Dallas is indispensable because the Court will require its le remedy on Triton’s injunction claim. Finally, contrary to Triton’s argument, does not hold that the city has no interest in this litigation. v. Industrial Co., 296 S.W. 503 (Tex Comm’n App. 1927). In fact, it demonstrates precisely why the City of Dallas is indispensable. In that case, the city passed an ordinance abandoning a street a easement the city owned in that street. at 505 (Noting that the street in question was “vacated and the city of Dallas [] abandon[ed] all control, jurisdiction, and dominion over the same as public streets” (quoting relevant city ordinance)). In the ensuing litigation, the City of Dallas, who was a party, was able to aid resolution of the case by stating the purpose of the ordinance on the record. The city explained that it “planned to . . . physically close South Lamar ordinance [did] not physically close the said street.” The city further clarified that it had “no interest in who secures title to [the street], and to what use is made of sa same is actually closed or not” and that “such matters [did] not concern the city of Dallas.” Thus, the court rendered judgment in UPPORT OF ITS OTION TO ACK OF URISDICTION OF CONCLUSION For these reasons, Red Akard respectfully asks the Court to grant its Motion to Dismiss for Lack of Jurisdiction. Red Akard further requests any other relief, whether in law or in equity, to which this Court may find it to be justly entitled. Date: August 31, 2015 Respectfully submitted, /s/ Jeremy A. Fielding Jeremy A. Fielding State Bar No. 24040895 jfielding@lynnllp.com State Bar No. 24060115 kkrabill@lynnllp.com State Bar No. 24092085 bbarnes@lynnllp.com LYNN TILLOTSON PINKER &COX, LLP Facsimile: 214-981-3839 RED AKARD PLACE, LLC UPPORT OF ITS OTION TO ACK OF URISDICTION OF CERTIFICATE OF SERVICE I certify that on August 31, 2015, a true and correct copy of this document was served on all counsel of record as indicated below: rlemay@krcl.com bclark@krcl.com OLEMAN OGAN PC. 1601 Elm Street Attorneys for Plaintiffs Triton 2414, LLC and Triton 2422, LLC /s/ Jeremy A. Fielding Jeremy A. Fielding 4829-8314-5255, v. 1 UPPORT OF ITS OTION TO ACK OF URISDICTION OF