Hillman v. City of McKinney

• Decision Date: 02 October 2014
• Docket Number: CASE NO. 4:11–CV–150
• Citation: 70 F.Supp.3d 790
• Court: U.S. District Court — Eastern District of Texas
• Parties: Mark Thomas Hillman, et al. v. City of McKinney, et al.

70 F.Supp.3d 790

Mark Thomas Hillman, et al.

v.City of McKinney, et al.

CASE NO. 4:11–CV–150

United States District Court, E.D. Texas, Sherman Division.

Signed October 02, 2014

John Francis Roehm, III, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, for Mark Thomas Hillman/City of McKinney.

Bryan Hillary Burg, Siebman Reynolds Burg Phillips & Smith LLP, Sherman, TX, Stephanie Rene' Barnes, Siebman, Burg, Phillips & Smith, Plano, TX, for Mark Thomas Hillman.

Thomas Phillip Brandt, Fanning Harper Martinson Brandt & Kutchin PC, Dallas, TX, Emery Clark Shannon, Attorney at Law, Addison, TX, for City of McKinney.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendants'¹ Motion for Summary Judgment (Dkt. # 143). Having considered the motion, the responses thereto, and the relevant pleadings, the Court finds that Defendants' motion is granted in part and denied in part.

BACKGROUND^{2 3}

On March 22, 2011, Plaintiffs Mark and Gail Hillman (“Plaintiffs”) filed this suit, and later amended their complaint to assert claims against Defendants for violations of constitutionally protected liberty and property interests arising under 42 U.S.C. § 1983, trespass, conversion, unjust enrichment, unlawful lockout, negligence, and tortious interference with a contract.

In 2009, Plaintiffs owned The Zone Entertainment Group, Inc., and operated a family entertainment business known as The Zone McKinney (“The Zone”). The Zone was located at 448 N. Custer Road in McKinney, Texas. McKinney Zone, L.P. owned the land and improvements at 448 N. Custer Road subject to security interest in favor of First International Bank (“FIB”). In February 2009, FIB foreclosed on the real property and building at 448 N. Custer Road, and FIB informed Plaintiffs that it would begin the process of selling the building. Plaintiffs and FIB entered into a month-to-month rental agreement. While the exact end date of Plaintiffs' lease is in dispute, both parties agree that Plaintiffs planned to operate The Zone through March 29, 2009, and the lease would terminate at the end of March 2009. There is a fact dispute regarding whether the personal property inside the building located at 448 N. Custer Road was also sold or otherwise foreclosed upon.

During the lease, FIB displayed a sign on the building stating, “Commercial Building For Sale.” Plaintiffs assert that due to the sign's presence, they lost business. As a result, Plaintiffs notified FIB that they would not be renewing the lease for the month of April 2009, and that their last day of occupation would be March 31, 2009.

FIB located would-be purchasers of the building, including Defendants Michael Ray Costa (“Costa”) and William A. McCrorey (“McCrorey”), who were at the time also in negotiations with Michael Thibodeaux (“Thibodeaux”). Plaintiffs were in communication with Costa and McCrorey, who visited The Zone at least once before the night in question. Plaintiffs contend that on or about March 22, 2009, Plaintiff Gail Hillman observed McCrorey looking behind the counters of the business. At this time, Plaintiff Gail Hillman told McCrorey that he was not allowed behind the counters, but that if he wanted a tour she would show him around the property. On March 23, 2009, McCrorey, Costa, and Thibodeaux met with Plaintiffs to discuss purchasing the property, and indicated that they planned to purchase the premises on March 24, 2009. Plaintiffs assert that Defendants threatened them with eviction, and asked to meet with the managers of The Zone McKinney. Plaintiffs refused to arrange that meeting until after the purchase was completed, and set up an additional meeting for March 24, 2009, at 6:00 p.m. Plaintiffs contend that Defendants did not appear for the scheduled meeting, and Plaintiffs left the premises. Plaintiffs, as well as several employees at The Zone, knew who Costa and McCrorey were and that they were interested in purchasing the property. The parties dispute whether Costa and McCrorey, among others, entered into a lease agreement with FIB for the property at 448 N. Custer Road. It is also disputed that Plaintiffs were never notified that they were being evicted, or otherwise removed, from the building at 448 N. Custer Road before the termination of their lease.

Both parties agree that after 8:00 p.m. on March 24, 2009, Costa contacted the McKinney Police Department and requested an officer meet him at a Home Depot located next door to The Zone. McKinney Police Officer Brent W. Shropshire (“Shropshire”) responded to the call, and Costa told him that he was the new owner of a local business/building and that he was trying to take possession, but the original owners were not being cooperative. Costa told Shropshire that he had legal documentation from FIB demonstrating his right to access the building. Plaintiffs argue that Shropshire did not verify or investigate what the documentation was, or whether Costa actually had a legal right to enter the premises, but rather took Costa at his word. Shropshire stated that while he had no way to verify whether Costa was telling the truth, he informed Costa that it was a civil matter, and Shropshire was not permitted to get involved. Costa asked Shropshire to accompany him to The Zone in order to ensure that no breach of the peace occurred during the takeover. Shropshire agreed to do so.

Costa claimed he informed Lisa Egnew (“Egnew”), the on-duty manager, that he was the new owner of the building, that he had paperwork to prove it, and that he and his associates wanted to enter the building. Shropshire stated that he spoke with Egnew and asked her permission to allow the men to enter the building. Egnew stated she was not certain she had a direct conversation with Shropshire, but that she may have let the men into the building because Shropshire was a police officer. After Costa, McCrorey, and their associates entered the building, they began informing the employees they were the new owners.

Sometime after the men entered the building, Plaintiffs received a phone call from Sean Ambrose (“Ambrose”), who stated that Costa and McCrorey were in the building, and they were going to take it over. Plaintiffs immediately went to The Zone and found Costa and McCrorey inside the building and changes being made to the locks. When the Plaintiffs arrived they were physically prevented from removing some of their belongings from the building. Plaintiffs and Costa both, separately, called the McKinney Police Department to ask that the others be removed. A few minutes after 11:00 p.m., Shropshire and another officer arrived at the building. Upon arriving, Shropshire noticed a group of people, including Costa, outside of the building. Shropshire then spoke with Costa or McCrorey and Plaintiffs. Costa or McCrorey told Shropshire that they were now the new owners of the building and that they had documentation to prove it. Shropshire also spoke to Plaintiffs, who told him they had a lease on the premises, and if they could enter the building they would get the documentation to prove it to him. Shropshire told both parties that the issue of who had the right to be on the premises was a civil matter, and he could not get involved. Despite this, Shropshire told Plaintiffs to leave the property because Costa and McCrorey appeared to be in control. Plaintiffs bring this suit under 42 U.S.C. § 1983 alleging violations of their Fourth, Fifth, and Fourteenth Amendment rights. In addition, Plaintiffs allege trespass, conversion, unjust enrichment, unlawful lockout, negligence, tortious interference with an existing contract, and seek damages from loss of reputation and loss of goodwill.

On April 1, 2014, Defendants filed their Motion for Summary Judgment (Dkt. # 143). Plaintiffs filed their response on May 2, 2014 (Dkt. # 148). Defendants filed their reply on May 12, 2014 (Dkt. # 151). Plaintiffs filed their sur-reply to on May 22, 2014 (Dkt. # 152)

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247, 106 S.Ct. 2505. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir.1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case.

Celotex, 477 U.S. at 325, 106 S.Ct. 2548 ; Byers v. Dallas Morning News, Inc. , 209 F.3d 419, 424 (5th Cir.2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477...