Return Lee to Lee Park v. Rawlings
| Decision Date | 28 December 2020 |
| Docket Number | No. 05-19-00456-CV,05-19-00456-CV |
| Parties | RETURN LEE TO LEE PARK, WARREN JOHNSON, and KATHERINE GANN, Appellants v. MIKE RAWLINGS, SCOTT GRIGGS, ADAM MEDRANO, CASEY THOMAS II, DWAINE CARAWAY, RICKEY CALLAHAN, OMAR NARVAEZ, KEVIN FELDER, TENNELL ATKINS, MARK CLAYTON, ADAM MCGOUGH, LEE KLEINMAN, SANDY GREYSON, JENNIFER GATES, PHILIP KINGSTON, and THE CITY OF DALLAS, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 14th Judicial District Court Dallas County, Texas
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Pedersen, III
In 2017, the Mayor of the City of Dallas convened a task force to consider what actions, if any, should be taken regarding City-owned symbols of the Confederacy. This appeal involves two of those symbols—a statue of Robert E. Lee that was located at the City's Oak Lawn Park (the Lee Statue) and the Confederate Monument that was located at the City's Pioneer Cemetery Park.
On September 1, 2017, the City posted the agenda for a City Council meeting scheduled for September 6, 2017. The agenda notice stated that the City Council would consider a resolution (described in the notice) regarding Confederate symbols on City property. At the September 6th meeting, the City Council passed the resolution concerning Confederate monuments, symbols, and names. The resolution directed the city manager to immediately remove the Lee Statue and store it at a safe location. The resolution also directed the task force to initiate a series of public meetings to consider what to do with the Lee Statue and other Confederate symbols, including the Confederate Monument, once they had been removed. The Lee Statue was removed on September 14, 2017, and placed into storage.
During the months that followed, the City held numerous public hearings, briefings, and meetings discussing what to do with City-owned symbols of the Confederacy. On February 13, 2019, at a publicly noticed meeting, the City Council voted to take all steps necessary to remove the Confederate Monument and to procure a contract for its removal. The Confederate Monument was located in a City-created historical district, so the City applied for and was granted a certificate of removal from the City's Landmark Commission. The City also solicited bids for the removal of the Confederate Monument.
In a publicly noticed meeting on May 22, 2019, the City Council authorized the sale of the Lee Statue. The City retained an auction service, and the statue was sold for $1.4 million dollars. The City Council confirmed the sale on June 12, 2019.
On April 24, 2018, Return Lee to Lee Park and Gann filed suit against the Mayor of the City of Dallas and the Dallas City Council members in their individual capacities,1 objecting to the removal of the Lee Statue and the Confederate Monument and accusing the Mayor and City Council members of violations of the Texas Antiquities Code and criminal mischief. They sought a temporary restraining order, temporary and permanent injunctions, and specific performance—the return of the Lee Statue. They later supplemented their petition to add the City of Dallas as a defendant.2
The City filed a plea to the jurisdiction and, in the alternative, an original answer. The City subsequently supplemented its plea to the jurisdiction and added a motion to dismiss, alternative motions for no-evidence and traditional summary judgment, and a motion to strike. In its plea, the City asserted governmental immunity, official immunity, legislative immunity, lack of standing, lack of a private right of action, no jurisdiction over penal matters, and mootness.
Return Lee to Lee Park and Gann filed an amended petition, alleging additional claims against the City for violating Texas procurement laws by failing toseek competitive bids when hiring a contractor to remove the Lee Statue and for violating the Texas Open Meetings Act (TOMA) by voting to remove the Lee Statue during a "non-voting" City Council meeting. Plaintiffs sought a declaratory judgment that the Lee Statue and the Pioneer Cemetery were protected state archeological landmarks. They also sought a declaratory judgment that the City Council's resolutions were illegal. The following day, they filed an untimely response to the City's plea and summary judgment motions, stating that their response, their first amended petition, and a separately filed appendix were filed to resolve some of the City's motions. The day before the hearing, Return Lee to Lee Park and Gann filed a supplement to their first amended petition to add Johnson as a new plaintiff.
After a hearing, the trial court granted the City's plea to the jurisdiction and summary judgment motion and dismissed with prejudice all of plaintiffs' claims for violations of the Texas Antiquities Code, their request for a declaratory judgment, and their requests for injunctive and mandamus relief. The trial court also granted the City's plea to the jurisdiction and summary judgment motion as to plaintiffs' procurement/competitive bidding claims, dismissing with prejudice the claims of Return Lee to Lee Park and Gann. The trial court reserved for future resolution the City's challenge to plaintiffs' supplementation of their first amended petition and the procurement/competitive bidding claims made by new plaintiff Johnson. In addition, the court reserved for future resolution the plaintiffs' TOMA claims.
The City filed a second supplement to its plea to the jurisdiction and, in the alternative, its amended answer. The City subsequently filed a brief and evidence in support of its plea to jurisdiction, motion to dismiss, and in the alternative, motions for summary judgment, pertaining to plaintiffs' TOMA claims and Johnson's procurement claims. Three days before the hearing, plaintiffs filed an untimely response with no supporting evidence. The trial court conducted a hearing and granted the City's plea and summary judgment motions as to all claims with the exception of the TOMA claims. At that hearing, the trial court requested additional briefing, strictly limited to whether plaintiffs' TOMA claims were moot. After considering the requested briefing from the parties, the trial court entered a final judgment reaffirming its prior orders and granting the City's plea and motions for summary judgment on all remaining issues. Return Lee to Lee Park, Gann, and Johnson timely filed their notice of appeal.
An assertion of governmental immunity implicates a court's subject matter jurisdiction, and such immunity is properly asserted in a plea to the jurisdiction. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). Subject matter jurisdiction is essential to a trial court's authority to decide a case. Texas Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). It is never presumed and cannot be waived. Id. at 443-44. The existence of subject matter jurisdiction is a questionof law, and we review the trial court's ruling on a plea to the jurisdiction de novo. Annab, 547 S.W.3d at 612; City of Dallas v. E. Vill. Ass'n, 480 S.W.3d 37, 42 (Tex. App.—Dallas 2015, pet. denied).
A plea to the jurisdiction can be based on the pleadings or on the evidence. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004); City of Dallas v. Turley, 316 S.W.3d 762, 767 (Tex. App.—Dallas 2010, pet. denied). When a plea to the jurisdiction challenges the pleadings, we consider whether the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. We look to the allegations in the pleadings, construe them in the plaintiff's favor, and look to the pleader's intent. See Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The plaintiff bears the burden to allege facts that affirmatively demonstrate that the trial court has jurisdiction to hear a case. Turley, 316 S.W.3d at 767.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional fact issues raised. Miranda, 133 S.W.3d at 227. In such case, we are not bound by the plaintiff's factual allegations. City of Dallas v. Hughes, 344 S.W.3d 549, 553 (Tex. App.—Dallas 2011, no pet.). This standard mirrors our summary judgment standard under rule 166a of the Texas Rules of Civil Procedure, and it places the burden on the plaintiff to allege facts that affirmatively demonstrate the trial court's jurisdiction. Miranda, 133 S.W.3d at 228. The governmental entitythen has the burden to assert and support its contention, with evidence, that the trial court lacks subject matter jurisdiction. City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied). If it does so, then the plaintiff must raise a material fact issue regarding jurisdiction to survive the plea to the jurisdiction. Id.
We review a summary judgment de novo. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). We review the summary-judgment evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Boerjan v. Rodriguez, 436 S.W.3d 307, 311-12 (Tex. 2014). When multiple grounds for summary judgment are raised and the trial court does not specify the ground or grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
No-evidence and traditional grounds for summary judgment may be combined in a single motion. Coleman v. Prospere, 510 S.W.3d 516, 518 (Tex. App.—Dallas 2014,...
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