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FILED

DALLAS COUNTY
1/4/2016 4:01:17 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-15-13993


CITY OF DALLAS,
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
THE 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

IN THE DISTRICT COURT

193RD JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

DEFENDANTS PLEA TO THE JURISDICTION


AND 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);
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 1

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
Plaintiffs 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

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 2

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 requirements1 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, ______.

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 3

(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

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 4

Plea in Abatement), Special Exceptions (the Special Exceptions), Original Answer


(the Answer), and Counterclaim (a) seeking an order from this Court abating this
action for the reasons set forth n the Plea in Abatement, (b) specially excepting to the
allegations of the City in its Petition and requiring the City to replead their claims and
causes of action to cure such pleading defects and insufficiencies, and (c) answering and
denying the allegations of the City and asserting their affirmative defenses thereto.
9.

Such Plea in Abatement, Special Exceptions, Answer, and Counterclaim

have been filed subject to the Courts rulings on this Motion and the Venue Motion.
PLEA TO THE JURISDICTION
10.

Defendants would show that the Court lacks subject matter jurisdiction of

the claims and causes of action asserted by the City herein for one or more of the
following reasons:
(a)

The City has failed to exhaust the required administrative remedies in that
it 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 exhaust the required administrative remedies in that
it has failed to implement and comply with the requirements of the City
Code under Sections 27-16.3 et seq. of Article IV-a to initiate actions before
the Municipal Court relating to enforcement of ordinances for the
abatement of an urban nuisance.

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 5

(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 IVb 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:

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 6

Sec. 214.003. RECEIVER. (a) A home-rule municipality may bring an action


in district court against an owner of property that is not in substantial
compliance 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 record
of rehabilitating properties if the court finds that:
(1) the structures on the property are in violation of the standards
set 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 been
conducted.
[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

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 7

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 Citys 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
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 8

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 2716.12 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

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 9

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
provisions of the City Code as set forth above that the Defendants and/or their
properties are in violation of the ordinances in question.
D.

Request for Injunctive Relief and Appointment of a Receiver Not Ripe


Because No Final Determination of Violations of City Code by Defendants or
their 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
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 10

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 Austins 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 is
abstract 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.2d
583, 586 (5th Cir.1987)). The Supreme Court has expounded that [t]he key
considerations [for ripeness] are the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration. Id. (citing Abbott Labs., 387 U.S. at 149) (internal quotation
omitted).
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 entangling
themselves 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 Regl 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. Regl Rail Reorganization Act Cases, supra
DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 11

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

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 12

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

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 13

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 200
Dallas, Texas 75201
Telephone: (214) 522-4900
Telefax: (800) 930-7112
Email: jpmpllc@gmail.com
By:

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

ATTORNEYS FOR DEFENDANTS DENNIS


TOPLETZ;
CASEY
TOPLEZ;
VICKIE
TOPLETZ; STEVEN TOPLETZ; MONARCH
DEVELOPMENT CORPORATION; 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 PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 14

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Plea and Motion was
served on counsel of record for Plaintiff, Melissa Miles, and Anna Welch, Dallas City
Attorneys Office, 1500 Marilla St., Dallas, #7DN, Texas 76165, by electronic mail,
telefax, overnight delivery, and/or United States mail, postage prepaid, on this the 4th
day of January, 2016.
/s/ James P. Moon
JAMES P. MOON

DEFENDANTS PLEA TO THE JURISDICTION AND MOTION TO DISMISS Page 15

FILED
DALLAS COUNTY
1/4/2016 4:08:20 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-15-13993


CITY OF DALLAS,
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
THE 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

IN THE DISTRICT COURT

193RD JUDICIAL DISTRICT

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);
DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL
ANSWER, AND COUNTERCLAIM - Page 1

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 Plaintiffs 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,

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 2

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 requirements1 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.

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 3

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, ______.

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 4

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 Courts 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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 5

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 action
in district court against an owner of property that is not in substantial
compliance 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 record
of rehabilitating properties if the court finds that:
(1) the structures on the property are in violation of the standards
set forth in Section 214.001(b) and an ordinance described by Subsection
DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL
ANSWER, AND COUNTERCLAIM - Page 6

(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 been
conducted.
[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 Citys Petition is there any indication that the City has

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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 7

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 Citys 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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 8

(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
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.)
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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 9

time as there has been a 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.
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 Plaintiffs 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 in


the action if:
(1)
in his absence complete relief cannot be accorded among those
already 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 that


interest or

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 10

(ii)

23.

leave any of the persons already parties subject to a substantial risk


of incurring double, multiple, or otherwise inconsistent obligations
by reason of his claimed interest. If he has not been so joined, the
court 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.

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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 11

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 Citys own ordinances require the right to participation

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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 12

of a receiver for Properties.


31.

In seeking to enforce the Citys 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 MUNICIPAL
COURT.
(a) The city attorney or the director shall give notice of a municipal
court hearing on the repair, demolition, vacation, or securing of a
structure, or the relocation of the occupants of a structure, to any owner,
mortgagee, or lienholder of the structure. A diligent effort must be made
to discover each owner, mortgagee, or lienholder of the structure and to
give 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 Properties
and the Topletz Properties is based in the Citys alleged violations of Chapter 27 of the Dallas City Code.
See Plaintiffs Original Petition, 29 through 35 and Exhibit 4.

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 13

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 attorneys 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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 14

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,

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 15

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 Plaintiffs 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
45.

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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 16

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)
47.

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 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
50.

Still urging and relying on the matters hereinabove alleged, Defendants

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 17

would assert, by way of further answer and defense, that Plaintiff is not entitled to
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

would assert, by way of further answer and defense, that Plaintiff is not entitled to
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.

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 18

Waiver
55.

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 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

would assert, by way of further answer and defense, that Plaintiff is not entitled to
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

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 19

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 Citys 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.

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 20

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. & REM 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
DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL
ANSWER, AND COUNTERCLAIM - Page 21

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 Citys 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 Citys claims, and prosecution of their Counterclaims, as well as the
reasonable attorneys' fees, costs, and expenses incurred in connection with any posttrial matters and appeals to other courts.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that
DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL
ANSWER, AND COUNTERCLAIM - Page 22

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.

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 23

Respectfully submitted,
KAPLAN & MOON, PLLC
3102 Maple Ave., Suite 200
Dallas, Texas 75201
Telephone: (214) 522-4900
Telefax: (800) 930-7112
Email: jpmpllc@gmail.com
By:

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

ATTORNEYS FOR DEFENDANTS DENNIS


TOPLETZ;
CASEY
TOPLEZ;
VICKIE
TOPLETZ; STEVEN TOPLETZ; MONARCH
DEVELOPMENT CORPORATION; 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 PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 24

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing document was served on
counsel of record for Plaintiff, Melissa Miles and Anna Welch, Office of Dallas City
Attorney, 1500 Marilla St., 7DN, Dallas, Texas 75201, by e-service, electronic mail,
telefax, overnight delivery, and/or United States mail, postage prepaid, on this the 4th
day of January, 2016.
/s/ James P. Moon
JAMES P. MOON

DEFENDANTS PLEA IN ABATEMENT, SPECIAL EXCEPTIONS, ORIGINAL


ANSWER, AND COUNTERCLAIM - Page 26