Plaintiff,

§ § § § § § § § §

J~.~ .

1

~F'·L·8£

I .

201 J APR!-8 PH~: 09 IN THE 68TH JUDICIAL

GARY j: I TZSl/'1HONS

LESL ,DISTRICT CLERK

IE rif;tu~ C~:.!EXAS

DIST~8(J1f

•

•

NO. 07-12698

WILLIAM GORDON

vs.

CITY OF RICHARDSON

Defendant.

DALLAS COUNrV, TEXAS

I

CITY OF RICHARDSON'S RESPONSE TO PLAINTIFF'S MOTION ITO SET ASIDE

ADMINISTRA TIVE CLOSING ORDER AND CITY'S MOTION FO~ SANCTIONS

1

TO THE HONORABLE JUDGE OF THIS COURT: I

The City of Richardson (the "City") respectfully files this response to Plaintiff William Gordon's Motion to Set Aside Administrative Closing Order and additionall1y moves the Court, I

pursuant to Tex. R. Civ. P. 13 and Tex. Civ. Prac. & Rem. Code § 10.004, f~r sanctions against

Gordon and his attorney for the filing of this frivolous motion in the form of an award of the

City's attorney's fees incurred in responding thereto. The Motion to Set Aside Administrative Closing Order is pointless, frivolous, and filed in bad faith or for the purpose of harassment. There is no factual or legal basis for the motion. Final judgment has been Jntered and the time for filing any motion for new trial or appeal in this matter has long ago expired without the filing

I

of the same. All issues have been fully and finally adjudicated and there iJ no factual or legal

I

basis for the Motion to Set Aside the Administrative Closing Order. In support of its Response

!

and Motion for Sanctions, the City would show the following:

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY'S MOTION FOR SANCTIONS

PAGE 1

TM48n7

•

•

Response to Motion to Set Aside Administrative Closing Order

Previously in this case, on September 30, 2008, this Court entered an Order on

I

Defendant's No-Evidence Motion for Summary Judgment, a true and correct copy of which is

1.

attached hereto as Exhibit "A."

2. The effect of that Order was "judgment ... entered in favor of,Defendant City of

Richardson, Texas on all of Plaintiff William Gordon's claims and causes of action, including but not limited to all alleged violations of the Open Meetings Act, all allegeh violations of the

I

Election Code, and all alleged violations of Defendant's City Charter, save and except Plaintiff's

claim that the City Council conducted closed meetings in violation of Defendalt's City Charter."

I

See Exhibit A. Thus, after entry of the September 30, 2008 Order, Gordon had only one

I

remaining claim, to wit: a claim for injunctive and declaratory relief based o~ an allegation that

I

the City Council conducted closed meetings in violation of its Charter.' I

3. Thereafter, on April 21, 2009, the Court entered its Order on Defendant's Second

Plea to the Jurisdiction Dated March 16, 2009, a true and correct copy of IWhiCh is attached

hereto as Exhibit "B."

I

4. The April 21, 2009 Order granted in part and denied in part the City's Second

I

Plea to the Jurisdiction dated March 16, 2009. Specifically, the Order grant~d the City's plea

I

dismissing with prejudice Gordon's claim for injunctive relief against the City and Gordon's

declaratory claim against the City arising before October 26, 2004.2 Thus, ls a result of this Order, Gordon's only remaining claim was a claim for injunctive relief (and attorney's fees) for

I Gordon also sought attorney's fees in connection with this declaratory relief claim.

2 Gordon had amended his petition to seek relief only for alleged violations through November 13, 2007. Thus, with the entry of this Order, his claim related only to alleged violations from arising after October 26, 2004 and on or

before November 13,2007. I

RICHARDSON'S RESPONSE TO PLAiNTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER

AND CITY'S MOTION FOR SANCTIONS PAGE 2 TM 48727

•

closed meetings held after October 26, 2004 allegedly in violation of the City Charter. See

Exhibit B.

5. On May 11, 2009, the City filed a Notice of Interlocutory A:ppeaI3, a true and

1

correct copy of which is attached hereto as Exhibit "C," appealing from that portion of the April

21, 2009 Order that ~enied the City's plea to the jurisdiction for judgment dilmiSSing Gordon's claim for declaratory relief (and attorney's fees) for closed meetings held aftJ October 26, 2004

6.

Although he had the right to cross-appeal, Gordon did not.

allegedly in violation of the City Charter.

On May 29, 2009, this Court entered its Order Administratiyly Closing Case, which is the subject of Gordon's present motion. A true and correct copy of the May 29, 2009

7.

Order is attached hereto as Exhibit "D." That order administratively closed the case because of a

I

stay issued by the Court of Appeals during the pendency of the appeal. See Exhibit D. 1

8. On July 2, 2010, the Court of Appeals issued its Judgment, la true and correct

copy of which is attached hereto as Exhibit "E." In its judgment, thj Appellate Court "REVERSE[D] that porti~n of the trial court's judgment denying in part aplellant the City of I

Richardson's plea to the jurisdiction and RENDER[ED] judgment dismissing appellee William i

Gordon's declaratory judgment claim and request for attorney's fees as moot." See Exhibit E.

9. In its Opinion accompanying the July 2, 2010 Judgment, a tru~ and correct copy

i

of which is attached hereto as Exhibit "F," the Court of Appeals noted that "Gordon was

3 Pursuant to Tex. Civ. Prac, & Rem. Code Ann. § 51.014(a)(8), a litigant may appeal from an interlocutory order of

a district court that grants or denies a plea to the jurisdiction by a governmental unit. Id. I

I

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY'S MOTION FOR SANCfIONS

PAGE 3

TM48727

•

•

unsuccessful in the trial court on all but one of his claims, and he has proven unsuccessful on that

I

claim on appeal.?" See Exhibit Fat p. 6.

10. Gordon thereafter filed a Motion for Rehearing with the Court of Appeals asking

the Appellate Court to set aside its prior judgment and affirm the decision of it he trial court and

remand the case to the trial court for further proceedings. A true and correct copy of Gordon's Motion for Rehearing is attached hereto as Exhibit "G." In his motion for !rehearing Gordon argued that because the proceedings in the trial court had been stayed pending appeal, there had been no opportunity for "further clarification by the trial court on the subject if setting aside its

I

summary judgment order and/or entering a more properly phased (sic) one or one based on

further consideration .... " See Exhibit G at p. 4.

11. The Court of Appeals overruled Gordon's motion for rehearingj by Order entered

August 23, 2010. A true and correct copy of that Order is attached hereto as Exhibit "G."

12. On November 8, 2010, after the time allowed under the apPlic~ble rules for the

I

filing of any appeal or other request for review had expired, the Court of Appeals issued its

Mandate to the trial court, along with a Bill of Costs in favor of the City fJr recovery of its appellate court costs in the amount of $999.00. A true and correct copy of tje appellate court

I

Mandate and Bill of Costs is attached hereto as Exhibit "H."

13. Gordon had thirty days from the date of the Court of Appeals' mandate to file any

I

motion for new trial, Tex. R. Civ. P. 329b(a), or any appeal, Tex. R. App. Pro 2611. with regard to

any previously non-appealable, interlocutory orders earlier entered in the case, iLlUding the trial I

court's September 30, 2008 order on the City's motion for summary judgmeAt. He filed no

I

4 The Court of Appeals noted specifically that by its September 30, 2008 Order, the "trial court dismissed all of Gordon's claims except the claim for declaratory and injunctive relief relating to the alleged violations of the city charter," and further that "[ajlthough the trial court denied Gordon's request for injunctive relief as moot, it did not dismiss his claim for a declaration that the City held meetings in violation of its charter from October 26, 2004 to November 13,2007." See Exhibit Fat p. 3.

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER

AND CITY'S MOTION FOR SANcrIONS

PAGE4

TM48727

•

•

motion for new trial or appeal. Texas Courts have repeatedly held time-barred claims to be

I

groundless and awarded sanctions for bringing such claims in bad faith. See, e.g., Dolen: v.

Boundy, 197 S.W. 3d 416,421-22 (Tex. App. - Dallas 2006, pet. denied); StJmberger v. Turley,

I

2005 WL 701034 (Tex. App. - Dallas march 28, 2005, no pet.)(mem. op). The filing of a time-

I

barred motion in a case that has been fully concluded and for which any time for filing an appeal

has expired is similarly groundless and can, pursuant to the Rule 13 and sectibn 10.004, subject

the movant and his attorney to sanctions.

14. Thereafter, on December 3, 2010, undersigned counsel requested a Bill of Costs

from the trial court for recovery of the City's trial court costs in the amount 10f $3,677.76. A

true and correct copy of the December 3, 2010 letter to the Clerk is attached hereto as Exhibit

I

"I." In the December 3, 2010 letter, undersigned counsel confirmed that, "Because the Fifth

District Court of Appeal's Mandate reversed and rendered judgment, I hlve been advised

I

by the trial court administrator that no further judgment will be entered in the case.

Accordingly, in lieu of a Final Judgment, [enclose as Exhibit "A" for your\reView a copy of the Court of Appeals' Mandate." See Exhibit I at p. J(emphasis added}. A copy of this letter

I

was simultaneously served on Gordon's attorney of record. See Exhibit I at p. i

15. Thereafter, on December 28,2010, the Trial Court Clerk issued iis Bill of Costs in

favor of the City. A true and correct copy of that Trial Court Bill of Costs is Jttached hereto as

I

Exhibit "J." I

16. Copies of both the Trial Court Bill of Costs and the Appellate Court Bill of Costs

were provided to Gordon and his attorney by letter dated December 30, 20!O\addreSSed to his attorney of record. A true and correct copy of that December 30, 2010 letter is attached hereto as

1

Exhibit "K."

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY'S MOTION FOR SANCfIONS

PAGE 5

TM4S727

•

•

17. Because the Bills of Costs remained unpaid by Gordon, on March 15, 2011,

undersigned counsel submitted the Bills of Costs to the Trial Court Clerk reqLesting an abstract of Judgment to reflect the assessment of those costs. A copy of this letter las simultaneously sent to Gordon through his attorney of record. A true and correct copy of tJe March 15, 2011

letter is attached hereto as Exhibit "L."

18. It is beyond dispute that Gordon and his attorney had notice of the Court of Appeals' November 8, 2010 issuance of its Mandate to the trial court and, as Leu, that they had notice of the Trial Court's advice to counsel for the City that it considered the Court of Appeals' Mandate sufficient as a final judgment in the case. [d. Similarly, it is beyond dispute that Gordon and his attorney had notice of the Trial Court Clerk's issuance of itl Bill of Costs on December 28,2 010 and the City's subsequent March 15, 2011 request to hLe that judgment

abstracted.

19. Despite this clear notice of the status of the case, Gordon has never filed a motion

for a new trial or an appeal on any previously non-appealable, interlocutory orders entered by the trial court. The time for filing such a motion or appeal has long ago expired. I

20. The entire case has been fully and finally disposed of and no additional issues or

motions remain to be determined. Setting aside the May, 2009 AdministratJe Closing Order

I

would not change this fact. It is time-barred and would be a pointless exercise, Gordon's

I

Motion seeking to have the order set aside is untimely, meritless and should be denied.

Motion for Sanctions

The City incorporates by this reference the matters set forth above in paragraphs 1

21.

through 20, as if fully restated herein.

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY'S MOTION FOR SANCTIONS

PAGE 6

TM48727

•

•

22. Rule 13, Tex. R. Civ, P., and Section 10.001, Tex. Civ. Prac. & Rem. Code,

I

authorize the imposition of sanctions against a party and/or his attorney who files a pleading that

I

is groundless and brought in bad faith or to harass. [d. Groundless is defihed as having "no

basis in law or fact and not warranted by good faith argument for the extension, modification, or

reversal of existing law." See Tex. R. Civ. P. 13.

23. It is clear in this case that there is no arguable basis in law 01 fact for Gordon's Motion to Set Aside Administrative Closing Order and that it was filed in bad faith or to harass.

24. Gordon and his attorney received prompt and timely notiJ of the Appellate

I

Court's November 8, 2010 Mandate to the trial court. If Gordon and his attorney believed there

I

was any outstanding issue or claim which was not fully and finally resolved by the Mandate, 1

I

they had thirty days from the date of the Mandate to file a motion for new trial or an appeal as to !

that issue or claim.' They filed nothing.

25. Additionally, as Exhibits I through L clearly reflect, not only did Gordon and his

I

attorney have notice of the Court of Appeals' November 8, 2010 issuance of its Mandate to the

trial court, but they were also aware and provided notice on December 3, 20110, well within the

I

.

time for their filing of any motion for new trial or appeal, that the Trial Court had advised

I

counsel for the City that the Trial Court considered the Court of Appeals' Mandate sufficient as a

final judgment in the trial court case. [d. Similarly, it is beyond dispute thlr Gordon and his

I

attorney had notice of the Trial Court Clerk's subsequent issuance of its Bill of Costs on

December 28, 2010 and the City's subsequent March 15, 2011 request to have that judgment

I

abstracted. I

5 If Gordon and his attorney believed it necessary, they could have included in any motion for new trial a request to have the administrative closing order set aside, as well. As stated above, they filed nothing.

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER

AND CITY'S MOTION FOR SANCTIONS

PAGE?

TM48727

•

•

26. Despite this clear notice of the status of the case, Gordon and his attorney never

filed a motion for a new trial or an appeal on any previously non-appealable, ilterlocutory orders entered by the trial court. The time for filing such a motion or appeal has1long ago expired. Instead, they w~ited almost five months after the issuance of the Court of Appeals' mandate to the trial court rendering judgment in favor of the City to file anything ildicating that they

I

believed there was "additional work and motions to be heard at the trial leVel.'j

27. The fact that this entire case has been fully and finally disposed of and no

additional issues or motions remain to be determined was abundantly clear Ito Gordon and his

I

attorney at the time they filed their Motion to Set Aside Administrative Closing Order. Given

I

I

their knowledge of the state of affairs on and after the Court of Appeals' issuance of its

November 8, 2010 Mandate, there is no other reasonable explanation for thj filing, by Gordon and his attorney, of this pointless, untimely Motion other than that it was ~iled to needlessly

28. The City requests sanctions against Gordon and his attorney in the form of an

protract this case and harass the City.

award of its reasonable attorney's fees incurred in responding to the frivolous Motion to Set Aside Administrative Closing Order. Section 1O.004(c)(3) provides that a saLtion may include "an order to pay to the other party the amount of the reasonable expenses incurred by the other party because of the filing of the pleading or motion, including reasonable attorney's fees." [d.

I

Similarly, Tex. R. Civ. P. 13 permits the court to impose an appropriate sanction for the filing of

a frivolous motion and provides that the permissible sanctions are those availlble under Tex. R.

I

Civ. P. 215. The sanctions available under Rule 215 include "an order charging all or any I

I

portion of the expense of discovery or taxable court costs or both against the disobedient party or

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY's MOTION FOR SANCfIONS

PAGES

TM48727

•

the attorney advising him" and an order to pay "the reasonable expenses, including attorney fees,

I

!

caused by the failure[]" to obey the order of the court. Tex. R. Civ. P. 215.2(b)(2), (8).

I

WHEREFORE, the City of Richardson, Texas respectfully requests that the court enter

I

an order denying the Motion to Set Aside Administrative Closing Order, finding the motion

frivolous and brought in bad faith or to harass, and awarding the City sanctions against Plaintiff Gordon and his attorney requiring them jointly and severally to pay the ICitY's reasonable

attorney's fees incurred in responding to the Motion.

This the 8th day of April, 2011.

Respectfully submitted,

NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.

J:-=~(tz)

Peter G. Smith

State Bar No. 18664300 Victoria W. Thomas State Bar No. 24059913 1800 Lincoln Plaza

500 North Akard Dallas, Texas 75201 Tel: (214) 965-9900 Fax: (214) 965-0010

ATTORNEYS FOR DEFENDANT CITY OF RICHARDSON

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY'S MOTION FOR SANCTIONS

PAGE 9

TM48727

•

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CERTIFICATE OF SERVICE

I

This is to certify that on April 8,2011, a true and correct copy of the foregoing document

was served on counsel of record for the plaintiff in accordance with the Texas Rules of Civil

Procedure via certified U.S. mail delivery, addressed as follows:

Richard B. Tanner

100 North Central, #901 Richardson, Texas 75080-5329

Victoria W. Thomas

RICHARDSON'S RESPONSE TO PLAINTIFF'S

MOTION TO SET ASIDE ADMINISTRATIVE CLOSING ORDER AND CITY'S MOTION FOR SANCTIONS

PAGE 10

TM48727

•

NO. 07-12698

Plaintiff,

§ § § § § § § § §

IN THE 68TH JUDICIAL

WILLIAM GORDON

vs.

DISTRICT COURT OF

CITY OF RICHARDSON

Defendant.

DALLAS COUNTY, TEXAS

ORDER ON DEFENDANT'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

On September 29, 2008, the Court considered Defendant's No-Evidence Motion for Summary

Judgment. After considering the motion, the response and all other evidence on file, the Court

FINDS there is no genuine issue of material fact on any of Plaintiff's claims, other than Plaintiffs

claim that the City Council conducted closed meetings in violation of Defendant's City Charter. It is

therefore ORDERED, ADJUDGED AND DECREED that Defendant's No-Evidence Motion for

Summary Judgment is hereby DENIED with respect to Plaintiffs claim that the City Council conducted closed meetings in violation of Defendant's City Charte.;'t;~! I':J~ 1!~ ~ ~ G S v~

.( I c~r--l'o... re.tu-; ,~ .

It is further ORDERED, ADJUDGED AND DECREED that Defendant's No-Evidence Motion

for Summary Judgment is hereby GRANTED with respect to all of Plaintiffs other claims; that judgment

is hereby entered in favor of Defendant City of Richardson, ,Texas on all of Plaintiff William Gordon's

ciaims and causes of action, including but not limited to all alleged violations of the Open Meetings Act,

all alleged violations of the Election Code, and all alleged violations of Defendant's City Charter, 'save

and except Plaintiffs claim that the City Council conducted closed meetings in violation of Defendant's

City Charter. .

IT IS FURTHER ORDERED that all relief requested not expressly granted herein is denied. Signed on >fpl;;;;J:9./ 3;) . ,2008.

PRESIDING JUDGE

EXHIBIT

A

•

. .

NO. 07-12698

Plaintiff,

§ § § § § § § § §

IN THE 68TH JUDICIAL

WILLIAM GORDON

vs.

DISTRICT COURT OF

CITY OF RICHARDSON

Defendant.

DALLAS COUNTY, TEXAS

ORDER ON DEFENDANT'S SECOND PLEA TO THE JURISDICTION DATED MARCH 16,2009

On April 6, 2009, the Court heard Defendant's Second Plea to the Jurisdiction dated March 16, 2009,1 After considering the pleadings and arguments of counsel, it is hereby

ORDERED, ADJUDGED AND DECREED that Defendant's Second Plea to ·the

Jurisdiction dated March 16, 2009 is GRANTED in part and DENIED in part.

It is therefore ORDERED, ADJUDGED AND DECREED that Defendant City of

' ..

Richardson's Second Plea to the Jurisdiction dated March 16,2009 is GRANTED with respect to

Defendant's argument that the Court has no-authority to enjoin Defendant from participating in

any manner in any projects, contracts, actions or other activities allegedly discussed by the

Richardson City Council in closed meetings occurring on or before November 14,2007; that the

Court has no authority to render any such projects, contracts, actions or activities invalid or

otherwise void; and that Plaintiffs request for injunctive relief is moot; therefore, Plaintiffs

claims for injunctive relief against the City of Richardson are hereby dismissed with prejudice.

It is further ORDERED, ADJUDGED AND DECREED that Defendant City of

Richardson's Second Plea to the Jurisdiction dated March 16, 2009 is GRANTED in that the

.

I Defenda"nt has filed two pleas entitled "Defendant's Second Plea to the Jurisdiction," one on or about January 23, 2008 and another on March 16, 2009. This order rules on the plea filed on March 16, 2009.

EXHIBIT

6

ORDER ON DEFENDANT'S SECOND PLEA TO THE JURISDICTION DATED MARCH 16, 2009 - Page 1 I

•

I

Court has no jurisdiction ovel~ any actions of Defendant occurring more than three years prior to

Plaintiff filing suit; therefore, Plaintiffs claims arising before October 26, 2004 against the City

of Richardson are hereby dismissed with prejudice.

It is further ORDERED, ADJUDGED AND DECREED that the remainder of Defendant

City of Richardson's Second Plea to the Jurisdiction dated March 16,2009 is DENIED.

It is further ORDERED that all relief not expressly granted herein is hereby denied.

SIGNED this )It;~ dayOf___,4--T-'('_:_\_'! , 2009.

HONORABLE JUDGE PRESIDING

Approved as to form and substance:

' ..

Richard B. Tanner Attorney For Plaintiff

Amber L. Slayton Attorney For Defendant

•

NO. 07~12698

"'ILLIAM GORDON

§ § § § § § § § §

Plaintiff,

\'S.

CITY OF RICHARDSON

Defendant.

•

IN THE '6'811~ JUDIBlAL

, J, r: rr

~ :. ~. • oJ .. , :.~.

20D9 HA Y " PM I: 14

DIST~.q_T ;CQ!lRt~ifi!f

l'" ... -'. 'L I:R" riAd .. , ~ ';'\":" '. +~ \f\

LJ LL~,.) !""" 1 [XAS

.------ .... _ .. __ ,DEPUTY' DALLAS COUNTY, TEXAS

NOTICE OF INTERLOCUTORY APPEAL

Defendant City of Richardson hereby gives notice of its desire to pursue an interlocutory

appeal in the above-entitled and numbered cause to the Court of Appeals for the Fifth District of

Texas at Dallas, from the trial court's April 21, 2009 Order on Defendant's Second Plea to the

Jurisdiction Dated March 16,2009.

A litigant may appeal from ari interlocutory order of a district court that grants or denies a

plea to the jurisdiction by a governmental unit. TEX. Cry. PRAC. & REM. CODE ANN.

§ 51.014(a)(8) (Vernon Supp. 2004). An interlocutory appeal is the proper vehicle for

challenging a denial of a governmental unit's plea to the jurisdiction. See Mobile Oil Corp. v.

Shores, 128 S.W.3d 718, 721 (Tex. App--Fort Worth 2004).

This notice of appeal is filed within twenty days of the trial court's April 21, 2009 order

and a copy of the notice is being delivered to the appropriate appellate court on this date. TEX.

Crv. PRAC. & REM. CODE ANN. § 51.014(f) (Vernon Supp. 2004); TEX. R. APP. P. 26. 1 (b) (notice

of interlocutory appeal generally due within twenty days). This interlocutory appeal is

accelerated. See TEx. R. APP. P. 28.1.

NOTICE OF ]NTERLOCUTORY ApPEAL· Page 1

EXHIBIT

c

36665

•

•

Respectfully submitted,

NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.'

BY~~

Amber a

State Bar No. 24025650 Peter G. Smith

State Bar No. 18664300 1800 Lincoln Plaza

500 North Akard Dallas, Texas 75201 (214) 965-9900

(214) 965-0010 - fax

ATTORNEYS FOR DEFENDANT CITY OF RICHARDSON, TEXAs

CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2009, a true and correct copy of the foregoing was

forwarded via certified mail, return receipt requested, to all counsel of record pursuant to Texas

Rule of Appellate Procedure 25.1(e), and addressed as follows:

Richard B. Tanner

100 North Central, Suite 803 Richardson, Texas 75080

CMRRR #7006 0810 000595373574

NOTICE OF INTERLOCUTORY APPEAL ~ Page 2

36665

•

DC-07-12698

WILLIAM GORDAN VS.

CITY OF RICHARDSON

§ § § § § § §

IN THE DISTRICT COURT

DALLAS. COUNTY, TEXAS

68TH DISTRICT COURT

ORDER ADMINISTRATIVELY CLOSING CASE

This Court has received notification that and appeal has been filed on the above

pending case in the Fifth District Court of Appeals. On May 13,2009, the Appeals Court

has granted Defendant's Motion to Stay Trial Court Proceedings. As a result of the stay,

no further actions can be taken in this proceeding until the case is reinstated to active

status.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that pursuant to

the order signed by the Fifth District Court of Appeals, this case is stayed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, while the

Court retains jurisdiction over the case, the Clerk of the Court shall close this file and

remove it from the active docket of pending cases. The case is subject to being reopened

upon the motion of any party without prejudice to the rights of the parties for a period

which shall continue until thirty (30) days after. Nothing contained in this order shall

operate as a dismissal with prejudice of this matter except as may otherwise be stated

herein.

SIGNED this~ r-:y of May, 2009

EXHIBIT

Judge Presiding

I

•

68TH CIVIL DISTRICT COURT :'6'00- COMMERCE ST., STE 510 DALLAS, TX 75202

May 27, 2009

AMBER L. SLAYTON

NICHOLS JACKSON DILLARD HAGER & SMITH LLP 500 N AKARD ST, STE 1800

DALLAS TX 75201

INRE:

...... : "!_ ' .•

• • I j ~).. r » • ~ • • ... ,. ...

WILLIAM GORDAN vs. -CITY oF. RICHARPSON

.'

.-

',_

'<.'

•

•

<!tOUr! nf Apptuls

mftq 1Bistrirt of [exas at IDallas

RECEIVED JUL - 3 l010

JUDGMENT

CITY OF RICHARDSON, Appellant

WILLIAM GORDON, Appellee

Appeal from the 68th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 07- 12698).

Opinion delivered by Justice Lang-Miers, Justices Bridges and Lang participating.

No.05-09-00532-CV V.

We vacate the judgment rendered on March 18,2010 in this case. In accordance with this Court's opinion of this date, we REVERSE that portion of the trial court'sjudgment denying in part appellant the City of Richardson's plea to the jurisdiction and RENDER judgment dismissing appellee William Gordon's declaratory judgment claim and request for attorney's fees as moot. It is ORDERED that appellant City of Richardson recover its costs of this appeal from appellee William Gordon.

Judgment entered July 2, 2010.

EXHIBIT

I £

REVERSE and REND+pinion Filed July 2, 2010

•

RECEIVED JUL - 3 2010

10 The

<!runrt uf App.eats

Yift!, IDistrict uf ffi.exas at IDllHas

No. 05-09-00532-CV

CITY OF RICHARDSON, Appellant

V.

WILLIAM GORDON, Appellee

00 Appeal from the 68th Judicial District Court Dallas County, Texas

Trial Court Cause No. 07-12698

OPINION ON MOTION FOR REHEARING

Before Justices Bridges, Lang, and Lang-Miers Opinion By Justice Lang-Miers

We deny appellant's motion for rehearing. On the Court's own motion, we withdraw our

opinion issued March 18,2010 and vacate thejudgment of that date. This is now the opinion of the

Court. This is an interlocutory appeal from the denial in part of a plea to the jurisdiction. We

• ' I,'

reverse that portion of the trial court's order denying in part the plea to the jurisdiction and render

judgment dismissing Gordon's declaratory judgment claim and request for attorney's fees as moot.

BACKGROUND

In October 2007, Gordon sued the City alleging that the city council violated the city charter.

and the Texas Open Meetings Act for many years by holding closed meetings. He alleged that the

EXHIBIT

I ~

•

•

c lased meetings violated the city charter because the charter requi red all city council meetings to

be open:

All meetings of the Council and all committees thereof shall be open to the public and the rules of the Council shall provide that citizens of the city shall have a reasonable opportunity to be heard at any such meetings, concerning any matter there considered.

RICHARDSON, TEX., CITY CHARTER § 3.10 (1989), amended by RICHARDSON, TEX., CITY CHARTER

§ 3.10 (2007). He alleged that the closed meetings also violated the Texas Open Meetings Act

because that act does not authorize a city to hold closed meetings when the city charter requires all

meetings to be open:

This chapter does not authorize a governmental body to c lose a meeting that a charter ofthe governmental body:

(1) prohibits from being closed; or

(2) requires to be open.

TEX. GOV'TCODEANN. § 551.004 (Vernon 2004). Gordon asked the court fora declaration that the

City had violated its charter and the Texas Open Meetings Act; for an order enjoining the City from

engaging in any projects, contracts, or activities discussed or decided in the closed meetings; for an

order requiring the City to produce agendas, tapes, and records from the closed meetings; and for

attorney's fees pursuant to the Declaratory Judgments Act. See TEX. CIV.PRAC.&REM.CODE ANN.

* 37.009 (Vernon 2008).

While the lawsuit was pending, the City amended its charter, effective November 14,2007,

to allow the city council to meet in closed session as permitted by state law:

All meetings of the City Council and all committees thereof shall be open to the public except as otherwise permitted by State law, and the rules ofthe City Council shall provide that citizens of the City shall have a reasonable opportunity to be heard at any such meetings, in regard to any matter there considered.

RICHARDSON, TEX., CITY CHARTER § 3.10 (2007).

-2-

•

•

Several months after the charter was amended, Gordon amended his petition to seek relief

only for alleged violations through November 13, 2007. Thereafter, the City filed a no-evidence

motion for summary judgment on Gordon's claims. The court granted the motion in part, stating:

[T]he Court FINDS there is no genuine issue of material fact on any of Plaintiffs claims, other than Plaintiffs claim that the City Council conducted closed meetings in violation of Defendant's City Charter .... [J]udgment is hereby entered in favor of Defendant City of Richardson, Texas on all of Plaintiff William Gordon's claims and causes of action, including but not limited to all alleged violations of the Open Meetings Act, all alleged violations of the Election Code, and all alleged violations of Defendant's City Charter, save and except Plaintiff's claim that the city Council conducted closed meetings in violation of Defendant's City Charter.

By this order, the trial court dismissed all of Gordon's claims except the claim for declaratory and

injunctive relief relating to the alleged violations ofthe city charter.

The City then filed a second plea to the jurisdiction (its first plea raised other issues) arguing

that Gordon's claim for declaratory and injunctive relief became moot when the City amended its

charter. It also argued that the trial court did not have jurisdiction to enjoin the City from engagi ng

in any projects, contracts, or activities discussed in the closed meetings. The trial court agreed that

it did not have jurisdiction to enjoin the City and granted the plea to the jurisdiction in part:

[T]he Court has no authority to enjoin Defendant from participating in any manner in any projects, contracts, actions or other activities allegedly discussed by the Richardson City Council in closed meetings occurring on or before November 14, 2007; ... the Court has no authority to render any such projects, contracts, actions or activities invalid or otherwise void; and _ .. Plainti ffs request for injunctive relief is moot ....

Although the trial court denied Gordon's request for injunctive reliefas moot, it did not dismiss his

claim for a declaration that the City held meetings in violation of its charter from October 26,2004

to November 13,2007. On appeal, the City argues that the trial court should have granted the plea

to the jurisdiction in its enti rely because Gordon's claim for declaratory relief is.moot, he has no

standing to assert it, and the City is immune from liability for attorney's fees under the Declaratory

Judgments Act.

-3-

•

•

STANDARD OF REVIEW

A party may challenge the trial court's subject-matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether the trial court has subject-matter jurisdiction is a question of law, which we review de novo.Id. at 226. The plainti ff has the burden to plead facts a ffinnati vely showing the trial court has subject-matter jurisdiction. Id. In conducting our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiffs intent. Id. at 226-27. We consider the pleadings and the evidence pertinent to the jurisdictional inquiry. Id.; City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686 (Tex. App.-Dallas 2003, pet. denied). However, we do not assess the merits ofthe plaintiff's claims. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). lfthe evidence creates a fact issue concerning jurisdiction, the plea to the jurisdiction must be denied. Miranda, 133 S.W.3d at 227-28.

Themootnessdoctrine implicates subject-matterjurisdiction. Trulockv. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.-Dallas 2009, no pet.). A case is moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). The mootness doctrine dictates that a court avoid rendering an advisory opinion by only deciding an issue that presents a "live" controversy at the time of the decision. City of Farmers Branch v. Ramos, 235 S. W.3d 462, 469 (Tex. App.-Dallas 2007, no pet.).

A declaratory judgment action does not give a court jurisdiction "to pass upon hypothetical

, or contingent situations. or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication." Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 130-31 (Tex. App.-Austin 2007, no pet.) (quoting Firemen's Ins. Co. v. Burch. 442 S.W.2d 331, 333 (Tex. 1968). "A declaratory judgment is appropriate only if a justiciable controversy exists as tothe rights and status of the parties and the

-4-

•

•

controversy will be resolved by the declaration sought." [d. at 130 (citing Bonham State Bank v. Beadle, 907 S.W.2d 465,467 (Tex. 1995)).

DISCUSSION

In its first issue, the City argues that Gordon's only remaining claim is moot. It contends that any decision determining whether the closed meetings violated the former city charter would be advisory only. Gordon argues that the claim is not moot because the trial court could order the City to produce records from the closed meetings so that the citizens of Richardson could see how their representatives voted in those meetings.

The Texas Open Meetings Act governs the propriety of conducting closed meetings and the release of certified agendas and records from closed meetings. See TEX. GOV'T CODE ANN. §§ 551.001-.146 (Vernon 2004 & Supp. 2009). Although Gordon requested the release of certain records ofthe closed meetings pursuant to the Texas Open Meetings Act, the trial court dismissed those claims. And even if we liberally construe Gordon's pleading to state a claim under the Texas Public Information Act, I that claim was also dismissed when the trial court granted the City's noevidence motion for summary judgment. The only request for relief remaining after the court's ruling on the summary judgment was Gordon's request for a declaration that the closed meetings violated the city charter and for attorney's fees pursuant to the Declaratory Judgments Act.

We conclude that Gordon's claim for declaratory relief is moot. Because the city charter provision about which Gordon complains has been amended, no future violations of that provision can occur. See Speer v. Presbyterian Children's Home & Servo Agency, 847 S.W.2d 227,228-30 (Tex. 1993) (claim of discriminatory practices in hiring adoption service workers that sought only declaratory. and injunctive relief became moot when entity stopped offering adoption services); Trulock, 277 S.W.3d at 925~28 (claim that city ordinance unconstitutional became moot when city

1 See TEX. GOV'TC"ODE i\'1N. ~§ 552.001-.353 (Vernon 2004'& Supp. 2009)

-5-

•

•

modified ordinance to delete challenged provisions). And Gordon's request for an order enjoining

the City from engaging in projects, contracts, or activities discussed or decided in the closed

meetings was also denied. Consequently, any decision determining whether the City held meetings

in the past that violated an obsolete provision in the city charter would be advisory only. "[Wjhen

the action sought to be enjoined is accomplished and 'suitable coercive relief becomes impossible,

it is improper to grant declaratory relief." Speer, 847 S.W.2d at 229 (quoting State ex rei. McKie

v, Bullock, 491 S.W.2d 659,660 (Tex. 1973)).

Gordon's request for attorney's fees under the Declaratory Judgments Act does not keep the

controversy alive. Gordon was unsuccessful in the trial court on all but one of his claims, and he

has proven unsuccessful on that claim on appeal. Because declaratory and injunctive relief are not

available to Gordon, he is not entitled to recover his attorney's fees and costs pursuant to the

Declaratory Judgments Act. See Speer, 847 S.W.2d at 229-30.

We sustain the City's first issue. We reverse that portion of the trial court's order denying

in part the City's second plea to the jurisdiction and render judgment dismissing Gordon's

declaratory judgment claim and request for attorney's fees as moot.

090532HF .POS

-6-

•

•

No. 05-09-00532-CV

IN THE COURT OF APPEALS

FOR THE FIFTH DISTRICT OF TEXAS

at Dallas, Texas

. CITY OF RICHARDSON, Appellant.

vs.

WILLIAM GORDON, Appellee

APPELLEE'S MOTION FOR REHEARING

RICHARD B. TANNER Suite 901. 100 North Central Richardson, TX 75080 972-997-8252; 972-234-2556 fax Bar ID #19639400 Counsel for Appellee

EXHIBIT

I ~

•

•

TO THE HONORABLE COURT OF APPEALS:

COMES NOW WILLIAM GORDON, Appellee herein, who does respectfully show that in the foregoing cause, on interlocutory appeal from the 68th Judicial District Court of Dallas County, Texas, this Court rendered judgment and issued an opinion and from such decision and order of July 2,2010, Appellee does respectfully timely file this motion for rehearing, Texas Rules of Appellate Procedure, 49.7 and prays that this Court set aside said judgement and order, affirm the decision of the trial court and remand this cause to the trial court for further proceedings. Appellee bases his motion for

rehearing on Texas Rules of Appellate Procedure 49.5, as Appellant's motion for Rehearing was denied, but this Court did set aside and vacate its judgment and opinion of March 18,2010 and issued a new judgment and opinion in this cause.

POINTS RELIED UPON FOR REHEARING

Under the provisions of Texas Rules of Appellant Procedure, 49.1, the following points are relied upon for this motion for rehearing:

Point No.1: This Court did not properly apply the doctrine of "mootness" in this case. This Court construed an 2008 interlocutory summary judgment order from the trial court as dispositive of aspects in this case; however, that order was not a final order, was not capable of being appealed and it could be set aside by the trial court. This court renders a judgment based on a basis which it assumes the trial court was correct in denying relief Page 2

•

•

except under the charter or the Declaratory Judgment Act. This Court further concludes that the city council cannot violate the charter because it has been amended by the voters in November 2007. That election was challenged and the suit is still pending. There is a separate action pending in the Supreme Court of Texas, as to whether or not to sustain this Court's decision in reversing the granting of summary judgment for the Appellant herein and therein. If this Court's decision is affirmed by the Supreme Court of Texas, then that cause is remanded to the trial court, and the election changing the charter might well be set aside. Thus Richardson City Council may well violate the charter by continuing to conduct illegal meetings. Such would not then be moot. In short, this Court concludes that mootness applies when the record does not support such conclusion. And since the violations did occur prior to November 2007 some form of relief could be fashioned even ifinjunctive or mandamus was not utilized. Pleas to the jurisdiction must be strictly construed, Bally vs. Total Fitness, 53 S.W.3d 352 (Tex. 2001).

Point No.2: This Court's opinion conflicts with the 14th Court of Appeals by indicating that declaratory relief can be granted in cases involving the Texas Open Meetings Act. That case is: Kessling vs. Friendswood I.S.D., 302 S.W.3d 373 (14th, 2009, pet. Denied) In that case, Kessling had received some relief and in that case part of the relief was moot. However, part of the relief (in that final judgment appeal) was not granted and thus not moot. And this case is an interlocutory appeal without what amounts to a final determination on other issues. And yet this Court is treating those determinations as if Page 3

•

•

they were final and no longer appealable. No such final orders on the merits exist.

Point No.3: Upon receiving this interlocutory appeal and a motion from Appellant, this Court prohibited the trial court from conducting any further matters at the trial level while the interlocutory appeal was before it. Thus there could be no further clarification by trial court on the subject of setting aside its summary judgment order and/or entering a more properly phased one or one based on further consideration or setting aside what it had issued. Appellant had filed at least one prior plea to the jurisdiction, which had been denied, and it had not appealed therefrom. It is obvious that the trial court had subject matter jurisdiction as it rendered an interlocutory summary judgment (improper though it was) and if it had no jurisdiction it could not have done so.

In the important case of Texas Department vs, Miranda, 133 S.W.3d 217 (Tex. 2004) if there are factual issues which the trial court can consider on the jurisdictional issues, then it may do so. Such issues were present in this case, repeated violations of the charter and TOMA provisions by open meetings violations as reflected in the minutes and the affidavit of the city manager. Ifa fact issue exists (as it does here) then the plea to the jurisdiction should be denied, City of Dallas, 242 S.W.3d 584 (5th, 2008). The trial judge could fashion other relief

WHEREFORE, Appellee prays that this Court grant this motion for rehearing, set aside the judgment and order of July 2, 2010 and remand this case for further proceedings to the trial court, affirming in all respects the trial court decision.

Page 4

•

•

Suite 901. 100 North Central, Richardson, TX 75080 972-997-8252; 972-234-2556 (fax) State Bar #19639400

Counsel for Appellee

Certificate of Service

CIHEF JU'STICE CAROLYN WRlGHT

JUSTICES

JOSEPH B. MORRlS

JIM MOSELEY

DAVID L. BRlDGES MICHAELJ. O'NEILL KERRY P. FITZGERALD

. MARTIN RICHTER

MOLL Y FRANCIS DOUGLAS S. LANG ELIZABETH LANG-MIERS MARY MURPHY

ROBERT M. FILLMORE LANA MYERS

•

' •

LISAMATZ CLERK Of THE COURT (214) 712-3450

1 isa. matz@5theoa.courts.state.tx.us

QInurt of i\pptaln

lfl'ift11 ilinlrid nf wrxan at mallan

COURT OF APPEALS, sn' DISTRlCT 600 COMMERCE STREET, SUITE 200 DALLAS, TEXAS 75202

(214) 712-3400

GAYLE HUMPA

, BUSINESS ADMINISTRATOR

(214) 712-3434 gayle.humpa@5thcoa.courts.Slate.IX.us

FACSIMILE (214) 745-1083

INTERNET HTTP://5THCOA.COURTS.STATE.TX.US

November 8, 2010

Peter G. Smith

Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

1800 Lincoln Plaza 500 North Akard Street Dallas, TX 75201

Braden Metcalf

Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

1800 Lincoln Plaza 500 North Akard Dallas, TX 75201

Richard B, Tanner 100 North Central Suite 901

Richardson, TX 75080

RE:

Court of Appeals Number:

Trial Court Case Number:

OS-09-00532-CV 07-12698

Style: City of Richardson y,

Gordon, William

Today in accordance with Rule 18 of the T.R.A.P. the mandate has been issued. The parties are advised that:(i) exhibits submitted to the Court by a party may be withdrawn by that party or the party's attorney of record; and (ii) exhibits on file with the Court will be destroyed six years after final disposition of the case, but if ordered by the Court may be destroyed earlier.

Respectfully yours,

Lisa Matz, Clerk of the Court

by Angelica Aguilar, Deputy Clerk

cc:

Dallas District Clerk

68th Judicial District Court George Allen Sr. Courts Building 600 Commerce Street STE 103 Dallas, TX 75202

EXHIBIT

I HJ-L---

•

••

Qtourt of AppeaLs

lI1iftlJ 11Hstrict of Wexas at mallas

MANDATE

TO THE 68TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, GREETINGS:

Before the Court of Appeals for the Fifth District of Texas, on the 2nd of July, 2010, the cause on appeal to revise or reverse the judgment between

CITY OF RICHARDSON, Appellant

Appeal from the 68th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 07- 12698).

Opinion delivered by Justice Lang-Miers, Justices Bridges and Lang participating.

No.05-09-00532-CV V.

WILLIAM GORDON, Appellee

was determined; and therein this Court made its order in .these words:

We vacate the judgment rendered on March 18, 2010 in this case. In accordance with this Court's opinion of this date, we REVERSE that portion of the trial court's judgment denying in

part appellant the City of Richardson's plea to the jurisdiction and RENDER judgment -,

dismissing appellee William Gordon's declaratory judgment claim and request for attorney's fees as moot. It is ORDERED that appellant City of Richardson recover its costs of this appeal from appellee William Gordon.

WHEREFORE, WE COMMAND YOU to observe the order of the Court of Appeals for the Fifth District of Texas, in this behalf, and have it duly obeyed and executed.

WITNESS, the HON. CAROLYN WRIGHT, Chief Justice ofthe Court of Appeals, with the Seal thereof affixed, at the City of Dallas, this 8th of November, 2010.

OFFICE OF THE CLERK

BY~~

DEPUTY CLERK

CHIEF JUSTICE CAROLYN WRlGHT

•

JUSTICES

JOSEPH B. MORRIS JIM MOSELEY

DA V1D L. B RlDGES MICHAEL J. O'NEILL KERRY P. FITZGERALD MARTIN RICHTER MOLLY FRANCIS DOUGLAS S. LANG ELIZABETH LANG· MIERS MARY MURPHY

ROBERT M. FIUMORE LANA MYERS

(!Lourt of Appea15

1Jftft4 l1Hntrirt of mt~u5 at ilullu.a

COURT OF APPEALS, Slll DISTIucr 600 COMMERCE STREET. SUITE 200 DALLAS, TExAs 75202

(214) 712·3400

BILL OF COSTS

APPEAL FROM THE 68TH DISTRlCT COURT of Dallas County

Cause No: 05-09-00532-CV

(Trial Court Cause No. 07-12698)

STYLE: City of Richardson, Appellant vs. Gordon, William. Appellee

Filing Fee

Clerk's Record Reporter's Record Supreme Court

Total

LISAMATZ

CLERK OF THE COURT

(214) 712-3450 lisa.matz@5thcoa.courts.state,IX.US

GAYLE HUMPA

BUSINESS ADMINISTRATOR

(214) 712·3434 gayle.humpa@Sthcoa.cDurts.state.bcus

FACSIMILE (214) 745-1083

INTERNET 'HTTP://5THCOA.CDURTS.STATE.TX.US

, Yes -- $ 175.00 Yes -- $682.00 Yes -- $142.00

$ 999.00

. I, Lisa Matz, Clerk, of the Court of Appeals, Fifth District of Texas at Dallas, hereby certify

that the above copy of Bill of Costs is true and correct.

2010.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at Dallas, this November 8,

LISA MA TZ, CLERK

By

~~

Deputy Clerk

. NiC·HO. ACKSON~ DILLARD, HAGER & " :H, L.L.P.

Victoria W. Thomas Email: vlhomas@njdhs.com

A TIORNEYS & COUNSELORS AT LA W 1800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

(214) 965-9900

Fax (214) 965-0010

Email NJDHS@NJDHS.COM

ROBERT L. DILLARD, JR. (1913-2000) H. LOUIS NICHOLS

LA WRENCE JACKSON OF COUNSEL

December 3, 2010

VIA COUIUER .

Gary Fitzsimmons .. Clerk

Attention: Shundra Young, Trust & Collections Dept. 600 Commerce Street, Suite B20

Dallas; Texas 75202

RE: William Gordon v. City a/Richardson, Cause No. 07-12698 in the District Court of Dallas County, 681h Judicial District

Dear Ms. Young:

The above-referenced case has' been closed following judgment in favor of the City of Richardson. As the prevailing party and pursuant to Rule 131, Tex. R. Civ. P., the City of Richardson requests preparation and entry of a Bill of Costs awarding its trial court costs, as set forth more fully below and evidenced by the attached invoices. Because the Fifth District COUli of Appeal's Mandate reversed and rendered judgment, I have been advised by the trial court administrator that no further judgment will be entered in the case. Accordingly, in lieu of a Final Judgment, I enclose as Exhibit "A" for your review a copy of the Court of Appeals' Mandate.

The City of Richardson requests a Bill of Costs allowing it recovery from William Gordon in the amount of $3,672.76 for the following. costs which were actually and necessarily incurred and paid in the course of the litigation:

1. Fees of the Clerk and Service Fees

The City of Richardson (the "City") paid one witness Fee required under state law for the deposition of Nathan Morgan. The invoice reflecting this cost is

attached as Exhibit "B." .

$ 10.00

2. Fees of the Court Reporter

A. The City took three depositions and obtained an Original transcript of each, as follows:

$3,087.76

Deponent Nathan Morgan Fred Zimring William Gordon

Date

8-21-08 8-22-08 8-21-08 SUBTOTAL

Transcript Cost $ 564.00

$ 611.04 $1,236.72 $2,411.76

EXHIBIT

TM 46769

Gary Fitzsimmons, Clerk • December 3, 20 IO

Page 2

•

Invoices reflecting the costs of these deposition transcripts are attached collectively as Exhibit "C."

B. The City obtained a transcript of the Court Reporter's Record which included a master index and transcripts of three hearings held in the case, as follows:

Description

V 01 I - Master Index

Vol II - 9-29-09 MSJ Hearing Vol III - 1-23-09 MSJ Hearing Vol IV - 4-:6-09 Plea Hearing

SUBTOTAL

Transcript Cost $ 140.00

$ 214.00

$ 280.00

$ 142.00

$ 676.00

Invoices reflecting the costs of these transcripts are . Attached collectively as Exhibit "D."

. 3. Other Costs Permitted by Court Rules/State Statutes

The City seeks recovery of the cost of mediation of this case. The case was mediated by the parties on September 19,2008. The invoices reflecting the reasonable and customary fee paid for this mediation are attached collectively as Exhibit "E."

$ 575.00

The total taxable trial court costs sought by the City of Richardson, Texas in this case is $3,672.76. Should you require anything further to facilitate preparation of the Bill of Costs, please do not hesitate to contact me. Thank you for your kind attention to this request. Please notify me at the telephone number of email address above when the Bill of Costs is ready and I

will send a 'courier to pick it up. n .

Best regards,

NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.

VWT/ev

Enclosures: Exhibits "A" through "E"

cc: Richard B. Tanner, Esq.

TM46769

NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.

GARY FITZSIMMONS DALLAS COUNTY DISTRICT CLERK

·Defendant Bill of Cost

Cause No: DC - 07-12698 William Gordon v. City of Richardson

Prepared for Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

December 28, 2010

Taxable

: Date _ .D_e_s~!!ption _~" ~"" __ . __ .~__ ~afd_I"<? . _ _ _ _:_ __ ~_Amou'nt - I

J "rJ.p"J; -,0 TiM-:~, t·· \ .Iil<"; .::::...' ','T";-_.'O~1

f' • ~

~. • I ~ ... ~ ; ..> , J. ~'. 1- I 1 ... ""

I· .c.

it ,.~ ,i:'\.jo'. ; ~. !\i~t:

~ . ,: :

~, ''OJ'' .dL'h.l(j~~i.'f_IIIII~~~ __ • EXHIBIT

:.r

):'I~ I ~ i:.'i;1~"~ -, :, · .. ~t ":.:\~: .. ;.:.-.,. -.~:.:\) _;, ,Y: 'hl _:.. ~'.: I •• !".{!

,/

fll;::~lJ . •... . •. _ . .",8

600 Commerce Street, DALLAS, TEXAS 75202 (214) - 653·7262

FAX (214) • 653 ·7781 e-mail mpetton@dallascounty.org

web site: www.dallascounty.orgldistclerklindex.html

NICHOL_lCKSON, DILLARD, HAGER & S1\>.H, L.L.P.

Victoria W. Thomas Email: vthomas@njdhs.com

AlTORNEYS & COUNSELORS AT LAW 1800 Lincoln Plaza

SOD North Akard

Dallas, Texas 75201

(214) 965-9900

Fax (214) 965-0010

Email NJDHS@NJDHS.COM

ROBJ;;RT L. DILLARD, JR. (1913-2000) H. LOUIS NICHOLS

LAWRENCE JACKSON

OF COUNSEL

December 30, 2010

VIA FACSIMILE 972-234-2556

Mr. Richard Tanner 100 North Central Suite 803

Richardson, Texas 75080

RE: City of Richardson v. William Gordon

Dear Mr. Tanner:

The Fifth District Court of Appeals and the Dallas County District Court Clerk have now issued their respective Bills of Cost with regard to the above-referenced lawsuit. Copies of these Bills of Cost are enclosed. Please forward your client's payment of the Bills of Cost in the total amount of $4,796.76 ($999.00 Fifth Court of Appeals; $3,797.76 District Court), made payable to Nichols, Jackson, Dillard, Hager & Smith, LLP, to my attention at the address noted in the letterhead above within thirty (30) days of the date of this letter to avoid the necessity and further expense of issuance and recording of a writ of execution and abstract of judgment for collection via execution on your client's real and personal property.

Thank you for your prompt attention to this matter. Should you have any questions or wish to discuss the matter, please do not hesitate to contact me.

Very truly yours,

NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.

B~-:avf2

lC ana W. Thomas

VWT/ev Enclosures

EXHIBIT

I K

TM 47103

Richard Tanner December 30, 2010 Page 2

•

•

be: Michelle Thames VIA E-MAIL City of Richardson

TM 47103

NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.

GARY FITZSIMMONS DALLAS COUNTY DISTRICT CLERK

Defendant Bill of Cost

Cause No: DC • 07·12698 William Gordon v. City of Richardson

Prepared for Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

December 28, 2010

Taxable

I _ Qat~ .De_s_crlp~i~n ______; __ - . ~~_ Pii_fd__I_I:l . ~ Amou-nt -~

j ;.J_j:):._j; -ii)Tif!k

l t: [.1:l(: ~::) ,{T,,:· . .'O~i

"

;; •• ~'~" i. ~-_ '11. ~" j .. .\ ....

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:;:'I~ I ~ !::!;"':" '_ :~ .. ~;" -, ~ ... ,~}':' . ;'; •• ,. ~.~~: v _i. c"f: .• ~ .. "'.J ~::. "~'" (;

.-

(11,:::;0_, , __ .•.•. __ .. _._ ._ •. _ • .~,:: H

600 Commerce Street, DALLAS, TEXAS 75202 (214)·653 - n62

FAX (214) - 653 -7781 e-mail mpetton@dallascounty.org

web site: W'WW.dallascounty.orgfdistclerklindex.html

'.

. <trourt of J\ppeuts

lIiif:tJ1 :ili,(ltrict of Wcxaa st il.alhl~

MANDATE

TO THE 68TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, GREETINGS:

Before the Court of Appeals for the Fifth District of Texas, on the 2nd of July, 2010, the cause on appeal to revise or reverse thejudgment between

WILLIAM GORDON, Appellee

Appeal froni the 68th Judicial District Court of Dallas County, Texas, (Tr.Ct.No. 07- i269S).

Opinion delivered by Justice Lang-Miers, . Justices Bridges and Lang participating.

CITY OF R1CHARDSON~ Appellant

No. 05~09-0053i-cv v.

was determined; and therein this Court made jtsorder in these words:

. .

We vacate the judgment rendered on March 18, 2010 in this case. In accordance with this

Court's opinion of this date, we REVERSE that portion of the trial court's judgment denying in part appellant the City of Richardson's plea to the jurisdiction and RENDER judgment dismissing appellee William Gordon's declaratory judgment claim and request for attorney's fees as moot. It is ORDEREn that appellant City of Richardson recover its costs of this appeal from appellee William Gordon.

WHEREFORE, WE COMMAND YOU to observe the order of the Court of Appeals for the Fifth District of Texas. in this behalf, and have it duly obeyed and executed.

WITNESS, the HON. CAROLYN WRIGHT, Chief justice of the Court of Appeals, with the Seal thereof affixed. at the City of Dallas, this Sth of November, 2010.·

OFFICE OF THE CLERK

BY~~

DEPUTY CLERK

'.

CI IlE.F JUSTICE CAROI.YN WRIGIIT

JUSTICES

JOSEPH B. MORRIS JIM MOSElEV

DA VID L BRlDGI!S MICIIAEll.O'NEIl.l. KtrRRV P, FfrzGElV,LO MARTIN RICHTER MOL[.v FRANCIS OOUGt.AS S. LANG

. ELtZABlffiI LANG-MIERS MARVMURPtlV

ROBERT M. Fn_I.MORE LANA MVffiS

C!101ll1 of Appeals

lJitftq 1IHnhid of wexu.a at mallan

COURT OF APPEALS. 5'" DISTRICT 600 COMMERCE STRIlIIT, SUITE 200 DALlAS, TEXAs 75202

(214) 712-3400

BILL OF COSTS

APPEAL FROM THE 68TH DISTRICT COURT of Dallas County

Cause No: OS-09-00532-CV

(Trial Court Cause No. 07-12698)

STYLE: City of Richardson, Appellant vs. Gordon. William, Appellee

Filing Fee

Clerk's Record Reporter's Record Supreme Court

Total

LISAMATZ CLERK OF THe COURT (214) 112-3450

lisa. matz@SlhcOIl,COUrts,stllle.lX.U5

GAVLEHUMPA

BUSINESS ADMINISTRATOR

(214) 712-3434 gayle,humpa@5thcoa.eourts,state.tx.u5

FACSIMile.

, (214) 745·1083

INTERNET HTIl':1f5T1!COA.COURTS.STATE,TX,US

Yes -- $ 175.00 Yes -- $682.00 Yes -- $142.00

$ 999.00

I, Lisa Matz, Clerk, of the Court of Appeals, Fifth District of Texas at Dallas. hereby certify that the above copy of Bill of Costs is true and correct.

2010.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at Dallas, this November 8,

LISA MATZ, CLERK.

By

~~

Deputy Clerk

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PLEASE DEUVER TIlE FOu..oWING TO:

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HUMB:tII. DFl'AGES (Iathad;",. c..a'Sluo.t): __ 5 __

RE: City of ll.ic/tan4on v. urdU_,. u..ntoll

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NICHO. JACKSON, DILLARD, HAGER & .TH, L.L.P.

Victoria W. Thomas Email: vthomas@njdhs.com

AlTORNEYS & COUNSELORS AT LAw 1800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

(214) 965-9900

Fax (214) 965-0010

Email NIDHS@NIDHS.COM

ROBERT L. DILLARD, JR. (1913-2000) H. LOUIS NICHOLS (I 916-2010)

LAWRENCE JACKSON OF COUNSEL

March 15,2011

Gary Fitzsimmons

Clerk of Court, Attn: File Desk

George L. Allen Courts Building, Suite 103 600 Commerce Street

Dallas, Texas 75202

RE: City of Richardson v. William Gordon

Trial Court Case No. 07-12698 (68lh Judicial District CourtlDallas)

Dear Clerk of Court;

I am writing to request that an abstract of judgment be prepared in the above-referenced matter to reflect the assessment of trial and appellate court costs against William Gordon. Enclosed herein for this purpose is (1) a true and correct copy of the trial court bill of costs, (2) a true and correct copy of the appellate court bill of costs, (3) a check in the amount of $8,00 and (4) a pre-paid return envelope for the abstract of judgment.

The defendant Harold William Gordon's Texas driver's license number is . His

date of birth is His. last known address is 1808 J.I. Pearce, Richardson, Texas

75081.

Thank you for your usual kind and courteous attention. Please do not hesitate to contact me should you have any questions or require anything further,

Very truly yours,

NICHOLS, JACKSON, DILLARD,

. HAGER&S~H,LL~

B~

Victoria W, Thomas

VWT/ev Enclosures

cc: Mr. Richard Tanner 100 North Central Suite 803

Richardson, Texas 75080

EXHIBIT

L

•

•

".

GARY FITZSIMMONS DALLAS COUNTY DISTRICT CLERK

Defendant Bill of Cost

Cause No: DC - 07 -12698 William Gordon v. City of Richardson

Prepared for Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

December 28,2010

Taxable

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600 Commerce Street, DALLAS, TEXAS 75202 (214) - 653 - 7262

FAX (214) - 653 - 7781 e-mail mpetton@dallascounty.org

web site: www.dallascounty.orWdistclcrklindex.html

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•

CHIEF JUSTICE CAROLYN WRIGHT

JUSTICES

JOSEPH B. MORRIS JIM MOSELEY

DA VlD L. BRIDGES MICHAEL J. O'NEILL KERRY 1'. FITZGERALD MARTIN RICHTER

MOLL Y FRANCIS DOUGLAS S. LANG ELIZABETH LANG-MIERS MARY MURPHY

ROBERT M. FILLMORE LANA MYERS

•

(!lour! of Appeals

1Riffq l11isftid of (Dexus at maUas

couar OF APPEALS, 5'" DISTRICT 600 COMMERCE STREET, SUITE 200 DALLAS, TEXAS 75202

(214) 712-3400

BILL OF COSTS

APPEAL FROM THE 68TH DISTRlCT COURT of Dallas County

Cause No: 05-09-00532,.CV

(Trial Court Cause No. 07-12698)

STYLE: City of Richardson, Appellant vs. Gordon. William. Appellee

Filing Fee

Clerk's Record Reporter's Record Supreme Court

Total

LISA MATZ

CLERK OF THE COURT

(214) 712-3450 lisa.matz@5thcoa.courts.state.tx.us

GAYLE HUMPA

BUSINESS ADMINISTRATOR

(214) 71B434 gayle.humpa@5thcoa.courts.state.lx.us

FACSIMILE (214) 745-1083

INTERNET HTTP://5THCOA.COURTS.STATE.TX-US

Yes-- $175.00 Yes -- $682.00 Yes -- $142.00

$ 999.00

I, Lisa Matz, Clerk, of the Court of Appeals, Fifth District of Texas at Dallas, hereby certify that the above copy of Bill of Costs is true and correct.

2010.

GWEN UNDER MY HAND AND SEAL OF SAID COURT, at Dallas, this November 8,

LISA MATZ, CLERK

BY~~

Deputy C erk

.,

•

•

NICHOLS, JACKSON, DILLARD, HAGER & SMITH L.LP.

92982

REFERENCE DATE DESCRIPTION NET AMOUNT
03-15-2011 Abstract of Judgment
, " ., ORIGINAL DOCUMENT HAS FLUORESCENT FIBERS A VOID PANTOGRAPH AND A MICROPRfNT SIGNATURE LINE ill

CHECK NUMBER C'- _ __,.,,-,-_~)

NICHOLS, JACKSON, DILLARD HAGER & SMITH L.L.P.

ATTORNEYS AND COUNSELORS AT LAW 500 N. AKARD 1800 LINCOLN PlAZA DALLAS, TX 75201

INWOOD NAnONAL BANK DAlLAS, 1X 75201

32·104/1110

03-15-2011

92982

DATE

( $ 8.00***** )

~. ______.

PAY EXACTLY

Eight dollars and 00/100*****

'0 THE )RDEROF

Dallas County District Clerk

OPERATING ACCOU NT

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HAGER & SMITH, L.L.P.

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