HomeMy WebLinkAboutPR 18257: REQUEST SUBMITTED BY LAW FIRM LANGSTON ADAMS (REQUESTED BY COUNCILMEMBER LEWIS) P. R. No. 18257
03/21/14 vt
RESOLUTION NO.
A RESOLUTION PERTAINING TO REQUEST SUBMITTED
BY THE LAW FIRM OF LANGSTON SCOTT ADAMS
(REQUESTED BY COUNCILMEMBER LEWIS)
WHEREAS, on October 10, 2013, a Temporary Restraining Order
and Request for Temporary Injunction was filed against the City
of Port Arthur; and
WHEREAS, the Law Firm of Langston Scott Adams represented
the Plaintiffs in the above referenced matter; and
WHEREAS, a hearing was held on October 24, 2013 and the
Court determined that the Plaintiffs should exhaust their
administrative remedies pursuant to the requirements of Section
211 of the Texas Local Government Code; and
WHEREAS, the Law Firm of Langston Scott Adams has sent
correspondence requesting the payment of attorney's fees
pursuant to Section 37.009 of the Texas Civil Practices and
Remedies Code and a finding that Ordinance No. 13 -32 invalid (a
copy of relevant statute and the correspondence is attached as
Exhibit "A ").
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble
are true and correct.
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Section 2. That the City Council deems it in the best
interest of the City to accept Attorney Adam's attached request
and enter into a settlement agreement for a declaratory judgment
indicating that Ordinance No. 13 -32 is invalid as stated in the
Plaintiffs' pleadings and that the City Council agrees to pay
attorney's fees in the amount of $12,500 in accordance with the
requested declaratory judgment pursuant to Section 37.009 of the
Texas Civil Practices and Remedies Code.
Section 3. That a copy of this caption be spread upon
the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of April, A.D.,
2014, at a Regular Meeting of the City Council of the City of
Port Arthur, Texas, by the following vote: AYES:
Mayor:
Councilmembers:
NOES: .
MAYOR
ATTEST:
CITY SECRETARY
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APPROVED AS TO FORM:
(SEE MEMO)
CITY ATTORNEY
APPROVED FOR ADMINISTRATION:
JOHN A. COMEAUX, P.E.,
INTERIM CITY MANAGER
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EXHIBIT "A"
s.pr18257
CIVIL PRACTICE AND REMEDIES CODE CHAPTER 37. DECLARATORY JUDGM... Page 1 of 1
Sec. 37.009. COSTS. In any proceeding under this chapter, the
court may award costs and reasonable and necessary attorney's fees as
are equitable and just.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 37. DECLARATORY JUDGM... Page 1 of 5
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE C. JUDGMENTS
CHAPTER 37. DECLARATORY JUDGMENTS
Sec. 37.001. DEFINITION. In this chapter, "person" means an
individual, partnership, joint -stock company, unincorporated
association or society, or municipal or other corporation of any
character.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.002. SHORT TITLE, CONSTRUCTION, INTERPRETATION. (a)
This chapter may be cited as the Uniform Declaratory Judgments Act.
(b) This chapter is remedial; its purpose is to settle and to
afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations; and it is to be liberally
construed and administered.
(c) This chapter shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of those
states that enact it and to harmonize, as far as possible, with
federal laws and regulations on the subject of declaratory judgments
and decrees.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.003. POWER OF COURTS TO RENDER JUDGMENT; FORM AND
EFFECT. (a) A court of record within its jurisdiction has power to
declare rights, status, and other legal relations whether or not
further relief is or could be claimed. An action or proceeding is
not open to objection on the ground that a declaratory judgment or
decree is prayed for.
(b) The declaration may be either affirmative or negative in
form and effect, and the declaration has the force and effect of a
final judgment or decree.
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(c) The enumerations in Sections 37.004 and 37.005 do not
limit or restrict the exercise of the general powers conferred in
this section in any proceeding in which declaratory relief is sought
and a judgment or decree will terminate the controversy or remove an
uncertainty.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.004. SUBJECT MATTER OF RELIEF. (a) A person
interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract,
or franchise may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract,
or franchise and obtain a declaration of rights, status, or other
legal relations thereunder.
(b) A contract may be construed either before or after there
has been a breach.
(c) Notwithstanding Section 22.001, Property Code, a person
described by Subsection (a) may obtain a determination under this
chapter when the sole issue concerning title to real property is the
determination of the proper boundary line between adjoining
properties.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 305 (H.B. 1787), Sec. 1, eff.
June 15, 2007.
Sec. 37.005. DECLARATIONS RELATING TO TRUST OR ESTATE. A
person interested as or through an executor or administrator,
including an independent executor or administrator, a trustee,
guardian, other fiduciary, creditor, devisee, legatee, heir, next of
kin, or cestui que trust in the administration of a trust or of the
estate of a decedent, an infant, mentally incapacitated person, or
insolvent may have a declaration of rights or legal relations in
respect to the trust or estate:
(1) to ascertain any class of creditors, devisees,
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legatees, heirs, next of kin, or others;
(2) to direct the executors, administrators, or trustees
to do or abstain from doing any particular act in their fiduciary
capacity;
(3) to determine any question arising in the
administration of the trust or estate, including questions of
construction of wills and other writings; or
(4) to determine rights or legal relations of an
independent executor or independent administrator regarding fiduciary
fees and the settling of accounts.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., ch. 167, Sec. 3.08(a), eff. Sept. 1, 1987;
Acts 1999, 76th Leg., ch. 855, Sec. 10, eff. Sept. 1, 1999.
Sec. 37.0055. DECLARATIONS RELATING TO LIABILITY FOR SALES AND
USE TAXES OF ANOTHER STATE. (a) In this section, "state" includes
any political subdivision of that state.
(b) A district court has original jurisdiction of a proceeding
seeking a declaratory judgment that involves:
(1) a party seeking declaratory relief that is a business
that is:
(A) organized under the laws of this state or is
otherwise owned by a resident of this state; or
(B) a retailer registered with the comptroller under
Section 151.106, Tax Code; and
(2) a responding party that:
(A) is an official of another state; and
(B) asserts a claim that the party seeking
declaratory relief is required to collect sales or use taxes for that
state based on conduct of the business that occurs in whole or in
part within this state.
(c) A business described by Subsection (b)(1) is entitled to
declaratory relief on the issue of whether the requirement of another
state that the business collect and remit sales or use taxes to that
state constitutes an undue burden on interstate commerce under
Section 8, Article I, United States Constitution.
(d) In determining whether to grant declaratory relief to a
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business under this section, a court shall consider:
(1) the factual circumstances of the business's
operations that give rise to the demand by the other state; and
(2) the decisions of other courts interpreting Section 8,
Article I, United States Constitution.
Added by Acts 2007, 80th Leg., R.S., Ch. 699 (H.B. 2010), Sec. 1,
eff. September 1, 2007.
Text of section effective on March 08, 2014
Sec. 37.006. PARTIES. (a) When declaratory relief is sought,
all persons who have or claim any interest that would be affected by
the declaration must be made parties. A declaration does not
prejudice the rights of a person not a party to the proceeding.
(b) In any proceeding that involves the validity of a
municipal ordinance or franchise, the municipality must be made a
party and is entitled to be heard, and if the statute, ordinance, or
franchise is alleged to be unconstitutional, the attorney general of
the state must also be served with a copy of the proceeding and is
entitled to be heard.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.007. JURY TRIAL. If a proceeding under this chapter
involves the determination of an issue of fact, the issue may be
tried and determined in the same manner as issues of fact are tried
and determined in other civil actions in the court in which the
proceeding is pending.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.008. COURT REFUSAL TO RENDER. The court may refuse to
render or enter a declaratory judgment or decree if the judgment or
decree would not terminate the uncertainty or controversy giving rise
to the proceeding.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
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Sec. 37.009. COSTS. In any proceeding under this chapter, the
court may award costs and reasonable and necessary attorney's fees as
are equitable and just.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.010. REVIEW. All orders, judgments, and decrees under
this chapter may be reviewed as other orders, judgments, and decrees'.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.011. SUPPLEMENTAL RELIEF. Further relief based on a
declaratory judgment or decree may be granted whenever necessary or
proper. The application must be by petition to a court having
jurisdiction to grant the relief. If the application is deemed
sufficient, the court shall, on reasonable notice, require any
adverse party whose rights have been adjudicated by the declaratory
judgment or decree to show cause why further relief should not be
granted forthwith.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
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•
DEC 19'13 8'31cm
•
Law Offices of
Langston Scott Adams
2931 Park Plaza Lane
Port Arthur, Texas 77642
409 982 -1780 Tel.
409 982 -1701 Fax.
December 19, 2013
Valencia R. Tizeno
City Attorney
City of Port Arthur
444 4th Street
Port Arthur, Texas 77670
VIA FACSIMILE: (409) 983 -8128
Re: Cause No: E194887; Reginald Trainer, Efrain Avendann, Paul Bolin and Herman
Leiinst:on.
Dear Mrs. Tizeno:
As you aware the City of Port Arthur in open court and in its Plea to Jurisdiction
represented to Judge Floyd that Plaintiffs failed to cxhaust administrative remedies provided by
Chapter 211 ol'the Texas Local Government Code. Attorney Scott Bounds argued that the
• Zoning Roard of Adjustment had authority to hear and decide any appeal of the City of Port
Arthur Council's decision to rezone the Edison Property in spite of your legal advice to City
Council. Relying on the City's representations Judge Floyd conditionally granted the City's
Plea to Jurisdiction to give Plaintiffs an opportunity to appeal to the Zoning Board of
Adjustment, belbre returning to his court. Plaintiffs filed such appeal and prevailed before the
Zoning Board of Adjustment. I would assume that the City of Port Arthur will respect the
decision ol'the Zoning Board of Adjustment and not take a contradictory position before Judge
Floyd.
Pursuant to Section 37.009 of the Civil Practice and Remedies Code Plaintiffs are
entitled to the recovery of attorney fees. To date Plaintiffs have incurred $ 12,500.00 in attorney
fees. In an effort to settle this 'natter Plaintiffs propose to dismiss its cause of action without
prejudice and have the City of Port Arthur pay Plaintiffs counsel $12,500.00 in attorney tics.
Please forward this offer of settlement to the Port Arthur City Counsel and inform me of their
response.
Sin ercl.y,
angston Scott Adams