Monthly Archives: September 2011

2001 – Taxpayer Protest of Arlington Street Maintenance Fee

In 2000, the City Council of the City of Arlington, Texas adopted an ordinance that established a street maintenance fee which was assessed in city water bills.  This fee was later amended and then finally repealed in 2003. 

During that time, on May 15, 2001, an Arlington taxpayer filed a lawsuit in the 352nd District Court of Tarrant County, Texas against the City of Arlington, arguing that the fee constituted an illegal tax. Other Constitutional challenges were also raised, including allegations that the street maintenance fee violated equal protection and due process rights, was void for vagueness, and provided no mechanism for redress of unlawful collection of the tax. In addition, the taxpayer asserted that the City had violated the Texas Debt Collection Act, and he brought a civil rights action under 42 U.S.C. § 1983.

The City of Arlington claimed general authority to assess fees of this nature by ordinance, rather than charter amendment, but the taxpayer argued that it was a tax which was not permitted under the city charter without approval of the voters. Judge Bonnie Sudderth ultimately issued a summary judgment ruling that the City of Arlington exceeded its authority by taxing the citizens without their consent in violation of the city charter.

While the case was pending, the taxpayer also sought an injunction to prohibit the City from collecting the street maintenance fee and to require the City to refund the full amount of street maintenance fees collected. The lawsuit was brought by the taxpayer on his own behalf as an individual and resident of Arlingtonas well as on behalf of the proposed class of persons – all taxpayers from the City ofArlington- who had been billed for the street maintenance fee.

In response, the City asserted a plea to the jurisdiction, arguing that the trial court did not have jurisdiction due to the plaintiff’s lack of standing to sue because his claim did not meet the $500 amount-in-controversy requirement. The City also claimed immunity from suit.  Judge Bonnie Sudderth denied the City’s plea to the jurisdiction and granted a motion for partial summary judgment declaring the maintenance fee an unlawful tax imposed without consent required of the citizens, but denied the injunctive relief sought.

After so ruling, Judge Sudderth expressed concern to the parties that due to the unique nature of the case and the fact that because there was little guidance in the law on the correct application of the law to the facts of the case, the parties could potentially expend considerable costs of litigation which might be unnecessary if the appellate court disagreed with her interim rulings.  Because of this, Judge Sudderth suggested that the parties agree to request a written order for interlocutory appeal to the Second Court of Appeals.

This agreed interlocutory appeal mechanism was a new creature of statute (Texas Civil Practices & Remedies Code, Section 51.014[d]), having at that time recently been enacted by the Texas Legislature.  The new law provided that parties in litigation may agree to appeal an otherwise non-appealable interlocutory ruling if: (1) the ruling involves a controlling question of law as to which there is a substantial ground for difference of opinion, (2)  an immediate appeal from the order may materially advance the ultimate termination of the litigation;  and (3)  the parties agree to the order.

Without such agreement, the interlocutory summary judgment ruling would not have been appealable at that time, and the parties would have been required to wait until the entire case, including the class action certification issues, were concluded before testing Judge Sudderth’s ruling on appeal.  The parties agreed to go forward with an immediate agreed appeal, as suggested by Judge Sudderth, which the Second Court of Appeals accepted.  (This was the first agreed appeal that the Second Court of Appeals ever accepted under the new law.)

As a result of that agreed interlocutory appeal, Judge Sudderth’s ruling was reversed – not because her ruling was erroneous regarding the illegality of the tax – but on the ground that the taxpayer lacked “standing” to complain about it because the taxpayer failed to show a “particularized injury distinct from that suffered by the general public.” 

In the interim, the City of  Arlington held an election on the issue and the tax was ultimately approved by the voters.

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2002 – Reviving the Cullen Davis Case

In August of 1976, a lone gunman dressed in black entered the mansion owned by millionaire oilman T. Cullen Davis and shot four people, including Davis’ estranged wife Priscilla, who had legal possession of the home at the time, according to the terms of their pending divorce proceedings.  Two people survived the shootings, but Priscilla’ daughter, Andrea Willborn, and her boyfriend, Stan Farr, did not.

Cullen Davis, who was then said to be worth approximately $400 million, was indicted for the murders.  The next year, after a change of venue moved the case to Amarillo, Texas, Davis, at the time reported to be the “the richest man to stand trial on murder charges,” was acquitted of murder in one of the most notorious and globally-televised events of the decade. (Davis was also later acquitted of murder-for-hire charges in a separate case where it was alleged that he attempted to arrange for the presiding judge of his divorce action to meet an untimely and violent death as well.)

Davis was never tried in Farr’s death, but in 1990, he agreed to settle the wrongful death civil action which had been filed on behalf of Farr’s two teenage children.  In the settlement agreement, Davis agreed to pay the children $250,000.  The agreed judgment based on the settlement was entered on February 15, 1990, but the settlement was amended three years later to include a provision requiring Davis to pay the balance of the judgment by 1997.  The judgment was never paid.

On September 27, 2002, the children, who were by this time adults, filed a suit to recover the debt in the 352nd District Court, Judge Bonnie Sudderth presiding.  Davis responded by claiming that the statute of limitations barred the children’s claims against him – that he no longer legally owed the judgment because the children had waited too long to collect it.

Davis argued that the original judgment had become “dormant” on February 14, 2000 (ten years after the original judgment was signed) because the children had not sought a writ of execution of the judgment during the 10-year period of time. Texas law provides that judgments become dormant after 10 years if no writ of execution is issued.

However, Texas law also provides that a dormant judgment may be “revived” by filing a lawsuit on the debt if not brought later than the second anniversary of the date the judgment becomes dormant.  The problem, Davis pointed out, was that the children waited two years and seven months to bring the debt action, and, therefore, he contended, the debt was no longer owed.

The Farr children sought summary judgment, asking Judge Sudderth to rule that their claims were not time-barred, since they were both minors at the time the settlement was entered into.   Texas law stops the clock on limitations during a child’s minority years, if they are under the age of 18 at the time a cause of action accrues.

Judge Bonnie Sudderth agreed with the Farr children that their claims against Davis were not time-barred.  The effect of Judge Sudderth’s ruling affirmed that Davis still owed the Farr children $125,000 each, plus interest as provided by law.

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