Tag Archives: appeal

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  This fee was later amended and then finally repealed in 2003.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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2009 – Taking the Big Fight to Court

On May 28, 2005, the Championship boxing match between Julio Cesar Chavez and Ivan Robinson was aired as a closed-circuit “pay per view” event, available only to those who had purchased authorization to access and broadcast it.  Special licensing requirements were imposed on commercial establishments who planned to publicize and broadcast the event in their theaters, arenas, bars, clubs and restaurants.  Steps were also taken to prevent unauthorized use by those who didn’t purchase a license or obtain permission to access the event.  The transmission of the event was electronically coded, or “scrambled”, requiring decoding with electronic decoding equipment in order for the signal to be clearly received and telecasted.

On the evening of the match, a Tarrant County business known as “Playmates” broadcast the boxing match to its patrons without obtaining a license to do so, violating federal cable piracy laws. Although J&J Sports Productions, the broadcast licensee of the Chavez/Robinson match, discovered this violation fairly quickly thereafter, they waited three and a half years to file a lawsuit. 

On December 30, 2008, the lawsuit was filed in the 352nd District Court of Tarrant County.  In the lawsuit, J&J sought damages of approximately $200,000, plus attorney’s fees.  They also sought a permanent injunction to prevent any further exhibition of unauthorized or unlicensed broadcasts by Playmates.

Approximately a year after the suit was filed, Playmates filed a motion for summary judgment, arguing that J&J had waited too long to bring their action and that the lawsuit was barred by the statute of limitations.  The crux of the summary judgment dispute that presented itself to Judge Bonnie Sudderth was whether the federal 4-year statute of limitations would apply to the case, or whether the 2-year Texas statute of limitations would apply. 

Judge Sudderth ruled that Texas’ 2-year statute of limitations applied to the dispute.  In her ruling, Judge Sudderth explained that by choosing to file the lawsuit in state court, rather than federal court, J&J removed the binding effect of U.S. Fifth Circuit precedent, and, therefore, state law should apply. Therefore, even though Playmates had violated federal cable piracy laws, J&J waited too long to complain about it, and the lawsuit was dismissed.

Judge Sudderth’s decision was affirmed on appeal on September 23, 2010.

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2005 – RadioShack / Circuit City Brand Dispute

When Circuit City purchased InterTan, RadioShack’s former Canadian subsidiary, it continued to operate the InterTan stores under the RadioShack name.  RadioShack, concerned that its brand in Canada would be controlled by its competitor at home, sought a temporary injunction in the 352nd District Court of Texas, asking that Judge Bonnie Sudderth temporarily halt the practice.  At the time the lawsuit was filed, InterTan operated 500 RadioShack stores and 340 RadioShack dealerships in Canada.

RadioShack had terminated its licensing, advertising and merchandising agreements with InterTan a year before, but InterTan argued that such agreements didn’t expire until 2010.  Judge Bonnie Sudderth disagreed, and at the temporary injunction hearing she determined that RadioShack had not wrongfully terminated the agreements with InterTan.  Judge Sudderth also ordered Circuit City to stop using the RadioShack brand name on products in the Canadian stores that it had acquired.  Although her order was issued on March 24, 2005, it would not be effective until approximately three months later, on July 1, 2005. 

Circuit City, who offered no reason for wanting to keep the RadioShack brand name in Canada, indicated that it would appeal the decision.  A spokesman for Circuit City commented that the electronics store intended to “use every means of relief possible” to exercise its rights under the agreements, “including all appeal rights.”  No appeal was filed, however, and some time thereafter the companies entered into settlement negotiations.

Judge Sudderth’s ruling effectively ended InterTan’s affiliation with RadioShack, and arguably allowed for the possibility of RadioShack opening its own stores in Canada at some later date.  Approximately one year after her ruling, the parties submitted to Judge Sudderth an agreed stipulation, indicating that the companies had settled their differences.  Judge Sudderth later signed an order of dismissal, ending the litigation.

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1999 – Parvin vs. Dean: Lawsuit for Death of Unborn Child

Judge Bonnie Sudderth granted summary judgment in favor of parents who suffered the death of their unborn child as the result of a car accident, on the following facts:  The mother of the child was struck by another vehicle while driving through an intersection.  The other driver stipulated that he was negligent in causing the collision and the woman was not at fault. 

Immediately after the collision, the woman, who was 9-months pregnant at the time, felt her baby kicking in the womb.  Although her water did not break and she had no bleeding, an ambulance took her from the accident scene to a hospital as a precautionary measure.  Her unborn child died in the womb en route to the hospital. 

The next day, knowing that her child was no longer alive and with her husband by her side, she endured more than nine hours of labor to deliver her stillborn daughter.  The undisputed medical evidence proved that the child was fully developed, viable and could have lived outside the womb immediately before the collision, she had the capacity to cry at the time of the collision, she was alive at the time of the collision but survived only for a short period of time thereafter, and, finally, that the collision was the cause of the child’s death.

 The law at the time this case was filed in the 352nd District Cout was that while Texas parents could recover for the wrongful death of a child who died only moments after birth, parents could not sue for the wrongful death for a child who was not born alive.  The law also provided that while the mother could recover for her own mental anguish due to the death of her daughter, the father could not recover for his mental anguish.

Judge Sudderth granted summary judgment, ruling that a viable unborn child was an “individual” within the scope of the Wrongful Death Act, and should not be excluded under the statute because she was not born alive.  Judge Sudderth also ruled that the father was entitled to the same rights as a mother to recover mental anguish damages for the loss of his child.

Judge Sudderth’s decision was appealed to the Second Court of Appeals, who, sitting en banc, upheld Judge Sudderth’s ruling.  Justice Dixon Holman authored the opinion, which can be found at:  Parvin v. Dean, 7 S.W.3d 264 (Tex. App. – Ft  Worth 1999).  In a subsequent unrelated case, the Texas Supreme Court criticized the Parvin v. Dean decision, but shortly thereafter the Texas Legislature amended the statute to codify this result.

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