Hays St | Opposition to COSA's Motion for Summary Judgment by Esperanza Peace and Justice Center

NO. 2012 CI 19589 HAYS STREET BRIDGE RESTORATION GROUP and BEATRICE VALADEZ, of the Individually and on Behalf of Over 2800 Registered Voters Who Signed the “Petition Opposing the Conveyance of Planned Park Land for the Building of a Brewery Next to the Historic Hays Street Bridge,” Plaintiffs, v. CITY OF SAN ANTONIO, SHERYL SCULLEY, in her official capacity as San Antonio City Manager, and LETICIA M. VACEK, in her official capacity as San Antonio City Clerk, Defendants.

§ § § § IN THE DISTRICT COURT § § 288th JUDICIAL DISTRICT § § OF BEXAR COUNTY, TEXAS § § § § § §

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT CITY OF SAN ANTONIO’S NO EVIDENCE AND TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Plaintiffs, Hays St. Group (hereinafter “Hays St. Group”) and Beatrice Valadez, Non-Movants herein, and request this Honorable Court to deny Defendant City of San Antonio’s No Evidence and Traditional Motions for Summary Judgment. INTRODUCTION Defendant City of San Antonio’s No Evidence and Traditional Motions for Summary Judgment must be denied. First, these Motions are supported by an incomplete rendition of the uncontested facts. In addition, the Motions are based on an incorrect analysis of the applicable contract law and an erroneous interpretation of Texas Local Government Code Section 253.001. Summary judgment may not be granted under Texas Rule of Civil Procedure 166a(i) (no evidence) if Plaintiffs bring forth more than a scintilla of probative evidence to support each

contested element of their claims. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009). Under Texas Rule of Civil Procedure Rule 166a(c) (traditional) summary judgment may not be granted unless the Defendant meets its burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). With respect to Plaintiff’s breach of contract claim, the City’s Motion effectively concedes the existence of disputed issues of fact that preclude summary judgment. The City’s Motion states: “To properly analyze this claim [that the City breached the Memorandum Agreement by attempting to transfer the BudCo land to the Alamo Beer Company], it is necessary to look not only at the MOU but at the original agreement with TxDOT as well.” The Motion then generally references Exhibits A and B, 100 pages of documents. In the paragraph following this statement, the Motion discusses “the funding approval” with references to Exhibit C (a 115 page set of documents) and to page numbers that do not correspond with any of this Exhibit. The Motion clearly fails to identify supporting facts as is required for summary judgment, Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex.App.-San Antonio 2006) (“when presenting summary-judgment proof, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court. Attaching entire documents and depositions to a motion for summary judgment … and referencing them only generally does not relieve the party of pointing out to the trial court where in the documents the issues set forth in the motion … are raised.”). Even more importantly, by asserting that the Memorandum Agreement cannot be interpreted without reference to extrinsic evidence, the City contends, in effect, that the Memorandum Agreement is ambiguous, and that means that the Court must deny the City’s

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Motion for Summary Judgment, because interpretation of an ambiguous contract is an issue of fact. Appleton v. Appleton, 76 S.W.3d 78, 84–85 (Tex.App.-Houston 2002) (“When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument is an issue for the trier of fact to decide.”). As discussed more fully below, the City’s No-Evidence and Traditional Motions for Summary Judgment must be denied. The summary judgment evidence now before the Court includes evidence sufficient to support every challenged element of Plaintiffs’ claims and reveals genuinely disputed issues of fact that preclude summary judgment. FACTS A. The Historic Hays Street Bridge 1.

In 1902, the first car was sold in San Antonio; in 1905, cars appeared in the Battle of the Flowers Parade; in 1910, the Galveston, Harrisburg & San Antonio Railway (hereinafter “GH & SA Railway”) laid tracks across twelve busy downtown streets, the first airplane flew in San Antonio skies, and electric, steam, gasoline, and horse-drawn vehicles started getting in each other’s way. In response, the City enacted its first set of traffic rules and required the GH & SA Railway to build a viaduct across the railroad tracks at Hays St. so that San Antonio’s affluent east side community would not become isolated from the downtown. Instead of building a new structure, the railroad relocated a bridge, built in the late 1880s, that consists of two historically significant cast iron spans: a 226 foot-long Whipple and a 129 foot-long Through-Pratt truss.

In September, 2012, the United States Department of the Interior decided that the Hays St. Bridge should be included in National Register of Historic Places.

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B. San Antonians Organize to Save the Bridge 3.

Sadly, the bridge was not well maintained. It was closed to vehicular traffic in 1982 and by 1993, plans to demolish the Bridge circulated among city officials. See Exh A.

Eastside residents and members of Neighborhoods Acting Together (many of whom were founders and active participants in the Hays St. Group), organized a Save the Hays St. Bridge petition drive (the “Save Our Bridge Petition”), voicing broad community support for preservation of the bridge. See Exh. A

After receiving the Save Our Bridge Petition, City Council agreed to delay the demolition plans and gave Neighborhoods Acting Together a small grant to explore possibilities for preservation of the Bridge.

Neighborhoods Working Together prepared a report, and

through that effort, Bridge supporters learned that funding may be available under the federal Transportation Equity Act for the 21st Century” (TEA-21”) and began working to draft an application. See Exhs. A, B, E 6.

The Hays St. Group was formed in 2000 by a diverse group of community activists, many of whom had already been working for years individually or with Neighbors Acting Together to prevent demolition of the Hays St. Bridge, a beloved east side icon and an historic engineering landmark.

See Exhs. A, B

Although eastside residents have always constituted a majority of its members, the Hays St. Group has also included representatives of San Antonio Branch of the American Society of Civil Engineers, Neighborhoods Acting Together, the MPOs Bicycle Mobility Task Force, and San Antonio Conservation Society.

Throughout this period, the Hays St. Bridge Group continued to solicit financial and in-kind donations for the Restoration Project. See Exh. E

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C. The City Joins Efforts to Save the Bridge 9.

Working with the City Planning Department, the Hays St. Group gathered design and reconstruction estimates, raised money, and was able, in 2001, to prepare an application for a major Transportation Equity Act grant (“TEA-21”), funded by the federal government and administered through the Texas Department of Transportation. See Exhs. A, B, D, E, G

10. The City Council authorized submission of the grant application by Ordinance in May, 2001, with a reaffirming Ordinance passed in October, and in January 2002, the project was awarded $2.89 million for the project. See Exhs. D, G. D. The Memorandum Agreement between the City and the Hays St. Group 11. Soon thereafter, City officials expressed concern to members of the Hays St. Group that the City would not be willing to commit funds for the $718,114 in cash or in-kind contributions that were required of it as the sponsoring entity and to assume responsibility for any cost overruns, and the TEA-21 grant would require. See Exhs. A, B, D, E 12. Soon thereafter, City officials asked the Hays St. Group to assume responsibility for raising money and in-kind donations for the Hays St. Bridge Project to supplement the TEA-21 grant. The Hays St. Group knew that the TEA-21 Funding would cover no more than 80% of the cost of restoring the Bridge and that additional funding would be needed to create the vital community public space they envisioned, so the Group expressed willingness to formalize the Group’s relationship with the City. See Exhs. A, B, E 13. On June 4, 2002, members of the Hays St. Group signed the “Memorandum of Understanding” drafted by Nina Nixon Mendez (hereinafter, the “2002 Memorandum of Understanding”).

Accordingly, before agreeing to accept the grant, City officials insisted

upon a written contract for fundraising services between the Hays St. Group and the City.

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14. Under this agreement, the Group assumed the obligation of raising money and other assets from private donors to help finance the Hays St. Bridge Restoration Project.

In exchange,

the City promised that whatever assets the Group acquired and donated to the City would be used only for the Hays St. Bridge Restoration Project.

A copy of the duly executed

statement of this contract is attached hereto as Exhibit F. 15. It was understood that this was a legal contract, binding on the Hays St. Group as an association and on the City of San Antonio, but that it would not expose any of the individual signors to personal liability. See Exh. E, F. 16. Douglas Steadman of the Hay Street Restoration Group understood that the 2002 Memorandum of Understanding established the framework within which all future work on the Hays St. Bridge Restoration Project by the Hays St. Group would proceed: the Hays St. Group was obligated to raise funds and in-kind resources for the Hays St. Bridge Project and the City was to allocate all of the resources garnered

by the Hays St. Group to the Hays St.

Bridge Restoration Project. See Exh. E 17. Further, Douglas Steadman, then Chair of the Hays St. Bridge Group Fundraising committee, became concerned because the Hays St. Group was not incorporated as a tax-exempt organization, and decided that the Group would have to find some way to enable potential donors to receive the tax benefits of a charitable contribution for their donations to the Hays St. Project, so the Hay Street Bridge Restoration Group established an account with the San Antonio Area Foundation for monetary donations and, in discussions with City officials, learned that in-kind donations of land or professional services could be made directly to the City. See Exh. E

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18. Despite terms in the Memorandum Agreement requiring periodic payments by the Hays St. Group, the City had asked that the Hays St. Group retain the funds until the City needed a lump sum payment, so the periodic payment terms in the Agreement never were implemented. See Exh. E E. BudCo Donation of Land for the Hays St. Bridge Park 19. During 2004, the Hays St. Group approached Vincent and Buckley Dawson, the owners of BudCo, Inc. to ask if they would be willing to donate their land at 803 N. Cherry for use as a park, educational center, and location for facilities to support the Hays St. Bridge (e.g. parking and restroom facilities). See Exh. A, E 20. In January 2005, Nettie Hinton, Marcie Ince, and Doug Steadman (all members of the Hays St. Group) met with Vincent and Buckley Dawson.

During that meeting, the Dawsons

enthusiastically supported the Hays St. Restoration Project and generously agreed to donate the land at 803 N. Cherry to the Project for use as a park and location for supporting facilities.

During the meeting with the Dawson, The Hays St. Group also discussed some

ideas for how the park could attract families and other community members to visit the Bridge, including a childrenâ&#x20AC;&#x2122;s park, picnic tables, a railroad exhibit, or a skate-boarding area. See Exhs. A, E 21. During the meeting with the Dawsons, the Hays St. Group mentioned that the Hays St. Group was responsible for soliciting donations for the Hays St. Bridge Project and that their land donation could be included as part of our twenty-percent local match. See Exhs. A, E 22. During 2006 and 2007, I worked with Malcolm Mathews, Director of the City Parks Department, and other City officials to arrange the Dawson land donation. The City required

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that two environmental studies be done and the Dawsons generously paid for that work. See Exh. E 23. During this time, Doug Steadman was aware that Malcolm Mathews was very concerned that the Park Department did not have an adequate budget to maintain all of the City’s park land and The Hays St. Group was repeatedly told that the City would accept and hold the Dawson land as part of the Hays St. Bridge Restoration Project, but that the Hays St. Group would be responsible for raising the money to improve the land. The Hays St. Group agreed to this arrangement as it was consistent with the 2002 Memorandum of Understanding. See Exh. E 24. Work on plans for the Hays St. Bridge Dawson Park continued along with restoration of the Bridge itself. The design for the eastern approach to the Bridge was drawn to include a stairway leading to the Park, preliminary design drawings were circulated within the Hays St. Group, and members actively pursued grants and other funding sources for Park improvements. See Exh. E. 25. On October 4, 2007, the City Council accepted the Dawson land with an Ordinance entitled “Ordinance Authorizing Acceptance of a Gift of Approximately 1.691 Acres in connection with the Hays Street Bridge Rehabilitation Project, District 2, From BudCo, Ltd. See Exh. E, H. 26. In her affidavit Sheila McNeill says: “I am now aware that the Deed conveying the land from BudCo to the City of San Antonio contains the following conditional language: ‘If the property is used by Grantee as a park’.

To the best of my recollection, this conditional

language was inserted because, at the time of the BudCo donation, Union Pacific has not yet conveyed the Hays Street Bridge to the City, and so there still was some risk that the

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restoration project would not be possible, but short of that possibility, the BudCo land was to become a park attached to the Hays Street Bridge.

Union Pacific did agree to convey the

Hays Street Bridge to the City of San Antonio in December of 2007 and the conveyance was recorded on May 13, 2008.” See Exh. C F. The Hays St. Group Fulfilled its Obligations under the Fundraising Agreement. 27. The Hays St. Group has worked tirelessly to solicit resources for the Hays St. Bridge Project.

See Exh. E

28. In April of 2009, the Hays St. arranged to have $194,210.54 donated to the City to help pay for the Hays St. Bridge Restoration Project, including the donation of a parcel of land, located at 803 N. Cherry, adjoining the Bridge on its north east side and officially described as NCB: 527 BLK: 30 LOT: E IRR 226.34 FT OF BLK ARB B (hereinafter the “Land” or the “Park Land”). See Exhs. E, J 29. In 2007, even before restoration work began on the Bridge itself, donation of the Park Land was accepted as part of the Hays St. Bridge Restoration project and the design plans were drawn to include stairs leading from the Bridge to the park land, to facilitate movement between the educational center, bus parking, restrooms, and play area planned for the park and the Bridge itself. See Exh. E 30. In 2009, the Digowity Master Plan designated the land at 803 N. Cherry as a Park and, after approval by the City Council, this designation was incorporated into the City Master Plan. See Exh. J

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G. The City Breached the Fundraising Agreement 31. Restoration of the Bridge itself, phase one of the overall project, was completed and on July 20, 2010, the Bridge was rededicated and reopened for public use as part of the Cityâ&#x20AC;&#x2122;s hike and bike trails. See Exhs. A, B, E 32. The Hays St. Group continued its work on phase two of the Project, the construction of educational and recreational facilities, parking, and restrooms in the adjoining park. See Exhs. A, B, E 33. Unbeknownst to the Restoration Group, however, Defendant City of San Antonio refused to allocate the Park Land to the Hays St. Group Project and directed City employees to arrange for the transfer the Park Land to a company owned by a local businessman. See Exhs. A, B, E. 34. In April 2011, City staff met with representatives of the Hays St. Group and informed them that the City would not use the Park Land for the Hays St. Bridge Restoration Project purpose but instead would transfer the Park Land to the Alamo Beer Company. See Exhs. A, B, E. 35. Despite repeated objection from the Hays St. Group and other community members, the City Council voted on August 2, 2012 to approve Ordinance 2012-08-02-056, authorizing the transfer of the Park Land to Alamo Beer Co.

At that meeting, Councilwoman Ivy Taylor

clearly acknowledged that City had been holding the Park Land for use as a park as part of the Hays St. Bridge Restoration Project. See Exhs. A, B, E, L, M H. Concerned Community Members Call for an Election Under Texas Local Government Act Â§253.001(f) 36. Between August 2 and October 1, 2012, Beatrice Valadez and more than 2,800 other registered San Antonio voters signed a Petition addressed to City Council expressing their

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opposition to the transfer of the Hays St. Bridge Dawson Park Land to the Alamo Beer Company.

On October 1, 2012, within sixty days after the passage of Ordinance

2012-08-02-056, this Petition, signed by more than 2,800 registered voters residing in San Antonio, was presented to the City Clerk for the City of San Antonio, with the request that the transfer be put to election at the next appropriate time.

See Exh. N

37. On October 10, the Hays St. Group received a letter from the Defendant Leticia Vecek, San Antonio City Clerk asserting, incorrectly, that the land at 803 N. Cherry “has never been owned, held, claimed, designated, or used as a park by the City of San Antonio,” and therefore the matter would not be submitted for an election. See Exh. P I.

Defendant’s Breach of Contract has Caused Injury to the Hays St. Group

38. The Hays St. Group has suffered and will continue to suffer losses caused by the City’s breach of contract that cannot be adequately remedied by an award of monetary damages. In the Fundraising Agreement, the City promised to compensate the Restoration Group for its thousands of hours of fundraising services by allocating all resources generated by the Restoration Group to the Hays St. Bridge Restoration Project. See Exhs. A, B, E 39. The City’s breach of this obligation has caused injury to the reputation and credibility of the Hays St. Bridge Group, damage to its past and future ability to fundraise, and injury to its ability to fulfill the mission for which it was formed. See Exhs. A, B, E

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LEGAL ARGUMENT I.

Regarding Plaintiff’s Breach of Contract Claim

A. Defendant’s No-Evidence Motion for Summary Judgment on Plaintiff’s Breach of Contract Claim Must be Denied 1.

Standards and Burdens of Proof A defendant’s no-evidence motion for summary judgment must specify those elements of

the plaintiff’s claim regarding which the movant-defendant contends there is no evidence. See Tex.R. Civ. P. 166a(i); BP America Production Co. v. Zaffirini, 419 S.W.3d 485, 504 (Tex. App.– San Antonio 2013). The Court must then examine all summary judgment evidence in the light most favorable to the respondent, disregarding all contrary evidence and inferences. Id. at 504 (citing Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) and Connell v. Connell, 889 S.W.2d 534, 538 (Tex. App.—San Antonio 1994). The no-evidence motion for summary judgment must be denied if there is more than a scintilla of summary judgment evidence on the challenged elements of respondent’s claim. See Tex.R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Nowak v. DAS Investment Corp, 110 S.W.3d 677, 679-80 (Tex.App.–Hous. 2003) (the respondent “need not marshal all of its proof, but only need show some evidence—more than a scintilla—that a fact issue exists.”). 2.

Defendant’s No-Evidence Contentions The elements of a breach of contract claim are (1) a valid contract between plaintiff and

defendant; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the breach caused an injury to plaintiff. Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 349 (Tex.App.–San Antonio 2007). The City contends that there is no evidence on any one of these four elements. See Defendant City of San Antonio’s No Evidence and Traditional Motions for Summary Judgment (hereinafter “COSA MSJ”) 7-9. Each of these

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contentions is wrong. Moreover, the City’s contentions as to the last three of the four elements of Plaintiffs’ breach of contract claim are simple repetitions of the City’s claim that the Agreement should not be interpreted to cover the Group’s solicitation of the 803 N. Cherry property. 3.

The summary judgment evidence includes more than a scintilla of proof on the challenged elements of Plaintiff’s Breach of contract claim.

The summary judgment evidence includes more than a scintilla of proof that a valid contract exists between Plaintiff and Defendant. Plaintiff’s breach of contract claim is based on the written Memorandum of Understanding,

formally signed by each party, which was attached to Plaintiffs’ Original and Amended Petitions, was produced by both parties during discovery, is attached to the City’s Motion, and is attached hereto as Exhibit F. This document begins as follows: This agreement is entered into this day of June 2002, by and between the city of San Antonio, represented by the Planning Department and the Hays Street Bridge Restoration Group, hereinafter referred to as "the Restoration Group" (emphasis added) This document is itself more than a scintilla of evidence that a valid contract exists between the parties. The City makes two points in support of its contention that there is no evidence of a valid contract between the parties. First, the City urges: “the MOU is not a valid, enforceable contract – it is a memorandum of understanding,” COSA MSJ at 7, as if the phrase “memorandum of understanding” somehow precludes the possibility of a valid contract. The City does not cite any case or other legal authority in support of this argument, and it is clearly wrong as a statement of law. See, e.g. In re Sterling Chemicals, Inc et al., 261 S.W.3d 805 (Tex. App.—Hous. 2008) (Memorandum of Understanding is a contract subject to the normal rules of contract interpretation); cf. Murphy v. Seabarge, Ltd., 868 S.W.2d 929, 933 (Tex. App.—Hous. 1994) (whether parties intended the Memorandum of Understanding to be a legally binding contract is an

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issue of fact that must be decided by the jury). In addition, Nina Nixon Mendez, the principal drafter of the Memorandum testified that both she and her supervisor wanted to be sure that it would be “legally binding.” See Exh. O The City’s second point challenging the existence of a valid contract is as follows: “To be enforceable, a contract must be based on consideration—a mutuality of obligation. In this case, there is no evidence of mutuality of obligation. There is no evidence of mutual consideration.” COSA MSJ at 8. This point is wrong for two reasons. First, the Memorandum itself, in “Article III. Responsibilities,” specifies the mutual obligations of the parties; this clearly is an exchange of consideration. See Copeland v. Alsobrook, 3 S.W.3d 598 (Tex.App.–San Antonio 1999) (“A promise for a promise is sufficient consideration in Texas.”). Second, under Texas law, the existence of a written contract triggers a presumption that consideration for the agreement exists, Blockbuster, Inc. v. C–SPAN Entertainment, Inc., 276 S.W.3d 482, 488; (Tex. App.–2008), and the burden of proof for lack of consideration shifts to the Defendant. Id. at 488 (citing Doncaster v. Hernaiz, 161 S.W.3d 594, 603–04 (Tex.App.–San Antonio 2005). Kaye/Bassman International Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 814 (Tex. App. –Dallas 2010) (“Lack of consideration is an affirmative defense.”). In this case, then, the City bears the burden of proof on the alleged lack of consideration and cannot be granted no-evidence summary judgment on that point. Retzlaff v. Mendieta-Morales, 2011 WL 4585340 (Tex.App. –El.Paso 2011); Porter v. Southwestern Christian College, __ S.W.3d __, 2014 WL 1407823 at p 3 (Tex. App.– Dallas, April 7, 2014) (citing Thomas v. Omar Invs., Inc., 129 S.W.3d 290, 293 (Tex.App.–Dallas 2004) (“A party should not move for no-evidence summary judgment based on an affirmative defense that it has the burden to prove at trial.”).

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The summary judgment evidence includes more than a scintilla of proof that Plaintiff has performed or tendered performance, that the Defendant breached the contract, and that Defendant’s breach caused injury to Plaintiff. The following summary judgment evidence provides more than a scintilla of evidence that

the Hays St. Group has performed under the Memorandum Agreement: (1) The Hays St. Bridge Group held fundraising events, met with individual and corporate donors, and worked on grant applications for the past 15 years. See Exhs. A, B, E. (2) The Hays St. Bridge Group raised $194,210.54 in cash for the Hays St. Bridge Project. See Exhs. E, J. (3) The Hays St. Bridge Group solicited in-kind donations of many hours of professional services. See Exh. E. (4) The Hays St. Bridge Group, in cooperation with the City, solicited the donation of the Bridge and land from Union Pacific Railroad valued at approximately $369,398. See Exh. E. (5) The Hays St. Bridge Group solicited the donation of land from BudCo valued at approximately $256,180. See Exh E, ¶ 26. The following summary judgment evidence provides more than a scintilla of evidence that the Defendant City of San Antonio breached its obligations under the Memorandum Agreement: The City Staff recommended and the City Council approved a plan to transfer the land at 803 N. Cherry to the Alamo Beer Company for private use. See Exhs. A, B, E, L The following summary judgment evidence provides more than a scintilla of evidence that the City’s breach of the Memorandum Agreement has caused injury to the Plaintiff: (1) The City’s breach deprived the Group of a significant portion of the benefit that induced it to enter the Memorandum Agreement, and the City diverted a significant asset that the Group had solicited for the Hays St. Bridge Restoration Project away from the Project to a private use. See Exhs. A, B, E, F. These are the “direct damage” cause by the City’s breach. In addition, the City’s breach has caused the consequential damages of diminishing the Group’s reputation and credibility within the

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community and among potential donors and supporters, injuring its future fundraising ability, and impairing its ability to fulfill the mission for which it was created. See Exhs. A, B B. Defendant’s Traditional Motion for Summary Judgment on Plaintiff’s Breach of Contract Claim Must be Denied 1.

Standards and Burdens of Proof for Traditional Summary Judgment A traditional summary judgment under Rule of Civil Procedure 166a(c) is properly granted

only when the movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-216 (Tex. 2003). A Defendant’s motion for summary judgment may be granted only if the movant conclusively negates at least one element of each of the plaintiff's claims or establishes each element of an affirmative defense. Hahn v. Love, 321 S.W.3d 517, 523 (Tex. App.–2009) (citing Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997)). In order to negate an element of plaintiff’s claim or to conclusively establish an affirmative defense, the movant must identify factual evidence that establishes, on its face, that movant is entitled to judgment as a matter of law. See Broussard v. Moon, 431 S.W.2d 534, 536–37 (Tex. 1968).

A party submitting summary judgment evidence “must specifically identify the

supporting proof on file that it seeks to have considered by the trial court.” Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex.App.-San Antonio 2006). If the movant satisfies this burden of proof, the burden then shifts to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. State v. Ninety Thousand Two Hundred Thirty–Five Dollars and No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013).

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In deciding whether there is a disputed issue of material fact which precludes traditional summary judgment, every doubt must be resolved in favor of the non-movant, every reasonable inference must be indulged in favor of the non-movant, and evidence favorable to the non-movant must be taken as true. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, (Tex. 2004); Hailey v. Paduh, __ S.W. 3d __, 2014 WL 1871334 (Tex.App.–San Antonio May 07, 2014). 2.

The City’s Motion for Traditional Summary Judgment on the Breach of Contract Claim Must be Denied The City makes two points in support of its traditional motion for summary judgment on

the breach of contract claim. The City’s first point is that, as a matter of law, the Memorandum Agreement does not apply to the land that the Hays St. Bridge Group solicited from BudCo. As mentioned above, the City asserts that the scope or application of the Memorandum Agreement cannot be determined in the writing itself, but must instead be found in a separate set of documents connected to an agreement between the City and the Texas Department of Transportation, which was made after the Memorandum Agreement, to which the Hays St. Group was not a party, and involving documents the Group has never seen. COSA MSJ at 9. See e.g. COSA MSJ Exh. C-1, C-2.

Local Transportation Project Agreement (incorporating provisions of a “Master

Agreement” between the City and the State). With this argument, the City itself identifies an issue of fact that precludes summary judgment. Second, the City asserts, without any citation of authority, that “Plaintiffs cannot sue the City for specific performance as such claims are barred by the doctrine of sovereign immunity.” However, this Court has already considered and rejected the City’s defense of sovereign immunity, which was raised by the City’s Plea to the Jurisdiction.

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There is a Genuinely Disputed Issue of Fact Regarding the Relevant Circumstances Surrounding the Making of the Memorandum and the Scope of its Coverage. When interpreting a contract, the Court must look at how a reasonable person would have

used and understood the language, viewed in light of the circumstances as they appeared to the parties at the time the contract was made and of the purposes the parties intended to accomplish by entering into the contract. Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462 (Tex. 2011). In addition, the Court must construe the contract “from a utilitarian standpoint bearing in mind the particular business activity sought to be served” and must “avoid when possible a construction that is unreasonable, inequitable, and oppressive.” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). Frost Nat. Bank v. L & F Distributors, Ltd., 165 S.W.3d 310 (Tex. 2005). Finally, Courts “need not embrace strained rules of interpretation which would avoid ambiguity at all costs.” Reilly v. Rangers Management, Inc., 727 S.W.2d at 530. Plaintiff believes that, under the standard rules of contract interpretation, the Memorandum Agreement must be interpreted to apply to all resources generated by the Hays St. Group for the Hays St. Bridge Project. Plaintiffs believe that the term “Hays St. Bridge Project” must be interpreted to mean the overall historic restoration and preservation project, as it was consistently used by project participants, including members of the City staff, prior to 2011. As the Court explained in Elliott v. Rockwood Village Partners, Ltd., __ S.W.3d __, 2012 WL 6554826 (Tex. App.-Austin 2012): No principle of interpretation of contracts is more firmly established than that great, if not controlling, weight should be given by the court to the interpretation placed upon a contract of uncertain meaning by the parties themselves. Courts rightfully assume that parties to a contract are in the best position to know what was intended by the language employed. Id. at 5 (quoting Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979)).

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Plaintiffs contend that this interpretation is the only reasonable interpretation of the Memorandum Agreement. In the alternative, if the Court determines that the City’s interpretation of the Memorandum Agreement is also reasonable, then the Court must find the Agreement to be ambiguous and may allow the City to introduce extrinsic evidence to determine the parties’ intent. In that case, moreover, the Court must deny the City’s Motions for Summary Judgment. Appleton v. Appleton, 76 S.W.3d 78, 84–85 (Tex.App.-Houston 2002) (“When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument is an issue for the trier of fact to decide.”) II. Regarding the Plaintiffs’ Claim under Texas Local Government Code § 253.001 A. Applicable Law 1.

Texas Local Government Code § 253.001 Section 253.001(b) of the Texas Local Government Code provides: (b) Land owned, held, or claimed as a public square or park may not be sold unless the issue of the sale is submitted to the qualified voters of the municipality at an election and is approved by a majority of the votes received at the election; provided, however, this provision shall not apply to the sale of land or right-of-way for drainage purposes to a district, county, or corporation acting on behalf of a county or district. Section 253.001(b) of the Texas Local Government Code provides: (f) The election requirements of Subsection (b) do not apply to a conveyance of a park if: (1) the park is owned by a home-rule municipality with a population of more than one million; (2) it is a park of two acres or less; (3) the park is no longer usable and functional as a park; (4) the proceeds of the sale will be used to acquire land for park purposes;

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(5) a public hearing on the proposed conveyance is held by the governing body of the home-rule municipality and that body finds that the property is no longer usable and functional as a park; and (6) the park is conveyed pursuant to an ordinance adopted by the governing body of the home-rule municipality, unless within 60 days from the date of the public hearing the governing body of the home-rule municipality is presented with a petition opposing the conveyance which contains the name, address, and date of signature of no less than 1,500 registered voters residing within the municipal limits of the municipality; then, the governing body of the home-rule municipality shall either deny the conveyance or shall approve the conveyance subject to the election required in Subsection (b); There is little guidance on the meaning of the phrase “land owned, held, or claimed as a public square or park.” Plaintiffs are not aware of any reported judicial decision that addresses the precise question. Applying normal rules of legislative interpretation, including existing law, First National Bank of Kerrville v. Estate of Rubelle Hackworth, 673 S.W.2d 218 (Tex. App.-San Antonio 1984), there can be little doubt, however, that it includes land that is donated to a governmental entity with a dedication for use as a park. In addition, it should include land that the owner designates as a public park in circumstances in which members of the public rely upon that designation. Parisher v. Jim Wells County, 2008 WL 3926428 (Tex.App.-San Antonio). 2.

Standards and Burdens of Proof on Defendants Motions for Summary Judgment The standards and burdens of proof applicable to Defendant’s Motions are the same as

those discussion in Section I.A.1 above. B. Defendant’s No-Evidence and Traditional Motions for Summary Judgment on Plaintiff’s Claim for Violation of Section 253.001(b) Must be Denied. 1.

Defendant’s No-Evidence and Traditional Summary Judgment Arguments Defendant’s No-Evidence Motion asserts that there is no evidence to support the claim that

the land at 803 N. Cherry was “owned, held, or claimed as a public square or park.”

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Defendant’s Traditional Motion asserts that the summary judgment evidence conclusively establishes that the land at 803 N. Cherry was not “owned, held, or claimed as a public square or park.” In support, Defendant identifies the following evidence: (1) the deed conveying the land from Budco to the City contains the following language: If the Property is used by Grantee as a park, Grantee must name the park “The Berkley V. and Vincent M. Dawson Park" until December 31. 2027. This requirement does not entitle Grantor to a reverter or right of reentry. but Grantor may seek to enjoin a breach in a court of competent jurisdiction. See Exh. H. (2) Several excerpts from the Deposition of Xavier D. Urretia, which the City asserts is sufficient to establish that “at the time the land was acquired by the City, there was no funding to develop the property as a park and no intent to hold it as such.” COSA MSJ at 11. However, as discussed below, this evidence does not support the City’s assertion. (3) The same excerpts from the Deposition of Xavier D. Urretia, which the City asserts is sufficient to establish that “the property was never listed on the City’s register of park lands.” Id. 2.

Summary Judgment Evidence that 803 N. Cherry was “Owned, Held, or Claimed as a Public Square or Park Exceeds a Scintilla and Reveals a Genuine Issue of Fact

Summary judgment evidence that BudCo donated the land to the City with a dedication that it be used as a park connected to the Hays St. Bridge. It is not required that an express dedication be included in a deed, it can, instead, be

expressed orally or in some other writing. Broussard v. Jablecki, 792 S.W.2d 535 (Tex.App.– Hous. 1990). The existence of a dedication to public use is normally a question of fact that cannot be determined on summary judgment, Van Dam v. Lewis, 307 S.W.3d 336 (Tex.App.–San Antonio 2009). On numerous occasions, BudCo representatives expressed the intention that the donated land be used as a park connected to the Hays St. Bridge. See Exh. G. The fact that the Deed from BudCo includes the language quoted above does not negate the existence of a dedication for park use; Shiela McNeil, who was the District 2 City Councilperson

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at the time of the BudCo land donation, explains that the conditional language (“if…”) was inserted into the deed because at the time, Union Pacific still had not donated the Bridge, and thus there was some risk that the Hays St. Bridge Restoration would never happen. See Exh. C. This language was not intended to give the City the option to divert the Budco land from its intended use as a park. b.

Summary judgment evidence that the City designated the land as a public park in circumstances in which members of the public could reasonably rely upon that designation. In 2009, the Dignowity Master Plan designated the property at 803 N. Cherry as a park.

This designation was approved by the City Council on December 3, 2009. See Exh. J. From approximately 2004 through 2011, the Park was treated by City Staff and the Hays St. Bridge Group as an intregal part of the Hays St. Project. See Exhs. A, B, D, E. On August 1, 2012, Councilwoman Ivy Taylor publically acknowledged that the Park had been a part of the plans for the Hays St. Bridge Project for many years. See Exh. M REQUEST WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that this Court will deny Defendant' No-Evidence and Traditional Motions for Summary Judgment, and for such other and further relief that may be awarded at law or in equity.

Respectfully submitted,

Amy Kastely Attorney for Plaintiffs Texas Bar No. 24006638 233 Lotus Ave San Antonio, TX 78210 Tel. 210.216.3241 Fax. 210.431.3559

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Certificate of Service I certify that on June 10, 2014, a true and correct copy of Plaintiffs' Motion to Reset was served to each person listed below by the method indicated.

Amy Kastely

Deborah Klein Attorney for City of San Antonio By E-mail: Deborah.Klein@sanantonio.gov Date: June 10, 2014 Document was Electronically Served, and Electronic Transmission was Reported as Complete. Sean Fitzpatrick Attorney for Sheryl Sculley By E-mail: skf@fitzkoslaw.com Date: June 10, 2014 Document was Electronically Served, and Electronic Transmission was Reported as Complete.

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§ § § § IN THE DISTRICT COURT § § 288th JUDICIAL DISTRICT § § OF BEXAR COUNTY, TEXAS § § § § § §

ORDER DENYING DEFENDANT CITY OF SAN ANTONIO’S NO-EVIDENCE AND TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT On June 17, the Court considered the Defendant City of San Antonio’s No-Evidence and Traditional Motions For Summary Judgment, and the Response thereto, and after reviewing the evidence and hearing the arguments, the Court finds that the Motions should be DENIED. IT IS THEREFORE ORDERED that the Defendant City of San Antonio’s No-Evidence and Traditional Motions For Summary Judgment are denied and this cause shall proceed to trial. SIGNED on _________, 2014.

JUDGE PRESIDING APPROVED AS TO FORM:

Amy Kastely, Attorney for Plaintiffs

Deborah Klein, Attorney for City of San Antonio

Shawn Fitzpatrick, Attorney for Sheryl Sculley Page 23 of 23