Clarifying issues related to lawsuit

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Dear Editor,

I would appreciate a little clean-up work after the last “developer sues city” article, only because I think it fosters the wrong impression. The truth follows:

To correct the impression that Town Park Center has filed two lawsuits and both have been dismissed by the court, I offer to you the following information:

Town Park Center, LLC has filed three previous lawsuits, the first of which was a summary judgment suit requiring the City to move forward with the funding of the frontage road, which resulted in the district judge issuing a ruling requiring the City to pay their share within 10 days of the date of the decision.

Since an agreement between the City and Town Park Center, LLC gave the exclusive right to the developer to determine whether or not the TxDOT bid was acceptable, the City had no right or authority to refuse to move forward with the project. As shown in the document called Road Improvement Agreement entered into on July 13, 2011, their decision in October of 2015 to stop the project would have been very costly to the developer, who by that time had invested $2 million in a 71-acre pasture with access to Rexville Road. See below for the language from the agreement.

Funding… “is conditioned upon developers determination, in its sole discretion, that the costs of the project is within acceptable limits.”

The next lawsuit filed by TPC was due to the City’s failure to cure a breach of contract issue for a provision in the contract allowing developer, in its sole discretion, to purchase detention capacity in the B&PW Regional Detention Facility. That suit was appealed by the City, claiming that the economic development agreement was not a contract for “goods and services” in spite of the fact that many services are provided by the City to the developer, and by the developer to the City. Although no immunity from the suit applies to a contract for “goods and services”, the City nonetheless appealed the suit.

To keep that suit from being delayed for a long period of time in the appellate process, TPC sought permission from the appeals court to dismiss the case and to file a replacement that included “ultra vires” acts by the mayor and city manager which allows no immunity from suit.

Both parties had knowledge they were operating outside of their legislative authority by obstructing the efforts of TPC to force the City to cure the contract breach. That suit was abated by the judge until the first suit was decided by the appeals court, so it sat in abeyance as inactive, until TPC chose to petition the judge to put it on the docket.

By the time the appeals court ruled, there was a pending change in city management and the existing mayor was term limiting out, so TPC began another round of attempts to reach some kind of agreement so we could move forward. The City told TPC that as long as we had a suit pending, they could not discuss any aspect of the project, so we dismissed the suit based on City staff assurances that once done, we could sit down and create a plan to settle our differences. As a result, we filed a notice of non-suit on June 14, 2018. In spite of several meetings, no agreement was ever reached, although TPC believes that if the settlement offer declined by city council would have been followed up with a counter-proposal, agreement could have in all likelihood been reached. You and the City know why we had to file the existing pending action. the statute of limitations doesn’t wait, and with no tolling agreement, communication once again stopped due to the suit.

Nothing is harder than negotiating alone. No suit has been dismissed by the court, as Lloyd Merrell’s statement would lead the casual reader to believe.

Mike Weber

Sealy

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