City of New Braunfels, Gale Pospisil, Robert Camereno, Tom Wilber and Mary Quinones v. Garrison Maurer, D/B/A Comal Towing Jeramie Hernandez, D/B/A JJ Towing And Robert Fleming, D/B/A Pro Care Wrecker Service

ACCEPTED
03-14-00129-CV
5427072
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/27/2015 9:40:05 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00129-CV

***
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
THIRD COURT OF APPEALS DISTRICT 5/27/2015 9:40:05 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk

***

CITY OF NEW BRAUNFELS, TEXAS; GALE POSPISIL, ROBERT CAMARENO,
TOM WIBERT and MARY QUINONES
Appellants,

V.

GARRISON MAURER, d/b/a COMAL TOWING;
JERAMIE HERNANDEZ d/b/a JJ TOWING and
ROBERT FLEMING, d/b/a PRO CARE WRECKER SERVICE
Appellees,

APPELLANTS’ OPPOSED MOTION TO DISMISS ENTIRE CASE AS MOOT

LAW OFFICES OF RYAN HENRY, PLLC
Ryan S. Henry
State Bar No. 24007347
1380 Pantheon Way, Suite 215
San Antonio, Texas 78232
210-257-6357 (Telephone)
210-569-6494 (Facsimile)
Ryan.henry@rshlawfirm.com
ATTORNEY FOR APPELLANTS

1
 CERTIFICATE OF CONFERENCE

I certify that I attempted to confer with counsel for Co-Defendants in this case and
have been unsuccessful in doing so. The Co-Defendants are not part of this appeal, but
since the motion is to dismiss the entire case as to the City Defendants and not just the
appeal, I attempted to confer with them as well. I also certify that I conferred with
Plaintiffs’/Appellees’ attorney of record in this appeal via telephone. He advised he could
not say whether he was opposed or unopposed at this time, even after providing him a
copy of the proposed motion. As a result, the City assumes he is opposed to this motion
to dismiss the entire case as moot.

CERTIFICIATE OF SERVICE

I certify that a true copy of this document has been sent by regular U.S. Mail unless
otherwise indicated, to the person(s) listed below on the 26th day of May, 2015.

Mr. Daniel P. McCarthy Fax No. (210) 979-8734
MCCARTHY LAW FIRM P.C. and to dan@mccarthy-law.com
10001 Reunion Place, Suite 640
San Antonio, Texas 78216
Attorney for Plaintiffs

Mr. Samuel V Houston, III Fax No. (210) 826-0075
Houston Dunn, PLLC and to sam@hdappeals.com
4040 Broadway, Suite 440
San Antonio, Texas 78209
Attorney for Plaintiffs

Mr. Ricardo H. “Richard” Silvas Fax No. (210) 236-5420
4538 Centerview Suite 240 and to richard@rsilvas.com
San Antonio, Texas 78228
Attorney for Defendant New Braunfels Wrecker Service, LLC
Joe Medillin d/b/a New Braunfels Towing Company

Mr. Troy D. Burch, Jr. Fax No. (830) 629-0953
BURCH LAW FIRM and to tburch@burchfirm.com
328 S. Seguin Ave.
New Braunfels, Texas 78130
Attorney for Hill Country Custom Towing

2
Mr. David G. Pfueffer Fax No. (830) 629-2161
BRAZLE AND PFUEFFER LLP and to dpfeuffer@nblawyers.net
170 E. San Antonio Street
New Braunfels, Texas 78130
Attorney for Kahlig Enterprises, Inc. d/b/a Bluebonnet
Collision Service a/k/a Bluebonnet Motors

/s/____________________________
RYAN S. HENRY

3
MAY IT PLEASE THE COURT:

NOW COMES Appellants/Defendants City of New Braunfels, Gale Pospisil,

Robert Camareno, Tom Wibert and Mary Quinones (“City Defendants”) and files

this opposed motion to dismiss this case as moot, and would respectfully show the

Court the following:

Summary

The crux of this case turns on four separate towing contracts awarded to four

separate towing companies who were placed on a non-consent tow list created from

RFP #13-001. C.R. 10. The contracts in question expired on December 31, 2014 by

their own terms. C.R. 32. A new ordinance, No. 2015-04, took effect on May 1, 2015

which dispenses with the system utilized by the City in awarding the four prior

contracts and adding anyone to the list. Please find attached as Exhibit A, a certified

copy of Ordinance No. 2015-04.

With a new regulatory process beginning which does not use contracts and

the contracts which made the basis of this suit no longer being in place, this case has

become moot. Appellants hereby move to dismiss the entire case as moot.

Factual Recap & Arguments

Relief Requested is Prospective Only

It is important to note that Maurer and the other Plaintiffs are not seeking

damages for being left off the list and expressly stated they are not suing to force the

4
City to place them on the list. C.R. 235, para. 8. They state “Plaintiffs seek

prospective injunctive and declaratory relief that would prohibit the City from

continuing to operate under the contracts it awarded under the RFP. ….Plaintiffs

have intentionally not plead for monetary damages, such as lost profits or loss of

business opportunity, because it would invoke sovereign immunity.” C.R. 244 para.

21. “Plaintiffs' seeks this Court to declare void the actions taken by The City of New

Braunfels through its city council at the city council meeting on December 10, 2012

in the awarding the contracts to the Defendants…” C.R. 244 para. 22.

The towing contracts and the list expired by their own terms on December 31st

of 2014. C.R. 32. The Plaintiffs are seeking prospective relief only to prevent the

City from utilizing the non-consent tow call list (which no longer exists). C.R. 14-

16. They seek to hold the list void ab initio. C.R. 16. They bring suit against the City

individuals for ultra-vires claims, which can only be prospective in nature under City

of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009). C.R. 9, 50-51. As a result,

all of the relief sought is to prevent and control future action, not for anything

allegedly lost in the past. The future action is now dictated by the ordinance which

moots their claims for allegedly not following competitive bidding requirements.

The ordinance was not enacted until after the contract and list expired by their own

terms.

5
 Mootness Generally

As the court is well aware, the mootness doctrine prevents courts from

rendering advisory opinions, which are outside the jurisdiction conferred by Article

II, Section 1 of the Texas Constitution. See Valley Baptist Med. Ctr. v. Gonzalez, 33

S.W.3d 821, 822 (Tex. 2000). A controversy must exist between the parties at every

stage of the legal proceeding, including the appeal. Bd. of Adjustment of City of San

Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002) (Emphasis added).

An issue may become moot when a party seeks a ruling on some matter that,

when rendered, would not have any practical legal effect on a then-existing

controversy. See In re H & R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex.

App.--Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v.

Ramos, 235 S.W.3d 462, 469 (Tex. App.--Dallas 2007, no pet.). When an appeal is

moot, a court must set aside the judgment and dismiss the cause in its entirety. City

of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex. App.--Fort Worth

2001, no pet.).

An appellate court is prohibited from deciding a moot controversy. See Nat'l

Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex.1999). This prohibition is

rooted in the separation of powers doctrine in the Texas and United States

Constitutions that prohibits courts from rendering advisory opinions. See Nat'l

6
Collegiate, 1 S.W.3d at 86; see also Trulock v. City of Duncanville, 277 S.W.3d 920,

923-24 (Tex. App.—Dallas 2009, no pet.).

Contracts are Moot

When a contract expires and is no longer in effect or when it has been

superseded by an amended contract, a dispute on the contract becomes moot. Hutto

Citizens Group v. County of Williamson & Waste Mgmt. of Tex., 2009 Tex. App.

LEXIS 5690,2009 WL 2195582 (Tex. App. -- Austin, July 23, 2009); Meeker v.

Tarrant County College Dist., 317 S.W.3d 754, 760, (Tex. App. -- Fort Worth 2010);

See, e.g., Day v. First City Nat'l Bank of Houston, 654 S.W.2d 794, 795 (Tex. App.-

-Houston [14th Dist.] 1983, no writ) (stating that a case is moot when the actions

sought to be enjoined have been fully performed). A suit to enjoin the performance

of a contract becomes moot after the contract has been fully performed. See Hulett

v. West Lamar Rural High Sch. Dist., 232 S.W.2d 669, 670 (Tex. 1950). When a

request for injunctive relief becomes moot because the action sought to be enjoined

has been accomplished, a request for declaratory relief also becomes moot. Speer v.

Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993);

Labrado v. County of El Paso, 132 S.W.3d 581, 589 (Tex. App. -- El Paso 2004).

All of the contracts at issue have expired by their own terms and are no longer in

effect. As a result, the claims are moot.

7
 List is Moot as New Ordinance was passed

A chapter of the City’s original ordinance (Chapter 138, Article V, Section

138-122) was repealed prior to the creation of the complained of non-consent tow

list. C.R. 119. It utilized a specific rotation system for placement on the list. No

ordinance regulation was therefore in effect at the time of RFP 13-001, which sought

to utilize a contract agreement to control non-consent tows. The City sent out the

RFP, received responses, reconsidered whether it wanted to use a single-source tow

company, and awarded four contracts instead of one. C.R. 122. However, after the

expiration of the four contracts under the list, the City enacted a completely new

ordinance, No. 2015-04. Ex. A.

A significant alteration in the law on a subject can render a controversy moot.

Trulock v. City of Duncanville, 277 S.W.3d 920, 927 (Tex. App.—Dallas 2009, no

pet.)(Citing Ne. Fla. Chapter of Associated Contractors, 508 U.S. at 662 n. 3, 113

S. Ct. 2297) (ordinance must be significantly altered or case not moot on appeal).

When the actions made the basis of this lawsuit occurred, no regulation was in effect.

The City could create and assign whoever it wished to the non-consent list but chose

to use an RFP process. However, the contracts entered into at the end of this process

expired by their own terms. Then, effective May 1, 2015, a completely new

regulation applied, thereby changing the regulatory landscape again and the method

under which non-consent tows are awarded.
8
 As a result, Plaintiffs’ claims for relief have become moot. They sought to

enjoin the enforcement and execution of the four contracts awarded to competitors,

which have now expired under their own terms. They sought to enjoin the use of the

awarded list, which has expired and is now superseded by the new ordinance. They

sought to require compliance with competitive bidding laws they felt applied,

however the ordinance no longer utilizes a competitive bidding element. The

legislative findings expressly state the City wishes to abandon a contract system for

incident management tows and reinstate a rotation list system. Ex. A, p. 2.

Ordinance 2015-04 states that the rotation list shall be created on an annual

basis, starting on May 1st of each year. Ex. A, Sec. 138-132 p. 11. Applications from

tow truck operators shall only be accepted within a defined time period each year

and shall be submitted to the Chief of Police. Ex. A, Sec. 138-132(b)-(c). Any tow-

truck operator who qualifies under the regulation requirements “will be placed on

the rotation list system for one year, subject to their rotation assignment which will

be determined by the Police Department.” Ex. A, Sec. 138-132(e). All qualifying

operators “shall be placed on the rotation list.” Ex. A, Sec. 138-133(a). A lottery will

be held if an odd number of operators are on the list to determine who gets an extra

rotation. Ex. A, Sec. 138-133(b). It is up to Plaintiffs to qualify for the list by

ensuring compliance with all regulation requirements. However, if they qualify, they

are placed on the list with everyone else and are not subject to the same types of

9
actions complained of in the lawsuit. As a result, the claims are moot. No relief can

be awarded which will dispel a current controversy.

It is important to note that the mootness is not caused purely because a new

ordinance was passed. The ordinance was not passed and did not become effective

until after the contracts made the basis of this suit expired by their own terms. The

expiration of the contracts alone qualifies as mooting the case. However, in addition

to that, the enactment of the ordinance also mooted the case independently of the

mootness caused by the expiration of the contracts. Either basis, standing alone, is

proper to moot the claims. Both standing together creates a multitier mootness.

Texas Open Meetings Act Claims are also Moot

Plaintiffs bring suit under the Texas Open Meetings Act (“TOMA”)

attempting to hold the contracts and list void. C.R. at 129. Declaring a meeting-

agenda notice violated TOMA cannot have any practical legal effect on a currently-

existing controversy when it would only void contracts and a list that have

previously been superseded or expired. Meeker v. Tarrant County College Dist., 317

S.W.3d 754, 761 (Tex. App. -- Fort Worth 2010). An issue becomes moot when a

party seeks a ruling on some matter that, when rendered, would not have any

practical legal effect on a then-existing controversy. See In re H & R Block Fin.

Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.--Houston [14th Dist.] 2008, orig.

10
proceeding); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.--

Dallas 2007, no pet.). Stated another way, an issue is moot if it becomes impossible

for the court to grant effective relief. H&R Block Fin. Advisors, Inc., 262 S.W.3d

896, 900 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (Citing Williams v. Lara,

52 S.W.3d 171, 184 (Tex. 2001)).

Plaintiffs’ claims under TOMA are to void action which is no longer relevant.

Under the TOMA provision of the petition, the Plaintiffs state “Plaintiffs' seeks this

Court to declare void the actions taken by The City of New Braunfels through its

city council at the city council meeting on December 10, 2012 in the awarding the

contracts to the Defendants.” C.R. 129. That is the extent of the basis of their TOMA

claims. As noted above, the contracts expired by their own terms and the City is no

longer using contract based regulation for non-consent tows. Plaintiffs sought to

prevent selection of RFP awards behind “closed doors”, however the selection

process used now is that qualified applicants are placed on the list by the Police

Chief. It is the Chief who makes decisions (subject to the ordinance), but those

decisions also are not based on a competitive bid. The TOMA applies to the

governing body, not individual staff members. Tex. Gov’t Code §551.001(3)-(4)

(definition of governmental body and meeting) and §551.002 (the governmental

body must hold its meetings in public). No open meetings issues come into play

since there is no competitive bidding and the ordinance dictates who is on the list,

11
not an RFP award. As a result, the new ordinance moots the TOMA claims presented

by the Plaintiffs.

Prayer

Defendants City of New Braunfels, Gale Pospisil, Robert Camareno, Tom

Wibert and Mary Quinones prays that this court grant their motion to dismiss this

entire case as moot and Plaintiffs take nothing from this cause of action. Defendants

pray this court dismiss all of Plaintiffs’ claims against all the City Defendants with

prejudice. This is not a motion to dismiss merely the appeal, but a motion to dismiss

the entire case as moot. Should the court not consider the case moot, the Defendants

pray the court consider the arguments presented in their brief on the merits and retain

the appeal.

City Defendants seek dismissal of the entire case against them, costs should

be allocated to the party incurring same, and there is no need for an expedited

mandate. Defendants prays for such further relief, in law or in equity, it may show

themselves justly entitled to.

12
SIGNED this 26th day of May, 2015.

Respectfully submitted,

LAW OFFICES OF RYAN HENRY, PLLC
1380 Pantheon Way, Suite 215
San Antonio, Texas 78232
(210) 257-6357
(210) 569-6494 (Facsimile)
Ryan.Henry@RSHlawfirm.com

By: /s/
______________________________
RYAN S. HENRY
State Bar No. 24007347
COUNSEL FOR DEFENDANTS

13
 CERTIFICATION

I, Patrick 0. Aten, City Secretary for the City of New Braunfels, Texas, do
hereby certify that I am the custodian of the official records for the City of New
Braunfels, Texas, and that a true and correct copy of Ordinance Number 2015-4,
of the City of New Braunfels, Texas, is hereby attached herewith.
51
Dated this 1 day of May, 2015.

Patrick D. Aten
City Secretary
City of New Braunfels, Texas

EXHIBIT
A
 ORDINANCE NO. 2015- .