FILED

DALLAS COUNTY
2/1/2016 9:27:46 AM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-15-13993

CITY OF DALLAS,
Plaintiff and Counter-Defendant
VS.
DENNIS TOPLETZ, INDIVIDUALLY,
AS HEIR OF HAROLD TOPLETZ AND
DBA TOPLETZ INVESTMENTS, et al
Defendants and Counter-Plaintiffs

IN THE DISTRICT COURT

193RD JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS PLEA

TO THE JURISDICTION AND MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW DENNIS TOPLETZ (Dennis Topletz), Individually, as Heir of
Harold Topletz, and d/b/a Topletz Investments; CASEY TOPLETZ (Casey Topletz);
VICKIE TOPLETZ (Vickie Topletz); STEVEN TOPLETZ (Steven Topletz);
MONARCH DEVELOPMENT CORPORATION (Monarch); 2501 BETHURUM
AVE., DALLAS, TEXAS, in rem; 1231 IOWA AVE., DALLAS, TEXAS, in rem; 2603
MODREE AVE., DALLAS, TEXAS, in rem; 3803 OCTAVIA ST., DALLAS, TEXAS, in
rem; 1304 PENNSYLVANIA AVE., DALLAS, TEXAS, in rem; 2705 PENNSYLVANIA
AVE., DALLAS, TEXAS, in rem; and 1203 STRICKLAND ST., DALLAS, TEXAS, in
rem, Defendants, in the above-entitled and numbered cause and files this their
Supplemental Brief in Support of Defendants Plea to Jurisdiction and Motion to
Dismiss (the Motion) in response to Plaintiffs Original Petition (the Petition) filed
by the City of Dallas (the City or Plaintiff), and in response thereto would
SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS PLEA TO THE
JURISDICTION AND MOTION TO DISMISS - Page 1

respectfully show the Court as follows:

PROCEDURAL HISTORY
1.

On January 4, 2016, Defendants filed their:

(a)

Defendants Plea to Jurisdiction and Motion to Dismiss (the Motion);

(b)

Defendants Plea in Abatement (the Plea in Abatement), Special

Exceptions (the Special Exceptions), Original Answer (the Answer),
and Counterclaim (a) seeking an order from this Court abating this action
for the reasons set forth n the Plea in Abatement, (b) specially excepting to
the allegations of the City in its Petition and requiring the City to replead
their claims and causes of action to cure such pleading defects and
insufficiencies, and (c) answering and denying the allegations of the City
and asserting their affirmative defenses thereto.

2.

Such Special Exceptions, Answer, and Counterclaim have been filed

subject to the Courts rulings on the Dismissal Motion and the Plea in Abatement.
3.

This Supplemental Brief is filed in support of the Dismissal Motion.

ARGUMENTS AND AUTHORITIES
Chapter 64 of the Texas Civil Practice and Remedies Code
Provides No Basis for the Appointment of a Receiver

4.

Defendants would show that the request by the City for the appointment

of a receiver under Chapter 64 of the TEXAS CIVIL PRACTICE & REMEDIES CODE (the
TCPRC) for the reason that such statutory provisions do no apply to the claims
asserted by the City in its Petition.
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5.

More specifically, Defendants would show that the City does not meet the

requirements of 64.001(a) for the reason that it is not one of the types of parties that is
entitled to bring an action under Chapter 64.
6.

Section 64.001(a) provides that a court may appoint of a receiver over the

property of a third party only at the request of certain specified parties and in certain
specific instances::
Sec. 64.001. AVAILABILITY OF REMEDY. (a) A court of competent
jurisdiction may appoint a receiver:
(1) in an action by a vendor to vacate a fraudulent purchase of property;
(2) in an action by a creditor to subject any property or fund to his claim;
(3) in an action between partners or others jointly owning or interested in
any property or fund;
(4) in an action by a mortgagee for the foreclosure of the mortgage and
sale of the mortgaged property;
(5) for a corporation that is insolvent, is in imminent danger of
insolvency, has been dissolved, or has forfeited its corporate rights; or
(6) in any other case in which a receiver may be appointed under the rules
of equity.
7.

From the standpoint of who has the authority or entitlement to seek the

appointment of a receiver under Chapter 64, the statute is very clear. Only:
(a)

a vendor seeking to vacate a fraudulent purchase of property;

(b)

a creditor who is attempting to subject property to his claim;

(c)

a partner jointly owning or interested in any property or fund; or

(d)

a mortgagee for the foreclosure and sale mortgage property.

8.

Obviously, the City is clearly not a vendor, creditor, partner, or mortgagee

of the Defendants.
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City Has No Interest in the Properties and There is No Threat

of the Properties Being Lost, Removed, or Materially Injured
9.

In addition, under 64.001(a)(1), (2), and(3), even if the party seeking the

appointment of a receiver meets the requirement of being the correct type of party, the
Court may appoint a receiver only if the plaintiff:
(a)

Has a probable interest in or right to the property or fund, and

(b)

The property or fund must be in danger of being lost, removed, or

materially injured.

TEX. CIV. PRAC. & REM. CODE 64.001(b). See also Texas Consolidated Oils v. Hartwell, 240
S.W2d 324, 327 (Tex. App. - Dallas 1951, no writ) (requiring threat that debtor will place
property beyond reach of creditors.); Greenland v. Pryor, 360 S.W.2d 423, 425 (T'ex. App.
- San Antonio 1962, no writ) (Reversing receivership order because applicant failed to
prove both danger of loss and that property was probably insufficient to discha1ge
debt.).
10.

Defendants would show that the City has alleged no facts in its Petition,

nor do the Defendants believe any exist, to support that the City has any probable
interest in or to the Defendant Properties or the Topletz Properties.
11.

Further, with the fact that the subjects of the Citys claims are house and

real estate, i.e., the Defendant Properties and the Topletz Properties, there is no danger
that or threat that such houses will be lost, removed, or materially injured.
No Basis Exists in Equity for Appointment of Receiver to Enforce
Chapter 54 of the Tex. Local Govt. Code or Chapter 27 of the Dallas City Code
12.

Finally, Defendants would show that there is no basis under 64.001(a)(6)

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for the appointment of a receiver.

13.

Under the rules of equity, the primary purpose for the appointment of a

receiver was to preserve the property or fund that was the subject of the pending
lawsuit pending its final conclusion or judgment.
14.

Even the United States Supreme Court has recognized that the summary

remedy by receivership, with the attendant burdensome expense, should be resorted to

only on a plain showing of some threatened loss or injury to the property, which the
receivership would avoid. Gordon v. Washington, 295 U.S. 30, 39 (1935) (Emphasis
added).
15.

As such, in the absence of some allegations that there exists the type of

imminent threat and loss or injury to the Defendant Properties or Topletz Properties
that would justify the drastic and harsh remedy of the appointment of a receiver, there
is no basis for the Court to utilize the rules of equity as a basis for granting the Citys
requests.
16.

Further, since the entire basis for the Citys requests for the appointment

of a recover centers around the alleged violations of specific statutory provisions, i.e.,
Chapter 54 and Section 213.003(b)(1) of the TEXAS LOCAL GOVERNMENT CODE, as
opposed to the rules of equity, it is apparent that the City is not entitled to the
appointment of a receiver under 64.001(a)(6).
CONCLUSION
30.

Based on the above and foregoing arguments and authorities, Defendants

hereby request that the Court grant this Plea and dismiss this action for lack of
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jurisdiction.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that
the Court set this matter down for hearing prior to any further proceeding herein, and
upon final hearing hereof, the Court enter its order dismissing this action for lack of
jurisdiction, and granting to Defendants such other and further relief, at law or in
equity, to which they may show themselves justly entitled.
Respectfully submitted,
KAPLAN & MOON, PLLC
3102 Maple Ave., Suite 200
Dallas, Texas 75201
Telephone: (214) 522-4900
Telefax: (800) 930-7112
Email: jpmpllc@gmail.com
By:

/s/James P. Moon
JAMES P. MOON
State Bar No. 14316300

ATTORNEYS FOR DEFENDANTS DENNIS

TOPLETZ;
CASEY
TOPLEZ;
VICKIE
TOPLETZ; STEVEN TOPLETZ; MONARCH
DEVELOPMENT CORPORATION; 2501
BETHURUM AVE., DALLAS, TEXAS, in rem;
1231 IOWA AVE., DALLAS, TEXAS, in rem;
2603 MODREE AVE., DALLAS, TEXAS, in
rem; 3803 OCTAVIA ST., DALLAS, TEXAS,
in rem; 1304 PENNSYLVANIA AVE.,
DALLAS,
TEXAS,
in
rem;
2705
PENNSYLVANIA AVE., DALLAS, TEXAS, in
rem; and 1203 STRICKLAND ST., DALLAS,
TEXAS, in rem

SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS PLEA TO THE

JURISDICTION AND MOTION TO DISMISS - Page 6

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Supplemental Brief was
served on counsel of record for Plaintiff, Melissa Miles, and Anna Welch, Dallas City
Attorneys Office, 1500 Marilla St., Dallas, #7DN, Texas 76165, by E-Filing Service,
electronic mail, telefax, overnight delivery, and/or United States mail, postage prepaid,
on this the 1st day of February, 2016.
/s/ James P. Moon
JAMES P. MOON

SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS PLEA TO THE

JURISDICTION AND MOTION TO DISMISS - Page 7