ACCEPTED
`05-19-00774-CV
`FIFTH COURT OF APPEALS
`DALLAS, TEXAS
`7/15/2019 6:12 PM
`LISA MATZ
`CLERK
`
`
`
`No. 05-19-00774-CV
`__________________________________________________________________
`
`IN THE COURT OF APPEALS
`FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
`AT DALLAS
`__________________________________________________________________
`
`In re RETURN LEE TO LEE PARK,
`WARREN JOHNSON, and KATHERINE GANN,
`
`
`
`Relators.
`__________________________________________________________________
`
`From the 14th District Court of Dallas County, Texas
`Cause No. DC-18-05460
`__________________________________________________________________
`
`RESPONSE TO PETITION FOR
`WRIT OF INJUNCTION AND APPENDIX
`__________________________________________________________________
`
`CHRISTOPHER J. CASO
`Interim City Attorney
`
`-PATRICIA M. DE LA GARZA
`Chief of Litigation
`
`JAMES B. PINSON
`Chief of Appellate Section
`
`NICHOLAS D. PALMER
`Deputy Chief of Appellate Section
`
`
`CHARLES S. ESTEE
`State Bar No. 06673600
`charles.estee@dallascityhall.com
`Assistant City Attorney
`
`City Attorney’s Office
`1500 Marilla Street, Room 7DN
`Dallas, Texas 75201
`
`
`
`ATTORNEYS FOR RESPONDENTS
`
`
`Telephone: 214-670-3519
`Telecopier: 214-670-0622
`
` FILED IN
`
`5th COURT OF APPEALS
`
` DALLAS, TEXAS
`
`7/15/2019 6:12:48 PM
`
` LISA MATZ
`
` Clerk
`
`

`

`LIST OF PARTIES AND COUNSEL
`
`Pursuant to Texas Rules of Appellate Procedure 7.2(a) and 52.4(a),
`
`Respondents hereby amend and supplement Relators’ Identity of Parties and
`
`Counsel with the following information:
`
`Respondents:
`
`Eric Johnson is substituted for Mike Rawlings.
`
`Chad West is substituted for Scott Griggs.
`
`Carolyn King Arnold is substituted for Dwaine R. Caraway.
`
`Jaime Resendez is substituted for Rickey D. Callahan.
`
`Adam Bazaldua is substituted for Kevin Felder.
`
`Paula Blackmon is substituted for Mark Clayton.
`
`Cara Mendelsohn is substituted for Sandy Greyson.
`
`David Blewett is substituted for Philip T. Kingston.
`
`Respondents’ Additional Counsel:
`
`James B. Pinson (appellate)
`Texas Bar No. 16017700
`james.pinson@dallascityhall.com
`
`Nicholas D. Palmer (appellate)
`Texas Bar No. 16017700
`nicholas.palmer@dallascityhall.com
`
`Office of the Dallas City Attorney
`1500 Marilla Street, Room 7DN
`Dallas, Texas 75201
`214-670-3519 / fax 214-670-0622
`
`ii
`
`
`
`

`

`TABLE OF CONTENTS
`
`LIST OF PARTIES AND COUNSEL ...................................................................... ii
`
`INDEX OF AUTHORITIES ...................................................................................... v
`
`RECORD REFERENCES ....................................................................................... vi
`
`RESPONSE TO ISSUE PRESENTED .................................................................. vii
`
`1.
`
`2.
`
`The request for injunctive relief regarding the Lee statue is moot
`because the sale of the Lee statue is complete and possession has
`already been transferred.
`
`Injunctive relief is not necessary to protect the Court’s appellate
`jurisdiction
`regarding
`the Confederate Monument, because
`Respondents are not threatening to sell or destroy the monument or
`otherwise moot the appeal.
`
`STATEMENT OF FACTS ........................................................................................ 2
`
`ARGUMENT ............................................................................................................. 3
`
`I.
`
`The only proper purpose of a writ of injunction is to preserve this
`Court’s appellate jurisdiction. .......................................................................... 3
`
`II.
`
`Relators’ claims regarding the sale of the Lee statue are moot. ...................... 4
`
`III. Respondents are not threatening to sell or destroy the Confederate
`Monument or otherwise moot the appeal regarding the monument. ............... 6
`
`IV.
`
`In the alternative, a bond should be required. ................................................. 7
`
`CONCLUSION .......................................................................................................... 8
`
`PRAYER .................................................................................................................... 8
`
`CERTIFICATION ...................................................................................................10
`
`CERTIFICATE OF COMPLIANCE .......................................................................10
`
`CERTIFICATE OF SERVICE ................................................................................10
`
`iii
`
`

`

`APPENDIX
`
`Order entered July 1, 2019 ................................................................................. Tab 1
`
`Purchase Agreement and Bill of Sale (SOPR Tab 2) ........................................ Tab 2
`
`Contract for Services (SOPR Tab 3) .................................................................. Tab 3
`
`Supplemental Plea, Carter v. City of Dallas (SOPR Tab 4) .............................. Tab 4
`
`Affidavit of Lynn Rushton (SOPR Tab 5) ......................................................... Tab 5
`
`
`
`
`
`iv
`
`

`

`INDEX OF AUTHORITIES
`
`CASES
`
`Carter v. City of Dallas,
`No. DC-19-07054 (14th Dist. Ct., Dallas County, Tex.) ................................ 5
`
`City of El Paso v. Waterblasting Techs., Inc.,
`491 S.W.3d 890 (Tex. App.—El Paso 2016, no pet.) ..................................... 4
`
`Dallas Morning News v. Fifth Court of Appeals,
`842 S.W.2d 655 (Tex. 1992) (orig. proceeding) ............................................. 4
`
`EMW Mfg. Co. v. Lemons,
`724 S.W.2d 425 (Tex. App.—Fort Worth 1987, orig. proceeding) ................ 3
`
`In re Carter,
`No. 05-19-00691-CV, 2019 WL 2482626 (Tex. App.—Dallas June
`14, 2019, orig. proceeding) (mem. op.) ........................................................... 5
`
`In re Shields,
`190 S.W.3d 717 (Tex. App.—Dallas 2005, orig. proceeding) ....................4, 6
`
`Johnson v. Rawlings,
`No. 3:19-CV-180-C (N.D. Tex.) ..................................................................... 3
`
`Madison v. Martinez,
`42 S.W.2d 84 (Tex. Civ. App.—Dallas 1931, writ ref’d) ...........................4, 6
`
`Ott v. Bell,
`606 S.W.2d 955 (Tex. Civ. App.—Waco 1980, no writ) ................................ 4
`
`Powell v. McCormack,
`395 U.S. 486 (1969)......................................................................................... 4
`
`v
`
`

`

`RECORD REFERENCES
`
`
`
`Respondents will use the following forms to refer to the Supplemental
`
`Original Proceeding Record:
`
`• 1SOPR means Supplemental Original Proceeding Record Tab 1.
`
`• 2SOPR means Supplemental Original Proceeding Record Tab 2.
`
`• 3SOPR means Supplemental Original Proceeding Record Tab 3.
`
`• 4SOPR means Supplemental Original Proceeding Record Tab 4.
`
`• 5SOPR means Supplemental Original Proceeding Record Tab 5.
`
`
`
`
`
`vi
`
`

`

`RESPONSE TO ISSUE PRESENTED
`
`
`
`1.
`
`The request for injunctive relief regarding the Lee statue is moot
`
`because the sale of the Lee statue is complete and possession has already been
`
`transferred.
`
`
`
`2.
`
`Injunctive relief is not necessary to protect the Court’s appellate
`
`jurisdiction regarding the Confederate Monument, because Respondents are not
`
`threatening to sell or destroy the monument or otherwise moot the appeal.
`
`vii
`
`

`

`No. 05-19-00774-CV
`__________________________________________________________________
`
`IN THE COURT OF APPEALS
`FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
`AT DALLAS
`__________________________________________________________________
`
`In re RETURN LEE TO LEE PARK,
`WARREN JOHNSON, and KATHERINE GANN,
`
`
`
`Relators.
`__________________________________________________________________
`
`RESPONSE TO PETITION FOR WRIT OF INJUNCTION
`__________________________________________________________________
`
`TO THE HONORABLE COURT OF APPEALS:
`
`Pursuant to the Order entered July 1, 2019 (App. Tab 1), Respondents, the
`
`City of Dallas (“the City”) and Eric Johnson, Chad West, Adam Medrano, Casey
`
`Thomas II, Carolyn King Arnold, Jaime Resendez, Omar Narvaez, Adam Bazaldua,
`
`Tennell Atkins, Paula Blackmon, Adam McGough, Lee Kleinman, Cara
`
`Mendelsohn, Jennifer Staubach Gates, and David Blewett (collectively, the “Council
`
`Members”),1 file this response to the petition for writ of injunction of Relators,
`
`Return Lee to Lee Park, Warren Johnson, and Katherine Gann, to show that the
`
`petition is moot regarding the statue of Robert E. Lee because the sale of the Lee
`
`
`1 On June 17, 2019, a new City Council was inaugurated and eight new Council Members replaced
`previous members.
`
`1
`
`

`

`statue is complete and possession has already been transferred, and also to show that
`
`no injunctive relief is necessary to protect the Court’s appellate jurisdiction
`
`regarding the Confederate Monument, because Respondents are not threatening to
`
`sell the monument, but intend only to disassemble, remove, and archivally store the
`
`monument. The Court should deny the petition.
`
`STATEMENT OF FACTS
`
`Relators claim there has been a rushed effort to dispose of City-owned
`
`symbols of the Confederacy. It has been a nearly two-year process with over a dozen
`
`public meetings of the City Council and City committees, task forces, and
`
`commissions. (See 1SOPR 108-58, 475-504, 887-914.) Relator Warren Johnson
`
`has brought two unsuccessful lawsuits trying to force the City to continue displaying
`
`City-owned statues honoring the Confederacy at City-owned parks.
`
`After the events in Charlottesville, Virginia, in the summer of 2017, at a public
`
`noticed meeting, the Dallas City Council voted on September 6, 2017, to remove a
`
`statue of Robert E. Lee located in Oak Lawn Park. (1SOPR 116-18.)2 On September
`
`14, 2017, the Lee statue was removed and placed in storage. (Id. at 504.) Relators
`
`filed this lawsuit six months later. (Id. at 17.) Meanwhile, the City held a series of
`
`
`2 On that day, a different group of plaintiffs filed suit in federal court to prevent the removal of the
`Lee statue and other Confederate symbols. The case was subsequently dismissed, the court
`holding plaintiffs lacked common law standing and taxpayer standing. Patterson v. Rawlings, 287
`F. Supp. 3d 632 (N.D. Tex. 2018).
`
`2
`
`

`

`public meetings to consider what to do with the Lee statue and other Confederate
`
`symbols including the Confederate Monument located in Pioneer Cemetery Park.
`
`(Id. at 494-501.) Warren Johnson spoke at one or more of these meetings. (Id. at
`
`912.) Final judgment was entered in this case on April 3, 2019.3 (Id. at 917.) The
`
`trial court granted the City’s and Council Members’ plea to the jurisdiction and, in
`
`the alternative, their summary judgment motion. (Id. at 362-63.)
`
`ARGUMENT
`
`I.
`
`The only proper purpose of a writ of injunction is to preserve this Court’s
`appellate jurisdiction.
`
`Relators assert that an injunction is necessary both to preserve the status quo
`
`and to preserve the Court’s jurisdiction. However, an appellate court does not have
`
`the power to issue a temporary injunction “merely to preserve the status quo pending
`
`appeal” or “to prevent damage to an appellant,” and “the power to grant a temporary
`
`writ of injunction to prevent damages which would otherwise flow to a litigant who
`
`has an appeal pending rests exclusively with the district judge.” EMW Mfg. Co. v.
`
`Lemons, 724 S.W.2d 425, 426 (Tex. App.—Fort Worth 1987, orig. proceeding). An
`
`appellate court has no original jurisdiction to grant writs of injunction except to
`
`protect its jurisdiction over the subject matter of a pending appeal or to prevent an
`
`
`3 On January 24, 2019, Warren Johnson filed suit in federal court regarding City-owned
`Confederate symbols. Johnson v. Rawlings, No. 3:19-CV-180-C (N.D. Tex.). The case was
`dismissed with prejudice on May 24, 2019.
`
`3
`
`

`

`unlawful interference with the enforcement of its judgments and decrees. See Ott v.
`
`Bell, 606 S.W.2d 955, 957 (Tex. Civ. App.—Waco 1980, no writ). “A court of
`
`appeals may issue . . . a writ to prevent an appeal from becoming moot.” In re
`
`Shields, 190 S.W.3d 717, 719 (Tex. App.—Dallas 2005, orig. proceeding) (citing
`
`Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657 (Tex. 1992)
`
`(orig. proceeding); Madison v. Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas
`
`1931, writ ref’d)).
`
`The question before the Court in this original proceeding is whether the
`
`Court’s jurisdiction will be interfered with or destroyed in the absence of a writ of
`
`injunction pending resolution of Relators’ appeal. The answer is no, because
`
`Relators’ claims regarding the Lee statue are already moot and because Respondents
`
`are not threatening to sell or destroy the Confederate Monument.
`
`II. Relators’ claims regarding the sale of the Lee statue are moot.
`
`Mootness is a jurisdictional issue and occurs when the issues presented are no
`
`longer live. Powell v. McCormack, 395 U.S. 486, 496 (1969); City of El Paso v.
`
`Waterblasting Techs., Inc., 491 S.W.3d 890, 895-98 (Tex. App.—El Paso 2016, no
`
`pet.). Relators seek injunctive relief regarding the Lee statue “if the City of Dallas
`
`still has the Lee statue” (Pet. 5), but the statue has already been sold and delivered,
`
`mooting any controversy relating to that statue.
`
`4
`
`

`

`On May 22, 2019, at a public noticed meeting, the City Council authorized
`
`the sale of the Lee statue. (App. Tab 2, 2SOPR 13.) The City retained an auctioning
`
`service that placed the statue for sale by auction with bidding closing on June 5,
`
`2019. (Id. at 14-15.) The winning bid was in excess of $1.4 million. (Id. at 14.) On
`
`June 12, 2019, at a public noticed meeting, the City Council confirmed the sale. (Id.
`
`at 4-12.) The purchaser assumed the risk of loss on June 12, 2019 (App. Tab 2,
`
`2SOPR 8). In compliance with the terms of the purchase agreement, the purchaser
`
`took possession of the statue on or before June 30, 2019, and removed it to an
`
`unknown location outside of the DFW metroplex.4 (App. Tab 2, 2OPR 8; App. Tab
`
`5, 5OPR 1.) The Purchase Agreement and Bill of Sale has been completed and
`
`performed. (App. Tab 5, 5OPR 1.) A true and correct copy of the Purchase
`
`Agreement and Bill of Sale is contained in Tab 2 of the Supplemental Original
`
`Proceeding Record.
`
`There are no live issues regarding the sale of the Lee statue. Any claim
`
`regarding the sale is moot. For this reason, the Court should deny Relator’s petition
`
`as to the Lee statue.
`
`
`4 On May 17, 2019, the attorney who represents Relators in this matter filed suit against the City
`on behalf of a different set of plaintiffs. Carter v. City of Dallas, No. DC-19-07054 (14th Dist.
`Ct., Dallas County, Tex.). The lawsuit focused on the Confederate Monument. The district court
`denied the requests for temporary restraining order and temporary injunction. This Court has
`denied a request for mandamus relief brought by the same plaintiffs. In re Carter, No. 05-19-
`00691-CV, 2019 WL 2482626 (Tex. App.—Dallas June 14, 2019, orig. proceeding) (mem. op.).
`
`5
`
`

`

`III. Respondents are not threatening to sell or destroy the Confederate
`Monument or otherwise moot the appeal regarding the monument.
`
`To preserve appellate jurisdiction, a writ of injunction may issue to prevent
`
`the sale of property, In re Shields, 190 S.W.3d at 719, or the destruction of the subject
`
`matter of the appeal, Madison v. Martinez, 42 S.W.2d at 86. Relators seek injunctive
`
`relief “to protect the Confederate Monument” (Pet. 5), but Respondents are not
`
`threatening to sell or destroy the Confederate Monument. Respondents intend only
`
`to have the monument safely removed and archivally stored.
`
`The Confederate Monument was originally installed in Old City Park in 1896
`
`and was moved to Pioneer Plaza in 1961. (4SOPR *61, 115.) On February 13, 2019,
`
`at a public noticed meeting, the Dallas City Council voted to take all steps necessary
`
`to remove and transfer to storage the Confederate Monument and to procure a
`
`contract for its disassembly, removal, and transfer to storage. (1SOPR 904-06.) On
`
`June 25, 2019, the City executed a Contract for Services with Phoenix I Restoration
`
`and Construction, Ltd. (the “Contractor”) whereby the City will pay an amount not
`
`to exceed $480,000.00 for the Contractor’s services for the removal, relocation and
`
`archival storage of Confederate Monument. (App. Tab 3, 3SOPR 6, 16.) The
`
`Contractor has agreed to safely remove and relocate the monument as follows:
`
`The contractor will remove and relocate the Confederate Monument in
`an archival manner consistent with [American Institute of Conservation
`of Historic and Artistic Works] guidelines to a storage facility on City
`of Dallas property. With reassembly in mind, each piece will be
`documented, removed, and relocated in a manner that preserves the
`
`6
`
`

`

`integrity of the pieces and provides of [sic] the ability to reconstruct the
`monument.
`
`(Id. at 18.) A true and correct copy of the Contract for Services is contained in Tab 3
`
`of the Supplemental Original Proceeding Record.
`
`There is no need for injunctive relief to protect the Confederate Monument,
`
`because there is no threat to sell or destroy the monument or otherwise moot the
`
`appeal regarding the monument. It has already been moved once before. (App. Tab
`
`5, 5OPR at 1-2). Indeed, its continued presence risks further damage by vandalism.
`
`(App. Tab 5, 5OPR at 2). For this reason, the Court should deny Relator’s petition
`
`as to the Confederate Monument.
`
`IV.
`
`In the alternative, a bond should be required.
`
`Because the Lee statue is no longer in the City’s possession, no injunctive
`
`relief regarding that statue is possible.
`
`As for the Confederate Monument, the City has entered into a contract with a
`
`vendor for the removal at a cost of approximately $480,000. (App. Tab 3, 3SOPR 6.)
`
`A delay will result in increased costs while the Contractor waits for word on whether
`
`it may proceed with the work. The contract itself may become void if the delay is
`
`too long, resulting in the cost of another round of bidding and potential for increased
`
`cost of removal. The monument itself has become the target of graffiti and its
`
`continued presence requires more security. Any bond should be at least in the
`
`amount of $500,000. In addition, a bond should be required because of the lack of
`
`7
`
`

`

`any merit to Relators’ claims and the repeated rejection of the claims by multiple
`
`courts.
`
`CONCLUSION
`
`The issue of whether the City of Dallas can remove City-owned Confederate
`
`symbols from City property has been litigated and re-litigated. In Patterson, there
`
`was a request for a temporary restraining order, a temporary injunction, and a
`
`permanent injunction to prevent removal. Final judgment was entered against the
`
`claims. In Johnson v. Rawlings, there was a request for a preliminary injunction and
`
`a permanent injunction to prevent removal. Final judgment was entered against the
`
`claims. In Carter v. City of Dallas, the trial court denied a request for a temporary
`
`restraining order and a temporary injunction to prevent removal. In In re Carter,
`
`this court denied the request for mandamus relief seeking to prevent removal. In
`
`Return Lee to Lee Park, there was a request for a temporary restraining order, a
`
`temporary injunction, and a permanent injunction to prevent removal. Final
`
`judgment was entered against the claims. This Court has already denied a motion
`
`for temporary relief in the appeal of this case. The petition should be denied.
`
`PRAYER
`
`Respondents request that the petition for writ of injunction be denied.
`
`
`
`
`
`8
`
`

`

`Respectfully submitted,
`
`CHRISTOPHER J. CASO
`Interim City Attorney
`
`PATRICIA M. DE LA GARZA
`Chief of Litigation
`
`JAMES B. PINSON
`Appellate Coordinator
`
`NICHOLAS D. PALMER
`Deputy Appellate Coordinator
`
`
`
`
`
`/s/Charles S. Estee
`Charles S. Estee
`Texas Bar No. 06673600
`Charles.estee@dallascityhall.com
`Stacy Jordan Rodriguez
`Texas Bar No. 11016750
`stacy.rodriguez@dallascityhall.com
`Assistant City Attorneys
`
`City Attorney’s Office
`1500 Marilla Street, Room 7DN
`Dallas, Texas 75201
`Telephone: 214-670-3519
`Telecopier: 214-670-0622
`
`ATTORNEYS FOR RESPONDENTS
`
`
`
`
`
`
`
`9
`
`
`
`
`
`

`

`CERTIFICATION
`
`
`
`I certify that I have reviewed this response and have concluded that every
`
`factual statement made in the response is supported by competent evidence included
`
`in Supplemental Original Proceeding Record.
`
`
`/s/Charles S. Estee
`Attorney for Respondents
`
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`
`
`I certify that this document contains 1895 words, excluding the parts
`
`exempted by Texas Rule of Appellate Procedure 9.4(i)(1), and has been prepared in
`
`a proportionally spaced 14-point Times New Roman typeface using Microsoft Word
`
`2016.
`
`
`Dated: July 15, 2019
`
`
`
`
`/s/Charles S. Estee
`Attorney for City of Dallas
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`I certify that on July 15, 2019, the foregoing document was served upon
`
`Warren V. Norred, Attorney
`
`for Relators, Return Lee
`
`to Lee Park,
`
`Warren Johnson, and Katherine Gunn, by e-service through an electronic filing
`
`manager to warren@norredlaw.com.
`
`
`/s/Charles S. Estee
`Attorney for City of Dallas
`
`
`
`
`
`10
`
`

`

`No. 05-19-00774-CV
`__________________________________________________________________
`
`IN THE COURT OF APPEALS
`FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
`AT DALLAS
`__________________________________________________________________
`
`In re RETURN LEE TO LEE PARK,
`WARREN JOHNSON, and KATHERINE GANN,
`
`
`
`Relators.
`__________________________________________________________________
`
`APPENDIX
`__________________________________________________________________
`
`Order entered July 1, 2019 ................................................................................. Tab 1
`
`Purchase Agreement and Bill of Sale (SOPR Tab 2) ........................................ Tab 2
`
`Contract for Services (SOPR Tab 3) .................................................................. Tab 3
`
`Supplemental Plea, Carter v. City of Dallas (SOPR Tab 4) .............................. Tab 4
`
`Affidavit of Lynn Rushton (SOPR Tab 5) ......................................................... Tab 5
`
`
`
`
`
`
`
`

`

`VERIFICATION
`
`STATE OF TEXAS
`
`DALLAS COUNTY
`
`§
`
`§
`
`Before me, the undersigned notary, on this day personally appeared Charles
`
`S. Estee, the affiant, a person whose identity is known to me. After I administered
`
`an oath to affiant, affiant testified:
`
`1.
`
`"My name is Charles S. Estee. I am over 18 years of age, of sound
`
`mind, and capable of making this affidavit. The facts in this verification are within
`
`my personal knowledge and are true and correct.
`
`2.
`
`"I am the attorney for Respondents. All the documents included with
`
`the Response to Petition for Writ of lnjunctio~ copi&-.
`
`Charles S. Estee
`
`Sworn to and subscribed before me by Charles S. Estee on July 15, 2019
`
`j~ £
`
`Notary public in and for
`the State of Texas
`
`My commission expires: JO .,.. 2,4=--i, "'2-
`
`

`

`Order entered July 1, 2019
`
`
`
`
`
`In The
`Court of Appeals
`Fifth District of Texas at Dallas
`
`No. 05-19-00774-CV
`
`IN RE RETURN LEE TO LEE PARK, WARREN JOHNSON,
`AND KATHERINE GANN, Relators
`
`
`Original Proceeding from the 14th Judicial District Court
`Dallas County, Texas
`Trial Court Cause No. DC18-05460
`
`ORDER
`Before Justices Whitehill, Partida-Kipness, and Pedersen, III
`
`Before the Court are relators’ June 27, 2019 “Petition for Immediate Writ of Injunction”
`
`and relators’ June 27, 2019 “Motion for Temporary Relief.” We GRANT the motion, STAY all
`
`efforts to remove, alter, or demolish the Confederate Monument located in the Pioneer Cemetery
`
`in Dallas, Texas, which was one of the monuments at issue in the underlying proceeding, and
`
`STAY the sale of the Robert E. Lee and Confederate Soldier statue to the extent that sale has not
`
`been completed. This stay shall remain in effect until further order of the Court. We request that
`
`the real parties in interest and respondent file their responses, if any, to the motion for temporary
`
`relief and petition for writ of injunction by July 15, 2019.
`
`/s/
`
`
`BILL WHITEHILL
`JUSTICE
`
`Tab 1
`
`

`

`City of Dallas
`
`STATE OF TEXAS
`COUNTY OF DALLAS
`CITY OF DALLAS
`
`§
`
`§
`
`§
`
`I, BILIERAE JOHNSON, City Secretary of the City of Dallas, Texas, do hereby
`certify that the attached is a true and correct copy of:
`
`FILE NO. 19-0950
`
`filed in my office as official records of the City of Dallas, and that I have custody
`and control of said records.
`
`WITNESS MY HAND AND THE SEAL OF THE CITY OF DALLAS, TEXAS, this
`the 11 th day of July, 2019.
`
`\\ \ 1 I 111 I If/ If ,11
`,,,,. c: O· /I
`"'-1 0 .......... 1..q~
`,,,
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`PREPARED BY: LJ
`
`OFFICE OF THE CITY SECRETARY CITY HALL DALLAS, TEXAS 75201 TELEPHONE 214/670-3738
`
`001
`
`Tab 2
`
`

`

`OFFICIAL ACTION OF THE DALLAS CITY COUNCIL
`
`JUNE 12, 2019
`
`/
`
`19-0950
`
`Addendum Item 10: Authorize (1) an action to confirm the sale of the Robert E. Lee and the Confederate
`Soldier sculpture, sold through an online auction held May 23, 2019 through June
`5, 2019, to the highest bidder who tenders payment in full and executes a purchase
`agreement and bill of sale; and (2) the City Manager to execute a purchase
`agreement and bill of sale with the purchaser- Revenue: $1,435,000
`
`Councilmember Arnold moved to adopt the item.
`
`Motion seconded by Councilmember Narvaez.
`
`Councilmember Callahan moved a substitute motion to adopt the item with the following change:
`
`Resolution [Section 2]
`• Purchaser shall not display the Monument on city property within the City of
`Dallas.
`
`Motion died due to lack of a second.
`
`Councilmember Kleinman asked Councilmember Arnold if she would accept the following friendly
`amendment:
`
`• That the Purchaser agrees not to publicly display the Monument in the Dallas(cid:173)
`Fort Worth Metropolitan Area instead of only the City of Dallas.
`
`Councilmember Arnold accepted Councilmember Kleinman's friendly amendment as part of her
`motion.
`
`Councilmember Narvaez, who seconded the motion, also accepted Councilmember Kleinman's
`friendly amendment.
`
`After discussion, Presiding Officer Thomas called a record vote on Councilmember Arnold's
`amended motion:
`
`Voting Yes:
`
`[12] Thomas, Medrano, Arnold, Narvaez,
`Felder, Atkins, Clayton, McGough,
`Kleinman, Greyson, Gates, Kingston
`
`Voting No:
`
`Absent when vote taken:
`
`[1]
`
`[2]
`
`Callahan
`
`Rawlings, Griggs
`
`The city secretary declared the item amended.
`
`OFFICE OF THE CITY SECRETARY
`
`CITY OF DALLAS, TEXAS
`
`002
`
`

`

`190950 -
`
`June 12, 2019
`
`WHEREAS, on May 22, 2019, City Council declared the sculpture titled the Robert E.
`Lee and the Confederate So/dier("Sculpture"), by Alexander Phimister Proctor, as surplus
`property, and authorized its sale pursuant to Section 2-37.4 of the Dallas City Code by
`Resolution No. 19-0825; and
`
`WHEREAS, Dallas City Code, Section 2-37.4, requires that when the highest bid for
`property is more than $20,000, the sale to the highest bidder must be confirmed by City
`Council; and
`
`WHEREAS, the City Council has set the reserve for this online auction at $450,000, and
`further required that the highest bidder enter into a purchase agreement and bill of sale
`agreeing not to publicly display the Sculpture in the City of Dallas and to secure the same
`restriction contractually with any subsequent purchaser if Sculpture is later sold.
`
`Now, Therefore,
`
`BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DALLAS:
`
`SECTION 1. That the sale of the Sculpture, through an online auction which ran from
`May 23, 2019 through June 5, 2019, is hereby confirmed with the highest bidder who
`tenders payment in full and executes a purchase agreement and bill of sale with the City
`of Dallas ("Purchaser").
`
`SECTION 2. That the City Manager is hereby authorized to execute a purchase
`agreement and bill of sale, approved as to form by the City Attorney, with Purchaser
`wherein Purchaser agrees not to publicly display the Sculpture in the Dallas-Fort Worth
`Metropolitan Area and Purchaser further agrees to secure the same restriction
`contractually with any subsequent purchaser if Sculpture is later sold.
`
`SECTION 3. That the Chief Financial Officer is hereby authorized to receive and deposit
`funds received from the proceeds of the sale in the City's General Fund Contingency
`Reserve Fund, Fund 0001, Department NBG, Unit 1000, Revenue Code 8415.
`
`SECTION 4. That this resolution shall take effect immediately from and after its passage
`in accordance with the provisions of the Charter of the City of Dallas, and it is accordingly
`so resolved.
`
`APPROVED BY
`CITY COUNCIL
`
`JUN 1 2 2019
`~~
`
`CITY SECRETARY
`
`003
`
`

`

`190950 1
`
`Resolution No. 19 - 6/lG
`
`Approved on June 12, 2019
`
`STA TE OF TEXAS
`
`COUNTY OF DALLAS
`
`2G!9 JUii 25 ~M 2: I+ I
`§ CITY SECRETARY
`§ DALLAS, TEX/\S
`§
`
`PURCHASE AGREEMENT AND BILL OF SALE
`
`This Purchase Agreement and Bill of Sale ("Af!reement") dated as of June 12, 2019 ("Effective
`Date"), is between the CITY OF DALLAS, a Texas municipal corporation located in Dallas
`County, Texas ("City"), acting by and through its duly authorized officers, and Holmes Firm PC,
`a Texas professional corporation organized under the laws of the State of Texas, having its
`principal office at 14911 Quorum Drive, Ste 340, Dallas, Texas 75254 ("Purchaser").
`
`WITNESSETH
`
`WHEREAS, by Resolution No. 19-0825, approved on May 22, 2019, attached hereto as Exhibit
`A, City Council designated the Robert E. Lee and the Confederate Soldier monument
`("Monument") by sculptor Alexander Phimister Proctor as surplus property and authorized the
`sale of the Monument by public auction; and
`
`WHEREAS, City Council set a reserve for the auction at $450,000; and
`
`WHEREAS, the sale of the Monument is conditioned on the Purchaser's commitment to not
`publicly display the Monument in the Dallas-Fort Worth Metropolitan Area (as defined herein)
`and to secure this restriction contractually with any subsequent purchaser if the Purchaser later
`sells the Monument; and
`
`WHEREAS, City Council resolved that the display of public Confederate causes does not promote
`a welcoming and inclusive community and is against the public policy of the City; and
`
`WHEREAS, the City put the Monument up for auction from May 23, 2019 through June 5, 2019,
`through Lone Star Auctioneers, Inc.; and
`
`WHEREAS, Purchaser, being the highest bidder at the close of the auction, was the winning
`bidder: and
`
`WHEREAS, by resolution approved on June 12, 2019, City Council confirms the sale of the
`Monument to Purchaser pursuant to this Purchase Agreement and Bill of Sale (the "Agreement").
`
`NOW THEREFORE, in consideration of the mutual covenants and obligations herein, the Parties
`agree as follows:
`
`Purchase Agreement and Bill of Sale
`Robert E. Lee and the Confederate Soldier Monument
`
`Page118
`
`004
`
`

`

`1 9 09 5 0
`
`SECTION ONE. SALE OF ASSETS
`
`City does now convey, sell, assign, transfer, and deliver to Purchaser and its successors and
`permitted assigns and Purchaser does accept and assume all of City's right, title, and interest in,
`to, and under the Monument, pursuant to the terms agreed to by the parties herein, TO HA VE
`AND TO HOLD the Monument to Purchaser, its successors and permitted assigns for their own
`benefit and use forever. THE MONUMENT IS BEING CONVEYED IN ITS CURRENT
`CONDITION "AS IS," "WHERE IS" AND "WITH ALL FAUL TS OR DEFECTS (KNOWN OR
`UNKNOWN, LATENT, DISCOVERABLE, OR UNDISCOVERABLE)." CITY AND ITS
`AFFILIATES MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER,
`WHETHER EXPRESSED, IMPLIED OR STATUTORY, WITH RESPECT TO THE KIND,
`SIZE, QUALITY, DESCRIPTION, MERCHANTABILITY, MAINTENANCE, REPAIR,
`CONDITION, CERTIFICATION, USE OR FITNESS FOR ANY PARTICULAR PURPOSE OF
`THE MONUMENT. PURCHASER AGREES, BY ITS EXECUTION OF THIS AGREEMENT,
`THAT THERE ARE NO REPRESENTATIONS AND WARRANTIES EXCEPT AS
`SPECIFICALLY SET FORTH IN THIS AGREEMENT, AND PURCHASER DOES FURTHER
`AGREE THAT IT IS NOT REL YING ON ANY REPRESENTATION OR WARRANTY OF
`CITY OR A