Monday, October 8, 2012
Judge affirms Hank’s restaurant case will go through legal system despite city objection
City officials are appealing the ruling.
MCKINNEY A judge denied the city of McKinney's plea to the jurisdiction in its case against Hank's Texas Grill, thus a ruling will now be up to the Texas Fifth Court of Appeals.
Both parties on Tuesday submitted briefs on whether the courts could rule in the case, through which each is seeking a temporary injunction against the other. Judge Ray Wheless of the 366th District Court ruled that because the city has sought compensation for attorney's fees, its only governmental immunity is from damage claims against it for such monetary relief, not from a ruling on the restaurant's harassment claims.
"I suspect when they lose (at the Court of Appeals), they'll take it to the Supreme Court," said Don Flanary, Hank's attorney. "They're going to do everything they can to keep the truth from coming out."
Hank's, a restaurant at White Avenue and Central Expressway in McKinney, on August 23 was granted a temporary restraining order against the city, barring police, fire, and code-inspection employees from its property without probable cause. The city immediately filed its own petition for an injunction against the restaurant, calling for its closure until it came into compliance with about 80 alleged code violations.
A hearing to discuss these requests was postponed three times in recent weeks -- first because the city objected a visiting judge, and the second time because Wheless had to rule on another case. Last week, Wheless again pushed back the hearing after the city presented its plea to jurisdiction, which suggested the courts could not rule in regards to a municipality enforcing its code ordinances.
After going over the briefs on whether the plea was valid, Wheless denied the city's plea and said the case will go forward.
"While we are disappointed with the ruling on [this week's] plea to the jurisdiction, it is unrelated to the facts of the city's case on the many fire, building, and health code violations identified in our inspection of Hank's Texas Grill," said Jason Gray, McKinney city manager. "As the Court's decision concerns Hank's efforts to prevent the city of McKinney from enforcing its health and safety ordinances and state law, the city has filed an appeal of the ruling. For the safety of the citizens and patrons of this business, the city remains committed to achieving code compliance through these court proceedings."
The city claims its plea was filed September 4, the first date for the hearing, but Hank's attorneys told Wheless last week they weren't aware of such a plea. Mark Goldstucker and Kent Hofmeister, attorneys for the city, argued in their plea that Hank's owners had not alleged the code ordinances of which they're supposedly violating are unconstitutional or pose a threat to their vested property rights.
Their plea argues that the Court does not have jurisdiction to either enjoin the city from code enforcement or to order the continuation of a violation of law (by Hank's), among other reasons.
"They're trying to ask the Court for relief that the Court's not permitted to grant," Goldstucker said last week.
In their response to the city's plea, Hank's attorneys stated that "the city has waived its immunity by the filing of its claims, by seeking attorney's fees, by the egregiousness of its own conduct and by the operation of Chapter 245 of the Texas Government Code."
In regards to the latter, they stated that the city is "seeking to enforce ordinances and codes ... that were not in effect in 2002 (when Hank's opened)," and that "a political subdivision's immunity from suit is waived in regard to an action under this Chapter." Thus, they state, the city has lost its immunity for its proposed action to close Hank's.
Also in its response, Hank's attorneys outline "an extraordinary, but not-so-pretty picture" of the city's conduct toward Hank's since 2002, which concludes "what the city could not do with its harassment of Hank's through the police department over the course of 9 years it has now chosen to do so through its unlawful efforts at code enforcement."
A date has not yet been set for the Fifth Court of Appeals to hear the case, but Flanary said it should happen in coming weeks. And he expects the same results.
"This is the way [the city's] been treating Hank's for years," he said. "Whether it's true or right or not, they do it and go on about their business. We finally got fed up with it."
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