CAUSE NO:_____________________

Jennifer Florence Dawson, James Reagan Clark, Jared Schiffner, individually and

on behalf of others similarly situated,
Plaintiffs, v. City of Dallas, Defendant.

§ § § § § § § § § § § § §

IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS _______ JUDICIAL DISTRICT

PLAINTIFFS’ ORIGINAL PETITION FOR DECLARATORY JUDGMENT, EMERGENCY APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER, FOR TEMPORARY INJUNCTION & REQUEST FOR DISCLOSURE

A. Discovery Control Plan 1. Plaintiffs intend to conduct discovery under Level 3 of Texas Rule of Civil Procedure. B. Parties 2. Plaintiffs are individuals currently occupying an area of land to the southwest of Dallas

City Hall. In doing so they are exercising their First Amendment right to engage in political expression, pursuant to a species of license granted them by Defendant, memorialized in a settlement agreement, attached hereto as Exhibit A. 3. Defendant, City of Dallas, may be served with process through the City Secretary,

located at 1500 Marilla Street, Dallas, Texas. Defendant may be served via private process server. C. Jurisdiction 4. Because Plaintiffs are seeking a declaration clarifying the contours of validity of a

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modification to a municipal ordinance, made in accordance with a settlement agreement between Plaintiffs and Defendant, and further, because Plaintiffs are not asserting a claim for money damages, this is a suit in which the City does not enjoy governmental immunity from suit. See, e.g. City of San Benito v. Ebarb, 88 S.W.3d 711 (Tex. App. – Corpus Christi, 2002). D. Facts 5. On October 17, 2011 at Dallas County, Texas, Plaintiff Jennifer Florence Dawson, on

behalf of herself and others similarly situated, entered into a settlement agreement with the City of Dallas. See Exhibit A. 6. That settlement agreement comprised in part a species of license, under which, assuming

adherence to certain conditions, Plaintiff and others similarly situated could maintain their presence at a specifically identified public property overnight, in tents. 7. Prior to November 8, 2011, the City of Dallas appeared to be adhering to the terms of

Exhibit A.
8. On November 8, 2011, the City of Dallas transmitted the correspondence attached

hereto as Exhibit B to counsel for Plaintiffs. 9.

Exhibit B contains, inter alia, four allegations of material breach of the settlement

agreement by Occupy Dallas. Exhibit B also contains immaterial allegations and recitations concerning alleged criminal conduct that occurred off the property subject of the settlement agreement, and that have no bearing on the alleged breaches of the agreement made the subject of Exhibit B. 10.

Exhibit B clearly indicates the City’s intention to revoke its adherence to the terms of

the settlement agreement on or before November 12, 2011 at 5:00 p.m. 11. Plaintiffs contend, in light of Exhibit B, that Exhibit A contains terms and statements
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that are ambiguous, and that certain of those terms have been invoked by Defendant in Exhibit

B as grounds supporting its intent to revoke the agreement. Accordingly, Plaintiffs assert the
mutuality of understanding concerning those terms as contemplated by the agreement has failed. 12. Further, Plaintiffs contend each of Defendant’s allegations of Plaintiffs’ material

breaches are without merit, and accordingly Defendant should be enjoined from revoking the settlement agreement. 13. Accordingly, Plaintiffs seek the relief requested herein. E. Suit for Declaratory Relief 14. Plaintiffs assert the following terms, as used in the settlement agreement, are ambiguous,

and that accordingly the City’s threatened action is unjustified: (a) “Semi-permanent” insofar as this term is inherently without meaning. (b) “Occupy Dallas” insofar as this term, as defined in Exhibit A, means “a group of individuals who are a part of the movement which will be using the Subject Property under the terms of this Agreement,” and hence does not identify any individual with specificity so as to provide such individual with notice of prohibitions placed upon him/her by the settlement agreement when he/she is not present upon and thus “using the Subject Property.” 15. Plaintiffs further assert the following statements in the settlement agreement, are

ambiguous: (a) “Trash shall be collected daily and shall be taken to a trash collection facility off the site of the Subject Property on a daily basis. Occupy Dallas shall provide appropriate trash receptacles on the Subject Property.” insofar as it is not clear Occupy Dallas is responsible for the transportation of trash from the Subject Property. (b) “Occupy Dallas shall not use the restroom facilities in City Hall” insofar as it is not clear that individuals, at the time of their alleged individual use of the restroom facilities in City Hall, are in that “group of individuals who are a part of the movement which will be using the Subject Property under the terms of this Agreement” See ¶ 12(b) supra. (c) “No tents shall be erected within, and no persons shall occupy the fenced-area
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within the Subject Property” insofar as there is no definite, singular “fenced-area within the subject property” rather there are numerous varying areas demarcated by the Defendant at different times by different methods. 16. Because the City asserts that its threatened imminent action is justified as a result of

alleged material breaches of the settlement agreement, as articulated in four bullet points on the first page of Exhibit B, and because each of these alleged breaches implicates terms and statements Plaintiffs assert are at best ambiguous, either independently (as in the case of “semipermanent”), or in context, Plaintiffs seek a declaration from this court so as to resolve the ambiguity of meaning of these terms and statements, and a declaration as to whether Plaintiffs are in fact in breach of any of them, and accordingly, whether the City’s threatened action is unlawful.
EMERGENCY APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER AND APPLICATION FOR TEMPORARY INJUNCTION

17.

Notwithstanding the allegations made supra concerning the ambiguity of terms in the

settlement agreement, Plaintiffs have complied with every agreement, covenant, and undertaking set forth in the Exhibit A, and come to this Court with clean hands requesting this court do equity. 18. Plaintiffs’ application for a temporary restraining order is authorized by Tex. Civ. Prac. & Rem. Code §65.011(1) and (3). 19. Plaintiffs ask the court to temporarily restrain Defendant from engaging in the action threatened in its communication of November 8, 2011, and to subsequently enjoin Defendant from so acting pending resolution of this litigation. 20. It is probable that Plaintiffs will recover from Defendant after a trial on the merits because the agreement contains ambiguous terms that will be resolved in Plaintiffs’ favor. 21. If Plaintiffs’ application is not granted, harm is imminent because the City has
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unambiguously threatened to take action to forcibly “evict” Plaintiffs from an area their use of which is effectively licensed through the settlement agreement. 22. The harm that will result if a temporary restraining order is not issued is irreparable because the Plaintiffs will no longer enjoy the property under the terms of the effective license contemplated in the settlement agreement. 23. Plaintiffs will have no adequate remedy at law because if a temporary injunction does not issue and the effective license is revoked Plaintiffs will have lost their use of the subject matter of said license, with no lawful recourse. 24. Plaintiffs are willing to post bond, but prays the court make an equitable determination bond is not necessary in this case, or in the alternative, determine a de minimis bond is sufficient. 25. Accordingly, Plaintiffs request a temporary restraining order issue, and after notice and hearing, an order issue temporarily enjoining Defendants, and any of their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of this injunction by personal service or otherwise, from the following: Engaging in any action to remove Plaintiffs from the property described in

Exhibit A for alleged breaches of the four terms of the settlement agreement
articulated in Exhibit B. 26. There is not enough time to serve notice on Defendant, afford Defendant time to respond, and to hold a hearing on this application for Temporary Restraining Order. Pursuant to Exhibit

B the Defendant has expressed an intent to engage in action which will constitute irreparable
harm on November 11, 2011. Accordingly, Plaintiff asks the court set an emergency hearing and enter the TRO ex parte.
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F. Attorney’s Fees 27. Plaintiff is entitled to recover reasonable and necessary attorney fees for prosecuting this

suit under pursuant to Texas Civil Practice & Remedies Code §37.009. G. Conditions Precedent 28. All conditions precedent to Plaintiffs claims for relief have been performed or have

occurred. H. Request for Disclosure 29. Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose,

within 50 days of the service of this request, the information or material described in Rule 194.2. I. Prayer For these reasons, Plaintiffs ask Defendant be cited to appear and answer, that the court declare Plaintiffs not in breach of the settlement agreement, the court issue an ex parte TRO, the court temporarily enjoin Defendant from taking any action adverse to Plaintiffs interests as granted through the license express in that agreement, and the court resolve the ambiguities heretofore identified in the settlement agreement, and such others as may become apparent through the course of this litigation. In addition, Plaintiffs ask for the following: (a) Court costs. (b) Attorney fees. (c) All other relief to which Plaintiff is entitled.

[SIGNATURE PAGE FOLLOWS]
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CAUSE NO:_____________________

Jennifer Florence Dawson, James Reagan Clark, Jared Schiffner, individually and

on behalf of others similarly situated,
Plaintiff, v. City of Dallas, Defendant.

§ § § § § § § § § § § § §

IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS _______ JUDICIAL DISTRICT

EXHIBIT A

CAUSE NO:_____________________

Jennifer Florence Dawson, James Reagan Clark, Jared Schiffner, individually and

on behalf of others similarly situated,
Plaintiff, v. City of Dallas, Defendant.

§ § § § § § § § § § § § §

IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS _______ JUDICIAL DISTRICT

EXHIBIT B

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