in Re Return Lee to Lee Park ( 2019 )

DENY and Opinion Filed October 10, 2019
S 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
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Whitehill
The question before us in this original proceeding is whether a writ of injunction is
necessary to preserve our jurisdiction pending resolution of Relators’ underlying appeal
concerning the removal or demolition of a Confederate monument and the sale of a historic statue.
We conclude that the question is moot as to the statue because the sale has been
consummated but an injunction is necessary to protect our jurisdiction over the remainder of the
appeal. We therefore grant Relators’ writ of injunction concerning the removal, alteration, or
demolition of the monument.
I. BACKGROUND
Relators Return to Lee Park, Warren Johnson, and Katherine Gann (Relators) filed suit
against the Mayor of the City of Dallas and Dallas City Council members (the City) and sought a
temporary restraining order preventing the sale of the Robert E. Lee Confederate Soldier Sculpture
(the Statue) and the removal of the Confederate Monument in Pioneer Cemetery (the Monument).
The trial court dismissed Relators’ claims in a final judgment that Relators timely appealed in
cause number 05-19-00456-CV (the Appeal). The Appeal is still pending.
Relators then filed this petition for writ of injunction and motion for emergency relief to
enjoin the City from (i) demolishing, altering, or removing the Monument and (ii) completing the
sale of the statue. By the time the petition was filed, however, the statue had been sold at a private
auction.
II. ANALYSIS
A. Is an injunction necessary to preserve our jurisdiction?
The Texas Constitution provides that the courts of appeals have such appellate and original
jurisdiction as prescribed by law. TEX. CONST. art. V, § 6. Under the Government Code, a court
of appeals “may issue a writ of mandamus and all other writs necessary to enforce jurisdiction of
the court.” TEX. GOV’T CODE § 22.221(a). Thus, a court of appeals may issue such a writ to
prevent an appeal from becoming moot. Dallas Morning News v. Fifth Court of Appeals, 842
S.W.2d 655, 657 (Tex. 1992) (orig. proceeding); In re Shields, 190 S.W.3d 717, 719 (Tex. App.—
Dallas 2005, orig. proceeding). Indeed, “[t]he power of the courts of appeals to protect their
jurisdiction is essential for the orderly administration of justice.” Dallas Morning News, 842
S.W.2d at 658.
Here, the underlying appeal is from the final judgment granting the City’s plea to the
jurisdiction and alternative motion for summary judgment and dismissing Relators’ claims. In that
case, Relators maintained that Pioneer Park, where the Monument is located, is a historic site and
the City planned to demolish the Monument without first obtaining approval from the Texas
Historical Commission (THC). Relators further averred that the City planned to remove the Statue,
its plinth, and seating area from Lee Park and sell the Statue without THC approval. Accordingly,
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Relators requested: (i) a declaration that the Statue and Pioneer Cemetery are state archeological
landmarks; (ii) an order voiding the contract and resolution for removal and movement of the
Statue, and (iii) an injunction enjoining the City from demolishing, damaging, or removing the
Monument, from selling the statue, from demolishing, damaging, or removing the plinth and
seating area for the Statue, and ordering restoration of the Statue and its return to the plinth in Lee
Park.
The City argues that the requested relief regarding the Statue is moot because the sale is
complete and the Statue has already been transferred. We agree.
The City also argues that emergency relief is not necessary because the Monument has
been disassembled, moved, and reassembled before and the City will simply remove it and store
it while the appeal is pending. We are not persuaded by this argument.
The Monument was created in 1896 and has already been relocated once. There is no
guarantee that the removal process will be seamless and without damage to the Monument, or that
if it is ultimately returned to Pioneer Cemetery that it will be in the same condition as it is today.
Although the requested relief regarding the Statue is moot, if this Court should conclude
on the merits of the underlying appeal that the trial court erred and the Monument has already been
moved, demolished, damaged, or sold this Court’s judgment would be a nullity. Therefore, we
conclude that an injunction should be granted to preserve our jurisdiction over the underlying
appeal while we decide the merits. See In re Williams, No. 02-13-00087-CV, 2013 WL 1437253,
at *3 (Tex. App.—Fort Worth Apr. 8, 2013, orig. proceeding) (mem. op.).
B. Should Relators be required to post a bond?
The City argues that Relators should be required to post a bond because of (i) potential
increased costs while the contractor waits for word on whether it may proceed, (ii) the costs of
another round of bidding, (iii) the potential for increased removal costs if the removal contract
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becomes void due to delay, and (iv) costs associated with cleaning up graffiti on the Monument.
Relators contest the City’s request.
Based on the record before us, we conclude that the City will be affected by the granting
of the writ and that a $50,000 bond will serve as adequate security. Therefore, based on this record
and the possible effect of granting the writ, we require Relators, within thirty days, to post a
$50,000 bond with the District Clerk of Dallas County conditioned that Realtors will prosecute
their appeal and pay all costs that may be adjudged against them arising from the procurement of
the writ of injunction.
III. CONCLUSION
We grant Relators’ petition for injunctive relief as to the Monument and deny the petition
as moot as to the Statue. Our June 28, 2019 stay order shall remain in effect for thirty days, or
until Relators post bond, whichever occurs first.1 Contingent upon Relators’ posting the $50,000
bond, we issue a writ of injunction enjoining the City from altering, removing, or destroying the
Monument pending final disposition of the appeal in cause number 05-19-00456-CV or further
order of this Court.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
190774F.P05
1
We also deny as moot the City’s motion to reconsider and dissolve the stay order.
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