9/9/2016 John Mays bio John Mays Police Pensioner Trustee John Mays was elected as the Police Pensioner Trustee on the Board of Trustees effective June 2001. He is a member of the Investment Advisory Committee. Prior to his current Board position, Mr. Mays served as an employee elected member of the Board of Trustees for almost 20 years (1981 2000) and has served on various committees. He retired from the Dallas Police Department in 2000 with over 35 years of service, holding the rank of Sergeant. Sgt. Mays is an active member of the Texas Association of Public Employee Retirement Systems (TEXPERS), the National Conference on Public Employee Retirement Systems (NCPERS), and the National Association of Police Officers (NAPO). He is past Editor of the Dallas Police Association News and has been a pension conference speaker. He attended Sam Houston University and Bishop College. https://www.dpfp.org/trusteespage/trustee_bios/mays_j bio.html 1/1
7/13/2016 Trustees DPFP Sam Friar Chairman Fire Rescue Dept. Ken Haben Vice Chairman Police Dept. Joe Schutz Deputy Vice Chairman Police Dept. Gerald Brown Fire Rescue Pensioner Clint Conway Fire Rescue Dept. Jennifer Staubach Gates City Council Scott Griggs City Council Brian Hass Fire Rescue Dept. Tho Tang Ho Police Dept. Philip T. Kingston City Council John Mays Police Pensioner Erik Wilson City Council 2016 Dallas Police and Fire Pension System https://www.dpfp.org/trustees.html 2/2
Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 1 of 6 PageID #: 4746 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION DALLAS POLICE AND FIRE PENSION SYSTEM, Plaintiff, vs. COLUMBUS A. ALEXANDER, III, Defendant and Counter-Plaintiff, vs. DALLAS POLICE AND FIRE PENSION SYSTEM; KELLY GOTTSCHALK; JOSHUA MOND; SUMMER LOVELAND; JULIE FORT; JULIE FORT, ATTORNEY, PLLC; MESSER, ROCKEFELLER, FORT, PLLC, Counter-Defendants. CAUSE NO. 4:17-cv-631-ALM-KPJ ALEXANDER S RESPONSE TO THE SYSTEM S AND INDIVIDUAL SYSTEM DEFENDANTS OBJECTION TO MAGISTRATE JUDGE PRIEST-JOHNSON S JANUARY 15, 2019 REPORT AND RECOMMENDATION FACTUAL AND PROCEDURAL BACKGROUND Instigating contentious and costly litigation seems to be the System s preferred method for suppressing information and silencing critics, particularly Alexander. On June 25, 2002, the System filed a lawsuit against Alexander to force his surrender of all evidence of criminal wrong-doing by System executives obtained by Alexander during his System-requested fraud examination. On August 7, 2002, the System s Board withdrew its lawsuit in order to suppress publication of Alexander s answer, known by System executives and trustees to contain Alexander s allegations against them and documentary evidence of crimes committed by System executives. As part of the settlement agreement (the Agreement ), the System reimbursed RESPONSE TO OBJECTION TO MAGISTRATE S REPORT AND RECOMMENDATION PAGE 1
Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 2 of 6 PageID #: 4747 Alexander all his legal fees, and paid all his outstanding billings. The Chairman of the System s Board of Trustees even issued a crow-eating letter to the Dallas Morning News and the Association of Certified Fraud Examiners apologizing for all the untrue things System officials said to reporters about Alexander. 1 On October 27, 2002, and continuing through September 15, 2004, Alexander issued over 100 Texas Public Information Act ( TPIA ) requests regarding the System, almost all of which were answered by written reply from System executives Richard Tettamant, Don Rohan, or System attorney Gary Lawson. All three men were actively involved in the 2002 Agreement, and yet never refused a response to his requests, or alluded to the 2002 Agreement as a bar to Alexander s right to make such requests. 2 On April 6, 2016, Alexander again began requesting information from the System pursuant to the Texas Public Information Act. Information requested by Alexander related primarily to System contracts, billings, and payments to various law firms, investigators, and attorneys. On May 23, 2016, System attorney Julie Fort sent a demand letter demanding Alexander withdraw his most recent TPIA requests, and alleging his requests violated the 2002 Agreement. Alexander promptly withdrew his requests to assuage her concerns even though he knew the 2002 Agreement did not prohibit him from making TPIA requests to the System. During the next several weeks, System attorney Julie Fort s law firm again threatened Alexander following public information inquiries from his wife. Alexander s wife was not a party to the 2002 Agreement, or any other contract with the System. On June 23, 2016, rogue System employees Kelly Gottschalk, Joshua Mond, Summer 1 See Dkt. 20, 34, Def. s Fifth Am. Answer and Countercl., pg. 34. 2 See Dkt. 20 at 35. RESPONSE TO OBJECTION TO MAGISTRATE S REPORT AND RECOMMENDATION PAGE 2
Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 3 of 6 PageID #: 4748 Loveland, and System attorney Julie Fort sued Alexander under the false pretense of acting on behalf of the System s Board. Alexander had no open or pending requests with the System when this lawsuit was filed. ARGUMENT I. The Objection Misrepresents The Facts And Misinterprets The Law Regarding Alexander s Texas Declaratory Judgment Act Claim. Alexander believes that further argument regarding the merits of the state court s judgment is unnecessary. He fully supports the findings of the Magistrate Judge that the System has failed to present substantial reasons for reconsideration of the state court s decision and that [i]n any event, the state court was correct that Alexander is entitled to file TPIA requests with the System. 3 Instead of revisiting arguments already fully briefed in this case, it is important to address a misrepresentation of fact and a misinterpretation of law in the System s Objection. A. Misrepresentation of Fact. The System s Objection falsely claims, The System seeks only to enforce an armslength no contact agreement as to Alexander, thereby prohibiting Alexander not the public at large from contacting it to obtain public records. (emphasis original) 4 This is demonstrably untrue. Alexander had no open or pending requests with the System when this lawsuit was filed. Alexander was sued because his wife made public information requests to the System. Alexander s wife was not a party to the 2002 Agreement, or any other contract with the System. B. Misinterpretation of Law. The System Defendants seek to have this court overturn a state court judgment applying 3 Dkt. 72, Report and Recommendation of United States Magistrate Judge, pg. 12. 4 Dkt. 74, The System and Individual System Def.s Limited Obj. to Report and Recommendation on Mot. to Reconsider the State Ct. s Order Granting Alexander s Mot. for Partial Summ. J., pg. 5. RESPONSE TO OBJECTION TO MAGISTRATE S REPORT AND RECOMMENDATION PAGE 3
Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 4 of 6 PageID #: 4749 Texas law based on a misapplication of a federal case. Alexander asserted a state law claim for declaratory judgment in the 416th District Court of Collin County, Texas. His Motion for Partial Summary Judgment was granted by the state court, and attorney s fees were awarded. The federal code clearly states that upon removal of a case from state to federal court, [a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court. 5 In a footnote, the System Defendants argue that the Texas DJA is inapplicable in this case, citing a Fifth Circuit case that neither began in state court nor involved a substantive state right. 6 Alexander did not petition a federal court for relief under either the federal or Texas DJA. Regardless of how this court ultimately resolves the federal question that precipitated the removal, the state district court s declaratory judgment prior to removal should not be disturbed. II. The Objection Misrepresents Texas Law Regarding Attorney s Fees. The state court s summary judgment entitles Alexander to attorney s fees, even against a governmental entity. The Texas Supreme Court has emphatically and repeatedly held that the DJA waives sovereign immunity and authorizes attorney s fees. 7 In Heinrich, the Court analyzed its own opinions on the matter and concluded, it is clear that suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money. 8 While ignoring the numerous Texas Supreme Court cases that have firmly established that the DJA necessarily waives governmental immunity for [attorney s fees] awards, 9 the 5 28 U.S.C. 1450. 6 Dkt. 74, n.2. 7 See, e.g., Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 444-46 (Tex. 1994); HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 661 n.149 (Tex. 2007); Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004) 8 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). 9 Leeper, 893 S.W.2d at 446. RESPONSE TO OBJECTION TO MAGISTRATE S REPORT AND RECOMMENDATION PAGE 4
Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 5 of 6 PageID #: 4750 System s Objection (again in a footnote) cites an unpublished San Antonio Court of Appeals opinion which held that in that particular case, the recovery of attorney s fees from the city under the UDJA is incidental to and redundant of the relief provided by [a separately pled cause of action]. 10 In this case, after immunity had already been waived by the System filing a lawsuit against him in state court, Alexander properly brought a declaratory judgment claim alleging that System officials were not complying with the TPIA. He prevailed and was properly awarded attorney s fees. This court should not disturb the state court s judgment. REQUEST FOR ORAL HEARING Pursuant to Local Rule CV-7(g), Defendant/Counter-plaintiff requests an oral hearing. CONCLUSION AND PRAYER For the reasons set forth above, Alexander respectfully requests that the Court conduct a de novo review and adopt the Report and Recommendation as to the Motion to Reconsider. 10 City of San Antonio v. Rogers Shavano Ranch, LTD., No. 04-13-00623-CV, 2014 Tex. App. LEXIS 1757, at *1 (App. San Antonio Feb. 19, 2014) RESPONSE TO OBJECTION TO MAGISTRATE S REPORT AND RECOMMENDATION PAGE 5
Case 4:17-cv-00631-ALM-KPJ Document 80 Filed 02/06/19 Page 6 of 6 PageID #: 4751 Respectfully submitted, MONEY LAW FIRM By: Brent A. Money Texas Bar No. 24049530 2606 Lee Street Greenville, Texas 75401 Phone: (903) 455-1600 Fax: (888) 756-4746 Email: brent@moneylawfirm.net ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF, COLUMBUS A. ALEXANDER, III Certificate of Service The undersigned certifies that a copy of the foregoing instrument was served upon all counsels of record in the above-styled matter via electronic filing and email, in accordance with the applicable Rules of Civil Procedure on February 6, 2019. BRENT A. MONEY RESPONSE TO OBJECTION TO MAGISTRATE S REPORT AND RECOMMENDATION PAGE 6
Case 4:17-cv-00631-ALM-KPJ Document 79 Filed 02/06/19 Page 1 of 2 PageID #: 4744 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION DALLAS POLICE AND FIRE PENSION SYSTEM, Plaintiff, vs. COLUMBUS A. ALEXANDER, III, Defendant and Counter-Plaintiff, vs. DALLAS POLICE AND FIRE PENSION SYSTEM; KELLY GOTTSCHALK; JOSHUA MOND; SUMMER LOVELAND; JULIE FORT; JULIE FORT, ATTORNEY, PLLC; MESSER, ROCKEFELLER, FORT, PLLC, Counter-Defendants. CAUSE NO. 4:17-cv-631-ALM-KPJ ALEXANDER S REPLY IN SUPPORT OF OBJECTION TO MAGISTRATE JUDGE PRIEST-JOHNSON S JANUARY 15, 2019 REPORT AND RECOMMENDATION Alexander respectfully files this reply in support of his Objection to Magistrate Judge Priest-Johnson s January 15, 2019 Report and Recommendation, Dkt. 73: The TCPA, regardless if classified as procedural or substantive, does not apply in federal court. Hon. Judge Amos L. Mazzant 1 1 Thoroughbred Ventures, LLC v. Disman, Civil Action No. 4:18-CV-00318, 2018 U.S. Dist. LEXIS 120272, at *7 (E.D. Tex. 2018); Van Dyke v. Retzlaff, Civil Action No. 4:18-CV-247, 2018 U.S. Dist. LEXIS 218669, at *7 (E.D. Tex. 2018); Star Sys. Int'l v. Neology, Inc., Civil Action No. 4:18-CV-00574, 2019 U.S. Dist. LEXIS 7366 (E.D. Tex. 2019). ALEXANDER S REPLY IN SUPPORT OF OBJECTION TO MAGISTRATE JUDGE PAGE 1 PRIEST-JOHNSON S JANUARY 15, 2019 REPORT AND RECOMMENDATION
Case 4:17-cv-00631-ALM-KPJ Document 79 Filed 02/06/19 Page 2 of 2 PageID #: 4745 Respectfully submitted, MONEY LAW FIRM By: Brent A. Money Texas Bar No. 24049530 2606 Lee Street Greenville, Texas 75401 Phone: (903) 455-1600 Fax: (888) 756-4746 Email: brent@moneylawfirm.net ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF, COLUMBUS A. ALEXANDER, III Certificate of Service The undersigned certifies that a copy of the foregoing instrument was served upon all counsels of record in the above-styled matter via electronic filing and email, in accordance with the applicable Rules of Civil Procedure on February 6, 2019. BRENT A. MONEY ALEXANDER S REPLY IN SUPPORT OF OBJECTION TO MAGISTRATE JUDGE PAGE 2 PRIEST-JOHNSON S JANUARY 15, 2019 REPORT AND RECOMMENDATION
Case 4:17-cv-00631-ALM-KPJ Document 81 Filed 02/06/19 Page 1 of 1 PageID #: 4752 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION DALLAS POLICE AND FIRE PENSION SYSTEM, v. Plaintiff, COLUMBUS A. ALEXANDER, III, v. Defendant and Counter-Plaintiff, DALLAS POLICE AND FIRE PENSION SYSTEM, KELLY GOTTSCHALK, JOSHUA MOND, SUMMER LOVELAND, JULIE FORT, JULIE FORT, ATTORNEY, PLLC, and MESSER, ROCKEFELLER, FORT, PLLC, Counter-Defendants. NO. 4:17-CV-00631-ALM-KPJ ORDER In light of new arguments raised for the first time in the parties objections and responses to the January 15, 2019, Report and Recommendation (Dkt. 72), the Court hereby WITHDRAWS its Report and Recommendation (Dkt. 72). The Court will enter an amended order and report and recommendation under separate cover. IT IS SO ORDERED.