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2012-10-11

City embroiled in lawsuit re 'public alleyway'

By Judith Pannebaker BCC Editor

On behalf of local businessman, James McGroarty, attorney Fred R. Jones with the San Antonio law firm of Goode, Casseb, Jones, Riklin, Choat & Watson has filed a lawsuit against the City of Bandera and city council.

Jones represents McGroarty on behalf of Western Title of Bandera, Inc., the company involved in the sale of the disputed "public alleyway." The lawsuit was filed in the 216th District Court on Friday, Sept. 28.

The litigation also names Mayor Pro Tem Maggie Schumacher and Councilmen Nancy Montgomery, Binky Archer, John Hegemier and Brandi Morgan both individually and in their official capacities as members of the Bandera City Council.

McGroarty's lawsuit against the city, as well as State v. McGroarty, a case pending in Bandera Municipal Court, were discussed in executive session during the Thursday, Oct. 4, city council meeting. After reconvening in open session, council unanimously approved having municipal attorney Jason D. King begin negotiations to "settle." However, it remained unclear as to which case was being settled.

In an interview on Tuesday, Oct. 9, McGroarty laughed at a local newspaper report that his 14 lawyers are suing the city for $100 million. "I told them I have four attorneys and am suing for $1 million. They said (the mistake) was a typo," he reported.

The lawsuit - one of seven, according to McGroarty - involves a disputed alleyway that has been incorporated into his popular entertainment venue, the 11th Street Cowboy Bar, 305 11th Street.

The suit contends that McGroarty purchased the property in question from Alfredo V. Arizola and Domino Arizola Jr. on March 14 for $137,500.

Subsequent to his purchase of the property, city officials demanded that McGroarty remove various structures from the property and pay fines for the already-erected structures.

According to the court document, the demands of city officials were premised on claims that the structures were allegedly encroaching upon and-or obstructing what was referred to as a "public alleyway" that ostensibly ran vertically through the 11th Street Cowboy Bar from 11th Street to the back of the property.

On June 22, the city issued four citations against McGroarty for allegedly allowing "a building, structure or premises to encroach or obstruct an alleyway." McGroarty's lawsuit notes, "The citations are based upon the erroneous claim by the city that there is a public alley or passageway through the property."
Further, Jones describes the monetary fines - coupled with lack of proof of ownership and ignoring the judgment quieting title - as an unlawful taking of his property without due process of the law and without offering him adequate compensation as required by law.

"The fines attached to the (10) citations are now getting close to the $500,000 mark," McGroaty said, "which is my second lawsuit against the city."

Earlier, he had been awarded a recorded judgment quieting title to the portion of the property the city claims is a "public alleyway" in McGroarty's predecessors in interest.

This court action was described at length in the July 5 edition of the Bandera County Courier.

According to Jones, the city's claim to a public alleyway across the property is unsupported by any documentation - whether through dedication to the city for public use or acquired by the city using the process of eminent domain. "The city has offered no evidence on the issue of ownership or title, or even a colorable assertion of ownership in the property," Jones wrote. Colorable assertion of ownership can be described as "mere semblance of legal right" or "the pretense or appearance of ownership."

McGroarty is requesting compensation for the fair market value of the so-called "public alleyway," as well as an equal fair market value for the remainder of his land that he alleges has essentially been "taken." In addition to "reasonable and necessary" attorneys' fees, McGroarty is also seeking lost profits and other damages and expenses that have resulting from assessed penalties and fines that were based on the city unlawful actions. These compensations would account for the $1 million McGroarty mentioned in the interview.

The remaining five lawsuits were those filed against city council members personally because, according to the filing, they are acting "without legal or statutory authority."

According to McGroarty, the personal lawsuits filed against council members for over-stepping and over-reaching their bounds are independent of litigation against the city. "They will have to hire personal lawyers," he said. "The city cannot represent them in these suits. It would be a conflict of interest."

In an email, King, the city's attorney, disagreed with McGroarty's interpretation. King wrote, "Mr. McGroarty is attempting to allege ... that the council members at issue acted beyond the course and scope of their duties as council members, and thus the city cannot defend their actions."

King continued, "Unfortunately for Mr. McGroarty, the lawsuit does not allege any actions taken by the council members. Instead, the lawsuit alleges that the city is improperly prosecuting him in municipal court ... that the city prosecutor shouldn't be prosecuting him.

"A prosecutor's judgment on whether to prosecute a particular individual is within their prosecutorial discretion, and is not and cannot be construed to be an action of any councilmember. After all, in any criminal case, the prosecution represents the State of Texas, not the City of Bandera.

King concluded, "In short, Mr. McGroarty is incorrect, and our office can - and will - represent the named council members, as well as the city, in this case."

Interestingly, according to the court document, the city was given notice in writing of the claims made in the petition more than 30 days before the suit was filed. However, municipal attorney Barbara Boulware-Wells apparently failed to respond to McGroarty's attorney.