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As published in the East Dallas newspaper, New Orleans appellate court rejects city?s contentions in Tenison lawsuit By ANTHONY JONES NEW ORLEANS -- The U.S. Court of Appeals for the Fifth Circuit in New Orleans affirmed the district court?s ruling in the Tenison lawsuit, which increases the possibility for the 104-acre property to revert back to the Tenison descendents. A panel consisting of Chief Judge Carolyn Dineen King, Patrick E. Higginbothem and E. Grady Jolly heard the city?s appeal of the District Court?s denial of city?s motion for summary judgment on the issue of sovereign immunity. According to the appellate court?s ruling, the Webbs suffered a "concrete constitutional injury-in-fact by the city?s failure to operate the Tenison property in accordance with the deed restrictions." In 1923, Edward O. and Annie M. Tenison donated the parkland in honor of their deceased son, Edward Hugh Tenison, with the express condition that the property will always be used "for the purpose of a public park, for the use and enjoyment of the people of the city of Dallas." The Tenison descendants filed a suit Nov. 24, 2000, in U.S. District Court, claiming the city of Dallas had violated its 1923 deed for Tenison. The four plaintiffs, Ann Tenison Hereford Webb, Lizann Tenison Webb, Byron James Webb and Camille Ellizabeth Webb Sewell asserted that they are entitled to reclaim the 104-acre park .Chief Judge King ruled that through the express conveyance of a fee simple subject to a condition subsequent, the Webbs could now redress this injury by exercising their right of reentry as "heirs." In the ruling, the appellate judges explained that the Texas Supreme Court "quite plain[ly]" gives general consent for a District to be sued in the courts of Texas such that immunity from suit is expressly waived. According to the ruling, there is no general law waiving the state?s immunity from suit where liability is sought because of breach of contract. The panel explained the city is liable here because both the state and the city?s argument that the "sue and be sued" provision is just a recognition of its corporate capacity to sue and be sued. "Express legislation provides that the city may be sued," Judge King said. "As a home-rule municipality, the city may exempt itself from suit. It has not done so here. As its resolution is not essential to our holding, we do not address the Webb?s final argument that the city waived its right to assert immunity from suit by "accepting the benefits of the gifts, subject to the terms and conditions thereof." Plaintiffs have asserted a claim in this controversy sufficient to satisfy the jurisdictional requirements. Further, sovereign immunity from suit does not bar plaintiff?s suit against the city of Dallas. We affirm the district court?s order insofar as it denied the city sovereign immunity from suit. On Oct. 4, 2001, the United States Magistrate Judge recommended that the district court deny all pending motions in this case. By order dated Oct. 17, 2001, the district court adopted the "Findings and Recommendation of the United States Magistrate Judge," effectively denying the city?s motion for summary judgment and for judgment on the pleadings. The city of Dallas appealed the district court?s order denying its motion. |
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