As a classic and particularly egregious example of abusive and untrustworthy government, it has become one among many points of embarrasment for the city in recent years and therefore a point of discussion in local political matters, such as the upcoming city council races.
Because P&Z board member Marc Edelman seems to wish to direct all recent discussion on this blog to the topic of the bridge in a vain effort to defend the inexcusable actions of the city in this affair, this thread has been started with the stated purpose of being entirely dedicated to the topic of the Glen Cove bridge. All such discussion is welcome here. Anybody who is bored by this topic is welcome to ignore this and move on to other threads.
For the sake of continuity, here are the recent threads which diverged into discussion of the bridge:
Remember The Bridge!
Jeff Hagen
10 comments:
Marc Said:
“I know when I say this, it makes the hair stand up on Paul Smith’s neck, but it was a rickety old bridge.” (posted yesterday under heading of Setting the Record Straight)
No Marc, your comments no longer make the hair stand on my neck. On the contrary, your opinions and comments bring a smile to my face.
You have become only a bit player in the saga of the Glen Cove Bridge Fiasco. Your statements and opinions are without support and are incorrect.
This is an abbreviated response to your ridiculous post.
More to come. Much More.
The above was Repost from my post of February 26, 2009 8:07 AM:
Installment One (More to Come) as follows:
Marc, we have a difference of opinion on these Glen Cove issues. Your Friends seem to shape your opinion and I have never understood the basis for your comments. My opinion is based on 30 years experience in the real estate business. For ten years of my career I was worked in the investigation and valuation of “failed” real estate ventures owned by Resolution Trust Corporation (RTC) and Federal Deposit Insurance Corporation (FDIC).
My opinions on Glen Cove real estate issues are based primarily on the following:
Over 1,200 pages of document from NRG (the company that sold the canal properties) to the City and MB Harbour
Over 20 hours of sworn testimony and legal depositions of Jerry Shults, Chris Reed, Jack Murphy, Tommy Cones, John Lothrop
Countless pages of recorded deeds & plats
League City Charter, Local Government Code
Many opinions from Office of Texas Attorney General regarding property rights and Open Meeting Act.
I believe a few individuals are responsible for this fiasco.
Several months ago I was in a meeting at the city and was ask to discuss a possible resolution to this mess. At the next council meeting CC Cones and Friends supported an item in executive session to halt any such discussions. The “Paul Smith Proclamation” was made in open council that neither city council nor staff could discuss Glen Cove issues with me or other lawsuit plaintiffs.
Installment Two will have a heading like: “Glen Cove Bridge - TOP 10 Myths”.
Marc, you have made a significant contribution in this material and will be given the recognition you deserve.
The car is packed. Time for R & R. See you guys next week.
Remember the Bridge!
Marc,
You are like a broken record.
Just a little more follow-up to some of the nonsense you have posted over the past few days...
Over the past three years you have repeatedly made your accusations that the residents who own boat houses & docks on Glen Cove have somehow done so wrongly. You have been repeatedly told that this is not the case and that those property owners have and have always had the right to construct, own, and maintain all property that they claim ownership of in Glen Cove. You have also been repeatedly told that due to on going litigation and threat of litigation not all evidence in this case will be discussed publicly nor discussed with you in private. Suffice to say that it is plainly obvious that you are making accusations which you will be unable to support.
Furthermore, you repeat your also false implication that the residents of Glen Cove involved in litigation against the city in regard to the bridge are only doing so in an effort to defend their interest in said boat houses, not out of genuine concern in regard to the bridge. You have been repeatedly told that this is also a false accusation. I can assure you that my position in regard to the wrongful removal of the bridge is motivated by my interest in the bridge itself. If you wish to claim otherwise, then you had best be prepared to call me a liar and be ready to prove it. You have also been told that there are parties in the litigation whose interest can only possibly be in the bridge due to the fact that not everyone in the lawsuit owns a dock or boat house, or even water front property.
Again you also repeat your long disproved claim that the developer owns the bridge. As Paul Smith points out to you yet again, the city now denies that they ever sold the bridge tract to the developer and in fact have never produced any evidence that they ever even owned the bridge tract. Before you dredge up your past claim that perhaps the developer acquired the bridge tract from successors to HL&P, recall also that no evidence has ever been offered that HL&P or their successors ever owned the bridge tract or sold it to the developer either.
Most important though, you once again repeat your worn assertion that the citizens of this city should not worry that our interest were trampled because it was somehow in the best interests of the city to trample on us in the name of increasing the tax base. (Never mind of course that you are ignoring the increased cost to the city infrastructure in terms of increased utility and traffic demands or the fact that in today's market it will likely be many years, if ever, before these yet to be built super high dollar homes contribute as much taxes as you claim.) There is no disputing the fact that in allowing the bridge to be demolished that the city reneged on a clear promise to the residents, that it did so in a deliberately secretive and deceptive manner which has become a matter of legal dispute, that it made no effort whatsoever to inform the affected residents or to seek their opinion on the matter, that it made no effort whatsoever to mitigate the consequences to those residents, that it has refused all requests from those residents to negotiate for a more equitable solution, and that in fact it did serious harm to those residents. As I have replied to you many times before, given such circumstances, how can ANY resident of this city feel that their rights are safe from the depradations of city hall?! Surely it is only yourself and the various incarnations of Pat Hallisey's multiple personalities who would defend this as an acceptable act of government.
Contrary to what you claim, this was indeed a deal done 'in the dead of night'. During a holiday period the reversal of the city's promise to rebuild the bridge was added to the last minute agenda days before a council meeting with no public notice other than posting on the door of city hall and buried in a larger agenda item such that even council members did not realize what it was. As a member of city government it is certainly reasonable to expect that you should be held accountable for an intimate awareness of the impending actions of city government. As an acquaintance of the developer and a friend of council members it is hardly surprising that you had awareness that the city intended to renege on its promise. It is the acme of absurdity though for you to imply that all citizens of the city should make a trip to city hall every week to see if any agenda updates have been posted without otherwise being made available, to get in contact with appropriate experts that could explain to them if any item on the agenda somehow had a hidden implication for their interests, and that every citizen should attend the full length of every city council meeting. If for no other reason than city hall can not hold that many people and Walker street can not handle that much traffic. As a member of city government, if you had knowledge of this deal and took no steps to inform those of us affected, then the failure of open government is your fault, not ours.
Of course it is possible that your recollections of extensive discussion about the bridge issue by council are as accurate as your recollection of driving over a "rickety old wooden bridge".
There is no hate here, merely outrage at a particularly egregious failure and abuse of government. Refusal to acquiesce to abusive government is after all the fundamental reason that this country exists. When confronted with such a situation it is our patriotic duty to resist and to warn our fellow citizens to be aware. Nor is it acceptable to merely admit a mistake was made, try to pawn it off completely on those no longer present and then just insist that everyone should accept the fait accompli. Without responsibility to make corrections or amends for failures and wrong doings, there can be no hope of forcing governments to behave with accountability to the people.
Given your stubborn defense of this abuse of government power, I for one am becoming rather uncomfortable with trusting you to represent the interests of the citizens by continuing your service on the Planning & Zoning commission. Perhaps it is time for you to do like all phonograph records, broken or otherwise, and fade away.
Remember The Bridge!
Jeff Hagen
Marc
Stop. Enough. It is getting all too embarassing. The Glen Cove issue will soon be legally resolved.
You are entitled to your opinion, but stay with the facts. There seems to be a disconnect between your logic and the truth. Your friends are leading you down their path of self destruction.
The bridge is gone, don't drown in the water.
one week for candidates to file for election. cjm, what's the lastest on candidates who have filed? Seen signs around town for lee and phalen. can care to tell us something about them.
Met Mike Lee I guess it was a few years ago when he last ran. Wasn't impressed. I mentioned that 646 and I45 would be a mess once Walmart opened. His response (with a look of "duh"), "I hadn't thought of that.
Marc:
I've taken into careful consideration your economic argument on Cypress Bay vs Glen Cove. It might even be relevant if it addressed legal or fairness issues. Still, I see it clearly.
So I'm going to come steal your $9,000 (or whatever it is) car. I know you'll see what a greater contribution I've made to the community as a whole, for such little cost to only one sour person, after I've taken your car to Orange County Choppers and had it detailed and tricked out. It will be a lot heavier, raising the DMV and other fees, and worth more money, raising the sales tax when I unload it to the next guy. And that might even be you, after you see what OCC can do with a rickety old beater like yours.
Chris John Mallios Age: 42. Party: Democrat. Resides: League City. Occupation: Ground supervisor for the Channelview Independent School District.
Column Just a Move to Sell Papers
I am amused by your editorial dated Nov. 7 in The Daily News. Let us examine this in a logical manner.
You are in the paper business. You wish to gain circulation. It does not take a rocket scientist to figure out that your circulation in the north part of the county can only go up.
There are many Republicans in the northern part of the county. We can connect the dots. If you really want to increase circulation, why not just rename the paper to The Republican Daily News?
Come on, Mr. Dolph Tillotson, if you were that much of a Republican, you would have endorsed your local candidates before the election, not after.
Chris Mallios
League City
Letters to the Editor
June 10, 2003
Letters to the Editor published in The Daily News:
Writer Should Get Facts Straight Before Speaking
As a rule, I usually do not answer letters that people send to the paper about me which are negative in nature.
However, I feel compelled to do so in reference to Christopher Mallios’ letter blasting Commissioner Ken Clark and myself (The Daily News, May 31).
Mr. Mallios needs to get his facts straight before he accuses folks of things they have not done. I make references to pay increases that some of the higher echelon at the county received awhile back. If I remember correctly, and I usually do, I voted against these pay increases, and I believe Commissioner Clark did also.
Maybe if Mr. Mallios would take the time to come to some of the commissioners court meetings, he would get first hand information before running his mouth off.
Eddie Janek
County commissioner, Precinct 2’
Letters to the Editor
October 26, 2003
Letters to the Editor published in The Daily News:
More Rooftops, Taxes And Traffic
Regarding the development of League City
(Sung to the tune of “The Beverly Hillbillies”):
Let me tell ya a little story of the town of League City.
A small town place in the ’60s it was itsy bitsy.
Then one day a large developer came to town.
Bought up some land and put some houses down.
Economic development it’s called,
More rooftops, more tax money, traffic congestion.
Fifty-three thousand citizens is our current population.
Continued rapid growth appears to be our destination.
How do we deal with the tax rate that is high?
Some say we build more houses, and let me tell ya why.
Economic development it’s called,
More rooftops, more tax money, traffic congestion.
One hundred thousand more in 2022,
That’s how many they predict will be living next to you.
Any open space will be few and far between,
The “small town atmosphere” was only just a dream.
Economic development it’s called,
More rooftops, more tax money, traffic congestion.
Chris John Mallios
League City
Affirmed and Majority and Concurring and Dissenting Opinions filed August 30, 2007.
In The
Fourteenth Court of Appeals
___________
NO. 14-06-00294-CV
____________
CHRIS MALLIOS, Appellant
V.
STANDARD INSURANCE COMPANY, FIRST FINANCIAL BENEFITS, INC., NULL LAIRSON, P.C., JIM YARBROUGH, EDDIE BARR, EDDIE JANEK, STEPHEN HOLMES, KEN CLARK, AND PHILLIP LOHEC, Appellees
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 04CV1063
M A J O R I T Y O P I N I O N
Appellant Chris Mallios appeals the trial court=s grant of summary judgments in favor of appellees, contending that various appellees (1) failed to establish as a matter of law the affirmative defenses of limitations, res judicata, and collateral estoppel, (2) provided insufficient affidavits in support of no-evidence motions for summary judgment, and (3) failed to establish official immunity. Mallios also contends the trial court erred in denying his motion for summary judgment. We affirm.
Factual and Procedural Background
Our recitation of the factual background of the case is somewhat limited, because Mallios=s record on appeal does not include (1) the appellees= motions for summary judgment and the supporting evidence, (2) Mallios=s responses to the motions for summary judgment and any supporting evidence, or (3) any motion for summary judgment filed by Mallios.[1] However, we draw the following from Mallios=s pleadings.
Mallios filed suit against Standard Insurance Company (AStandard@), First Financial Benefits, Inc. (AFirst Financial@), Null Lairson, P.C. (ALairson@), members of the Galveston County Commissioner=s Court Jim Yarbrough, Eddie Barr, Eddie Janek, Stephen Holmes, and Ken Clark (collectively, AMembers@), and Phillip Lohec (ALohec@), on behalf of himself and as a class representative, for alleged wrongdoing in connection with the group life insurance provided to Galveston County employees. In his petition, Mallios claimed that premium payments for the employees= term life insurance coverage were wrongly used to purchase a Amembership interest@ with the right to vote in Standard. Then, in 1999, Standard conveyed that interest back to the County for approximately $2.4 million, and the County allegedly used the money to pay a county liability instead of distributing it to the employees= retirement annuity accounts. Mallios claimed violations of Texas Insurance Code articles 3.50 and 21.21, violations of the Deceptive Trade PracticesCConsumer Protection Act, and conspiracy.
Each of the defendants answered and asserted various defenses. Relevant here, Standard asserted numerous affirmative defenses, including the applicable statute of limitations, collateral estoppel, and res judicata, Mallios=s lack of standing as a consumer, and defenses specific to Mallios=s alleged Insurance Code violations. First Financial=s answer raised similar defenses, including the affirmative defenses of the statute of limitations, res judicata, and collateral estoppel. Lairson asserted several affirmative defenses, including the statute of limitations, and also sought special exceptions, which were denied. Members asserted, among other things, official immunity from suit, the applicable statute of limitations, res judicata, and collateral estoppel. Lohec also asserted official immunity, the statute of limitations, and other defenses.[2]
Standard, First Financial, Lairson, the Members, and Lohec all moved for summary judgment, which the trial court granted. Mallios moved for reconsideration, but the trial court denied the motion. This appeal followed.
I. Analysis of Mallios=s Appeal
On appeal, Mallios contends the trial court erred in granting appellees= motions for summary judgment, denying his motion for summary judgment. Mallios=s complaints are presented in four categories. In the first category, Mallios contends the appellees failed to establish as a matter of law the affirmative defenses of limitations, res judicata, and collateral estoppel. In the second category, Mallios contends that affidavits supporting Lairson=s and First Financial=s no-evidence motions for summary judgment were nonspecific, conclusory, and contained admissions that supported Mallios=s claims. In the third category, Mallios contends that Lohec failed to produce any summary judgment evidence to support his claim of official immunity. Finally, Mallios contends the trial court erred in denying his motion for summary judgment because, although the Members answered Mallios=s original petition and filed amended answers to the original petition, their amended answers did not deny the allegations in Mallios=s amended petition. Consequently, Mallios contends, the Members admitted all the essential elements of his claims and he was therefore entitled to summary judgment against Members.
In response, all of the appellees contend that the trial court=s judgment must be affirmed because Mallios did not provide this Court with a complete record on appeal, and therefore we must presume the omitted documents support the trial court=s orders granting summary judgment.
A. Mallios=s Record on Appeal
1. The Record Before Us
The clerk=s record contains Mallios=s amended original petition, answers of each of the appellees, Null Lairson=s special exceptions and the order denying them, five separate orders granting the motions for summary judgment of Standard, First Financial, Lairson, the Members, and Lohec,[3] Mallios=s motion to reconsider appellees= motions for summary judgment with exhibits, the order denying Mallios=s motion to reconsider, Mallios=s notice of appeal, Mallios=s designation of the record, and a few other documents not relevant here.
Significantly, although Mallios=s designation of the record lists eighteen requested documents, Mallios did not request any of the summary judgment motions he challenges on appeal, nor did he request his responses to the motions or any supporting evidence. And, even though Mallios contends on appeal that the trial court erred in not granting his motion for summary judgment, he did not request this document be included in the record, either.
2. The Parties= Arguments Concerning the Record
As noted above, each of the appellees argue that, because Mallios brought forward an incomplete and inadequate record, he cannot prevail on appeal because we must presume the omitted documents support the trial court=s grants of summary judgment.[4] Appellees contend this outcome is mandated by Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547, 549B50 (Tex. 2004) (per curiam), in which our Supreme Court affirmed a partial summary judgment on liability in favor of Enterprise in part because Barrios failed to provide the appellate court with a complete record to review. The Supreme Court explained that, A[a]lthough Enterprise bears the burden to prove its summary judgment as a matter of law, on appeal Barrios bears the burden to bring forward the record of the summary judgment evidence to provide appellate courts with a basis to review his claim of harmful error.@ Id. at 549 (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990); Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex. 1982)). The Court then instructed that A[i]f the pertinent summary judgment evidence considered by the trial court is not included in the appellate record, an appellate court must presume that the omitted evidence supports the trial court=s judgment.@ Id. at 550 (citing DeSantis, 793 S.W.2d at 689). Applying this instruction, the Court thus presumed Barrios=s answers to requests for admissions, which Enterprise relied on in part to support its motion, but which Barrios did not include in the appellate record, supported the trial court=s partial summary judgment in favor of Enterprise. Id.
In his reply brief responding to the appellees= assertion that Enterprise is fatal to Mallios=s appeal, Mallios first argues that his record is sufficient because Texas Rules of Appellate Procedure 34.1 and 34.5 specify the contents of an appellate record, and motions for summary judgment and attached appendices or exhibits are not mentioned in the rules. Mallios also claims that Enterprise does not hold that the Aactual motions for summary judgment@ and attached appendices or exhibits must be included in the record; it only requires that an appellate record contain the Apertinent summary judgment evidence considered by the trial judge.@ Mallios contends the appellate record he presented contains all the pertinent summary judgment evidence required.
Additionally, Mallios objects to portions of the appellees= briefing. The appellees, in addition to complaining about the insufficiency of the appellate record, raise several substantive arguments to Mallios=s appeal. The appellees contend, among other things, that Mallios failed to appeal all the grounds raised in support of their summary judgments. To support their contention, appellees include with their briefing appendices containing copies of their motions for summary judgment and other documents they assert are relevant to their arguments on the merits of the trial court=s grants of summary judgment in their favor.[5] Mallios objects to the appendices containing motions for summary judgment and other documents as being outside of the appellate record, citing Davis v. Huey, 571 S.W.2d 859, 862 n.2 (Tex. 1978).
B. Our Resolution of the Parties= Arguments
Enterprise does not support Mallios=s conclusion that only the Apertinent evidence@Cnot the motion for summary judgment or its attachmentsCis needed in the appellate record.[6] If anything, Enterprise illustrates how important it is for an appellant challenging a grant of summary judgment to include the complete summary judgment record considered by the trial court in ruling on the motion for summary judgment; otherwise, the appellate court may apply the presumption that the omitted documents support the trial court=s judgment and affirm the grant of summary judgment on that basis. See 156 S.W.3d at 549B50; see also Aguirre v. Vasquez, 225 S.W.3d 744, 752 (Tex. App.CHouston [14th Dist.] 2007, no pet.). Further, Enterprise places the burden squarely on the party challenging the grant of summary judgment to ensure that all documents needed for this court to fully review the correctness of the summary judgment are in the record. See Enterprise, 156 S.W.3d at 549.
We also reject Mallios=s argument that he need not include the motions for summary judgment and exhibits in the appellate record because the Rules of Appellate Procedure do not require them to be included. Rule 34.1 does not aid Mallios because it merely provides that A[t]he appellate record consists of the clerk=s record and, if necessary to the appeal, the reporter=s record,@ and specifies that there should only be one appellate record in a case. See Tex. R. App. P. 34.1. Rule 34.5, which lists the documents the trial court clerk must include in the clerk=s record in the absence of a party=s designation, does not specifically include motions for summary judgment. See Tex. R. App. P. 34.5(a); see also Tex. R. App. P. 35.3(a) (stating that it is the trial court clerk=s responsibility to prepare, certify, and timely file the clerk=s record). But, Rule 34.5 does not limit a party to those documents; rather, it permits any party to designate additional items to be included in the record. See Tex. R. App. P. 34.5(b). Thus, although the trial court clerk is required to include at least the documents listed in Rule 34.5, per Enterprise, if a party wishes to successfully appeal a grant of summary judgment, he must include more than those documents the court clerk is required to includeChe must include all Apertinent@ documents the trial court considered in granting the motion. Otherwise, on appeal, the appellant would be unable to demonstrate that a genuine issue of material fact existed that precluded summary judgment in favor of the movant.
Based on the record before us, not only are we unable to review the evidence the appellees presented in support of their motions for summary judgment, but because we do not have the motions, we do not know what arguments appellees made that the evidence was intended to support. We do not know if the motions were traditional or no-evidence motions, so that we may review them appropriately. We do not have Mallios=s responses to the motions for summary judgment (if any), so we cannot determine whether Mallios presented evidence that would have demonstrated that appellees were not entitled to summary judgments in their favor. We do not have Mallios=s motion for summary judgment. We also cannot discern whether any party is attempting to raise on appeal an issue not expressly presented to the trial court. See Tex. R. Civ. P. 166a(c) (AIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.@). Finally, we cannot determine whether appellees correctly contend that Mallios did not address all possible grounds for summary judgment in this appeal.
This is not a case in which the appellant mistakenly failed to designate a document or did not immediately realize an important document was missing from the record. Mallios designated a record that omitted all of the summary judgment briefing and attached evidence. He has continued to take the position the documents were unnecessary even after all of the appellees argued in their responsive briefs that the omissions were fatal to his appeal. Mallios has not made any request to supplement the record.
Based on the state of the record before us, we overrule all of Mallios=s issues and affirm the trial court=s judgment.
II. Appellees= Requests for Sanctions
Appellees contend that Mallios should be subject to sanctions for bringing a frivolous appeal. See Tex. R. App. P. 45. However, the fact that Mallios did not file a sufficient record for us to address his issues does not, alone, render his appeal frivolous. See Sam Houston Hotel, L.P. v. Mockingbird Restaurant, Inc., 191 S.W.3d 720, 721 (Tex. App.CHouston [14th Dist.] 2006, no pet.). We note that Mallios=s brief contains issues presented, record references, and legal authorities. Further, he filed a reply brief in response to appellees= briefs that included requests for sanctions. We decline to impose sanctions against Mallios.
III. Conclusion
We affirm the trial court=s judgment.
/s/ Margaret Garner Mirabal
Senior Justice
well guys it looks like Pat has hijacked the blog. These antics are so old.
The sad thing is you think your are helping Tommy and your developer friend.
I doubt it.
Get help.
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