defendants’ first response - davinci investment vs. city of arlington

8/13/2019 Defendants first response - DaVinci Investment vs. City of Arlington

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CAUSE NO. 048-269023-13DA VINCI INVESTMENT LIMITED N THE DISTRICT COURTPARTNERSHIP,

PLAINTIFF,V.

DEFENDANTS. 8TH DISTRICT COURT7 .DEFENDANTS ORIGINAL ANSWER TO cr :3PLAINTIFF S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT rnzDefendant City of Arlington, Texas ( City ), and Defendants CharliAlikeraat

rr,Wilemon , Sheri Capehart, Jimmy B ennett and M ichael Glaspie (collectively' refeW ed to as "theCouncil Members ), respectfully submit the following original answer to Plaintiff's Original( Petition ) filed by Plaintiff Da Vinci Investment Limited Partnership ( Da Vinci ), andrespectfully show the court the following:

I.GENERAL DENIAL

1 ursuant to Rule 92 o f the Texas R ules of Civil Procedure, the City and the CouncilMembers deny each and every material allegation of the Petition and demand that each suchallegation be proved by a preponderance o f the evidence.

TARRANT COUNTY, TEXASCITY OF ARLINGTON , TEXAS;CHARLIE PARKER; KATHRYNWILEMON; SHERI CAPEHART; J IMM YBENNETT; AND M ICHAEL GLASPIE,

DEFENDANTS ORIGINAL ANSWER TO PLAINTIFF S ORIGINAL PETITION age 1


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II.AFFIRMATIVE DEFENSES

2. The C ity and the Coun cil Mem bers affirmatively plead that Da Vinci has failed tostate a claim against them up on w hich relief can be granted.

3. The C ity and the Cou ncil Mem bers affirmatively plead that Da Vinci has failed toadequately allege, and is unable to identify or prove, any City policy, practice, custom or usage thatcaused any violation of Da Vinci's constitutional or statutory rights.

4. The C ity and the Council M embers affirmatively plead that they cannot be liable to..

Da V inci because the acts or omissions complained of by Da Vinci w ere not proximately caused by,.any constitutionally defective policy, practice, custom or usag e of the C ity.

5. The C ity and the Council M embers affirmatively plead that they cannot be liable toDa Vinci because the Council Mem bers inflicted no constitutional harm upon Da Vinci and D aVinci, as a matter of law, therefore has sustained no inju ry as a result of any official policy, practice,custom or usage of the City.

6. The C ity and the Council M embers affirmatively plead that they cannot be liable toDa Vinci because Da Vinci did not possess a clearly defined, constitutionally protected, propertyinterest in developm ent plan approval.

7. The C ity and the Council M embers affirmatively plead that they have not taken,damaged or destroyed any property interest of Da V inci's in violation of article I, 17 of the TexasConstitution.

8. The C ity and the Council M embers affirmatively plead that Da V inci 's unlawfultakings claim under article I, 17 of the Texas Constitution is not ripe.

DEFENDANTS ORIGINAL ANSWER TO PLAINTIFF S ORIGINAL PETITION - age 2


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9. The C ity and the Co uncil Memb ers affirmatively plead that, to the extent Da V inci'sclaims of denial of equal p rotection, and denial of sub stantive du e process, under the F ourteenthAm endmen t to the United States Constitution, and 42 U .S.C . 1983, rely on allegations that DaVinci's property was taken unlawfully, such claims are not ripe.

10. The C ity and the Council M embers affirmatively plead that they have not violated DaVinci's rights to equal protection in v iolation of the F ourteenth Am endment to the United S tatesConstitution and 42 U.S.C . 1983.

11. The C ity and the Council M embers affirmatively plead that they have not violated DaVinci's rights to substantive due process in violation of the Fourteenth Amendment to the UnitedStates Constitution and 42 U .S.C . I983.

12. The Council Members affirmatively plead that they are absolutely immune from suitand damages based upon the doctrines of legislative, quasi-legislative, quasi-judicial and otherapplicable absolute immun ities.

13. In the alternative to absolute immunity, the Cou ncil Mem bers affirmatively plead thatthey are entitled to a qualified immunity from suit and damages because the Council Members at alltimes acted within the scope of their discretionary authority and did not violate any clearlyestablished statutory or constitutional rights of which a reasonable p erson would h ave know n.

14. In the alternative to absolute immunity, the Co uncil Mem bers affirmatively plead thatthey cannot be liable to Da Vinci because at all times they acted within the scope of theirdiscretionary authority and with a reasonable, good faith belief that their actions were lawful andproper, that they acted without objective malice and without an intent to deprive Da Vinci of any ofits legally protected rights, thereby entitling them to a qualified imm unity from suit and damages.



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15. n the alternative to absolute immu nity, the Council Mem bers affirmatively plead thatthey were at all times public or government officials, to wit: members of the City Cou ncil of the Cityof Arlington Texas that their actions were objectively reasonable that they were not plainlyincomp etent, and that they did not violate clearly established law of w hich a reasonable personwould have known.

16 n the alternative to absolute immu nity, the Council Mem bers affirmatively plead thatthey are entitled to official immunity from suit and damag es because the C ouncil M embers actedwithin the scope of their discretionary duties, in good faith, and within the scope of their authority.

17. To the extent that it is established at trial that at all relevant times the CouncilMem bers were acting as public or government officials, to wit: members of the C ity Council of theCity of A rlington, Texas; w ere performing discretionary functions; and w ere acting in good faith,without malice, and w ithin the scope o f their authority as C ity Council M embers, then the C ity isentitled to derivative immunity based upon the Council M embers' entitlement to official immu nity.

HI.REQUEST FOR COSTS AND ATTORNEYS FEES

18. The C ity and the C ouncil Members request an award of costs and reasonable andnecessary attorneys' fees as are equitable and just, and as are provided for by 42 U .S.C . 1988.

IV.DEMAND FOR JURY TRIAL

19. The C ity and the Council M embers demand a jury trial as to all issues so triable.WHEREFORE, PREM ISES CONSIDERED, Defendants City of Arlington Texas;

Charlie Parker; Kathryn Wilemon; Sheri Capehart; Jimmy B ennett and M ichael Glaspie pray thatPlaintiff D a V inci Investment Limited P artnership take nothing b y this suit and that: (1) all relief



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By:

requested therein be denied; (2) costs and attorneys' fees as provided for by 42 U .S.C . 19 88 beawarded to Defendants; and (3) the court grant D efendants such other and further relief, general orspecial, at law o r in equity, to which they m ay be justly entitled.

Respectfully subm itted,

BROWN & HOFMEISTER,

740 East Cam pbell Road, Suite 800Richardson, Texas 75 081(214) 747-6100 Telephone(214) 747-6111 TelecopierRobert F. BrownState Bar No. [email protected] P. Voss, Jr.State Bar No. 206 20300evossq t)bhlaw.netATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICEA copy of the foregoing docum ent was served by First Class Mail on counsel for Plaintiff,

M essrs. Kelly Jones and Michael Hassett, JONE S HA SSE TT, P.C ., 440 North Center, Arlington,Texas 76 011, on the 27th day of November, 2013.

By: FA/LtvRobert F. Brown


defendants’ first response - davinci investment vs. city of arlington

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