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Matthes-Opus lawsuit: Response to Motion to Intervene

Matthes-Opus lawsuit: Response to Motion to Intervene

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Matthes-Opus lawsuit: Response to Motion to Intervene
Matthes-Opus lawsuit: Response to Motion to Intervene

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Published by: The Columbia Heart Beat on Aug 25, 2014
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1 IN THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI BETTY WILSON, ) MICHAEL MACMANN, ) ) ) Plaintiffs ) v. ) Case No. 14BA-CV02668 ) CITY OF COLUMBIA ) ) MIKE MATTHES, ) ) ) Defendants. )
PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE OF OPUS DEVELOPMENT COMPANY, LLC AND HSRE-ODC II MIZZOU, LLC
Plaintiffs initiated this lawsuit to protect their civil rights under the Columbia City Charter, the Missouri Constitution, and the U.S. Constitution. On Friday, August 13, two apparently related entities filed a motion to intervene: (1) Opus Development Company, LLC, and (2) HSRE-ODC II MIZZOU LLC. These entities contend that this Court's protection of the civil rights of the Plaintiffs will interfere with their interests. As we will see below, there is a material difference between the two parties seeking to intervene in this lawsuit. Opus Development Company has been the public entity involved with this student housing development since March 2014. The obscurely named HSRE-ODC II MIZZOU LLC did not exist in any legal form in March 2014, and only became authorized to do business in Missouri on July 30, 2014, the day before the
second 
 referendum petition relating to this student housing development was certified as sufficient by the City of Columbia (and six weeks
after
the first ordinance authorizing this development to proceed was repealed by the City Council). Under Rule 52.12(a), the proposed intervenor must establish three elements: “(1) an interest relating to the property or transaction which is the subject of the action; (2) that the
Case 2:14-cv-04220-NKL Document 3-3 Filed 08/22/14 Page 1 of 20
 
2 applicant's ability to protect the interest is impaired or impeded; and (3) that the existing parties are inadequately representing the applicant's interest.”
State ex rel. Nixon v. Am. Tobacco Co.
, 34 S.W.3d 122, 127 (Mo. Banc 2000) (internal quotations omitted). The proposed intervenor “carries the burden of establishing the presence of all three elements required for intervention as a matter of right.”
Kinney v. Schneider Nat'l Carriers, Inc.
, 200 S.W.3d 607, 611 (Mo. App. W.D.2006) (internal quotation omitted). “[A] motion to intervene as of right under Rule 52.12(a)(2) may properly be denied if even one of these three elements is not established.”
Kinney
, 200 S.W.3d at 611. Although Rule 52.12(c) is clear that a party wishing to intervene has to attach a "pleading setting forth the claim or defense for which intervention is sought," neither party attached such a pleading to their Motion to Intervene. Absent such a pleading, neither Plaintiffs nor this Court are in a position to understand the nature of the intervention being sought. Do they seek to intervene as relief defendants merely as to the injunctive relief being sought? Do they seek to intervene as Plaintiffs to pursue breach of contract claims against the Defendant City, as alleged in the affidavit of Joseph Downs? And if the latter, why is their participation in
this
 civil rights lawsuit, rather than pursuit of their own remedies, necessary to vindicate those interests? Having failed to describe the nature of their proposed intervention, they cannot meet their burden. This Court should deny the motion to intervene.
I. THE MOTION TO INTERVENE IS DEFECTIVE BECAUSE OPUS DEVELOPMENT COMPANY AND HSRE-ODC II MIZZOU LLC ARE FACTUALLY AND LEGALLY DISTINCT ENTITIES.
Opus Development Company and HSRE-ODC II MIZZOU LLC seek to be treated as identical entities in their Motion to Intervene. As a matter of fact and law they are entirely separate. Opus Development Company has entered into contracts with the City of Columbia and
Case 2:14-cv-04220-NKL Document 3-3 Filed 08/22/14 Page 2 of 20
 
3 arguably applied for permits to proceed with the student housing development at Eighth and Locust.
1
 HSRE-ODC II MIZZOU LLC is a limited liability corporation incorporated under the laws of Delaware. When Plaintiffs signed and gathered signatures for the referendum petition to repeal Bill 62-14, HSRE-ODC II MIZZOU LLC did not exist. It did not exist in any form in any state until June 12, 2014, when it was apparently incorporated in the State of Delaware.
2
 It did not receive authorization to conduct any business in the State of Missouri until July 30, 2014. This is after the City of Columbia repealed Bill 62-14, after Plaintiffs had signed and gathered signatures on the referendum petition to repeal Bill 130-14, and the day before the referendum petition to repeal Bill 130-14 was certified as sufficient. Thereafter, on August 7, it apparently purchased three parcels of real property in Boone County, Missouri, and recorded the deeds thereto on August 8, 2014. Opus Development Company, L.L.C., by contrast, was incorporated in Delaware in October 2012, and was authorized to do business in Missouri on January 8, 2013.
3
 With full knowledge that a referendum petition was circulating in the community regarding the development agreement authorized by Bill 62-14, Opus Development Company LLC recorded the first development agreement with Defendant City of Columbia on April 1, 2014. This agreement acknowledges that "inadequate water, fire protection, electric, storm water and sanitary sewer facilities exist to serve the proposed increase in use of the Developer Tract which
1
 Exhibit 5 to the Downs Affidavit shows correspondence to Crockett Engineering, not to Opus Development Company LLC; Exhibit 6 to the Downs Affidavit reveals a demolition permit filed by Peggy Tomlins, who apparently no longer owns the subject property; Exhibit 8 to the Downs Affidavit is correspondence to a Mr. Lewis at the "Opus AE Group" not the Opus Development Company LLC regarding permits.
2
 See Exhibit 1 to the Affidavit of Jeremy A. Root, attached hereto as Exhibit A (July 30, 2014 authorization of HSRE-ODC II MIZZOU LLC to do business in Missouri).
3
 See Exhibit 2 to the Affidavit of Jeremy A. Root, attached hereto as Exhibit A (authorization of Opus Development Company, LLC to do business in Missouri). Apparently, this is a distinct legal entity from Opus Development Corporation, an Illinois corporation with the same officers and business address, that revoked its authorization to do business in Missouri in March 2013. See Exhibit 3 to the Affidavit of Jeremy A. Root, attached hereto as Exhibit A.
Case 2:14-cv-04220-NKL Document 3-3 Filed 08/22/14 Page 3 of 20

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