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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ordinance authorizing this development to proceed was repealed by the City Council).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
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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
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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

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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.
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will result from the Project construction."
4
Opus also agreed not to "diminish or usurp the
inherent rights and powers of the City" in that first development agreement.
5
Opus Development
Company, LLC, alleges in the affidavit of Joseph Downs that the City of Columbia breached this
development agreement. Downs Aff. 7 ("The City breached the Development Agreement")
HSRE-ODC II MIZZOU LLC made no such agreements with the Defendant City.
Due to these stark factual and legal differences between the two entities, it is impossible
for the Court or the parties to discern the nature of the interests that each is seeking to protect in
their joint motion to intervene. The Proposed Intervenors should be required to file separate
motions to intervene that state clearly their interests in this civil rights lawsuit before they are
permitted to intervene.
II. THE MOTION TO INTERVENE SHOULD BE DENIED AS TO HSRE-
ODC II MIZZOU LLC BECAUSE ITS INTERESTS WILL NOT BE
IMPAIRED OR IMPEDED IN ANY WAY.
HSRE-ODC II MIZZOU LLC bought this real estate on August 8, 2014. Nothing in this
petition will affect the ownership of real estate in any way, nor is it alleged that it will do so.
HSRE-ODC II MIZZOU LLC was not authorized to do business in Missouri until after the
Plaintiffs had fully exercised their rights under the Columbia City Charter, Missouri Constitution
and the U.S. Constitution, and the Defendants had commenced repeated violations of those
rights. HSRE-ODC II MIZZOU LLC has not applied for any permits relating to this
development, and it has no interest that will be affected by the outcome of this civil rights case.
Its motion to intervene should be denied outright.

4
Downs Affidavit Ex. 1 at 1.
5
Downs Affidavit Ex. 1 at 8, 24.
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III. THERE IS NO EVIDENCE THAT THE DEFENDANTS WILL NOT
ADEQUATELY PROTECT THE INTERESTS OF THE PROPOSED
INTERVENORS.
The third requirement for intervention as of right is that the existing parties will not
protect the interests of the proposed Intervenors. Taken together, the allegations of the Petition
and the assertions in the affidavit of Mr. Downs draw a compelling picture of the lengths that the
Defendants are willing to go to advance the interests of the Proposed Intervenors. The
Defendants sought to thwart the Plaintiffs' first repeal petition through the proposal and adoption
of an identical development agreement with an ordinance that contained provisions designed
expressly to discourage the use of the referendum. Subsequent to Council's repeal of Bill 62-14,
and with a repeal of Bill 130-14 pending, the Defendants provided approval letters to the
Proposed Intervenors regarding their project. Downs Affidavit, 11. Defendants apparently also
gave some private assurance to the Proposed Intervenors that all permits would issue by August
25. See Downs Affidavit, 12-13. Defendants have done little else but advance the Proposed
Intervenors' interests since March 2014, and the Proposed Intervenors provide no reason to
believe that the Defendants will discontinue that support for their interests now. The Defendants
have yet to file a pleading, so the Court has no way to determine whether the interests of the
Proposed Intervenors, ill-defined as they are by their Motion to Intervene, will be adequately
protected by the current parties to this dispute.
CONCLUSION
For the reasons set forth above, the Motion to Intervene of Opus Development Company,
LLC and HSRE-ODC II MIZZOU LLC should be denied at this time.

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Respectfully submitted,
STINSON LEONARD STREET LLP

By: /s/ Jeremy A. Root
Jeremy A. Root, No. 59451
230 W. McCarty Street
Jefferson City, MO 65101
(573)636-6263
(573)636-6231 (fax)
Jeremy.root@stinsonleonard.com

HOLDER SUSAN SLUSHER
OXENHANDLER

Josh Oxenhandler, No. 51645
107 N. Seventh Street
Columbia, MO 65201
Oxenhandler@gmail.com


ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was served upon the Defendants via email to Nancy
Thompson, City Counselor, at njthomps@gocolumbiamo.com on August 18, 2014.

A copy of the above was served upon Tom Harrison, counsel for the Proposed Intervenors, via
email at tom@vanmatre.com on August 18, 2014.

/s/ Jeremy A. Root
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Ex. A to Plaintiffs'
Response to
Motion to Intervene
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Ex. 1 to Affidavit of Root Regarding Motion to Intervene
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Ex. 1 to Affidavit of Root Regarding Motion to Intervene
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Ex. 1 to Affidavit of Root Regarding Motion to Intervene
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Ex. 1 to Affidavit of Root Regarding Motion to Intervene
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Ex. 1 to Affidavit of Root Regarding Motion to Intervene
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Ex. 2 to Affidavit of Root Regarding Motion to Intervene
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Ex. 2 to Affidavit of Root Regarding Motion to Intervene
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Ex. 2 to Affidavit of Root Regarding Motion to Intervene
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Ex. 2 to Affidavit of Root Regarding Motion to Intervene
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Ex. 3 to Affidavit of Root Regarding Motion to Intervene
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Ex. 3 to Affidavit of Root Regarding Motion to Intervene
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Ex. 3 to Affidavit of Root Regarding Motion to Intervene
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