1-CIT/ATTY DC-11-10612 NO. 11-~--ALIGN, LP, and 600 ELSBETH STREET vs.

CITY OF DALLAS IN THE DISTRICT COURT , DALLAS COUNTY, TEXAS G-134 JUDICIAL DISTRICT

Filed 11 August 24 P2:00 Gary Fitzsimmons District Clerk Dallas District

PLAINTIFFS' ORIGINAL PETITION

Plaintiff Align, LP, and Plaintiff In Rem 600 Elsbeth Street, Dallas, Texas, appearing by and through its owner Align, LP, complain of the City of Dallas, Texas as follows. Discovery Control Plan 1. Discovery is intended to be conducted under Level 3 of Tex. R. Civ. P. 190. Parties 2. Plaintiff Align, LP ("Align"), is a limited partnership organized under the

laws of the State of Texas, with its principal office in the State of Texas at 4131 Lovers Lane, Dallas, Dallas County, Texas. 3. Plaintiff In Rem 600 Elsbeth Street, Dallas, Texas ("600 Elsbeth Street"), is

a parcel of real property located at 600 Elsbeth Street, Dallas, Dallas County, Texas. 600 Elsbeth Street appears in this action by and through its owner, Align. 4. Defendant City of Dallas ("the City") is a Texas home-rule municipality.

The City may be served by serving its Acting City Secretary, Rosa A. Rios, at 1500 Marilla Street, Room 5DS, Dallas, Dallas County, Texas. The City's governmental immunity has been waived with respect to this action by Tex. Local Gov't Code 214.0012

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and Tex. Const. art. I, 1 Jurisdiction 5. This Court has jurisdiction of this action pursuant to Tex. Const, art. V, 8;

Tex. Gov't Code 24.008; and Tex. Local Gov't Code 214.0012. Venue 6. Venue of this action lies in Dallas County inasmuch as (a) all or a substan-

tial part of the events or omissions giving rise to the claim occurred in Dallas County and (b) the City has its principal office in this state in Dallas County. Background Facts 7. 8. Align is the owner of 600 Elsbeth Street. 600 Elsbeth Street is the subject of an in rem action styled City of Dallas v.

600 Elsbeth Street, No. S50-001712-01, in Municipal Court No.9 of the City of Dallas ("the Municipal Court Proceeding"). 9. On November 10, 2010, in the Municipal Court Proceeding, the municipal A true and correct

court issued a Modified Agreed Order ("the November 10 Order").

copy of the November 10 Order is attached to this petition as Exhibit A. 10. On July 26, 2011, in the Municipal Court Proceeding, the municipal court

issued a Memorandum Opinion and Order on City of Dallas' Third Motion to Exercise Remedies ("the July 26 Order"). A true and correct copy of the July 26 Order is attached to this petition as Exhibit B.

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First Cause of Action Judicial Review of Municipal Court Order 11. Tex. Local Gov't Code 214.0012 affords a right of judicial review to any

owner of property aggrieved by an order of a municipality issued under Tex. Local Gov't Code 214.001. 12. Tex. Local Gov't Code 54.043 permits a municipality by ordinance to

adopt a civil adjudication process for the enforcement of ordinances described by Tex. Local Gov't Code 54.032, containing provisions relating to judicial review that are similar to the provisions of Tex. Local Gov't Code ch. 54, subch. C. Pursuant to this authority, the City has adopted Dallas City Code 27-16.10, which affords a right of judicial review to any owner aggrieved by an order of a municipality issued under Dallas City Code ch. 27, art. IV-a. This provision is similar to the provisions of Tex. Local Gov't Code 54.039. 13. The July 26 Order was issued under Tex. Local Gov't Code 214.001 or,

in the alternative, under Dallas City Code ch. 27, art. IV-a. 14. 15. Align is an owner of property aggrieved by the July 26 Order. The July 26 Order and the interlocutory orders merged into it are contrary In particular, and

to law inasmuch as they are not supported by substantial evidence.

without limiting the generality of the foregoing allegation, the following findings or conelusions contained in the July 26 Order are not supported by substantial evidence: a. b. the characterizations of the November 10 Order; that all parties were fully and fairly heard at the hearing on July 6-7,

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2011; c. that the condition of 600 Elsbeth Street as of July 7, 2011, was sub-

stantially similar to the condition of 600 Elsbeth Street in April 2010; d. that no significant repairs had been conducted by 600 Elsbeth Street

as had been ordered in the November 10 Order; e. that the structure on 600 Elsbeth Street remains dilapidated, substan-

dard, unfit for human habitation, a hazard to the public safety and welfare, and an urban nuisance; f. that 600 Elsbeth Street continues to be in violation of Chapter 27 of

the Dallas City Code; g. that 600 Elsbeth Street had not demonstrated due diligent and con-

tinuous progress toward completion of the repairs to the property from November 10, 2010, to July 7, 2011; and h. 16. that 600 Elsbeth Street is currently worthy of demolition.

The Municipal Court Proceeding was tainted with numerous procedural and

evidentiary errors that materially prejudiced the rights of Align and led to an improper judgment. Such errors individually and cumulatively resulted in the deprivation of

Align's property, privileges, and immunities without due course of law, in violation of Tex. Const. art. I, 19. Second Cause of Action Unlawful Taking of Property 17. 600 Elsbeth Street does not constitute a public nuisance or a hazard to the

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public safety and welfare, and its demolition would not result in the elimination of urban blight. 18. The July 26 Order and the interlocutory orders merged into it would, if car-

ried into effect, constitute a taking, damaging, or destruction of Align's property, without Align's consent and without adequate compensation being made, in violation of Tex. Const. art. I, 17. 19. Upon information and belief, the July 26 Order and the interlocutory orders

merged into it would, if carried into effect, constitute a taking for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues, in violation of Tex. Const. art. I, 17(b). 20. Under the principles set forth in City of Dallas v. Stewart, _ S.W.3d_,

54 Tex. Sup. Ct. J. 1348 (July 1,2011), the Municipal Court Proceeding is not entitled to res judicata or collateral estoppel effect. The judges of the City's municipal courts are not elected, but rather are appointed by the City to represent the City's interests. City lacks the separation of powers of the state and federal governments. The

Entities have

fewer procedural protections before municipal courts exercising civil jurisdiction than they do before county and district courts. And finally, the question of whether 600 Elsbeth Street constitutes a public nuisance is a mixed question of law and constitutionally relevant fact, and must therefore be reviewed de novo under the Takings Clause. 21. The demolition of 600 Elsbeth Street would constitute an irreparable injury

for which Align has no adequate remedy at law. The harm to Align if such demolition is not enjoined exceeds the harm to the City if such demolition is enjoined. An injunction PLAINTIFFS' ORIGINAL PETITION - Page 5
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would be in the public interest. 22. In the alternative, the aforesaid unlawful taking has caused and will cause

damages to Align in excess of the minimum jurisdictional limits of this Court. Prayer Plaintiff Align, LP, and Plaintiff In Rem 600 Elsbeth Street, Dallas, Texas, respectfully pray that this honorable Court: (1) issue a writ of certiorari directed to the City of Dallas to review the July 26 Order and associated interlocutory orders, returnable within a reasonable time longer than 10 days; reverse the July 26 (a) render judgment Court Action or (b) Action to Municipal Order and associated interlocutory orders and that the City take nothing by the Municipal in the alternative, remand the Municipal Court Court No.9 for further proceedings;

(2)

(3)

grant temporary and permanent injunctive relief restraining the City from requiring the demolition of 600 Elsbeth Street; in the alternative to (2) and (3), award Align the damages resulting from the taking, damaging, or destruction of 600 Elsbeth Street, together with prejudgment and postjudgment interest and costs of court; and grant them such other and further relief to which they may be entitled at law or in equity.

(4)

(5)

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Respectfull y submitted,

State Bar No. 11054600 D. BRADLEY KIZZIA State Bar No. 11547550 Strasburger & Price, LLP 4400 Bank of America Plaza 901 Main Street Dallas, Texas 75202 (214) 651-4300 (214) 659-4022 (telecopy) michael.jung@strasburger.com bradley.kizzia@strasburger.com ATTORNEYS FOR PLAINTIFF

VERIFICATION JANE BRYANT, being first duly sworn, deposes and says as follows: My name is Jane Bryant. I am over the age of eighteen years, of sound mind, and am fully competent to make this affidavit. I am the President of Align Management,

LLC, general partner of Align, LP, one of the plaintiffs in this action. The factual matters set forth in this petition are within my personal knowledge, acquired in the course of my activities with respect to Align, LP, and are true and correct. Further your affiant sayeth not.

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STATE OF TEXAS COUNTY OF DALLAS

SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this

24th

day of August,

2011,

to certify which witness my hand and seal of office.

CYNTHIA M. SALMON
MY COMMISSION EXPIRES

0cI0ber 7, 2012

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