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CAUSE NO.

048-269023-13

DA VINCI INVESTMENT LIMITED PARTNERSHIP, PLAINTIFF, V. CITY OF ARLINGTON, TEXAS; CHARLIE PARKER; KATHRYN WILEMON; SHERI CAPEHART; JIMMY BENNETT; AND MICHAEL GLASPIE, DEFENDANTS.

IN THE DISTRICT COURT

TARRANT COUNTY, TEXAS

48TH DISTRICT COURT


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DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION


TO THE HONORABLE JUDGE OF SAID COURT:

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Defendant City of Arlington, Texas ("City"), and Defendants CharliAlikeraat rr, Wilemon, Sheri Capehart, Jimmy Bennett and Michael Glaspie (collectively' refeWed to as "the Council Members"), respectfully submit the following original answer to Plaintiff's Original ("Petition") filed by Plaintiff Da Vinci Investment Limited Partnership ("Da Vinci"), and respectfully show the court the following: I.
GENERAL DENIAL

1.

Pursuant to Rule 92 of the Texas Rules of Civil Procedure, the City and the Council

Members deny each and every material allegation of the Petition and demand that each such allegation be proved by a preponderance of the evidence.

DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION

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II.

AFFIRMATIVE DEFENSES 2. The City and the Council Members affirmatively plead that Da Vinci has failed to

state a claim against them upon which relief can be granted. 3. The City and the Council Members affirmatively plead that Da Vinci has failed to

adequately allege, and is unable to identify or prove, any City policy, practice, custom or usage that caused any violation of Da Vinci's constitutional or statutory rights. The City and the Council Members affirmatively plead that they cannot be liable to. -. Da Vinci because the acts or omissions complained of by Da Vinci were not proximately caused by,.! any constitutionally defective policy, practice, custom or usage of the City. 5. The City and the Council Members affirmatively plead that they cannot be liable to 4.

Da Vinci because the Council Members inflicted no constitutional harm upon Da Vinci and Da Vinci, as a matter of law, therefore has sustained no injury as a result of any official policy, practice, custom or usage of the City. 6. The City and the Council Members affirmatively plead that they cannot be liable to

Da Vinci because Da Vinci did not possess a clearly defined, constitutionally protected, property interest in development plan approval. 7. The City and the Council Members affirmatively plead that they have not taken,

damaged or destroyed any property interest of Da Vinci's in violation of article I, 17 of the Texas Constitution. 8. The City and the Council Members affirmatively plead that Da Vinci's unlawful

takings claim under article I, 17 of the Texas Constitution is not ripe.

DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION -

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9.

The City and the Council Members affirmatively plead that, to the extent Da Vinci's

claims of denial of equal protection, and denial of substantive due process, under the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. 1983, rely on allegations that Da Vinci's property was taken unlawfully, such claims are not ripe. 10. The City and the Council Members affirmatively plead that they have not violated Da

Vinci's rights to equal protection in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983. 11. The City and the Council Members affirmatively plead that they have not violated Da

Vinci's rights to substantive due process in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. I983. 12. The Council Members affirmatively plead that they are absolutely immune from suit

and damages based upon the doctrines of legislative, quasi-legislative, quasi-judicial and other applicable absolute immunities. 13. In the alternative to absolute immunity, the Council Members affirmatively plead that

they are entitled to a qualified immunity from suit and damages because the Council Members at all times acted within the scope of their discretionary authority and did not violate any clearly established statutory or constitutional rights of which a reasonable person would have known. 14. In the alternative to absolute immunity, the Council Members affirmatively plead that

they cannot be liable to Da Vinci because at all times they acted within the scope of their discretionary authority and with a reasonable, good faith belief that their actions were lawful and proper, that they acted without objective malice and without an intent to deprive Da Vinci of any of its legally protected rights, thereby entitling them to a qualified immunity from suit and damages.

DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION -

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15.

In the alternative to absolute immunity, the Council Members affirmatively plead that

they were at all times public or government officials, to wit: members of the City Council of the City of Arlington, Texas, that their actions were objectively reasonable, that they were not plainly incompetent, and that they did not violate clearly established law of which a reasonable person would have known. 16 In the alternative to absolute immunity, the Council Members affirmatively plead that

they are entitled to official immunity from suit and damages because the Council Members acted within 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 Council

Members were acting as public or government officials, to wit: members of the City Council of the City of Arlington, Texas; were performing discretionary functions; and were acting in good faith, without malice, and within the scope of their authority as City Council Members, then the City is entitled to derivative immunity based upon the Council Members' entitlement to official immunity. HI.
REQUEST FOR COSTS AND ATTORNEYS' FEES

18.

The City and the Council Members request an award of costs and reasonable and

necessary 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 City and the Council Members demand a jury trial as to all issues so triable.

WHEREFORE, PREMISES CONSIDERED, Defendants City of Arlington, Texas; Charlie Parker; Kathryn Wilemon; Sheri Capehart; Jimmy Bennett and Michael Glaspie pray that Plaintiff Da Vinci Investment Limited Partnership take nothing by this suit and that: (1) all relief

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requested therein be denied; (2) costs and attorneys' fees as provided for by 42 U.S.C. 1988 be awarded to Defendants; and (3) the court grant Defendants such other and further relief, general or special, at law or in equity, to which they may be justly entitled. Respectfully submitted,

By:

RobertF.Bwn

BROWN & HOFMEISTER, 740 East Campbell Road, Suite 800 Richardson, Texas 75081 (214) 747-6100 Telephone (214) 747-6111 Telecopier Robert F. Brown State Bar No. 03164725 rbrown@bhlaw.net Edwin P. Voss, Jr. State Bar No. 20620300 evossq-t)bhlaw.net
ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE
A copy of the foregoing document was served by First Class Mail on counsel for Plaintiff, Messrs. Kelly Jones and Michael Hassett, JONES HASSETT, P.C., 440 North Center, Arlington, Texas 76011, on the 27th day of November, 2013.

By: Robert F. Brown

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DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION -

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