Matthes-Opus lawsuit: Response to Motion to Intervene

8/11/2019 Matthes-Opus lawsuit: Response to Motion to Intervene

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ordinance authorizing this development to proceed was repealed by the City Council).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


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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 thiscivil 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.2It 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, 2013.3With 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 DevelopmentCompany 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.2See 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).3See 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."4Opus also agreed not to "diminish or usurp the

inherent rights and powers of the City" in that first development agreement.5Opus 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.

4Downs Affidavit Ex. 1 at 1.

5Downs 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. RootJeremy A. Root, No. 59451

230 W. McCarty StreetJefferson City, MO 65101

(573)636-6263

(573)636-6231 (fax)[email protected]

HOLDER SUSAN SLUSHEROXENHANDLER

Josh Oxenhandler, No. 51645107 N. Seventh StreetColumbia, MO 65201

[email protected]

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 [email protected] August 18, 2014.

A copy of the above was served upon Tom Harrison, counsel for the Proposed Intervenors, via

email at [email protected] August 18, 2014.

/s/ Jeremy A. Root



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Ex. A to Plainti

Response to

Motion to Inter


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Ex. 1 to Affidavit of Root Regarding Motion to InterveneCase 2:14-cv-04220-NKL Document 3-3 Filed 08/22/14 Page 9 of 20


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Matthes-Opus lawsuit: Response to Motion to Intervene