HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 012A - ANSWER OF NEXT CHAPTEREXHIBIT A – PROPOSED PLEADING
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Fort Collins Municipal Court
215 N. Mason
Fort Collins, CO 80521
(970) 221-6800
Plaintiffs: Erik Sutherland, J & M Distributing, DBA Fort
Collins Muffler & Automotive
v.
Defendants: THE CITY COUNCIL OF THE CITY OF
FORT COLLINS, the governing body of a Colorado
Municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry
Intervenor: Next Chapter Properties, LLC, an Illinois
limited liability company.
COURT USE ONLY
Jeffrey B. Cullers, No. 41969
Herms & Herrera, LLC
Attorneys for Next Chapter Properties, LLC
3600 S. College Ave., Suite 204
Fort Collins, CO 80525
Phone Number: 970-498-9999
Fax Number: 970-472-5365
E-Mail: jeff@hhlawoffice.com
Case Number: 2018civil01
ANSWER AND AFFIRMATIVE DEFENSES OF
NEXT CHAPTER PROPERTIES, LLC
Comes now Next Chapter Properties, LLC, (“Next Chapter”), by and through its attorney
Jeffrey Cullers of the law firm Herms & Herrera, LLC, and submits this Answer to the Amended
Complaint Brought Under C.R.C.P. Rule 106 (the “Amended Complaint”) filed April 3, 2018,
and Affirmative Defenses, as follow:
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ANSWER
Next Chapter denies each and every allegation contained in Plaintiffs’ Amended
Complaint that is not expressly admitted below. Any factual allegation admitted below is
admitted only as to the specific admitted facts, and not as to any purported characterizations,
implications, speculations, or legal conclusions that arguably follow from the facts admitted.
Next Chapter denies that Plaintiffs are entitled to any relief.
In response to the first three paragraphs of the “Introduction” section of the Amended
Complaint, Next Chapter states that such allegations are legal conclusions to which no response
is required because the cited authorities speak for themselves. Next Chapter admits that venue
for this action is proper in the Fort Collins Municipal Court.
In response to the last paragraph of the “Introduction” section of the Amended
Complaint, Next Chapter states that it is simply a narrative of Plaintiffs’ opinions to which no
response is required, however, to the extent a response is deemed required, Next Chapter denies
the allegations.
Next Chapter addresses the remainder of the Amended Complaint’s content by
responding to the numbered paragraphs as follows:
1. The allegations of this paragraph are legal conclusions not pertaining to Next
Chapter and so no response is required.
2. The allegations of this paragraph are legal conclusions not pertaining to Next
Chapter and so no response is required.
3. The allegations of this paragraph are legal conclusions not pertaining to Next
Chapter and so no response is required.
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4. The allegations of this paragraph are legal conclusions not pertaining to Next
Chapter and so no response is required.
5. In response to the allegations of Paragraph 5, Next Chapter admits that Sutherland
and another individual appealed the Planning and Zoning Board decision. Next Chapter lacks
knowledge as to Sutherland’s citizenship and so denies such allegation. The remaining
allegations of this paragraph are legal conclusions and so response is required, but to the extent a
response is deemed required, Next Chapter denies such allegations.
6. In response to the allegations of the first two sentances of Paragraph 6, Next
Chapter admits that J&M is a corporation; Next Chapter lacks knowledge as to the remaining
allegations and so denies them. The remaining allegations of this paragraph are legal conclusions
and so response is required, but to the extent a response is deemed required, Next Chapter denies
such allegations.
7. In response to the allegations of Paragraph 7, Next Chapter admits that venue is
proper in the Fort Collins Municipal Court. The remaining allegations of this paragraph are legal
conclusions and so response is required.
8. The allegations of Paragraph 8 are legal conclusions or mere descriptions of
Plaintiffs’ lawsuit and so response is required.
9. The allegations of Paragraph 9 are legal conclusions and so response is required.
10. The allegations of Paragraph 10 are legal conclusions or mere descriptions of
Plaintiffs’ lawsuit and so response is required.
11. Admit.
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12. In response to the allegations of Paragraph 12, Next Chapter admits that a notice
of appeal was filed. The remaining allegations of Paragraph 12 are legal conclusions and so
response is required.
13. In response to the allegations of Paragraph 13, Next Chapter states that the appeal
filed on February 1, 2018 speaks for itself.
14. In response to the allegations of Paragraph 14, Next Chapter admits that City
Counsel considered the appeal on February 27, 2018. The remaining allegations are denied,
except that the citation to a provision of the City Code is a legal conclusion to which no response
is required and so Next Chapter does not respond such conclusion.
15. The allegations of Paragraph 15 merely characterize the City Council’s
Resolution 2018-023. Such document speaks for itself and so Plaintiffs’ allegations are denied to
the extent they mistate the Resolution.
First Claim for Relief
16. Next Chapter incorporates its previous responses as if fully set forth herein.
17. In response to the allegations of Paragraph 17, Next Chapter states that the appeal
filed on February 1, 2018 speaks for itself.
18. Denied.
19. The allegations of Paragraph 19 are legal conclusions and so response is required.
20. Denied.
21. Denied.
22. The allegations of Paragraph 22 are legal conclusions and so response is required.
23. Denied.
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24. Denied.
25. Denied.
Second Claim for Relief
26. Next Chapter incorporates its previous responses as if fully set forth herein.
27. In response to the allegations of Paragraph 27, Next Chapter states that the appeal
filed on February 1, 2018 speaks for itself.
28. In response to the allegations of Paragraph 28, Next Chapter states that the appeal
filed on February 1, 2018 speaks for itself.
29. The allegations of Paragraph 29 are legal conclusions and so response is required.
30. In response to the allegations of the last sentence of Paragraph 30, Next Chapter
states that the appeal filed on February 1, 2018 speaks for itself. The remaining allegations of
Paragraph 30 are legal conclusions and so response is required.
31. Denied.
32. In response to the allegations of Paragraph 32, Next Chapter states that the record
of the City Council proceedings speaks for itself.
33. In response to the allegations of the first sentence of Paragraph 33, Next Chapter
states that the appeal filed on February 1, 2018 speaks for itself. Next Chapter denies the
remaining allegations.
Third Claim for Relief
34. Next Chapter incorporates its previous responses as if fully set forth herein.
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35. In response to the allegations of the first sentence of Paragraph 35, Next Chapter
states that the appeal filed on February 1, 2018 speaks for itself. The remaining allegations
appear to be Plaintiffs’ opinion to which no response is required.
36. In response to the allegations of the first sentence of Paragraph 36, Next Chapter
states that the PDP speaks for itself and denies Plainitffs’ contrary characterization. The
remaining allegations of Paragraph 36 are legal conclusions and so response is required.
37. Next Chapter does not understand the allegations of Paragraph 37 and so such
allegations are denied.
38. The allegations of the first sentence of Paragraph 38 are denied. The remaining
allegations appear to be legal conclusions or Plaintiffs opinion, to which no response is required.
39. Denied.
40. In response to the allegations of the first sentence of Paragraph 40, Next Chapter
states that the appeal filed on February 1, 2018 speaks for itself. Next Chapter denies the
remaining allegations.
41. Next Chapter denies that Plaintiffs are entitled to the relief stated.
Fourth Claim for Relief
42. Next Chapter incorporates its previous responses as if fully set forth herein.
43. Next Chapter does not understand the allegations of Paragraph 43 and so such
allegations are denied.
44. The allegations of the first sentence of Paragraph 44 are denied. The remaining
allegations appear to be legal conclusions or Plaintiffs’ opinion, to which no response is required.
45. Denied.
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46. In response to the allegations of the first sentence of Paragraph 46, Next Chapter
states that the appeal filed on February 1, 2018 speaks for itself. Next Chapter denies the
remaining allegations.
47. Next Chapter denies that Plaintiffs are entitled to the relief stated.
Fifth Claim for Relief
48. Next Chapter incorporates its previous responses as if fully set forth herein.
49. The allegations of Paragraph 49 appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
50. The allegations of Paragraph 50 appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
51. The allegations of Paragraph 51 appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
52. The allegations of Paragraph 52 appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
53. The allegations of Paragraph 53 appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
54. In response to the allegations in the first sentence of Paragraph 54, Next Chapter
states that the record of the appeal proceedings speaks for itself and further states it lacks
sufficient knowledge as to the proceedings and so denies the allegations. The remaining
allegations of Paragraph 54 appear to be legal conclusions or Plaintiffs’ opinion, to which no
response is required.
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55. The allegations of Paragraph 55 appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
56. In response to the allegations of the first sentence of Paragraph 56, Next Chapter
states that the appeal filed on February 1, 2018 speaks for itself. Next Chapter denies the
remaining allegations.
57. Next Chapter denies that Plaintiffs are entitled to the relief stated.
Sixth Claim for Relief
58. Next Chapter incorporates its previous responses as if fully set forth herein.
59. Denied.
60. Next Chapter denies that Plaintiffs are entitled to the relief stated.
61. Next Chapter denies the allegations of the first sentence of Paragraph 61. Next
Chapter admits the allegations of the second sentence. The remaining allegations of Paragraph 61
appear to be legal conclusions or Plaintiffs’ opinion, to which no response is required.
62. Denied.
63. In response to the allegations of Paragraph 63, Next Chapter denies that Plaintiffs
are entitled to any relief. The remaining allegations appear to be legal conclusions or Plaintiffs’
opinion, to which no response is required.
64. In response to the allegations of Paragraph 64, Next Chapter admits the
allegations in the third sentence and denies the allegations in the first and last sentances. The
remaining allegations of Paragraph 64 appear to be legal conclusions or Plaintiffs’ opinion, to
which no response is required.
65. Next Chapter denies that Plaintiffs are entitled to the relief stated.
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The remaining allegations of Plaintiffs Amended Complaint are a prayer for relief, to which Next
Chapter responds by denying that Plaintiffs are entitled to any relief.
AFFIRMATIVE DEFENSES
1. Plaintiffs fail to state a claim upon which relief can be granted.
2. The Court lacks jursidiction over J&M Distributing, Inc.’s claims and this
Plaintiff should be dismissed because this Plaintiff has not been represented by an attorney at any
point in the proceedings. See C.R.S. § 13-1-127; Matter of Estate of Nagel, 950 P.2d 693, 694
(Colo. App. 1997).
3. Plaintiffs’ claims lack substantial justification and so Next Chapter is entitled to
recover its reasonable fees and costs incurred in thi s matter. C.R.S. § 13-17-102.
4. One or more Plaintiffs lack standing.
5. The Court has no jurisdiction over Plaintiffs’ claims regarding the
constitutionality of any provisions because such claims cannot be brought via an action under
C.R.C.P. 106.
Next Chapter reserves the right to add additional affirmative defenses and counterclaims
as they become known.
WHEREFORE, Intervenor Next Chapter Properties, LLC prays that the Court dismiss this
action, that Plaintiffs take nothing, that Next Chapter be awarded its reasonable attorneys fees
and costs, and that the Court grant such other and further relief to which Next Chapter shows
itself justly entitled.
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Respectfully submitted this 13th day of June, 2018
HERMS & HERRERA, LLC
/s/ Jeffrey B. Cullers [Signature on File]
Jeffrey B. Cullers, #41969
Attorney for Intervenors
E-Filed copy of document with original signature
maintained by the filing party
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 13th day of June, 2018 a true and correct
copy of the above and foregoing was filed via email and served on all parties via email as
follows:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
sutherix@yahoo.com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Ave.
Fort Collins, CO 80525
bdwyer1199@gmail.com
Kimberly Schutt
Wick & Trautwein
323 South College Avenue #3
Fort Collins, CO 80524
kschutt@wicklaw.com
/s/Jeffrey Cullers_____________
Jeffery B. Cullers
E-Filed copy of document with original signature
maintained by the filing party