HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 007 - ANSWER AND COUNTERCLAIMS - TIMNATH DEVELOPMENT AUTHORITYDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
ERIC SUTHERLAND, pro se
v.
Defendants:
THE CITY OF FORT COLLINS, a home rule municipality
in the State of Colorado; STEVE MILLER, in his capacity as
the Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and
Indispensable Parties: THE TIMNATH DEVELOPMENT
AUTHORITY, an Urban Renewal Authority; and
COMPASS MORTGAGE CORPORATION, an Alabama
company doing business in Colorado.
Attorneys for The Timnath Development Authority:
Eric R. Burris, pro hac vice pending
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
Telephone: 505.244.0770
Email: eburris@bhfs.com
Cole J. Woodward, #50199
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Email: cwoodward@bhfs.com
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA & WALDRON
2154 E. Commons Ave., Suite 2000
Centennial, CO 80122
Phone: 303.858.1800
Emails: rrogers@wbapc.com; clekahal@wbapc.com
Case Number: 2018CV149
Division: 3C
THE TIMNATH DEVELOPMENT AUTHORITY’S
ANSWER AND COUNTERCLAIMS
DATE FILED: June 5, 2018 10:06 AM
FILING ID: 97D28A1888193
CASE NUMBER: 2018CV149
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The Timnath Development Authority (“TDA”), submits the following Answer to Plaintiff
Eric Sutherland’s Unamended Complaint for Declaratory Judgment and Equitable Relief
(“Complaint”):
INTRODUCTION
Plaintiff Eric Sutherland (“Plaintiff” or “Sutherland”) has filed a multitude of frivolous
and groundless claims in this District. Sutherland frequently uses litigation and the threat of
litigation as a means to strong-arm local government officials and entities into adopting his
policy preferences. While these efforts have been uniformly unsuccessful, they waste a
tremendous volume of taxpayer dollars and judicial resources.
The Complaint before the Court represents the latest chapter in this lamentable history.
Mr. Sutherland lacks standing to bring the Complaint, which has no basis in law or fact. On its
face, it appears to make allegations against at least four governmental entities not named as
defendants or indispensable parties. The Complaint is replete with unsupported
mischaracterizations of the law, and unfounded allegations of corruption against local
government officials.
To the extent that the Complaint makes any coherent allegations against the TDA, those
allegations are the result of Plaintiff’s incomplete or incorrect reading of the Colorado Urban
Renewal Authority statute. Colo. Rev. Stat. § 31-25-107.
PARTIES
1. Upon information and belief, TDA admits that Plaintiff Eric Sutherland is an
individual who resides in the City of Fort Collins, Larimer County, Colorado. TDA is without
sufficient information to admit or deny the remaining allegations in Paragraph 1 of the
Complaint and therefore denies the same.
2. TDA admits the allegations in Paragraph 2 of the Complaint.
3. TDA admits the allegations in Paragraph 3 of the Complaint.
4. TDA admits the allegations in Paragraph 4 of the Complaint.
5. Paragraph 5 contains statements concerning a public record, which public record
speaks for itself and conclusions of law for which no response is required. To the extent a
response is required; Compass is without sufficient information to admit or deny the allegations
in Paragraph 5 of the Complaint and therefore denies the same.
6. TDA is without sufficient information to admit or deny the allegations in
Paragraph 6 of the Complaint and therefore denies the same.
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JURISDICTION
7. TDA denies that jurisdiction is proper in this Court. TDA has stated the grounds
for its denial at § I of TDA’s Motion to Dismiss, filed concurrently with this Answer.
8. TDA denies that jurisdiction is proper in this Court. TDA has stated the grounds
for its denial at § I of TDA’s Motion to Dismiss, filed concurrently with this Answer.
9. TDA denies that jurisdiction is proper in this Court. TDA has stated the grounds
for its denial at § I of TDA’s Motion to Dismiss, filed concurrently with this Answer.
10. TDA admits that venue is proper in this Court.
FIRST CLAIM FOR RELIEF
11. Paragraph 11 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 11.
12. Paragraph 12 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 12.
13. TDA lacks sufficient knowledge or information to form a belief as to Plaintiff’s
characterizations of the legislation described in Paragraph 13 and therefore denies same
14. TDA admits the allegation in Paragraph 14.
15. Paragraph 15 contains statements concerning a public record, which public
record speaks for itself. To the extent a response is required, TDA denies the remaining
allegations in Paragraph 15 of the Complaint
16. Paragraph 16 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 16.
17. Paragraph 17 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 17.
18. Paragraph 18 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 18.
19. Paragraph 19 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 19.
20. Paragraph 20 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 20.
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SECOND CLAIM FOR RELIEF
21. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
22. Paragraph 22 requests equitable relief from the Court without stating any basis for
that relief. To the extent that Paragraph 22 contains cognizable allegations, TDA denies same.
THIRD CLAIM FOR RELIEF
23. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
24. TDA admits that there exists an Intergovernmental Agreement Regarding
Settlement of Litigation and Urban Renewal and Tax Increment Issues entered into by the Town
of Timnath, the TDA, and Larimer County, dated June 30, 2006 (the “Intergovernmental
Agreement”).
25. The Intergovernmental Agreement speaks for itself. To the extent that the
allegations contained in Paragraph 24 are construed as inconsistent with that document, TDA
denies same.
26. Paragraph 25 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 25.
27. To the extent that Paragraph 26 contains cognizable allegations, TDA denies
same.
FOURTH CLAIM FOR RELIEF
28. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
29. TDA is unable to determine whether Paragraph 27 of the Complaint contains
cognizable allegations against the TDA or any other Defendant named in the Complaint. To the
extent the allegations in Paragraph 27 of the Complaint are construed to require a response, TDA
denies same.
FIFTH CLAIM FOR RELIEF
30. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
31. TDA is unable to determine whether Paragraph 28 of the Complaint contains
cognizable allegations against the TDA or any other Defendant named in the Complaint. To the
extent the allegations in Paragraph 28 of the Complaint are construed to require a response,
TDA denies same.
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SIXTH CLAIM FOR RELIEF
32. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
33. TDA is unable to determine whether Paragraph 29 of the Complaint contains
cognizable allegations against the TDA or any other Defendant named in the Complaint. To the
extent the allegations in Paragraph 29 of the Complaint are construed to require a response, TDA
denies same.
SEVENTH CLAIM FOR RELIEF
34. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
35. Paragraph 30 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 30.
EIGHTH CLAIM FOR RELIEF
36. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
37. Paragraph 31 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 31.
NINTH CLAIM FOR RELIEF
38. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
39. Paragraph 32 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 32.
TENTH CLAIM FOR RELIEF
40. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
41. Paragraph 33 states a conclusion of law to which no response is required. To the
extent a response is required, TDA denies the allegations in Paragraph 33.
ELEVENTH CLAIM FOR RELIEF
42. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
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43. TDA denies the allegations in Paragraph 34 of the Complaint.
TWELFTH CLAIM FOR RELIEF
44. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
45. Paragraph 35 does not contain cognizable allegations against the TDA or any
other Defendant named in the Complaint. Furthermore, Paragraph 35 states a conclusion of law
to which no response is required. To the extent the allegations in Paragraph 35 of the Complaint
are construed to require a response, TDA denies same.
46. Paragraph 36 does not contain allegations against the TDA. Further, Paragraph 36
states a conclusion of law to which no response is required. To the extent the allegations in
Paragraph 36 of the Complaint are construed to require a response, TDA denies same.
47. Paragraph 37 does not contain allegations against the TDA. Further, Paragraph 37
states a conclusion of law to which no response is required. To the extent the allegations in
Paragraph 37 of the Complaint are construed to require a response, TDA denies same.
48. Paragraph 38 does not contain allegations against the TDA. Further, Paragraph 38
states a conclusion of law to which no response is required. To the extent the allegations in
Paragraph 38 of the Complaint are construed to require a response, TDA denies same.
49. Paragraph 39 does not contain allegations against the TDA. Further, Paragraph 39
states a conclusion of law to which no response is required. To the extent the allegations in
Paragraph 39 of the Complaint are construed to require a response, TDA denies same.
THIRTEENTH CLAIM FOR RELIEF
50. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
51. Paragraph 40 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 40 states a conclusion of law to which no response is required. To the
extent the allegations in Paragraph 40 of the Complaint are construed to require a response, TDA
denies same.
FOURTEENTH CLAIM FOR RELIEF
52. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
53. Paragraph 41 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 41 states a conclusion of law to which no response is required. To the
extent the allegations in Paragraph 41 of the Complaint are construed to require a response, TDA
denies same.
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FIFTEENTH CLAIM FOR RELIEF
54. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
55. Paragraph 42 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 42 states a conclusion of law to which no response is required. To the
extent the allegations in Paragraph 42 of the Complaint are construed to require a response, TDA
denies same.
SIXTEENTH CLAIM FOR RELIEF
56. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
57. Paragraph 43 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 43 states a conclusion of law to which no response is required. To the
extent the allegations in Paragraph 43 of the Complaint are construed to require a response, TDA
denies same.
SEVENTEENTH CLAIM FOR RELIEF
58. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
59. Paragraph 44 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 44 states a conclusion of law to which no response is required. To the
extent the allegations in Paragraph 44 of the Complaint are construed to require a response, TDA
denies same.
EIGHTEENTH CLAIM FOR RELIEF
60. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
61. Paragraph 45 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 45 states a conclusion of law to which no response is required. To the
extent the allegations in Paragraph 45 of the Complaint are construed to require a response, TDA
denies same.
NINETEENTH CLAIM FOR RELIEF
62. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
63. Paragraph 47 does not contain cognizable allegations against the TDA.
Furthermore, Paragraph 47 states a conclusion of law to which no response is required. To the
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extent the allegations in Paragraph 47 of the Complaint are construed to require a response, TDA
denies same.
GENERAL DENIAL
TDA denies any remaining allegation not specifically denied herein, and TDA denies
that Plaintiff is entitled to any of the relief requested.
PRAYER
To the extent that the Plaintiff’s WHEREFORE statement is directed towards the TDA,
TDA denies that Plaintiff is entitled to the requested judgment against TDA.
AFFIRMATIVE AND OTHER DEFENSES
1. Plaintiff’s Complaint fails to state a claim upon which relief may be granted.
2. The proximate cause of Plaintiff’s claimed damages and/or injuries were the acts
or omissions of a third party or parties over whom TDA had no control and for whom TDA is
not legally responsible.
3. Plaintiff’s claimed damages, if any, were not proximately caused by TDA’s
conduct or omission, but rather were the proximate result of an intervening cause of
circumstance that the TDA could not have reasonably foreseen and for which they are not
responsible.
4. Plaintiff lacks standing to bring the claims.
5. Plaintiff’s claims are time barred by C.R.S. § 31-25-105.5(2)(b), C.R.S. 31-25-
107(9.7)(a), C.R.S. § 13-80-102(f), and C.R.S. § 11-57-212.
6. Plaintiff’s claims are barred because Plaintiff has suffered no damage, injury, or
otherwise as a result of any acts or omissions of TDA.
TDA reserves the right to amend and/or supplement these affirmative and other defenses
as this matter proceeds.
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COUNTERCLAIMS
Defendant TDA hereby asserts the following Counterclaims against Plaintiff Sutherland.
1. Defendant TDA is an Urban Renewal Authority (URA) organized pursuant to
Colo. Rev. Stat. § 31-25-101.
2. Plaintiff Sutherland is an individual who resides in the City of Fort Collins,
Larimer County, Colorado, and Plaintiff Sutherland’s residence is outside the boundaries of the
Town of Timnath and the TDA plan area.
JURISDICTION
3. Jurisdiction is proper in this state pursuant to Colo. Rev. Stat. § 13-1-124.
4. Venue is proper in Larimer County pursuant to Colo. R. Civ. P. 98(c).
FIRST COUNTERCLAIM FOR RELIEF –
ABUSE OF PROCESS
5. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
6. On April 26, 2018, Sutherland filed the Complaint, initiating this action.
7. The claims made in the Complaint lack both a reasonable factual basis and a
cognizable basis in law.
8. Sutherland filed the Complaint with an ulterior motive, namely to interfere with
TDA’s efforts to secure financing for certain improvements to public infrastructure within
TDA’s jurisdiction.
9. In fact, Sutherland has previously threatened Compass Mortgage Corporation
(“Compass”) representatives with litigation as a means of delaying the transaction between TDA
and Compass.
10. Sutherland’s filing of the Complaint was not proper in the regular conduct of a
lawsuit. The Complaint fails to comport with the Colorado Rules of Civil Procedure in a number
of respects. [See TDA’s Motion to Dismiss.]
11. As a consequence of Sutherland’s abusive and meritless filings, TDA has and will
continue to suffer damages including costs and attorneys’ fees, and other direct, incidental,
consequential and/or general damages, including but not limited to increased construction and
borrowing costs, in an amount to be determined at trial.
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12. As a result of Sutherland’s acts, TDA has been compelled to hire the services of
an attorney for the protection of its interests.
SECOND COUNTERCLAIM FOR RELIEF –
INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS
13. TDA incorporates its responses to the foregoing paragraphs as though fully set
forth herein.
14. TDA and Compass intend to enter into the 2018 Loan Agreement.
15. The TDA Board of Commissioners authorized the TDA to enter into the 2018
Loan Agreement through Resolution No. TDA-04-2018 on March 27, 2018 (the “Resolution”).
16. A draft copy of the 2018 Loan Agreement is attached to the Resolution.
17. Sutherland has actual knowledge of the Resolution, the 2018 Loan Agreement,
and its terms.
18. Sutherland has repeatedly contacted Compass representatives by electronic mail
and telephone calls advising Compass not to enter into the 2018 Loan Agreement and threatening
to file lawsuits if Compass proceeded with consummation of the 2018 Loan Agreement.
19. Sutherland has wrongfully filed the Complaint with the intent of interfering with
TDA and Compass’s consummation of the 2018 Loan Agreement.
20. Sutherland’s frivolous filing has the potential of causing Compass not to enter
into the 2018 Loan Agreement.
21. Sutherland’s actions are certain or substantially certain to interfere with the
TDA’s contractual expectations.
22. As a consequence of Sutherland’s abusive and meritless filings, TDA has and will
continue to suffer damages in the form of increased construction and borrowing costs, in an
amount to be determined at trial.
PRAYER FOR RELIEF
WHEREFORE, having fully answered the Complaint, Defendant TDA prays for an
entry of judgement in its favor and against Sutherland, and requests that the Court provide the
following relief:
a) Dismissal of Sutherland’s claims, with prejudice;
b) An award for compensatory damages arising from Sutherland’s abuse of legal
process and intentional interference with TDA’s contractual relations, as alleged
in TDA’s Counterclaims;
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c) An award of attorneys’ fees and costs incurred while defending against Plaintiff’s
substantially frivolous, substantially groundless, and substantially vexatious
claims, pursuant to Colo. Rev. Stat. § 13-17-102;
d) An award to TDA of such other relief as this Court deems just and proper.
DATED this 5
th
day of June, 2018.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Original signature on file at offices of Brownstein Hyatt Farber Schreck
pursuant to C.R.C.P. 121 § 1-26
By: s/Cole J. Woodward
Eric R. Burris, pro hac vice pending
Cole J. Woodward, #50199
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA AND WALDRON
Attorneys for The Timnath Development Au thority
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 5
th
day of June, 2018, a true and correct
copy of the foregoing THE TIMNATH DEVELOPMENT AUTHORITY’S ANSWER AND
COUNTERCLAIMS was filed with the Court and served via Colorado Courts E-filing System
on pro se Plaintiff as follows:
By E-Mail and Regular Mail
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone: 970.224.4509
Email: sutherix@yahoo.com
s/Penny G. Lalonde
Penny G. Lalonde, Paralegal
16805415