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NO. 11-~---ALIGN, LP, and 600 ELSBETHSTREET

IN THE DISTRICT COURT

DALLAS COUNTY, TEXASvs.CITY OF DALLAS JUDICIAL DISTRICT

PLAINTIFFS' ORIGINAL PETITION

Plaintiff Align, LP, and Plaintiff In Rem 600 Elsbeth Street, Dallas, Texas, appear-ing by and through its owner Align, LP, complain of the City of Dallas, Texas as follows.

Discovery Control Plan1. Discovery is intended to be conducted under Level 3 of Tex. R. Civ. P. 190.

Parties2. 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 LoversLane, Dallas, Dallas County, Texas.

3. Plaintiff In Rem 600 Elsbeth Street, Dallas, Texas ("600 Elsbeth Street"), isa parcel of real property located at 600 Elsbeth Street, Dallas, Dallas County, Texas. 600Elsbeth 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 1500Marilla Street, Room 5DS, Dallas, Dallas County, Texas. The City's governmental im-munity has been waived with respect to this action by Tex. Local Gov't Code 214.0012

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Filed11 August 24Gary FitzsimDistrict ClerkDallas DistricDC-11-10612

G-134

1-CIT/ATTY

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and Tex. Const. art. I, 1Jurisdiction

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.

Venue6. 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 Facts7. Align is the owner of 600 Elsbeth Street.8. 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 municipalcourt issued a Modified Agreed Order ("the November 10 Order"). A true and correctcopy 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 courtissued a Memorandum Opinion and Order on City of Dallas' Third Motion to ExerciseRemedies ("the July 26 Order"). A true and correct copy of the July 26 Order is attachedto this petition as Exhibit B.

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First Cause of ActionJudicial Review of Municipal Court Order

11. Tex. Local Gov't Code 214.0012 affords a right of judicial review to anyowner of property aggrieved by an order of a municipality issued under Tex. Local Gov'tCode 214.001.

12. Tex. Local Gov't Code 54.043 permits a municipality by ordinance toadopt 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 aresimilar to the provisions of Tex. Local Gov't Code ch. 54, subch. C. Pursuant to this au-thority, the City has adopted Dallas City Code 27-16.10, which affords a right of judi-cial review to any owner aggrieved by an order of a municipality issued under DallasCity Code ch. 27, art. IV-a. This provision is similar to the provisions of Tex. LocalGov'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. Align is an owner of property aggrieved by the July 26 Order.15. The July 26 Order and the interlocutory orders merged into it are contrary

to law inasmuch as they are not supported by substantial evidence. In particular, andwithout limiting the generality of the foregoing allegation, the following findings or con-elusions contained in the July 26 Order are not supported by substantial evidence:

a. the characterizations of the November 10 Order;b. 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 urbannuisance;

f. that 600 Elsbeth Street continues to be in violation of Chapter 27 ofthe 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. that 600 Elsbeth Street is currently worthy of demolition.16. The Municipal Court Proceeding was tainted with numerous procedural and

evidentiary errors that materially prejudiced the rights of Align and led to an improperjudgment. Such errors individually and cumulatively resulted in the deprivation ofAlign's property, privileges, and immunities without due course of law, in violation ofTex. Const. art. I, 19.

Second Cause of ActionUnlawful 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 urbanblight.

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, withoutAlign'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 ordersmerged into it would, if carried into effect, constitute a taking for transfer to a private en-tity for the primary purpose of economic development or enhancement of tax revenues, inviolation 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 tores judicata or collateral estoppel effect. The judges of the City's municipal courts arenot elected, but rather are appointed by the City to represent the City's interests. TheCity lacks the separation of powers of the state and federal governments. Entities havefewer procedural protections before municipal courts exercising civil jurisdiction thanthey do before county and district courts. And finally, the question of whether 600 Els-beth Street constitutes a public nuisance is a mixed question of law and constitutionallyrelevant fact, and must therefore be reviewed de novo under the Takings Clause.

21. The demolition of 600 Elsbeth Street would constitute an irreparable injuryfor which Align has no adequate remedy at law. The harm to Align if such demolition isnot enjoined exceeds the harm to the City if such demolition is enjoined. An injunctionPLAINTIFFS' ORIGINAL PETITION - Page 5SP-#3555842-vl-P _Original]etition.DOC

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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, re-spectfully pray that this honorable Court:

(1) issue a writ of certiorari directed to the City of Dallas to review theJuly 26 Order and associated interlocutory orders, returnable withina reasonable time longer than 10 days;

(2) reverse the July 26 Order and associated interlocutory orders and(a) render judgment that the City take nothing by the MunicipalCourt Action or (b) in the alternative, remand the Municipal CourtAction to Municipal Court No.9 for further proceedings;

(3) grant temporary and permanent injunctive relief restraining the Cityfrom requiring the demolition of 600 Elsbeth Street;

(4) in the alternative to (2) and (3), award Align the damages resultingfrom the taking, damaging, or destruction of 600 Elsbeth Street, to-gether with prejudgment and postjudgment interest and costs ofcourt; and

(5) grant them such other and further relief to which they may be enti-tled at law or in equity.

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Respectfull y submitted,

State Bar No. 11054600D. BRADLEY KIZZIAState Bar No. 11547550Strasburger & Price, LLP4400 Bank of America Plaza901 Main StreetDallas, Texas 75202(214) 651-4300(214) 659-4022 (telecopy)michael.jung@strasburger.combradley.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 mattersset forth in this petition are within my personal knowledge, acquired in the course of myactivities 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 this24th day of August, 2011, to certify which witness my hand and seal of office.

C Y N T H IA M . S A L M O NM Y C O MM IS S IO N E X P IR E S

0cI0ber 7 , 2 0 12

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