HomeMy WebLinkAboutHDC1994-007 In Th Chancert Court Of Pulaski County , Arkansas, Defendants' Response To Plaintis' Response To Defendants' Motion To DismissIN THE CHANCERY COURT OF PUxASn COUNTY, FS
SIXTH DIVISION
PAT C . HOY 11 and
ANN HOY, His Wife PLAINTIFFS
V. CASS NO. 95-0840
LITTLE ROCK HISTORIC DISTRICT
COMMISSION and CITY OF LITTLE
ROCK DEBTS
DEFENDANTS' RESPONSE TO PLAINTIFFS# RESPONSE
M. DEPARMILP MOTION TO DIOXISS
Come the Defendants, Little Rock Historic District
Commission (Othe Commission°') and the City of Little Rock,
Arkansas ("the City") appearing specifically pursuant to Rules
8, 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6) of the Arkansas
Rules of Civil Procedure, by and through Thomas M. Carpenter,
City Attorney, and Beth A. Blevins, Assistant City Attorney, and
for their Response to Plaintiffs• Response to Defendants' Motion
to Dismiss state:
1. Defendants hereby adopt and reaffirm each and every
allegation contained in their Motion to Dismiss filed herein
March 6, 1995, and incorporate same herein by reference as if
fully set out word for word.
2. Defendants affirmatively state that the Commission is
not a separate legal entity subject to suit, and no person is
authorized by statute, ordinance, or rule to accept service of
process on behalf of the Commission. Therefore, the Plaintiffs
have failed to perfect service of process upon the Commission.
Furthermore, Defendants deny that Charles Nickerson, City
Manager, is authorized to accept service of process on behalf of
the Commission. Pursuant to the above, the Commission should be
dismissed as a party to this lawsuit pursuant to Ark. R. Civ. P.
12 (b) (2) , 12(b)(4). and 12(b)(5).
3. Plaintiffs admit in their Response to Defendants" Motion
to Dismiss that the lapplicantO in this case under Ark. Code
Ann. § 14-172-212 is the City of Little Rock, and as applicant
the City is not appealing the denial of the application.
Pursuant to the plain, unambiguous, clear, and definite language
of Ark. Code Ann. § 14-172-212, Plaintiffs have no standing to
bring this action and therefore this lawsuit should be
dismissed.
4. Plaintiffs do not aver statements in their Complaint and
First Amended Complaint in ordinary and concise language of
facts showing that they are entitled to relief pursuant to
Article 11, Section 22 of the Arkansas Constitution or regarding
a nuisance claim. Ark. R. Civ. P. 8. Plaintiffs allege mere
generalities, inferences, and conclusions without any supporting
facts. Therefore, dismissal is proper pursuant to Ark. R. Civ.
P. 12(b)(6) for failure to state facts upon which relief can be
granted.
5. The Defendants are not proper parties to the Plaintiffs'
nuisance claim since the Defendants do not own the subject
property or maintain such as a nuisance. Therefore, this action
should be dismissed pursuant to Ark. R. Civ. P. 12(b)(2).
Alternatively, this suit should be dismissed pursuant to Ark. R.
Civ. P. 12(b)(7) for failure to join a necessary party. Without
joinder of the owner of the subject property, complete relief
cannot be afforded the parties in this action. Ark. R. Civ. P.
19.
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6. A Brief accompanies this Motion.
WHEREFORE, the Defendants pray that Plaintiffs* Complaint
and First Amended Complaint be dismissed with prejudice pursuant
to lack of standing and Ark. R. Civ. P. 8, 12(b)(2), 12(b)(4),
12(b)(5), and 12(b)(6), and for all other proper relief to which
they be entitled.
Respectfully submitted,
Thomas M. Carpenter
City Attorney
By:��1r�a
Betri A. avins,
Assistant City Attorney
Cit Hall$ Room 310
Lit�le Rack, AR 72201
(501) 371-4527
I hereby Certify that a copy of the foregoing has been
served upon David P. Henry, 2725 Cantrell Road, Suite 104, Post
office Soar 7346, Little Rock, Arkansas 72217 by placing same in
the U.S. mail, postage prepaid, on thisday of March,
1995.
e ans
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