Free Answer - District Court of Federal Claims - federal

Case 1:05-cv-00580-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CITY CRESCENT LIMITED PARTNERSHIP, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 05-580 (Chief Judge Damich)

DEFENDANT'S ANSWER AND COUNTERCLAIM For its answer to plaintiff's complaint, defendant admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 constitute

plaintiff's characterization of its action and conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 2. The allegations contained in paragraph 2 constitute

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 3. Denies the allegations contained in paragraph 3 for lack

of knowledge or information sufficient to form a belief as to their truth. 4. 5. Admits. Admits the allegations contained in paragraph 5 that

defendant entered into GSA lease No. GS-03B-09074 with plaintiff

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for the premises located at 10 South Howard Street, Baltimore, Maryland; denies the remainder of the allegations contained in paragraph 5. 6. Admits the allegations contained in paragraph 6 that the

original term of the lease, as modified by Supplemental Lease Agreement No. 4, was March 31, 1993 through March 30, 2003; otherwise denies the allegations contained in paragraph 6. 7. Admits the allegations contained in the first and second

sentences of paragraph 7 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first and second sentences of paragraph 7; admits the allegations contained in the third sentence of paragraph 7. 8. Admits the allegations contained in paragraph 8 that the

City of Baltimore enacted Ordinance No. 57 in June, 1992; the remainder of the allegations contained in paragraph 8 constitute conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. Admits the allegations contained in the second sentence

of paragraph 8. 9. The allegations contained in paragraph 9 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 10. The allegations contained in paragraph 10 constitute

conclusions of law to which no answer is required; to the extent

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they may be deemed allegations of fact, they are denied. 11. The allegations contained in paragraph 11 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 12. The allegations contained in paragraph 12 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 13. 14. Admits. Denies the allegations contained in the first and

second sentences of paragraph 14 for lack of knowledge or information sufficient to form a belief as to their truth. Admits the allegations contained in the third sentence of paragraph 14. 15. Admits the allegations contained in paragraph 15 that

the state real estate tax, city real estate tax, and the supplemental tax were calculated based upon the assessed value of the Property multiplied by the applicable tax rate for the tax year July 1 through June 30; denies the remainder of the allegations contained in paragraph 15. 16. Admits the allegations contained in paragraph 16 that

in or about August of every year during the Lease, plaintiff provided defendant with copies of the state real estate tax bills, city real estate tax bills, and supplemental tax bills; denies the remainder of the allegations contained in paragraph 16.

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17.

Admits the allegations contained in the first sentence

of paragraph 17 that plaintiff and the contracting officer signed documents described as real estate tax escalation analysis for lease years 1995/1996, 1996/1997, 1999/2000, and 2000/2001; admits the remainder of the allegations contained in the first sentence of paragraph 17 to the extent supported by the documents cited, which are the best evidence of their contents; otherwise denies the allegations contained in the first sentence of paragraph 17. Admits the allegations contained in the second

sentence of paragraph 17 that Exhibit 3 contains true and correct copies of the signed escalation analyses and some of the correspondence between plaintiff and the contracting officer regarding real estate tax bills and supplemental tax bills; otherwise denies the allegations contained in the second sentence of paragraph 17. 18. Admits the allegations contained in paragraph 18 to the

extent supported by the documents cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 18. 19. Admits the allegations contained in paragraph 19 that

defendant paid the amount set forth in the escalation analysis every year in which a special assessment was due, prior to 2002; denies the remainder of the allegations contained in paragraph 19. 20. Admits.

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21.

Admits the allegations contained in the first sentence

of paragraph 21 regarding the contents of the letter dated October 15, 2001 to the extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 21 regarding the contents of the letter dated October 15, 2001; denies the remainder of the allegations contained in the first sentence of paragraph 21 for lack of knowledge or information sufficient to form a belief as to their truth. Admits the

allegations contained in the second sentence of paragraph 21. 22. Admits the allegations contained in paragraph 22 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 22. 23. Admits the allegations contained in paragraph 23 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 23. 24. Denies the allegations contained in paragraph 24 for

lack of knowledge or information sufficient to form a belief as to their truth. 25. Admits the allegations contained in paragraph 25 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 25.

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26.

Admits the allegations contained in paragraph 26 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 26. 27. 28. Admits. The allegations contained in paragraph 28 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 29. Admits the allegations contained in the first sentence

of paragraph 29 that the contracting officer issued a final decision on June 1, 2004; admits the remainder of the allegations contained in the first sentences of paragraph 29 to the extent supported by the document cited, which is the best evidence of its contents; otherwise denies the remainder of the allegations contained in the first sentence of paragraph 29. Admits the

allegations contained in the second and third sentences of paragraph 29 to the extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the second and third sentences of paragraph 29. Admits the allegations contained in the fourth

sentence of paragraph 29. 30. Denies the allegations contained in paragraph 30 for

lack of knowledge or information sufficient to form a belief as to their truth.

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31.

The allegations contained in paragraph 31 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 32. Defendant's responses to paragraphs 1 through 31 of the

complaint are incorporated by reference. 33. The allegations contained in paragraph 33 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 34. Admits the allegations contained in paragraph 34 that

defendant paid the supplemental tax until 2002 and that defendant has demanded that plaintiff refund all of the amounts paid for the supplemental tax throughout the term of the lease, plus interest; denies the remainder of the allegations contained in paragraph 34. 35. Admits the allegations contained in paragraph 35 that,

since 2002, defendant has refused to pay the supplemental tax, which currently totals $132,755.93; denies the remainder of the allegations contained in paragraph 35. 36. The allegations contained in paragraph 36 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 37. The allegations contained in paragraph 37 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 38. Denies.

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39.

Defendant's responses to paragraphs 1 through 38 of the

complaint are incorporated by reference. 40. The allegations contained in paragraph 40 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 41. Admits the allegations contained in paragraph 41 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 41. 42. Admits the allegations contained in paragraph 42 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 42. 43. Admits the allegations contained in paragraph 43 that

defendant paid the supplemental tax until 2002 and that defendant has refused to pay the supplemental tax since 2002 and has demanded a refund for the supplemental tax paid prior to 2002; otherwise denies the allegations contained in paragraph 43. 44. The allegations contained in paragraph 44 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 45. The allegations contained in paragraph 45 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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46.

The allegations contained in paragraph 46 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 47. The allegations contained in paragraph 47 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 48. The allegations contained in paragraph 48 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 49. 50. Denies. Denies that plaintiff is entitled to the relief set

forth in the prayer for relief immediately following paragraphs 38 and 49, or to any relief whatsoever. DEFENDANT'S COUNTERCLAIM 1. This Court possesses jurisdiction to entertain

defendant's counterclaim pursuant to 28 U.S.C. § 1503 and 28 U.S.C. § 2508. 2. Pursuant to the tax adjustment clause in the lease,

defendant must pay "its share of increases in real estate taxes over taxes paid for the calendar year in which its lease commences (base year)." 3. The supplemental tax is not a real estate tax within the

meaning of the tax adjustment clause. 4. Prior to 2002, defendant erroneously included the

supplemental tax when calculating additional rent to be paid

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pursuant to the tax adjustment clause, resulting in an overpayment to plaintiff of $311,522.54. 5. For the lease year 2002/2003, defendant's proportionate

share of the increase in real estate taxes payable pursuant to the tax adjustment clause was $4,548.70. WHEREFORE, defendant requests that judgment be entered in favor of the defendant in the amount of $306,973.80 ($311,522.54 less $4,548.70), plus interest, and that defendant be granted such other and further relief as the Court may deem just and proper. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director /s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director /s/ Michael J. Dierberg MICHAEL J. DIERBERG Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Fl. 1100 L. St. NW Washington, DC 20530 Telephone: (202) 353-0536 Facsimile: (202) 307-0972 Attorneys for Defendant August 25, 2005