FILED

DALLAS COUNTY
11/29/2018 12:52 PM
FELICIA PITRE
DISTRICT CLERK

Cause No. DC-17-11592

CITY OF DALLAS, § IN THE DISTRICT COURT

Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
EYAL DALLAS HOLDINGS LLC §
DBA MEADOWS AT FERGUSON and §
11760 FERGUSON ROAD, §
DALLAS, TEXAS, §
Defendants. § 116th JUDICIAL DISTRICT

PLAINTIFF’S EMERGENCY MOTION TO APPOINT A RECEIVER

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, the City of Dallas, (“Plaintiff” and/or “City”), and files this

motion to appoint a receiver for 11760 Ferguson Road pursuant to Texas Civil Practice and

Remedies Code Section 64.001(a)(6).

I. FACTS

1. Defendant, Eyal Dallas Holdings LLC dba Meadows at Ferguson (“Eyal”), owns and

controls the real property located at Lots 2C, Block F/8579, also known as 11760 Ferguson Rd.,

Dallas, Texas, 75228 (the “Property”).

2. The Property consists of a multi-family apartment complex.

3. The Court signed a temporary injunction as to the fire code violations on the Property on

May 30, 2018, requiring the repair of fire code violations on the Property and the immediate

repair .

4. A major fire occurred at the Property on November 21, 2018 in Building F that resulted

in injuries to two civilians and one firefighter. It was reported that tenants had to jump from

their third story units to escape the fire, including one woman who had to drop her baby to a

good Samaritan that was helping people escape. Due to the amount of damage from the fire, fire

Plaintiff’s Motion to Appoint Receiver Page 1

department investigators were unable to enter the structure to determine the cause of the fire.

Also due to the amount of damage, the building was demolished the afternoon of November 21,

2018. As a result, the cause of the fire will likely remain undetermined. To the City’s

knowledge, the fire sprinkler system in the building did not activate in response to the fire.

5. City fire inspectors conducted an inspection of the remainder of the buildings on the

Property on November 21, 2018 following the fire. In that inspection, it was found that at least

two units in the complex had windows that had been nailed shut, preventing egress through the

windows, in violation of Dallas Fire Code Section 1031.2. Other hazards were found in every

building, including missing escutcheon rings and sprinkler heads, as well as painted or taped

sprinkler heads, in violation of Dallas Fire Code Section 901.6. The water pressure gauge in the

riser rooms of each building indicated pressure ranging from around 10-75 psi, where the

minimum pressure for operating condition is 50 psi. Most buildings were missing water pressure

gauges. These conditions are violations of Dallas Fire Code Sections 901.6 and 903.5. Lastly,

all the buildings and the vast majority of units had either missing or inoperable smoke detectors

in violation of Dallas Fire Code Section 907.2.11.2.

6. Since the agreed temporary injunction was entered, the City conducted inspections on fire

violations as laid out in the order. At the time of the inspections, multiple violations still existed,

including but not limited to continued holes in ceilings and walls, painted over or taped over

sprinkler heads, missing sprinkler heads, exposed electrical wiring, and multiple missing or

inoperable smoke detectors. The City provided notice of these violations as well as observed

code violations to Eyal through its attorney after each inspection; however, these violations have

still not been cured.

Plaintiff’s Motion to Appoint Receiver Page 2

7. In addition, numerous code violations remain on the Property. Eyal has been aware of

violations on the Property since the City filed suit and has received notice of specific individual

violations by unit number following each fire code inspection. Despite such notice and

awareness, the condition of the Property has not improved since litigation began and at least as

recently as the week of November 26, 2018, Eyal has continued moving new residents into units

that are not prepared for occupation. For example, one new resident refused to move into a unit

after finding water leaks in the kitchen, a light fixture that was not secured to the ceiling, paint

peeling off the kitchen wall due to moisture, and mold in the bedroom closet. It is clear that the

code violations at the Property continue to pose a substantial risk of injury or an adverse health

impact to persons or property other than that of Eyal.

8. Eyal has failed to take measures to abate the substantial code and fire violations existing

at the Property and continues to allow persons to occupy and use units with violations at the

Property, therefore, posing a severe threat to the health, safety, and welfare of persons.

9. The following violations of the Dallas City Code exist and/or have existed on the

Property:

Violations of the Dallas City Code:

a. Failure to perform all repairs in a workmanlike manner and in accordance with all
applicable federal, state and local laws, rules and regulations, including the
construction codes, in violation of Section 27-11(b);

b. Failure to maintain the premises in operating condition without any holes,

excavations, sharp protrusions, and without any other object or condition that exists
on the land and is reasonably capable of causing injury to a person, in violation of
Section 27-11(c)(1);

c. Failure to keep the doors and windows of a vacant structure or vacant portion of a
structure securely closed to prevent unauthorized entry, in violation of Section 27-
11(c)(6);

Plaintiff’s Motion to Appoint Receiver Page 3

 d. Failure to protect, by periodic application of paint or other weather-coating materials,
any exposed metal or wood surfaces from the elements and against decay or rust, in
violation of Section 27-11(c)(7);

e. Failure to maintain building and structural materials, including wood, gypsum

products, glass, fiberglass, paper, canvas, fabric plastic, vinyl, masonry, ceramic,
plastic, brick, rock, stucco, slate, concrete, asphalt, tin, copper, steel, iron, aluminum,
and other metals, in operating condition in violation of Section 27-11(d)(2);

f. Failure to maintain gutters and downspouts, if any, in operating condition and

securely fastened, in violation of Section 27-11(d)(3)(B);

g. Failure to maintain all flooring in operating condition, free from holes, cracks, decay,
and trip hazards, in violation of Section 27-11(d)(6);

h. Failure to maintain shower enclosure floors and walls in operating condition, free of
holes, cracks, breaches, decay, rust, and rot, in violation of Section 27-11(d)(7);

i. Failure to maintain kitchen and bathroom countertops and backsplashes surrounding

kitchen sinks and lavatory sinks in operating condition free of decay, rust, and rot, in
violation of Section 27-11(d)(8);

j. Failure to maintain all interior walls and ceilings in operating condition in violation of
Section 27-11(d)(9)(A);

k. Failure to keep all interior walls and ceilings securely fastened to eliminate collapse
hazards in violation of Section 27-11(d)(9)(B);

l. Failure to maintain interior surfaces, including windows and doors, in operating

condition in violation of Section 27-11(d)(9)(C);

m. Failure to repair, remove, or cover all peeling, chipping, flaking, or abraded paint in
violation of Section 27-11(d)(9)(D);

n. Failure to repair all cracked or loose plaster, wood, or other defective surface
conditions in violation of Section 27-11(d)(9)(E);

o. Failure to maintain the glass surfaces of exterior windows and skylights so that they
are weather-tight and in operating condition, in violation of Section 27-11(d)(10);

p. Failure to maintain exterior doors so that they are weather-tight and in operating
condition, in violation of Section 27-11(d)(11);

q. Failure to maintain all balconies, landings, porches, decks, and walkways in operating
condition and securely fastened in violation of Section 27-11(d)(14)(A);

Plaintiff’s Motion to Appoint Receiver Page 4

 r. Failure to maintain all handrails and guardrails in operating condition and securely
fastened and anchored in violation of Section 27-11(d)(15)(A);

s. Failure to maintain all handrails and guardrails so that they are capable of safely
supporting imposed dead and live loads in violation of Section 27-11(d)(15)(B);

t. Failure to maintain steps and stairways in operating condition, securely fasted and
anchored, and free from trip hazards in violation of Section 27-11(d)(16)(A);

u. Failure to maintain steps and stairways so that they are capable of safely supporting
dead and live loads in violation of Section 27-11(d)(16)(B);

v. Failure to seal any cracks or breaches in lightweight concrete steps, balconies, and
walkways in violation of Section 27-11(d)(16)(C);

w. Failure to provide, and maintain, in operating condition, refrigerated air equipment

capable of maintaining a room temperature of at least 15 degrees cooler than the
outside temperature, but in no event higher than 85°F in each habitable room, in
violation of Section 27-11(e)(1)(A)(i);

x. Failure to maintain all fixed air-conditioning systems, including air conditioning unit
covers, panels, conduits, and disconnects, in operating condition, properly attached, in
violation of Section 27-11(e)(1)(A)(ii);

y. Failure to install window-mounted air conditioning units, if provided, in compliance

with the construction codes, in violation of Section 27-11(e)(1)(A)(iii);

z. Failure to provide, and maintain, in operating condition, heating facilities capable of

maintaining a room temperature of at least 15 degrees warmer than the outside
temperature, but in no event lower than 68° F. in each habitable room, in violation of
Section 27-11(e)(2)(A)(i);

aa. Failure to maintain provided appliances, including portable heating units, portable air
conditioning units, cook stoves, refrigerators, dishwashers, garbage disposals,
ventilation hoods, washing machines, and clothes dryers, and appliance connections,
in operating condition, in violation of Section 27-11(e)(3);

bb. Failure to connect and maintain all plumbing fixtures in operating condition, in
violation of Section 27-11(f)(3)(C);

cc. Failure to maintain all electrical equipment and materials in operating condition in
violation of Section 27-11(g)(1);

Plaintiff’s Motion to Appoint Receiver Page 5

 dd. Failure to maintain electrical circuits and outlets sufficient to safely carry a load
imposed by normal use of appliances, equipment, and fixtures, and maintain them in
operating condition, in violation of Section 27-11(g)(2);

ee. Failure to maintain in each habitable room, bathroom, hallway, and stairway of a
dwelling unit at least one electric lighting outlet, and the electric lighting outlet must
be controlled by a wall switch, unless a wall switch is not required by the construction
codes in violation of Section 27-11(g)(3);

ff. Failure to maintain all electric light fixtures located adjacent to exterior doors of all
buildings or structures in operating condition, in violation of Section 27-11(g)(4);

gg. Failure to use extension cords and flexible cords in accordance with the construction
codes, and not as substitutes for permanent wiring, in violation of Section 27-
11(g)(5);

hh. Failure, where evidence of an infestation exists, to eliminate the infestation using a
person licensed under the Texas Structural Pest Control Act, as amended, and repair
any condition that contributes to that infestation, in violation of Section 27-
11(i)(1)(A);

ii. Failure to provide written notice to the tenants at least 48 hours before taking steps to
eliminate the infestation, in violation of Section 27-11(i)(1)(B) and (B)(i);

jj. Failure to maintain the interiors of all vacant dwellings free of solid waste, in
violation of Section 27-11(i)(5)(B);

kk. Placing, depositing, or throwing; permitting to accumulate; or permitting or causing

to be placed, deposited, or thrown, any litter on the premises or in or on any gutter or
parkway adjacent to the premises, unless the litter has been deposited in an authorized
private receptacle for collection, in violation of Section 7A-18;

ll. Failure to remove all graffiti from the Property that is visible from any public
property or right-of-way or from any private property other than the Property on
which the graffiti exists, unless the graffiti was created on the property with the
owner’s consent and does not violate the sign regulations of the Dallas Development
Code or any other applicable city ordinance or state or federal law, in violation of
Section 31-38(b);

mm. Failure to provide a building complex composed of multiple structures with an

official number assigned to each building and each unit within each building must
also be assigned an official number, in violation of Section 43-104(a);

Plaintiff’s Motion to Appoint Receiver Page 6

Violations of Dallas Development Code:

nn. Failure to keep the maneuvering area and parking surface free of potholes, in
violation of Section 51A-4.301(d)(6)(A);

oo. Failure to maintain non-permanent parking space markings such as paint, so that clear
identification of each parking space is apparent, in violation of Section 51A-
4.301(d)(6)(C);

Violations of Dallas Administrative Procedures for the Construction Code:

pp. Failure to obtain a permit from the building official before erecting, constructing,
enlarging, adding to, altering, repairing, replacing, moving, improving, removing,
installing, converting, demolishing, equipping, using, occupying, or maintaining a
structure or building service equipment; excavating or maintaining an excavation;
paving or grading on a property; causing such work or activity described above to be
done, in violation of Section 52-301.1.1;

Violations of Dallas Fire Code:

qq. Failure to provide a technical opinion and report prepared by a qualified engineer or
specialist required by the fire code official analyzing the fire safety properties of
design, operation, alteration, repairs, or use of building appurtenances situated
thereon recommending changes in violation of Chapter 1, Section 104.7.2;

rr. Failure to remedy or abate conditions that constitute unsafe conditions in violation of
Chapter 1, Section 110.1.1 and Section 110.4;

ss. Failure to maintain the surface of all fire department access roads to support the
imposed loads of fire apparatus and all weather driving capabilities in violation of
Chapter 5, Section 503.2.3;

tt. Failure to provide or maintain where required, approved signs or other approved
notices or markings that include the words NO PARKING – FIRE LINE and
maintain all markings in a clean and legible condition at all times in violation of
Chapter 5, Section 503.3;

uu. Failure to provide approved visible address identification that is legible, contrasting,
and placed in a position that is visible from the street or road fronting the property in
violation of Chapter 5, Section 505.1;

vv. Failure to remedy or abate electrical hazards in violation of Chapter 6, Section 605.2;

ww. Failure to provide a working space not less than 30 inches in width, 36 inches in
depth and 78 inches in height for electrical service equipment in violation of Chapter
6, Section 605.3;

Plaintiff’s Motion to Appoint Receiver Page 7

 xx. Failure to properly repair, restore or replace fire-resistant material, including, but not
limited to, walls, firestops, shaft enclosures, partitions, smoke barriers, floors, fire
resistive coatings and sprayed fire-resistant material applied to structural members
and fire resistant joint systems in violation of Chapter 7, Section 703.1;

yy. Failure to maintain fire detection, alarm, and extinguishing systems currently
inspected, tested, and in operative condition at all times in violation of Chapter 9,
Section 901.6;

zz. Failure to immediately notify the fire department and fire code official of a required
fire protection system’s status of being out of service in violation of Chapter 9,
Section 901.7;

aaa. Failure to install and maintain single or multiple station smoke alarms in the
following locations: (1) in each sleeping room, (2) on the ceiling or wall outside of
each separate sleeping area in the immediate vicinity of the bedrooms, and (3) on
each additional story of the dwelling including basements and cellars but not
including crawl spaces and uninhabitable attics in violation of Chapter 9, Section
907.2.11.2.

10. The City, thus, is requesting that the Court appoint a receiver to take charge and

possession of the Property in order to ensure the preservation of public safety, the preservation of

public health and/or the fire safety of the structures on the Property.

II. CAUSES OF ACTION

11. Pursuant to Texas Civil Practice and Remedies Code Section 64.001(a)(6) and Texas

Rules of Civil Procedure Rule 695, the City presents this motion to appoint receiver for Eyal and

its real property, including the Property. TEX. CIV. PRAC. & REM CODE § 64.001; TEX. R. CIV.

PROC. § 695. This Court has jurisdiction over Eyal and the Property. TEX. CIV. PRAC. & REM

CODE § 64.001. The condition of the Property constitutes a serious and imminent public health

and safety hazard. The Property, its tenants and visitors, and potentially first responders face

irreparable injury due to ongoing code and fire violations that continue to exist at the Property, if

a receiver is not appointed. Id. Eyal has, either willfully or carelessly, failed to make the

Property safe. A receiver is necessary for Eyal to manage the repair of the Property.

Plaintiff’s Motion to Appoint Receiver Page 8

12. Because of Eyal’s ongoing and repeated mismanagement of the Property through failure

to take any measures to abate the substantial code and fire violations existing at the Property,

Eyal’s continuing to allow persons to occupy and use units that have violations at the Property,

the possibility of material injury to the Property and/or its occupants, and the failure to pay the

necessary expenses to maintain the property, the City requests that the Court appoint a receiver

to take charge and possession of the Property. Pursuant to Texas Civil Practice and Remedies

Code Section 64.001 and Texas Rules of Civil Procedure Rule 695, the City seeks the

appointment of a receiver based upon the equitable considerations enumerated above.

13. A receiver can also be appointed for a hazardous property to address the outstanding

health and safety hazards that exist on it. See Tex. Loc. Gov’t Code § 214.0031(e) (allowing a

court to appoint a receiver at the request of a home-rule municipality against an owner of

property that constitutes a serious and imminent public health or safety hazard and that is not in

substantial compliance with municipal ordinances intended to prevent substantial risk of injury

or adverse health impact to any person).

14. Accordingly, the City requests that the Court order the following:

A) A Receiver be appointed to take possession and charge of the Property and be

allowed to:

1) to collect and receive rents;

2) to collect and compromise demands;

3) to evict non-paying tenants;

4) to make repairs to the Property as necessary to bring the Property into compliance

with minimum housing standards of the Dallas City Code;

Plaintiff’s Motion to Appoint Receiver Page 9

 5) to make repairs to the Property as necessary to bring the Property into compliance

with the Dallas Fire Code, including all necessary repairs to all fire suppression

systems on the Property;

6) to board up the units as vacancies arise;

7) to make payments necessary for the maintenance or restoration of utilities to the

Property;

8) to exercise all other authority that an owner of the Property would have including

the authority to sell the Property and/or demolish structures at the Property;

9) upon completion of the receivership, file with the Court a full accounting of all

costs and expenses incurred in repairs, including reasonable costs for labor and

subdivision and all income received from the Property; and

10) to perform other acts in regard to the Property as authorized by the Court.

B) All representatives and employees of Defendants be prohibited from being within

500 feet of the Property;

C) Defendants relinquish to the Receiver all accounts, books, rent rolls, funds, and

papers regarding the management of the Property;

D) Defendants cease to hold themselves out as being in control of the Property; and

E) Defendants refrain from contacting the current occupants and/or contractors of the

Property.

III. RELIEF REQUESTED

WHEREFORE, PREMISES CONSIDERED, Plaintiff, City of Dallas requests that this

Court to:

Plaintiff’s Motion to Appoint Receiver Page 10

 1. Appoint a receiver for Defendants to manage the repair or demolition or sale of the

Property.

2. Order Defendants to pay Plaintiff reasonable attorneys’ fees and costs associated with the

preparation and arguing of this Motion; and

3. Grant such other and further relief, general or special, in law or in equity, to which

Plaintiff may be entitled.

Respectfully submitted,

CITY ATTORNEY OF THE CITY OF DALLAS

Christopher J. Caso
Interim City Attorney

/s/Kristen L. Monkhouse
KRISTEN L. MONKHOUSE
Assistant City Attorney
State Bar No. 24092853
kristen.monkhouse@dallascityhall.com

ANDREW GILBERT
Senior Assistant City Attorney
State Bar No. 24012696
andrew.gilbert@dallascityhall.com

CODY L. ROBINSON
Assistant City Attorney
State Bar No. 24085557
cody.robinson@dallascityhall.com

City Attorney’s Office

1500 Marilla Street, Room 7D North
Dallas, Texas 75201
Telephone: 214-670-3519
Telecopier: 214-670-0622

ATTORNEYS FOR THE CITY OF DALLAS

Plaintiff’s Motion to Appoint Receiver Page 11

 VERIFICATION

STATE OF TEXAS
COUNTY OF DALLAS

I, Cliffton Clark, a fire inspector with the City of Dallas, after being duly sworn, hereby certify
that I am qualified and authorized to make this affidavit, and that I have read each and every
factual allegation contained within paragraphs 4-6, 9(qq)-(aaa) of this motion, and that said
factual allegations are within my personal knowledge and are true and correct.

(ift?¥
Subscribed and sworn to before me this ~ y of November 2018.

~'''~x'tt,,, ANGIE G. MORGAN

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Plaintiff' s Moti on to Appoint Receiver Page 12

 VERIFICATION
ST ATE OF TEXAS
COUNTY OF DALLAS

I, Ashley Gonzalez, a certified code inspector with the City of Dallas, after being duly sworn,
hereby certify that I am qualified and authorized to make this verification, and that I have read
each and every factual allegation contained within paragraphs 9(a)-(pp) of this motion, and that
said factual allegations are within my personal knowledge and are true and correct.

Subscribed and sworn to before me thisblt/+1rayof November 2018.

,,,1111,,
.,,t~Xf'u!/,, ANGIE G. MORGAN
{f:··:..L:·.~: Notary Public State of Texas
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'''""''' Notary ID 10948i43

Plaintiffs Motion to Appoint Receiver Page 13

 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served upon
Defendants, Eyal Dallas Holdings, LLC and 11760 Ferguson Road, Dallas, Texas, in rem, by
and through their attorney pursuant to the Texas Rules of Civil Procedure on November 29,
2018.

Via e-service
Kartik R. Singapura
Cherry Petersen Landry Albert LLP
8350 North Central Expressway, Suite 1500
Dallas, Texas 75206
ksingapura@cplalaw.com

/s/ Kristen L. Monkhouse _________

KRISTEN L. MONKHOUSE

Plaintiff’s Motion to Appoint Receiver Page 14