067-296383-17 FILED

TARRANT COUNTY
1/17/2018 3:56 PM
THOMAS A. WILDER
CAUSE NO. 067-296383-17 DISTRICT CLERK

THE CITY OF FORT WORTH § IN THE DISTRICT COURT

§
Plaintiff §
§
VS. § 67th JUDICIAL DISTRICT
§
MIRA MONTE APARTMENTS, LLC; §
MATTHEW J. BAKER; AND §
MIRA MONTE APARTMENTS, ALSO §
KNOWN AS 2800 LAS VEGAS TRAIL §
(IN REM) §
§
Defendants. § TARRANT COUNTY, TEXAS

CITY OF FORT WORTH’S 1st AMENDED ORIGINAL PETITION FOR ABATEMENT

OF A COMMON NUISANCE, REQUEST FOR A TEMPORARY INJUNCTION, AND
REQUEST FOR A PERMANENT INJUNCTION

TO THE HONORABLE COURT:

PLAINTIFF, CITY OF FORT WORTH, TEXAS, hereinafter referred to as “City” or

“City of Fort Worth” brings this action against Defendants, Mira Monte Apartments, LLC,

Matthew J. Baker, and Mira Monte Apartments, also known as 2800 Las Vegas Trail (in rem)

seeking to abate a common nuisance. Defendants own, operate, and maintain a place to which

persons habitually go to commit criminal activity, and have knowingly tolerated such activity.

Further, Defendants have failed to make reasonable attempts to abate the habitual criminal

activity. Therefore, the City now seeks to abate this common nuisance, and for its cause of

action would respectfully show the following:

I. DISCOVERY

1.1 Plaintiff affirmatively pleads the Level 3 Discovery Plan as per Rule 190.4 of the

Texas Rules of Civil Procedure.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 1
 II. PARTIES

2.1 Plaintiff, City of Fort Worth, is a home rule municipality and municipal

corporation situated in Tarrant County, Texas, duly incorporated pursuant to the Constitution and

laws of the State of Texas and the Charter of the City of Fort Worth adopted December 11, 1924

and as amended. As a municipal corporation, the City does not have a driver’s license or social

security number.

2.2 Defendant, Mira Monte Apartments, LLC, is a limited liability company doing

business in Texas and may be served with process by serving its registered agent for service,

Matthew John Baker, at 5112 West Pleasant Ridge, Fort Worth, Texas 76106 or at 8501

Bushland Road, Amarillo, Texas 79119 or wherever he may be located. Mira Monte Apartments,

LLC is the owner of 2800 Las Vegas Trail also known as Mira Monte Apartments.

2.3 Defendant, Matthew John Baker, is an individual believed to be residing in

Tarrant County, Texas and may be served with process at 5112 West Pleasant Ridge, Fort Worth,

Texas 76106 or at 8501 Bushland Road, Amarillo, Texas 79119 or wherever he may be located.

Matthew John Baker is the Manager and Director of Mira Monte Apartments, LLC and, as such,

is a person who maintains, owns, uses or is a party to the use of the Mira Monte Apartments.

2.4 Defendant Mira Monte Apartments, also known as 2800 Las Vegas Trail is a tract

of land with improvements thereon located in Fort Worth, Tarrant County, Texas and is being

sued in rem as allowed by §125.002(b), Texas Civil Practice and Remedies Code. 2800 Las

Vegas Trail also known as Mira Monte Apartments may be served with process by serving its

owner, Mira Monte Apartments, LLC, through its registered agent for service, Matthew John

Baker, at 5112 West Pleasant Ridge, Fort Worth, Texas 76106 or 8501 Bushland Road,

Amarillo, Texas 79119 or wherever he may be located.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 2
 III. JURISDICTION AND VENUE

3.1 This is a suit to abate a common nuisance brought pursuant to Chapter 125, Texas

Civil Practice and Remedies Code (CPRC). This court has jurisdiction pursuant to Section

125.002(a), CPRC, and Section 24.008, Texas Government Code. Venue is proper in Tarrant

County pursuant to Section 125.002, CPRC, because Tarrant County is the county in which the

common nuisance is alleged to exist.

IV. FACTS

4.1 The Mira Monte Apartments (Mira Monte) is a multiunit residential property

located at 2800 Las Vegas Trail in Fort Worth, Texas. Built in 1968 1, Mira Monte is generally

located to the south of interstate highway 30 and to the east of interstate highway 820. In its

vicinity are other apartment communities, businesses, bus stops, and schools 2. Over the past two

years, the Fort Worth Police Department has responded to approximately 80 allegations of

criminal activity related to or connected with Mira Monte. The allegations range from

aggravated assault, forced sexual assault, narcotic violations, public intoxication, robbery, simple

assault, to weapon law violations.

4.2 Defendants have failed to make any reasonable attempts to abate this habitual

criminal activity. Everyday this common nuisance operates innocent citizens who live in, or

around this property are put at risk. Further, given the proximity of Mira Monte to area schools,

innocent children walking nearby are placed in harm’s way, as well. The City would show that

the conditions caused by the crime at the property have an adverse effect on the community and

are a drain on City police services. Unless enjoined to cease and desist, the Defendants will

1
According to Tarrant Appraisal District Records
2
Western Hills Elementary School and Western Hills Primary School are located just east of Mira Monte.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 3
continue to allow criminal acts to occur on the premises at Mira Monte. Therefore, the City of

Fort Worth brings this suit pursuant to Chapter 125 of the CPRC to abate this common nuisance.

V. CAUSE OF ACTION

5.1 The City incorporates and adopts by reference the allegations contained in each

and every preceding paragraph.

5.2 Texas Civil Practice and Remedies Code (CPRC), § 125.0015 (a) provides that a

person who maintains a place to which persons habitually go for the purpose of committing

certain enumerated criminal offenses and who knowingly tolerates the activity and furthermore

fails to make reasonable attempts to abate the activity maintains a common nuisance. The types

of criminal offenses enumerated under section 125.0015(a), include the types of offenses

habitually committed at Mira Monte. These offenses include, but are not limited to, the

following:

• On September 25, 2017 an individual discharged a firearm in a public place at a common

area of the property as prohibited by Sections 22.05 and 42.01 of the Texas Penal Code;

• On October 4, 2017 an individual was shot at a common area of the property as a result

of an aggravated assault;

• On November 5, 2017 an unknown person or persons discharged a firearm in a public

place at a common area of the property as prohibited by Sections 22.05 and 42.01 of the

Texas Penal Code.

• On January 1, 2018 an aggravated robbery as described by Section 29.03 of the Penal

Code occurred in a common area of the property.

5.3 Section 125.0015 (b), CPRC, provides that a person maintains a common

nuisance if the person maintains a multiunit residential property to which persons habitually go

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 4
to commit acts listed in Subsection (a) and knowingly tolerates the acts and furthermore fails to

make reasonable attempts to abate the acts.

5.4 Section 125.004(a), CPRC, provides that proof that an activity described by

Section 125.0015 is frequently committed at the place involved or that the place is frequently

used for an activity described by Section 125.0015 is prima facie evidence that the defendant

knowingly tolerated the activity.

5.5 Section 125.004(b), CPRC, provides that evidence that persons have been arrested

for or convicted of offenses for an activity described by Section 125.0015 in the place involved

is admissible to show knowledge on the part of the defendant with respect to the act that

occurred. The originals or certified copies of the papers and judgments of those arrests or

convictions are admissible in the suit for injunction, and oral evidence is admissible to show that

the offense for which a person was arrested or convicted was committed at the place involved.

5.6 Section 125.004(c), CPRC, provides that evidence of the general reputation of the

place involved is admissible to show the existence of the nuisance.

5.7 Section 125.002, CPRC, authorizes the City to bring suit to enjoin and abate a

common nuisance against any person who maintains, owns, uses or is a party to the use of a

place for purposes constituting a nuisance and further authorizes the City to bring suit, in rem,

against the property itself.

5.8 The City would show that Mira Monte is a multiunit residential property, to which

persons habitually go to commit one or more of the criminal acts enumerated in Section

125.0015, CPRC, and the Defendants knowingly tolerated and failed to make reasonable

attempts to abate that activity. Therefore, Mira Monte is a common nuisance as described by

statute and the City is entitled to all relief provided by Chapter 125, CPRC including, but not

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 5
limited to, an order of the Court that the Mira Monte Apartments be closed for one year after the

date of judgment.

5.9 Because the City brings this action in rem, the judgment shall be a judgment in

rem against the property as well as against the Defendants, according to Section 125.002(b) and

(e) of the Texas Civil Practice & Remedies Code.

VI. REQUEST FOR A TEMPORARY INJUNCTION

6.1 The City incorporates and adopts by reference the allegations contained in each

and every preceding paragraph.

6.2 Defendants have failed or refused to abate the nuisance. Defendants are likely to

continue to maintain and use, and be party to the maintenance and use of the property as a

common nuisance unless restrained by an injunctive order of this Court. The Defendants’ failure

or refusal to abate the nuisance is further evidenced by the recent commission of an aggravated

robbery on January 1, 2018, after the City filed its Original Petition in this matter to abate this

common nuisance. It is the continued occurrence of dangerous criminal activity on this property

that puts so many at risk and, in part, compels the City to seek a temporary injunction at this

time.

6.3 Unless Defendants are enjoined from maintaining and using the property as a

common nuisance, irreparable harm will be suffered by the citizens of Fort Worth, Texas. The

City of Fort Worth has no other adequate remedy at law to prevent the continued maintenance

and use of the property as a common nuisance.

6.4 The consequences of the above-described unlawful activities at the property, as

well as the foreseeable resulting criminal activity associated with these acts, would proximately

cause a person of ordinary sensibilities to be substantially frightened, discomfited, annoyed and

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 6
inconvenienced in the use of any premises surrounding the property, as well as persons generally

being concerned for their own safety and well-being.

6.5 In accordance with Section 125.045(a) of the Texas Civil Practice and Remedies

Code, if, after notice and hearing on the request by the City for a temporary injunction, a court

determines that the City is likely to succeed on the merits in a suit brought under Section 125.002

(Suit to Abate Common Nuisance), the Court shall require that each Defendant execute a bond.

The bond must: (1) be payable to the STATE OF TEXAS at the county seat of the county where

the place is located (i.e. Tarrant County); (2) be in the amount set by the Court, but no less than

$5,000 nor more than $10,000; (3) have sufficient sureties approved by the Court; and (4) be

conditioned that the Defendants will not knowingly allow a common nuisance to exist in that

place.

6.6 Based on section 125.002(e) of the Texas Civil Practice & Remedies Code, if the

judgment is in favor of the City, the Court shall grant an injunction ordering Defendants to abate

the nuisance and be enjoined from maintaining or participating in, the common nuisance existing

on the property. The Court may include in its order reasonable requirements to prevent the use

or maintenance of the place as a nuisance.

6.7 Pursuant to Section 125.003(a) of the Texas Civil Practice & Remedies Code,

should any condition of the bond or any injunctive order by this Court be violated, suit upon the

bond in the name of the State of Texas should be allowed; and upon a showing of a violation of

any condition of the bond or injunctive order, the whole sum of the bond should be ordered

forfeited to the City of Fort Worth, Texas, the originating entity. The place where the nuisance

exists should be ordered closed for one year from the date of the order of bond forfeiture.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 7
 6.8 In accordance with Section 125.002(d) of the Texas Civil Practice & Remedies

Code, a person who violates a temporary or permanent injunctive order is subject to the

following sentences for civil contempt:

(1) a fine of not less than $1,000 or more than $10,000;

(2) confinement in jail for a term of not less than 10 or more than 30 days; or

(3) both fine and confinement.

6.9 In accordance with Section 125.045(b) of the Texas Civil Practice & Remedies

Code, if Defendants violate the temporary or permanent injunction, the Court may order the

political subdivision, City of Fort Worth, to:

(1) discontinue the furnishing of utility services to the place at which the nuisance
exists;

(2) prohibit the furnishing of utility service to the place by any public utility
holding a franchise to use the streets and alleys of the political subdivision;

(3) revoke the certificate of occupancy of the place;

(4) prohibit the use of city streets, alleys, and other public ways for access to the
place during the existence of the nuisance or in furtherance of the nuisance;

(5) limit the hours of operation of the place, to the extent that the hours of
operation are not otherwise specified by law;

(6) order a landlord to terminate a tenant’s lease if:

(A) the landlord and the tenant are parties to the suit, and

(B) the tenant has violated a condition of the injunctive order; or

(7) order any other legal remedy available under the laws of the state.

VII. REQUEST FOR A PERMANENT INJUNCTION

7.1 The City incorporates and adopts by reference the allegations contained in each

and every preceding paragraph.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 8
 7.2 As alleged above, Defendants knowingly maintain a place to which persons

habitually go and engage in illegal activity. As such, the property constitutes a common

nuisance under Section 125.0015 of the Civil Practice & Remedies Code.

7.3 Defendants have failed or refused to abate the nuisance. Defendants are likely to

continue to maintain and use, and be party to the maintenance and use the property as a common

nuisance unless restrained by an injunctive order of this Court.

7.4 Unless Defendants are enjoined from maintaining and using the property as a

common nuisance, irreparable harm will be suffered by the citizens of Fort Worth, Texas. The

City of Fort Worth has no other adequate remedy at law to prevent the continued maintenance

and use of the property as a common nuisance.

7.5 The consequences of the above-described unlawful activities at the property, as

well as the foreseeable resulting criminal activity associated with these acts, would proximately

cause a person of ordinary sensibilities to be substantially frightened, discomforted, annoyed and

inconvenienced in the use of any premises surrounding the property, as well as persons generally

being concerned for their own safety and well-being.

7.6 Based on Section 125.002(e) of the Texas Civil Practice & Remedies Code, if the

judgment is in favor of the City, the Court must order that the property be closed for one year

after the date of the judgment.

7.7 Because the City of Fort Worth brings this action in rem, the judgment shall be a

judgment in rem against the property as well as against the Defendants.

7.8 Based on the foregoing, the City of Fort Worth requests that the property be

permanently enjoined from being operated and maintained as a common nuisance.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 9
 VIII. ATTORNEY’S FEES

8.1 It was necessary to secure the services of three Assistant City Attorneys from the

Fort Worth City Attorney’s Office to litigate this cause of action to enjoin and abate the common

nuisance being maintained on the property. Based on Sections 125.003 and 125.068 of the Texas

Civil Practice & Remedies Code, the City requests the Defendants be ordered to pay reasonable

attorney’s fees and costs, including investigative costs, witness fees, court costs and deposition

fees.

IX. PRAYER

THEREFORE, the City prays that it have judgment in its favor and that it be granted the

following relief as provided by Chapter 125, CPRC:

1. That the Court set this cause for a hearing on the City’s request for a
temporary injunction and grant the injunction.

2. That, upon granting the temporary injunction, the Court require

Defendants to execute a bond pursuant to Section 125.045(a)(2).

3. That the Court set this cause for a permanent injunction trial on the merits.

4. That, upon final hearing, the Court renders judgment in favor of the City
granting an injunction ordering the defendants to abate the nuisance and
enjoining them from maintaining or participating in the nuisance and,
further, ordering reasonable requirements to prevent the use or
maintenance of Mira Monte Apartments, also known as 2800 Las Vegas
Trail, as a nuisance.

5. That the Court further order that Mira Monte Apartments, also known as
2800 Las Vegas Trail, be mandatorily closed for a period of one year, as
provided by Section 125.002, CPRC, or, in the alternative, that a receiver
be appointed to manage the property for a period of one year in
accordance with Section 125.046, CPRC.

6. That the Court further order that Defendants pay all moving expenses
(including necessary deposits) and relocation costs of the tenants affected
by the mandatory closure of the property.

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 10
 7. That the City be awarded its costs of suit and attorney fees as provided by
the Texas Civil Practices & Remedies Code Annotated § 125.003.

8. That the City have such other relief to which it may be entitled.

Respectfully submitted,

/s/ Harvey L. Frye, Jr.

Harvey L. Frye, Jr.
Assistant City Attorney
State Bar No. 07496500
Harvey.Frye@fortworthtexas.gov

Christopher. B. Mosley
Sr. Assistant City Attorney
State Bar No. 00789505
Chris.Moslev@fortworthtexas.gov

Benjamin J. Sampract
Assistant City Attorney
State Bar No. 24053460
Benjamin.Sampract@fortworthtexas.gov

Attorneys for Plaintiff

City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
TEL: (817) 392-7600
FAX: (817) 392-8359

CERTIFICATE OF SERVICE

This is to certify that on this 17th day of January, 2018, a true and correct copy of the

foregoing document was delivered in accordance with the Texas Rules of Civil Procedure to:

Victor Huhem
HUHEM LAW FIRM, PLLC
5601 Bridge Street, Suite 321
Fort Worth, Texas 76112
Via e-file: vhuhem@huhemlaw.com

/s/ Harvey L. Frye, Jr.

HARVEY L. FRYE, JR

FORT WORTH'S 1st AMENDED ORIGINAL PETITION – Mira Monte Apartments, LLC, et al Page 11