Opinion

TESCO Properties, Inc. v. Weirich

Court
District Court, W.D. Tennessee
Filed
Aug 29, 2022
Cited by
0 cases
Authority
More cited than 29.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

TESCO PROPERTIES, INC., and )

PEPPER TREE – MEMPHIS, LTD. )

)

Plaintiffs, )

)

v. )

)

AMY WEIRICH, in her official capacity ) Case No. 2:21-cv-02743-JTF-atc

as 30th Judicial District Attorney General, )

JENNIFER SINK, in her official capacity )

as Chief Legal Officer for the City of )

Memphis, and CITY OF MEMPHIS )

TESCO PROPERTIES, INC. )

)

v. )

)

UNITED STATES DEPARTMENT )

OF HOUSING AND URBAN )

DEVELOPMENT )

)

Defendants, )

ORDER GRANTING IN PART AND DENYING IN PART EMERGENCY MOTION

FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Before the Court is Consolidated Case Defendants’ Emergency Motion For Temporary

Restraining Order and Preliminary Injunction, filed on August 18, 2022. (ECF No. 82.) The

Defendants filed a Response to the Motion on August 23, 2022. (ECF No. 86.) A hearing on the

motion was held the next day on August 24, 2022. (ECF No. 87.) For good cause shown, the

Motion is GRANTED IN PART AND DENIED IN PART.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case involves a nuisance action filed by Consolidated Case Defendants City of

Memphis and the State of Tennessee, ex rel. Amy Weirich, District Attorney for the Thirtieth

Judicial District of Tennessee at Memphis (collectively, “the City”) against Peppertree

Apartments, Pepper Tree – Memphis LTD, and TESCO Properties, Inc. (ECF No. 1.) The City’s

complaint alleges a nuisance claim over crime and safety concerns at Peppertree Apartments, a

federally subsidized housing complex in Memphis, Tennessee. (Id.) The City seeks to abate the

nuisance they allege exists at Peppertree. The case was initially filed in Shelby County

Environmental Court. The Environmental Court entered a Temporary Restraining Order (“TRO”)

on November 22, 2021, which prohibited Peppertree from accepting new tenants but allowed

current tenants to stay through the term of their next payment period under the terms of their lease.

(ECF No. 77, 24-28.) The TRO was later amended to allow a few isolated new tenants and to

permit extending some expiring leases. (Id. at 52-54.) On December 1, 2021, the Consolidated

Case Plaintiffs removed the case to this Court. (Id. at 1-4.)

On December 24, 2021, the Court entered an Order Amending the TRO to allow all current

tenants with valid leases to remain at the complex through February 28, 2022 but kept all other

aspects of the TRO intact. (ECF No. 26.) On February 16, 2022, the Court entered an Order Lifting

the TRO. (ECF No. 49.) The Court noted that the Department of Housing and Urban Development

had persuasively argued that “keeping [the TRO] in place will continue the hardship on those in

Shelby County who are in need of affordable housing,” due to an ongoing affordable housing

shortage. (Id. at 2.) The Court determined that “keeping [the TRO] in place would displace

vulnerable tenants and would leave others in need of affordable housing with no place to go” and

that leaving the TRO in place “would do more harm than good.” (Id.) The Court finally reserved

the right to reinstate the TRO “should circumstances require it.” (Id.) The Court listed the

following conditions that governed “the lifting of [the TRO].”

(1) Plaintiffs must keep the premises up to code for the Temporary

Injunction/Restraining Order to remain lifted; (2) Peppertree Apartments is

open to new tenants until further Order of the Court; (3) Changes adding time

to a payment period, occupancy, and/or lease may be made until further Order

of the Court; (4) Any signage that Peppertree Apartments is closed may be

removed from the premises until further Order of the Court; and (5)

Temporary barriers or boarding of the premises may be removed until further

Order of the Court.

(Id. at 3.) The lifting was initially time limited “until the preliminary injunction hearing on Friday,

March 11, 2022,” but this hearing has been continued several times since, primarily because of the

parties’ settlement discussion, and the lift has remained in place. (Id. at 2); (ECF Nos. 55, 56, 58,

59, 67, 70, 71, 72, 73.)

The present motion was sparked by reports of developing structural and safety concerns at

Peppertree unrelated to crime. On July 27, 2022, an elevated walkway running along the length of

the second floor at one of the apartment buildings partially collapsed. (ECF No. 82-3, 2.). A

different walkway connecting one apartment building to another collapsed on August 2, 2022,

injuring three people. (ECF No. 82-2, 2.) In response to the August 2, 2022 collapse, Ben Frazier,

a Commercial Building Inspector for the City of Memphis, went to Peppertree to perform an

inspection. (Id.) He was not informed of the July 27 incident while on the property. During his

inspection, Frazier observed numerous code violations that “were substantial and directly affected

the structural integrity of the elevated structures on the property.” (Id. at 3.) As a result, Frazier

directed Peppertree’s owner to enlist a structural engineer to inspect all elevated structures and

ultimately repair them. (Id.) Frazier later returned to the property for another inspection on August

15 and found that few repairs had been undertaken. He noted that “a concrete slab balcony” had

“collapsed onto [a] first-floor tenant’s porch,” and issued a Code Citation. (Id.; ECF No. 82-6, 2.)

This led to a separate action in Shelby County Environmental Court that is still ongoing. (ECF No.

86, 6.)

Peppertree did enlist a structural engineer per Frazier’s instruction: Julie Furr of Rimkus

Consulting Group. (ECF No. 82-3, 2.) Furr’s first report indicated that the elevated walkways were

suffering from severe disrepair and stated they were “unsafe to remain in service in their current

state.” (Id. at 3.) Furr recommended that the walkways be removed from service, as well as the

areas beneath them, or that they alternatively be “temporarily shored down the center of the metal

deck span.” (Id.) Peppertree ultimately engaged a contractor to shore up the balconies, “with 4x4

timber post and beam shoring.” (Id.) Furr later determined that the temporary repairs were

“sufficient to prevent sudden and immediate collapse.” (ECF No. 86-1, 1.) Furr stated that the

“walkways are safe to continue to use for normal and ordinary egress” so long as large groups did

not congregate on them. (Id.) Farr directed management to perform daily inspections for new

damage. (Id.) Also, the temporary measures were to be re-inspected by Rimkus every 30 days and

development of a permanent solution was to begin within 60 days. (Id. at 1-2.) Peppertree has

posted signs instructing tenants to avoid congregating on the walkways. (ECF No. 86-8.)

On August 10, 2022, Safeways, Inc. Inspector Joe Gurley inspected the property as well.

(ECF No. 86-5.) The Safeways inspection noted numerous issues that needed addressing in almost

every area of the property. (Id.) Among the issues noted were improper storage, the presence of

wrecked cars, broken fences, broken vehicle access gates, graffiti, evidence of drug use, public

alcohol consumption, gun fire, numerous lights out, broken windows, missing blinds and screens,

electrical conduits that needed replacement, and the need to inspect and repair “all elevated

walkway supports” as needed. (Id.)

On August 4, 2022, Mark Wormley, a Fire Inspector with the City of Memphis Division

of Fire Services, also inspected the property. He noted that the remedy for the connecting balcony

collapse on August 2, which involved walling off the balcony entirely, created “a major safety

violation” by limiting the area to only one point of egress and access. (ECF No. 82-5, 2.) Wormley

stated that he told Brent Frost, Peppertree’s manager, about this issue, and that Frost stated he

would relocate the tenants “within a couple of days to another location within the property” until

the walkway was secured. (Id.) On August 16, Fire Services again returned to the property and

placed Peppertree on “fire-watch.” (Id. at 4.) As Wormley explained at the hearing, fire-watch

requires staff to do regular patrols of the property while logging their patrol times, in order to stay

abreast of any potential fires that may start. Peppertree engaged D&S Security Services, their

regular security contractor, to perform the fire-watch duties. (ECF No. 86-3.). Logs of fire-watch

patrols were provided to the court, but there were no logs between August 18 and August 22. (Ex.

10.) On August 17, 2022, the leasing office at Peppertree burned down, resulting in no injuries but

leaving the building uninhabitable and a hazard. (ECF No. 82-1, 3.) The leasing office was

relocated to a vacant unit. (ECF No. 86-7.)

The day after the fire, the City filed the present motion, arguing for a preliminary injunction

seeking the following: “(i.) restraining and enjoining Peppertree from accepting new tenants; (ii.)

restraining and enjoining Peppertree from renewing existing expiring leases at the Peppertree

Apartments; (iii.) granting the City permission to communicate with residents of Peppertree to

advise them of alternative housing.” (ECF No. 82, 2.) Alternatively, the City “asks the Court to

reinstate [the TRO], thereby closing Peppertree to new tenants/occupants and setting a date beyond

which existing leases cannot be renewed.” (Id.) TESCO and Peppertree filed a response in

opposition on August 23, 2022. (ECF No. 86.) At the hearing on the preliminary injunction held

on August 24, 2022, and during a later follow up status conference on August 25, 2022, the City

indicated that it was withdrawing its request for item (ii) above for the next 120 days. Counsel for

TESCO and Peppertree also indicated that they did not oppose item (i) in light of the fact that the

property is not currently accepting new leases due to the structural damage detailed above.

However, TESCO and Peppertree requested that injunction be limited to 60 days, rather than 120

days as the City desired. Thus, as the Court understands the state of the case, the only outstanding

issues are the length of time regarding a moratorium on accepting new residents and whether the

City may communicate with current residents of Peppertree to advise them of alternative housing.

II. LEGAL STANDARD

There are four factors that a district court should consider when evaluating a request for a

preliminary injunction: “(1) the movant’s likelihood of success on the merits; (2) whether the

movant will suffer irreparable injury without a preliminary injunction; (3) whether issuance of a

preliminary injunction would cause substantial harm to others; and (4) whether the public interest

would be served by issuance of a preliminary injunction.” McNeilly v. Land, 684 F.3d 611, 615

(6th Cir. 2012). “The four considerations applicable to preliminary injunctions are factors to be

balanced and not prerequisites that must be satisfied.” American Imaging Servs., Inc. v. Eagle-

Picher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). Preliminary injunctions are extraordinary

remedies, and thus the proof a plaintiff must show to obtain one is “much more stringent than the

proof required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739

(6th Cir. 2000).

III. LEGAL ANALYSIS

The Court will summarize the agreement reached by the parties at the hearing on August

24, 2022, and the subsequent status conference on August 25, 2022. First, the City indicated that

they were withdrawing their request for an injunction “restraining and enjoining Peppertree from

renewing existing expiring leases at the Peppertree Apartments” for 120 days, with the issue to be

revisited at that time. Accordingly, that request is viewed as WITHDRAWN, with the City

reserving the right to reinstate the request in 120 days. Second, the parties indicated that they were

in agreement on a moratorium on Peppertree from accepting new tenants but disagreed over the

length of said moratorium. TESCO and Peppertree indicated that they preferred a 60-day period,

while the City indicated they preferred a 120-day period. Finally, the parties remained in

disagreement over an injunction “granting the City permission to communicate with residents of

Peppertree to advise them of alternative housing.”

The Court finds that a 120-day period is better supported by the record. The evidence

suggests that the Peppertree property is currently in a state of disrepair, with fundamental structural

problems along necessary points of ingress and egress to individual units. While TESCO and

Peppertree have presented evidence of temporary repair measures at the property and state they

will develop a more permanent solution in 60 days’ time with help from structural engineers, that

permanent solution remains wanting and would likely take more than an additional 60 days to fully

implement. The original lift of the TRO was conditioned on keeping the property up to code, a

requirement TESCO and Peppertree have failed to meet, and which is likely to take more than 60

days to fulfill. Further, the 120-day period would line up with the agreed timeline to revisit the

City’s request to prevent lease renewals, allowing the Court to revisit all relevant issues at once.

Accordingly, the Court GRANTS the City’s request for a preliminary injunction preventing

Peppertree from accepting new tenants for 120 days, given the parties’ agreement on the

underlying issue and documented problems at the property.

The City maintained its request for a preliminary injunction allowing them to advise

Peppertree residents of alternative housing. This was accompanied by testimony regarding a

proffered relocation plan for all Peppertree residents in the event the property was to close.

However, at this stage, multiple questions surround the actual implementation of the plan,

including whether necessary assistance for relocating residents would be available from HUD. The

request to communicate with Peppertree residents is premature given the state of the record at this

time, which does not contain extensive discussion of the plan’s implementation or analysis of how

potential court rulings, HUD actions, or case outcomes would affect the implementation.

Accordingly, the City has not carried their burden regarding this request, and it is DENIED.

The City’s Motion is therefore GRANTED IN PART AND DENIED IN PART.

Peppertree is hereby enjoined from accepting new tenants, per their agreement, for 120 days.

Consistent with this Order, the Court will revisit issues surrounding new tenants and the renewal

of current leases in 120 days’ time.

IT IS SO ORDERED this 29th day of August, 2022.

s/John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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