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Judge allows Town Plaza lawsuit to proceed

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The city of Roswell is in a lawsuit over its actions that closed the Town Plaza Apartments. (Lisa Dunlap Photo)

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A lawsuit against the city of Roswell regarding the Town Plaza Apartments will proceed following a ruling Monday by a district court judge.

Lawrence Edmisten III at a September 2019 Roswell City Council meeting. (Lisa Dunlap Photo)

The city had asked the court to the dismiss the lawsuit, which alleges that the city denied Town Plaza owner Lawrence “Rick” Edmisten III due process and wrongly took his property.

The lawsuit arises from city actions in early 2019 that required tenants to move out of the South Sunset Avenue property and the subsequent condemnation decision approved by the City Council on July 22.

Judge James M. Hudson instead dismissed only one of three counts in the plaintiff’s complaint, which will allow the case to proceed. Hudson serves in Chaves County with New Mexico’s 5th Judicial District Court.

In making his decision Hudson told Edmisten’s lawyer, William Griffin of Ruidoso, and the lawyer representing the city of Roswell, Bryan Evans of Atwood, Malone, Turner & Sabin, P.A., that he was not dealing Monday with the evidence of either party. Rather, he sought to determine if the plaintiff had a sufficient basis to make a legal claim.

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“There is a low, low bar of whether something is sufficient in making a claim,” he said. “Whether they can prove it, that is something we are going to have to get into (later).”

After questioning both attorneys and discussing their legal arguments, Hudson decided to let stand Count Two and Count Three.

Count Two involves an allegation of unlawful taking by inverse condemnation. Edmisten has claimed that the city — through its actions prior to the official condemnation decision by the City Council — effectively took Edmisten’s property from him by requiring tenants to move out, and thereby making it impossible for the property to have its intended economic and commercial benefit.

Count Three alleges unlawful taking by denial of due process. Griffin told Hudson that his client was denied proper notice and proper remedy during the inspection, notice to remedy and tenant move-out process.

Evans restated the city’s assertions that it acted with a concern for “public health and safety” and that Edmisten had ample opportunities to remedy the problems and appeal the initial “red tagging,” or the posting of a notice on tenants’ doors after a city inspection that characterized the property as “dangerous, damaged and dilapidated.”

Count One was dismissed. It alleged tortuous interference with a contract and stated that the city had waived its “sovereign immunity” regarding property matters because employees had acted as law enforcement officers.

Hudson asked Evans to prepare an order for the court’s signature, and indicated that now the city of Roswell can file its answer to the plaintiff’s complaint.

Griffin told the court that he would wait until he has read the city’s answer before deciding whether to amend the original complaint. Hudson and the lawyers also talked about the possibility of bifurcating some of the matters in the complaint.

An April 6 status conference has been scheduled to determine future case proceedings.