AMARILLO, Texas (KAMR/KCIT) — The legal team of Amarillo Businessman Alex Fairly has filed an appeal notice, along with a motion to “modify, correct or reform the final judgment,” in the Amarillo Civic Center funding-related litigation in Potter County District Court Monday afternoon.
In response to the ruling in the case, brought down on Oct. 25, the legal team for the city of Amarillo filed its own appeal notice on Nov. 10. The city previously filed its own motion to “modify, correct or reform the final judgment” in the case on Nov. 4.
How did we get here?
This comes after William Sowder, the retired judge in this case, ruled in Fairly’s favor in the litigation on Oct. 25 after a two-day trial last month. According to previous reports by MyHighPlains.com, Sowder ultimately determined that the city of Amarillo could not legally use $260 million in anticipation notes to fund the expansion and renovation of the Amarillo Civic Center Complex because of the city’s violations of the Texas Open Meetings Act and the city’s violations of the Texas Government Code.
The city of Amarillo filed its notice of accelerated appeal on Nov. 10, coming after the city filed its motion to modify on Nov. 4. This motion to modify ultimately challenged each of the violations that Sowder brought down, with officials stating at the time that the city’s notice of appeal can be withdrawn if the Sowder’s ruling ultimately changes.
Officials with the city of Amarillo said at the time that the appeal notice stemmed from Sowder’s ruling creating an “area of confusion” on how the city can issue debt. Officials said they need clarification on how they can approach future debt issuances.
“As to looking forward, we don’t have clarification on how we should post a notice, how we should draft the agenda item for a debt issuance. We followed the same process and pattern that we had used in the past, that the Attorney General had approved in the past, that state law laid out the process for. We followed that process. Now, we have indication that that process might not have been what we should have followed,” Amarillo Mayor Ginger Nelson said at the time. “So, it conflicts with state law and that’s why we feel like we have a responsibility to follow the appeals process to get more clarification on how would a city issue debt.”
In a statement provided to MyHighPlains.com on Nov. 10, Fairly’s team challenged this approach, stating that the city of Amarillo does not need clarification on the rules. They just need to follow the rules outlined by state law in issuing debt.
What do the new documents say?
Around 3:15 p.m. Monday, Fairly’s legal team filed a notice of appeal in the Civic Center funding-related litigation. Documents obtained by MyHighPlains.com state that the appeal is regarding the final judgment from Oct. 25, along with “any other adverse rulings and/or orders by the Court that predate or postdate the Court’s final judgment.”
Like the city of Amarillo’s appeal notice, Fairly’s appeal notice was also an accelerated notice, which is required by Texas law to be submitted 20 days after a judgment. According to previous reports, city of Amarillo officials said that an accelerated appeal notice was filed because the original proceeding by the city was an expedited proceeding. The notice will be appealed to the Seventh Court of Appeals in Amarillo.
Along with the appeal notice. Fairly’s team also filed a motion to modify the judgment, asking Sowder to include a declaration that was not initially included in the ruling. Fairly’s team is arguing that the ruling should be modified to reflect their belief that “the city failed to impose the tax in Ordinance 7985 (the ordinance which issued the anticipation notes for the Civic Center project) as required by 1431.008(b) of the Texas Government Code.”
According to section 1431.008(b) of the Texas Government Code, it states that:
“A governing body that pledges to the payment of anticipation notes an ad valorem tax to be imposed in a subsequent fiscal year shall impose the tax in the ordinance or order that authorizes the issuance of the notes.”Section 1431.008(b) of the Texas Government Code
This comes after the city of Amarillo filed its own motion to modify, which differed from Fairly’s motion. According to previous reports, the city’s motion stated the team’s belief that Sowder’s overall judgment “is not supported by the law and/or the evidence,” challenging the majority of the judgment, including rulings surrounding the violations of the Texas Open Meetings Act, the violations of the Texas Government Code and the judgment surrounding attorneys fees.
Fairly’s team is arguing in their own motion that Sowder’s decision to not include a ruling surrounding the imposition of a tax through Ordinance 7985 “is against the great weight and preponderance of the evidence” and Sowder’s “failure to find and declare that no tax was imposed” in the ordinance “was factually and legally insufficient.”
“The undisputed facts and governing law supports only the conclusion that Ordinance 7985 did not impose the tax as required by 1431.008(b) of the Texas Government Code, or at the very least the great weight and preponderance of the evidence shows Ordinance 7985 did not impose a tax,” the motion reads.
According to previous reports by MyHighPlains.com, the city of Amarillo’s legal team argued against this claim surrounding the imposition of a tax during the trial. Paul Trahan, a member of the city’s legal team, stated in the trial that the ordinance does impose a tax, a figure that will be determined in the yearly process the city goes through establishing the budget and how the debt will impact the subsequent tax rate. Trahan also stressed at the time that whatever tax would be implemented because of the notes would remain under the cap outlined in the city of Amarillo’s charter.
In a statement provided to MyHIghPlains.com, Fairly said that because of the potential of an appeal, Fairly’s legal team took the opportunity to cross-appeal in the case, bringing forward a measure that was not officially ruled on by Sowder in the final judgment. With these filings, it gives the Seventh Court of Appeals the ability to consider more information in the appeals process, giving Fairly’s team the chance to have all that they can on the record in that potential appeal.
“In the appeals process, everything that happen in the first hearings… everything that was put on the record in the trial and now (in Monday’s) hearing, once that all gets done, and the city does formally appeal… that all goes to the appeals court,” Fairly said. “At that point, it’s all over. You just give them the boxes of information and there are no hearings. There is no court date. You don’t get a chance to go argue. They just look at all of it and they just make their determination.”
As of Monday, there has been no official appeal in the Civic Center funding-related case, with both parties only filing respective notices of appeal. The legal teams will come together for a hearing regarding their respective motions to “modify, correct or reform the final judgment” during a virtual hearing in Potter County District Court on Monday morning.
MyHighPlains.com has reached out to the city of Amarillo regarding the filing of both Fairly’s notice to appeal and Fairly’s motion to modify. This story will be updated if officials from the city respond to the request for comment.
This is a developing story. MyHighPlains.com will update this article as new information becomes available.
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