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NO. 20-04-04810
E.J. DOOLEY § IN THE DISTRICT COURT
PLAINTIFF §
§
VS. § 284 JUDICAL DISTRICT
§
IP AVANTI VISION PARK §
OPCO, LLC D/B/A AVANTI §
SENIOR LIVING AT VISION PARK §
DEFENDANT § MONTGOMERY COUNTY, TEXAS
MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER
AND MOTION FOR SANCTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, IP AVANTI VISION PARK OPCO, LLC D/B/A AVANTI SENIOR
LIVING AT VISION PARK, Defendant herein, and file this Motion to Dissolve Temporary
Restraining Order and Motion for Sanctions, and would respectfully show the Court as follows:
INTRODUCTION
Upon information and belief, on or about April 21, 2020, an ex parte hearing was held on
Plaintiff s Application for Temporary Restraining Order. Without notice to Defendant, this
Court granted Plaintiff Application and entered a Temporary Restraining Order (hereinafter
referred to as “TRO”) against Defendant See Exhibit “A”). In so doing, the Court ordered that
Defendant “is immediately restrained from interfering or denying the Plaintiff from accessing his
residence located at 120 Vision Park Blvd Apartment 149, Shenandoah, Texas 77384 and is
immediately ordered to turn over immediate possession to the Plaintiff his residence located at
120 Vision Park Blvd Apartment 149, Shenandoah, Texas77384, that Avanti Senior Living at
Vision Park will interfere with or deny the Plaintiff access to and possession of his residence at
120 Vision Park Blvd Apartment 149, Shenandoah, Texas 77384 before notice and a hearing on
Plaintiff’s Application for Temporary Injunction. See id.). In addition, the Court orders IP
Avanti Vision Park OPCO, LLC d/b/a Avanti Senior Living at Vision Park, and all of
Defendant’s officers, agents, servants, employees, successors and assigns and attorneys are
ORDERED to immediately cease and desist from interfering or denying the Plaintiff from
accessing his residence located at 120 Vision Park Blvd Apartment 149, Shenandoah, Texas
77384. It is further ORDERED, ADJUDGED and DECREED that IP Avanti Vision Park OPCO,
LLC d/b/a Avanti Senior Living at Vision Park turn over immediate possession of Plaintiffs
residence located at 120 Vision Park Blvd Apartment 19, Shenandoah, Texas 77384 to Plaintiff
.).
Because the ex parte TRO fails to comply with statutory requirements, Defendants now
move to dissolve the TRO.Additionally, opposing counsel , through bad faith filings and ex
parte hearings that he clearly pursued solely for leverage in this dispute, makes a mockery of the
judicial process. Defendant further moves for sanctions.
MOTION TO DISSOLVE TRO
Temporary restraining orders are governed by Texas Rule of Civil Procedure 680. This
rule states:
No temporary restraining order shall be granted without notice to the adverse
party unless it clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss, or damage will
result to the applicant before notice can be served and a hearing had thereon.
Every temporary restraining order granted without notice shall be endorsed with
the date and hour of issuance; shall be filed forthwith in the clerk's office and
entered of record; shall define the injury and state why it is irreparable and why
the order was granted without notice; and shall expire by its terms within such
time after signing, not to exceed fourteen days, as the court fixes, unless within
the time so fixed the order, for good cause shown, is extended for a like period or
unless the party against whom the order is directed consents that it may be
extended for a longer period. The reasons for the extension shall be entered of
record. No more than one extension may be granted unless subsequent extensions
are unopposed. In case a temporary restraining order is granted without notice, the
application for a temporary injunction shall be set down for hearing at the earliest
possible date and takes precedence of all matters except older matters of the same
character; and when the application comes on for hearing the party who obtained
the temporary restraining order shall proceed with the application for a temporary
injunction and, if he does not do so, the court shall dissolve the temporary
restraining order. On two days' notice to the party who obtained the temporary
restraining order without notice or on such shorter notice to that party as the court
may prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and determine such
motion as expeditiously as the ends of justice require.
IV P. 680. In addition, Texas Rule of Civil Procedure 684 further requires a trial court
to fix the amount of security; i.e., bond, to be given by the applicantSee IV P. 684.
Taken together, “Texas Rules of Civil Procedure 680 and 684 require a trial court issuing
a temporary restraining order to: (1) state why the order was granted without notice if it is
granted ex parte IV 680; (2) state the reasons for the issuance of the order by
defining the injury and describing why it is irreparable, .; (3) state the date the order expires
and set a hearing on the temporary injunction, .; and (4) set a bond, IV P. 684.” In re
Office of the Attorney General 257 S.W.3d 695, 697 (Tex. 2008). Orders that fail to fulfill these
four requirements are void. See id. (citing First Bank San Felipe, N.A. v. Paz Constr. Co., 715
S.W.2d 640, 641 (Tex. 1986)).
HE EMPORARY ESTRAINING RDER FAILS TO STATE WHY THE
ORDER WAS GRANTED WITHOUT NOTICE
Foremost, in direct violation of Rule 680, the TRO fails to state why the order was
granted without notice. See IV As Rule 680 states: “No temporary restraining
order shall be granted without notice to the adverse party unless it clearly appears from specific
facts shown by affidavit or by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before notice can be served and a hearing had
thereon.” . (emphasis added). Here, the TRO lists a regurgitation of what the statute indicates
is needed for an ex parte hearing on a TRO and other than that, it is silent as to why it was issued
without noticeand what specific actions taken by Defendant warranted an ex parte hearing
The lack of notice is particularly egregious considering what has transpired to date.
Plaintiff’s attorney has been in communication with counsel for Defendant since April 19, 2020
and communicated with her both before and after the ex parte TRO was heard and granted
without notice to Defendant’s counsel. Simply put, the undersigned counsel has been no more
than a phone call or email away throughout this process and opposing counsel has clearly refused
to provide notice when it could easily have been done. This is no reasonable explanation for
why the undersigned could not have been provided notice of the TRO hearing other than he
simply seeks to deny Avanti basic due process.
Other than listing out the check offs (without an supportive facts) in the statute to warrant
an ex parte TRO hearing, nothing in the order indicates any good reason why or how noticing
counsel for Defendant for a TRO hearing would cause Plaintiff to suffer irreparable harm. his is
magnified by opposing counsel’s knowledge of the undersigned representation of Defendant and
requests to be provided any filings or notified of any proceedings. T TRO void.
In addition, the affidavit of J Mark Dooley was filed with the petition but not mentioned
in the TRO. However, even if it was filed in support of Plaintiffs’ application for temporary
restraining order also fails to explain, through specific facts, the reasons why Defendants could
not be given proper notice of the application. Plaintiff provide no indication, much less specific
facts, for why the application bore such urgency that notice could not be given. By failing to do
so,Texas law clearly requires that the ex parte TRO be renderedvoid and dissolved.
HE EMPORARY ESTRAINING RDER FAILS TO SUFFICIENTLY DEFINE
THE INJURY AND IDENTIFY WHY IT IS IRREPARABLE
Again, “[e]very temporary restraining order granted without notice … shall define the
injury and state why it is irreparable.” Tex. R. Civ. P. 680. Here, the TRO neither sufficiently
defines the injury nor states why it is irreparable.
The only reference to the alleged injury to Plaintiffs is contained in paragraph B of the
TRO, which states: “Defendant actions threaten imminent harm and irreparable injury to the
Plaintiff’s health and well being and there is not adequate remedy at law to grant Plaintiff
complete, final and equal relief.” (TRO, ¶ ). This conclusory paragraph is devoid of any facts
whatsoever. No verifiable injury is identified. Instead, Plaintiff merely regurgitate the legal
requirement of “irreparable injury” and then offer number of conclusory findings, without any
factual support. There is no factual or specific explanation of how this harm is occurring or how
it is detrimentally impacting Plaintiff In short, these conclusory allegations are devoid of any
factual support.Without sufficiently defining the injury and explaining why its harm is
irreparable, the TRO is void and should be dissolved.
HE TRO FAILS TO STATE THE DATE THE ORDER EXPIRE
Finally, in order to be valid, an order must state the date on which it expires. See In re
Office of the Attorney General, 257 S.W.3d at 697. The TRO fails in this regard as well. No
date is given for when the order expires. Accordingly, the TRO is invalid on its face for this
reason as well.
MOTION FOR SANCTIONS
A court can impose sanctions on a person who signed a pleading in violation of Texas
Rule of Procedure 13. A pleading is sanctionable under Rule 13 only if it is both groundless and
brought in bad faith or for the purpose of harassment. See IV 13; GTE Comm. Sys.
Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). Thus, the imposition of sanctions involves
the satisfaction of a two part test. See Estate of Davis v. Cook, 9 S.W.3d 288, 297 (Tex. App.
San Antonio 1999). “First, the party moving for sanctions must demonstrate that the opposing
party’s filings are groundless, and second, it must be shown that the pleadings were filed either
in bad faith or for the purposes of harassment.”
Additionally, Chapter 10 of the Texas Civil Practice and Remedies Code states that
sanctions may be imposed on a person or party who have signed a pleading or motion in
iolation of Section 10.001. See generally Tex. Civ. Prac. & Rem. Code ch. 10. Section 10.001
states:
The signing of a pleading or motion as required by the Texas Rules of Civil
Procedure constitutes a certificate by the signatory that to the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose,
including to harass or to cause unnecessary delay or needless increase in the cost
of litigation;
(2) each claim, defense, or other legal contention in the pleading or motion is
warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law;
(3) each allegation or other factual contention in the pleading or motion has
evidentiary support or, for a specifically identified allegation or factual
contention, is likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) each denial in the pleading or motion of a factual contention is warranted on
the evidence or, for a specifically identified denial, is reasonably based on a lack
of information or belief.
IV RAC ODE In sum, sanctions may be awarded under chapter
10 when “(1) the pleading or motion was brought for an improper purpose, (2) there were no
grounds for the legal arguments advanced, or (3) the factual allegations or denials lacked
evidentiary support.” Armstrong v. Collin County Bail Bond Bd., 233 S.W.3d 57, 62 (Tex.
App.Dallas 2007, no pet.).
At every turn, opposing counsel has misrepresented the facts and the law in an attempt to
coerce an outcome through ex parte proceedings. He began by instituting a proceeding in the
Justice of the Peace Court claiming that Mr. Dooley was wrongfully evicted. Despite filing a
“Sworn Complaint for Reentry,” it was replete wi both factual inaccuracies and
misrepresentations. He insinuates that he has been denied access to his belongings, including
medicine, oxygen generator, and nebulizer. This is simply untrue. Defendant informed Plaintiff
that he could retrieve his belongings. It is obvious that this was presented in this light in an
attempt to make the situation look more dire and time sensitive than it was in an attempt to
justify an ex parte proceeding.
Opposing counsel then filed his Original Petition and Application for Temporary
Restraining Order in this Court. It is likewise alleges that Mr. Dooley is unable to retrieve items
such as medicine, an oxygen generator, and a nebulizer. He also claims that Encompass, where
he is currently at is under lockdown. As he concludes, “Mr. Dooley is under discharge orders
from Encompass, however releasing him places him in grave danger if he is not allowed to return
to his residence where his medical equipment and medicine is located.” None of this is true.
Plaintiff was informed that Defendant would collect and provide any belongings (and
particularly any medicine or medical equipment).Moreover, Encompass is not currently under
lockdown. Thus, the very crux of his petitionthat a life and death situation exists is not
accurate.
In addition to the factual misrepresentations, he makes a number of legal
misrepresentations as well. While he claims to be moving under Texas Property Code section
92.0081(b), he conveniently omits that section 92.0081(b)(1) states that a landlord may prevent a
tenant from entering the leased premises in “an emergency.” See ROP ODE
92.0081(b)(1). Surely, Defendant need not recount the declared state of emergency or the
emergent circumstances that COVID 19 presents to facilities like Defendant. Yet, opposing
counsel fails to inform the Court of this. More troubling is his failure to inform the Court that
Defendant is represented by counsel, that he has been in contact with the undersigned for several
days, and that counsel has expressed a willingness to appear. In fact, the undersigned is the first
person he seems to contact after he conducts an x parte hearing.
To not inform this Court of the undersigned counsel’s involvement so that he can proceed
ex parte flies in the face of basic due process and was clearly done in bad faith. There is no
explanation for why the undersigned could not have been notified prior to the TRO hearing. The
only explanation is that opposing counsel misled this Court regarding notice in an attempt to gain
an advantage. He should be sanctioned for his conduct. In short, he commit ed a fraud upon the
Court by failing to advise the Court that the undersigned was ready, willing, and able to appear
and there was simply no reasonother than duplici for the this hearing to have been
conducted ex parte. Opposing counsel should be sanctioned for his bad faith tactics and
misrepresentations.
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant IP AVANTI VISION PARK
OPCO, LLC D/B/A AVANTI SENIOR LIVING AT VISION PARK, for the above stated
reasons ask this Court to Grant its Motion to Dissolve Temporary Restraining Order and Motion
for Sanctions, and for such other and further relief to which Defendants may be entitled.
Respectfully submitted,
ORNE OTA
BY: /s/ Chastiti N. Horne
CHASTITI N. HORNE
SBN: 24007385
2777 Allen Parkway, Suite 1200
Houston, Texas 77019
(713) 333
(713) 333 Facsimile
chorne@hrmlawyers.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served upon
all counsel of record file and emailon this day of April,
BY: /s/ Chastiti N. Horne
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NO. 20-04-04810 E.J. DOOLEY § IN THE DISTRICT COURT PLAINTIFF § § VS. § 284 JUDICAL DISTRICT § IP AVANTI VISION PARK § OPCO, LLC D/B/A AVANTI § SENIOR LIVING AT VISION PARK § DEFENDANT § MONTGOMERY COUNTY, TEXAS MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER AND MOTION FOR SANCTIONS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, IP AVANTI VISION PARK OPCO, LLC D/B/A AVANTI SENIOR LIVING AT VISION PARK, Defendant herein, and file this Motion to Dissolve Temporary Restraining Order and Motion for Sanctions, and would respectfully show the Court as follows: INTRODUCTION Upon information and belief, on or about April 21, 2020, an ex parte hearing was held on Plaintiff s Application for Temporary Restraining Order. Without notice to Defendant, this Court granted Plaintiff Application and entered a Temporary Restraining Order (hereinafter referred to as “TRO”) against Defendant See Exhibit “A”). In so doing, the Court ordered that Defendant “is immediately restrained from interfering or denying the Plaintiff from accessing his residence located at 120 Vision Park Blvd Apartment 149, Shenandoah, Texas 77384 and is immediately ordered to turn over immediate possession to the Plaintiff his residence located at 120 Vision Park Blvd Apartment 149, Shenandoah, Texas77384, that Avanti Senior Living at Vision Park will interfere with or deny the Plaintiff access to and possession of his residence at 120 Vision Park Blvd Apartment 149, Shenandoah, Texas 77384 before notice and a hearing on Plaintiff’s Application for Temporary Injunction. See id.). In addition, the Court orders IP Avanti Vision Park OPCO, LLC d/b/a Avanti Senior Living at Vision Park, and all of Defendant’s officers, agents, servants, employees, successors and assigns and attorneys are ORDERED to immediately cease and desist from interfering or denying the Plaintiff from accessing his residence located at 120 Vision Park Blvd Apartment 149, Shenandoah, Texas 77384. It is further ORDERED, ADJUDGED and DECREED that IP Avanti Vision Park OPCO, LLC d/b/a Avanti Senior Living at Vision Park turn over immediate possession of Plaintiffs residence located at 120 Vision Park Blvd Apartment 19, Shenandoah, Texas 77384 to Plaintiff .). Because the ex parte TRO fails to comply with statutory requirements, Defendants now move to dissolve the TRO.Additionally, opposing counsel , through bad faith filings and ex parte hearings that he clearly pursued solely for leverage in this dispute, makes a mockery of the judicial process. Defendant further moves for sanctions. MOTION TO DISSOLVE TRO Temporary restraining orders are governed by Texas Rule of Civil Procedure 680. This rule states: No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed. In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character; and when the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. IV P. 680. In addition, Texas Rule of Civil Procedure 684 further requires a trial court to fix the amount of security; i.e., bond, to be given by the applicantSee IV P. 684. Taken together, “Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte IV 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, .; (3) state the date the order expires and set a hearing on the temporary injunction, .; and (4) set a bond, IV P. 684.” In re Office of the Attorney General 257 S.W.3d 695, 697 (Tex. 2008). Orders that fail to fulfill these four requirements are void. See id. (citing First Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986)). HE EMPORARY ESTRAINING RDER FAILS TO STATE WHY THE ORDER WAS GRANTED WITHOUT NOTICE Foremost, in direct violation of Rule 680, the TRO fails to state why the order was granted without notice. See IV As Rule 680 states: “No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.” . (emphasis added). Here, the TRO lists a regurgitation of what the statute indicates is needed for an ex parte hearing on a TRO and other than that, it is silent as to why it was issued without noticeand what specific actions taken by Defendant warranted an ex parte hearing The lack of notice is particularly egregious considering what has transpired to date. Plaintiff’s attorney has been in communication with counsel for Defendant since April 19, 2020 and communicated with her both before and after the ex parte TRO was heard and granted without notice to Defendant’s counsel. Simply put, the undersigned counsel has been no more than a phone call or email away throughout this process and opposing counsel has clearly refused to provide notice when it could easily have been done. This is no reasonable explanation for why the undersigned could not have been provided notice of the TRO hearing other than he simply seeks to deny Avanti basic due process. Other than listing out the check offs (without an supportive facts) in the statute to warrant an ex parte TRO hearing, nothing in the order indicates any good reason why or how noticing counsel for Defendant for a TRO hearing would cause Plaintiff to suffer irreparable harm. his is magnified by opposing counsel’s knowledge of the undersigned representation of Defendant and requests to be provided any filings or notified of any proceedings. T TRO void. In addition, the affidavit of J Mark Dooley was filed with the petition but not mentioned in the TRO. However, even if it was filed in support of Plaintiffs’ application for temporary restraining order also fails to explain, through specific facts, the reasons why Defendants could not be given proper notice of the application. Plaintiff provide no indication, much less specific facts, for why the application bore such urgency that notice could not be given. By failing to do so,Texas law clearly requires that the ex parte TRO be renderedvoid and dissolved. HE EMPORARY ESTRAINING RDER FAILS TO SUFFICIENTLY DEFINE THE INJURY AND IDENTIFY WHY IT IS IRREPARABLE Again, “[e]very temporary restraining order granted without notice … shall define the injury and state why it is irreparable.” Tex. R. Civ. P. 680. Here, the TRO neither sufficiently defines the injury nor states why it is irreparable. The only reference to the alleged injury to Plaintiffs is contained in paragraph B of the TRO, which states: “Defendant actions threaten imminent harm and irreparable injury to the Plaintiff’s health and well being and there is not adequate remedy at law to grant Plaintiff complete, final and equal relief.” (TRO, ¶ ). This conclusory paragraph is devoid of any facts whatsoever. No verifiable injury is identified. Instead, Plaintiff merely regurgitate the legal requirement of “irreparable injury” and then offer number of conclusory findings, without any factual support. There is no factual or specific explanation of how this harm is occurring or how it is detrimentally impacting Plaintiff In short, these conclusory allegations are devoid of any factual support.Without sufficiently defining the injury and explaining why its harm is irreparable, the TRO is void and should be dissolved. HE TRO FAILS TO STATE THE DATE THE ORDER EXPIRE Finally, in order to be valid, an order must state the date on which it expires. See In re Office of the Attorney General, 257 S.W.3d at 697. The TRO fails in this regard as well. No date is given for when the order expires. Accordingly, the TRO is invalid on its face for this reason as well. MOTION FOR SANCTIONS A court can impose sanctions on a person who signed a pleading in violation of Texas Rule of Procedure 13. A pleading is sanctionable under Rule 13 only if it is both groundless and brought in bad faith or for the purpose of harassment. See IV 13; GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). Thus, the imposition of sanctions involves the satisfaction of a two part test. See Estate of Davis v. Cook, 9 S.W.3d 288, 297 (Tex. App. San Antonio 1999). “First, the party moving for sanctions must demonstrate that the opposing party’s filings are groundless, and second, it must be shown that the pleadings were filed either in bad faith or for the purposes of harassment.” Additionally, Chapter 10 of the Texas Civil Practice and Remedies Code states that sanctions may be imposed on a person or party who have signed a pleading or motion in iolation of Section 10.001. See generally Tex. Civ. Prac. & Rem. Code ch. 10. Section 10.001 states: The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief. IV RAC ODE In sum, sanctions may be awarded under chapter 10 when “(1) the pleading or motion was brought for an improper purpose, (2) there were no grounds for the legal arguments advanced, or (3) the factual allegations or denials lacked evidentiary support.” Armstrong v. Collin County Bail Bond Bd., 233 S.W.3d 57, 62 (Tex. App.Dallas 2007, no pet.). At every turn, opposing counsel has misrepresented the facts and the law in an attempt to coerce an outcome through ex parte proceedings. He began by instituting a proceeding in the Justice of the Peace Court claiming that Mr. Dooley was wrongfully evicted. Despite filing a “Sworn Complaint for Reentry,” it was replete wi both factual inaccuracies and misrepresentations. He insinuates that he has been denied access to his belongings, including medicine, oxygen generator, and nebulizer. This is simply untrue. Defendant informed Plaintiff that he could retrieve his belongings. It is obvious that this was presented in this light in an attempt to make the situation look more dire and time sensitive than it was in an attempt to justify an ex parte proceeding. Opposing counsel then filed his Original Petition and Application for Temporary Restraining Order in this Court. It is likewise alleges that Mr. Dooley is unable to retrieve items such as medicine, an oxygen generator, and a nebulizer. He also claims that Encompass, where he is currently at is under lockdown. As he concludes, “Mr. Dooley is under discharge orders from Encompass, however releasing him places him in grave danger if he is not allowed to return to his residence where his medical equipment and medicine is located.” None of this is true. Plaintiff was informed that Defendant would collect and provide any belongings (and particularly any medicine or medical equipment).Moreover, Encompass is not currently under lockdown. Thus, the very crux of his petitionthat a life and death situation exists is not accurate. In addition to the factual misrepresentations, he makes a number of legal misrepresentations as well. While he claims to be moving under Texas Property Code section 92.0081(b), he conveniently omits that section 92.0081(b)(1) states that a landlord may prevent a tenant from entering the leased premises in “an emergency.” See ROP ODE 92.0081(b)(1). Surely, Defendant need not recount the declared state of emergency or the emergent circumstances that COVID 19 presents to facilities like Defendant. Yet, opposing counsel fails to inform the Court of this. More troubling is his failure to inform the Court that Defendant is represented by counsel, that he has been in contact with the undersigned for several days, and that counsel has expressed a willingness to appear. In fact, the undersigned is the first person he seems to contact after he conducts an x parte hearing. To not inform this Court of the undersigned counsel’s involvement so that he can proceed ex parte flies in the face of basic due process and was clearly done in bad faith. There is no explanation for why the undersigned could not have been notified prior to the TRO hearing. The only explanation is that opposing counsel misled this Court regarding notice in an attempt to gain an advantage. He should be sanctioned for his conduct. In short, he commit ed a fraud upon the Court by failing to advise the Court that the undersigned was ready, willing, and able to appear and there was simply no reasonother than duplici for the this hearing to have been conducted ex parte. Opposing counsel should be sanctioned for his bad faith tactics and misrepresentations. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant IP AVANTI VISION PARK OPCO, LLC D/B/A AVANTI SENIOR LIVING AT VISION PARK, for the above stated reasons ask this Court to Grant its Motion to Dissolve Temporary Restraining Order and Motion for Sanctions, and for such other and further relief to which Defendants may be entitled. Respectfully submitted, ORNE OTA BY: /s/ Chastiti N. Horne CHASTITI N. HORNE SBN: 24007385 2777 Allen Parkway, Suite 1200 Houston, Texas 77019 (713) 333 (713) 333 Facsimile chorne@hrmlawyers.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served upon all counsel of record file and emailon this day of April, BY: /s/ Chastiti N. Horne