Preview
Electronically Filed
12/22/2020 4:22 PM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
NO. C-2189-19-B
JORGE EDUARDO GUAJARDO IN THE DISTRICT COURT
AND E & Y. LLC., DOING BUSINESS
AS ELEVATE NIGHTCLUB
LOCATED AT 223 S. 17™ STREET,
MCALLEN, TEXAS 78501
Plaintiffs,
Vv. 93RD JUDICIAL DISTRICT
LUIS MORA AND CITY OF
MCALLEN
Defendant. HIDALGO COUNTY, TEXAS
DEFENDANT’S POST-HEARING BRIEF IN OPPOSITION
TO DISSOLUTION OF TEMPORARY INJUNCTION
TO THE HONORABLE JUDG OF SAID COURT:
COMES NOW, Defendant CITY OF MCALLEN, TEXAS and files its Post-
Hearing Brief in Opposition to the Dissolution of Temporary Injunction and in support hereof,
would respectfully show the court:
I PROCEDURAL BACKGROUND
This case involves the City of McAllen’s lawful revocation of Plaintiff's Special Use Permit
to operate a bar at 223 S. 17% Street in McAllen, Texas due to repeated violations of the
City’s Zoning Ordinance.
1 April 2019: City sends notice to Plaintiff that due to repeated violations of a Special Use
Permit for Elevate Nightclub, the club’s SUP had been revoked pursuant to the ordinance
and the law. On April 13, 2019, a 19-year-old individual struck and killed a pedestrian with
his vehicle. He was charged with intoxication manslaughter and accident involving death.
Electronically Filed
12/22/2020 4:22 PM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
Upon information and belief, the individual told police he paid an Elevate Nightclub
employee forty dollars ($40) to allow him to drink
at the club despite being underage. The
nineteen-year-old indicated Elevate served him an entire botile of whiskey. The tragic
incident was covered by local media.
May 2019: City sends second notice to Plaintiff that due to repeated violations of a Special
Use Pemnit for Elevate Nightclub that the club's SUP had been revoked pursuant to the
ordinance and the law.
May 16, 2019: Plaintiff files suit.
May 17, 2019: Court issues a Temporary Restraining Order prohibiting Defendant City from.
interfering with Plaintiff’ s business operations.
June 7, 2019: Defendant City files its Answer
December 10, 2019: Plaintiff files a Request
for Temporary Injunction and Request for
Emergency Hearing
December 13, 2019: Defendant City files its Response to Plaintiff’s Request for Temporary
Injunction and Defendant’ s Original Counter Petition, Application for Temporary Injunction
and Permanent Injunction.
December 17, 2019: Emergency hearing is held. Defendant appears. Plaintiff does not
appear.
January 2, 2020: The Court denies Plaintiff’ s Motion for Temporary Injunction.
March 20, 2020: Court holds hearing on Plaintiff's Motion for Temporary Orders.
Defendants appear. Plaintiff does not appear. Court grants Defendant’ sApplication for
Temporary Injunction and denies Plaintiff’ s request for temporary orders.
Electronically Filed
12/22/2020 4:22 PM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
March 31, 2020: The Court issues a Writ of Temporary Injunction prohibiting the operation
of abar
at 223 S. 17" Street
in McAllen, Texas.
April 6, 2020: Plaintiff files Motion to Set Aside Wait of Injunction and Request for
Emergency Telephonic Hearing.
May 3, 2020: Defendant City issues a citation to Plaintiff for operating Elevate Nightclub
without a Special Use Penmit in violation of the City of McAllen Zoning Ordinance and the
Court’s March 31, 2020 Temporary Injunction.
May 12, 2020: Court holds a hearing on Plaintiff’ s second emergency motion. Defendants
appear. Plaintiff does not appear.
May 28, 2020: First trial setting in the case. Defendants announce ready for trial. Plaintiff
announces not ready for trial since Plaintiff is in Mexico.
June 4, 2020: The Court issues a Writ of Temporary Injunction prohibiting the operation of a
bar at 223 S. 17" Street
in McAllen, Texas.
September 14, 2020: The Court issues an order extending the Writ of Temporary Injunction.
December 3, 2020: Plaintiff file a Motion
to Set Aside Temporary Injunction.
December 22, 2020: Court holds a hearing on Plaintiffs Motion to Set Aside Temporary
Injunction. Defendant appears by and through counsel of record and Planning Director Edgar
Garcia. Plaintiff appears.
Il. ARGUMENT AND AUTHORITIES
When reviewing the dissolution of a temporary injunction that was not appealed, courts of
appeal do not consider the propriety of the trial court’ s decision in granting
the initial injunctive
telief. Instead, the courts presume the injunction was not improvidently granted and the record
3
Electronically Filed
12/22/2020 4:22 PM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
as a whole supports the trial court’s action in granting
the temporary injunction. Tober v.
Turner of Tex., Inc., 668 S.W.2d 831, 834 (Tex.App.-Austin 1984, no writ). Here, the Plaintiff
did not appeal the Court's issuance of a temporary injunction. Thus, an appellate court would
not question whether the issuance of the injunction was proper
yet will review any dissolution
for a clear abuse of discretion. Id.
The trial court has broad discretion to dissolve a temporary injunction upon a showing of
changed circumstances. Id. (Emphasis added). The purpose of a motion to dissolve a
temporary injunction is to provide a means to show that changed circumstances, including
changes in the law, compel the dissolution of the injunction. Murphyv. McDaniel, 20 S.W.3d
873 (Tex. App. - Dallas 2000); See also Tober, 668 S.W.2d at 836. The purpose is not to give
an unsuccessful party an opportunity to relitigate the propriety of the original grant. Id. During
the hearing on December 22, 2020, Plaintiff could point to no material changes in
circumstances, yet instead vaguely refers to COVID-19. In fact, Plaintiff readily admitted he
operates several other establishments within the City of McAllen. There has been no change
in circumstances since the issuance of a writ on March 20, 2020.
Further, the purpose of a temporary injunction is to preserve the status quo pending trial,
and the most expeditious relief from an unfavorable preliminary order dissolving an injunction
is a prompt trial on the merits. See Reeder v. Intercontinental Plastics Mfg. Co., 581 S.W.2d
497, 499 (Tex.Civ.App.-Dallas 1979, no writ). The status quo is the lawful enforcement of the
City of McAllen’s Zoning Ordinance, the relevant portions of which have been in effect since
2016. Thus, the Court’s issuance of a Temporary Injunction against Plaintiff was appropriate.
Moreover, Defendant announced ready for trial on May 28, 2020. Plaintiff did not bother
to appear. Now, several months later, after Defendant exercised its right to demand a trial by
Electronically Filed
12/22/2020 4:22 PM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
jury, where Plaintiff had originally demanded same, Plaintiff asks the Court and the Defendant
to take Plaintiff at his word that he will suddenly comply with the City’s Zoning Ordinance
after he flagrantly disregarded the ordinance and this Court’s Temporary Injunction.
Plaintiff testified in today’s hearing that his other businesses are in operation. The City of
McAllen Planning Director testified that similar businesses are in operation in the downtown
area. Plaintiff attempts to caste the blame on coronavirus as a change in circumstances, when
in reality, Plaintiff's Special Use Permit was revoked in April of 2019, a full eight months
prior to the discovery of the coronavirus in China.
PRAYER
Defendant City respectfully requests this Court extend the Temporary Injunction which
maintains the status quo of the lawful enforcement of the City’s zoning ordinance until a trial
on the merits is held, and for all other relief it may show itself entitled to in law or equity.
Respectfully submitted,
CITY OF MCALLEN
P. O. Box 220
1300 Houston
McAllen, Texas 78501-0220
Telephone: (956) 681-1090
Facsimile: (956) 681-1099
Kevin Pagan
City Attorney
Texas State Bar No. 15406460
kpagan@mcallen.net
By: /s/ Isaac J Tawil
Isaac J. Tawil
Assistant City Attorney
Texas State Bar No. 24013605
itawil@mceallen.net
Electronically Filed
12/22/2020 4:22 PM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
Austin W. Stevenson
Assistant City Attorney
Texas State Bar No. 24085961
astevenson@mcallen.net
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded to
Plaintiffs’ counsel of record on this the 22"4 day of December 2020 via the electronic filing manager.
/s/ Isaac J Tawil
Isaac J. Tawil
Robert R. Flores
Law Offices of Robert R. Flores, P.C.
612 W. Nolana, Suite 310
McAllen, TX 78504
T: (956) 329-1099
F: (956) 790-0297
Email: robert@rrfloreslaw.com
Preview
Electronically Filed 12/22/2020 4:22 PM Hidalgo County District Clerks Reviewed By: Leslie Agado NO. C-2189-19-B JORGE EDUARDO GUAJARDO IN THE DISTRICT COURT AND E & Y. LLC., DOING BUSINESS AS ELEVATE NIGHTCLUB LOCATED AT 223 S. 17™ STREET, MCALLEN, TEXAS 78501 Plaintiffs, Vv. 93RD JUDICIAL DISTRICT LUIS MORA AND CITY OF MCALLEN Defendant. HIDALGO COUNTY, TEXAS DEFENDANT’S POST-HEARING BRIEF IN OPPOSITION TO DISSOLUTION OF TEMPORARY INJUNCTION TO THE HONORABLE JUDG OF SAID COURT: COMES NOW, Defendant CITY OF MCALLEN, TEXAS and files its Post- Hearing Brief in Opposition to the Dissolution of Temporary Injunction and in support hereof, would respectfully show the court: I PROCEDURAL BACKGROUND This case involves the City of McAllen’s lawful revocation of Plaintiff's Special Use Permit to operate a bar at 223 S. 17% Street in McAllen, Texas due to repeated violations of the City’s Zoning Ordinance. 1 April 2019: City sends notice to Plaintiff that due to repeated violations of a Special Use Permit for Elevate Nightclub, the club’s SUP had been revoked pursuant to the ordinance and the law. On April 13, 2019, a 19-year-old individual struck and killed a pedestrian with his vehicle. He was charged with intoxication manslaughter and accident involving death. Electronically Filed 12/22/2020 4:22 PM Hidalgo County District Clerks Reviewed By: Leslie Agado Upon information and belief, the individual told police he paid an Elevate Nightclub employee forty dollars ($40) to allow him to drink at the club despite being underage. The nineteen-year-old indicated Elevate served him an entire botile of whiskey. The tragic incident was covered by local media. May 2019: City sends second notice to Plaintiff that due to repeated violations of a Special Use Pemnit for Elevate Nightclub that the club's SUP had been revoked pursuant to the ordinance and the law. May 16, 2019: Plaintiff files suit. May 17, 2019: Court issues a Temporary Restraining Order prohibiting Defendant City from. interfering with Plaintiff’ s business operations. June 7, 2019: Defendant City files its Answer December 10, 2019: Plaintiff files a Request for Temporary Injunction and Request for Emergency Hearing December 13, 2019: Defendant City files its Response to Plaintiff’s Request for Temporary Injunction and Defendant’ s Original Counter Petition, Application for Temporary Injunction and Permanent Injunction. December 17, 2019: Emergency hearing is held. Defendant appears. Plaintiff does not appear. January 2, 2020: The Court denies Plaintiff’ s Motion for Temporary Injunction. March 20, 2020: Court holds hearing on Plaintiff's Motion for Temporary Orders. Defendants appear. Plaintiff does not appear. Court grants Defendant’ sApplication for Temporary Injunction and denies Plaintiff’ s request for temporary orders. Electronically Filed 12/22/2020 4:22 PM Hidalgo County District Clerks Reviewed By: Leslie Agado March 31, 2020: The Court issues a Writ of Temporary Injunction prohibiting the operation of abar at 223 S. 17" Street in McAllen, Texas. April 6, 2020: Plaintiff files Motion to Set Aside Wait of Injunction and Request for Emergency Telephonic Hearing. May 3, 2020: Defendant City issues a citation to Plaintiff for operating Elevate Nightclub without a Special Use Penmit in violation of the City of McAllen Zoning Ordinance and the Court’s March 31, 2020 Temporary Injunction. May 12, 2020: Court holds a hearing on Plaintiff’ s second emergency motion. Defendants appear. Plaintiff does not appear. May 28, 2020: First trial setting in the case. Defendants announce ready for trial. Plaintiff announces not ready for trial since Plaintiff is in Mexico. June 4, 2020: The Court issues a Writ of Temporary Injunction prohibiting the operation of a bar at 223 S. 17" Street in McAllen, Texas. September 14, 2020: The Court issues an order extending the Writ of Temporary Injunction. December 3, 2020: Plaintiff file a Motion to Set Aside Temporary Injunction. December 22, 2020: Court holds a hearing on Plaintiffs Motion to Set Aside Temporary Injunction. Defendant appears by and through counsel of record and Planning Director Edgar Garcia. Plaintiff appears. Il. ARGUMENT AND AUTHORITIES When reviewing the dissolution of a temporary injunction that was not appealed, courts of appeal do not consider the propriety of the trial court’ s decision in granting the initial injunctive telief. Instead, the courts presume the injunction was not improvidently granted and the record 3 Electronically Filed 12/22/2020 4:22 PM Hidalgo County District Clerks Reviewed By: Leslie Agado as a whole supports the trial court’s action in granting the temporary injunction. Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 834 (Tex.App.-Austin 1984, no writ). Here, the Plaintiff did not appeal the Court's issuance of a temporary injunction. Thus, an appellate court would not question whether the issuance of the injunction was proper yet will review any dissolution for a clear abuse of discretion. Id. The trial court has broad discretion to dissolve a temporary injunction upon a showing of changed circumstances. Id. (Emphasis added). The purpose of a motion to dissolve a temporary injunction is to provide a means to show that changed circumstances, including changes in the law, compel the dissolution of the injunction. Murphyv. McDaniel, 20 S.W.3d 873 (Tex. App. - Dallas 2000); See also Tober, 668 S.W.2d at 836. The purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. Id. During the hearing on December 22, 2020, Plaintiff could point to no material changes in circumstances, yet instead vaguely refers to COVID-19. In fact, Plaintiff readily admitted he operates several other establishments within the City of McAllen. There has been no change in circumstances since the issuance of a writ on March 20, 2020. Further, the purpose of a temporary injunction is to preserve the status quo pending trial, and the most expeditious relief from an unfavorable preliminary order dissolving an injunction is a prompt trial on the merits. See Reeder v. Intercontinental Plastics Mfg. Co., 581 S.W.2d 497, 499 (Tex.Civ.App.-Dallas 1979, no writ). The status quo is the lawful enforcement of the City of McAllen’s Zoning Ordinance, the relevant portions of which have been in effect since 2016. Thus, the Court’s issuance of a Temporary Injunction against Plaintiff was appropriate. Moreover, Defendant announced ready for trial on May 28, 2020. Plaintiff did not bother to appear. Now, several months later, after Defendant exercised its right to demand a trial by Electronically Filed 12/22/2020 4:22 PM Hidalgo County District Clerks Reviewed By: Leslie Agado jury, where Plaintiff had originally demanded same, Plaintiff asks the Court and the Defendant to take Plaintiff at his word that he will suddenly comply with the City’s Zoning Ordinance after he flagrantly disregarded the ordinance and this Court’s Temporary Injunction. Plaintiff testified in today’s hearing that his other businesses are in operation. The City of McAllen Planning Director testified that similar businesses are in operation in the downtown area. Plaintiff attempts to caste the blame on coronavirus as a change in circumstances, when in reality, Plaintiff's Special Use Permit was revoked in April of 2019, a full eight months prior to the discovery of the coronavirus in China. PRAYER Defendant City respectfully requests this Court extend the Temporary Injunction which maintains the status quo of the lawful enforcement of the City’s zoning ordinance until a trial on the merits is held, and for all other relief it may show itself entitled to in law or equity. Respectfully submitted, CITY OF MCALLEN P. O. Box 220 1300 Houston McAllen, Texas 78501-0220 Telephone: (956) 681-1090 Facsimile: (956) 681-1099 Kevin Pagan City Attorney Texas State Bar No. 15406460 kpagan@mcallen.net By: /s/ Isaac J Tawil Isaac J. Tawil Assistant City Attorney Texas State Bar No. 24013605 itawil@mceallen.net Electronically Filed 12/22/2020 4:22 PM Hidalgo County District Clerks Reviewed By: Leslie Agado Austin W. Stevenson Assistant City Attorney Texas State Bar No. 24085961 astevenson@mcallen.net CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was forwarded to Plaintiffs’ counsel of record on this the 22"4 day of December 2020 via the electronic filing manager. /s/ Isaac J Tawil Isaac J. Tawil Robert R. Flores Law Offices of Robert R. Flores, P.C. 612 W. Nolana, Suite 310 McAllen, TX 78504 T: (956) 329-1099 F: (956) 790-0297 Email: robert@rrfloreslaw.com