1 No. 01-15-00091-CV

________________________ ______________________ ______________________ IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

_____________________ NUEVA GENERACION MUSIC GROUP, INC. Plaintiff-Appellant

v. ISIDRO CHAVEZ ESPINOZA P/K/A ESPINOZA PAZ Defendant-Appellee

______________________ On Appeal from the Harris County District Court, 281 st Judicial District Trial Court Case Number: 2015-00749

______________________ APPELLANT’S MOTION FOR REHEARING

_______________________ YOCEL ALONSO ALONSO, P.L.L.C. Tex. Bar No. 01109100 130 Industrial Boulevard, STE. 110 P.O. BOX 45 Sugar Land, Texas 77487 Telephone: 281-240-1492 Email: yocelaw@aol.com Attorney for Plaintiff-Appellant Nueva Generación Music Group, Inc.

________________________ ______________________ ______________________ ACCEPTED 01-15-00091-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 8/7/2015 1:40:31 PM CHRISTOPHER PRINE

CLERK1 ISSUES PRESENTED FOR REVIEW
1. Whether The Court of Appeals Opin ion Erred In Holding that the Final Settlement Agreement Liquidated the Valu e of Espinoza’s Negative Covenant.
2. Whether The Court of Appeals Erred in Holding that Nueva’s Injuries Are Not Irreparable2 To the Honorable Court of Appeals: Nueva Generación Music Group, Inc. (“ Nueva” or “Appellant”), Appellant in the above-styled appeal, respectfully move s this Court for an order granting a rehearing of its decision affirming the Trial Court’s denial of A ppellant’s Application for Temporary Injunction, and for an or der reversing this Court’s decision and enjoining Appellee Isidro Chavez Espino za p/k/a Espinoza Paz (“Espinoza” or “Appellee”) from violating the negative covenant in the Fi nal Settlement Agreement. As grounds for this motion, Appella nt shows the Court the following:

I. The Court of Appeals Opinion Erred In Holding that the Final Settlement Agreement Liquidated the Value of Espinoza’s Negative Covenant. The Court’s opinion correctly acknowledge d that the Exclusive Representation Agreement granted Nueva the exclusiv e right to engage Espinoza in the entertainment industry. Nueva Generación Music Group, Inc. v. Espinoza , Cause No. 01-15-00091, *13-4 (hereinafter the “Opini on” or “Op.”). The Court affirmed that Espinoza “became a successful and sought-after musician.” Id. at *3. The Court further noted the undisputed testimony by Ma risa Caballero (“Ms. Caballero”) that Espinoza is “a unique artist . . . making mo re than any other artist in the regional Mexican genre,” Id. at *6-7, a fact that is in corporated into the Exclusive Representation Agreement. Id. at *5; 2 R.R. Pl. Ex. 1 at 2-4. The Court found that the Final Settlement Agreement incorporated the Exclusive Representation Agreement’s negative covenant. Opinion at *13-4. Fina lly, the Court identified Espinoza’s breach3 of and “failure to perform his cont ractual duties and obligations under the Representation Agreement.” Id. at *11. Nueva proved without contradiction th at Espinoza’s breach of the Final Settlement Agreement’s negati ve covenant was on-going. Id. at *5; see also 1 C.R. at 7, 18, 52-3, 56; 1 R.R. at 18-23; 2 R.R. Pl. Ex. 6-8. Based on these undisputed facts, and over 150 years of undist urbed legal precedent, Nueva established as a matter of law that Espinoza should be enjoined from violating the negative covenant. Mission Indep. School Dist. v. Diserens , 188 S.W.2d 568, 569-70 (Tex. 1945). (“[W]here a person agrees to render services that are unique and extraordinar y, and which may not be rendered by another, and has made a negative covenant in his agreement whereby he promises not to render such services to others, the court may issue an injunction to prevent him from violating the negative cove nant in order to induce him to perform his contract.”); Lumley v. Wagner , 42 Eng. Rep. 687 (1852). Espinoza’s breach of the negative covenant satisfies the “irreparable injury” requirement, entitling Nueva to injunctive relief. Bates v. Kingspark & Whitehall Civic Improvement Ass’n , Cause No. 01-11-00487, 2012 WL 1564309, *5 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ( not designated for publication) (citing Jim Rutherford Invs. v. Te rramar Beach Cmty. Ass’n , 25 S.W.3d 845, 849 (Tex. App.— Houston [14th Dist.] 2000, rev. denied) (“[W ]hen an injunction is sought to enforce a restrictive covenant, the mova nt is not required to show proof of irreparable injury, but instead need only show that the defenda nt intends to do an act that would breach4 the covenant.”)). The Trial Court’s denial of Nueva’s application misapplied the law to the incontrovertible facts. Nueva pres ented undisputed evidence that Espinoza accepted and ratified the terms of the Fina l Settlement Agreement, which specifically reserved Nueva’s rights in the negativ e covenant. There was no lapse—ever—of Nueva’s exclusive rights. 1 C.R. at 22-5, 34; 2 R.R. Pl. Ex. 1, 3; see also Opinion at *13-4. Espinoza made no attempt to contradi ct the evidence or testimony that he breached the negative covenant. 1 R.R. at 9-38. The Opinion’s focus on the liquidate d damages in the Final Settlement Agreement is misplaced for two reasons. First, the Final Settlement Agreement resolved wholly unrelated financial implications of Espinoza’s earlier actions. For this reason, Nueva presented the Trial Court only with evidence establishing Espinoza’s unique and extraordinary talent s; the negative covenant to which he agreed; and his breach of that the negative covenant as it was incorporated into the Final Settlement Agreement. 1 R.R. at 9-38; 2 R.R. Pl. Ex. 1, 3, 6-8. These undisputed facts are sufficient to demonstrate irreparable harm. Diserens , 188 S.W.2d at 569-70 (merely breaching the negative cove nant is sufficient to show irreparable harm when talents are unique and extraordinary). Second, it is axiomatic that money ofte n motivates a party to seek injunctive relief. However, ancillary fi nancial interests and causes of action for which damages

are appropriate within the same transaction or occurrence do not obviate a remedy for an otherwise irreparable injury. See, e.g., Matsuzak v. Houston Oilers, Inc. , 5155 S.W.2d 725 (Tex. App.—Houst on [14th Dist.] 1974, no writ h.) (rookie football player enjoined from breaching negative c ovenant, plaintiff also paid $60,000 signing bonus); Dallas Cowboys Football Club, Inc. v. Harris , 348 S.W.2d 37 (Tex. App.— Dallas 1961, no writ h.) (football player enjo ined from breaching negative covenant, plaintiff paid $8,000 in consideration); see also Lumley v. Wagner , 42 Eng. Rep. 687 (1852) (singer enjoined from breaching negative covenant, ope ra house expended significant resources preparing for her performances); Daly v. Smith , 38 N.Y. Super. Ct. 158, 49 How. Pr. 150 (1874) (actor enjo ined from breaching negative covenant, plaintiff prepared for and advertised her performances); Philadelphia Ball Club v. Lajoie , 202 Pa. 210, 217-19 (1902) (v aluable baseball player en joined from breaching negative covenant; he had “agreed to furnis h his skilled professional services to the plaintiff” in exchange for a “large salary”); Shubert Theatrical Co. v. Rath , 271 F. 827 (2d. Cir. 1921) (theatrical group enjoin ed from breaching negative covenant after play was produced and salaries paid); Harry Rogers Theatrical Enters. v. Comstock , 232 N.Y.S. 1 (1928) (performer enjoined fro m breaching negative covenant, sought to sign rival theater’s mo re lucrative contract); Lewis v. Rahman , 147 F.Supp.2d 225 (S.D. N.Y. 2001) (boxer enjoined from breach ing negative covenant after plaintiff paid renewal option fee of $75,000 for exclusivity). The Court of Appeals in Diserens also incorrectly held the defendant’s breach of the negative covenant did not “alone and apart from th e breach of the affirmative covenant work a direct injury.” Mission Indep. School Dist. v. Diserens , 186 S.W.2d6 108, 109 (Tex. App.—San Antonio) rev’d , 188 S.W.2d 568 (Tex. 1945). This Court’s Opinion similarly holds that Nueva’s “true” injury is on ly tangentially related to Espinoza’s breach of the negative covenant . That “the agreement by Espinoza to use Nueva’s promotion and management services to the exclusion of other agent survived in the FSA only conditionally to reinforce Nueva’s ability to collect money damages from Espinoza under the terms of the FSA,” Opinion at *13-4. This is the very analysis rejected in Diserens , which holds that “under Texas law, the mere loss of unique and extraordinary talents as a c onsequence of Espinoza’s breach of the negative covenant is sufficient to enjoin him from further breach. Mission Indep. School Dist. v. Diserens , 188 S.W.2d 568, 569-70 (Tex. 1945).

II. The Court of Appeals Erred in Hold ing that Nueva’s Injuries Are Not Irreparable. Nueva proved that Espinoza’s breach of the negative covenant is per se irreparable harm. Ms. Caballero testified that his breach injures Nueva’s goodwill, reputation, and business interests. 1 R.R. at 18-23. Her testim ony was not challenged or rebutted in any way. 1 R.R. at 9-38. Ms. Caballero’s undisputed testimony showed that the irreparable injury to Nueva canno t be adequately comp ensated in damages. Butnaru v. Ford Morto Co. , 84 S.W.3d 198, 204 (Tex. 2002). Though the sports and entertainment indu stries may be “about the money,” like any other industry in our free enterprise system, these industri es are built on the unique and irreplaceable talents of indivi duals. The law facilitates productive7 bargains by establishing effective legal consequences for unique and extraordinary entertainers who walk away from their contracts. See Mission Indep. School Dist. v.
Diserens , 188 S.W.2d 568 (Tex. 1945); Matsuzak v. Houston Oilers, Inc. , 515 S.W.2d 725 (Tex. App.—Houston [14t h Dist.] 1974, no writ h.); Dallas Cowboys Football Club, Inc. v. Harris , 348 S.W.2d 37 (Tex. App.—D allas 1961, no writ h.). The evidence before the Trial Court conclu sively established that Espinoza’s unique and extraordinary talents served as the ba sis for both the Exclusive Representation Agreement and the Final Settlement Agreemen t. 1 R.R. at 11-14; 1 C.R. at 33-46. The law prevents unique and extraordin ary individuals from making a mockery of these agreements. Diserens , 188 S.W.2d 569-70. Espino za’s efforts to disrupt Nueva’s rights is irreparable harm on its own. Id. Ms. Caballero’s undisputed testimony fu rther established the damage to Nueva’s goodwill and reputation will cause irreparable harm. 1 R.R. at 19-23; Intercontinental Terminals Co., LLC v. Vopak North America, Inc. , 354 S.W.3d 887, 896 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“Threatened injury to a business’s reputation and go od will with customers is frequently the basis for temporary injunctive relief.”). Espino za made no attempt to challenge Ms. Caballero’s testimony of Nueva’s lost client ele, its immediate difficulty securing new clients, or damaged relations hips between Nueva and its partners. 1 R.R. at 19-23.
Nueva established irreparable harm wi th the uncontested testimony that its8 competitors reap an undue benefit from Espinoza’s breach. See Martin v. Linen Sys. , 671 S.W.2d 706, 709 (Tex. A pp.—Houston [1st Dist.] 1984, no writ) (holding continued breach of non-compete agreem ent by highly-trained employee is prima facie proof probable harm). Nueva further demonstrated, again without contradiction, that it spent exceptional resources devel oping Espinoza’s career from the ground up over the course of many years. 1 R.R. at 12-3, 27. The success of Nueva’s competitors rests exclusively on Espinoza’s unique and extraordinary talents. As an example, Nueva presented the Trial Court with evidence that one such competitor, Anval Music, booked Espinoza in violation of his negative covenant at the largest venue in Mexico. 1 R.R. at 19; 2 R.R. Pl. Ex. 8. The eviden ce went uncontested, unrebutted, and wholly unaddressed by Espino za before the Trial Court. 1 R.R. 9-38; 2 R.R. Pl. Ex. 6-8. Finally, the Trial Court’s failure to en join Espinoza from violating the negative covenant of the Final Settlement Agreemen t creates on-going harm until a trial on the mertis. Without an injunction, Espinoza’ s ability to continue harming Nueva’s reputation, goodwill, and business intere sts know no calculable bounds—one more example of probable and irreparable harm. 1 R. R. at 18-22. While all of this evidence was before the Trial Court in its revie w, Espinoza presented no evidence to rebut, contradict, or otherwise call into question th e nature of Nueva’s injuries. 1 R.R. at 9- 38. The Trial Court abused its discretio n by failing to recognize Nueva’s probable harm, failing adhere to these basic principl es of law, and by re ndering a conclusion9 not reasonably supported by the undisputed facts. See State v. Sw. Bell Tel. Co. , 526 S.W.2d 526, 528 (Tex. 1975) (a trial court abuses its discretion when the evidence does not reasonably support the conclusion it has reached).

PRAYER FOR RELIEF For the reasons set forth above, Appellant respectfully requests that this motion be granted and that the judgment of the trial court be reve rsed and rendered.

Respectfully submitted, By: ___ /S/ Yocel Alonso

______________ Yocel Alonso, TBA #01109100 130 Industrial Blvd., Suite 110 P.O. Box 45 Sugar Land, Texas 77487 Tel.: 281.240.1492 Email: yocelaw@aol.com ATTORNEY FOR APPELLANT NUEVA GENERA CION MUSIC GROUP, INC.10 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing instrument has been served in compliance w ith Rules 6.3 and 9.5(b),(d), and (e) of the Texas Rules of Appellate Procedure, this 7th da y of August, 2015 on the following:
Via EPSP-EFM (ProDocs) System John W. Havins, Esq. Havins & Associates, PC 2211 Norfolk St., Ste. 525 Houston, Texas 77098 jhavins@havinsassoc.com Xavier V. Chavez, Esq. Xavier Law Firm 25775 Oak Ridge Drive, Ste. 120 The Woodlands, Texas 77380 xavier@xavierlawfirm.com
ATTORNEYS FOR APPELLEE ISIDRO CHAVEZ ESPINOZA p/k/a ESPINOZA PAZ

By: _/s/ Yocel Alonso

____________ Yocel Alonso