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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, 

281st 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/7/2015 1:40:31 PM CHRISTOPHER A. PRINE Clerk
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ISSUES PRESENTED FOR REVIEW 

1. Whether The Court of Appeals Opinion Erred In Holding that the Final 

Settlement Agreement Liquidated the Value of Espinoza’s Negative Covenant. 

 2. Whether The Court of Appeals Erred in Holding that Nueva’s Injuries 

Are Not Irreparable
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To the Honorable Court of Appeals:

Nueva Generación Music Group, Inc. (“Nueva” or “Appellant”), Appellant in 

the above-styled appeal, respectfully moves this Court for an order granting a 

rehearing of its decision affirming the Trial Court’s denial of Appellant’s Application 

for Temporary Injunction, and for an order reversing this Court’s decision and 

enjoining Appellee Isidro Chavez Espinoza p/k/a Espinoza Paz (“Espinoza” or 

“Appellee”) from violating the negative covenant in the Final Settlement Agreement. 

As grounds for this motion, Appellant 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 acknowledged that the Exclusive Representation 

Agreement granted Nueva the exclusive right to engage Espinoza in the 

entertainment industry. Nueva Generación Music Group, Inc. v. Espinoza, Cause No. 

01-15-00091, *13-4 (hereinafter the “Opinion” 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 Marisa Caballero (“Ms. Caballero”) that 

Espinoza is “a unique artist . . . making more than any other artist in the regional 

Mexican genre,” Id. at *6-7, a fact that is incorporated 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. Finally, the Court identified Espinoza’s breach 
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of and “failure to perform his contractual duties and obligations under the 

Representation Agreement.” Id. at *11. 

Nueva proved without contradiction that Espinoza’s breach of the Final 

Settlement Agreement’s negative 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 undisturbed 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 extraordinary, 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 covenant 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. Terramar 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 movant is not required to show proof of irreparable injury, 

but instead need only show that the defendant intends to do an act that would breach 
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the covenant.”)). The Trial Court’s denial of Nueva’s application misapplied the law 

to the incontrovertible facts. Nueva presented undisputed evidence that Espinoza 

accepted and ratified the terms of the Final Settlement Agreement, which specifically 

reserved Nueva’s rights in the negative 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 contradict the evidence or testimony that he 

breached the negative covenant. 1 R.R. at 9-38. 

The Opinion’s focus on the liquidated 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 talents; 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 covenant is sufficient to show irreparable 

harm when talents are unique and extraordinary). 

Second, it is axiomatic that money often motivates a party to seek injunctive 

relief. However, ancillary financial 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., 515 
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S.W.2d 725 (Tex. App.—Houston [14th Dist.] 1974, no writ h.) (rookie football 

player enjoined from breaching negative covenant, 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 enjoined 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, opera house expended 

significant resources preparing for her performances); Daly v. Smith, 38 N.Y. Super. 

Ct. 158, 49 How. Pr. 150 (1874) (actor enjoined from breaching negative covenant, 

plaintiff prepared for and advertised her performances); Philadelphia Ball Club v. 

Lajoie, 202 Pa. 210, 217-19 (1902) (valuable baseball player enjoined from breaching 

negative covenant; he had “agreed to furnish 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 enjoined 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 from breaching negative covenant, sought 

to sign rival theater’s more lucrative contract); Lewis v. Rahman, 147 F.Supp.2d 225 

(S.D. N.Y. 2001) (boxer enjoined from breaching 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 the breach of the affirmative 

covenant work a direct injury.” Mission Indep. School Dist. v. Diserens, 186 S.W.2d 
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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 only 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 consequence 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 Holding 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 testimony 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 cannot be adequately compensated in damages. 

Butnaru v. Ford Morto Co., 84 S.W.3d 198, 204 (Tex. 2002). 

Though the sports and entertainment industries may be “about the money,” like 

any other industry in our free enterprise system, these industries are built on the 

unique and irreplaceable talents of individuals. The law facilitates productive 
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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 [14th Dist.] 1974, no writ h.); Dallas Cowboys 

Football Club, Inc. v. Harris, 348 S.W.2d 37 (Tex. App.—Dallas 1961, no writ h.). 

The evidence before the Trial Court conclusively established that Espinoza’s unique 

and extraordinary talents served as the basis for both the Exclusive Representation 

Agreement and the Final Settlement Agreement. 1 R.R. at 11-14; 1 C.R. at 33-46. 

The law prevents unique and extraordinary individuals from making a mockery of 

these agreements. Diserens, 188 S.W.2d 569-70. Espinoza’s efforts to disrupt 

Nueva’s rights is irreparable harm on its own. Id.

Ms. Caballero’s undisputed testimony further 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 good will with customers is frequently the basis for 

temporary injunctive relief.”). Espinoza made no attempt to challenge Ms. 

Caballero’s testimony of Nueva’s lost clientele, its immediate difficulty securing new 

clients, or damaged relationships between Nueva and its partners. 1 R.R. at 19-23. 

Nueva established irreparable harm with the uncontested testimony that its 
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competitors reap an undue benefit from Espinoza’s breach. See Martin v. Linen Sys., 

671 S.W.2d 706, 709 (Tex. App.—Houston [1st Dist.] 1984, no writ) (holding 

continued breach of non-compete agreement by highly-trained employee is prima 

facie proof probable harm). Nueva further demonstrated, again without contradiction, 

that it spent exceptional resources developing 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 evidence went uncontested, 

unrebutted, and wholly unaddressed by Espinoza before the Trial Court. 1 R.R. 9-38; 

2 R.R. Pl. Ex. 6-8. 

Finally, the Trial Court’s failure to enjoin Espinoza from violating the negative 

covenant of the Final Settlement Agreement 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 interests 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 review, Espinoza presented no evidence to rebut, 

contradict, or otherwise call into question the nature of Nueva’s injuries. 1 R.R. at 9-

38. The Trial Court abused its discretion by failing to recognize Nueva’s probable 

harm, failing adhere to these basic principles of law, and by rendering a conclusion 
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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 reversed 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 GENERACION MUSIC 

GROUP, INC. 
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CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the foregoing instrument has 

been served in compliance with Rules 6.3 and 9.5(b),(d), and (e) of the Texas Rules 

of Appellate Procedure, this 7th day 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