AFFIRM; and Opinion Filed March 29, 2024 

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In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00496-CV BADGER TAVERN LP, 1676 REGA L JV, AND 1676 REGAL ROW, DALLAS, TEXAS, IN REM, Appellants V. CITY OF DALLAS, Appellee On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-16151 MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith Opinion by Justice Smith In this interlocutory appeal, appellant s Badger Tavern LP, 1676 Regal JV, and 1676 Regal Row, Dallas, Texas, in rem, challenge the tr ial court’s order granting a temporary injunction to appellee City of Da llas (City). In thre e issues, appellants assert that the trial court granted the inju nctive relief in error because (1) the City did not exhaust its administrative remedies, (2) the relief granted exceeded the relief sought, and (3) there was no evidence or argument of harm or injury. Because appellants have not shown that th e trial court erred, we affirm.–2– Factual and Procedural Background 1676 Regal owns real commercial pr operty located at 1676 Regal Row in Dallas, Texas (the propert y), and Badger Tavern owns and operates a commercial business on the property. 1 In 2009, the City issued a certificate of occupancy for Badger Tavern to operate an adult cabaret on the property using the business name La Zona Rosa Cabaret. The certificate of occupancy reflects the business’ use designation as “comme rcial amusement (inside),” which the Dallas City Code defines as “a facility wholly enclosed in a building that offers en tertainment or games of skill to the general public for a fee.” 2 In 2017, Badger Tave rn partially renovated the property and applied for and obtained a new certificate of occupancy. It continued to operate an adu lt cabaret on the property. In July 2021, Badger Tavern applied to the City for a certificate of occupancy record change to change th e business name to La Zona Rosa dba Poker House of Dallas. It also applied for and obtained permits for some repairs to the building. The City requested, and Badger Tave rn submitted, a land use statement and a floor plan. The land use statement indicated that everyone entering the business would be required to purchase a membership and memb ers could pay a rental fee for a chair in order to play card games. The City subsequently issued a new copy of the 2017 certificate of occupancy reflecting the na me change. Badger Tavern thereafter

1 The factual background is derived from evidence admitted at the hearing on the City’s request for temporary injunction.
2 See D ALLAS , T EX ., D ALLAS C ITY C ODE , § 51A-4.210(b)(7)(A)(v).–3– ceased operating an adult cabaret and be gan operating a private poker club. The City sent two notices, date d December 7, 2021, and Febr uary 22, 2022, advising Badger Tavern that it was in violation of City ordinances by failing to obtain a proper certificate of occupancy before using or ch anging the use of the property. The City cautioned that it would file suit requesting in junctive relief if the violation was not remedied. Badger Tavern di d not cease its private poker club operations or submit an application for a new ce rtificate of occupancy. At the hearing on the City’s request for a temporary injunction, the trial court heard conflicting evidence regarding discussions between Badger Tavern representatives and City personnel durin g summer 2021. Michael Martinez, who was hired by Badger Tavern to help acquire the certificate of occupancy, testified that he communicated by email with Voln ey Willis, a City permit manager, who “walked [them] through the process” and “understood what [they] were trying to do.” They followed Willis’s directions, a nd at no time did Martinez disguise or mislead the City regarding Badger Tavern’s intended use of the business as a private poker club. Megan Wimer served as Assistant Build ing Official and acted as a City representative in zoning and land use matters at all times relevant to this appeal. She testified generally that th e Dallas Development Code requires a business to obtain legal permission to operate in Dallas. The City issues a certificate of occupancy to certify a business’ compliance with applicab le codes and laws. If a business decides–4– to make a name change, but not to change its operations , building, or occupancy, it need only make a record change. If it ma kes changes to its operations, occupancy, or character of the busine ss, a new certificate of oc cupancy is required. Wimer testified that Badger Tavern’s request to change the business name from La Zona Rosa Cabaret to La Zona Rosa Cabaret d/b/a P oker House of Dallas raised a red flag that it might be changing th e character of operations at the property. City personnel requested additional inform ation, including a land use statement and a floor plan, to clarify wh ether a new certificate of o ccupancy was needed. Those documents reflected that there would be a membership requirement, which in Wimer’s professional experience constitute d a change to the permitted use of the property. According to Wimer, someone at the City, although she could not recall who specifically, communicated to Badger Tavern that it would need to apply for a new certificate of occupancy. By approving the name change, the City was not giving Badger Tavern legal authority to change its business operations to a card room. And, by changing its business ope rations, Badger Tave rn was no longer complying with its valid license and certificate of occupa ncy to operate a commercial amusement (inside) as a cabaret. Ivan Sosa, a City code compliance inspec tor, testified that he had inspected the property several times, including in November 2022, and observed members of the poker club playing cards. The membersh ip requirement was a concern to Sosa–5– because the land-use category on the certif icate of occupancy required that the business be open to the public. Stuart Pully, a zoning and land use c onsultant, testified that Badger Tavern retained him in 2021 to obtain a certifi cate of occupancy and “do whatever was necessary to obtain [City] approval.” He me t with City personnel in July and told them that Badger Tavern in tended to change the busine ss name and would need a record change to the certificate of occupa ncy. The City reviewed documents that Badger Tavern submitted and issued permits for work on the property. Pully testified that he asked the plans examiner s if Badger Tavern would need to obtain a new certificate of occupancy and was told th at that they would not because there was no change of use; that is, the use fell w ithin the definition of commercial amusement (inside). According to Pully, a change of use, in “most cases,” refers to a land use that is no longer within the same category. In November 2022, the City initiated this action, seeking, among other things, temporary and permanent injunctive re lief pursuant to sections 54.016 and 211.012(c) of the Texas Loca l Government Code. The City alleged that Badger Tavern was operating a commercial busine ss on the property without a valid certificate of occupancy in violation of section 51A-1.104 and chapter 52, section 306.1 of the Dallas City Code and had cha nged the use or occupancy of the property–6– without legal approval in violation of ch apter 52, section 306.2 of the Dallas City Code. 3 Following the hearing on the City’s requ est for a temporary injunction, the trial court granted the reque st and ordered, pursuant to sections 54.016, 54.018, and 211.012(c) of the local gove rnment code, that appella nts cease operating a poker club or any other business operations on the property without a certificate of occupancy authorizing such us e. This appeal followed.
Standard of Review A temporary injunction is an extraordin ary remedy that preserves the status quo of the litigation’s subject matte r pending trial on the merits. Butnaru v. Ford
Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam). The stat us quo to be preserved by a temporary injunction is “the last, actual, peaceable , non-contested status which preceded the pending controversy.” Pierce v. State , 184 S.W.3d 303, 308 (Tex. App.—Dallas 2005, no pet.) (quoting In re Newton , 146 S.W.3d 648, 651 (Tex. 2004)). To obtain a temporary injunction, the applicant generally must plead and produce some evidence of a cause of acti on against the defendant, a probable right to relief, and a probable imminent, i rreparable injury in the interim. See Butnaru , 84 S.W.3d at 204; 8100 N. Freeway Ltd. v. City of Houston , 329 S.W.3d 858, 861

3 See D ALLAS , T EX ., D ALLAS C ITY C ODE §§ 51A-1.104(a)(3), 52-306.1, 52-306.2.–7– (Tex. App.—Houston [14th Dist.] 2010, no pet.). However, where a statute authorizes injunctive relief for a violation, the applicant need not prove imminent, irreparable injury. See Butnaru , 84 S.W.3d at 210; Marauder Corp. v. Beall , 301 S.W.3d 817, 820 (Tex. App. —Dallas 2009, no pet.); 8100 North Freeway , 329 S.W.3d at 861. A temporary injunction applicant shows a probable right of recovery by alleging a cause of action and presenting evidence that tends to sustain it. See State

v
. Sw

. Bell Tel

. Co

. , 526 S.W.2d 526, 528 (Tex. 1975). The applicant must present “enough evidence to raise a bona fide issue as to its right to ultimate relief.” Young Gi Kim v. Ick Soo Oh , No. 05-19-00947-CV, 2020 WL 2315854, at *2 (Tex. App.— Dallas May 11, 2020, no pet.) (mem. op.). Because the injunction only preserves the status quo pending final tria l, the applicant need not prove that it will ultimately prevail at trial on the merits. Walling , 863 S.W.2d at 58. “Whether to grant or deny a temporary injunction is within the trial court’s sound discretion.” Butnaru , 84 S.W.3d at 204. We may not substitute our judgment for that of the trial court unless the court’s decision “was so arbitr ary that it exceeded the bounds of reasonable discretion.” RWI Constr., Inc. v. Comerica Bank , 583 S.W.3d 269, 274 (Tex. App.—Da llas 2019, no pet.). In re viewing the trial court’s decision, we draw all legitimate inferen ces from the evidence in the light most favorable to the court’s order. Id. There can be no abuse of discretion when the trial court considers genuinely conflicting evidence. See id. The trial court abuses its–8– discretion by “misappl[ying] the law to es tablished facts or when the evidence does not reasonably support the trial court’s de termination of the ex istence of probable injury or probable right of recovery.” Id. at 274–75. When, as here, no findings of fact or conclusions of law are filed, we will uphold the trial court’s order on any le gal theory supported by the record. Davis v. Huey , 571 S.W.2d 859, 862 (Tex. 1978). Findings of fact and conclusions of law embedded in a trial court’s temporary inj unction order may be helpful, but are not binding, in reviewing the court’s exercise of its discretion. Tom James of Dallas, Inc. v. Cobb , 109 S.W.3d 877, 884 (Tex. A pp.—Dallas 2003, no pet.); Communicon, Ltd. v. Guy Brown Fire & Safety, Inc. , No. 02-17-00330-CV, 2018 WL 1414837, at *6 (Tex. App.—Fort Worth Mar. 22, 2018, no pet.) (mem. op.).
Exhaustion of Remedies In their first issue, appellants assert th at the trial court lacked jurisdiction to issue the temporary injunction because the City failed to first exhaust its administrative remedies by appealing to th e Board of Adjustme nt. We disagree. Texas Local Government Code chapter 211 authorizes a municipality to promulgate zoning regula tions and establish a boa rd of adjustment. T EX

. L OC

. G OV ’ T C ODE A NN . §§ 211.008, 211.012(a). Among other things, the board of adjustment has the power “to hear and decide an appeal that allege s error in an order, requirement, decision, or determination ma de by an administrative official in the enforcement of [zoning ordinances].” Id. § 211.009(a)(1); see also D ALLAS , T EX .,–9– D ALLAS C ITY C ODE , § 51A-3.102(a), (d)(1) (creating board of adjustment, providing board with authority to hear and decide appeals from an administrative official’s zoning enforcement decisions, and defining administrative official as “that person within a city department having the fi nal decision-making authority within the department relative to the z oning enforcement issue”). Generally, a party must exhaust admi nistrative remedies available under chapter 211 before seeking judicial review of an administrative official’s decision.
See City of Grapevine v. Muns , 651 S.W.3d 317, 331 (Tex. App.—Fort Worth 2021, pet. denied). The failure to do so deprives the trial court of subject-matter jurisdiction to decide the case. Id. ; Murphy v. City of Galveston , 557 S.W.3d 235, 241 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Appellants do not identify any specific zoning enforcement decisions by an administrative official that the City wa s required to appeal to the board of adjustment. Instead, they assert that the C ity was required to appeal to the board of adjustment “if there were an error in th e requirements, contractor authorizations, issuance of permits, email communications, r ecord change or the land use statement that the [City] approved[.]” And, as suppor t, they cite to seve ral cases in which the City “went through the administrative pro cess” to determine whether a permit was issued in error. In each of the cases c ited by appellants, however , the City had either–10– revoked a certificate of occupanc y or refused to issue a certificate of occupancy and the holder of the certificate or applican t appealed to the adjustment board. 4 Here, Badger Tavern changed its busine ss operations from an adult cabaret to a private poker club, but never applied for a new certificate of o ccupancy. The City alleges no error with respect to an admi nistrative official’s zoning enforcement decision. Instead, the City alleges that Badge r Tavern is in violation of City zoning ordinances by operating a private poker club on the property when its valid, existing certificate of occupancy does not authorize that use. Because the City is not appealing an alleged error in a zoning enforcement decision by an administrative official, it was not required to raise the matte r with the board of adjustment prior to initiating this suit. Accordingly, we concl ude the trial court ha d jurisdiction over the dispute. We overrule a ppellant’s first issue. Grounds for Temporary Injunctive Relief Appellants next contend that the trial court erred in granting injunctive relief under sections 54.016 and 54.018 of the Te xas Local Government Code. In their

4 See Espinoza v. Board of Adjustment & TCHDallas2, LLC , Cause No. DC-22-03741, in the 14th Judicial District Court of Dallas County; Champions Dallas LLC v. City of Dallas and Board of Adjustment , Cause No. DC-21-15999, in the 193rd Judicial District Court of Dallas County; KBKM Entertainment LLC d/b/a Dallas Poker Club v. City of Dallas and Board of Adjustment , Cause No. DC-21-17107, in the 191st Judicial District Court of Dallas County; Fifty-Two Social and Dining LLC and SB Capital LLC d/b/a Sportsbook Poker Club v. City of Dallas , Megan Wimer and David Session , Cause No. DC-21-18124, in the 95th Judicial District Court of Dallas County.–11– second issue, appellants assert that the City never requested injunctive relief under section 54.018, and in their third issue, appellants cite the lack of evidence of a substantial danger of injury or an adverse health imp act to support a temporary injunction under section 54.016. The City sought temporary and permanen t injunctive relief pursuant to local government code sections 54.016 and 211.012(c). A lthough the City sought a temporary restraining order under section 54.018, 5 that statute was not a basis for its request for a temporary injunction. And, we agree with appellants that the City did not present evidence to show “substantial danger of injury or an adverse health impact” as required to obtain in junctive relief under section 54.016. 6 See T EX

. L OC

. G OV ’ T C ODE A NN

. § 54.016(a). The trial court, however, also gran ted the temporary injunction based on section 211.012(c), which authorizes the C ity to pursue an in junction to address violations of its zoning ordinances and does not require a showing of substantial danger of injury or adverse health impact. 7 Id. § 211.012(c). A ppellants have not

5 Section 54.018 authorizes a municipality to “bring an action to compel the repair or demolition of a structure or to obtain approval to remove the structure and recover removal costs.” T EX

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. G OV ’ T C ODE A NN . § 54.018(a).
6 Section 54.016 provides that, “[o]n a showing of s ubstantial danger of injury or an adverse health impact to any person or to the property of any person other than the defendant, the municipality may obtain . . . an injunction that: (1) prohibits specific conduct that violates the ordinance; and (2) requires specific conduct that is necessary for comp liance with the ordinance.” Id. § 54.016(a).
7 Section 211.012(c) provides as follows: If a building or other structure is erected, c onstructed, reconstructe d, altered, repaired, converted, or maintained or if a building, other st ructure, or land is used in violation of this–12– raised a separate issue challenging the tria l court’s reliance on local government code section 211.012(c) as a statutory basis for the temporary injunction. Their brief, however, includes an argument that the record is legally and factually insufficient to support findings included in the trial court’s temporary injunction order. Specifically, they assert that the eviden ce does not support a finding that the City notified appellants in summer 2021 that the proposed changes on the property required a new certificate of oc cupancy and the order “omit[ s] critical facts regarding the permits, applications, authorizatio ns, plans submitted and approved, and communications between” Badge r Tavern and the City dur ing May through July 21. According to appellants, the City accep ted its land use statement, approved the record name change, and thereafter appr oved permits for the pr operty, which Badger Tavern asserts “would not have occurred if there was an i ssue with the certificate of occupancy.”

subchapter or an ordinance or regulation a dopted under this subchapter, the appropriate municipal authority, in addition to other re medies, may institute appropriate action to: (1) prevent the unlawful erection, constructi on, reconstruction, alteration, repair, conversion, maintenance, or use; (2) restrain, correct, or abate the violation; (3) prevent the occupancy of the building, structure, or land; or (4) prevent any illegal act, conduct, business, or use on or about the premises.
T EX

. L OC

. G OV ’ T C ODE A NN . § 211.012(c).–13– To the extent that appellants take issu e with findings embedded in the trial court’s temporary injunction or der, we note that those findings do not carry the same weight on appeal as findings made under Texas Rule of Civil Procedure 296 and are not binding. See Tom James , 109 S.W.3d at 884; T EX

. R S

. C IV

. P. 296, 299a. In any event, the City presented some evidence to support the trial court’s finding that “[t]he City notified [appellants] in summer 20 21 that their proposed changes on the [p]roperty required a new Certif icate of Occupancy that le gally authorized a change in use.” Wimer testified th at, when Badger Tavern applied to change the name of the business, it raised “red flags” and the City requested additi onal information, from which it determined that th e change “went beyond the scope of a name change, that this [was] a change of the business operati ons, the character, the use, the occupancy of the building. And it was communicated that to do that they would need to a [sic] apply for a new certificate of occupanc y.” To be sure, there was conflicting evidence; Pully testified that City plan s examiners told him that Badger Tavern would not need to obtain a new certificate of occupancy because there was no change of use. However, we defe r to the trial court’s resolu tion of conflicting evidence, see id. at 883, 888, and conclude that there wa s evidence to support the trial court’s finding that the City advise d Badger Tavern that it woul d have to apply for a new certificate of occupancy during summer 2021 wh en Badger Tavern sought the record change.–14– We further conclude that the City pr esented some evidence to show that Badger Tavern, by operating a private poke r club without applying for a new certificate of occupancy, was in violati on of municipal zoning ordinances and, therefore, the City was entitled to a tem porary injunction under section 211.012 of the local government code. 8 See 8100 North Freeway , 329 S.W.3d at 861 (when applicant shows a violation for which a stat ute authorizes injunctive relief, it need not prove imminent, irrepara ble injury). Specifically, the Dallas Development Code states that, “[e]xcept as provided in [cha pter 52, section 306.1], a person shall not use or occupy or change the use or occupa ncy of a building, a portion of a building, or land without obtaining a certificate of occupancy from the building official in compliance with [chapter 52, section 306.1].” D ALLAS , T EX ., D ALLAS C ITY C ODE § 51A-1.104. Section 306.1 of the City of Dallas Administrative Procedures for the Construction Codes requires a new certificate of o ccupancy any time there is a change in the existing occupancy classification or zoning use. Id. § 52-306.1. 9

8 In their third issue, appellants also contend that a showing of harm was required because the City sought a mandatory injunction. Generally, “when a temporary injunction is mandatory (i.e., requires conduct) rather than prohibitive (i.e., forbids conduct), the applicant must show th at the ‘mandatory order is necessary to prevent irreparable injury or extreme hardship.’” Veterinary Specialists of N. Tex., PLLC v. King , No. 05-21-00325-CV, 2022 WL 406095, at *4 (Tex. App.—Dallas Feb. 9, 2022, no pet.) (mem. op.) (quoting Retail Servs. WIS Corp. v. Crossmark, Inc. , No. 05-20-00937-CV, 2021 WL 1747033, at *7 (Tex. App.—Dallas May 4, 2021, pet. deni ed) (mem. op.)). This requirement, however, does not apply in this case, where the City sought injunctive relief pursuant to a statute specifically authorizing that relief. See 8100 North Freeway , 329 S.W.3d at 861; e.g. , Rhone v. City of Texas City , 657 S.W.3d 857, 863 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (concluding that plaintiff could obtain mandatory injunctive relief under local government code section 54.016(a) w ithout showing extreme hardship, extreme necessity, or irreparable injury).
9 “No structure or land shall be used or occupied , no change in the existing occupancy classification, zoning use, or the tenant or occupant of a structure or portion of a structure shall be made, and no floor area increases or decreases of any existing tenancy area of a structure shall be used or occupied, until the building–15– The commercial amusement (inside) use classification falls under retail and personal service uses, which are “retail or service establishments dealing directly with consumers.” See id. § 51A-4.210(a)(1). Commerci al amusement (inside) is defined as “a facility wholly enclosed in a building that offers entertainment or games of skill to the general public for a fee. This use includes but is not limited to an adult arcade, adult cabar et, adult theater, amusement center, billiard hall, bowling alley, children’s amusement center, dan ce hall, motor track, or skating rink.” Id. §51A-4.210(b)(7)(A)(v). Ther e was evidence, however, to show that Badger Tavern was operating a poker club on the property under the certificate of occupancy it obtained to operate an adult cabaret. And, the busin ess was no longer open to the general public; it required patron s to purchase memberships. Based on the evidence presented, and dr awing all legitimate inferences from the evidence in the light most favorable to the trial court’s order, we conclude that there was enough evidence to raise a bona fi de issue, and support the trial court’s determination, that Badger Tavern changed the use of the property without obtaining a new certificate of occupancy and thereaf ter used the property without a valid certificate of occupancy in violation of sections 51A-1.104 and 52-306.1. Because the City alleged a cause of action and presented evidence tending to sustain it, the

official has issued a certificate of occupancy and a fee has been paid as required in Section 303 of this chapter.” D ALLAS , T EX ., D ALLAS C ITY C ODE § 52-306.1.–16– trial court did not abuse its discretion in granting the temporary injunction under section 211.012(c) of the lo cal government code. Here, we must uphold the trial court’s decision to grant the temporary injunction on any legal theory supported by the record. See Davis , 571 S.W.2d at 862. Because the City pleaded and proved facts to show it was entitled to injunctive relief under section 211. 112(c), any error by the trial court in also granting relief pursuant to sections 54.016 and 54.018 is harmless. See Washington v. Associated Builders & Contractors of S. Texas Inc. , 621 S.W.3d 305, 311–12 (Tex. App.—San Antonio 2021, no pet.) (citing T EX

. R. A PP . P. 44.1(a)(1) (harmless error)). Accordingly, we overrule appella nts’ second and third issues.
Conclusion We affirm the trial court’s te mporary injunction order.

230496F.P05 /Craig Smith / CRAIG SMITH JUSTICE–17– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BADGER TAVERN LP, 1676 REGAL JV, AN D 1676 REGAL ROW, DALLAS, TEXAS, IN REM, Appellants

No. 05-23-00496-CV V. CITY OF DALLAS, Appellee On Appeal from the 134th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-22-16151. Opinion delivered by Justice Smith. Justices Molberg and Reichek participating.

In accordance with this Court’s opinion of this date, the trial court’s temporary injunction order is AFFIRMED

. It is ORDERED that appellee CITY OF DALLAS recover its costs of this appeal from appellants BADGER TAVERN LP, 1676 REGAL JV, AND 1676 REGAL ROW, DALLAS, TEXAS, IN REM.
Judgment entered this 29th day of March 2024.