Nueva Generacion Music Group, Inc. v. Isidro Chavez Espinoza, P/K/A Espinoza Paz

ACCEPTED
01-15-00091-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/26/2015 3:57:17 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00091-CV
__________________________________________________________________
FILED IN
IN 1st COURT
THE FIRST COURT OF APPEALS HOUSTON, OF APPEALS
TEXAS
HOUSTON, TEXAS 2/26/2015 3:57:17 PM
_____________________ CHRISTOPHER A. PRINE
Clerk
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

Oral Argument Requested
______________________

APPELLANT’S BRIEF ON ACCELERATED INTERLOCUTORY APPEAL
_______________________

YOCEL ALONSO
ATTORNEY & COUNSELOR AT LAW
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.

__________________________________________________________________
 IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellant: NUEVA GENERACION MUSIC GROUP, INC.

Attorney for Appellant: YOCEL ALONSO
ATTORNEY & COUNSELOR AT LAW
Tex. Bar No. 01109100
130 Industrial Boulevard, STE. 110
P.O. BOX 45
Sugar Land, Texas 77487-0045
Telephone: (281) 240-1492
Email: yocelaw@aol.com

Defendant/Appellee: ISIDRO CHAVEZ ESPINOZA P/K/A
ESPINOZA PAZ

Attorneys for Appellee: XAVIER V. CHAVEZ
XAVIER LAW FIRM
Tex. Bar No. 24069495
25775 Oak Ridge Dr., Ste. 120
The Woodlands, Texas 77380
Tel.: (281) 296-3741
Fax: (281) 296-3879
Email: xavier@xavierlawfirm.com

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 TABLE OF CONTENTS

IDENTITY OF PARTIES ................................................................................................................. i

TABLE OF CONTENTS ..................................................................................................................ii

INDEX OF AUTHORITIES .......................................................................................................... iii

STATEMENT OF THE CASE ........................................................................................................ 1

STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 2

ISSUES PRESENTED ...................................................................................................................... 2

STATEMENT OF FACTS ............................................................................................................... 3

A. Relationship Between Nueva and Espinoza ................................................ 3

B. Resolution and Settlement of Prior Litigation ............................................ 6

C. Espinoza’s Conduct Following the Final Settlement Agreement .............. 8

SUMMARY OF THE ARGUMENT ............................................................................................. 10

ARGUMENT & AUTHORITIES .................................................................................................. 12

A. Standard of Review ........................................................................................... 12

B. Espinoza’s Failure to Complete the Required Payments of the Final
Settlement Agreement Reinstated Nueva’s Exclusive Rights under the
Exclusive Representation Agreement .............................................................. 13

1. The parties’ written expression demonstrates their unambiguous intent to
reinstate the Exclusive Representation Agreement ....................................... 14

2. Espinoza ratified the Final Settlement Agreement ........................................ 19

3. Espinoza misrepresented the “status quo” before the trial court ................. 21

C. The Trial Court Abused its Discretion When It Failed to Issue a Negative
Injunction Against Espinoza ............................................................................ 24

1. Nueva established a probable right to relief ................................................. 26

2. Espinoza continues to breach the negative covenant .................................... 28

3. Espinoza’s services are unique and extraordinary . ...................................... 29

4. Nueva has no remedy at law ......................................................................... 31

PRAYER FOR RELIEF ................................................................................................................. 33
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 INDEX OF AUTHORITIES

Cases

Alba Tool and Supply Company, Inc. v. Industrial Contractors, Inc., 585 S.W. 2d 662 (Tex. 1979)
............................................................................................................................................... 17

Am. Med. Techs, Inc. v. Miller, 149 S.W.3d 265, 271 (Tex. App.—Houston [14th Dist.] 2004, no
pet.) ..................................................................................................................................... 20

Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199 (Tex. App.--Houston [1st Dist.] 2004, rev.
denied) ............................................................................................................................ 15, 19

Amigo Broad. v. Spanish Broad., 521 F.3d 472, 487-488 (5th Cir. 2008) ....................................... 25

Barker v. Roelke, 105 S.W.3d 75, 84-85 (Tex. App.—Eastland 2003, rev. denied) ....................... 20

Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.]
2005, rev. denied) ................................................................................................................. 14

Baylor Coll. Of Med. v. Camberg, 247 S.W.3d 342, 346 (Tex. App.—Houston [14th Dist.] 2008,
rev. denied) ........................................................................................................................... 27

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) ................................................... 21, 22

Cherco Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 265 (Tex. App.—Fort
Worth 1999, no pet.) ...................................................................................................... 15, 17

Compania Financiara Libano, S.A. v. Simmons, 54 S.W.3d 365, 368 (Tex. 2001) ......................... 26

Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 42 (Tex. App.—Dallas 1961, no writ
h.)..................................................................................................................................... 24, 29

DeClaire v. G & B McIntosh Family Ltd. P’ship, 260 S.W.3d 34 (Tex. App.—Houston [1st Dist.]
2008, no pet.) ........................................................................................................................ 18

Diamond Paint Co. of Houston v. Embry, 525 S.W.2d 529, 535 (Tex. Civ. App.—Houston [14th
Dist.] 1975, writ ref'd n.r.e.) ............................................................................................ 19, 20

E.g., Conlin v. Haun, 419 S.W.3d 682, 686 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ......... 13

E.g., In re Labatt Food Serv. L.P., 279 S.W.3d 640 643 (Tex. 2009) ............................................. 13

ExxonMobil Corp. v. Valence Oper. Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st Dist.]
2005, rev. denied) ................................................................................................................. 26

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994) .................................................... 14

Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996) ................................. 18

iii
Houston Oilers, Inc. v. Neely, 361 F.2d 36, 40 (10th Cir. 1966) ..................................................... 24

Intercontinental Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 892 (Tex. App--
Houston [1st Dist.] 2011, no pet.) ................................................................................... 13, 33

Jim Rutherford Invs. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston
[14th Dist.] 2000, rev. denied) .............................................................................................. 24

Land Title Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 757 (Tex. 1980).................... 20

Luckel v. White, 819 S.W.2d 459, 462, 463 (Tex. 1991) .................................................................. 14

Lumley v. Wagner, 1852, 42 English Rep. 687 (Ch. 1952) ............................................. 11, 24, 30, 32

Marcus v. Whispering Springs Homeowners Ass’n, 153 S.W.3d 702, 707 (Tex. App.—Dallas 2005,
no pet.) .................................................................................................................................. 24

Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725 (Tex. App.—Houston [14th Dist.] 1974, no writ
h.) .......................................................................................................................................... 29

MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999) ..................... 12

Mission Indep. School Dist. v. Diserens, 188 S.W.2d 568, 570 (Tex. 1945) ..... 12, 24, 25, 29, 30, 32

Munson v. Milton, 948 S.W.2d 813, 815 (Tex. App.—San Antonio 1997, rev. deied) ................... 24

Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193 (Tex. 1962) ..................................... 14

Old Republic Ins. Co., Inc. v. Fuller, 919 S.W.2d 726, 728 (Tex. App.—Texarkana 1996, writ
denied) .................................................................................................................................. 20

Padilla v. LaFrance, 907 S.W.2d 454, 460, 461 (Tex. 1995) ..................................................... 15, 26

Sacks v. Haden, 266 S.W.3d 447 (Tex. 2008) ................................................................................. 18

Savoy Record Co. v. Mercury Record Corp., 108 F. Supp. 957, 959 (D. N.J. 1952) ....................... 24

Sears, Roebuck & Co. v. Commercial Union Ins. Corp., 982 S.W.2d 151, 154 (Tex. App.—Htn. [1st
Dist.] 1998, no pet.) ............................................................................................................... 18

Shubert Theatrical Co. v. Rath, 271 F. 827 (2nd Cir. 1921) ...................................................... 30, 32

Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008) ............ 13

Spellman v. Am. Universal Inv. Co., 687 S.W.2d 27, 29-30 (Tex. App.—Corpus Christi 1984, writ
ref'd n.r.e.) ............................................................................................................................. 20

Telephone Equip. Network, Inc. v. Tal Westchase Place, Ltd., 80 S.W.3d 601 (Tex. App.--Houston
[1st Dist.] 2002, no pet.) ....................................................................................................... 33

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Texas State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 11 (Tex. App.—Houston [1st Dist.] 1994, no
writ) ...................................................................................................................................... 13

Titus v. Superior Court, Maricopa Cnty., 368 P.2d 874, 875 (Ariz. 1962) ...................................... 24

Verizon Corporate Servs. v. Kan Pak Sys., 290 S.W.3d 899, 905-908 (Tex. App.—Amarillo 2009,
no pet.) ................................................................................................................................. 20

Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex. App.—Dallas, 1984, no writ h.) ......... 15

Wetzel v. Sullivan, King & Sabom, 745 S.W.2d 78, 81 (Tex. App.—Houston [1st Dist.] 1988, no
writ h.) .................................................................................................................................. 19

Woods v. Sims, 273 S.W.2d 617, 620 (Tex. 1954) ............................................................................ 14

Zieben v. Platt, 786 S.W.2d 797, 802 (Tex. App.—Houston [14th Dist.] 1990, no writ h.) ............ 19

Other Authorities

42 Am.Jur.2d Injunctions § 130 (2003) ............................................................................................ 25

RESTATEMENT (Second) OF THE LAW OF CONTRACTS § 230 ............................................................. 14

Statues

Tex. R. Civ. P. 11 .............................................................................................................................. 26

v
 STATEMENT OF THE CASE

1. This is an accelerated appeal of the trial court’s denial of a request to

issue a temporary injunction. On January 7, 2015, Nueva Generación Music Group,

Inc. (―Nueva‖) filed its Original Petition and Application for Temporary and

Permanent Injunctive Relief against Isidro Chavez Espinoza, professionally known as

Espinoza Paz (―Espinoza‖), a Latin music artist formerly represented by Nueva. The

lawsuit was filed because Espinoza has disavowed and breached the terms of the

Final Settlement Agreement in case number 2013-64241 (the ―2013 Case‖) entered

into by the parties on February 25, 2014 (the ―Final Settlement Agreement‖), and

filed with the trial court under Rule 11 of the Texas Rules of Civil Procedure. This

Final Settlement Agreement released the claims in the 2013 Case and also a

California lawsuit that was filed by Espinoza after the filing of the 2013 Case.

Specifically, Espinoza retained other representatives to book his performances despite

failing to make the final payment of $3,500,000 by December 31, 2014, disavowed

Nueva’s right to receive commissions from his music publishing in violation of the

Final Settlement Agreement and the prior Exclusive Personal Representation

Agreement of March 9, 2009 (the ―Exclusive Representation Agreement‖), which

was incorporated into the Final Settlement Agreement.

2. On January 22, 2015, the Honorable Sylvia Matthews, Presiding Judge

of the 281st Judicial District of Harris County, conducted a hearing on Nueva’s

application for a temporary injunction seeking to enjoin Espinoza from engaging
1
third-parties in the Entertainment Industries as defined in the said Exclusive

Representation Agreement. On January 26, 2015, Judge Matthews denied Nueva’s

application for a temporary injunction. The order states that Nueva failed to satisfy its

burden of proof on the application, ignoring the undisputed evidence and controlling

case law.

3. On January 27, 2015, Nueva filed its notice of accelerated interlocutory

appeal. The Reporters Record, which includes the transcript of the January 22, 2015

Hearing on Plaintiff’s Application for Temporary Injunction, was filed on February 9,

2015. The Supplemental Reporters record, which includes the transcript of the

February 6, 2015 Hearing on Plaintiff’s Motion for Reconsideration, was filed on

February 10, 2015. The Clerk’s Record was filed on February 12, 2015.

STATEMENT REGARDING ORAL ARGUMENT

4. Because of the ongoing nature of Nueva’s injuries and Espinoza’s

wrongful actions, Nueva requests oral argument only to the extent the Court believes

it will assist it with deciding the appeal more expeditiously. The issues are

straightforward and can be resolved on the papers.

ISSUES PRESENTED

A. Did the trial court abuse its discretion by denying a temporary injunction?

Was this error when:

a. the Final Settlement Agreement requires Espinoza to render his
2
 unique and extraordinary services on Nueva’s behalf ; and

b. Espinoza ratified the Final Settlement Agreement by executing the

Joint Motion and Order to Dismiss the 2013 Case which expressly

reserved the trial court’s ―right to enforce the Final Settlement

Agreement.‖

B. The appeal thus presents two overarching legal questions:

a. Did the trial court fail to follow the controlling law and therefore

abuse its discretion by denying a temporary injunction that restrained

Espinoza from engaging the services of third-party representatives

following the reinstatement of the Exclusive Representation

Agreement?

b. After ratifying the Final Settlement Agreement, does the law permit

Espinoza to defend his breach of the Final Settlement Agreement by

re-litigating the same claims that were raised in the 2013 Case and

the California lawsuit and which were settled and released by the

Final Settlement Agreement?

STATEMENT OF FACTS

A. Relationship Between Nueva and Espinoza
5. Nueva is an artist representative which promotes its artists’ careers in the

entertainment industry. 1 R.R. at 9-10. It does so by advising and representing its

3
artists on performances, recordings, endorsements, music publishing, and

sponsorships, Id.; 1 C.R. at 35-6, including the approval of recording contracts,

national and international tours, publishing deals, and placement of an artist’s work in

television and film. 1 R.R. at 9-10; 1 C.R. at 35-6.

6. Defendant Espinoza is one such artist represented by Nueva. 1 C.R. at

34-46. Espinoza is a Latin music songwriter and artist with unique and extraordinary

talents and skills. 1 R.R. at 11; 1 C.R. at 37. On March 9, 2009, Nueva and Espinoza

entered into an Exclusive Representation Agreement under which Nueva agreed to

provide personal representation services as described above to Espinoza. 1 R.R. at

11-12; 1 C.R. at 33-46. Espinoza, in return, agreed to use Nueva as his exclusive

representative in all aspects of the entertainment, amusement, music publishing,

films, personal appearances, theater and literary industries, including all forms of

publicity, sponsorships, merchandise, exchanges or uses of Espinoza’s name,

photograph, voice, sound effects, image, caricatures, talents, or materials, and

including, without limitation, Espinoza’s activities in any capacity within the

entertainment industry, such as a live singer, recording artist, musician, composer,

writer, publisher, arranger, packager, owner of entertainment packages, actor,

producer, author, director, cameraman, technician, consultant, and in personal

appearances and public appearances which incorporate Espinoza’s voice, image, and

talents (collectively the ―Entertainment Industry‖ or ―Entertainment Industries‖). 1

C.R. at 35-6.
4
 7. In consideration of Nueva’s promises to provide career opportunities for

Espinoza, the Exclusive Representation Agreement stipulated that Nueva would

receive thirty percent (30%) of gross revenues, less expenses, received by Espinoza

for the performance of his services. 1 C.R. at 35. In addition, the parties agreed that

the term of the Exclusive Representation Agreement would be for five (5) years, with

Nueva having options to renew for additional five (5) year periods, which have been

exercised. 1 C.R. at 34.

8. Espinoza was an unknown artist when in 2007 Nueva began a significant

amount of time and energy promoting, advancing, and preparing Espinoza for

success; including providing housing and launching his career as an artist on Mexican

television. 1 R.R. at 12-13, 27. Following Nueva’s successful launch of his career as

an artist, Espinoza began systematically violating his Exclusive Representation

Agreement. 1 R.R. at 13; 1 C.R. at 6-10, 18. Espinoza interfered with Nueva’s

contractual duty to provide him employment opportunities, sponsorships, and

endorsements by failing to participate in negotiations or communicate with regard to

business opportunities. 1 C.R. at 6-10, 18. Moreover, Espinoza reneged on numerous

contracts and engagements entered into by Nueva on his behalf. Id. Finally, Espinoza

attempted to wrongfully and unilaterally terminate the Exclusive Representation

Agreement. As a result, Nueva was forced to bring suit against Espinoza to enforce

the Exclusive Representation Agreement in the district court of Harris County, Texas,

Case No. 2013-64241. 1 C.R. at 10, 18. Espinoza then filed a suit against Nueva on
5
February 5, 2014, under Case Number BC535473 in the Superior Court of the State

of California, County of Los Angeles, claiming fraud, misrepresentation, breach of

fiduciary duty, and a laundry list of purported grievances. 1 R.R. at 17; 1 C.R. at 10,

18.

B. Resolution and Settlement of Prior Litigation
9. On February 25, 2014, the parties, assisted by their counsel, executed the

document titled ―Final Settlement Agreement,‖ which, following agreed-upon

contingencies, would dispose of the claims brought by both parties in the courts of

Texas and California. 1 C.R. at 21-32. The agreement provided Espinoza two

methods of remediating his earlier breach of the Exclusive Representation

Agreement. 1 C.R. at 22-4. In the first instance, Espinoza could pay, over the course

of the year 2014, a total of $4,500,000 and thereby terminate the contractual

relationship between the parties. 1 C.R. at 22-3. The payment plan required Espinoza

to meet benchmark payments throughout the year as follows:

 on February 28, 2014, Espinoza would wire $600,000 to Nueva’s account;

 on March 11, 2014, Espinoza would wire an additional $400,000 to Nueva’s

account; and

 on December 31, 2014, Espinoza would wire the final $3,500,000 to Nueva’s

account. Id.

10. The effect of Espinoza meeting the required payments by the deadlines

above would terminate the relationship between the parties, thereby resolving the
6
dispute. 1 C.R. at 23. However, until the total of $4,500,000 was paid to Nueva, the

Exclusive Representation Agreement, incorporated into the Final Settlement

Agreement, would remain in effect with the exception that Espinoza would not be

required to remit the 30% commission until January 1, 2015. Id.

11. In addition to the benchmark payments, Nueva included a fallback

provision, which would go into effect if Espinoza failed to meet any of his payment

obligations under the Final Settlement Agreement. Under Paragraph 2 of the Final

Settlement Agreement, if Espinoza failed to remit the appropriate payments, the

Exclusive Representation Agreement’s 30% commission requirement would be

reinstated. 1 C.R. at 23-4.

12. A modification to the commission clause in Paragraph 8 of the Exclusive

Representation Agreement was included in the Final Settlement Agreement. Id. The

modification stated that the Exclusive Representation Agreement would terminate

once Nueva’s 30% commission cumulatively amounts to $4,500,000 less any

payments made by Espinoza during 2014. Id. The Final Settlement Agreement

incorporated the Exclusive Representation Agreement completely and outlined no

other modifications other than to Paragraph 8. Id. The Final Settlement Agreement

states expressly that it is the complete understanding of the parties, and that by

executing the Final Settlement Agreement, neither party was ―relying on any promise

or verbal agreement not contained in [the Final Settlement Agreement].‖ 1 C.R. at 24-

25.
7
 C. Espinoza’s Conduct Following the Final Settlement Agreement
13. Espinoza failed to comply with the Final Settlement Agreement almost

immediately, by not making the first payment of $600,000 by the specified date of

February 28, 2014. 1 R.R. at 15. As a result, Nueva was required to seek a temporary

restraining order and enforcement of the Final Settlement Agreement before Espinoza

ultimately remitted payment. Id. Espinoza then also remitted the second payment of

$400,000. Id.

14. Subsequently, and in conformity with the Final Settlement Agreement,

the parties filed a Joint Motion to Dismiss the prior suit in Harris County on March

14, 2014, which was granted by the trial court on March 21, 2014. 1 C.R. 47.

Significantly, the Motion and Order to Dismiss, both signed by Espinoza’s lawyer,

specifically reserves the Court’s right to ―enforce the Final Settlement Agreement.‖ 1

C.R. 47.

15. Espinoza failed to make the final payment of $3,500,000 by December

31, 2014. 1 R.R. at 17-18. Espinoza’s failure to keep his commitment under the Final

Settlement Agreement activated Nueva’s fallback position. 1 C.R. at 23-4. Under the

Final Settlement Agreement, on January 1, 2015, the Exclusive Representation

Agreement was reinstated in full, including Nueva’s right to a 30% commission on all

entertainment-related income. Id.

16. On or about January 7, 2015, Nueva learned that Espinoza contracted to

perform concerts in Pharr, Texas, and Laredo, Texas, on January 23rd and 24th, 2015.
8
1 C.R. at 7, 18. Nueva also learned that Espinoza contracted to perform in Chandler,

Arizona, on February 13, 2015. Id. Nueva learned that Espinoza had contracted with

and was being represented by third-parties for procuring, arranging, and executing

these and other contracts for performances in Mexico and the United States. 1 R.R.

18-19; 2 R.R. PX 6, 7, and 8. Because Espinoza employed third-parties to represent

him in the Entertainment Industries contrary to the Exclusive Representation

Agreement, Nueva brought suit for breach of the Final Settlement Agreement and

injunctive relief. 1 C.R. 3-18. The Petition and Application for Temporary and

Permanent Injunctive Relief, filed on January 7, 2015, requested the trial court to

exercise its jurisdiction under the Joint Motion to Dismiss and Final Settlement

Agreement by preventing Espinoza from further breaching his duties under the Final

Settlement Agreement and irreparably harming Nueva by ignoring its exclusive right

of representation. Id.

17. Nueva proved, without contradiction, that Espinoza publicly admitted to

engaging the services of third-parties to represent him in Entertainment Industries. 2

R.R. Pl. Ex. 6-9; 1 C.R. at 52-3. Espinoza’s actions damage Nueva’s reputation, the

willingness of third-parties to work with Nueva, as well as promote the businesses of

Nueva’s competitors and any chance that it has to recover money damages. 1 R.R. at

19-23. Espinoza argued, without the support of a scintilla of evidence and contrary to

the unequivocal terms of the Final Settlement Agreement, that he never intended for

the Final Settlement Agreement to reinstate Nueva’s exclusive rights under the
9
Exclusive Representation Agreement. 1 R.R. at 25; 1 C.R. at 59, 92-4, 99-103. In

support, Espinoza offered no evidence, but attached Nueva’s motion for

reconsideration to his response, in attempt to unilaterally terminate the Exclusive

Representation Agreement before the Final Settlement Agreement was executed. 1

C.R. at 86-91. Espinoza also attached self-serving and inadmissible communications

from his attorney to Nueva’s attorney attempting to renegotiate the formally executed

Final Settlement Agreement. 1 C.R. at 73, 92-108. These were also not admitted into

evidence, do not support his arguments, and are inadmissible as a matter of law under

the parol evidence rule.

18. Significantly, at the hearing, Espinoza’s lawyer also admitted that the

Final Settlement Agreement reinstates the Exclusive Representation Agreement, but

Espinoza believes that only certain provisions of the Exclusive Representation

Agreement are reinstated. 1 R.R. at 37. Of course, Espinoza presented no evidence in

support of that proposition. Regardless, Espinoza continues to breach the Final

Settlement Agreement by soliciting and accepting representation in Entertainment

Industries by third-parties. 1 R.R. at 20-23; 2 R.R. Pl. Ex. 6-9. Moreover, Espinoza

has failed to remit any payments to Nueva for the commission on his performances. 1

C.R. at 56.

SUMMARY OF THE ARGUMENT

―[W]herever this Court has not proper jurisdiction to enforce specific

performance, it operates to bind men’s consciences, as far as they can be
10
 bound, to a true and literal performance of their agreements; and it will not

suffer them to depart from their contracts at their pleasure, leaving the party

with whom they have contracted to the mere chance of any damages which

a jury may give.‖ Lumley v. Wagner, 42 English Rep. 687 (Ch. 1952).

19. The trial court’s order denying the temporary injunction ignores the

undisputed evidence and well-settled controlling law in the State of Texas. It was

therefore an abuse of the court’s discretion to not enjoin Espinoza from soliciting and

employing third-party representatives to further his artistic career in the

Entertainment Industry. The Exclusive Representation Agreement expressly states

that Nueva is Espinoza’s exclusive representative in Entertainment Industries.

Espinoza agrees that his personal services are unique and extraordinary, and no

substitute for those services exists. Espinoza admitted to seeking out and utilizing

alternative representation. Espinoza also admitted to soliciting and performing

services for third-party representatives in the Entertainment Industry in violation of

the exclusivity rights granted to Nueva in the Exclusive Representation Agreement.

Because Espinoza failed to meet the payment deadlines and abide by the Final

Settlement Agreement, which he ratified, the Final Settlement Agreement is now in

full force and effect.

20. Contrary to Espinoza’s unsupported arguments during the injunction and

reconsideration hearings, the Final Settlement Agreement is a final, integrated

agreement between the parties. Espinoza also ratified the terms of the Final
11
Settlement Agreement initially by remitting $1,000,000 to Nueva, relying on the

suspension of the commissions in the incorporated Exclusive Representation

Agreement, filing a Joint Motion to Dismiss the prior lawsuit in Texas, and non-

suiting the California lawsuit. Thus, the provisions in the Final Settlement

Agreement, incorporating the Exclusive Representation Agreement and its terms, are

controlling. No amount of pro hoc posturing by Espinoza changes his assent to the

Final Settlement Agreement or its terms.

21. The law is well-settled, going back to 1852, that a negative injunction is

appropriate under these circumstances. A negative injunction is the appropriate

remedy when an artist violates an exclusive personal services contract by utilizing

third-party representatives in violation of that negative covenant. Nueva has no

remedy at law to replace Espinoza’s unique and extraordinary services. In such a

case, Texas has adopted the long-standing tradition of enjoining a party from

performing services for others during the term of a contract which includes a negative

covenant, as held by the Texas Supreme Court in Mission Indep. School Dist. v.

Desirens, 188 S.W.2d 568 (Tex. 1945). This controlling case was not followed by the

trial court.

ARGUMENT & AUTHORITIES

A. Standard of Review

Review of legal questions

22. Legal questions are always reviewed de novo. MCI Telecomms. Corp. v.
12
Texas Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). Choosing the applicable

law presents a legal question and is reviewed de novo. See Sonat Exploration Co. v.

Cudd Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). Questions about the

enforceability of contracts are reviewed de novo. E.g., In re Labatt Food Serv. L.P.,

279 S.W.3d 640, 643 (Tex. 2009).

Denial of a temporary injunction

23. The denial of a temporary injunction is reviewed for an abuse of

discretion. E.g., Conlin v. Haun, 419 S.W.3d 682, 686 (Tex. App.—Houston [1st

Dist.] 2013, no pet.). A trial court abuses its discretion when it reaches a decision so

arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or

when it clearly fails to correctly analyze or apply the law. Intercontinental Terminals

Co. v. Vopak N. Am., Inc., 354 S.W.3d 887, 892 (Tex. App.—Houston [1st Dist.]

2011, no pet.). A trial court also abuses its discretion when it does not apply the

controlling law to the facts in arriving at its decision. Texas State Optical, Inc. v.

Wiggins, 882 S.W.2d 8, 11 (Tex. App.—Houston [1st Dist.] 1994, no writ).

B. Espinoza’s Failure to Make the Required Payments of the Final
Settlement Agreement Renewed Nueva’s Exclusive Rights under the
Exclusive Representation Agreement

24. At the heart of Espinoza’s defenses is his position that the document

titled ―Final Settlement Agreement‖ is not, in fact, a final settlement agreement.

However, he has offered no law or evidence to support this position. The law

13
provides that ―(w)hen constructing a contract, the court’s primary concern is to give

effect to the written expression of the parties’ intent.‖ Forbau v. Aetna Life Ins. Co.,

876 S.W.2d 132, 133 (Tex. 1994). It is the written expression, not one party’s ―actual

intent,‖ that governs proper interpretation of an agreement. See Luckel v. White, 819

S.W.2d 459, 462, 463 (Tex. 1991) (―Even if the court could discern the actual intent,

it is not the actual intent of the parties that governs, but the actual intent of the parties

as expressed in the instrument as a whole, without reference to matters of mere form,

relative position of descriptions, technicalities, or arbitrary rules.‖ (internal quotations

omitted)). When a contract is unambiguous, construction of the written instrument is

a question of law for the court. Myers v. Gulf Coast Minerals Mgmt. Corp., 361

S.W.2d 193 (Tex. 1962). In addition, when the court considers the construction of an

unambiguous contract, the instrument alone will be deemed to express the objective

manifestation of the parties’ intent. Woods v. Sims, 273 S.W.2d 617, 620 (Tex. 1954);

see also RESTATEMENT (Second) OF THE LAW OF CONTRACTS § 230.

1. The parties’ written expression demonstrates their unambiguous intent to
reinstate the Exclusive Representation Agreement.
25. The Final Settlement Agreement is a complete, integrated document,

which unambiguously establishes the parties’ intent. A written instrument presumes

that all prior agreements relating to the transaction are merged and enforced as

written. See Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex.

App.—Houston [1st Dist.] 2005, rev. denied). A merged document cannot be added

14
to, varied, or contradicted by extrinsic testimony or evidence. Id. This rule is

especially relevant when the written agreement contains a clause stating that it is the

entire agreement between the parties, or some other similar merger clause. See

Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex. App.—Dallas 1984, no

writ h.).

26. The trial court erred in interpreting the Final Settlement Agreement as a

matter of law, apparently construing it in light of Espinoza’s attempts to improperly

inject ambiguity through irrelevant arguments and non-existent evidence. A written

settlement agreement satisfies Texas Rule of Civil Procedure 11 when it ―is complete

within itself as to every material detail and contains all the essential elements of the

agreement, so the contract can be ascertained from the writing without resort to oral

testimony.‖ Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199 (Tex. App.—Houston

[1st Dist.] 2004, rev. denied); Cherco Props., Inc. v. Law, Snakard & Gambill, P.C.,

985 S.W.2d 262, 265 (Tex. App.—Fort Worth 1999, no pet.) (citing Padilla v.

LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)).

27. The Final Settlement Agreement, agreed to and executed by the parties

and their respective lawyers, is a proper Rule 11 Agreement in every way. It contains

all of the material terms of the agreement, namely a specified sum of money in

exchange for settlement of all claims. See Padilla, 907 S.W.2d at 461 (Tex. 1995).

28. The Final Settlement Agreement also includes a fallback position for

Nueva if Espinoza fails to pay the money in total or on time. It contains all of the
15
material terms for this fallback position as well: the Exclusive Representation

Agreement will be reinstated, with the exception that it will terminate following

Nueva’s collection of $4,500,000, less any payments made by Espinoza under

Paragraph 1 of the Final Settlement Agreement. 1 C.R. at 22-24. In both

circumstances, the parties dispose of all prior claims made in the 2013 Case and the

California lawsuit. The parties agreed that the Final Settlement Agreement is an

integrated and merged agreement. 1 C.R. at 24. No oral testimony is required to

interpret the Final Settlement Agreement. 1 C.R. at 25.

29. Espinoza argues, without proof, that the Final Settlement Agreement is

not truly ―final,‖ and that it does not afford Nueva its exclusive rights under the

Exclusive Representation Agreement. 1 C.R. at 54-5. Espinoza also takes the

position, again without authority, that because the agreement titled ―Final Settlement

Agreement‖ was handwritten, it was not a final version. 1 C.R. at 55. Additionally,

Espinoza asserts, without any proof, that the Final Settlement Agreement does not

include clauses that he intended to include, arguing that other verbal agreements,

which are not referenced or included in the Final Settlement Agreement in any way,

formed the basis for the agreement. 1 C.R. at 54-5. Espinoza presented argument

without authority at the injunction hearing that the Final Settlement Agreement was

handwritten and therefore, not a final memorialization of the agreement between the

parties. Id. Finally, because the document is handwritten, he urged the court to

consider extrinsic evidence to interpret the Final Settlement Agreement. 1 C.R. at 80-
16
2. Espinoza’s argument amounts to a logical fallacy, easily discarded under

controlling law.

30. First, the fact that the Final Settlement Agreement is a handwritten Rule

11 Agreement has absolutely no bearing on its completeness. See generally Cherco

Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262 (Tex. App.—Fort

Worth 1999, no pet.) (finding that a handwritten Rule 11 settlement, so long as it

meets the requirements of Rule 11, is enforceable as written). This is nonsense and, in

fact, the law is 100% to the contrary—handwritten agreements are actually favored in

Texas jurisprudence. Alba Tool and Supply Company, Inc. v. Industrial Contractors,

Inc., 585 S.W. 2d 662 (Tex. 1979). The Final Settlement Agreement itself resolves

the issue of completeness and enforceability under Rule 11. The document is titled

―Final Settlement Agreement.‖ The document resolved the pending disputes in both

Texas and California. 1 C.R. at 24. The Final Settlement Agreement states clearly

that it is the complete understanding of the agreements between the parties and

releases each, respectively, of all claims and lawsuits with the exception of the

Exclusive Representation Agreement. 1 C.R. at 25. The document further states that

any claims arising from the Exclusive Representation Agreement are actionable until

Espinoza pays the agreed $4,500,000. 1 C.R. at 24-25. The document is a ―final

agreement and, if necessary, it may be filed under Rule 11;‖ and was ultimately filed

with the trial court under Rule 11. 1 C.R. at 25, 47. Finally, the document states that

neither party is ―relying on any promise or verbal agreement not contained in [the
17
Final Settlement].‖ 1 C.R. at 25.

31. Second, Espinoza’s arguments attempt to infuse the record with

purported extrinsic evidence which should not have been considered by the trial

court. Not only was no evidence offered by Espinoza to support these arguments, but

also any such ―evidence‖ is inadmissible under the parol evidence rule. Sacks v.

Haden, 266 S.W.3d 447 (Tex. 2008); DeClaire v. G & B McIntosh Family Ltd.

P’ship, 260 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

32. Of course, a court may not consider extrinsic evidence in order to create

an ambiguity in a contract. Sears, Roebuck & Co. v. Commercial Union Ins. Corp.,

982 S.W.2d 151, 154 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Extrinsic

evidence to contradict or aid a court in interpreting a contract is only admissible if the

contract is first determined to be ambiguous. See Friendswood Dev. Co. v. McDade

& Co., 926 S.W.2d 280, 283 (Tex. 1996). Espinoza filed papers, not admitted as

evidence, of emails sent to Nueva’s counsel immediately following the execution of

the Final Settlement Agreement. 1 C.R. at 56, 82. The emails do not support any

viable argument and essentially request that Nueva accept an entirely different

settlement agreement, which would strip it of its exclusivity rights entirely. 1 C.R. at

92-108. Simply because these documents exist, Espinoza argues without authority,

that the trial court must use them to interpret the Final Settlement Agreement. 1 C.R.

at 54-6, 80-2.

33. The Final Settlement Agreement on its face is an enforceable Rule 11
18
Agreement. 1 C.R. at 25. As discussed in more detail below, Espinoza accepted and

expressly acknowledged the authority of that agreement. Try as he might, Espinoza’s

defense only adds up to irrelevant arguments and wishful thinking unsupported by

any evidence. Espinoza offers no legal authority for his arguments, because there is

none. On the contrary, this court has held that a Rule 11 Agreement is entitled to

enforcement, even when ―the parties advance conflicting interpretations of their

agreement.‖ Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199 (Tex. App.—Houston

[1st Dist.] 2004, rev. denied.).

2. Espinoza ratified the Final Settlement Agreement.
34. The evidence before the trial court established without any doubt, that

Espinoza ratified the Final Settlement Agreement as a complete and final disposition

of the parties’ prior claims. At the hearing, Espinoza did not deny, because he cannot

deny, that the Final Settlement Agreement was ratified in the motion and order to

dismiss the 2013 Case. Espinoza simply does not want to face the inconvenient fact

that he ratified the Final Settlement Agreement after the (inadmissible) emails on

which he bases his defense. Ratification of a contract ―occurs when a party

recognizes the validity of a contract by acting under it, performing under it, or

affirmatively acknowledging it.‖ Zieben v. Platt, 786 S.W.2d 797, 802 (Tex. App.—

Houston [14th Dist.] 1990, no writ h.) (citing Wetzel v. Sullivan, King & Sabom, 745

S.W.2d 78, 81 (Tex. App.—Houston [1st Dist.] 1988, no writ h.)). Ratification may

be express or implied by a party’s course of conduct. Diamond Paint Co. of Houston
19
v. Embry, 525 S.W.2d 529, 535 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ

ref’d n.r.e.). A party may not ratify a contract ―and subsequently seek to avoid the

contract.‖ Am. Med. Techs., Inc. v. Miller, 149 S.W.3d 265, 271 (Tex. App.—

Houston [14th Dist.] 2004, no pet.) (citations omitted). A party’s ratification of an

agreement applies to the entire agreement and not just the self-serving, cherry-picked

provisions thereof. Land Title Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d

754, 757 (Tex. 1980) (―Ratification extends to the entire transaction.‖)). Whether a

party has ratified a contract may be determined as a matter of law if the evidence of

ratification is not controverted or is incontrovertible. Barker v. Roelke, 105 S.W.3d

75, 84–85 (Tex. App.—Eastland 2003, rev. denied); Old Republic Ins. Co., Inc. v.

Fuller, 919 S.W.2d 726, 728 (Tex. App.—Texarkana 1996, writ denied).

35. Espinoza’s ratification of the Final Settlement Agreement is

incontrovertible. Texas courts find conduct in conformity with a contract to evidence

ratification of that contract, so long as the performing party knew all of the material

terms of that contract. See Verizon Corporate Services. v. Kan Pak Sys., 290 S.W.3d

899, 905-908 (Tex. App.—Amarillo 2009, no pet.); Spellman v. Am. Universal Inv.

Co., 687 S.W.2d 27, 29–30 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.).

Espinoza and his lawyer were both present at the negotiations and execution of the

Final Settlement Agreement. 1 C.R. at 53. The Final Settlement Agreement was

drafted in Espinoza’s native tongue, and he initialed each page before signing his

name in execution thereof, as witnessed by his attorney. 1 C.R. at 29-32. By signing
20
and executing the Final Settlement Agreement, the parties agreed that neither was

―relying on any promise or verbal agreement not contained in [the Final Settlement].‖

1 C.R. at 25.

36. Espinoza, apparently intending to avoid his payment obligations,

recognized that he failed to negotiate restrictions to the exclusivity rights

incorporated into the Final Settlement Agreement, after the parties executed the

document.

37. After the February 26 exchange of emails attached to Espinoza’s court

papers, and to avoid the issuance of a temporary restraining order, Espinoza remitted

the first two payments in conformity with Paragraph 1(B) of the Final Settlement

Agreement. 1 R.R. at 15. Following Espinoza’s cumulative payment of $1,000,000,

and in accordance with Paragraph 4 of the Final Settlement Agreement, the parties

filed a Joint Motion to Dismiss the prior suit in Texas on March 21, 2014, and

Espinoza non-suited his case in California. 2 R.R. Pl. Ex. 2; 1 C.R. at 24, 47. Each of

these actions taken by Espinoza constitute express acknowledgement of the Final

Settlement Agreement, thereby ratifying it as a complete and integrated disposition of

the parties’ claims. The trial court abused its discretion in failing to find that Espinoza

acknowledged, acted under, and availed himself of the Final Settlement Agreement

and all of its material terms.

3. Espinoza misrepresented the “status quo” to the trial court.
38. The purpose of a temporary injunction is to preserve the status quo of the
21
subject matter of the litigation until the trial court holds a final hearing on the merits

of the case. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). However,

before the trial court, Espinoza challenged Nueva’s application for temporary

injunction on the grounds that it would not preserve the status quo. 1 C.R. at 78-9. As

discussed in detail above, Espinoza attempts to mischaracterize the Final Settlement

Agreement as an incomplete agreement, citing documentation and writing beyond the

integrated and unambiguous agreement. 1 C.R. 24-5. Before the trial court, Espinoza

characterized the status quo as one in which Nueva does not represent Espinoza in

Entertainment Industries. Id. The Final Settlement Agreement unequivocally states

otherwise.

39. Espinoza attempts to rely on irrelevant half-truths that were not admitted

into evidence. For example, he hangs his hat on the self-serving, inadmissible,

purported ―termination of agency‖ document, which predates the Final Settlement

Agreement and has no bearing on the relationship of the parties. 1 C.R. at 80, 88-9.

More importantly, the purported unilateral termination and the subsequent execution

and ratification of the Final Settlement Agreement are mutually exclusive. No

modifications were made in the Final Settlement Agreement with regard to Nueva’s

right of exclusive representation. 1 C.R. 22-5. When the Final Settlement Agreement

was signed and executed, the Exclusive Representation Agreement, with the

exception of a temporary modification to the 30% commission, was expressly

acknowledged and in full effect. 1 C.R. at 23. The Final Settlement Agreement does
22
not mention any restriction to Nueva’s exclusivity in representing Espinoza—and

certainly not Espinoza’s purported termination letter. It clearly says the opposite,

specifically providing that the Exclusive Representation Agreement ―shall continue in

force and the 30% commission payable to the Plaintiff by the Defendant until

$4,500,000.00 is paid to the Plaintiff by the Defendant‖. 2 R.R. Pl. Ex. 1, at par. 2. If

that were not enough, the fact that the parties agreed to the continuation of the

Exclusive Representation Agreement actually repeated. The Final Settlement

Agreement also states that ―(t)he Plaintiff and the Defendant agree to release any

claim or lawsuit that exists between the parties, with the exception of the agreements

contained in this agreement or the March 9, 2009 agreement…‖ 2R.R. Pl. Ex. 1, at

par. 5.

40. The only change following Espinoza’s failure to remit the final

$3,500,000 was the fallback provision reinstating Nueva’s right to a 30%

commission, and extending the Exclusive Representation Agreement until Espinoza’s

payments cumulatively amount to $4,500,000. 1 C.R. at 23. Thus, Nueva’s exclusive

right to represent Espinoza existed immediately following the execution of the Final

Settlement Agreement and never changed. The trial court abused its discretion in

interpreting the Final Settlement Agreement in light of these irrelevant arguments

made by Espinoza.

23
 C. The Trial Court Abused its Discretion When It Failed to Issue a
Negative Injunction Against Espinoza.
41. An applicant seeking to enjoin a party by enforcing a restrictive

covenant generally is not required to prove irreparable injury. Jim Rutherford Invs. v.

Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.]

2000, rev. denied). Rather, the applicant need only show that the non-movant intends

to do an act that would breach the covenant. Marcus v. Whispering Springs

Homeowners Ass’n, 153 S.W.3d 702, 707 (Tex. App.—Dallas 2005, no pet.) (citing

Munson v. Milton, 948 S.W.2d 813, 815 (Tex. App.—San Antonio 1997, rev.

denied)).

42. More so, when negative covenants are ancillary to contracts involving

personal services, injunctive relief will be granted where the non-movant is an

individual with ―exceptional and unique knowledge, skill and ability in performing

the service called for in the contract.‖ Mission Indep. School Dist. v. Diserens, 188

S.W.2d 568 (Tex. 1945); Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d

37, 42 (Tex. App.—Dallas 1961, no writ h.) (citing Mission Indep. School Dist. v.

Diserens. See also Houston Oilers, Inc. v. Neely, 361 F.2d 36, 40 (10th Cir. 1966)

(citing both Dallas Cowboys Football Club and Mission Indep. School Dist ; Titus v.

Superior Court, Maricopa Cnty., 368 P.2d 874, 875 (Ariz. 1962) (citing Lumley v.

Wagner, 1852, 42 English Rep. 687 (Ch. 1952)); Savoy Record Co. v. Mercury

Record Corp., 108 F. Supp. 957, 959 (D. N.J. 1952) (―While a court of equity will not

24
decree specific performance for a contract for personal services, it has the power to

enjoin the performances of such services for others and will do so where the services

are unique and cannot be purchased from others . . .‖).

43. Nueva’s exclusive rights in the Exclusive Representation Agreement, as

incorporated into the parties’ Final Settlement Agreement, form the basis of Nueva’s

request for temporary injunction. 1 C.R. at 22-5, 34. Under the Exclusive

Representation Agreement, Espinoza agreed to be restrained from utilizing the

representation of third-parties during the term. 1 C.R. at 34. The parties expressly

incorporated the Exclusive Representation Agreement into the Final Settlement

Agreement. 1 C.R. at 22. Espinoza’s personal service contracts with third-parties are

breaches of this covenant. 1 C.R. at 34. These breaches occurred during the term of

the Exclusive Representation Agreement, both before and after the execution of the

Final Settlement Agreement. 1 C.R. at 6-10, 18, 53-4. Restraining Espinoza from

breaching the Exclusive Representation Agreement and, thus, the Final Settlement

Agreement, by enforcing the negative covenant not only ―does not violate public

policy,‖ as loosely argued by Espinoza, but it is a permissible power of the court.

Amigo Broad. v. Spanish Broad., 521 F.3d 472, 487–488 (5th Cir. 2008); see also

Mission Indep. School Dist., 188 S.W.2d 568; 42 Am. Jur. 2d Injunctions § 130

(2003) (―Covenants not to accept employment with anyone but the employer during

the term of the contract are not opposed to public policy and have been held to be

valid.‖).
25
 1. Nueva established a probable right to relief.
44. The present dispute between the parties is due to Espinoza’s failure to

agree to the terms of the Exclusive Representation Agreement, incorporated into the

Final Settlement Agreement, after failing to discharge all of his payments. The Final

Settlement Agreement is a binding agreement which integrates and merges all

promises and duties for each of the parties to resolve their prior claims. In addition to

the construction and ratification arguments above, and incorporated herein by

reference, the Final Settlement Agreement states, in relevant part, ―[t]his is a final

agreement and, if necessary, it may be filed under Rule 11 of the Texas Rules of Civil

Procedure to be enforced by the court with an English translation prepared by a

certified translator according to the regulations of the State of Texas.‖ 1 C.R. at 25.

45. Under Rule 11, a settlement agreement is required to be enforced if it is

in writing, signed and filed with the papers as part of the record, or unless it be made

in open court and entered of record.‖ TEX. R. CIV. P. 11. A settlement agreement is

enforceable as a contract, even if a final judgment does not include the terms of the

agreement. Compania Financiara Libano, S.A. v. Simmons, 54 S.W.3d 365, 368

(Tex. 2001). A Rule 11 agreement must be filed prior to enforcement of its

provisions. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). ―A trial court has

a ministerial duty to enforce a valid Rule 11 agreement.‖ ExxonMobil Corp. v.

Valence Oper. Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st Dist.] 2005, rev.

denied). Both parties must consent to enforcement of a Rule 11 agreement at the time
26
the judgment is rendered by the trial court. Id.; see also Baylor Coll. of Med. v.

Camberg, 247 S.W.3d 342, 346 (Tex. App.—Houston [14th Dist.] 2008, rev. denied).

46. The Final Settlement Agreement was filed and expressly recognized by

the trial court in its Order of Dismissal on March 21, 2014. 1 C.R. at 47. Nueva set an

injunction hearing on the same issue addressed herein, but Espinoza remitted the first

payment under Paragraph 1(A) of the Final Settlement Agreement before the trial

court could hear evidence. 1 R.R. at 15. Espinoza remitted payment of $400,000 in

conformity with Paragraph 1(B) of the Final Settlement Agreement, triggering the

dismissal of the prior pending suits in Texas and California. 1 C.R. at 24, 47. On

March 14, 2014, the parties filed a Joint Motion to Dismiss the suit in Texas. The trial

court’s order dismissing the Texas suit expressly reserves its jurisdiction under the

Final Settlement Agreement. 1 C.R. at 47. Consent to enforcement is evident at the

time of the trial court’s order. In addition, Espinoza enjoyed the benefits of the Final

Settlement Agreement. During the period of time from February 25, 2014 to

December 31, 2014, the commission provision in the Exclusive Representation

Agreement was suspended. 1 C.R. at 23.

47. The trial court reserved jurisdiction to enforce the Rule 11 Final

Settlement Agreement in the March 21, 2014 Order of Dismissal, and thus has a

ministerial duty to enforce its terms. Under Texas law, the Final Settlement

Agreement and its provisions, including the incorporated Exclusive Representation

Agreement, are enforceable as written. Given the uncontroverted evidence of
27
Espinoza’s past and continued breach, Nueva established a probable right of relief. 1

R.R. 18-19; 1 C.R. 6-10, 18. The trial court abused its discretion in failing to exercise

its ministerial duty to enforce the Exclusive Representation Agreement’s negative

covenant.

2. Espinoza continues to breach the negative covenant.
48. Nueva offered into evidence the uncontradicted testimony of one of its

principals, Marisa Caballero. Miss Caballero testified regarding Espinoza’s breaches

of the Final Settlement Agreement. Specifically, Miss Caballero testified that at least

two third-party artist representative agencies contracted with Espinoza to secure

performances in violation of the Final Settlement Agreement. 1 R.R. 18-23. Her

testimony was corroborated by the documents offered into evidence. 2 R.R. Pl. Ex. 6-

9.

49. The record unequivocally shows that Espinoza is working with a

company called Frias Entertainment. 1 R.R. 18-21; 2 R.R. Pl. Ex. 6. Frias states on

its Website that it represents Espinoza and books his performances throughout the

United States. 2 R.R. Pl. Ex. 6. In addition, the record demonstrates that Espinoza is

now being represented by a company called Anval Music. 1 R.R. at 19; 2 R.R. Pl. Ex.

7, 8. Anval has also represented Espinoza in Mexico in violation of the Final

Settlement Agreement, securing performances in both the largest stadium in Mexico,

Estadio Azteca, and another venue called the Amphitheater. 2 R.R. Pl. Ex. 7, 8. The

day preceding the temporary injunction hearing, Espinoza announced through
28
traditional and social media that he is beginning a Mexican tour in 2015. 1 R.R. at 21-

2. These performances and contracts fall under the definition of Entertainment

Industries in the Exclusive Representation Agreement, and are categories Espinoza

agreed were exclusively the domain of Nueva. 1 C.R. at 34-6. However, Nueva

played no role in advising, approving, or receiving any advances or other

compensation for the performances. 1. R.R. at 21-2. Rather, Nueva’s competition

gains the benefit. The evidence demonstrates Espinoza’s indisputable intention to not

only violate the Final Settlement Agreement in these discrete instances, but to

continue to do so well into the future.

3. Espinoza’s services are unique and extraordinary.
50. It is proper to provide an applicant injunctive relief to restrain a violation

by an individual subject to a negative covenant in a personal services contract if the

person is of exceptional and unique knowledge, skill and ability in performing the

service or services called for in the contract. Mission Indep. School Dist. v. Diserens,

188 S.W.2d 568 (Tex. 1945); see also Matuszak 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.).

51. The evidence that Espinoza’s services are unique and extraordinary was

uncontroverted. Not only did Espinoza agree to his unique and extraordinary talents

in Paragraph 13 of the Exclusive Representation Agreement, the testimony of Marisa

Caballero demonstrates that he is a talented and sought-after songwriter, musician,
29
and actor. 1 R.R. at 12-14; 1 C.R. at 37. Espinoza makes no attempt to challenge this

characterization of this unique skill set. His talents form the basis for the Exclusive

Representation Agreement and the contracts which arose from Nueva’s

representation of Espinoza in various Entertainment Industries, and likely also form

the basis for Nueva’s competitors to be able to book him on national tours and in

large stadiums. 1 R.R. at 21-2; 2 R.R. Pl. Ex. 6-9.

52. Espinoza’s breach of Nueva’s exclusive rights, has larger anti-

competitive implications that should not have been ignored in the trial court’s order

denying the injunction application. These considerations are adopted in Texas

through Mission Indep. School Dist. v. Diserens, and are the focus of the landmark

case of Lumley v. Wagner, which is included in every first year law students’

Contracts casebook. The seminal case in the United States is Shubert Theatrical Co.

v. Rath, 271 F. 827 (2nd Cir. 1921), a case which dealt with facts that square with the

ones at bar.

53. The injunction in Lumley, analogous to the present application, was to

prevent opera singer Johanna Wagner from performing for a competitor for better

rates. See Lumley v. Wagner, 42 English Rep. 687 (Ch. 1952). The Texas Supreme

Court has not only adopted Lumley v. Wagner, but also expanded it by not restricting

a negative injunction to circumstances involving competitors, but stated that the

―principles involved have a broader scope.‖ Mission Indep. School Dist. v. Diserens,

188 S.W.2d 568, 570 (Tex. 1945). Espinoza’s undisputed unique talents and skills as
30
a songwriter and performer formed the basis of an exclusive personal services

contract between the parties. Thus, a negative injunction is properly applicable to the

Final Settlement Agreement.

4. Nueva has no remedy at law.
54. Nueva is seeking to enforce the exclusivity provision in the Exclusive

Representation Agreement, which expressly restricts Espinoza from engaging third-

party representatives in Entertainment Industries. Id. Second, money damages do not

account for the total injury to Nueva. Following Espinoza’s breach of the Final

Settlement Agreement, the Exclusive Representation Agreement is the status quo.

The Exclusive Representation Agreement is a personal services contract in which

Espinoza:

 ―[R]ecognizes and agrees that the talents of [Espinoza] and his abilities

are exceptional, extraordinary and unique, and whose loss will not be able to be

compensated with any monetary sum.‖ Paragraph 7;

 ―[A]grees at all times to attend career commitments and to do what is

necessary and desirable to promote [his] career and earnings herein implied.‖

Paragraph 6;

 Agrees to pay Nueva a 30% commission of all compensations for his

services through the term of the agreement. Paragraph 8; and

 Binds Nueva as his only and exclusive personal representative in

Entertainment Industries for the term. Paragraph 1, 8. 1 C.R. at 34-6.
31
 55. The Exclusive Representation Agreement includes an implied negative

promise, incidental to the affirmative. Specifically, because Espinoza promised to use

Nueva exclusively for his representation in Entertainment Industries, he also

impliedly promised not to use the representation services of third-parties during the

term. See Mission Indep. School Dist. v. Diserens, 188 S.W.2d 568 (Tex. 1945);

Lumley v. Wagner, 1852, 42 English Rep. 687 (Ch. 1952); Shubert Theatrical Co. v

Rath, 271 F.827 (2d Cir. 1921).

56. Nueva proved that it expended a significant amount of time, energy, and

resources in building the career of Espinoza. Nueva’s representative stated that it

helped him become so successful, that it was able to charge higher rates than it did

initially for his services. 1 R.R. at 12-13. Nueva took Espinoza from living in the

homes of the persons who represented him, to being a film actor and a nationally

renowned artist in the United States and Mexico capable of booking the largest event

facility in the country. Id.

57. Nueva is clearly damaged by Espinoza’s breach of the affirmative

promise to render payment under the Final Settlement Agreement. However, the

parties agreed that Nueva could protect itself by reinstating the Exclusive

Representation Agreement. 1 C.R. at 23-4. By engaging third-party representatives in

violation of the negative covenant in the Exclusive Representation Agreement,

Espinoza damages Nueva’s reputation and enriches Nueva’s competition and rivals in

both the United States and Mexico. 1 R.R. at 20-2. No amount of compensation can
32
account for the injury to Nueva, the other artists on its roster, and its relationships

with the publishers, record companies, and Entertainment Industry representatives

with whom Nueva has diligently promoted Espinoza. Id.

58. Moreover, recovery of money damages is, at best, unreliable in the

extreme. Nueva proved without contradiction that collection of Nueva’s 30%

commission from its third-party representation competitors is impossible, especially

for competitors in Mexico. 1 R.R. at 21. In the past, when Nueva has not collected

payment directly from the parties for whom Espinoza performs, Espinoza

misrepresented the value of the contract and did not pay the commission that was

due. 1 R.R. at 21-23. The fact is that that collection of the 30% from Espinoza’s

present contracts and engagement in Entertainment Industries is, for all practical

purposes, a pipe dream because of Espinoza’s fraudulent conduct. Telephone Equip.

Network, Inc. v. Westchase Place, Ltd., 80 S.W.3d 601 (Tex. App.—Houston [1st

Dist.] 2002, no pet.). More so, Espinoza’s performance in violation of the Exclusive

Representation Agreement directly damages the reputation of Nueva throughout

Mexico and the United States and money damages are not an adequate remedy for

Espinoza’s breach. Intercontinental Terminals Co., LLC v. Vopak N. Am., Inc., 354

S.W.3d 887 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

PRAYER FOR RELIEF
For the reasons set forth above, Nueva respectfully requests that this Court

reverse the trial court’s decision to deny Nueva’s request for a temporary injunction
33
and remand with instructions to the trial court to grant Nueva a temporary injunction,

preventing Espinoza, his agents, employees, servants, attorneys, and all persons in

active concert or participation with him or acting on his behalf are hereby enjoined

from:

 wrongfully agreeing to bookings for his performances without notifying

Plaintiff;

 accepting or receiving payments under the Agreement without paying the

correct commission to Plaintiff;

 interfering with the Plaintiff’s bookings and tours of the Defendant’s

performances;

 interfering with the Plaintiff’s negotiated sponsorship opportunities;

 interfering with the Plaintiff’s contract negotiations with third-parties under the

Agreement;

 attempting to wrongfully prevent Plaintiff from performing under the

Agreement;

 continuing his evasion and threats to this court’s jurisdiction by forum

shopping;

 wrongfully multiplying the proceedings with the intent to thwart this court’s

dominant jurisdiction, causing havoc and a waste of judicial resources;

 harassing and forcing the Plaintiff to the great financial burden of having to

34
 defend itself against vexatious proceedings, and the resulting disruption of the

judicial process, risking the loss of its right to proceed to trial in Harris County;

 attempting to prevent the Plaintiff from fulfilling its contractual and legal

obligations; and

 causing a miscarriage of justice.

Nueva further requests that this court grant Nueva all other relief to which it is

justly entitled.

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.

35
 CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Procedure 52.10(a), I certify that I
have notified or made a diligent effort to notify all parties by expedited means (such
as by telephone or fax) that this Brief on Accelerated Interlocutory Appeal has been
or will be filed.

By: _/s/ Yocel Alonso____________
Yocel Alonso

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all parties which are listed below on
February 26, 2015 as follows:

Via EFSP-EFM (Prodocs) System
Xavier V. Chavez, Esq.
4200 Research Forest Dr., Ste. 330
The Woodlands, Texas 77381
ATTORNEY FOR APPELLEE

By: _/s/ Yocel Alonso____________
Yocel Alonso