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FILED

4/17/2015 4:41:26 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Maria Abilez

NO. 2014-CI-11299
ELIA MENDOZA and ROSA
ROSALES, Individually and as
members of the League of United Latin
American Citizens (LULAC),
Plaintiffs,
V.
EDUARDO LAGUERRE,
MAGDALENA RIVERA, RALINA
CARDONA, BALDOMERO GARZA,
RAY MANCERA, AUREO
CARDONA and other un-named
Defendants, Jointly and Severally
Defendants.

IN THE DISTRICT COURT

131th JUDICIAL DISTRICT

BEXAR COUNTY, TEXAS

DEFENDANTS EDUARDO LAGUERRE, RALINA CARDONA, RAY MANCERA, AND


AUREO CARDONA MEMORANDUM OF LAW AND ARGUMENTS IN SUPPORT OF
DEFENDANTS SPECIAL APPEAREANCE, DISSOLUTION OF TEMPORARY
RESTRAINING ORDER AND RESPONSE TO NOTICE OF HEARING FOR
TEMPORARY INJUNCTIONS

TO THE HONORABLE JUDGE:


Defendants Eduardo LaGuerre, Ralina Cardona, Ray Mancera, and Aureo Cardona
(Defendants) respectfully submit the memorandum of law and arguments in Support of
Defendants Special Appearance, Dissolution of Temporary Restraining Order, and Response to a
Notice of Hearing for Temporary Injunctions.

TABLE OF CONTENTS OF THE PLAINTIFFS ARGUMENTS

I.

II.

DEFENDANTS SPECIAL APPEARANCE SHOULD BE GRANTED BECAUSE


THE DEFENDANTS DO NOT RESIDE IN TEXAS AND DO NOT HAVE
MINIMUM CONTACTS............10
A.
Defendants LaGuerre, Cardona, Cardona, and Mancera do not reside in
Bexar County, TX......10
B.

There are insufficient minimum contacts that would avail LaGuerre,


Cardona, and Cardona to Texas law......10

C.

Defendants have not availed themselves to Texas law because


Defendants attended meetings on behalf of LULAC, thus
Protecting Defendants under Texass fiduciary shield doctrine13

THE TEMPOARY RESTRAINING ORDER IS VOID BECAUSE THE


APPLICATION IS VOID, ITS VOID ON ITS FACE, ITS PLEADINGS ARE
INSUFFICIENT, IT DISRUPTS LULACS STATUS QUO, AND PLAINTIFFS
HAVE ALREADY ACKNOWLEDGED ITS DISSOLUTION.............14
A.
The TRO should be ordered dissolved because the application for the
Temporary Restraining Order is insufficient.....15
B.

The TRO itself is void on its face in violation of TRCP 680 because the
TRO does not define Plaintiffs injuries, why the injury is
irreparable why it was served without notice and there is also no
expiration date15
There is no evidence of irreparable injury.16
The Application nor the Plaintiffs explain why the TRO
was served without notice..16
The TRO does not have an expiration date in violation of
case law and statute....................................17
The Pleadings used to support the application for a TRO
are insufficient...18

C.

The TRO is destroying the fabric and status quo of LULAC by keeping
people in power that by LULAC Constitution and Bylaws, should
no longer be in power19

D.

It should be noted that Plaintiffs have already made a claim in open court
that the TRO is already dissolved..20

III.

IV.

THE TEMPORARY INJUNCTION SHOULD BE DENIED BECAUSE


PLAINTIFFS DID NOT APPEAR AT THE HEARING, PLAINTIFFS ARGUE
THERE IS ALREADY A HEARING IN PLACE WHEN PLAINTIFFS WERE
THE PARTY GIVING NOTICE OF A HEARING, AND THE DOCUMENT USED
TO PROVE THERE WAS A TEMPORARY INJUNCTION IS FLAWED.20
A.
The Temporary Injunction should be denied because the Plaintiffs
did not appear for the hearing regarding temporary injunction..20
B.

Plaintiffs make an argument that there is already a temporary


injunction in place, however, Plaintiffs were the party that requested
a hearing for temporary injunctions...21

C.

The document used by Plaintiffs to show there is a temporary


Injunction is flawed21

A WRIT OF INJUNCTION SHOULD NOT BE GRANTED BECAUSE THE


PLAINTIFFS HAVE NOT PROVEN THE SPECIFIC ELEMENTS NECESSARY
TO OBTAIN A TEMPORARY INJUNCTION AND THERE WAS NO
ATTACHED AFFADAVIT....22
A.
The Plaintiffs have not yet to provide a clear cause of action in order to
receive a temporary injunction...22
B.

Plaintiffs have not yet provided a probable right to relief sought......23

C.

There is no probable, imminent, and irreparable Injury in the


interim24

TABLE OF AUTHORITIES

CASES
American Type Culture Collection, Inc. v. Coleman,
83 S.W.3d 801, 808 (Tex.2002)11
BMC Software Belg., N.V. v. Marchand,
83 S.W.3d 789, 795 (Tex.2002)10,12

Brocail v. Anderson,
132 S.W.3d 552, 562-63 & n.5 (Hous. [14th] 2004, denied)...12
Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 204
(Tex.2002).22,24
Coastal Mar. Serv. v. City of Port Neches,
11 S.W.3d 509, 515 (Tex.App.Beaumont 2000, no pet.)...24

Davis v. Huey,
571 S.W.2d 859, 862 (Tex. 1978).19,22
DeSantis v. Wackenhut Corp.,
793 S.W.2d 670, 686 (Tex.1990)...23
Garner v. Furmanite Austl. Pty., Ltd.,
966 S.W.2d 798, 803 (Tex.App.Houston [1st Dist.] 1998, pet. denied)13
Harbor Perfusion, Inc. v. Floyd,
45 S.W.3d 713, 716 (Tex.App.Corpus Christi 2001, nopet.)24
In re Newton,
146 S.W.3d 648, 651 (Tex. 2004)..19
In re Office of Attorney General,
257 S.W.3d 695, 697 (Tex. 2008).....14
In re Spartan Consulting & Safety, L.L.C.,
No. 11-13-00272-CV, 2013 WL 5522299, at *1
(Tex. App.Eastland Oct. 3, 2013, orig. proceeding)..17
Jones v. Jefferson Cty.,
15 S.W.3d 206, 213 (Tex.App.Texarkana 2000, pet. denied)...24

Moki Mac River Expeditions v. Drugg,


221 S.W.3d 569, 575-76 (Tex.2007).11
Moncrief Oil Intl v. OAO Gazprom,
414 S.W.3d 142, 152 (Tex.2013).11,9

Nichols v. Tseng Hsiang Lin,


282 S.W.3d 743, 750 (Tex.App.Dallas 2009, no pet.)..13
PHC-Minden, L.P. v. Kimberly-Clark Corp.,
235 S.W.3d 163, 169 (Tex.2007)..12

Qwest Comms. V. AT&T Corp.,


24 S.W.3d 334, 337 (Tex. 2000)..14
Sharp v. Brock,
626 S.W.2d 166, 168 (Tex.App.Fort Worth 1981, no writ).20
Siskind, 642 S.W.2d at 438; Stull v. LaPlant,
411 S.W.3d 129, 134 (Tex.App.Dallas 2013, no pet.)..13
Sun Oil Co. v. Whitaker,
424 S.W.2d 216, 218(Tex.1968)23
Texas State Bd. Of Medical Examrs v. McKinney,
315 S.W.2d 387, 390 (Tex. App.Waco 1958, no writ)......15
T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc.,
965 S.W.2d 18, 21 (Tex. App.Houston [1st Dist.] 1998, pet. dismd)..19
Town of Palm Valley v. Johnson,
87 S.W.3d 110, 111 (Tex.2001).24
Transport Co. v. Robertson Transps.,
261 S.W.2d 549, 552 (Tex.1953)24

Valenzuela v. Aquino,
853 S.W.2d 512, 513 (Tex.1993).......22
Wright v. Sport Sup.,
137 S.W.3d 289, 294 (Tex.App.Beaumont 2004, no pet.)....16
STATUTES/RULES

TEX. R. CIV. P. 71..21


5

TEX. R. CIV. P.
120A3.....13
TEX. R. CIV. P.
680....14,15,17,20
BEX. LOC. R. PT. 3 RULE 6(C)17

CONSTITUTIONS
LULAC CONST. ART. 8 SEC.
6(C)....16,19

PRELIMINARY STATEMENTS
The Plaintiffs, through four attempts to get their story straight, have presented the Court
extraordinary accusations and baseless causes of actions in an attempt to cover the fact that after
four tries, Plaintiffs have yet to address any of the issues before the court and provide any
meaningful case law to back up their complaints. Plaintiffs have challenged Defendants Special
Appearance Motion, yet cannot explain how meeting in San Antonio one time, at the request of
the Plaintiffs attorney, avails them to a San Antonio courtroom. Plaintiffs do not want an order
signed that dissolves the current TRO, however, Plaintiffs have yet to explain how they will suffer
imminent harm, or if they will suffer any harm at all. Plaintiffs, in a last ditch attempt to not have
the injunctions dissolved, have somehow argued that there is now a temporary injunction in place.
This argument was made after the fact that Plaintiffs gave notice of a hearing for temporary
injunctions, of which they decided not to proceed on the temporary injunctions hearings.
Defendants stated they were ready to proceed on arguing on the temporary injunctions on April
13, 2015.
This memorandum will attempt to provide the Court will facts and relevant case law that
will set out Defendants arguments regarding Special Appearance, Dissolution of the Temporary
Restraining Order, and Defendants Response to the Notice of hearing for temporary injunction.
First, Defendants will show that they do not reside in Texas, they do not have any minimum
contacts in Texas, and any attempt at imposing personal jurisdiction over Defendants will offend
traditional notions of fair play and substantial justice.
Secondly, Defendants will provide facts and case law to show that the TRO, from its initial
request, is flawed. The application for the TRO was flawed as was the original petition. The TRO

itself, is also flawed and violates the strict requirements of Rule 680 of the Texas Rules of Civil
Procedure.
Lastly, Defendants will show that there is no current temporary injunction and the
Temporary Injunction motioned for by the Plaintiffs should be denied because the Plaintiffs have
yet to satisfy the three elements necessary to obtain a temporary injunction. Furthermore, Plaintiffs
were not ready to proceed on the temporary injunctions hearing, a hearing of which the Plaintiffs
requested, and of which Defendants were prepared to argue their case.
STATEMENT OF FACTS AND BACKGROUND
A.

The LULAC National Election


On July 12, 2014 LULAC National Elections were held in New York City, New York.

Eduardo LaGuerre applied and was granted a TRO in New York in order to prevent certain
LULAC members from using election rules 12 and 21 in the July 12, 2014 election. Margaret
Moran, Luis Vera, and Luis Escobar cancelled the election under the guise of interpreting the TRO.
The Constitution clearly states that the National Assembly, the group in attendance at the election,
is the supreme authority of LULAC, and while most Moran and Vera supporters left, there was
still enough of the National Assembly to form a quorum. Using the LULAC Constitution and
supplemented by Roberts Rules of Order, a valid election took place on the same day. Many of
the Defendants were elected.
B.

The San Antonio TRO


At 4:02pm on July 18, 2014, Plaintiffs filed an application for a TRO in the Bexar County

District Clerks office. At 4:07, five minutes after the application had been filed, Plaintiffs filed
the Original Petition. The case was assigned to the 131th Judicial District Court of Bexar County.
Plaintiffs secured a hearing and an order on their TRO filed without notice. Plaintiffs were well

aware that Defendants are represented by counsel. However, Plaintiffs failed to call or inform
opposing counsel of the hearing on the TRO, or the location of the hearing. The Court signed
Plaintiffs ex parte TRO at 4:27 p.m.
By obtaining an Ex Parte TRO, Plaintiffs have succeeded in obtaining an order that
purports to immediately desist and refrain from acting as officers or agents of LULAC for which
you believe you were elected on July 12, 2014. Defendants are ordered to abide by LULACs
Constitution, By-Laws and Protocol, specifically Article VIII, Section 6 paragraph b. All national
officers holding office prior to July 12, 2014 will remain status quo pursuant to the LULAC
Constitution until further Order from the Court.1
Defendants are prohibited from conducting LULAC business and performing their duties
as elected LULAC officers for as long as the TRO remains in effect. Not only did Plaintiffs make
material misrepresentations to the Court to obtain the TRO, without notice, but Plaintiffs TRO
signed by the Court is void due to the fact that it does not meet the criteria outlined in Rule 680 of
the Texas Rules of Civil Procedure.
C.

Represented Parties
Elia Mendoza and Rosa Rosales, represented by Luis Vera, are residents of San Antonio,

Texas.
Eduardo LaGuerre, Ralina Cardona, Ray Mancera, and Aureo Cardona are represented by
Baldomero Garza III. Eduardo LaGuerre is a resident of Yompers, New York. Ralina Cardona is

Based on the stated language of the TRO, Defendants believe and argue that the language supports Defendants
belief that there was a validly held election. The phrase desist and refrain from acting as officers leads
Defendants to believe that the Court recognizes that there was a validly held LULAC election on July 12, 2014 and
officers were elected, however, the newly elected officers cannot act on behalf of LULAC until further order from
the Court.

a resident of Mott Haven, New York. Ray Mancera, is a resident of El Paso, Texas. Aureo
Cardona resides in Mott Haven, New York.
Magdalena (Maggie) Rivera and Baldomero Garza III are represented by Justin Coquat
of the Coquat Law Firm. Maggie Rivera resides in Crystal Lake, Illinois while Baldomero Garza
is a resident of Katy, Texas.
ARGUMENTS
I.

DEFENDANTS SPECIAL APPEARANCE SHOULD BE GRANTED BECAUSE


THE DEFENDANTS DO NOT RESIDE IN TEXAS AND DO NOT HAVE
MINIMUM CONTACTS.

A.

Defendants LaGuerre, Cardona, Cardona, and Mancera do not reside in Bexar County,
Texas.
As stated earlier, none of the Defendants live in Bexar County, Texas. Eduardo LaGuerre,

Ralina Cardona and Aureo Cardona reside in New York State. Ray Mancera resides in El Paso,
Texas which is over 550 miles away. However, it must be noted that the two Plaintiffs, Mendoza
and Rosales and their Counsel, Luis Vera, all reside in Bexar County, Texas. This would lead a
reasonable person to wonder why Plaintiffs would file a TRO/Original Complaint in Bexar
County, Texas when Plaintiffs raise a cause of action that occurred in New York City and include
defendants that do not live anywhere near Bexar County, Texas.
B.

There are insufficient minimum contacts that would avail LaGuerre, Cardona and
Cardona to Texas law.
To negate minimum contacts, defendants must prove that they did not have enough

contacts with Texas to justify a Texas courts claim of personal jurisdiction over it. See BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). To prove it had no minimum

contacts with Texas, the defendant must show that it did not purposefully avail itself of the
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privilege of conducting activities within Texas and any contacts it may have had with Texas do
not give rise to specific or general jurisdiction. See Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 575-76 (Tex.2007).
The purposeful-availment analysis seeks to determine whether a nonresidents conduct and
connection to Texas are such that it could reasonably anticipate being brought into court there. See
Moncrief Oil Intl v. OAO Gazprom, 414 S.W.3d 142, 152 (Tex.2013). In the purposeful-availment

analysis, (1) only the defendants contacts with Texas are considered, (2) the defendants acts must
have been purposeful rather than random, fortuitous, or attenuated, and (3) the defendant must
have sought some benefit, advantage, or profit by availing itself of the jurisdiction. Moncrief,
S.W.3d at 151; See also American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 808
(Tex.2002) (nonresident D can avoid states jurisdiction by purposefully structuring transactions to avoid
benefits and protections of states laws).

Based on Texas Case law, Defendants have not availed themselves to Texas laws because
they have not used Texas law to profit or used Texas law for a purposeful action. Defendants, did
not seek to reap benefits of Texas nor did they seek protection. They simply met in Texas.2
Furthermore, the three meetings did not give rise to specific nor general jurisdiction. To
negate specific jurisdiction, Defendants should plead and prove that the plaintiffs cause of action
did not arise from or relate to Defendants contacts with Texas. See Moncrief Oil, 414 S.W.3d at
156. The events that led to the cause of action, tortious interference with national elections3, took

It should be noted that in the Fourth Amended Complaint, Plaintiffs stated that the Defendants met only three
times in Texas. They met once in San Antonio, once in El Paso, and once in Houston in what can be assumed would
be in the course of one year between elections. So in essence, Plaintiff is making a claim that minimum contacts
could be assumed because Defendants met three times in the span of 365 days.
3
In the Fourth Amended Complaint, Plaintiffs argue that there was a Tortious Interference with National Elections,
yet provide the elements for a Tortious interference with a Contract.

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place in New York City, New York. See Brocail v. Anderson, 132 S.W.3d 552, 562-63 & n.5
(Hous. [14th] 2004, denied) (insufficient contacts where a surgery was performed in Michigan and
follow up care was in Texas).
In order to prove general jurisdiction (which has a higher threshold) Defendants must show
that they did not have continuous or systematic contacts with Texas. See BMC Software, 83 S.W.3d
at 797. Thus, the general-jurisdiction analysis should focus on the defendants contacts with
Texas, rather than on the incident that is the basis of the suit. See PHC-Minden, L.P. v. KimberlyClark Corp., 235 S.W.3d 163, 169 (Tex.2007). Again, Plaintiffs, in the Fourth Amended Complaint,

have already stated that the Defendants do not live in Bexar County. Furthermore, Plaintiffs have
only stated that there has been three meetings in Texas. That is extremely insufficient to prove
general jurisdiction.
Plaintiffs, in their Plaintiffs Memorandum of Law and Arguments to Defendants Motion
to Dismiss, Special Appearance, and Motion to Dissolve Temporary Restraining Order (Memo)
served to Defendants in court on April 13, 2015 made three arguments to deny Special Appearance.
Plaintiffs claim that part of the conspiracy occurred in San Antonio, Plaintiffs established
sufficient facts, and because Defendants did not deny minimum contacts requirement regarding
personal jurisdiction in their Special Appearance. See Memo at p. 3. Plaintiffs believe this kills
Special Appearance because Defendant did not object to themselves being amenable to process
issued by the state. Id.
Plaintiffs are at best mistaken, and at worst, are trying to misinform the Court. In
Defendants[sic] Eduardo LaGuerre, Ralina Cardona, and Ray Mancera Special Appearance

12

Challenging Personal Jurisdiction (Special Appearance Motion)4 Defendants specifically deny


minimum contacts. Specifically on page 2, Section 3, paragraph 8, Defendants deny that Texas
Courts have jurisdiction over the Defendants because Defendants did not purposefully establish
minimum contacts with Texas. The rest of section 3 of the Special Appearance Motion discusses
Defendants arguments regarding personal jurisdiction.

Making this statement satisfies the

requirements for Rule 120a3 which states that the [C]ourt shall determine the special appearance
on the basis of the pleadings... TEX. R. CIV. P. 120A3. Therefore, Defendants have plead that
there are no minimum contacts as early as November 19, 2014 so there is no excuse as to why
Plaintiffs want to tell the Court that a denial of minimum contacts have never been pled.
C.

Defendants have not availed themselves to Texas law because Defendants


attended meetings on behalf of LULAC, thus protecting Defendants under
Texass fiduciary shield doctrine.
In reference to the San Antonio meeting Plaintiffs claim gives the Court specific

jurisdiction, Plaintiffs fail to point out that all the Defendants were there as part of LULAC. A
corporations contacts usually cannot be attributed to its employees. Nichols v. Tseng Hsiang Lin,
282 S.W.3d 743, 750 (Tex.App.Dallas 2009, no pet.). Under the fiduciary-shield doctrine, a
court cannot exercise jurisdiction over a nonresident corporate officer or employee if the only
contacts with Texas are those the defendant made on the employers behalf. See Garner v.
Furmanite Austl. Pty., Ltd., 966 S.W.2d 798, 803 (Tex.App.Houston [1st Dist.] 1998, pet.
denied); See also Siskind, 642 S.W.2d at 438; Stull v. LaPlant, 411 S.W.3d 129, 134 (Tex.App.
Dallas 2013, no pet.).

Filed with the Bexar County District Clerk on November 19, 2014.

13

First off, Defendants LaGuerre and Mancera never attended any meetings in San
Antonio, Texas. Secondly, Defendants, Ralina and Aureo Cardona went to San Antonio on behalf
of LULAC when Luis Vera5 called a meeting to discuss the upcoming election. Therefore, there
is no evidence showing Defendants LaGuerre and Mancera in San Antonio when this supposed
meeting occurred and Defendants Ralina and Aureo Cardona were there to discuss LULAC
business. Therefore based on Texas Corporations law, because Defendants Ralina and Aureo were
in San Antonio on behalf of LULAC, the Bexar County courts cannot exercise jurisdiction over
the Defendants.
II.

THE TEMPORARY RESTRAINING ORDER IS VOID BECAUSE THE


APPLICATION IS VOID, ITS VOID ON ITS FACE, ITS PLEADINGS ARE
INSUFFICIENT, IT DISRUPTS LULACS STATUS QUO, AND PLAINTIFFS
HAVE ALREADY ACKNOWLEDGED ITS DISSOLUTION.
When a court has improperly granted a TRO, the proper remedy is to dissolve the TRO.

See TEX. R. CIV. P. 680; See also Qwest Comms. V. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000).
Temporary Restraining Orders that do not satisfy rule 680s requirements are void. In re Office of
Attorney General, 257 S.W.3d 695, 697 (Tex. 2008). Rule 680 of the Texas Rules of Civil
Procedure States:
Every temporary restraining order granted without notice shall be
endorsed with the date and hour of issuance; shall be filed forthwith in the clerks
office and entered of record; shall define the injury and state why it is irreparable
and why the order was granted without notice; and shall expire by its terms within
such time after signing, not to exceed fourteen days . . .

Luis Vera is the current Counsel for Plaintiffs in this case.

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A.

The TRO should be ordered dissolved because the application for the Temporary
Restraining Order is Insufficient.
The TRO application itself is insufficient to be granted a TRO. The application for a TRO

must identify one or more grounds for an injunction and must plead the prerequisites for injunctive
relief. See Texas State Bd. Of Medical Examrs v. McKinney, 315 S.W.2d 387, 390 (Tex. App.
Waco 1958, no writ). The rule states specifically that the application itself must identify the
grounds for an injunction. Plaintiffs, in their application, states that it is adopting what is written
on a secondary document, in violation of the rule. The application does not offer facts, or grounds,
or reasons why there is imminent or irreparable harm.
Even if, in arguendo, the Court allows the Plaintiffs to adopt a separate document for the
TRO application, the application is still void because the Plaintiffs adopted a document that, at the
time of the Applications filing, did not exist. The application specifically states The Plaintiffs
herein adopt all the original complaint as it fully set out herein and request a Temporary
Restraining Order The application for the TRO was filed at 4:02p.m. on July 18, 2014. At the
time the application was filed, there was no such thing as an original complaint filed with the
Court. The Original Complaint was filed on July 18, 2014 at 4:07p.m., a full five minutes after
the application was filed. There was no original complaint set out at 4:02p.m. so, in essence, the
Plaintiffs adopted nothing, thus making the application void.
B.

The TRO itself is void on its face in violation of TRCP 680 because the TRO does not
define Plaintiffs injuries, why the injury is irreparable, why it was served without notice
and there is also no expiration date.
TRCP Rule 680 expressly defines that if the TRO is granted, the trial court must define

the injury and state why it is irreparable. Tex. R. Civ. P. 680. The Plaintiffs Fourth Amended
Complaint gives a litany of statutes and constitutional provisions, yet, provides no factual evidence

15

as to why the injury is irreparable. Furthermore, Plaintiffs never explain, not in any complaint or
motion, why Plaintiffs Mendoza and Rosales are injured.
There is no evidence of irreparable injury.
An injury is irreparable if the injured party cannot be adequately compensated in damages
or if the damages cannot be measured by any certain pecuniary standard. Wright v. Sport Sup.,
137 S.W.3d 289, 294 (Tex.App.Beaumont 2004, no pet.) (irreparable injury because Ps
damages were not presently ascertainable or easily calculated). This reasoning behind the Wright
decision can be used in this particular case. First, Plaintiffs argue that they spent a good deal of
money going to New York City to vote and because they didnt vote they should get the money
back. See Fourth Amended Complaint p. 13. If that argument is to be believed, the amount lost
can be easily calculated by receipts and if the Court decides the Plaintiffs should receive
reimbursement, the receipts would be used to calculate the damages. That would be the definition
of easily calculated.
Secondly, Plaintiffs do not provide a situation where they would be harmed. Both Plaintiffs
have exhausted their four year commitments to LULAC. See LULAC CONST. ART. 8 SEC. 6(C).
Both Plaintiffs cannot run for the same office after July 12, 2014. Id. Therefore, even if the present
situation had or had not occurred, both plaintiffs would not hold office after July 12, 2014 and
therefore would have suffered no injury. Therefore, there could be no irreparable harm because
there is no injury.
The Application nor the Plaintiffs explain why the TRO was served without notice.
Plaintiffs have also not explained how or why they violated local Bexar County rules by
not giving Defendants notice of the TRO. Bexar County Civil District Court Local Rules Part 3,
16

Rule 6 states that on Ex Parte requests, the requesting attorney must state that (1) to the best of his
knowledge the respondent is not represented by Counsel (2) he has tried and has been unable to
contact opposing counsel about the application (3) opposing counsel has been notified of the
application and does not wish to be heard or (4) notifying the Respondent or his counsel would
cause irreparable harm to the movement. BEX. LOC. R.

PT.

3 RULE 6(C). When relying on

subsection 2, the applicant should describe with reasonable particularity the unsuccessful efforts
to contact opposing counsel. Id. at Comm. to Rule 6.
Plaintiffs have made it a point to discuss the current case taking place in the Southern
District of New York. The Plaintiffs claim that it is almost exact as the current case in San
Antonio.6 The case in New York was filed prior to the San Antonio case. So, it would be
impossible for Plaintiffs to explain, then, how they did not know the Defendants were already
currently represented by Counsel. Furthermore, as explained in a prior paragraph, Plaintiff has not
demonstrated any irreparable harm. The money they claim they lost can be easily calculated and
Plaintiffs have already exhausted their four year commitments. Therefore, Plaintiffs argument that
serving notice to Defendants would cause irreparable harm does not hold water.
The TRO does not have an expiration date in violation of case law and statute.
Lastly, the order does not have an expiration date which makes the TRO void as a matter
of law. A TRO must expressly state the date it expires or the order is void. See In re Spartan
Consulting & Safety, L.L.C., No. 11-13-00272-CV, 2013 WL 5522299, at *1 (Tex. App.
Eastland Oct. 3, 2013, orig. proceeding); TEX. R. CIV. P. 680. The TRO granted does not expressly

Defendants do not agree that the current case in Bexar County is similar to the one in the Southern District of
New York. Defendants are using this case for the sole purpose to show that the Defendants in the Bexar County
case had representation which the Plaintiffs were aware of.

17

state an expiration date which violates Rule 680, Texas Case law, and ultimately makes the TRO
void.
The pleadings used to support the Application for a TRO are insufficient.7
The Application for the TRO, which states that it adopts the Original Petition, was filed at
4:02pm on July 18, 2014. The Original Petition did not exist at 4:02pm and was filed a full five
minutes later at 4:07pm. Therefore the Application, in essence, adopted nothing. However, if the
Court concludes that the adoption is allowable, the pleadings that Plaintiffs presented to support
the TRO all also insufficient and therefore still void the TRO. Plaintiffs Petition for TRO
(Petition) fails to state factual evidence to support any of their allegations. Plaintiffs merely state
that they have suffered deprivations of their constitutional rights and the LULAC Constitution.
However, these statements are not factual. Instead, they are merely conclusory. The Plaintiffs then
move on to argue that they are likely to suffer imminent and irreparable injury, yet provide no
proof as to how this will occur.
The Application and pleadings used to obtain the TRO are insufficient in regards to Texas
Case law and the Texas Rules of Civil Procedure. The face of the TRO is also insufficient, and
Plaintiffs, all whom reside in San Antonio with representation from San Antonio, blatantly violated
local Bexar County rules to skirt their responsibilities with regards to giving notice to the TRO.
This has put a tremendous strain on LULAC as a whole.

C.

The TRO is destroying the fabric and status quo of LULAC by keeping people in power
that by LULAC Constitution and Bylaws, should no longer be in power.

Defendants still are making the argument that there was no petition to support the TRO because the Application
was filed a full five minutes before the original petition.

18

Aside from the insufficient application and pleadings, the voidable TRO with the
insufficient notice, the TRO itself is disrupting the status quo of LULAC. The sole issue before a
trial court in a temporary restraining order and injunction hearing is whether the applicant may
preserve the status quo, pending trial on the merits. See In re Newton, 146 S.W.3d 648, 651 (Tex.
2004); See also Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); See also T-N-T Motorsports,
Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 21 (Tex. App.Houston [1st Dist.] 1998,
pet. dismd).
The majority of Defendants were elected by majority vote at a validly held LULAC
National Election held on July 12, 2014 in New York City, New York. The implementation of the
TRO at this time disrupts the status quo of LULAC leadership and its programs. In arguendo,
even if the election did not take place, Plaintiffs have exhausted their four year terms after July 12,
2014. As a result, they are currently in violation of Article VIII, Section 6, Paragraph C of the
LULAC Constitution.
Therefore, Plaintiffs are not preserving the status quo, but they are essentially in gross
violation of the LULAC Constitution. See LULAC CONST. ART. VIII, SEC. 6, PARA. C (Any move
to draft or otherwise impose on the League a person who has exhausted his eligibility to hold the
same office for more than the stipulated term shall be deemed a gross violation of the
Constitution).8

D.

It should be noted that Plaintiffs have already made a claim in open court that the TRO
is already dissolved.

It should also be noted that the Plaintiffs have already acknowledged that the TRO is dissolved. Plaintiffs
acknowledged the dissolved TRO at the April 13, 2014 hearing at the 131 District Court in Bexar County, Texas.

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Although Defendants have argued the insufficiencies regarding the application and the face
of the TRO, it should not be forgotten that Plaintiffs have already stated in open court that the TRO
is already dissolved. The statements made by Plaintiffs Counsel on April 13, 2015 at the 131
Bexar County District Court show that the Plaintiffs argued that there is no longer a TRO.9
Therefore, Defendants request that the Court sign the order dissolving the TRO as, in essence, the
dissolution of the TRO has already been agreed to by the Plaintiffs.
III.

THE TEMPORARY INJUNCTION SHOULD BE DENIED BECAUSE


PLAINTIFFS DID NOT APPEAR AT THE HEARING, PLAINTIFFS ARGUED
THERE IS ALREADY A INJUCTION IN PLACE WHEN PLAINTIFFS WERE
THE PARTY GIVING NOTICE OF A HEARING, AND THE DOCUMENT USED
TO
PROVE THERE WAS A TEMPORARY INJUNCTION IS FLAWED.

A.

The temporary injunction should be denied because the Plaintiffs did not appear for
the hearing regarding temporary injunction.
If the petitioner does not appear for the hearing on the temporary injunction, any TRO

granted earlier will be dissolved, and the injunction will be denied. TEX. R. CIV. P. 680; See Sharp
v. Brock, 626 S.W.2d 166, 168 (Tex.App.Fort Worth 1981, no writ). Plaintiffs requested and
sent Defendants notice of hearing regarding temporary injunction that was signed by the Honorable
John D. Gabriel and set for hearing on April 13, 2015. At the April 13, 2015 hearing, Defendants
appeared and stated to the Court they were prepared for arguments. Plaintiffs, on the other hand,
argued there was already a temporary injunction in place and began arguing there was already a
temporary injunction in place. In essence, Plaintiffs never appeared for a hearing on the
temporary injunction, a hearing Plaintiffs requested. Therefore, because the Plaintiffs did not
attempt to argue, or appear for a hearing they requested, the TRO should be dissolved and the
injunction denied.

As of the date of this memo, there has been no transcript of the April 13, 2015 hearing provided in order to cite
the statements to Plaintiffs counsel.

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B.

Plaintiffs make an argument that there is already a temporary injunction in place,


however, Plaintiffs were the party that requested a hearing for temporary injunctions.
On April 8, 2015, Plaintiffs requested and were granted a hearing for a temporary

injunction, signed by the Court, and set for a hearing on April 13, 2015. See Exhibit A. Defendants
were served notice on April 8, 2015. However, at the April 13, 2015 hearing, Plaintiff did not
appear for the temporary injunction hearing and began to argue that there was already a
temporary injunction in place. This perplexes the Defendants. Defendants do not understand why
Plaintiffs would request a hearing for temporary injunctions against Defendants, yet would then
disregard a hearing for temporary injunctions and argue that there is already a temporary injunction
in place. A reasonable person may infer this was done to confuse Plaintiffs and the Court and
artificially keep the temporary injunction alive with no relevant case law or statute to support
Plaintiffs.
C.

The Document used by Plaintiffs to show there is a temporary injunction is flawed.


Plaintiffs use a July 31, 2014 agreed order to extend temporary injunction to prove to the

Court that there is already a temporary injunction in place. However, the title of the Motion is
Extension of ExParte Temporary Restraining Order which sought to extend the TRO. See
Exhibit B. However, the agreed order states that it is an Agreed Order to Extend Temporary
Injunction. See Exhibit C. However, yet again, the body of the Agreed Order to Extend
Temporary Injunction states that Larry Holl signed a (sic) extension of Ex Parte Temporary
Restraining Order. See Exhibit C. According to TRCP 71, if the party makes an error in the
caption of the pleading, the court will treat the pleading as if it had been properly named. TEX. R.
CIV. P. 71. The order was attached to an Extension of ExParte Temporary Restraining Order
and the body of the agreed order states that the order is for an extension of the temporary restraining
order. Therefore based on the motion and the body of the order, it can be easily inferred that the
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title of the agreed order is incorrect. It should be changed to Agreed Order to Extend Temporary
Restraining Order not Agreed Order to Extend Temporary Injunction. Therefore, according to
Texas Rules of Civil Procedure, the Court must treat this document as an agreed order to extend
the temporary restraining order.
IV.

A WRIT OF INJUNCTION SHOULD NOT BE GRANTED BECAUSE THE


PLAINTIFFS HAVE NOT PROVEN THE SPECIFIC ELEMENTS NECESSARY
TO OBTAIN A TEMPORARY INJUNCTION AND THERE WAS NO ATTACHED
AFFIDAVIT.

To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1)
a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex.2002). At a hearing upon the request for a temporary injunction the only question before the
trial court is whether the applicant is entitled to preservation of the status quo of the subject matter
of the suit pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978).
A.

The Plaintiffs have yet to provide a clear cause of action in order to receive a temporary
injunction.
The applicant must plead a cause of action and if an action is not recognized in Texas, the

trial court cannot grant the injunction. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex.2002); See also Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993).
The Fourth Amended Complaint, Plaintiffs continue to attempt to put together a coherent
cause of action. Namely, the title of the cause of action is Tortious Interference with National
Elections. FOURTH AMEND. COMP. P. 9. Yet, later on Plaintiffs argue that it is a tortious
interference with a contract. Id. at p. 10. Tortious Interference with National Elections is not a
cause of action in Texas.

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Plaintiffs, under the title of Tortious Interference with a National Election begin to argue
of a supposed contractual relationship with LULAC or an agreement with LULAC. Id. at p. 10.
At this point, Defendants are more confused as ever as to what is being argued. Plaintiffs have yet
to argue that the membership agreement is a contract between LULAC and the member. Plaintiffs
have not provided a rule to what a contract is or even attempt to prove the elements of a valid
contract. Their argument regarding a contractual relationship is not statute based nor is it based
on any applicable Texas case law. In essence, Plaintiffs are asking the Court to please believe
their unsupported argument.
B.

Plaintiffs have not provided a probable right to relief sought.


The applicant must show it has a probable right to relief and will likely succeed on the

merits of the lawsuit. See Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); DeSantis v.
Wackenhut Corp., 793 S.W.2d 670, 686 (Tex.1990). Plaintiffs do not have a right to relief
sought. Based on the Fourth Amended Complaint, Plaintiffs want monetary damages because
they claim the LULAC national elections were cancelled. FOURTH AMEND. COMP. P. 13.
Nowhere in the LULAC Constitution/By-laws or any agreements does it state that members of
LULAC are entitled to money or reimbursement if there is no election held. Also, nowhere in
the Fourth Amended complaint does it describe any injuries suffered. Plaintiffs refer to the
national elections, yet do not state that they were specifically harmed or any relief they are
seeking other than the reimbursement because they could not vote.
It should also be noted that in both the Fourth Amended Complaint (filed February 11,
2015), the Plaintiffs Memorandum of Law and Arguments (filed April 13, 2015), and the
Memorandum of Facts and Law (filed August 15, 2014), Plaintiffs cite to only one Texas case in

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order to support all their arguments regarding the temporary injunction.10 The rest are vague
references to the LULAC Constitution and Federal Case law in regards to a case that is not being
argued in Bexar County, or Texas for that matter.
C.

There is no probable, imminent, and irreparable injury in the interim.


The applicant must plead it will suffer a probable injury, See Butnaru v. Ford Motor Co.,

84 S.W.3d 198, 204 (Tex.2002). Probable injury requires a showing that the harm is imminent,
the injury would be irreparable, and the applicant has no other adequate legal remedy. Harbor
Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.App.Corpus Christi 2001, no pet.). An
applicants fear or apprehension of the possibility of injury is not sufficient; the applicant must
prove the respondent has attempted or intends to harm the applicant. Jones v. Jefferson Cty., 15
S.W.3d 206, 213 (Tex.App.Texarkana 2000, pet. denied). The applicant must plead that, if the
injunction is not issued, the harm that will occur is irreparable. Town of Palm Valley v. Johnson,
87 S.W.3d 110, 111 (Tex.2001). The only issue presented at the temporary injunction hearing is the
need for immediate relief pending the trial on the merits. Transport Co. v. Robertson Transps., 261 S.W.2d
549, 552 (Tex.1953); Coastal Mar. Serv. v. City of Port Neches, 11 S.W.3d 509, 515 (Tex.App.Beaumont
2000, no pet.).

Plaintiffs have only alleged that they suffered economic harm.

Response p. 11-13.

Plaintiffs have already suffered harm. The Plaintiffs have claimed that they spent money to come
to the election which means that they spent the money they are seeking reimbursement for in July

10

The sole rule appears in the Plaintiffs Memorandum of Law and Arguments on p. 4 which sets out the elements
necessary to obtain a temporary injunction in Texas. There are no applicable case law in the Fourth Original
Petition. The Memorandum of Facts and Law has two Texas cases but those cases only discuss the issues before
the Court and the Plaintiffs burden of proof. The rest of the case law cited is all federal courts cases in reference
to a case that is not being argued before this Court.

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of 2014. They cannot re-lose any money and if the TRO is lifted and the temporary injunction is
not approved the Plaintiffs will not lose more money.
Furthermore, what probable harm will Plaintiffs receive if the TRO is dissolved and
temporary injunction is not granted. Nowhere in the Plaintiffs motions and complaints do they
state what will specifically happen to them if the temporary injunction is not granted. They offer
no facts to support that they will suffer probable and irreparable injury if the temporary injunction
is not granted. Plaintiffs have not even described a potential apprehension or even a possibility of
injury. Therefore the Plaintiffs have already lost money and have not provided any facts to support
a probable and irreparable injury. Because of these reasons, Plaintiffs have not adequately
provided enough facts, law or evidence to support granting a temporary injunction, and in turn the
Court should not grant a temporary injunction.
CONCLUSION
Plaintiffs have had four opportunities and a plethora of motions to make a competent
argument as to why Defendants should not be victorious in their Special Appearance, why the
TRO shouldnt be dissolved, and why the need a temporary injunction. However, within these
opportunities, Plaintiffs have provided little evidence, statutes, and case law to back up their
allegations. Furthermore, Plaintiffs have already stated in open court that the TRO should and
already is dissolved. Therefore, based on the responses, motions, and memorandums provided by
Defendants, Defendants respectfully request the Court to grant the Defendants Special
Appearance, dissolve the TRO, and not grant the motion for a temporary injunction. The orders
for all our requests have been provided at the April 13, 2015 hearing.

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Respectfully submitted,
By: /s/Baldomero Garza III
Baldomero Garza III
Texas Bar No. 24050645
Email: baldogarza@yahoo.com
6065 Hillcroft Street, Suite 616
Houston, TX 77081
Tel. (713) 778-1663
Fax. (888) 812-8186
Attorney for Defendants
Eduardo LaGuerre, Ralina Cardona, Ray Mancera
Aureo Cardona

CERTIFICATE OF SERVICE
I certify that on April 17, 2015 a true and correct copy of DEFENDANTS EDUARDO
LAGUERRE, RALINA CARDONA, RAY MANCERA, AND AUREO CARDONA
MEMORANDUM OF LAW AND ARGUMENTS IN SUPPORT OF DEFENDANTS SPECIAL
APPEAREANCE, DISSOLUTION OF TEMPORARY RESTRAINING ORDER AND
RESPONSE TO A HEARING FOR TEMPORARY INJUNCTIONS was served by fax on Luis
Roberto Vera, Jr. at 210-225-2060.
/s/Baldomero Garza III
Baldomero Garza III

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