Appeals court lifts Starvin Marvin's noise ordinance injunction; dissenting opinion issued

David Yates Dec. 29, 2011, 10:00am

Despite the objections of one justice, the Ninth Court of Appeals lifted an injunction against the city of Beaumont on Dec. 22, effectively reinstating a noise ordinance aimed at silencing live music at Starvin Marvin's Bar and Grill.

The appeal stems from an injunction request brought by restaurant owner Marvin Atwood against the city in March.

Court records show that on May 5, Judge Donald Floyd, 172nd District Court, granted Atwood's temporary injunction request.

Judge Floyd took his ruling a step further on May 19 when he denied the city's plea to the jurisdiction request, prompting the city to file an appeal to the Ninth Court of Appeals of Texas, court records show.

According to the Ninth Court's memorandum opinion, two of three justices found that Starvin Marvin's failed to show how enforcement of the ordinance would cause an irreparable injury to a vested property right.

"As such, we hold that the trial court did not have jurisdiction to hear Starvin Marvin's causes of action for declaratory relief or its cause for relief based on equitable estoppel," writes Justice Charles Kreger.

"Therefore, the trial court could not have reasonably concluded, based on the evidence presented in the temporary injunction hearing, that Starvin Marvin's had a probable right to the relief on its inverse condemnation claim. We vacate the judgment of the trial court granting temporary injunction, and dismiss for want of jurisdiction ..."

However, Justice David Gaultney did not agree with his peers, and issued a dissenting opinion that says Judge Floyd found other grounds for the temporary injunction, other than estoppel and the unconstitutionality of the ordinance.

"The trial court found, among other things, a 'probable, imminent, and irreparable injury' and the City's failure to follow zoning law," writes Justice Gaultney.

"But whether or not the temporary injunction should have been granted, dismissal of the declaratory judgment action in this appeal is unwarranted. The trial court has jurisdiction to resolve the dispute. I respectfully dissent."

According to the city's appellate briefs, the city argued that Judge Floyd lacks the jurisdiction to make rulings on the case since the matter belongs in a criminal court and not in a court of equity.

During an April injunction hearing, City Attorney Tyrone Cooper had argued that Judge Floyd lacked the jurisdiction to order an injunction, since Atwood was violating the recently amended public nuisance noise ordinance, which, in his opinion, makes the case a criminal matter.

The city's appeals brief also maintained that Atwood should have served notice to Texas Attorney General Greg Abott.

Atwood's attorney, David Bernsen, contends the amended noise ordinance wrongfully impacted a separate zoning law and violated his client's constitutional property rights, court papers say.

Jefferson County case No. E189-628
Ninth Court case No. 9-11-00229-CV

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