LIVE UPDATES: Another day in court for Double D Ranch - KLTV.com - Tyler, Longview, Jacksonville |ETX News

LIVE UPDATES: Another day in court for Double D Ranch

 

TYLER, TX (KLTV) - Hearing started at 1:35 Monday afternoon.

Now in closing arguments:

Update (2:58p.m.) DD representation says she feels she must explain to the court what TRU is asking the court to grant is a very serious thing and in order for that to be granted they must prove a couple of things.

She says they must show they're going to suffer irreparable and imminent injury. Not that TRU is going to suffer but that TRU, the plaintiff, is going to be irreparably harmed if the injunction is not granted.

 It its not restricted in the lease, it's not in there. The lease doesn't have what they want it to have in it. They're asking you to rewrite the lease for them. A word here and a word there to make the lease say what they want it to say."

 The lease allows us to be a restaurant. It said we had to be an El Chico for two years, it didn't expect us to be an El Chico until the second coming. It doesn't allow them to tell us what menu, uniforms, logo or tradename to use in the lease. If they wanted to do that then they should have written that in the lease.

It doesn't seem logical to the reasonable person that a company would invest 3/4 of a million dollars and ask for forgiveness later. It just doesn't make sense.

This lease provision doesn't require written consent. And contract law says oral consent will do.

 It didn't seem prudent to submit the plans for signage when we were undergoing a trademark issue and didn't know if the restaurant would be "DD Ranch" or "Double D Ranch."

 They want you to look at the word "indecent" in the lease. They don't want you to look at what is below it or what's above it. It's clear TRU was trying to keep a sexually-oriented business from opening nearby. And not one shred of evidence shows this is a sexually oriented business.

 Judge, clearly we we're trying to hide anything from them. The store manager testified he saw the signs go up and heard about the restaurant in the community.

Update (2:35p.m.) Toys R US (TRU) says there have been three breaches of lease and (they) have been irrefutably harmed.

TRU: "This case it not about if DD ranch belongs in Tyler Texas. This is about the breach of a commercial lease."

TRU attorney says article 41 in the lease sates every notice and approval of consent from the landlord to the tenant must be given in writing and delivered by U.S. mail. TRU says neither party has ever argued if written consent was given. Written consent was not and Jennifer Sophia denies ever giving any kind of oral consent. The only evidence the court has is the testimony of Rocky Vanover. In evaluating Mr. Vanover's credibility TRU says on June 8, 2011 Mr. Vanover sends plans to the city of Tyler that has DD in large print on every page. "By contrast, Mr. Vanover sent to TRU a much smaller set of plans without DD Ranch on every page, but actually said El Chico on one page." "So that's the type of person we're looking at," said TRU attorney Melissa Kingston.

Kingston says when you look at all of the evidence it's clear DD Ranch intended to keep the re-concept from TRU and finish the project as fast as possible.

Kingston says the lease only allows the restaurant to operate as an El Chico. She says there is a clause in the lease that allows TRU not to allow operation of a business that would hurt the shopping center. Kingston says because DD Ranch never included TRU in the re-concept process TRU was never given the opportunity to evaluate what effect the restaurant would have on the shopping center ahead of time.

Kingston says news media, blogs, social media sites and customer complaints show the harm that has been done to TRU by DD Ranch. Kingston says TRU has always fought to keep adult themed businesses and restaurants like Hooters and DD Ranch off their property when they have control. TRU thinks it is a reasonable business decision to with hold consent. "DD ranch concept is not a symbiotic business for a toy store." El Chico was a family-themed restaurant where shopper could take their kids. DD Ranch is not for kids. Kingston says Mr. Snell, DD witness and real estate attorney said so himself this is not a family-oriented business.

Plaintiff calls David Pico, Senior Vice President of Property Development for TRU Inc. by deposition.

Pico recalls an example in Lafayette where an adult book store in close location to TRU. He says TRU is suffering and they're trying to relocate the store.

Toys rep (Kingston):Do you believe any Hooters restaurants are on property owned by TRU?

Pico by deposition: No they are not.


TRU rep shows Pico a photo.

It is a photo of a pylon sign with TRU on the top and Hooters on the bottom.

TRU rep asks Mr. Pico what they did in response. Pico says they took Hooters to court and the sign was removed

Pico: We received a large amount of complaints from out customers in Tyler, Texas. 25 maybe 30.

Pico: We are very concerned. We are concerned for the community and we are concerned for the property.

Pico: This has been an overwhelming response from our guests. It has happened in the form of emails, social media, newspaper articles, TV stories.

Pico: We had a lease agreement and as landlord and owner of the property we plan to enforce that lease.

DD Rep: Are you an employee of TRU 2005 REI LLC?

Mr. Pico is unsure but believes he is a representative of TRU

DD rep goes over examples of Hooters near Toys R us:

-St. Louis

-Lubbock

-Houston (Cypress)

All ranging between 500 feet and 1200 feet apart from each other

 

DD rep: What entertainment do you believe will be going on there?

Pico: I believe the nature of the operation is to provide entertainment in the form of a waitstaff.

DD: Are they going to be semi nude?

Pico: Yes

DD: Semi nude is not defined in the lease. Do you know the definition of semi nude in Smith County?

Pico: No

DD says semi-nude is defined as showing the areola of a female breast, genitals or buttocks. DD asks Pico if these things are visible in waitstaff uniforms. Pico says no.

DD attorney addresses the approval given by a signature on an internal Toys R Us Document.

Pico: It was conditionally approved to go ahead with material alterations.

Pico says it stipulates it was a conditional approval upon seeing signage, which has not been submitted.


TRU says there have been three breaches of lease and have been irreputably harmed.

Toys: "This case it not about if DD Ranch belongs in Tyler, Texas. This is about the breach of a commercial lease."

Toys attorney says Article 41 in the lease sates for every notice and approval of consent from the landlord to the tenant must be given in writing and delivered by U.S. mail. TRU says neither party has ever argued if written consent was given. Written consent was not given and Jennifer Sophia denies ever giving any kind of oral consent. The only evidence the court has is the testimony of Rocky Vanover. In evaluating Mr. Vanover's credibility, TRU says on June 8, 2011, Mr Vanover sends plans to the City of Tyler that has Double D in large print on every page. "By contrast Mr. Vanover sent to TRU a much smaller set of plans without Double D Ranch on every page, but actually said El Chico on one page." "So that's the type of person we're looking at," said TRU attorney Melissa Kingston.

Kingston says when you look at all of the evidence it's clear Double D Ranch intended to keep the re-concept from TRU and finish the project as fast as possible.

Kingston says the lease only allows the restaurant to operate as an El Chico. She says there is a clause in the lease that allows toys r us not to allow operation of a business that would hurt the shopping center. Kingston says because DD ranch never included TRU in the re-concept process TRU was never given the opportunity to evaluate what effect the restaurant would have on the shopping center ahead of time.

Kingston says news media, blogs, social media sites and customer complaints show the harm that has been done to TRU by Double D Ranch. Kingston says TRU has always fought to keep adult themed businesses and restaurants like Hooters and Double D Ranch off their property when they have control. TRU thinks it is a reasonable business decision to with hold consent. "DD ranch concept is not a symbiotic business for a toy store" El Chico was a family themed restaurant where shopper could take their kids. Double D Ranch is not for kids. Kingston says Mr. Snell, DD witness and real estate attorney said so himself this is not a family oriented business.


 

Stay tuned for live updates throughout the afternoon.

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