Filed: 4/7/2014 11:10:58 PM Andrea S. Thompson District Clerk Collin County, Texas By Deborah Hill Deputy CAUSE NO. 429-04998-2013-00

IN THE MATTER OF § IN THE DISTRICT COURT § DAVID R. SCHNEIDER, § § Plaintiff, § OF COLLIN COUNTY, TEXAS § vs. § § JUDITH D. GOTHELF, MARK B. GOTHELF, § 429th JUDICIAL DISTRICT AND CONGREGATION TORAS CHAIM, § INC. § § Defendants, § § and § § HIGHLANDS OF McKAMY IV and § V COMMUNITY IMPROVEMENT § ASSOCIATION, § § Intervening Plaintiff, § § vs. § § JUDITH D. GOTHELF and § MARK B GOTHELF, § § Defendants. §

DEFENDANTS’ OPPOSITION TO INTERVENOR HIGHLANDS OF McKAMY IV AND V COMMUNITY IMPROVEMENT ASSOCIATION’S REQUEST FOR A TEMPORARY INJUNCTION Without any supporting briefing, Intervenor Highlands of McKamy IV and V

Community Improvement Association (“Intervenor” or “HOA”) asks this Court for a temporary injunction that would effectively end community religious practice for approximately 30 families of Orthodox Jews in far North Dallas. Since February 2011, with the HOA’s knowledge, the prayer and study activities of the Congregation Toras Chaim (the “Congregation”)1 have taken place primarily at two homes in the housing development over which the HOA has authority: the

Highlands of McKamy IV and V (the “Highlands of McKamy”). From February 2011 until

August 4, 2013, the Congregation’s activities took place primarily at the home of its rabbi at

7119 Bremerton Court, and since August 4, 2013, the same activities have taken place primarily at 7103 Mumford Court, the home owned by Defendants Judith D. Gothelf and Mark B. Gothelf.

The HOA has long known about these activities but did not oppose them until October 14, 2013.

The sole purpose of a temporary injunction is to preserve the status quo. For this reason alone, the Court should deny the HOA’s request for a temporary injunction because the status quo is the Congregation carrying out its activities in homes within the Highlands of McKamy.

Indeed, it has done so for over three years.

The HOA’s request for a temporary injunction should also be denied because, for multiple, independent reasons, it cannot show that it has a probable right to recover on its claim for breach of the restrictive covenants:

 There has been no breach of the residential use covenant: 7103 Mumford Court is used as a residence, and the Congregation’s activities there are consistent with and incidental to the use of the home as a single family residence.

1 The Congregation is not a proper Defendant in this case; it is not, nor ever has been, a home owner in the Highlands of McKamy. The Congregation therefore cannot be bound by the restrictive covenants at issue in this case. It has filed a no-evidence motion for summary judgment that is set for a hearing the same day as the temporary injunction hearing.

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 2  The HOA has waived its right to enforce the residential use restriction because it has not attempted to prevent other non-residential uses of homes within the Highlands of McKamy.

 The doctrine of laches bars the HOA’s claims because the HOA has unreasonably delayed in challenging the Congregation’s activities, and the Congregation relied on the HOA’s non-opposition to its detriment.

 Interpreting the restrictive covenants to prevent the Congregation’s religious activities would violate the Texas Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act because, among other reasons, it would place a substantial burden on the Congregation’s members’ religious practice.

For all of these reasons, Intervenor cannot prove a probable right to recover on its breach of the restrictive covenants claim.

Finally, the balancing of the equities required for imposing a temporary injunction weighs heavily against awarding injunctive relief here. The harm from issuing the HOA’s proposed injunction is severe and irreparable: the end of community religious practice for 30 families of Orthodox Jews. And this harm is far worse than the claimed impact the

Congregation’s activities have on the neighborhood: at most, three cars are parked in front of

7103 Mumford Court for its activities. The Court should thus deny the HOA’s request for a temporary injunction.

FACTUAL BACKGROUND2

The Congregation is a small community of Orthodox Jews in far North Dallas that has been in existence since 2007. There is only one other congregation of Orthodox Jews in the entire Dallas Fort Worth area that shares its particular outlook on the spiritual life: the Ohr

HaTorah Shul, which is located approximately seven miles south of the Highlands of McKamy.

While a member of the Ohr HaTorah Shul, Rabbi Yaakov Rich discovered that several families

2 All of the facts in this opposition brief can be established by live testimony at the temporary injunction hearing if the Court permits witnesses to testify.

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 3 living around the Highlands of McKamy wanted to join an Orthodox Jewish synagogue that shared the same focus as the Ohr HaTorah Shul. Orthodox Jews are prohibited from driving on the Sabbath; these families must therefore live within walking distance of a synagogue to attend prayer services on the Sabbath.

To give these families living around the Highlands of McKamy the spiritual support they sought, Rabbi Rich sold his house, bought a home in the Highlands of McKamy at 7119

Bremerton Court, and started the Congregation. Starting an Orthodox Jewish synagogue in and around the Highlands of McKamy was facilitated by the fact that the area had already been established as an eruv.3 Creating an eruv requires approval from and a leasing agreement with the city. The eruv that encompasses the Highlands of McKamy is called the Far North Dallas

Eruv and is approximately two square miles. Years before the Congregation began, members of another Orthodox Jewish synagogue, Ohev Shalom, put up the money to form the Far North

Dallas Eruv and secured all of the City of Dallas approvals and the lease agreement. Ohev

Shalom is located just southwest of the Highlands of McKamy at the corner of Hillcrest Road and McCallum Boulevard. While Ohev Shalom is also a community of Orthodox Jews, it does not share the same particular outlook on the spiritual life as the Congregation.

A. Rabbi Rich begins hosting Congregation activities

From 2007 onward the Congregation grew, and it became difficult to continue hosting

Sabbath activities at the small home on Hillcrest Road where the Congregation began. In

February 2011, Rabbi Rich’s home in the Highlands of McKamy became the primary location for the Congregation. Not only was Rabbi Rich’s home larger than the Hillcrest home, by early

2011 most of the members lived east of Hillcrest Road, so the Rabbi’s home in the middle of the

3 An eruv is a ritual enclosure that allows Orthodox Jews to carry certain objects outside of their homes on the Sabbath. The enclosure is formed by integrating a number of private and public properties into one larger private domain utilizing PBC piping and wires connected to telephone and electric poles.

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 4 Highlands of McKamy was more centrally located with respect to where the Congregation’s members lived than the Hillcrest home. The main activities of the Congregation took place at

7119 Bremerton Court for two and a half years from February 2011 to August 2013. During that time, members of the HOA board were aware of the Congregation’s activities at 7119 Bremerton

Court, yet the HOA never indicated that this activity somehow violated the restrictive covenants.

B. The Congregation moves to 7103 Mumford Court

While the location and size of Rabbi Rich’s house were ideal for hosting the main

Congregation events, there were drawbacks. Rabbi Rich is married and has five younger children living in his home, and hosting the Congregation’s principal activities at 7119

Bremerton Court was a bit invasive to the Rabbi’s family life. Thus, a longtime friend of Rabbi

Rich, Mark Gothelf, approached the Congregation in the spring of 2013 with the possibility of moving its activities to 7103 Mumford Court, a house then for sale just two blocks away. Mark

Gothelf and his mother, Judith Gothelf, purchased the home on May 31, 2013, and Mark initially planned on living there while allowing it to be used for the Congregation’s activities. But eventually he decided not to live in the neighborhood and instead Avrohom Moshe Rich moved into the home on September 16, 2013, and has since that time used the house as his personal residence. The Congregation began meeting there on August 4, 2013.

C. Congregation activities at 7103 Mumford Court

The activities that take place at Mumford Court are the same activities that took place at

7119 Bremerton Court for two and a half years. On non-Sabbath days, the Congregation has a morning, afternoon, and evening prayer service; between 10 and 12 people on average attend these. Usually, seven members drive to these prayer meetings in 6 cars. Three cars park in the backyard driveway, and three cars park in front of 7103 Mumford Court. It is most often the

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 5 case that no cars are parked in front of other houses. There are also several classes that take place each day; between 2 and 6 people attend these classes.

On the evening before the Sabbath, there is a prayer service at which 20 people usually attend. The main prayer service on the Sabbath takes place Saturday morning; it usually draws

30 to 35 people. And the afternoon and evening prayer services on the Sabbath usually attract about 20 people. Because Orthodox Jews cannot drive on the Sabbath, all of the Congregation’s members walk to 7103 Mumford Court for the events on Friday evening and Saturday.4

D. The Congregation has nowhere else to go

If the Gothelfs are enjoined from hosting Congregation activities at 7103 Mumford

Court, Congregation activities will cease. In the years before operating at 7103 Mumford Court, the Congregation explored a move to another location. It discovered that all of the commercially zoned properties within walking distance of its members explicitly prohibited religious use and in any event were all leased. It concluded that the only viable residential locations were either in the northern part of the Highlands of McKamy or in the neighborhoods immediately to the east and west of this. Other residential areas were ruled out as unsuitable for various reasons: the homes were either outside of the Far North Dallas Eruv, were too far for its members to walk, were in gated communities, were apartments, were too small, were in areas where drugs were bought and sold and/or were too close to Ohev Shalom.5 The homes in the neighborhoods immediately to the east and west of the Highlands of McKamy, however, are also burdened by

4 Occasionally on a Friday before the Sabbath, one or two members of the Congregation will park in front of the house of Ben Nise, the Congregation’s president, or in front of another member of the Congregation who lives in the Highlands of McKamy.

5 Even though the Congregation has a different spiritual focus than Ohev Shalom, it would have been very disrespectful to Ohev Shalom and its rabbi for the Congregation to center its activities in close proximity to another Orthodox Jewish synagogue.

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 6 similar deed covenants. Thus, the Congregation has nowhere else to go if it is prevented from conducting activities in the Highlands of McKamy.

LEGAL AUTHORITIES AND ARGUMENT

A. Standards for temporary injunctions

“A party asking for a temporary injunction seeks extraordinary equitable relief.” El

Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 743 (Tex. App.—Dallas 2011, no pet.); Dallas

Anesthesiology Assocs. v. Tex. Anesthesia Grp., P.A., 190 S.W.3d 891, 896 (Tex. App.—Dallas

2006, no pet.) (“A temporary injunction is an extraordinary remedy and does not issue as a matter of right.”). “The extraordinary equitable remedy of an injunction must be carefully regulated and confined to proper cases.” El Tacaso, 356 S.W.3d at 743.

“The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a trial on the merits.” Id. “The status quo is defined as the last actual peaceable, non-contested status which preceded the pending controversy.” Dallas

Anesthesiology, 190 S.W.3d at 897 (internal quotations omitted). If the party seeking a temporary injunction delays in challenging allegedly illegal conduct that is already taking place, the allegedly illegal conduct is the status quo. In re Newton, 146 S.W.3d 648, 651-52 (Tex.

2004).

“To be entitled to a temporary injunction, an 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.” El Tacaso, 356

S.W.3d at 743.6 “To establish a probable right to the relief sought, an applicant is required to allege a cause of action and offer evidence that tends to support the right to recover on the

6 “When an injunction is sought to enforce a restrictive covenant, however, the movant is not required to show proof of irreparable injury.” Marcus v. Whispering Springs Homeowners Ass’n, Inc., 153 S.W.3d 702, 707 (Tex. App.— Dallas 2005, no pet.).

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 7 merits.” Dallas Anesthesiology, 190 S.W.3d at 896-97. “The party applying for a temporary injunction has the burden of production. . . . If an applicant does not discharge his burden, he is not entitled to such extraordinary relief.” Id. at 897.

Moreover, the Court must consider the balance of equities and the public interest before issuing a temporary injunction, i.e., it must weigh the relative harm from issuing or not issuing the proposed temporary injunction. Reliant Hosp. Partners, LLC v. Cornerstone Healthcare

Grp. Holdings, Inc., 374 S.W.3d 488, 503 (Tex. App.—Dallas 2012, pet. denied).

B. A temporary injunction would disrupt, rather than preserve, the status quo.

The prayer and religious study that the HOA now seeks to enjoin have been taking place at homes in the Highlands of McKamy with the HOA’s full knowledge for more than three years: first at the Rabbi’s home until August 4, 2013, and from then on at 7103 Mumford Court.

The HOA is therefore precluded from seeking a temporary injunction as a matter of law.

It is well established that, when a party delays challenging particular conduct—as the

HOA did here—it cannot obtain a temporary injunction. See, e.g., In re Newton, 146 S.W.3d

648, 651-52 (Tex. 2004). This is because the challenged conduct has become the status quo. See id. In Newton, for example, the Texas Supreme Court reversed the entry of a temporary injunction because the challenged conduct had been occurring four years. The same is true here.

Despite being aware of the Congregation’s activities, the HOA did not take any action until

October 14, 2014, in a letter sent to the Gothelfs. Accordingly, the status quo—the earliest non- disputed status which preceded the present controversy—is the Congregation praying and studying in the Highlands of McKamy. Indeed, issuing the temporary injunction that the HOA proposes would drastically upset the status quo: the Congregation would be shut down until a

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 8 trial on the merits, and could effectively be shut down permanently as members may be forced to move elsewhere.

C. Intervenor cannot establish a probable right to recover on its claim for breach of the restrictive covenants.

The failure of the proposed temporary injunction to preserve the status quo is sufficient to deny the HOA’s request, but it should also be denied because the HOA cannot show a probable right to recover on its claim for breach of the restrictive covenants. See, e.g., Dallas

Anesthesiology, 190 S.W.3d at 897-98 (affirming the denial of a temporary injunction because there was evidence undermining the applicant’s right to recover on its claims).

1. Intervenor cannot establish a breach of the residential use covenant since 7103 Mumford Court is used as a residence, and the Congregation’s activities there are consistent with the use of the home as a single family residence.

Even when restrictive covenants limit homes to residential use, a non-residential use of a home that is incidental to the residential use is permitted. See Ireland v. Bible Baptist Church,

480 S.W.2d 467, 472 (Tex. Civ. App.—Beaumont 1972, writ ref’d n.r.e.) (prayer services in plaintiff’s home were purely incidental and not violative of the restrictions against non- residential use); Davis v. Hinton, 374 S.W.2d 723, 727 (Tex. Civ. App.—Tyler 1964, writ ref’d n.r.e) (“neither the operation of a beauty shop nor the practice of medicine in the home which was merely incidental to the use of the premises as a single family residence, amounted to a violation of the restrictive covenant [prohibiting non-residential use]”).

7103 Mumford Court is and will remain a single family dwelling. With the permission of the Gothelfs, Avrohom Moshe Rich lives at 7103 Mumford Court and uses the home as his personal residence. Avrohom receives his personal mail there and otherwise treats the home as his residence. No structural changes have been made to the home. And there are no plans to make any changes to the home that would be inconsistent with the home as a single family

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 9 residence. Although the Gothelfs have agreed that the Congregation’s activities can take place at the house, these activities are ancillary to and consistent with the use of the home as a personal residence. The Congregation’s activities have no more impact on the neighborhood than would running a business or medical practice out of one’s home, activities that Texas courts have deemed incidental to residential usage. See Davis, 374 S.W.2d at 727. Because the HOA cannot show that the Congregation’s activities are not merely incidental to the use of 7103 Mumford

Court as a single family home, it has failed to demonstrate a probable right to recover on its claims.

2. Intervenor has waived its right to enforce the residential use restriction because it has not attempted to prevent other non-residential uses of homes within the Highlands of McKamy.

In the context of deed restrictions, a “restriction prohibiting the use of subdivision lots for other than residential purposes” is waived when there is “evidence showing such other nonresidential activities as would lead a reasonable person to conclude that the restriction had been abandoned and its enforcement waived.” Mills v. Kubena, 685 S.W.2d 395, 398 (Tex.

App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). “The factors to be considered in answering this issue [are] the number, nature, and severity of any prior nonresidential use violations, any previous acts of enforcement of the restriction, and, additionally, whether it was still possible to realize to a substantial degree the benefits protected by the restriction.” Id. at 398-99.

Discovery has only begun, yet Defendants can already identify three significant non- residential uses in the Highlands of McKamy about which the HOA is aware:

 There are two separate homes that are being used as assisted living facilities. Each house offers 24 hour medical services. Multiple elderly, handicapped, disabled, or dementia patients live in each house, and medical personnel and the families of those living there come and go from the house throughout the day and night. Each house has a business website. See

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 10 http://www.wellingtonresidentialcaredallas.com; http://www.weismerhouse.com.

 Next to the Rabbi’s home, a family runs several swimming lesson camps. When these camps are in session, many cars come and go in front of the home both in the morning and in the afternoon every day.

The HOA has never attempted to prevent these non-residential uses. Indeed, Defendants believe, and subsequent discovery will likely confirm, that the HOA has never in its thirty plus years of existence ever sought to prevent a non-residential use other than the Congregation’s activities at

7103 Mumford Court. Moreover, Defendants believe that there are many other non-residential uses that are currently taking place or have taken place at homes in the Highlands of McKamy of which the HOA is or was aware. Defendants need more time in discovery to ferret out these non-residential uses. Nevertheless, for a community of just 247 homes, the presence of three significant non-residential uses in the Highlands of McKamy that the HOA never sought to prevent is sufficient to find that the HOA has waived its right to prevent the Congregation’s activities at 7103 Mumford Court. The doctrine of waiver thus prevents Intervenor from proving a probable right to recover on its claims.

3. The defense of laches prevents any recovery for Intervenor, which has unreasonably delayed in challenging the Congregation’s activities, and the Congregation relied on the HOA’s non-opposition to its detriment.

A defendant establishes the defense of laches by showing “(1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay.” Dick’s Last Resort of the W. End, Inc. v.

Mkt./Ross, Ltd., 273 S.W.3d 905, 916 (Tex. App.—Dallas 2008, pet. denied).

The HOA unreasonably delayed in asserting its legal rights. As noted above, the very same activities of the Congregation that the HOA now challenges have been taking place with the HOA’s knowledge at homes within the Highlands of McKamy since February 2011. The

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 11 HOA did not take a position against these activities until October 14, 2013, well over two and half years after the Congregation’s activities first started in the Highlands of McKamy. And the

HOA did not take legal steps against the Congregation until March 2013, over three years after the Congregation began having its prayer and study activities at homes within the Highlands of

McKamy. The HOA’s delay is unreasonable.

In good faith reliance on the HOA’s non-opposition, the Congregation invested significant money to establish itself in the Highlands of McKamy. Moreover, in the months before the HOA first opposed the Congregation’s activities, some of the Congregation’s members purchased property in the area with the good faith belief that the Congregation would be able to have its activities in the neighborhood. If the HOA prevails on its claims, the

Congregation and some of its members would have changed their position to their detriment.

The defense of laches therefore prevents the HOA from proving a probable right to recover on its claims.

4. To the extent the restrictive covenants at issue prevent the Congregation’s religious activities, they violate the Texas Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act because, among other reasons, they place a substantial burden on the Congregation’s members’ religious practice.

Both the Texas Religious Freedom Restoration Act (“Texas RFRA”), Tex. Civ. Prac. &

Rem. Code § 110.003, and the Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), 42 U.S.C. § 2000cc(a), prohibit the enforcement of a rule that would substantially burden the free exercise of religion unless that rule is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.

In a factually analogous case, the Texas Supreme Court reversed an injunction prohibiting a pastor, Richard Barr, who ran a religiously-based halfway house, because the city

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 12 zoning ordinance upon which the injunction was based violated Texas RFRA. Barr v. City of

Sinton, 295 S.W. 3d 287 (Tex. 2009). The city zoning ordinance prohibited the operation of a halfway house within 1000 feet of a residential area, park, school or church. Id. at 291. There was no evidence that Barr could have moved his halfway house to any other place in the small city of Sinton, and the ability to move his halfway house outside the city did not remove the substantial burden the zoning ordinance placed on his religious ministry. Id. at 296-97, 302.

Moreover, the court concluded that even if there were some possible alternative locations in the city for Barr to move his halfway house, the difficulties in being forced to move could still be a substantial burden on his religious practice. Id. at 302 (“Moreover, while evidence of alternatives is certainly relevant to the issue whether zoning restrictions substantially burden free religious exercise, evidence of some possible alternative, irrespective of the difficulties presented, does not, standing alone, disprove substantial burden.”).

The evidence supporting a substantial burden on the free exercise of religious practice is stronger in this case than in Barr. As in Barr, the restrictive covenants, as interpreted by the

HOA, together with Title 11 of the Texas Property Code, which permits their creation and enforcement, categorically prevent members of the Congregation from meeting anywhere in the

Highlands of McKamy. But the burden of moving locations for the Congregation is much heavier than the burden on the pastor in Barr, because the Congregation’s members are

Orthodox Jews who need to live within walking distance of a synagogue; they cannot drive on the Sabbath. And the HOA cannot present any evidence that there is a viable alternative location for the Congregation other than homes within the Highlands of McKamy or homes in adjacent housing communities that are similarly burdened by the same restrictive covenants. Because enforcement of the non-residential use restrictive covenant substantially burdens the

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 13 Congregation’s exercise of religious freedom and is not in furtherance of a compelling government interest nor narrowly tailored to meet such an interest, enforcement of the restrictive covenants violates Texas RFRA and RLUIPA, and the HOA cannot show a probable right to recover on its claims.7

D. The balance of equities weighs heavily against issuing a temporary injunction as the harm resulting from an injunction—the end of community religious life for 30 families—dwarfs any minimal impact the Congregation’s activities have on the neighborhood.

Issuing the temporary injunction the HOA requests would effectively end community religious life for the approximately 30 families in the Congregation while the injunction is in effect. As explained above, the only viable properties where the Congregation could conduct its activities are in the northern part of the Highlands of McKamy or in adjacent housing developments with similar restrictive covenants. If the Gothelfs are enjoined from hosting the

Congregation’s prayer and study activities at 7103 Mumford Court, the Congregation’s members would have nowhere else to go within walking distance of their homes and would therefore not be able to pray in community as their religious beliefs require.

The HOA’s proposed temporary injunction would not only entail the end of community religious life for the 30 families in the Congregation for the months (or possibly over a year) while the temporary injunction is in place, it would also likely bring about the permanent end of the Congregation. The ability to worship in community is of central importance to Orthodox

Jews. Cessation of the Congregation for many months or even over a year would spur many of its members to move out of the neighborhood. Thus, the temporary injunction the HOA

7 Imposition of the non-residential use restrictive covenant also violates RLUIPA because it would treat the Congregation’s religious activities on unequal terms with other non-residential uses that are or have taken place in the Highlands of McKamy. See 42 U.S.C. § 2000cc(b); supra at § C.2.

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 14 proposes would bring about severe and irreparable harm to the religious liberty of the

Congregation and its members.

In contrast, there is absolutely no conceivable harmful impact on the neighborhood or

HOA from the Gothelfs continuing to allow the Congregation to meet at 7103 Mumford Court.

For the daily prayer meetings—the Congregation’s gatherings that attract the most people on non-Sabbath days and at which usually 10 to 12 people attend—it is usually the case that no more than three cars are parked in front of 7103 Mumford Court. And on the Sabbath, the day on which attendance is highest, none of the Congregation’s members is permitted to drive. Thus, the Congregation’s activities have minimal, if any, impact on parking in the Highlands of

McKamy.

With severe, irreparable harm coming from issuing the HOA’s proposed temporary injunction and no, or de minimis, impact on the neighborhood from allowing the Congregation to continue its operations at 7103 Mumford Court, the balance of equities clearly weighs against imposing the temporary injunction, and the Court should deny the HOA’s requested relief on this basis. See, e.g., Landry’s Seafood Inn & Oyster Bar—Kemah, Inc. v. Wiggins, 919 S.W.2d 924,

928 (Tex. App.—Houston [14th Dist.] 1996, no writ) (affirming denial of a temporary injunction because the balancing of the equities weighed against issuing the injunction).

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court deny in its entirety, Intervenor’s request for a temporary injunction and grant them all other relief to which they are entitled.

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 15 Dated: April 7, 2014 Respectfully Submitted,

HAYNES AND BOONE, LLP

By: /s/ John A. Tancabel 2323 Victory Avenue, Suite 700 Dallas, TX 75219 JEREMY D. KERNODLE Tex. Bar No.: 24032618 T: (214) 651-5159 F: (214) 200-0693 [email protected] JOHN A. TANCABEL Tex. Bar No.: 24060698 T: (214) 651-5597 F: (214) 200-0729 [email protected]

ATTORNEYS FOR CONGREGATION TORAS CHAIM

THE LIBERY INSTITUTE

By: /s/ Justin Butterfield Kelly J. Shackelford Tex. Bar No. 18070950 [email protected] JEFFREY C. MATEER Tex. Bar No. 13185320 [email protected] JUSTIN BUTTERFIELD Tex. Bar No. 24062642 [email protected] 2001 West Plano Parkway, Suite 1600 Plano, TX 75075 T: (972) 941-4444 F: (972) 941-4457

ATTORNEYS FOR CONGREGATION TORAS CHAIM, JUDITH D. GOTHELF, AND MARK B GOTHELF

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 16 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served in accordance with the Texas Rules of Civil Procedure, on this 7th day of April 2014, upon the following:

David R. Schneider, Pro Se 7035 Mumford Dallas, TX 75252 T: (214) 315-5531 Email: [email protected]

David A. Surratt Riddle & Williams, P.C. 3710 Rawlins Street, Suite 1400 Dallas, TX 75219 T: (214) 760-6766 Email: [email protected] Attorney for Intervenor Highlands of McKamy IV and V Community Improvement Association

/s/ John A. Tancabel______John A. Tancabel

DEFENDANTS’ OPPOSITION TO TEMPORARY INJUNCTION Page 17