Appeals panel grants Grossman injunction in Duranguito lawsuit, orders city of El Paso to pay court costs

EL PASO, Texas -- The state 8th Court of Appeals on Wednesday decided to provide historic preservationist Max Grossman another look at a legal claim he has made against the city of El Paso in an effort to block construction of a proposed multi-purpose arena in the Duranguito neighborhood.

The appeals court order directs 384th District Court Judge Patrick Garcia to award Grossman a temporary injunction, effectively stopping demolition or construction in the area until the conclusion of the litigation.

The 8th Court of Appeals, overseen by Chief Justice Yvonne Rodriguez, Justice Gina Palafox and Justice Jeff Alley, ruled that the lower court erred by refusing to grant Grossman a temporary injunction.

In a 2-1 decision, with Alley dissenting, Palafox wrote that not only was Grossman entitled to an injunction, he was entitled to be reimbursed by the city for the costs of his appeal. It would not include attorneys fees.

The appellate court also directed the 384th District Court to consider Grossman's allegations that the city's archeological survey of the proposed arena footprint area doesn't comply with the Texas Antiquities Code.

There are claims based on historical references in a new book that nearly 1,000 Mescalero Apache men, women and children once lived in "peace camps" where the Duranguito neighborhood sits today. Grossman argued to the appeals court that the city and its contractor, Moore Archaeological Consulting, have not considered that history in their survey efforts - and thus are in violation of the TAC.

"The Court has ruled that the city is not immune from suit under the Antiquities code," City Attorney Karla Nieman told ABC-7 in a statement, saying her office was working to determine the city's options moving forward.

This court decision, which was two years in the making, comes one day after the El Paso City Council voted unanimously to authorize Nieman and City Manager Tommy Gonzalez to begin moving towards a settlement with Grossman.