Judge Prohibits Assaults On Hans’ Bier Haus

January 13, 2010

As the owner of Hans’ Bier Haus testified about a deluge of water on Dec. 13 cascading from a neighboring condominium and flooding his beer garden, the 113th Civil Court experienced a sort of flood of its own.

Attorney Gary DeSerio, defending three men accused in a civil lawsuit of flooding the bar and throwing various objects on customers, had shuffled papers on the desk in front of him during a court hearing on Tuesday. DeSerio accidentally sent a full pitcher of water over the edge to soak the carpet in front of Judge Patricia Hancock.

“I’m sorry, your honor,” DeSerio said.

Bill Cave, left, and Paul Kellogg said they felt vindicated and satisfied after the court granted their request for a temporary injunction.

Bill Cave, left, and Paul Kellogg said they felt vindicated and satisfied after the court granted their request for a temporary injunction.

As court staffers scrambled to clean the mess with paper towels, Hancock heard testimony from Hans’ Bier Haus co-owner Bill Cave, who was only the second witness to testify in a three-hour hearing seeking a temporary injunction to prohibit any bar-damaging behavior. The long hearing revealed juicy details about a serious feud between the beer pub and its neighbor — the 16-story 2520 Robinhood at Kirby condominium building.

After hearing hours of testimony that could have come straight from the soap operas, Hancock granted the temporary injunction, with a twist. She indicated the injunction will be mutual, meaning the condo owners and the bar owners must stop any interaction.

“Everyone stay out of each others’ face until we have a permanent injunction,” Hancock said.

Pub co-owners Cave and Paul Kellogg filed a lawsuit last month against the condominium association, management company and three residents — Robert Souders, Mark Theusen and Richard Booker. The lawsuit alleges that the three men launched multiple attacks on the bar, throwing beer cans, bottles and eggs, and culminating in the December flooding incident. The lawsuit says the condo association and management company didn’t do enough to stop the alleged attacks.

Answering questions from his attorney Kenneth Ward, Cave testified about how he forced his way into the condominium on Dec. 13. He dragged a concierge by the arms and neck tie to enter the top of the parking garage adjacent to his bar; he saw a water hose stretched over the edge towards his bar; he found the hose was attached to a faucet on the porch of one of the defendants, Robert Souders; he turned the water off. Cave now faces charges of assault for his actions.

“I was fearful. I was fearful for the band, my customers. The water was everywhere,” Cave said in his testimony. “I was in an extreme sense of urgency to get this electric hazard stopped.”

Cave wasn’t the only person who was fearful at the time. The concierge, Reggie McGowan, testified that he didn’t hear Cave say he wanted to turn off the water. McGowan said Cave was shouting and pointing, and then grabbed him and dragged him towards the elevator.

“I thought he was after me, personally. I kept trying to figure out what it was,” McGowan said. “I thought he was taking me to the roof, forcing me to the roof, to pitch me off the roof.”

When the pair exited the elevator onto the 4th floor, McGowan said he heard Cave say that water was spraying the bar and he wanted to turn it off.

“I said oh, I understand. I can take care of that,” McGowan said. “I had already picked up the hose Wednesday morning of that week.”

Other witnesses confirmed that the Dec. 13 sprinkling incident wasn’t the first attempted flooding. Cave told the court that he had previously called police about water falling on the bar, and former condo employee Alton Smith also confirmed he had seen the hose at least twice before that night.

“My boss told me to go get it down off the patio and put it up,” Smith said. “He told me to go ahead and get rid of it, so I got rid of it.”

On Dec. 15, two days after the final water sprinkler incident, the condo’s management company fired Smith. Smith said his termination came after he had run-ins with defendants Theusen and Booker — Who happen to serve on the condo association’s board of directors, which is responsible for firing decisions.

Angry about his firing, Smith approached the Hans’ Bier Haus owners, told them what he knew about the incidents and he named the three defendants as the perpetrators.

When cross examining Cave and Smith, and when calling his own witnesses, DeSerio said he was trying to prove the doctrine of unclean hands — Showing that the bar owners had acted unethically, and were not eligible for the court’s help. His questions focused on the alleged assault on Dec. 13, and on questions about whether the bar hosted bands that were too loud and played too late at night, violating the city’s ordinances about noise and outdoor music.

Ward, attorney for the pub, repeatedly objected to DeSerio’s questions, saying they weren’t relevant to the fact that no one should throw things on the bar.

Judge Hancock repeatedly sided with Ward’s arguments. In the end, she ordered the injunction to force the entire condo association, and all condo owners and renters to stop throwing objects or water on the bar. The injunction also stops Hans’ owners from visiting the condos for any reason.

If either side experiences trouble before that, Hancock said:

“You will have to call the police. They are going to have to come out and investigate … That is what was supposed to happen in the first place.”

InstantNewsWestu Staff

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