Opinion
NO. 01-16-00974-CV NO. 01-17-00130-CV
06-20-2017
ROBERT H. DODD, SR., Appellant v. EVERGREEN NATIONAL CONSTRUCTION, LLC, Appellee and IN RE ROBERT H. DODD, SR., Relator
On Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2016-68823
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Robert H. Dodd, Sr. has filed a notice of appeal of the trial court's temporary injunction that enjoins him from attempting to evict appellee and real party in interest, Evergreen National Construction, LLC, from property located at 5814 John Martin Road, Baytown, Texas (the "John Martin Property"). In two issues, Dodd contends that the trial court erred in granting the injunction because a Jefferson County District Court previously denied "the same injunction request" and Evergreen presented no evidence to support its request for injunctive relief. In three additional issues, Dodd contends that the temporary injunction order is void because the Jefferson County District Court has dominant jurisdiction and the order does not state the reasons Evergreen would suffer injury if an injunction were not granted, set a trial date, or fix the amount of a bond. We reverse the trial court's order granting the temporary injunction.
Dodd also has filed a petition for a writ of mandamus, challenging the trial court's order denying his plea in abatement. In one issue, Dodd contends that respondent, the Honorable Alexandra Smoots-Thomas, abused her discretion in denying the plea in abatement because the Jefferson County District Court is the court with dominant jurisdiction over the parties and issues. We conditionally grant Dodd's petition.
Background
Dodd, as president of Dodd Coating, Consulting & Inspection Services, Inc., and Evergreen executed an agreement for the purchase and sale of Dodd Coating, including the John Martin Property, to Evergreen. Dodd, individually, executed the agreement as the seller of the real estate and improvements. The agreement provided for a purchase price of "$750,000.00 guaranteed," with Evergreen to make "a down payment of $500,000" by January 31, 2014, and minimum payments of $83,333.33 "by the last day of January in 2015, 2016 and 2017." The agreement also included a non-competition provision prohibiting Dodd from "engag[ing] or participat[ing] in the industrial painting and coatings business in any manner . . . for a 100 mile radius from the [John Martin Property]" for five years after the closing date of the agreement.
Evergreen Fabrication & Industrial Services, LLC is the "Purchaser" of Dodd Coating and is the named plaintiff in the Jefferson County District Court proceeding. Evergreen National Construction, LLC, successor to Evergreen Fabrication & Industrial Services, LLC, is the named plaintiff in the Harris County District Court proceeding. We refer to Evergreen National Construction, LLC and Evergreen Fabrication & Industrial Services, LLC collectively as "Evergreen."
On February 3, 2015, Evergreen sued Dodd and others in Jefferson County District Court, asserting, in part, claims for misappropriation of trade secrets, breach of fiduciary duty, tortious interference with an existing contract and prospective business relations, conversion, and fraud. Several months later, Evergreen filed an "Application and Affidavit for Temporary Restraining Order and Temporary Injunction." In part, Evergreen alleged that it asserted against Dodd several causes of action "relating to [Evergreen's] purchase of a company" from him, Evergreen "had made the first payment to [Dodd] as required in the purchase agreement, which was intended to be the purchase price for the property," and Dodd was seeking "to have [Evergreen] evicted from the real property that was part of the sale agreement." Evergreen requested a temporary restraining order and temporary injunction enjoining Dodd from attempting to evict Evergreen from the property.
In April 2016, Evergreen filed its first amended petition in Jefferson County. Evergreen alleged that Dodd had "breached the purchase contract in several particulars," including "[v]iolating a non-compete clause contained in the purchase agreement" and "[c]louding title to real property." In addition to claims asserted in its original petition, Evergreen asserted a suit to quiet title to the John Martin Property, and sought a declaratory judgment that Evergreen "was the sole and rightful owner[]" of the property and a temporary and permanent injunction enjoining Dodd from evicting Evergreen from the property. On April 29, 2016, the Jefferson County court denied Evergreen's request for a temporary injunction.
On October 11, 2016, Evergreen filed another suit against Dodd in Harris County District Court. Evergreen alleged that Dodd had breached the purchase agreement by failing to provide title to the John Martin Property and had breached an agreement not to prosecute the eviction proceeding. Additionally, Evergreen alleged that "[t]he purchase agreement [was] broader than the sale of the property" and Dodd had breached the agreement by "embezzling funds" and "establishing a competing business." Evergreen sought specific performance of the purchase agreement, asserted a suit to quiet title to the John Martin Property, and requested a declaratory judgment that Evergreen "was the sole and rightful owner[]" of the property. Evergreen also sought an injunction preventing Dodd from proceeding with evicting Evergreen from the John Martin Property.
In the Harris County proceeding, Dodd filed an answer that included a general denial and a plea contending that the Harris County suit should be abated or dismissed because the Jefferson County District Court had dominant jurisdiction over the parties and issues. Dodd also filed a separate plea in abatement in which he contended that the Jefferson County District Court had acquired dominant jurisdiction over an earlier-filed case involving the same parties and issues. Evergreen responded to Dodd's plea in abatement, contending that venue in Harris County was mandatory under Texas Civil Practice and Remedies Code section 15.011 because the suit concerned an interest in real property.
The Harris County court first held a hearing on Evergreen's temporary injunction request. At that hearing, Dodd objected to the court's "hearing the matter" because "dominant jurisdiction is within the [Jefferson County] District Court" and the Harris County court had "no authority to enter an injunction." The court, however, did not consider Dodd's plea in abatement because it was "not set." On December 7, 2016, the Harris County District Court signed a temporary injunction order enjoining Dodd from attempting to evict Evergreen from the John Martin Property during the pendency of the litigation. On January 20, 2017, the Harris County court held a hearing and signed an order denying Dodd's plea in abatement. Dodd timely appealed the temporary injunction order and filed a petition for a writ of mandamus challenging the denial of his plea in abatement.
Appeal—Temporary Injunction
"To obtain a temporary injunction, the applicant must plead and prove: (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." Regal Entm't Grp. v. iPic-Gold Class Entm't, LLC, 507 S.W.3d 337, 345 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no pet.)). The decision to grant or deny a temporary injunction is within the trial court's discretion. Id. (citing Butnaru, 84 S.W.3d at 204). "Our review of the trial court's decision is limited to the validity of its temporary injunction order; we do not consider the merits of the underlying case." Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.3d 887, 892 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
In three issues, Dodd asserts that the Harris County District Court erred in granting Evergreen's request for a temporary injunction order after the Jefferson County District Court denied Evergreen's request for a temporary injunction. Dodd further asserts that the order is void because the Jefferson County District Court has dominant jurisdiction and "there could be no probable right of recovery because the Harris County District Court did not have dominant jurisdiction to proceed." Under these issues, Dodd argues that the Harris County District Court had "no jurisdiction to decide the injunction issue" because the Jefferson County District Court had acquired dominant jurisdiction to the exclusion of the Harris County court.
Without jurisdiction, a court cannot proceed and may not assume jurisdiction for deciding the merits of a case. King v. Deutsche Bank Nat'l Trust Co., 472 S.W.3d 848, 851 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013)). When one court has exclusive jurisdiction over a matter, a judgment or order issued by another court pertaining to the same matter is void. Id. (citing In re CC & M Garza Ranches, Ltd., 409 S.W.3d 106, 109 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding)). However, when two courts have concurrent jurisdiction, "the issue is one of dominant jurisdiction." In re Puig, 351 S.W.3d 301, 305 (Tex. 2011) (citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988)). A motion or plea in abatement is the proper procedure to assert a claim of dominant jurisdiction. See id.; Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 825 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Dodd does not contend that the Jefferson County District has exclusive jurisdiction. Rather, he contends that the Jefferson County District Court has dominant jurisdiction, an issue properly addressed through his plea in abatement. Accordingly, we overrule Dodd's issues one through three.
In his sixth issue, Dodd contends that the temporary injunction order is defective because it does not set a trial date or fix an amount for a bond as Texas Rules of Civil Procedure 683 and 684 require. Rules 683 and 684 require that a temporary injunction order set the cause for trial on the merits and fix the amount of security to be given by the temporary injunction applicant. TEX. R. CIV. P. 683, 684. These procedural requirements are mandatory. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Harris v. Taylor, No. 01-15-00925-CV, 2016 WL 4055688, at *6 (Tex. App.—Houston [1st Dist.] July 28, 2016, no pet.) (mem. op.) (citing Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000)). The order here does not set the case for trial on the merits or fix the amount of security to be given by Evergreen. Evergreen concedes that the order "is technically deficient in these respects."
Because the temporary injunction order does not comply with rules 683 and 684, we conclude that the Harris County court abused its discretion and the temporary injunction order is void and must be dissolved. See City of Houston v. Downstream Envtl., L.L.C., No. 01-13-01015-CV, 2014 WL 5500486, at *7 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, pet. dism'd) (mem. op.). We sustain Dodd's sixth issue and need not address Dodd's fourth and fifth issues challenging the temporary injunction order. See Harris, 2016 WL 4066688, at *6 n.5; City of Houston, 2014 WL 5500486, at *7.
Petition for Writ of Mandamus—Plea in Abatement
A. Mandamus standard of review
Generally, to obtain mandamus relief, a relator must show both that the trial court clearly abused its discretion and that relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). With regard to a plea in abatement in a dominant-jurisdiction case, however, a relator need establish only that the trial court abused its discretion. In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 299-300 (Tex. 2016) (orig. proceeding); see also In re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 322 (Tex. 2016) (orig. proceeding) ("[I]f the court in the second action abuses its discretion by not abating the action, no additional showing is required for mandamus relief."). A trial court has no discretion in determining what the law is and applying it to the facts and abuses its discretion if it fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); Walker, 827 S.W.2d at 840.
B. Discussion
In his mandamus petition, Dodd contends that the trial court abused its discretion in denying his plea in abatement because the Jefferson County District Court "had jurisdiction over an earlier filed case involving the same parties and issues." In its response, Evergreen objects to the lack of a clerk's record and reporter's record in the mandamus proceeding. Evergreen asserts that any record "should contain the evidence from the hearing on the motion to abate about which [Dodd] complains" and relief should be denied based on a lack of a record.
With his petition for a writ of mandamus, Dodd filed "Relator's Certified Appendix," which contains certified copies of documents filed in the Harris County District Court proceeding. See TEX. R. APP. P. 52.3(k)(1)(A), (2), 52.7. Among other items, the appendix includes a certified copy of Dodd's original answer to Evergreen's original petition, which included a plea in abatement, and Dodd's plea in abatement, which included as exhibits copies of Evergreen's original petition and first amended original petition filed in Jefferson County District Court. After Evergreen responded to his petition, Dodd filed his counsel's certification "that no testimony was adduced at the hearing on [Dodd's] Plea in Abatement." See id. 52.7(a)(2), (b). The trial court's order denying Dodd's plea in abatement reflects that the trial court considered "the pleadings and arguments of counsel" and does not reflect that the trial court considered any evidence. In these circumstances, a failure to file a reporter's record from the hearing on the plea in abatement does not support denial of Dodd's petition challenging the denial of his plea in abatement. See In re Ooida Risk Retention Grp., Inc., 475 S.W.3d 905, 911 (Tex. App.—Fort Worth 2015, orig. proceeding) (holding absence of reporter's record of hearing was not dispositive of mandamus proceeding when relator filed statement that complied with rule 52.7(a)(2)).
Further, the documents are included in the clerk's record filed in the appeal. An appellate court may take judicial notice of its own records in a related proceeding involving the same parties. See In re Chaumette, 456 S.W.3d 299, 303 n.2 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (citing In re Carrington, No. 07-14-00030-CV, 2014 WL 793990, at *3 (Tex. App.—Amarillo Feb. 25, 2014, orig. proceeding) (mem. op.)).
Generally, "'the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.'" In re J.B. Hunt, 492 S.W.3d at 294 (quoting Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974)). "As a result, when two suits are inherently interrelated, 'a plea in abatement in the second action must be granted'" unless an exception to the general rule applies. Id. (quoting Wyatt, 760 S.W.2d at 247); see King, 472 S.W.3d at 852 ("[W]hen cases involving the same subject matter and same parties are brought in different courts, the court with the first-filed case has dominant jurisdiction, and the other case should be abated.") (citing Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001); Wyatt, 760 S.W.2d at 248)). Abatement is mandatory, "even when there is not already a complete unity of issues and parties between the suits." French v. Gilbert, No. 01-07-00186-CV, 2008 WL 5003740, at *6 (Tex. App.—Houston [1st Dist.] Nov. 26, 2008, orig. proceeding) (mem. op.) (citing Wyatt, 760 S.W.2d at 247). Abatement of the second action is based on "'principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues.'" In re J.B. Hunt, 492 S.W.3d at 294 (quoting Wyatt, 760 S.W.2d at 248).
Here, Evergreen filed suit in Jefferson County first and is the only plaintiff in the Jefferson County and Harris County suits. Dodd is one of several defendants in the Jefferson County suit and the only defendant in the Harris County suit. Both suits involve a dispute arising from Evergreen's purchase of Dodd Coating from Dodd. Specifically, each proceeding involves ownership and possession of the John Martin Property under the terms of the purchase agreement.
In its amended petition filed in the Jefferson County suit, Evergreen alleged that "[t]his dispute arises out of [Evergreen's] purchase" of Dodd Coating from Dodd, Evergreen was "the rightful owner, entitled to possession of the [John Martin] Property by virtue of purchasing the [John Martin] Property from Dodd Coating," and Dodd had breached the purchase agreement "in several particulars," including "[c]louding title to real property." Evergreen asserted a suit to quiet title to the John Martin Property and requested a declaratory judgment that it "is the sole and rightful owner[] of the Property." Evergreen also sought an injunction enjoining Dodd from evicting Evergreen from the property.
In the trial court, Evergreen contended that the trial court should deny Dodd's plea in abatement because venue in Harris County was mandatory. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2017) ("Actions for recovery of real property or an estate or interest in real property . . . to remove encumbrances from the title to real property, . . . or to quiet title to real property shall be brought in the county in which all or a part of the property is located."). Evergreen, however, filed suit to quiet title in Jefferson County and may have waived any claim of mandatory venue. See Scott v. Wichita Cty., 248 S.W.3d 324, 325-26 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citations omitted); see also Marantha Temple, Inc. v. Enterprise Prods., Inc., 833 S.W.2d 736, 741 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (citations omitted) (stating plaintiff has right to file suit in any permissible county and plaintiff that files suit in impermissible county, "waives [the] option of where to file suit"). In any event, whether the Jefferson County District Court had venue is not a matter that is before us in this proceeding.
In the Harris County suit, Evergreen alleged that, pursuant to the purchase agreement, "[Evergreen] agreed to buy and [Dodd] agreed to sell" the John Martin Property and Dodd had represented that he was "able to convey clear title to the property as of the date of closing," and Evergreen asserted a claim for breach of contract, arising from Dodd's "failure to provide title to the property" as the purchase agreement required. As in the Jefferson County suit, Evergreen asserted a suit to quiet title to the John Martin Property, and requested a declaratory judgment that Evergreen "is the sole and rightful owner[] of the Property" and injunctive relief to enjoin Dodd from evicting Evergreen from the John Martin Property.
Additionally, Evergreen's request for specific performance of the parties' purchase agreement in the Harris County suit involves issues and parties present in the Jefferson County suit. In Jefferson County District Court, Evergreen asserted that Dodd breached the purchase agreement by "[t]heft/[c]onverting funds belonging to [Evergreen]," and violating the agreement's non-competition provision. In the Harris County District Court, Evergreen alleged that the purchase agreement "is broader than the sale of the property alone," and Evergreen was excused from performing its obligations under the purchase agreement because Dodd had "materially breached the contract by embezzling funds" and "establishing a competing business in violation of the non-competition clause" in the purchase agreement. In its petition, Evergreen specifically asserted that it had "sued for the recovery of those funds and for Dodd's violation of the non-competition agreement" in the Jefferson County District Court. Evergreen requested a judgment "requiring [Dodd] to specifically perform his obligations" under the purchase agreement.
The Jefferson County suit and the Harris County suit are inherently interrelated and the Jefferson County suit was filed first. Accordingly, we conclude that the Jefferson County District Court has dominant jurisdiction and the trial court abused its discretion in denying Dodd's motion to abate the Harris County suit.
Conclusion
In cause no. 01-17-00130-CV, we conditionally grant the petition for a writ of mandamus, and direct the trial court to vacate its order denying the plea in abatement and sign an order abating the suit. The writ will issue only if the trial court does not. In cause no. 01-16-00974-CV, we reverse the trial court's order granting a temporary injunction and remand the case to the trial court with instructions to dissolve the December 7, 2016 temporary injunction.
Russell Lloyd
Justice Panel consists of Justices Jennings, Brown, and Lloyd.