Opinion
No. 07-15-00143-CV
03-25-2016
JOHN GREEN, APPELLANT v. MEMORIAL PARK MEDICAL CENTER, INC., APPELLEE
On Appeal from the 126th District Court Travis County, Texas
Trial Court No. D-1-GN-14-000373, Honorable Tim Sulak, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Through nine issues, appellant John Green challenges the trial court's disposition of a suit brought by appellee Memorial Park Medical Center, Inc. In this court, Memorial Park filed a motion to dismiss the appeal for want of jurisdiction, contending Green's notice of appeal was untimely. The motion and Green's response were carried with the case. Finding our jurisdiction attached, we will modify the judgment of the trial court and as modified, affirm.
Background
This litigation follows an earlier suit between the parties, litigated in Brown County. Green there obtained a money judgment against Memorial Park and foreclosure of mechanic's and materialman's liens on two parcels of land. The judgment was affirmed on appeal in July 2013, after a small remittitur.
See Memorial Park Med. Ctr., Inc. v. Green, No. 11-11-00159-CV, 2013 Tex. App. LEXIS 7871 (Tex. App.—Eastland June 27, 2013, no pet.) (mem. op.); Memorial Park Med. Ctr., Inc. v. Green, No. 11-11-00159-CV, 2013 Tex. App. LEXIS 9168 (Tex. App.—Eastland July 25, 2013, no pet.) (per curiam) (mem. op.) (consent to remittitur).
In the current suit, Memorial Park filed its original petition against Green in Travis County on February 7, 2014. Among other allegations, the pleading alleged Green's liability "and/or" that of his attorney for actual damages, exemplary damages, attorney's fees, and costs of court under Texas Civil Practice and Remedies Code section 12.002. Beneath the heading, "Application for Temporary Restraining Order," Memorial Park requested injunctive relief restraining Green from "executing its Abstract of Judgment and/or taking any action until this matter is fully litigated." Elsewhere in the paragraph, Memorial Park requested that the court set its "request for permanent injunction for a full trial, and after the trial, issue a permanent injunction against [Green]." Finally, Memorial Park sought "reasonable and customary legal fees."
An attached affidavit of Memorial Park's trial counsel stated in part, "Memorial Park is in the process of obtaining financing, and the filing(s) by Green and his attorney has placed a cloud of title upon Memorial Park's property and has delayed, complicated and harmed Memorial Park. The parties involved in the financing and/or preparing the closing documents required that suit be initiated against Green as to this matter. For this reason, suit has been brought against Green and/or his attorney for filing the claims which has harmed Memorial Park."
See TEX. CIV. PRAC. & REM CODE ANN. § 12.002 (West Supp. 2015); James v. Calkins, 446 S.W.3d 135 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (explaining this section "forbids the filing of a fraudulent lien and allows a party injured by a fraudulent lien to recover damages").
A temporary restraining order issued against Green and his attorney on February 7, 2014. The order concluded by setting a hearing for February 18, 2014, "to show cause why a permanent injunction, effective until final judgment in this cause should not be granted as prayed for." (emphasis ours)
On February 14, 2014, before being served, Green filed a "motion to dismiss for lack of jurisdiction and for sanctions." According to the motion, the trial court lacked jurisdiction over Memorial Park's suit because "this is an in rem proceeding involving real property in Brown County . . . ." Other reasons for the asserted lack of jurisdiction were that the action was barred by res judicata and that Green did not reside in Travis County.
At the February 18 hearing, the court orally denied Green's "plea to the jurisdiction" and granted a temporary injunction. But after learning that Green had not been served, the court withdrew the temporary injunction and extended the temporary restraining order.
After the hearing, Memorial Park tendered a proposed order for signature, decreeing a permanent injunction. The court refused to sign the draft and instead signed an order extending the temporary restraining order. In part the order directed, "The parties and their agents . . . to appear before this court on March 4, 2014, at 2:00 p.m., to show cause why a temporary injunction, effective until final judgment in the cause should not be granted as prayed for." The order did not contain a ruling on Green's motion to dismiss and motion for sanctions.
On February 26, Green filed a motion to transfer venue to Brown County, alleging venue in that county was mandatory.
On March 4, the court conducted a brief, argument-only hearing. At the hearing, the attorney for Memorial Park announced the purpose for the hearing was to continue the temporary restraining order. He later added, "We're . . . only trying to hold this money in counsel's escrow account until we can have this matter litigated." He continued, "[T]he only matter before the Court is just to extend the injunction. And that's all we are asking for, Your Honor, is to extend this injunction until Mr. Green can be served or through a posting or—or have that adequately indicate to the Court that we followed the Court's order in trying to get him served through a proper—means of process server here in this town." Green's counsel argued for reconsideration of issues of jurisdiction and venue. The hearing concluded with the court's oral rendition that Green's motion to reconsider issues of jurisdiction and venue was denied "and the injunction [was] extended."
After the March 4 hearing, on March 13, the court signed an order decreeing "[Memorial Park's] motion for permanent injunction" is granted and "[Green's] motions" are denied. (emphasis ours)
The instrument is entitled "Order" and its body states, in its entirety:
On the 4th day of March, 2014, came to be considered Plaintiff's motion for permanent injunction and Defendant's motions to dismiss for lack of jurisdiction, request for sanctions transfer of venue, and motion for reconsideration. The court after hearing arguments of counsel and considering the pleadings and the evidence was of the opinion that Plaintiff's motion for permanent injunction should be granted, and denied Defendant's motions.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DESCRIBED (sic) that Plaintiff's motion for permanent injunction be granted, accordingly, and Defendant's motions be denied.
Based on their conduct, the parties at least initially considered the March 13 order interlocutory. Within the following thirty-day period Green did not file a notice of appeal or a post-trial motion or request extending the appellate timetable. On April 14, 2014, Memorial Park filed a first amended original petition. The body of the pleading no longer requested declaratory and injunctive relief but added a claim that Green tortiously interfered with an existing contract, apparently a refinancing agreement. Also added was a request, besides that under section 12.002, for exemplary damages. The prayer requested injunctive relief "and that on final judgment, [Memorial Park] have judgment against [Green]."
In a subsequent pleading, Memorial Park alleged that its April 14 pleading was filed "by oversight."
In a motion filed September 19, 2014, Green requested clarification of the March 13 order or a judgment nunc pro tunc recognizing that a temporary injunction rather than a permanent injunction had been granted. These motions were heard on October 9. The court denied Green's motion to clarify or for judgment nunc pro tunc.
Memorial Park filed a document on February 2, 2015, entitled "motion to dismiss Texas Civil Practices & Remedies Code § 12.02 (sic) remedy and claim for tortious interference." This pleading concluded with the statement Memorial Park "hereby nonsuits" its claims under section 12.002 and for tortious interference. No mention was made of Memorial Park's general claim for an award of attorney's fees. In a brief, argument-only hearing that same day the following exchange occurred:
The Court: And is it correct that you wish to nonsuit all claims?
[Counsel for Memorial Park]: Yes.
The Court: All right. That's granted.
The following day, February 3, 2015, the trial court signed an "Order of Dismissal" decreeing: "As the Court granted a permanent injunction on March 13, 2014, and as [Memorial Park] made an oral announcement of nonsuit in open court and on the record before the beginning of trial, and as [Green] has a motion to dismiss on file, this case is DISMISSED."
The court held another brief hearing on March 2, 2015. At issue was a motion Green filed on February 18 to modify the order of dismissal under Texas Rule of Civil Procedure 329b. The gist of the motion was for modification of the order to state whether the March 13 order as a permanent injunction continued. The court expressed uncertainty as to its jurisdiction and declined to take action on the motion to modify or a motion by Memorial Park, apparently filed on the day of the hearing, requesting "costs, inclusive of attorney's fees, for frivolous pleadings of defendant."
Green filed a notice of appeal on March 3, 2015, and the case was transferred to this court by order of the Supreme Court of Texas.
See TEX. GOV'T CODE ANN. § 73.001 (West 2013).
Analysis
We turn first to the question of our jurisdiction. Fundamental to the inquiry is whether the March 13 order finally disposed of the entire litigation. If so, Memorial Park's notice of appeal was untimely and we are without jurisdiction. But if the March 13 order was not final, the February 3, 2015 dismissal order, after Memorial Park nonsuited all its claims, terminated the litigation. In that instance, the notice of appeal was timely filed.
"[I]n cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). An appellate court determines the finality of a judgment by the language of the judgment. Id. at 199. A judgment rendered after a conventional trial on the merits carries a presumption of finality. Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (orig. proceeding) (citing N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex. 1966)). Otherwise, no such presumption arises. Lehmann, 39 S.W.3d at 199-200. "If there is any doubt as to the judgment's finality, then finality must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties." Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010) (per curiam) (quoting Lehmann, 39 S.W.3d at 203) (internal quotation marks, bracketing, and capitalization omitted); see Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009) (per curiam) (stating where there has been no traditional trial on the merits, "To determine whether an order is final, courts and parties must examine the express language of the order and whether the order actually disposes of all claims against all parties . . . . If neither examination indicates that the order is final, then the order is interlocutory and unappealable").
The mere insertion of the words "permanent injunction" into an interlocutory order does not transform the order into a final judgment. The March 4, 2014 hearing was not a conventional trial on the merits so the March 13 order enjoys no presumption of finality. It neither disposes of all claims and parties before the court nor states "with unmistakable clarity" its finality as to all claims and all parties. An order that does not dispose of all claims, even though it grants a permanent injunction, is interlocutory and unappealable. El Caballero Ranch, Inc. v. Grace River Ranch, LLC, No. 04-15-00127-CV, 2015 Tex. App. LEXIS 10805, at *9 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem. op.) (citing Young v. Golfing Green Homeowners Ass'n, Inc., No. 05-12-00651-CV, 2012 Tex. App. LEXIS 10625 (Tex. App.—Dallas December 21, 2012, no pet.) (mem. op.)); BCH Dev., LLC v. Lakeview Heights Addition Prop. Owners Ass'n, No. 05-15-00274-CV, 2015 Tex. App. LEXIS 7499, at *2-3 (Tex. App.—Dallas July 21, 2015, no pet.) (mem. op.) (dismissing for lack of jurisdiction an appeal from an order granting partial summary judgment and granting a permanent injunction); Aurora Loan Services v. Aurora Loan Services, LLC, No. 05-11-01362-CV, 2013 Tex. App. LEXIS 982, at *3-4 (Tex. App.—Dallas Jan. 31, 2013, no pet.) (mem. op.); Aloe Vera of Am., Inc. v. CIC Cosmetics Int'l Corp., 517 S.W.2d 433, 435-36 (Tex. App.—Dallas 1974, no writ) ("an order granting a permanent injunction may be interlocutory rather than final if it does not dispose of all issues made by the pleadings"). We overrule Memorial Park's motion to dismiss and find we possess jurisdiction of Green's appeal. Sufficiency of the March 13 Order as an Injunction
As noted, at the time of the March 4 hearing Memorial Park, in addition to its request for an injunction, sought declaratory relief, money damages, and attorney's fees. --------
In his issues one through five Green challenges the propriety of the March 13 order purporting to grant a permanent injunction. Because his issues are variations on a general contention the trial court erred by signing the March 13 order, we will discuss the complaints collectively.
The granting or denial of a permanent injunction following a bench trial is ordinarily a decision left to the trial court's sound discretion, and appellate review of that decision is limited to whether in reaching its decision the trial court clearly abused its discretion. Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 791 (Tex. App.—Houston [1st Dist.] 2001, no pet.). "A trial court has no discretion in determining what the law is or applying the law to the facts of the case." In re Farmers Tex. Cnty. Mut. Ins. Co., No. 03-15-00527-CV, 2015 Tex. App. LEXIS 10163, at *3-4 (Tex. App.—Austin Sept. 30, 2015, orig. proceeding) (citing In re Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding)). A trial court abuses its discretion if it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or misapplies the law to the established facts of the case. Id.
"An injunction must be as definite, clear, and precise as possible and, when practicable, it should inform the defendant of the acts he is restrained from doing without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing." Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.) (citing Villalobos v. Holguin, 146 Tex. 474, 480, 208 S.W.2d 871, 875 (1948); Hellenic Inv. v. Kroger Co., 766 S.W.2d 861, 866 (Tex. App.—Houston [1st Dist.] 1989, no writ)). Texas Rule of Civil Procedure 683 provides in part:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.TEX. R. CIV. P. 683; see Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 222-23 (Tex. App.—Dallas 2005, no pet.) (the injunction itself must provide specific information without reference to other records). "[I]t is the character and function of an order that determine its classification." Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992).
The March 13 order is not in the form of a permanent injunction. It by no means compels or mandates any conduct and otherwise fails to comply with Rule 683. The trial court abused its discretion by attempting to issue the March 13 order as a permanent injunction. That error was not harmless because it necessarily left Green to guess what he was compelled to do or not to do. TEX. R. APP. P. 44.1(a); TEX. R. CIV. P. 683; Webb, 298 S.W.3d at 384.
We sustain Green's challenge of the propriety of the March 13 order as an injunction, and find a permanent injunction never issued. We modify the trial court's February 3, 2015 order of dismissal by deleting the recital, "As the Court granted a permanent injunction on March 13, 2014, and[.]" Denial of Motion for Sanctions
Green finally argues the trial court erred by failing to render a sanction order against Memorial Park and its attorney for filing the original petition that alleged a claim barred by res judicata and subsequently for filing a motion that falsely represented the judgment Green relied on for his claim preclusion defense was reversed on appeal.
The bases Green relied on for seeking sanctions were Civil Practice and Remedies Code Chapter 9 and Texas Rule of Civil Procedure 13. A trial court's award or denial of sanctions is reviewed for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). To determine whether the denial of a motion for sanctions amounts to an abuse of discretion, the reviewing court examines the entire record, including any findings of fact and conclusions of law, considers the conflicting evidence in the light most favorable to the trial court's ruling, and draws all reasonable inferences in favor of the court's judgment. Id. at 249-50 (citing In re C.Z.B., 151 S.W.3d 627, 636 (Tex. App.—San Antonio 2004, no pet.)). The movant for sanctions shoulders the burden of showing a right to relief. GTE Commc'n Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).
Chapter 9 of the Civil Practice and Remedies Code is limited to matters not covered by Rule 13 or Chapter 10. See TEX. CIV. PRAC. & REM. CODE § 9.012(h); Nath v. Tex. Children's Hosp., 446 S.W.3d 355, 362 n.6 (Tex. 2014) (citing Low, 221 S.W.3d at 614). Here Green alleged Memorial Park's attorney signed a petition he knew was groundless, brought suit for the purpose of harassment, and filed a notice of nonsuit containing false statements. We therefore look to Rule 13.
In relevant part, Rule 13 provides:
The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.TEX. R. CIV. P. 13. Notably, a court may not impose Rule 13 sanctions for groundlessness alone. Instead, the document in question must be groundless and brought in bad faith, brought for the purpose of harassment, or false when made. Nath, 446 S.W.3d at 362-63.
Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. "Groundless" for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law . . . .
Memorial Park's original petition can be read as relating to claims based on conduct occurring after final disposition of the Brown County lawsuit. Arguably, then, res judicata might have no effect. Hernandez v. Del Ray Chem. Int'l, 56 S.W.3d 112, 116 (Tex. App.—Houston [14 Dist.] 2001, no pet.) ("a judgment in one suit will not operate as res judicata to a subsequent suit on the same question between the same parties where, in the interval, the facts have changed, or new facts have occurred which may alter the legal rights or relations of the parties").
As for the challenged statements in Memorial Park's notice of nonsuit, their accuracy was a question of fact. We have no findings of fact by the trial court. When resolving factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court. Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). On this record, no abuse of discretion by the trial court, in overruling Green's motion for sanctions, is shown. Green's issue challenging the denial of sanctions is overruled. Green's Remaining Issues
Green's remaining issues concern other interlocutory rulings by the trial court. We find that, on the record before us, discussion of those issues is not necessary to disposition of the appeal. TEX. R. APP. P. 47.1
Conclusion
Having found our jurisdiction proper and the March 13 order not a permanent injunction and having modified the February 3, 2015 order of dismissal by deleting its recital that a permanent injunction was granted, and having overruled Green's other issues necessary to our disposition, we affirm the judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b) (a court of appeals may "modify the trial court's judgment and affirm it as modified").
James T. Campbell
Justice