Opinion
NO. 09-15-00232-CV
05-19-2016
MICHAEL B. BENNETT AND BAKER BOTTS L.L.P., Appellants v. TIERRA POL, S. DE R.L. DE C.V., Appellee
On Appeal from the County Court at Law No. 1 Jefferson County, Texas
Trial Cause No. 125719
MEMORANDUM OPINION
This appeal arises out of a temporary anti-suit injunction granted in favor of Tierra Pol, S. de R.L. de C.V. against Michael B. Bennett and Baker Botts L.L.P. When the trial court's injunctive order expressly enjoined attorneys who were not named parties to the lawsuit and were not agents authorized to represent the only named defendant to such lawsuit, the attorneys filed a motion to dissolve the injunction against them after they were threatened with contempt for allegedly violating the terms of the injunctive order. The trial court denied the motion to dissolve. In two appellate issues, the attorneys challenge the denial of their motion to dissolve. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2015). We reverse and vacate the trial court's injunctive order for want of personal jurisdiction.
Tierra Pol has not asserted any affirmative claims for relief against the attorneys in their application for injunctive relief. Tex. R. Civ. P. 47, 49.
Background
On February 3, 2014, Snell Ventures, S. de R.L. de C.V., represented by the attorney appellants, sued Villas del Mar, S. de R.L. de C.V. in Harris County, Texas, seeking to enforce an exclusive marketing agreement ("EMA") regarding the sale of residential lots in the Villas del Mar resort community in Mexico, including those in a section known as "La Montaña." Snell complained that Villas del Mar refused to pay agreed-upon commissions for the sale of such lots and failed to comply with the EMA by abrogating Snell's exclusive right to list and market the units in the La Montaña section of the resort.
On February 28, 2014, Tierra Pol sued Snell in the County Court at Law in Jefferson County, Texas seeking declaratory relief. Specifically, Tierra Pol, as the alleged owner of La Montaña, sought declaration that Snell "has no commission or other interest, contractual, legal, equitable, or otherwise" in the La Montaña property. Tierra Pol also sought an injunction to prevent Snell from representing to any third-party that Snell has a legal interest in Tierra Pol's La Montaña property. Snell was served with the Jefferson County lawsuit, but did not answer or otherwise make an appearance. Thereafter, Tierra Pol sought and obtained a default judgment against Snell on June 20, 2014. Meanwhile, on June 3, 2014, Snell filed an application for an anti-suit injunction against Tierra Pol in the Harris County lawsuit. Snell requested the Harris County court to enjoin Tierra Pol from proceeding with the Jefferson County lawsuit because the Jefferson County suit arose out of the same facts that formed the basis of the Harris County lawsuit between Villas del Mar and Snell.
On June 25, 2014, Tierra Pol initiated a second lawsuit against Snell in a County Court at Law in Jefferson County, seeking an "anti-anti-suit injunction[.]" Therein, Tierra Pol argued that Snell's Harris County lawsuit against Villas del Mar was Snell's attempt to acquire rights to commissions and fees, a matter on which the County Court at Law had ruled against Snell in the default judgment. Tierra Pol also argued that Snell's lawsuit against Villas del Mar was an improper attempt to restrain Tierra Pol from protecting its rights as previously established by the Jefferson County default judgment. Tierra Pol maintained that if the Harris County court granted Snell's application for anti-suit injunction, such an injunction would: (1) threaten the Jefferson County court's jurisdiction; (2) constitute a collateral attack on the default judgment; (3) "subvert the important public policy of having the Courts open to litigants such as Plaintiff[;]" and (4) "impose vexatious and harassing litigation on Tierra Pol, to the extent that it would be compelled to participate in the ongoing dispute between Snell and Villas del Mar." The County Court at Law entered a Temporary Restraining Order, which the court later extended. Despite the fact Tierra Pol never served Snell with its application or named the attorneys as parties to its suit, the Jefferson County court granted Tierra Pol's application seeking an anti-anti-suit injunction. By its terms, the temporary injunction purports to enjoin "attorneys for Defendant Snell, including Michael B. Bennett and the law firm of Baker, Botts LLP" from:
While the second lawsuit was assigned to the same county court at law in Jefferson County as the original lawsuit against Snell, it was initiated as a new lawsuit, under a new cause number, and not as a motion to enforce the default judgment in the first lawsuit.
Tierra Pol concedes that Snell is not a party to the injunction. --------
a. attempting to restrain any [j]udgment, order, claim or cause of action in Cause No. 124,939, Tierra Pol, S. De R.L. De C. V[.] v. Snell Ventures S. De R.L. De C.V., County Court at Law No. 1, Jefferson County, Texas;
b. pursuing the Application for Anti-Suit Injunction in Cause No. 2014-04792; Snell Ventures S. De R.L. De C.V. v. Villas Del Mar, S. De R.L. De C.V., [i]n the 55[th] Judicial District Court, Harris County, Texas;
c. filing or pursuing any action that challenges or seeks to re-adjudicate the findings and Judgment in Cause No. 124,939, Tierra Pol, S. De R.L. De C. V[.] v. Snell Ventures S. De R.L. De C. V.; in any Court, other than the Court rendering said Judgment - Jefferson County Court at Law No. 1;The trial court found injunctive relief necessary to protect against a threat to the trial court's jurisdiction, protect against a collateral attack on the default judgment, avoid "multiplicity of lawsuits regarding the same subject matter and enforcement of inconsistent judgments," and protect Tierra Pol from harassing litigation.
d. setting or appearing at any hearing on Snell's Application for Anti-Suit Injunction in Cause No. 2014-04792; Snell Ventures S. De R.L. De C. V. v. Villas Del Mar, S. De R.L. De C. V., [i]n the 55[th] Judicial District Court, Harris County, Texas;
e. pursuing any action or relief in any [c]ourt, other than Jefferson County Court at Law No. 1, seeking to restrain, attack or otherwise challenge the findings and Judgment entered in Cause No. 124,939, in the County Court at Law No. 1, Jefferson County, Texas.
In September 2014, Tierra Pol threatened to pursue contempt proceedings when the attorneys, on behalf of Snell, served Villas del Mar with discovery requests in the Harris County lawsuit. Snell obtained an ex parte temporary restraining order against Tierra Pol and its attorneys in the Harris County lawsuit to enjoin them from filing a motion for contempt in the Jefferson County lawsuit. However, the Harris County court, after an oral hearing, denied Snell's request to convert the temporary restraining order to a temporary injunction.
In November 2014, despite having still not served Snell with process, Tierra Pol prevailed in its request to have the County Court at Law in Jefferson County extend the temporary injunction. The appellants filed their motion to dissolve the temporary injunction in February 2015. In March 2015, the trial court extended the temporary injunction again and, in May, denied the appellants' motion to dissolve.
Preservation of Error
In issue one, the appellants, Michael B. Bennett and Baker Botts L.L.P., contend that the injunction improperly attempts to enjoin non-parties and fails to meet the requirements for injunctive relief under Rule 683 of the Texas Rules of Civil Procedure. The appellants argue that the trial court committed "fundamental error in granting injunctive relief against non-parties when the real party in interest had not been served or appeared." Tierra Pol responds that the appellants failed to preserve their complaints for appellate review. However, complaints regarding jurisdiction and failure to comply with Rule 683 are not subject to waiver. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); see also Int'l Bhd. of Elec. Workers Local Union 479 v. Becon Constr. Co., 104 S.W.3d 239, 243 (Tex. App.—Beaumont 2003, no pet.). A party is not required to object to preserve a complaint that the party seeking an injunction failed to present sufficient evidence supporting an injunction. See Letson v. Barnes, 979 S.W.2d 414, 419 n.2 (Tex. App.—Amarillo 1998, pet. denied). Accordingly, the appellants' complaints are properly before this Court.
Motion to Dissolve
Generally, in an accelerated appeal, the appealing party must file a notice of appeal within twenty days after the trial court signs its judgment or order and, absent a timely motion for extension of time to file the notice of appeal, there are no exceptions to this rule. See Tex. R. App. P. 26.1(b), 26.3; see also In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); In re Estate of Cobb, No. 09-13-00348-CV, 2013 WL 6705991, at *1 (Tex. App.—Beaumont Dec. 19, 2013, no pet.) (mem. op.). In this case, the trial court signed the temporary injunction on July 22, 2014. The appellants filed their notice of appeal on June 8, 2015, long after the twenty days for filing an accelerated appeal had expired. See Tex. R. App. P. 26.1(b), 26.3. The record does not indicate that the appellants sought an extension or that their notice of appeal can be treated as an implied motion for an extension. See Tex. R. App. P. 26.3; see also Cobb, 2013 WL 6705991, at *1. However, the appellants are not named parties to the lawsuit from which this appeal arises, but are, instead, the law firm and a partner in that law firm who represent the only named party defendant to the lawsuit, Snell, in a separate lawsuit filed in Harris County.
Generally, when a party seeks an out-of-time accelerated appeal of an injunctive order, our review is limited to whether the trial court properly denied the party's motion to dissolve the temporary injunction. See Cobb, 2013 WL 6705991, at *1. We review the trial court's decision for a clear abuse of discretion. Id. at *2. "[W]e presume the injunction was not improvidently granted and that the record supports the trial court's ruling." Id. The purpose of a motion to dissolve is not to give an unsuccessful party an opportunity to re-litigate the propriety of the original injunction, but it is intended to show changed circumstances, changes in the law, or fundamental error that requires modification or dissolution of the injunction. Id. "Absent fundamental error or a change in conditions, a trial court generally has no duty to dissolve an injunction." Id.
Lack of jurisdiction is fundamental error. See Cotton v. Cotton, 57 S.W.3d 506, 509 (Tex. App.—Waco 2001, no pet.). "The most fundamental issue for any court to determine is jurisdiction." Id. "A judgment is void...when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court." Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). "Because jurisdiction is necessary for the court to have power to act, it may be questioned at any time by any party or the court itself." Cotton, 57 S.W.3d at 509-10.
"It is the general rule that service on an agent or attorney is not sufficient to effect service on the principal unless the person to be served expressly authorized an agent or attorney to receive process." H.L. McRae Co. v. Hooker Const. Co., 579 S.W.2d 62, 64 (Tex. App.—Austin 1979, no writ). "Service of citation on a defendant's attorney, absent defendant's explicit authorization, will not constitute service to give the trial court personal jurisdiction of [the] defendant." Id. "Personal jurisdiction, a vital component of a valid judgment, is dependent 'upon citation issued and served in a manner provided for by law.'" In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). "If service is invalid, it is 'of no effect' and cannot establish the trial court's jurisdiction over a party." Id. (quoting Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam)).
According to the appellants, the injunction was improper because they were not named parties to Tierra Pol's lawsuit and no cause of action or affirmative claims for relief were asserted against them in the Jefferson County lawsuit. And, Snell, the only named defendant in the lawsuit, has never been served with process or otherwise made an appearance in the lawsuit. There is nothing in the record to show that the appellants were authorized to accept service or otherwise act as agent for service for Snell in the Jefferson County lawsuit. The record does not show that the trial court considered or was asked to consider joining the attorneys as parties in the action in accordance with Rule 39 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 39. The record further does not show that Tierra Pol obtained a court order allowing any form of substituted service of process on Snell. See Tex. R. Civ. P. 106. Tierra Pol does not dispute that Snell has not been served with process and even concedes that Snell was not made a party to the Temporary Injunction. Therefore, the trial court never acquired personal jurisdiction over Snell. Relying on Rule 683 of the Texas Rules of Civil Procedure, Tierra Pol contends that Snell's attorneys, including the appellants, were properly served and are bound by the injunction. Rule 683 states that an injunction binds the "parties to the action, their officers, agents, servants, employees, and attorneys, and . . . 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. The only parties to the action from which this appeal arises are Tierra Pol and Snell. Tierra Pol has not asserted any claims against the appellants, and there are no pleaded allegations that the appellants are officers, agents, servants, or employees of Snell. Those listed in Rule 683 other than the parties to the lawsuit are only enjoined so far as they are the agent of the party enjoined and act as the party's agent. See generally San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 701 (Tex. 1956). Therefore, contrary to Tierra Pol's contention, on the record before us, Rule 683 does not provide the trial court with the authority to bind the attorneys by the temporary injunction order before us.
Whether a Texas court has personal jurisdiction is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). A claimed defect in service of process "challenges the trial court's personal jurisdiction over the defendant." Livanos v. Livanos, 333 S.W.3d 868, 874 (Tex. App.—Houston [1st Dist.] 2010, no pet.); see Tex. R. Civ. P. 124 (no judgment shall "be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant[.]").
Here, the attorneys were never named as parties to the anti-anti-injunction lawsuit nor was it shown that Snell had authorized the attorneys to accept process as its authorized agent. Thus, the service of process upon the attorneys was ineffective to allow the trial court to exercise personal jurisdiction over the attorneys, either individually or as agents for Snell. See H.L. McRae Co., 579 S.W.2d at 64. Therefore, we conclude the trial court was without jurisdiction to issue any judgment or injunctive order against the attorneys.
We sustain the appellants' first issue. Because this issue is dispositive of the appeal, we do not need to reach the remaining issue. We reverse and vacate the Temporary Anti-Anti-Suit Injunction dated July 22, 2014, ab initio, together with all extensions, for want of personal jurisdiction.
REVERSED AND VACATED.
/s/_________
CHARLES KREGER
Justice Submitted on September 15, 2015
Opinion Delivered May 19, 2016 Before McKeithen, C.J., Kreger and Horton, JJ.