Opinion
NO. 01-15-00863-CV
05-09-2017
ELIZABETH THOMAS, Appellant v. MERITAGE HOMES OF TEXAS LLC. F/K/A MERITAGE HOMES OF TEXAS L.P., F/K/A LEGACY MONTEREY HOMES L.P. MTH LENDING GROUP L.P., F/K/A MERITAGE LENDING SERVICE PRIMARY RESIDENTIAL MORTGAGE INC., D/B/A F/K/A FLAGSTONE LENDING GROUP STEWART TITLE COMPANY, MTH TI, Appellees
On Appeal from the 61st District Court Harris County, Texas
Trial Court Case No. 2014-54729
MEMORANDUM OPINION
Appellant, Elizabeth Thomas, attempts to appeal the trial court's order that denied her request for a temporary injunction against Codilis & Stawiarski, P.C. ("Codilis") and a subsequent order that granted Codilis's plea to the jurisdiction. In her sole issue on appeal, Thomas argues that (1) the trial court abused its discretion when it failed to follow Texas Supreme Court precedent.
We affirm.
Background
The underlying dispute concerns a home that Thomas purchased in 2007. The mortgage on the house became unpaid and the lender, JP Morgan Chase Bank instituted foreclosure proceedings. Chase hired Codilis to conduct the non-judicial foreclosure sale.
After she filed multiple lawsuits in State and Federal courts and multiple bankruptcy filings, Thomas and other plaintiffs filed the present suit against multiple defendants on August 31, 2015, along with a request for a temporary restraining order. On August 31, 2015, the trial court granted a temporary restraining order that restrained Codilis from selling the home at a non-judicial foreclosure sale.
On September 18, 2015, the trial court held a temporary injunction hearing. Codilis's counsel stated that he appeared strictly because of the trial court's order, which commanded his presence. Although Codilis's counsel waived notice for the hearing, he stated that Codilis had not been served and that it was not a proper party. Codilis's counsel argued that Thomas sued the wrong party because Codilis is just an agent of Chase and that Chase was the owner of the note. Codilis's counsel asked that the temporary injunction be denied and that Codilis be dismissed for being an improper party.
Although Codilis mentions that Thomas filed a fourth amended petition that named Codilis as a party, the only petition in the appellate record is the "Plaintiff's First Amended Supplemental Petition to the Plaintiffs Second Amended Petition and Request for Ex Parte Temporary Restraining Order and Application for Permanent Injunctions." Codilis is not listed as a defendant in this pleading.
The trial court said she did not think she had the necessary parties and that the temporary injunction could not be granted because the proper parties were not present. The trial court further stated that Chase is the entity that owns the loan and it was not a party to the lawsuit. After the trial court stated she was denying the temporary injunction and dissolving the temporary restraining order, Codilis's counsel asked that Codilis be dismissed from the case. The trial court said she was not sure if "anybody is a proper party in this case at this point because there hasn't been service that's been perfected. So, I don't know that I can dismiss something that I'm not real—I'm going to wait to see if there's a—an amended pleading; but if you want to file a Motion to Dismiss, then we can consider that later." The trial court concluded by denying the temporary injunction, and stating, "[t]here's the underlying case that's still pending here that obviously has been going on for a while, but we have to sort out who the actual parties are." Codilis's counsel responded that, "We will certainly wait for proper service of the underlying petition which we have not received at all."
In its order dated September 18, 2015, the trial court dissolved the temporary restraining order and denied Thomas's request for a temporary injunction. Thomas filed an "Emergency Motion for Reconsideration" on September 25, 2015, which the trial court denied on October 5, 2015. Thomas filed a notice of appeal of the trial court's order denying her a temporary injunction. On November 30, 2015, we received a notice of bankruptcy and stayed the appellate proceedings. After reinstating the case on January 21, 2016, Thomas filed her brief on January 26, 2016.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(4) (West Supp. 2016) (allowing interlocutory appeal of refusal to grant temporary injunction).
On February 9, 2016, Codilis filed a plea to the jurisdiction in the trial court. Codilis stated that according to Thomas's fourth amended petition, Thomas is the sole remaining plaintiff and Codilis is the sole defendant. Codilis argued that Thomas never served Codilis with a copy of any petition in the case and therefore the trial court lacks "subject-matter jurisdiction over Thomas's claims against [Codilis]."
On February 16, 2016, Codilis filed its appellee's brief and a motion to dismiss for lack of jurisdiction in this Court. We notified the parties on March 14, 2016 that Codilis's motion to dismiss was denied. On April 22, 2016, Thomas filed in this Court an emergency motion to stay the trial court's hearing on Codilis's plea to the jurisdiction that had been set for May 6, 2016. We denied the emergency motion to stay on April 25, 2016.
On May 4, 2016, Thomas responded in the trial court to Codilis's plea to the jurisdiction, arguing that Codilis "chose to present this same issue to the First Court of Appeals for a determination of: (1) whether C&S employee and prior counsel Jeffrey B. Hardaway September 18, 2015, appearance was a special appearance under Rule 120a which regulates special appearances and mandates a special appearance must be made by motion and affidavit and must not only be filed before anything else but also must be heard and determined before any other plea or pleading." Thomas further stated, "The Court of appeals has already resolved the issue as to service and whether these prior cases render the present case pending before trial court, moot when denying C&S motion to dismiss."
On May 10, 2016, the trial court entered an order that Codilis had not made a general appearance in the case, it did not have jurisdiction over Thomas's claims against Codilis, and that Thomas's claims and causes of action against Codilis were dismissed. On May 12, 2016, Thomas filed a First Amended Notice of Appeal stating that, "Appeal is taken from order issued on May 10, 2016."
On October 4, 2016, we abated the appeal to have the trial court clarify whether its May 10, 2016 order was a final order. A supplemental clerk's record was filed November 1, 2016 that included an amended final order dismissing Thomas's claims against Codilis dated October 27, 2016. Because we concluded that the amended order is final judgment, we reinstated the case on November 17, 2016.
Plea to the Jurisdiction
"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)). 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[.]").
Although Thomas filed an amended notice of appeal stating that she was appealing the trial court's granting of Codilis's plea to the jurisdiction, Thomas has neither asserted any argument in her brief, nor did she file an amended brief, addressing the trial court's order granting the plea to the jurisdiction. Arguments and claims of error not raised in the party's brief are considered waived. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996); Satterfield v. Satterfield, 448 S.W.2d 456, 460 (Tex. 1969); Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 563 n.2 (Tex. App.—Texarkana 2003, pet. denied); see also Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (prohibiting appellate courts from addressing unassigned error). Because Thomas has not raised any argument in her appellate brief that the trial court erred in granting the plea to the jurisdiction, any argument on this basis is waived. TEX. R. APP. P. 38.1.
Thomas does argue in her reply brief, filed February 19, 2016, prior to the trial court's order on the plea to the jurisdiction, that Codilis made a general appearance at the temporary injunction hearing. Arguments raised for the first time in a reply brief are also waived. See Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (arguments raised for first time in reply brief are waived).
Temporary Injunction
If a trial court renders a final order while an appeal from its grant or denial of a temporary injunction is pending, the appeal of the ruling on the injunctive relief becomes moot. See Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex. 1991). Because the trial court rendered a final order that disposed of all claims and parties on October 27, 2016, the appeal of the order denying a temporary injunction is moot, and it is therefore not necessary to address Thomas's appellate arguments regarding the denial of the temporary injunction. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the trial court's October 27, 2016 order dismissing Thomas's claims and causes of action against Codilis.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.