Opinion issued=20
April 24, =
2008
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-07-00601-CV
IN RE =
DAVID HENRY,=20
Relator
Original=20
Proceeding on Petition for Writ of =
Mandamus
*****
NO.=20
01-07-00622-CV
DAVID =
HENRY,=20
Appellant
v.
JAMES =
MCMICHAEL=20
AND ELIZABETH ANN KOEHLER, CO-INDEPENDENT EXECUTORS OF THE ESTATE =
OF W. T.=20
MCMICHAEL, AND CATHERINE MCMICHAEL, =
Appellees
On =
Appeal from=20
County Court at Law Number 1 and Probate =
Court
Brazoria County,=20
Texas
Trial =
Court Cause=20
No. PR029090-A
MEMORANDUM=20
OPINION
<=
/SPAN>On=20
interlocutory appeal, relator, David Henry alleges that the =
Brazoria=20
County trial court erred in issuing a temporary injunction =
enjoining his=20
prosecution of an action in a Harris County trial court because =
(1) the=20
Harris County court has dominant jurisdiction over the Brazoria =
County=20
court where a similar suit was filed and (2) neither the =
application for=20
temporary injunction filed in Brazoria County nor the evidence =
submitted=20
in support of that application satisfies the requisites for =
injunctive=20
relief under Texas Rule of Civil Procedure 680. Henry also =
petitions this=20
Court for a writ of mandamus directing the Brazoria County trial =
court to=20
set aside its order denying his motion to abate, by which the =
court=20
effectively asserts dominant jurisdiction. ![3DFootnote](3D"")
=
We=20
conclude that, because the Brazoria County trial court has =
dominant=20
jurisdiction over the claims asserted in Harris County, the =
Brazoria=20
County court did not err in issuing the temporary injunction and =
Henry=E2=80=99s=20
petition for writ of mandamus is denied.
Background
<=
/SPAN>W.T.=20
McMichael and Henry were joint owners of Girard Holdings. In 1997, =
W.T.=20
and Henry entered into a Stock Purchase Agreement (the =
=E2=80=9CAgreement=E2=80=9D) for=20
their ownership interests in Girard Holdings. The Agreement =
provided that,=20
if one died, the other would have the right to purchase his stock =
in=20
Girard Holdings for a price based on the stock=E2=80=99s book =
value at the time of=20
death. W.T.=E2=80=99s wife, Catherine McMichael, also signed the =
Agreement.=20
<=
/SPAN>W.T.=20
died on May 16, 2006. Four months later, Henry attempted to =
exercise his=20
right to buy W.T.=E2=80=99s 1000 shares of Girard Holdings for =
approximately=20
$148,000. After Henry sent a demand letter, Catherine McMichael =
refused to=20
sell the stock to him, alleging that, despite its book value, the =
stock=20
was actually worth between $2 and $4 million at the time of =
W.T.=E2=80=99s death.=20
<=
/SPAN>On=20
September 1, 2006, Catherine, along with James McMichael and =
Elizabeth Ann=20
Koehler, Catherine=E2=80=99s children and independent co-executors =
of W.T.=E2=80=99s=20
estate (collectively =E2=80=9Cthe McMichaels=E2=80=9D), filed an =
action for damages=20
against Henry in Brazoria County, where W.T. resided at the time =
of his=20
death. In this action, the McMichaels, on behalf of the estate, =
asserted=20
claims against Henry for breach of =
fiduciary duty,=20
fraud/misrepresentation, unjust enrichment, and for a declaratory =
judgment=20
that those wrongful acts rendered the Agreement =
unenforceable.=20
Henry filed a motion to abate in Brazoria County and a motion to =
transfer=20
venue to Harris County.
<=
/SPAN>Two=20
weeks later, on September 13, 2006, Henry sued the McMichaels in =
Harris=20
County, seeking specific performance of the Agreement and =
asserting a=20
breach of contract claim. The McMichaels filed a motion to =
transfer venue=20
to Brazoria County, and they later filed a plea in abatement in =
the Harris=20
County case, arguing that the Brazoria County court had dominant=20
jurisdiction because the two lawsuits were the same and because =
they filed=20
their lawsuit first in Brazoria County.
<=
/SPAN>In=20
November 2006, after a non-evidentiary hearing, the Harris County =
court=20
denied the McMichaels=E2=80=99 plea in abatement. Henry =
supplemented his motion to=20
abate in the Brazoria County court, attaching a copy of the Harris =
County=20
court=E2=80=99s order denying the McMichaels=E2=80=99 plea. After =
a hearing and receiving=20
further evidence from the parties, the Brazoria County court =
denied=20
Henry=E2=80=99s motions to abate and to transfer venue. =
<=
/SPAN>Henry=20
subsequently filed a motion for partial summary judgment in Harris =
County.=20
The McMichaels then refiled their plea in abatement in Harris =
County,=20
attaching a copy of the Brazoria County court=E2=80=99s order =
denying Henry=E2=80=99s=20
motions to abate and transfer venue. The Harris County court again =
denied=20
the McMichaels=E2=80=99 plea in abatement, and the McMichaels =
requested a=20
continuance on Henry=E2=80=99s motion for partial summary =
judgment, which request=20
the trial court granted.
<=
/SPAN>The=20
next week, the McMichaels filed an application for temporary =
restraining=20
order (=E2=80=9CTRO=E2=80=9D) in Brazoria County, and, on June 18, =
2007, the Brazoria=20
County court granted an ex parte TRO finding that it had dominant=20
jurisdiction and prohibiting Henry from proceeding with (1) a =
hearing on=20
his motion for partial summary judgment in the Harris County case =
and (2)=20
prosecution of the Harris County case. Nine days later, the trial =
court,=20
after hearing testimony from only the McMichaels=E2=80=99 =
attorney, granted a=20
temporary injunction on the same terms as the =
TRO.
<=
/SPAN>Henry=20
filed this petition for writ of mandamus on June 26, 2007, =
challenging the=20
Brazoria County court=E2=80=99s order denying his motion to =
abate.=20
The next =
day, the=20
Brazoria County court signed an order for temporary injunction. =
Henry then=20
filed this interlocutory appeal of the temporary injunction=20
order.
&=
nbsp; &n=
bsp; Interlocutory Appeal=E2=80=93Temporary =
Injunction
<=
/SPAN>In=20
this interlocutory appeal, Henry asserts that the Brazoria County =
trial=20
court erred in issuing a temporary injunction enjoining his =
prosecution of=20
the Harris County action because (1) the Harris County court has =
acquired=20
dominant jurisdiction over the Brazoria County court under the =
estoppel=20
exception to the general rule of dominant jurisdiction and (2) =
neither the=20
McMichaels=E2=80=99 application for temporary injunction nor the =
evidence=20
submitted in support of that application satisfies the requisites =
for=20
injunctive relief under Texas Rule of Civil Procedure 680.=20
Standard of=20
Review
&=
nbsp; Texas=20
state courts have the power to restrain persons from proceeding =
with suits=20
filed in other courts of this state by granting an =
=E2=80=9Canti-suit=20
injunction,=E2=80=9D abating =
proceedings in a=20
second forum. Gannon v.=20
Payne, 706=20
S.W.2d 304, 305 (Tex. 1986). The trial =
court=E2=80=99s decision=20
is reviewed under an abuse of discretion standard. Id. A trial court =
abuses its=20
discretion when it misapplies the law to the established facts of =
the=20
case. See=20
Downer v.=20
Aquamarine Operators, Inc., 701 S.W.2d 238, =
241=E2=80=9342=20
(Tex. 1985).
Dominant=20
Jurisdiction
=
In=20
his first issue, Henry argues that, although the Harris County =
action was=20
not the first to be filed, under the estoppel exception to the =
general=20
rule of dominant jurisdiction, the Harris County court acquired =
dominant=20
jurisdiction by denying the McMichaels=E2=80=99 plea of abatement =
before the=20
Brazoria County court denied Henry=E2=80=99s plea in abatement. =
We disagree. =
Henry=E2=80=99s =
arguments misapply=20
the estoppel exception to the facts of this case.
=
The=20
general rule of dominant jurisdiction is that, where a suit would =
be=20
proper in more than one county, the county in which the suit was =
first=20
filed acquires dominant jurisdiction to the exclusion of other =
counties of=20
equal stature. Curtis v.=20
Gibbs, 511=20
S.W.2d 263, 267 (Tex. 1974); Lamar Sav. =
Ass=E2=80=99n v.=20
White, 731 S.W.2d 715, 716 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1987, orig. proceeding). =E2=80=9CAs long =
as the forum is a=20
proper one, it is the plaintiff=E2=80=99s privilege to choose the =
forum.=E2=80=9D Wyatt=20
v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.=20
1988).
However, the =
doctrine of=20
estoppel is a long-established exception to this rule. =
See V.D. Anderson =
Co. v.=20
Young, 128 Tex. 631, 636=E2=80=9337, 101 S.W.2d 798, 800 =
(1937). Under that =
doctrine, a=20
plaintiff who filed the first suit may be estopped from asserting =
the=20
dominant jurisdiction of the first court if it is found that he is =
guilty=20
of inequitable conduct. Id. at 800; see =
also=20
Russell v. Taylor, 121 Tex. 450, 458=E2=80=9359, 49 S.W.2d =
733, 736 (1932);=20
Johnson v. Avery, 414 S.W.2d 441, 443 (Tex. =
1966).=20
=
Estoppel=20
is a fact issue that must be determined by the trial court where =
the plea=20
in abatement is filed. Parr v. Hamilton, 437 S.W.2d 29, 31 =
(Tex.=20
Civ. App.=E2=80=94Corpus Christi 1968, no writ). However, contrary =
to Henry=E2=80=99s=20
argument, the mere fact that a second court is the first to rule =
on a plea=20
in abatement alone does not confer dominant jurisdiction to that =
second=20
court nor does this mere fact estop the proponent of the plea from =
continuing to assert the dominant jurisdiction of the court where =
the=20
action was first filed. See Curtis, 511 S.W.2d at 267. =
To=20
acquire dominant jurisdiction under the estoppel exception, the =
second=20
court must also resolve the fact issue of estoppel against the=20
proponent of the plea in its ruling. See id. =
Accordingly, if a=20
party =
files a=20
plea in abatement in the second trial court, and the second court, =
in=20
denying the plea, is the first court to resolve the fact issue of =
estoppel=20
against the proponent of the plea, the second court becomes vested =
with=20
dominant jurisdiction. Id. That ruling postpones the action =
in the=20
first court until the second court finally disposes of the case.=20
Id.=20
=
In this case, the =
record=20
does not establish that, in denying the McMichaels=E2=80=99 plea, =
the Harris=20
County court ever made a finding as to estoppel. =
Accordingly, the=20
estoppel exception cannot apply to the facts of this case. Id. =
We=20
hold that the Harris County court did not acquire dominant =
jurisdiction=20
over the Brazoria County court, and we overrule issue =
one.
Anti-Suit=20
Injunction
=
In=20
his second issue, Henry argues that the trial court erred in =
granting the=20
anti-suit injunction because neither the McMichaels=E2=80=99 =
application nor the=20
evidence submitted in support of the application established the =
requisite=20
elements of a temporary injunction under the Texas Rules of Civil=20
Procedure: a=20
probable right to recovery, irreparable harm, and no adequate =
remedy at=20
law. We disagree.=20
<=
/SPAN>When=20
a party files suit in a court of competent jurisdiction, that =
court is=20
entitled to proceed to judgment and may protect its jurisdiction =
by=20
enjoining the parties from proceeding in a suit subsequently filed =
in=20
another court of this state. Perry v. Del=20
Rio, 66 S.W.3d 239, =
252 (Tex.=20
2001); Gannon, 706 S.W.2d at 305. Further, Texas =
courts are=20
empowered to enjoin parties from going forward with litigation in =
another=20
county. See Christensen v. Integrity Ins. Co., 719 S.W.2d =
161, 163=20
(Tex. 1986). Although courts of this state have that power, =
however, the=20
principle of comity requires that courts exercise this equitable =
power=20
sparingly and only in very special circumstances. See Golden =
Rule Ins.=20
Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996); =
Christensen,=20
719 S.W.2d at 163.
=
The Texas Supreme =
Court has=20
observed that an anti-suit injunction is appropriate=20
to:
=
(1) address=20
a threat to the court=E2=80=99s =
jurisdiction,
=
(2) prevent=20
the evasion of important public policy,
=
(3) prevent=20
a multiplicity of suits, or
(4)protect a party =
from=20
vexatious or harassing litigation.
Gonzalez v. =
Reliant Energy,=20
Inc., 159=20
S.W.3d 615, 623 (Tex. 2005). The party =
seeking the=20
injunction must show that =E2=80=9Ca clear equity demands=E2=80=9D =
the injunction because=20
of one of those four circumstances. Id. Under the third =
category, a=20
single parallel proceeding in another forum does not constitute a=20
multiplicity of suits and cannot, by itself, justify the issuance =
of an=20
anti-suit injunction. Golden Rule, 925 S.W.2d at =
651=E2=80=9352. Before an=20
anti-suit injunction can properly issue, the requesting party must =
demonstrate that =E2=80=9Cvery special circumstances=E2=80=9D =
exist such that an=20
injunction is necessary to prevent an =E2=80=9Cirreparable =
miscarriage of=20
justice.=E2=80=9D See id. at 651.
=
This=20
case merits an anti-suit injunction for the first =
reason=E2=80=94the need to=20
protect the Brazoria County court from the threat posed by the =
Harris=20
County case to its jurisdiction. Because the =
Brazoria County=20
action was the=20
first filed and there has been no finding of estoppel, the =
Brazoria County=20
court has dominant jurisdiction over the Harris County court. =
Thus, as=20
found by the Brazoria County court in its order, if the injunction =
did not=20
issue, the McMichaels could be irreparably harmed by the pending=20
dispositive motions in the Harris County action. Without the =
injunction,=20
Henry would proceed with the pending summary judgment hearing and =
trial on=20
the merits in the Harris County action, thereby depriving the =
Brazoria=20
County court of its jurisdiction to hear the case and depriving =
the=20
McMichaels of their choice of forum without an effective remedy =
for this=20
error. See Gonzalez, 159 S.W.3d. at 623. =
=
Likewise, =
clear equity =
justifies an =
anti-suit=20
injunction in this case. The fact that the =
McMicheals=20
have correctly argued and established that the Harris County court =
does=20
not have dominant jurisdiction and has not brought about a stay or =
abatement of the Harris County action. That action =
remains pending,=20
and, absent an injunction, Henry could continue to pursue both =
state court=20
actions, only one of which has dominant jurisdiction, requiring =
the=20
McMichaels to defend both actions and pursue appeals in both, if necessary. =
To allow=20
the Harris County action to proceed under these circumstances =
would be=20
contrary to the longstanding public =E2=80=9Cpolicy of the =
courts and the=20
legislature of this state to avoid a multiplicity of =
lawsuits.=E2=80=9D See=20
id.
=
Accordingly,=20
we hold that the trial court did not err in granting the =
McMichaels=E2=80=99=20
temporary injunction, and we overrule issue two.
Mandamus=E2=80=93Motion to=20
Abate
&nbs=
p;Finally,=20
Henry filed a petition for writ of mandamus asserting that the =
Brazoria=20
County court erred in denying his motion to=20
abate.
=
Mandamus=20
relief is available only to correct a =E2=80=9Cclear abuse of =
discretion=E2=80=9D when=20
there is no adequate remedy by appeal. Walker v. Packer, =
827 S.W.2d=20
833, 839 (Tex. 1992). Mandamus relief may be granted when =
one court=20
actively interferes with the jurisdiction of another court. In =
re=20
Reliant Energy, Inc., 159 S.W.3d 624, 626 (Tex. 2005) (orig.=20
proceeding). In this =
case, as shown=20
above, because the Brazoria County trial court had dominant =
jurisdiction=20
over the Harris County action, the Brazoria County trial court did =
not=20
abuse its discretion in denying Henry=E2=80=99s motion to abate. =
Accordingly, we=20
deny the petition for writ of mandamus.
ConclusionWe hold that the trial court =
did not err=20
in granting the McMichaels=E2=80=99 temporary injunction. We =
further hold that the=20
trial court did not abuse its discretion by denying =
Henry=E2=80=99s motion to=20
abate. Accordingly, we affirm the order of the trial court =
granting the=20
temporary injunction and deny Henry=E2=80=99s petition for=20
mandamus.
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; George=20
C. Hanks, Jr.
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; Justice
Panel =
consists of=20
Justices Taft, Hanks, and=20
Higley. |