Summary
recognizing that a trial court may enforce its final judgment with an anti-suit injunction even after its plenary power expires, and on appeal, affirming a permanent anti-suit injunction
Summary of this case from In re Petrobras Am. Inc.Opinion
NO. 03-14-00460-CV
03-31-2016
Sandra Ford and The Ruby and Annie Smith Family Partnership, Appellants v. William Ruth, Judgment Creditor, Appellee
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 424TH JUDICIAL DISTRICT
NO. 9145, HONORABLE DANIEL H. MILLS, JUDGE PRESIDINGMEMORANDUM OPINION
William Ruth sued appellants Sandra Ford and The Ruby and Annie Smith Family Partnership in San Saba County for breach of an agreement, statutory fraud, and attorney's fees. The San Saba County district court granted specific performance to William Ruth pursuant to an agreed order on his motion for summary judgment. Based on his belief that Ford and the Partnership were collaterally attacking that agreed order in a separate lawsuit in Brown County, Ruth later sought injunctive relief from the San Saba County district court. That court issued a permanent injunction enjoining appellants from moving forward with any collateral attack in the Brown County lawsuit. Appellants then perfected this appeal from the San Saba County district court's permanent injunction. For the following reasons, we will affirm.
BACKGROUND
Because the parties are familiar with the facts of this case, its procedural history, and the related lawsuits, we provide only a general overview here. We provide additional facts in the opinion as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
This appeal is the most recent chapter in a long and contentious family dispute. Further, the procedural background of this case is complicated. The injunction that appellants are appealing is the result of a string of lawsuits concerning certain real property (the property) belonging to the Ruby and Annie Smith Family Partnership (the Partnership) and/or its general partners, Arma Lee Crow and her three children: James Crow, Sandra Ford, and Peggy Joyce Ruth. Appellee William Ruth is not a partner. He is the son of Peggy, grandson of Arma, and nephew of James and Sandra.
The parties' pleadings suggest that the Partnership owns the property subject to a lien. However, the record and pleadings do not make clear exactly who or what entities have ownership interests in the property.
For the sake of clarity, we refer to the parties by their given names.
In February 2010, Arma, James, and Sandra sued Peggy in Brown County for partition of the property (the first Brown County lawsuit). In September 2010, the parties to the first Brown County lawsuit entered into a mediated settlement agreement to sell the property. They later entered into a contract to sell the property. William asserts that he was one of the buyers pursuant to this contract. He further asserts that the sale could not take place because James's interest in the property was subject to criminal forfeiture as a result of his conviction for Medicaid fraud, which had caused the property to become encumbered by a lien.
In October 2011, William sued James and Sandra individually and on behalf of the Partnership in Brown County, seeking to expel James from the Partnership. In this second Brown County lawsuit, William alleged breach of fiduciary duty, defamation, and fraud.
In January 2012, William filed a lawsuit against the Partnership in San Saba County, asserting claims of breach of agreement and statutory fraud and seeking specific performance and attorney's fees. William proceeded to file a motion for summary judgment, requesting specific performance of the contract to sell the property and damages. The San Saba County district court held a hearing on William's motion for summary judgment on March 22, 2012. William asserts that he orally abandoned his claims for statutory fraud and attorney's fees at this hearing. The district court entered an agreed order that same day, granting summary judgment to William for breach of agreement and ordering specific performance of the contract to sell the property. Peggy signed this agreed order on the Partnership's behalf.
The San Saba County district court contacted the parties pursuant to Texas Rule of Civil Procedure 165a regarding the status of the San Saba County case on April 16, 2013. William responded via letter, asserting that the agreed order on his motion for summary judgment "dispos[ed] of all claims and matters of controversies. For this reason, the case has been resolved, and no motion will be filed concerning the matter." On June 26, 2013, the district court dismissed the case for want of prosecution. None of the parties filed a motion to reinstate or otherwise challenged the dismissal of the San Saba County case.
The two Brown County lawsuits were subsequently consolidated in the 35th Judicial District under cause number CV-10-02-049-A. The Partnership filed a plea in intervention in the consolidated Brown County lawsuit on December 30, 2013, seeking a declaration that the agreed order in the San Saba County lawsuit is null, of no legal effect, and was obtained by fraud.
William filed a motion for an anti-suit injunction, turnover order, and original petition in the San Saba County lawsuit on April 14, 2014. He raised a number of new claims and alleged that appellants were improperly attempting to collaterally attack the agreed order in the San Saba County lawsuit through their filings in the consolidated Brown County lawsuit. Appellants did not file any answer or response. William filed a motion for default judgment, asking the San Saba County district court to grant a default judgment as to liability and set a hearing on the permanent injunction, turnover order, and damages. The district court granted William's motion for default judgment and set the hearing for June 25, 2014. Appellants did not attend the hearing, and the district court granted a permanent injunction enjoining appellants "from moving forward in the 35th District Court in collaterally attacking the judgment entered by this [San Saba County district] court on March 22, 2012." The district court also severed the permanent injunction from the remaining matters so that it could be a final judgment. Appellants then perfected this appeal from the permanent injunction, seeking a declaration that the permanent injunction "is void and a nullity and is of no force and effect."
DISCUSSION
Appellants ask this Court to declare the permanent injunction void. They argue that the San Saba County district court lacked jurisdiction when it granted the permanent injunction on June 25, 2014 because its plenary power had expired on July 26, 2013—thirty days after it had dismissed the case for want of prosecution. Appellants concede that a court can issue an injunction to enforce its final judgment beyond the plenary period. However, they contend that the order dismissing for want of prosecution was the final judgment in the San Saba County lawsuit rather than the agreed order. Appellants also argue that the trial court abused its discretion by granting an overly broad injunction and that the injunction is void because it was entered in the wrong county.
William asserts that appellants waived these arguments by failing to make any complaint in the San Saba County district court regarding the finality of the agreed order or the validity of the permanent injunction. He also maintains that the San Saba County district court had the power to issue an injunction protecting the agreed order because the agreed order was a final judgment.
Appellants waived their claims regarding venue and over-breadth
Appellants contend that the district court abused its discretion in issuing the permanent injunction because it is overly broad and contend that it is void because it was issued by a judge sitting in Burnett County while mandatory venue lay in San Saba County. Appellants did not attend the hearing on the permanent injunction or file any motions or pleadings related to William's motion for anti-suit injunction, turnover order, and original petition. Consequently, the San Saba County district court set a hearing on the permanent injunction and granted it as requested in William's motion for default judgment. A party can bring an appeal to have a default judgment declared void. See Eguia v. Eguia, 367 S.W.3d 455, 459 (Tex. App.—Corpus Christi 2012, no pet.) (citing State ex. rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995)). This declaration is the only relief that appellants request, and a proceeding instituted for the sole purpose of declaring a prior judgment void is a direct attack. Sweetwater Austin Props., L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 885 (Tex. App.—Austin 2009, pet. denied). It must, therefore, "comply with those requirements applicable to the type of direct attack employed . . . ." Id. "Examples of direct attacks include appeals, motions for new trial, and equitable bills of review." Id. Appellants have not filed a motion for new trial or bill of review to have the default judgment set aside so that they can contest these issues at the trial level. Instead, they have opted to appeal the merits of the permanent injunction directly to this Court. They must, therefore, comply with the Texas Rules of Appellate Procedure. This includes Rule 33.1, which requires appellants to preserve their complaints for appellate review by raising them before the trial court. See Tex. R. App. P. 33.1; but see City of Hous. v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (issues of fundamental error can be raised for first time on appeal). There is nothing in the record indicating that appellants contested venue or contended that the permanent injunction was overly broad in district court. Instead, they make these complaints for the first time on appeal and have, therefore, failed to preserve these issues for review. See Tex. R. App. P. 33.1.
Plenary Power
On appeal, appellants insist that the agreed order is not a final judgment and that this ultimately undermined the district court's jurisdiction to grant an injunction to enforce the agreed order after the court's plenary power expired. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000) (jurisdiction generally ends when plenary power expires 30 days after court makes final judgment); but see Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (courts retain jurisdiction to enforce final judgment after plenary power expires).
We can find nothing in the record suggesting that appellants contested the agreed order's finality or argued that this undermined the permanent injunction in district court. See Tex. R. App. P. 33.1 (record must show that appellant preserved complaint for appellate review by presenting complaint to trial court). However, because this argument implicates the district court's jurisdiction, we will address it de novo nevertheless. See Evans v. Linares, No. 14-14-00468-CV, 2015 WL 1874232, at *3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015, pet. dism'd w.o.j.) (mem. op.) (addressing argument that judgment issued after plenary power expired was void even though appellant failed to raise argument below because plenary power is jurisdictional issue) (citing Rhule, 417 S.W.3d at 442 ("A court acting without [subject-matter jurisdiction] commits fundamental error that we may review for the first time on appeal.")); see also In re Guardianship of Miller, 299 S.W.3d 179, 194 (Tex. App.—Dallas 2009, no pet.) (finality of an order is legal question of jurisdiction demanding de novo review).
Appellants and William agree that a trial court may enforce its final judgments with an anti-suit injunction even after its plenary power expires. See Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 234 S.W.3d 788, 795 (Tex. App.—Tyler 2007, no pet.). However, appellants maintain that the agreed order was not a final judgment because it: (1) did not dispose of William's claims for attorney's fees and statutory fraud; (2) does not contain the appropriate language designating it as the final judgment; and (3) was not definite and certain. This argument overlooks the effect of the dismissal in the San Saba County case.
When a final judgment resolves all claims in a case, any previous interlocutory judgment or order is merged into that final judgment. See, e.g., Parking Co. of Am. v. Wilson, 58 S.W.3d 742, 742 (Tex. 2001); Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1972); Radelow-Gittens Real Prop. Mgmt. v. Pamex Foods, 735 S.W.2d 558, 560 (Tex. App.—Dallas 1987, writ ref'd n.r.e.) ("Interlocutory judgments by the trial court are merged into the final judgment and thus become final for purposes of appeal, whether or not the interlocutory judgment is specifically named within the final judgment."). Although a dismissal for want of prosecution is not a judgment on the merits for the purposes of res judicata, it is generally a final judgment for the purpose of the merger doctrine, plenary power, and appeals. See In re Gen. Motors Corp., 296 S.W.3d 813, 820-21 (Tex. App.—Austin 2009, orig. proceeding) (dismissal for want of prosecution triggers plenary period, which expires thirty days after trial court signs order of dismissal); Aguilar v. Maverick Eng'g Co., 752 S.W.2d 727, 728 (Tex. App.—Corpus Christi 1988, no writ) (interlocutory summary-judgment order merged into final judgment dismissing for want of prosecution); Texas Att'y Gen. v. Daurbigny, 702 S.W.2d 298, 300 (Tex. App.—Houston [1st Dist.] 1985, no writ) (dismissal for want of prosecution is final judgment, though not judgment on merits (citing Rizk v. Mayad, 603 S.W.2d 773 (Tex. 1980); Gracey v. West, 422 S.W.2d 913, 917 (Tex. 1968))); In re Tilotta, No. 01-11-00570-CV, 2011 WL 3505502, at *1 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011, orig. proceeding) (mem. op.) (per curiam) (interlocutory order sustaining contest to affidavit of indigence merged into final judgment dismissing for want of prosecution); Williams v. Tyra, No. 06-06-00118-CV, 2007 WL 1648785, at *1 (Tex. App.—Texarkana June 8, 2007, no pet.) (mem. op.) (trial court granted summary judgment after dismissing for want of prosecution, but appellate court affirmed because trial court acted within plenary period). But cf. Legrand v. Niagara Fire Ins. Co., 743 S.W.2d 241, 242 (Tex. App.—Tyler 1987, no writ) (dismissal for want of prosecution is not final judgment if it fails to dispose of pending cross-action). Appellants had no cross-action or counterclaims that could prevent the dismissal for want of prosecution from being the final judgment. To the contrary, they insist that the dismissal for want of prosecution was a final judgment triggering the plenary period. They further contend that the agreed order lacks the qualities necessary of a final judgment, but do not explain how this would prevent the agreed order from being merged into the final judgment or prevent the district court from issuing an injunction to enforce the agreed order once it was merged with the final judgment.
Even assuming that the agreed order was interlocutory, it would have been merged into the final judgment. We therefore conclude that the district court had jurisdiction to issue the injunction.
CONCLUSION
For the foregoing reasons, we affirm the district court's order granting the permanent injunction.
Appellants sought leave to file an untimely reply brief to which William objected. Because the reply brief would not affect our decision, we deny appellants' motion for leave. See Tex. R. App. P. 47.1. --------
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: March 31, 2016