*1 284 years, in accordance 25
mum terra of Su, Appellant Nobu aka 12.42(d). HSIN-CHI-SU Id. section jury, of findings upon the Based v. for the offense range punishment of lawful COMPANY, DRILLING VANTAGE was that Appellant was convicted for which Appellee i.e., by felony, impris degree of second not than more for term onment NO. 14-14-00461-CV years two twenty less than years or $10,000. exceed Penal Tex. fine Texas, Appeals Court 2011), (West § Because 12.33 Ann. Code (14th Dist.). Houston exceeds of confinement assessed term by.law, the the maximum term allowable 14, July 2015 Opinion filed illegal. parte Ex is punishment assessed of En Banc Dissenting Opinion Denial (Tex.Crim. Parrott, 396 S.W.3d Rehearing November State, v. App.2013); Farias (Tex.App.-Houston [1st Dist.] ref'd) that a (holding sentence pet. punishment statutory range outside be re is and must offense void an State,
versed, citing Hern S.W.2.d Accord (Tex.Crim.App.1994)). fourth issue is sustained.
ingly, Appellant’s
Conclusion pf judg- portion the verdict and
That Appellant’s conviction pertaining
ment affirmed, of the ver- portion
is while Appel- judgment pertaining
dict and this punishment
lant’s reversed and trial
cause is remanded to pursuant to article punishment
new
44.29(b) Texas Criminal Code for a remanding cause
Procedure. hearing, we no punishment express
new range punish-
opinion appropriate
ment on retrial.6 12.42(d) cability upon jury findings first the. Texas Penal of¡section 6. Based from the .of , of, ps trial, range punishment issue appropriate Code was an before and. opportunity degree expressly felony. The to offer would be that of a second decline adequate question opinion question, .without the State can addi- on that of whether seek regarding briefing. findings appli- tional on retrial *4 OPINION Donovan, Justice John Drilling Company Appellee, Hsin-Chi-Su (“Vantage”), appellant, sued (“Su”), alia, to seeking, inter aka Nobu Su held Su’s whol- recover affiliate, on the Capital, ly-owned acquired via ground stock was fiduciary duties. fraud and breach injunction temporary sighed trial court of, or precluding disposing other- fi- encumbering, pending the shares wise - judgment. nal issues, In five Su attacks appellate' injunctive of the' relief and merits temporary-injunction bond amount post. Su has Vantage was ordered *5 to court a “Motion Void also filed in our Proceedings, Or Alternatively State Court Injunction Temporary Motion To Increase In- Pending Interlocutory Appeal of Bond junction the motion Órdér.” ordered We deny the motion We taken with case. temporary injunction. and affirm
I. BACKGROUND History1 A. Factual Vantage spe- in 2006 as was formed to entity acquire cial-purpose-acquisition Bhatia, Slovacek, Joseph 0. Vineet drilling oil-and-gas oper- for lease to assets Houston, TX, appellant. for Vantage acquire jack-up to sought ators.2 Gibbs, Houston, TX, appel- C. Robin ultra-deepwater drillships rigs lee. it need for assets in those discerned
industry. Vantage officers were Su, Su, Boyce, magnate. Panel consists Justices shipping introduced Jamison, affiliates, through place had deals in and Donovan. offering applicable through public Consistent with standard of tion an initial 1. our review, history forth pending we set the factual based placed in trust shares. funds are light viewing in the evidence most acquisition. an Once share- identification of ruling. favorable the trial court’s See La targeted acquisition, the approve holders Tex., Mattioli, P.C. v. sikPlus of money is removed from trust fund (Tex.App.-Houston [14th Dist.] Vantage’s acquisition. invested mil- founders pet.). no and raised lions of own funds millions their offering through public May initial an special-purpose-acquisition per- 2. The status acquisi- mits a business to raise funds for an type Vantage Vantage build the of assets Daewoo when pay- made its sought acquire. guarantee ments to Vantage Su would if refund Daewoo defaulted de- 1. The Transactions livery contrast, of the. ship; financers Vantage Su or his affiliates entered would an unnecessary risk with re- detect transactions, into multiple including the spect to Vantage receiving a refund following:3 event of a Daewoo default if payments had July 2007 Memorandum of Under- only., been 'Vantage made' maintains standing aspect corresponding knew payment structures was. material to Van- In July Vantage executed tage is a concept because it common in the non-binding Understand- Memorandum shipbuilding industry. ing expressing their intent that Su or his nominee sell two jack-up would Su then formed F3 receive rigs option and an acquire' ultra- shares of stock to be trans- deepwater drillship Platinum Ex- —the ferred in Capi- is F3 transaction. Su plorer. That forth the document set con- shareholder, director, tal’s sole sole (1) templated consideration for the sale: president. Capital’s sole assets are the pay would million $440 Vantage shares and some owed to it funds jack-up rigs, including million Van- $145 Goyernment. by the U.S. tage payable shares and warrants- to Su or August Agree- 2007 Share Purchase nominee; pay would $660 ment million for drillship option, with 30% upon option due exercise of the and 70% In August . Purchase .Share upon delivery due ship; Su Agreement was executed between and his representative receive would seats *6 affiliate, underly- and a Su the which held on Vantage the board of directors. . , ing jack-up contracts rigs. to the build According Vantage, represented agreement expanded This Su and formalized ’ that payment this for Understanding. structure the the. Un- Memorandum 30/70 drillship option correspond agreement, Vantage would with der the pur- the would payment (now underlying structure on his jack-up rigs rigs) con- chase the four by tract Shipbuilding with & Daewoo Marine million worth Van- transferring $275 (“Daewoo”) Engineering for tage Capital construction stock and warrants to F3 ship. example, upon the For Vantage purchase, when of the closing paying paid cash, 30% upon exercising its option, (3) assuming million in and $56 $517 Daewoo, paid would have 30% to thereby million the underlying due on construction making effectively “pass through" rigs. for contracts for the parties The also payments. representations agreed These affili- another Su regard- ing the corresponding payment ate structures would an option contract for execute were to Vantage material they Explorer the Platinum date by the for ability financing affected for closing its obtain purchase jack-up rigs— the of the purchase. Specifically, the option the fact within exercisable six payments already would have been made months the closing. after "affiliate,” 3. Many underlying necessary except of the transactions or Su’s as Su’s affiliate, because, by specifically identify deals directly were entered into affiliates for identity or indirectly part, controlled For ease of most is not Su. affiliate’s discussion, entity disposition appeal. we will refer such to each to our of this material con- Daewoo represent Intent for he continued Letter of November 2007 as the same was payment tract’s structure Drillship Option structure in March payment the 30/70 2007, Vantage and another In November Drillship Agreement be- Purchase into a of Intent entered Letter Su affiliate Vantage. affiliate and Su’s tween purchase for specifying further details Explorer. These Platinum details also Drillship Agreement Purchase payment of for an initial down again called purchase gave option purchase price million 30% of $660 drillship, the Tita- ultra-deepwater second option the re- upon exercise Explorer, under construction nium delivery ship. Ac- on due mainder Daewoo. Vantage, representatives its cording to Agreement Purchase The Share again representations on relied Su’s Agreement closed Drillship Purchase corresponded with payment structure Upon closing, 2008. June for underlying payment structure stock and million received $275 contract with Daewoo. warrants, 40% of its thereby owning Agree- Drillship March 2008 Purchase million shares, joined plus cash. $56 ment gained board directors contract, in of an March option Instead mem- to nominate two additional right Vantage and Su affiliate entered board. of the nine-member bers outright agreement into an for Post-closing Events from the Explorer purchase the Platinum agreement million. The affiliate $676 began closing, Vantage pre- After the required a 30% Vantáge to make down financing a road show obtain paring payment September 2008 and remit pay- make obligation to a 30% down remaining upon delivery of the 70% of the Platinum purchase ment toward ship agreement 2010. The in November However, Su, Explorer. who now provided also retained control over that Su Vantage char- fiduciary, took actions which contract, including underlying Daewoo financing to its acterized detrimental timely. paid that it Ad- ensuring would be general.4 its interests in efforts perform ditionally, agreed affiliate despite repeated requests, necessary particular, all actions consummate *7 Vantage, pro- Su for several months to with which would still refused transactions complete Daewoo con- Vantage’s financing copy a the cooperating include vide only copy provided a redacted disclosing the terms of the tract and efforts and claimed payment which lacked terms.' Su impor- contract. That was Daewoo aspect special arrangement it he with Daewoo Vantage relinquish- was had tant to because in- contract, Vantage to the ing yet, keep over Daewoo terms secret. control the above, harm that such refusal explained Vantage’s as the fact that formed Su would Ac- financing. to Vantage’s ability obtain to Su’s affiliate would corre- payments cording Vantage, Su also tied his spond Daewoo was to will- payments with to ingness financing. However, provide complete to the obtaining vital to Su Daewoo comply only and otherwise provided a redacted version of the contract to at- contract, obligations contractual Daewoo which lacked details re- affiliates’ due, agreements. parties’ tempts while re-trade garding payments when were Vantage ry he became member. acknowledges 4. he a board Su was a fiducia- once instance,. replied Vantage For Su demanded -it would repeatedly that further dis- early of some all of down proposal regarding remittance cuss the the second - although drillship was until payment, not due but it concentrating was on ob- September taining financing 2008. first demand Explor- for the Platinum actually shortly clos- provide was made before the er. then Su refused the Dae- ing when Su demanded the entire woo Vantage agreed down contract unless ($200 million) payment immediately proposal after regarding Explor- the Titanium closing special-purpose-ac- Vantage rejected er. proposal and —when quisition funds be Van- replied were to released. that position clearly would tage responded early payment that was financing frustrate for the Platinum Ex- (1) impossible because financers would re- plorer. directly funds quire paid to Daewoo day roadshow, One before the scheduled payment as proposal and view under Su’s provided complete copy Su of the Dae- (2)
preferential length, and not arm’s Vantage contract. woo that learned would frown on a SEC substantial payment structure under the con- Daewoo payment advance who party controlled not comport tract did with the structure Vantage’s likely 40% of sharés and would Vantage’s payments. Rather, the Dae- remove board.' woo contract called for four installments of (after each) July During August 2008 (approximately 5% million $32 (as closing), requested Su respectively payment final on delivery 80% —not request each was Vantage) arrangement represented. refused that as Van- 30/70 million, million, it pay tage then also learned paid only $46 $30 Su had funding” exchange “3 weeks then for Su one million installments with $32 the, pledging some September heid' next due in These Vantage Capital. refusing, Vantage When replied Vantage’s revelations were detrimental to prepayment impossible ability financing was obtain because as because existing above, pur- funds were explained, earmarked for the disparity between jack-up but it rigs payment preclude chase was would work- structures obtaining ing guarantee, shipyard the funds the Plati- num, Then, Explorer down payment. paid Su payment down due million $200 threatened unless he September received an ad- on have would payment, paid only Daewoo, vanced he would not transfer million thus ef- $64 .right specifications fectively providing with a million decide $136 - drillship, for the Despite loan. what was interest-free it viewed Su, Drillship misrepresentations by entitled under Purchase pro- Agreement. Vantage responded posed salvage financing that such alternatives to position would be of Su’s fidu- effort acquiring Platinum Ex- breach ciary plorer operations. duties to ánd the critical agree- to its How- *8 ever, rejected ment. proposals, Vantage’s Su “dead,” to financing efforts obtain were August In days late several before reputation and its in the commu- financing Vantage begin to its financ- was scheduled nity damaged. was roadshow, ing proposed changing the Su . parties’ agreement regarding option Consequently, Vantage was to unable Titanium, for drillship the second on payment September make its down —the Explorer. of option-to pur- According Vantage, Instead an it to could have chase, proposed joint-venture. payment 50% Su a made and consummated the to Vantage were unable consequences ic” if representations if about Su’s
transaction The its with drillers. contracts correct. deliver Su contract had been the Daewoo prom- million included million $60 to make his consideration $32 also unable was Su, still outstand- issory note which was to at the time. to Daewoo same payment due temporary-injunction of the ing at the time Vantage advance that Su demanded 100% eventually hearing. Vantage owned would not Daewoo insisted million $32 Explorer- was when all salvaging the Platinum Because due defer the date.. April resigned Su In completed. to Vantage’s ability vital to purchase was Vantage’s board. business, from provided it drillship enter from, pur- for funds earmarked million $32 History B. Procedural thereby harming rigs, jack-up chase of the 2012,-. Vantage the lenders those sued relationship August In Su insistence, paid fraud, Vantage fiduciary rigs. At court for Su’s state breacfy Vantage rather than to directly to Su duty, unjust million enrichment. $32 eventually Vantage Vantage wrongfully discovered Daewoo. claims Su induced actually a deferral had obtained million shares Su to issue approximately late through Capital. October 2008. from Daewoo until of its stock Su F3 to an interest-free damages, plus Su obtained construc- Consequently, Vantage seeks of, Vantage. over, from all disgorgement loan for million tive trust $32 realized'by Su from the transac- profits 2008, Vantage agreed In mid-November tions, Vantage shares. including Drillship modify to Purchase Agree- According to diversity demand. Van- citizenship ment at Su’s invoked Su court, been unnec- tage, would have but modification remove the case federal essary if had not state and undesirable Su to the ultimately case was remanded origi- financing efforts for application harmed then filed an court. seeking enjoin injunction Under modified for agreement. temporary nal Vantage owning pending agreement, disposing instead from of the shares ' ship (per original agree- judgment. application 100%' final The re- ment), joint during actions prompted be owned ven- Su’s would pledging numerous shares controlling 45% and a ture with moval period con- As he controlling 55%. consider- debts entities Su affiliate other ation, an additional trolled. affiliate received million, Capital F3 exercised war- $149.75 hearing court conducted acquire rants additional million On application. June shares, F3 received temporary injunction, signed trial court
'an 1.9 million to ac- additional warrants 72,238,972 ruling respect follows with n exchange, quire more shares. “[Su] stock holds progress in- agreed'to pay remaining all through Capital”: plus contract on the Daewoo stallments [Su], individually The Court ORDERS costs with the remaining 55% of associated officers, agents, ser- by through / ship.' vants, attorneys, those employees, partic- in active’ concert or persons unable make Subsequently, Su was taking from action ipation, enjoined any payments those but obtain attempted sell, transfer, pledge, hypothecate, or more shares and loans bought of'the Shares obligations-. Vantage otherwise encumber meet *9 of in this defaulting judgment on pending [sic] avoid the 55% interest .final ' (cid:127) “catastroph- case. risking Daewoo contract and acting by -sign or ORDERS [Su] another remand order at that The-Court not officers, Thereafter, through Capital’s agents, proceedings time. the contin- servants, ued in state court both employees, attorneys, parties the filing pleadings. various persons partic- in When the trial those active concert signed court the temporary injunction on ipation, taking any from enjoined action 11,. 2014, June the. transfer, federal sell, district court pledge, hypothecate, or yet had not signed another remand order. any of the Shares otherwise encumber judgment pending [sic] final of this argues temporary in case. junction is void the federal district order, In the court recited trial find- court not yet had remanded the case when ings fact, of we signed which will discuss more the trial temporary court in addressing junction. detail the issues which complaint Su characterizes his to, findings as a .challenge various relevant. the trial subject are The court’s jurisdiction, may trial matter post court be also ordered raised $125,695.81. on-appeal. the first time As of Su ac bond the amount Su filed (a knowledges, September 4, few appeal. See Tex. Civ. interlocutory days motion), appellate after he filed-his 51.014(a)(4) § Prac. & Rem. Code Ann. signed federal district court (West, R.S.). remand through Westlaw Nonetheless,
order. argue Su continues to II. JURISDICTION jurisdiction the trial court lacked take actions, any including signing, tempo willWe first address portion the* Su’s rary injunction, between the removal and appellate contending-the motion trial court September 4th remand order.5 We subject jurisdiction lacked matter to issue disagree, injunction.because, the temporary at that time, -yet provides regard- federal court had re- Federal as follows law ' (cid:127) ing procedures: manded the case.. remand If at time judgment before final In October Sd the case to removed the, appears that district court lacks sub- federal In April court. the federal" ject jurisdiction, matter the case shall be district Vantage’s court denied motion to ' A copy remanded— certified January remand. On the Fifth" order of shall remand be mailed opinion "reversing" Circuit issued" clerk clerk the State court. district order denying court’s remand. On may proceed thereupon court State 21, 2014, January signed court district with such case. 23,2014, a remand On January order. 1447(c). § 28 U.S.C. district court vacated that" remand order. that, The Fifth issued correctly Circuit the mandate on asserts when the ’ January 29, 2014. The signed temporary injunction, district court court did trial, pertinent jurisdiction. Not all of the documents court had. Freedom Commc’ns, Coronado, proceeding part federal court are Inc. However, (Tex.2012) (per clerk’s (stating, in this curiam] certi- 623-24 “a appeal. record copies judicial fied or sworn of the documents are court will take notice another appellate party-provides proof attached to if motion and Van- court's records 201(b) records”); tage’s response. parties rely on (pro- Both these also Tex. R. see Evid. they dispute viding judicial and do appellate attachments are accu- take notice copies. Accordingly, Vantage’s grant accurately rate "can a relevant fact that be arid request judicial readily that we take notice determined whose accu- sources whether, reasonably racy questioned”). documents in "order to decide cannot *10 294 jurisdiction to retain signed the court court had intended federal district rulings despite the Fifth to state and make further to be
remand order mailed Mortg. See Direct the Circuit’s decision. court vacated because the had clerk Inc., However, Keirtec, Corp. F.Supp.2d agree v. 478 sign. one order it did (D.Utah 2007) (stating procedural de- the case was effec- 1341 with designed vices of removal and remand are despite compli- lack tively remanded 1447(c), only jurisdic- court to one exercises ensure ance with section and because time, any given than which tion over case at provision rather procedural rulings duplici- complaint by and jurisdictional, prevents inconsistent waived judicial party by continuing par- preserves tous work and failing object . resources). And, .the although effective proceedings. in the ticipate state-court ultimately after signed remand order was Guilbot, cites Gonzalez signed the in- temporary the trial-court (Tex.2010), in which S.W.3d junction, that order confirms the remand argued- state that a court’s defendants itself of federal court intended divest sanctions void judgment order were it is “unmistak- jurisdiction. Accordingly, in jurisdiction because had not re-vested signed trial court that when the able” following court remand a feder- state injunction, court temporary the federal mailing al court. Instead remand Gonzalez, had intended to remand. required to the' state clerk as under order at 538. 1447(c), gave the clerk section the federal authority recog- it counsel delivered further cites plaintiffs order who nizing a was not to the court. Id. at 536-37. contention that state remand hand-delivery compliance court in re- supreme held that effected the federal - successfully procedural complaint is. quirements trans- a- order remand jurisdiction court may ferred back the state be waived. When the Gonzalez jurisdiction its in expressed because the federal court court held had re-vested court, divest state on the fact “unmistakable intention to itself also relied jurisdiction litigation to the in jurisdiction and return the defendants .resumed knowledge Id. 538. state court with full of the re- state court.” at mand, although the Gonzalez court did not Gonzalez, in no re- Unlike there was use term “waiver.” See id. expressly signed present case mand order 538-39; 33.1(a) App. at see also Tex. R. P. tempo- its court'signed until after the trial error, party (providing, preserve must injunction. rary Regardless, the’ federal present court complaint the trial via clearly intended to divest itself had request timely objection or and obtain a jurisdiction. nothing There was left Socorro, City ruling); Tellez v. be resolved federal courts (Tex.2007) curiam) (per Fifth remand issue because the Circuit (recognizing, although subject lack of mat- opinion requiring issued remand had its jurisdiction may ter waived only remaining ac- and its mandate. The time,- party- be raised at waives properly tion that could occur féder- procedural failing object complaint proceeding al was the federal district court court). in the trial _ act signing order a ministerial remand- Keirtec, mailing example, As the clerk that order- to the another the de- clerk. The vacat- fendant the case to state court district court removed federal court. only However, original F.Supp.2d ed remand order de- had not fendant then “stood silent” while other mandate issued—not because
295 parties right. in the court Id. To pleadings temporary injunc- filed state obtain á tion, applicant plead- prove Id. 1340- must and and that court issued orders. at the (1) against defendant, a that must cause action 41. The federal court held it (2) a probable right to the sought, relief impli- remand the defendant had because (3) probable, imminent, and a irrepa- and edly in jurisdiction consented state injury rable in the interim. Id. át Keir- court. See id. 1341-42. Unlike in tec, not in parties present case did The applicant required is not litigate in court continue to state while'the prevail establish-that it a will at trial on case court. None- was removed federal Int’l, Ltd., v. merits. Sharma Vinmar theless, a Keiiiec conclusion that supports 231 S.W.3d 419 (Tex.App.-Houston jurisdic- Su court’s consented the state pet.) [14th (citing Walling Dist.] no tion Fifth man- once the Circuit its issued Metcalfe, 58 (Tex.1993)). 863 S.W.2d litiga- requiring by resuming date remand The merits of applicant’s are suit not tion in the state court. presented Instead, for review. Id.. strictly our to. whether review limit mandate, affirmatively Since that has Su trial court abused its in clearly discretion litigated the matter in state court via the granting injunction. the temporary (1) following filing a actions: counterclaim Butnaru, 204; Sharma, 84 at 231 S.W.3d jurisdic- asserts the has trial court at S.W.3d 419. not We reverse a (2) tion damages; and an requests filing temporary injunction unless the trial disclosure; (3) requests answer for and that, arbitrary court’s decision so it subpoenaing hearing witnesses bounds of exceeded reasonable discre application temporary on the scheduled Butnaru, 204; tion. at 84 Shar S.W.3d (4) injunction; response filing and to the ma, If some evidence S.W.3d Moreover, application. the record does reasonably the trial supports court’s deci complained reflect Su ever sion, there is no abuse discretion. But- trial court that no order had been remand naru, 84 at 211. S.W.3d We view the signed. first raises the issue most light favorable to evidence Thus, appellate motion. Su waived order, every indulging trial court’s reason complaint that the case was not remanded ruling. able inference in favor La in compliance procedures. with federal Tex., Mattioli, sikPlus P.C. v. Accordingly, because- the re- case was (Tex.App.-Houston [14th manded, jurisdiction the trial court had 2013, no pet.). Dist.] sign temporary injunction. We over- "trial in its The court order that recited rule portion appellate motion Vantage"satisfied the above-cited elements. contending jurisdic- the trial court lacked injunction on challenges four challenges to his tion turn to the mer- (1) grounds: enjoined Capi- F3 the order temporary its of injunction. tal, (2) non-party; failed prove sought; to the probable right relief Injunction TEMPORARY
III. (3) Vantage probable, failed to establish a purpose of in temporary The imminent, irreparable injury junction preserve is status quo interim; estoppel collateral barred (cid:127) subject litigation pending matter of the the relief. a trial on the Ford merits. Butnaru v. Injunction Capital implicating F3 A. Co., (Tex.2002). Motor injunction extraordinary A temporary enjoined is un actions remedy 'by Su'individually “by as a and does issue matter dertaken of, of, attempted dispose some posed of-the Van- dispose Capital
through” issue, purposes: he has con- shares for his own his- first tage shares. against counterclaim personally filed a trial court abused its discretion tends representatives, alleging not a- enjoining F3 However, significant decrease this' their actions party to *12 suit. named caused shares; (2) asserts, shortly court did Vantage the trial in the value of the after transactions, promised order directly enjoin Capital closing F3 as the Su return, Yet, directly suggests Su. Su for ad- applied pledge in. by injunction an early payments trial court issued demanded improperly vancing (3) Su; be- non-party Su*pledged of a for obli- affecting property and .shares by Capital. of his affiliates are held F3 debts various- gations cause the shares and at transactions- that were unrelated Rule of Procedure Texas Civil Su cites Finally, Capital “otherwise” re- issue. F3. provides: “In no ease shall in-, temporary notice ceived actual against any defen- judgment be rendered (F3 by Capital’s sole junction virtue service, or upon acceptance dant unless or officer) shareholder, director, having and or process, upon appearance waiver injunc- Accordingly, notice. received defendant, by prescribed in these binding on assets held permissibly tion is rules, except expressly where otherwise by id. overrule Su’s Capital. F3 See We by R. provided law or these rules.” Tex. n first issue. P. 124. court did Civ. But the trial “judgment” against Capi- or F3 render proved probable B. Whether tal, injunction. a temporary but rather right sought relief governing injunctive The rules relief pro- only injunction binding that an “is vide issue, argues Vantage In his' second action, parties offi- upon the to the their probable right to the prove failed to servants, cers, at- agents, employees, and sought this relief suit-because Van- persons in torneys, upon ac- those tage on the prevail equita- cannot trial participation them tive concert or with theory by trial court ble relied by receive of the order who notice actual injunction, issuing Van- personal R. service or otherwise.” Tex. Cap- tage may not recover shares from F3 added). (emphasis Civ. P. 683 (cid:127)- against. ital for-its claims Su. indicate, findings trial The court’s 1. Whether established Capital the evidence that F3 supports, theory recovery of the shares “in participation active or with Su” concert - Vantage requested dis- pleading, of, attempts acquisition relative over, of, gorgement or a constructive trust of, dispose It un- shares. on Su’s fraud and breach shares based director, disputed isSu sole sharehold- fiduciary court found duties. er, Capital, and officer of F3 and thus all proved probable right wholly Capital of F3 actions are controlled one equita- recover shares via of these below, by Su. As Van- further discussed following are findings ble remedies. The tage presented.evidence that Su obfained relevant to issue:. .... through Capital the shares held F3 * Su, fiduciary individually Addi- acting or breach duties. Mr. fraud and/or through Capital tionally,'-Su’s own actions that he F3 reflect several affiliates, . sub- into a. has shares as entered series treated the ject Vantage, including ownership to his and control and dis- transactions with
. [listing pre-closing four ciary duty transac- directly benefited him tions outlined above]. and is traceable the Stoeks. 12.If Vantage judgment obtains final representations 4. Mr. regarding Su, against.Mr. be entitled payment agreement terms of the to recover the Shares awarded in were material to [Daewoo] Van- consideration the Transactions tage’s decision to enter into the through imposition of an order Transactions. of disgorgement or comparable eq- 5., Vantage relied Mr. Su’s repre- uitable either in relief -this action or sentations when it entered into the in subsequent action enforcement Transactions. against F3 Capital or other trans- 12, 2008,. 6. On June on Mr. reliance ' , *13 of ferees . the Shares. representations, Su’s closed Vantage emphasizes Su the: tidal court's determi and, the Transactions Mr. Su’s nation that Vantage prima made a facie direction, paid includ- consideration case that it may recover the shares based ing Vantage warrants common on Su’s fiduciary breach of duties. As we stock to wholly-owned, Su’s Mr. appellate contention, construe Su’s he chal solely controlled Capital. affiliate F3 lenges the trial reasoning court’s because 12, 2008, 7. On June Mr. Su became a Capital acquired majority of the F3 on Director Board Directors fiduciary, shares before a Su became of [Vantage] in that capacity, (2) Vantage may not the shares recover rights obtained to nominate two oth- acquired fiduciary, after Su became a even er board members. breaeh-of-fiduciary-duty under a theory. Vantage 8. has prima made a facie case We will separately discuss the shares ac that following appointment his to the quired before after became a fidu Board[,] Vantage Mr. Su breached ciary analysis our is because somewhat fiduciary duty to Vantage by category. each different complying obligations with his under acquired Shares Su became before a the Transactions. fiduciary 9. Vantage has prima made a facie case acknowledge Capital We F3 did not ac- that, in communications made Au- 72,238,972 quire all of the governed shares 2008, gust Su, Mr. Vantage as a temporary injunction through Su’s Director, fiduciary breached alleged fiduciary breach of or while duties duty, frustrating Vantage’s ability to Rather, Vantage Su was a fiduciary. obtain financing for existing transac- Capital acquired some shares simulta- tions that were the via- essential neously becoming fiduciary; a i.e. bility of company. closed, when the transactions became 10. Vantage has prima made a facie Vantage, director and F3 Capital re- case that Mr. Su’s actions were de- 33,333,333 Vantage ceived shares and the signed to retain his stock right acquire 25 additional million holdings and obtain additional cash Nonetheless, shares. we conclude Van- and other benefits. tage proved probable right recover , prima has made a facie the 33 shares via million, 25 milliou n case that Mr. equitable .Su’s breach fidu- remedies.6 6. F3 right did not exercise the acquire parties the 25 million shares until 298 support any findings ex the evidence will recognize the trial court
We would, turn, trial support proved a fact that pressly recited that findings im judgment, are via those probable right recover court’s Erickson, plied judgment, itself.” breach “disgorgement” based Lee, v. see 750; 562 Waddell profits 433 S.W.2d at fiduciary Disgorgement duties. (Tex.Civ.App.-Houston [14th remedy appropriate is an S.W.2d 33 equitable Erickson). writ) 1978, no (quoting its fiduciary duty; Dist.] party has breached his abuse dis court cannot trust Because trial purpose protect relationships is to See, result for the ERI reaching cretion correct e.g., by discouraging disloyalty. reasons, uphold Swinnea, wrong we will Consulting Eng’rs, Inc. v. reviewed abuse-of- v. (Tex.2010); court’s order under Burrow S.W.3d ground sup Arce, standard on (Tex.1999). discretion 229, 238 In re the record. Exxon- ported However, only disgorgement (Tex. Corp., Mobil S.W.3d remedy equitable requested by 2003, orig. App.-Houston pro [14th Dist.] requests it also a constructive Marshall, Luxenberg ceeding); urges trust based fraud. (T ex.App.-Dallas 141—42 uphold temporary injunction orig. proceeding). theory.7 on that *14 equi A trust is an constructive reviewing a temporazy When pre created courts to remedy by table injunction, rea we are not limited to the v. enrichment. Hubbard unjust vent by find sons stated the trial or its Shankle, 474, (Tex.App. 138 S.W.3d 485 Erick ings of of fact conclusions law. denied). 2004, pet. -Fort Worth Rocco, v. 746, (Tex.Civ. son 433 750 S.W.2d if 1968, rule App.-Houston general ref d It is a settled [14th Dist.] writ well n.r.e.). person legal all title We should review the evidence one obtains the fraud, only or and-indulge legitimate by by in’all not viola- property, inferences relations, fiduciary from light the evidence in a most tion of confidence of favorable temporary injunction, any if but other unconscientious man- even we may by ner, disapprove given equitably of the reasons so he retain cannot belongs an- See property really -court. Hartwell’s Office World, Systex other, Corp., Inc. v. a equity theory carries out its of 598 S.W.2d 636, ownership, (Tex.Civ.App.-Houston equitable legal, double [14th 638 Erickson, 1980, n.r.e.); Dist.] impressing upon writ ref'd a trust constructive 433 “If in favor of the one is property S.W.2d such a review who Agree- later Drillship modified the 7. The trial some Purchase court recited elements sug- expressly fiduciary. ment—after Su fraud find became a but did all of gests those shares be as ac- use the term "constructive trust.” should treated elements or quired Arguably, fiduciary, he F3 before bécame a the trial court found “constructive Capital remedy right acquire may appropriate obtained the them. trust” recit- be point probable right ing Vantage proved We need decide at what to recov-
may having through disgorgement acquired be considered er the shares or "com- as those Regardless parable equitable shares because even if that before relief.” occurred fiduciary, Vantage proved Su became a whether trial court meant for that “com- Thus, probable right parable equitable relief” to include a con- recover those-shares. trust, discussion, solely purposes uphold we will treat structive its conclusion Vantage presented acquired those as before on this shares Su became element because fiduciary. supporting a evidence constructive trust.
299 it, good (1) conscience entitled to elements fraud are speaker equity representa bene- made material who is considered as the tion, (2) false, (3) it was speaker knew ficial owner. representation was false when made or 134, Snyder, 144 189 v. Tex. Binford recklessly made it knowledge without 471, (1945); see v. S.W.2d 472-73 Meadows assertion, (4) positive of its truth and as a Bierschwale, 125, (Tex. 516 128 S.W.2d speaker made representation 1974). A trust' constructive subjects it, (5) party intent that the other act upon holding equi person property title to an party the other acted reliance on the duty convey it to table another on (6) that misrepresentation, and party suf person’s acquisition ground the or reten injury thereby. Cowboy fered Italian property wrongful tion and he Partners, Ltd. v. Prudential Ins. Co. of if unjustly be permitted would enriched Am., 323, (Tex.2011). 341 S.W.3d For Botts, Cailloux, it. retain Baker L.L.P. v. pf inducement, fraudulent the elements (Tex.App.-San Anto S.W.3d must they fraud established relate to denied) 2007, pet. (citing Talley nio v. an inducement enter into contract Howsley, 142 Tex. S.W.2d parties. between the Haase Glaz (Tex.1943)); Huebner, Miller v. 474 ner, (Tex.2001). 798-99 587, 590-91 (Tex.Civ.App.-Houston The following evidence and rea n.r.e.). Dist.] writ ref'd [14th supported sonable inferences the fraudu n To. establish that a construc lent-inducement claim relative to the exists, acquired proponent prove fiduciary: trust before tive Su was must (1) misrepresented trust, payment the- special breach of a fiduciary rela tionship, fraud, (2) schedule to Su’s affiliate for unjust actual enrich Explorer the Platinum correspond would wrongdoer, tracing *15 ment to payment with the on Hubbard, schedule the Daewoo an identifiable íes. (2) contract; representa Su knew these “A justified at 485. constructive trúst is tions were false his because was affiliate ... fraud party one commits when (3) Daewoo; who had contracted with Su breaches a Baker fiduciary relationship.” Vantage to misrepre intended act Botts, added) (emphasis 224 at S.W.3d 736 sentations because the transactions with Meadows, 128; (citing 516 S.W.2d at In re Su; Vantage extremely were lucrative to Nolder, Marriage 48 434 S.W.3d of (4) misrepresentations were mate denied)). (Tex.App.-Texarkana pet. to, rial by, Vantage relied on when Therefore, imposition a constructive deciding enter to into the transactions be trust be fraud and based does . aspect corresponding pay cause the fiduciary a require duty breach of See to ability ment schedules was its vital to Botts, 736; Hubbard, Baker S.W.3d at financing. obtain Nolder, 485; 138 S.W.3d at at S.W.3d 434; see Likewise, also Burkhart Grob und Vantage presented evidence Luft . E-Sys., & Co GmbH KG v. necessary impose on the elements to a Raumfahrt Inc., (5th Cir.2001) (1) 257 F.3d constructive trust: the above-described Meadows, (quoting fraud;' (2) 516 S.W.2d at resulting unjust enrichment of law, stating, con “Under Texas a Vantage Su via the transfer of shares to equitable remedy wholly-owned structive trust is an subsidiary, Capital, Su’s transactions; (3) to party closing available a has upon been defraud ed.”). to an tracing identifiable res—those (1) Hubbard, to himself: Su intending 485. while benefit 138 S.W.3d at
shares. (albeit proba- a Vantage unsuccessfully) early re- Accordingly, established demanded transferred right to Vantage’s ble recover shares or all mittance of some down closing upon transactions. Explorer, .the on the Platinum al- payment acquired after Su became arrangement though Shares would viewed fiduciary financers; (2) negatively by potential Su misrepresenta- his perpetuated pre-closing af- acquired respect to the With Vantage’s for payment tions that schedule (1) fiduciary, suggests he ter Su became Explorer corresponded with Platinum fiduciary breach duties he did not payment despite (2) schedule court, trial or' by the manner outlined Daewoo — any knowing vital to aspect was inappropriate disgorgement because in- financing; not'amount fraudulent his obtaining breach did Su conditioned ducement. willingness provide complete Dae- modifying woo contract on contention, support first Su To to Explorer Titanium for option finding that on the court’s focuses 50%; whereby joint venture Su own would that Su prima made facie case complete provide failed Su to. by failing to fiduciary duties breached fi- the eve of Daewoo contract until the. obligations under comply “with nancing it was late roadshow —when too suggests such actions Transactions.” adjust financing for its efforts fiduciary not constitute- a breach of could compensate dis- now-revealed party only to the duties because he was Understanding, crepancy payment schedules. Memorandum However, non-binding. undisput it is Next, citing Consulting ERI Engineers, binding contracts parties ed the to the apparently main- .881— It is a con were affiliates. reasonable that Vantage disgorge- cannot obtain tains fiduciary clusion that Su breached his shares, ment of .breach of if he caused his affiliates duties fiduciary duties did not fraudu- amount Vantage, their contracts -with breach pot necessarily do lent inducement. .We including obligation cooperate interpretation agree that case. Vantage's financing purchase- efforts Nonetheless, not consider need Moreover, apart the Platinum Explorer..- *16 Vantage scope presented evidence from finding, the the breach-of-contract duties, of fiduciary that Su’s breach generally made found a above, amount fraudulent outlined did prima case his facie that Su “breached to n fact, although inducement. the duty, frustrating Vantage’s fiduciary abili .trial “fraud,” court did not use it ty financing existing to obtain transac the term found, (1) viability to supports, tions that were essential the of that and evidence the that, not company.” the contest Su does frustrating financing the actions in Su’s any regardless obligations of of contractual designed efforts were additional to.obtain affiliates, his as a fiduciary Su was bound (2) benefits, and cash other -breach to taking affirmative actions refrain direetly to traceable benefited Vantage’s harm financing ef would Thus, Vantage pre- at issue. the shares ; , , forts. evidence, of a to right recover sented those (due by disgorgement of shares breach presented that Su evidence not fraud) ,to fiduciary amounting or a only but affirma- cooperate failed took duties (based efforts, alone). financing tive to harm trust actions the constructive fraud
301 Vantage may mis- Specifically, again, continued Whether recover by Capital shares held representations corresponding- E3 about the material to schedules Van- payment were that, maintains Su further irre tage proceeding it relied on them spective actions, of his own did efforts, financing and con- to obtain prove probable right recover the' Then, the transaction. revela- summate Capital, shares from because it F3 was of structure for payment tion the actual fiduciary. never a Vantage The trial court on the of the Daewoo contract eve the fqund that, if Vantage judgment obtains financing “killed” the scheduled roadshow Su, against .may be entitled to it recover of acquisition Because the Plati- efforts. the equitable shares via relief this action Explorer integral Vantage’s num was or in subsequent . enforcement action viability, was continued it forced re- against Capital or other F3 transferees agree- the the trade deal and reach new shares. agree We with the trial whereby Capital ment received further court’s conclusion. other shares and benefits. authority cites recogniz Further, ing subject it is rational inference property to a con transferred, perpetuated 'misrepresentations re- structive trust is recipient garding property the Daewoo contract order to takes title to property (1) subject agreement recipient force the new because it to the trust if result- does give paid property, further consideration or ed lucrative benefits Su. (2) notice of bySu recipient Other adverse after he has actions be- existence trust the time fiduciary support came a this inference: at. transfer.. II, v. Cote Texcan Ventures 271 demanding S.W.3d repeatedly premature 2008, 453 (Tex.App.-Dallas pet.), no payment' remittance down ’ 473). (citing Binford, 189 S.W.2d at A threatening Explorer Platinum equity impose court of can a constructive Vantage’s right specifi- withhold control property trust on “in the hands if 'comply; cations failed original ... wrongdoer subsequent forcing Vantage to millions ear- redirect' holder, purchaser good of it in until faith purchase jack-up marked for the higher acquires right, and without notice rigs to payment on meet Su’s initial property and takes the relieved from the had Daewoo contract —when Su obtained a Hull, trust:” Fitz-Gerald Tex. deferral and thus those in- retained funds Holdings (1951); see Teve S.W.2d period.- recognize terest-free for a- We Jackson, td. v. these in Su-'receiving actions ’wouldresult L n (Tex.App.-Housto Dist.] no [1st governed benefits than other writ). But, temporary injunction. these ac- support Vantage’s position tions that Su Vantage’s indicates F3 evidence engaged in actions1 pattern taking alleged aware of fraud and breach *17 in to Vantage detrimental to order extract óf in fiduciary resulting 'acquisi- duties Thus, more benefits. these actions are considering tion of the shares that Su is respect owner, relevant to show intent with director, Su’s Capital’s F3 sole and offi- misrepresentations to did result in Capital cer. F3 cannot claim the status receiving Accordingly, unsuspecting, shares. more innocent transferee probable right pr'opérty subject demonstrated to a constructive trust And, found, by recover the Su while as shares received he the trial has not Su shown fiduciary. Vantage-would foreclosed from Su, acting Capital, Mr. F3 through 14. by Capital recovering shares held F3 million pledged 12.1 personally adding Capital'to by F3 trust constructive Royal Bank Scot- Shares subsequent or enforce- bringing suit this land, Sinopec, 9 million Shares it. against action ment NewLead and 3 million Shares to Further, argues, an order as Holdings. over, disgorge- or trust for a constructive individually, 15. Mr. Su’s actions taken Capital of, by F3 the shares held ment ' through Capital, or by or F3 “hand-in-glove” with the Texas n work would dispose of the Shares threaten statute, to Under that Turnover Statute. subject pending this that are the judgment, of a a court in enforcement aid . litigation. to turn may judgment debtor “order of these dispose Su 16. Mr. Allowing inis nonexempt property that over Van- infringe upon Shares would to the subject or is possession debtor’s tage’s equitable interest & control....” Tex. Civ. Prac.' debtor’s Shares. (West, 31.002(b)(1) § Rem.Code Ann. Mr., dispose To of these Su to allow 17. R.S.).- Again, the through 2015 Westlaw permit him to inter- Shares would subject because to Su’s control shares are ,. of its fere with this Court’s exercise director,, owner, Capital’s he is F3 sole jurisdiction subject over the matter officer, consistently and has treated any judg- by rendering of this suit subject to his control.8 shares issue ment regarding Shares ' summary, Vantage proved In ineffectual. right to recover the probable act- persons . Mr. Unless all Capital, F3 we overrule by held shares ing or Mr. in concert with under Su’s second issue. from , are Su’s control restrained transfer, sell, efforts further probable, Vantage proved a C. Whether or , pledge or otherwise encumber injury in imminent, irreparable shares, Vantage’s abil- dissipate the interim ity, meaningful relief obtain enforcement action later following to the find According moot. action be rendered will ings, trial court that Van determined Su had tage satisfied this element because challenge appeal, does On by Vantage shares F3 encumbered held findings regarding encum above-cited them Capital to creditors pledging other bering shares for benefit of his other Su-eontrolled entities: Nevertheless, undisputed it is affiliates. that, through Capital, bankruptcy proceeding, acting F3
13.Mr. Su Capital F3 millions Van pledged has caused encumber creditors In by F3 tage Capital. 55 million of the shares held approximately Corp., security the Matter TMT Procurement third-party Shares as (5th Cir.2014); see 515-19 creditors of other under 764 F.3d entities Corp., re Mr. common TMT Procurement No. ownership also (Bankr. 13-33763, 2014 control. WL 1577475 theories, ad- posits need recover the shares under some we also ego' every under viability theory proffered alter dress privity agree Because Vantage. theories. *18 prima recovery for of the made facie case 16, 2014), and Apr. S.D.Tex. vacated re Collateral-estoppel D. contention manded, Corp., TMT Procurement In his final attack the merits of bankruptcy proceeding F.3d 612. The was the asserts relief injunction, Su such twenty filed on com more than behalf barred estoppel. collateral That by doc by Su, panies are not controlled prevents trine party re-litigating parties to the suit. See TMT Pro present previously litigated issue and lost. curement, F.3d at 616. Certain credi Calabrian Corp. Specialty Alliance Chems., proceeding. Inc., (Tex. tors moved dismiss the respect App.-Houston no pet.). With the debt [14th Dist.] most See'id.. ors, party dismissal, relying the doctrine must bankruptcy in lieu the (1) establish sought litigat facts (over the permitted Vantage’s objec court Su ed in fully the second action were tion) to deposit millions of the fairly action, litigated the in first the .by Capital shares held F3 collateral as facts judgment were essential the in the 515-19; See id. TMT creditors. at action, parties first were cast Procurement, 2014 WL at *1-6. as in first See adversaries action. id. temporary When trial court issued the injunction case, present in orders -applies Su suggests doctrine the. bankruptcy place. still in court were here court ruled bankruptcy Subsequently, the Fifth Circuit vacated entitled to a constructive orders, -shares, holding trust bankruptcy rejecting court over the challenge to depositing could order riot such use of the However, collateral proceeding. shares in bankruptcy proceeding. See at conclude that least the first element Procurement, TMT at 764 F.3d 519-28. of collateral is not estoppel satisfied However, at least attempted encum case. Vantage is entitled to a Whether (and so, successfully ber the Fifth before coristructive over the trust shares was not decision) Circuit shares' in “fully ... litigated” bankruptcy that proceeding. court final because there was riot a deter Moreover, temporary-injunction right. mination has no such hearing, previously he .acknowledged abové, id. As See noted the Fifth Circuit (outside pledged above-mentioned bankruptcy vacated the court’s orders. bankruptcy proceeding) Vantage shares Corp., TMT Procurement 764 F.3d at We obligations held recognize other the Fifth' Circuit had opinion! court issued its when the trial including pledges affiliates — signed injunction. See id. temporary Royal Scotland, Sinopec, Bank of But, Vantage had filed an appeal Holdings, NewLead the entities mentioned bankruptcy ruling, the Fifth court’s the trial its findings. Thus, arguments. Circuit oral had heard summary, Vantage presented evi- finally the issue litigated, had .not been probable, dence it would immi-. suffer tempo did not bar the estoppel collateral nent, irreparable injury trial if -and before rary injunction. fourth We overrule Su’s injunction a lemporary not issue did be- issue. previous
cause of Su’s placing, actions in IV. Amount of the Bond place, attempting to the shares out Van- ' reach, tage’s We third is- -Finally, overrule Su’s fifth we address Su’s sue. corresponding- portion issue and-the *19 - of the amount A. billion.
appellate challenging motion $1.5 Before temporary-injunction bond. Q. you stand to lose? That’s what injunction, the granting temporary a Yes, sir. A. post a applicant court must require general con- testimony is too This in trial court by the sum fixed bond Su would suffer clusory establish $1.5 party. Tex. R. Civ. payable the adverse injunction. damages from billion of the bond is to purpose P. 684. The explain not how he' calculated Su did payment against whom party secure such, potential amount or the nature injunction the amount of granted is Therefore, récord, on this the trial loss. injunction if damages suffer he would by set- court its'discretion did abuse Biodynamics, is dissolved. subsequently $125,695.81. id. ting bond at (Tex. Guest, 128, 130 Inc. v. 817 S.W.2d its dis- (holding trial court abuse did App.-Houston [14th Dist.] writ where setting cretion in -amount bond by agr.). The trial court con dism’d has nothing in demonstrated defen- record setting siderable discretion amount tempo- potential profits lost dants’ from IAC, 131; of the at see Ltd. Id.. v.. bond. ap- rary precluding use of injunction their Textron, Inc., 160 Helicopter Bell secrets; testimony trade plicant’s (Tex.App.-Fort no Worth expected to derive” “income [defendants] pet.). case-by-case adequa review We in- selling products from made from the a cy of bond trial court based set lost” insuffi- be was “would formation IAC, Ltd., 160 before us. record cient); Inc., Biodynamics, at at S.W.3d 203. challenge, to (rejecting defendant’s Here, set the trial court the bond there temporary-injunction bond where $125,695.81. argues is that amount was-nothing in amount the record show represents per it a insufficient because (cid:127) insufficient). Accordingly, over- we centage subject value of the of the shares fifth portion rule issue and the his injunction damages rather than the challenging motion appellate the .amount injunc as a he would sustain result of the bond. only In support, tion. Su cites follow Having of Su’s issues all overruled ing hearing: testimony at brief, , appellate deny motion If enjoin court from Q. were F3 injunc- temporary motion and affirm the selling Vantage, how would its shares tion. its business the business affect companies, if at related all? Rehearing denied. values, Huge. A. These has but Justice, Frost, Thompson Chief Kem actually, a So there is reason. the— Dissenting on of Motion En Denial issue,
another
the shares restricted
Rehearing
Banc
Vantage—
Su,
Q.
my question. My
Mr.
re-,
listen
appeal
important
This
raises
issues
question
it
your
is how
affect
would
jurisdiction
af-
garding the
courts
state
prevent
if
Court
were
businesses
ter
a
to federal court.
removal
case
disposing
using
panel
court
deciding the
of this
appeal;
shares as it
fit?
sees
(l)
has
re-
case
concluded
my Chapter
A.
It will affect
from a
court to a
manded
federal district
my
will
survive.
affect
business-to
order;
-trial
-without
remand
state
Q.
figure
on it for us?
you put
Can
the absence of
remand order
*20
mandate,
that
not affect
procedural
signed
defect
does
the
the Federal Court
an or-
>
jurisdiction
proceed
court’s
in a der remanding
case to the
state
the
State1Court.
court;
later,
removed to federal district
days
case
Two
power to do
while
had
so,
the lack of the
parties
waive
state
the Federal Court
its
vacated
remand
subject-matter
result-
jurisdiction
3,
court’s
February
2014,
order. On
the Federal
ing
satisfy
prerequi-
from the failure to
Court received the
from
mandate
the Fifth
jurisdiction,
revesting
site
the
the
instructing
Circuit
the
Federal Court
participate
court
parties
state
in the
But,
if the
the
the
remand
case to
State Court.
proceedings
court
without objecting
state
sign
the
Court did not
Federal
remand
jurisdiction.
to the court’s lack of
These
order until
months
almost seven
later.
only
prece-
conclusions conflict not
Meanwhile, despite the absence of
re-
from this
long-
dent
court but also with
Court,
mand order
the Federal
from
standing precedent
Supreme
from the
14,
February
2014, Vantage
its
amended
Supreme
Court
Texas
the
Court
petition in
Court and
the
asked
State
reason,
If for no
the United States.
other
State
temporary injunc-
Court
issue a
necessary
rehearing
en bane
is
maintain
against
tion
Su. Without
remand order
uniformity
this court’s decisions.
.Court,
from
Statq,
the Federal
Court
hearing
conducted a temporary-injunction
Relevant Jurisdictional Facts
2014,
over
days
several
of May
at the end
Appellee/plaintiff
Drilling Com-
and,
2014,
11,
on June
the State Court
pany
appellant/defendant
suit against
filed
granted a
.injunction.
fol-
temporary
The
Hsin-Chi-Su,.
Su, on August
Nobu
a/k/a
lowing day,
perfected
interlocutory
2012,
21,
in the 295th District Court of
appeal
injunction
order. On Au-
(the
Court”).
County,
Harris
Texas
“State
29,. 2014,
gust
filed a
in this
motion
later,
timely
Two months
removed the
all of
arguing
Court’s
State
case
States District
United
Court
actions
was
since
case
Fed-
removed
Texas,
for the Southern District of
Hous-
— including
granting
eral Court
(the
Court”).
ton Division
“Federal
—
injunction
temporary
were void for lack
Vantage’s
Court
motion to
Federal
denied
subject-matter jurisdiction
because
remand.
Ap-
The United
Court of
States
Federal
Court had never remanded
peals
per-
Fifth Circuit allowed a
-
later,
case to
days
Court.
State
Six
appeal
missive
ruling
from this
and deter-
Federal
signed a
order
Court
remand
mined
the trial court
in denying
erred
entirety:
reads in
“This case
Vantage’s motion
to remand. See
295th District
remanded
Court
Su,
Drilling
535,
Co. v. Hsin-Chi
741 F.3d
Texas,
County.
Signed
Septem-
Harris
(5th
curiam).
Cir.2014) (per
The Fifth
Houston,
2014 at
Texas.”1
ber
Circuit
judgment
rendered a
in which it
deny-
reversed the
Court’s
Federal
order
Remanding”
“Effectively
a Case
ing remand and remanded the case to the
a Remand Order
Without
instructions
Federal Court with
to remand
case to
panel
at
opinion,
State Court. See id.
the court concludes
that, during
The Fifth
proceedings
539.
Circuit did
reverse and
the State
remanding
February
through
render
order
the case to the Court from
June
2i,' 2014,
Court.
On January
subject-matter
State
See id.
the State Court had
jurisdiction
before the Fifth Circuit issued its
the ease had
“ef-
been
added).
(emphasis
curiam);
Court,
court)
(per
Reimer
state
fectively
the State
remanded”
Scott,
(Tex.App.—
Court had not
385-86
though
even
the Federal.
dism’d)
Hsin-Chi-Su v.
signed a
order.
writ
[14th Dist.]
remand
Houston.
Co.,
284, 294,
Vantage Drilling
order
needed
(stating
remand
14-14-00461-CV,
court),
No.
2015 WL
remanded to state
abro
to be
case
*21
July
(Tex.App.
[14th- Dist.]
*6
Quae
gated
part
grounds by,
other
— Houston
14, 2015,
h.).
pet.
panel
a
no
holds
The
Investments, Inc.,
228-
stor
at
997 S.W.2d
to
unnecessary
revest
order was
remand
the
panél’s
29. The
novel conclusion—that
the
jurisdiction
Court before
in the State
by os
Court could effect remand
Federal
temporary-injunction hearing and issuance
intent
tensibly forming an “unmistakable”
of
order because
temporary-injunction
the
to
the case
the State Court
remand
that
the Federal
was “unmistakable”
any remand
with
without
order —conflicts
n
the case to the
Court intended to remand
authorities.
these
Hsin-Chi-Su,
474
State Court.
See
panel’s
that the case
The
determination
4249265,
293-94, 2015
at *6.
at
WL
S.W.3d
the
point
at some
before
remanded
unambiguous language of title
the
Under
up
the
proceedings
leading
State
28,
1447(c) of the
section
United States
signing
temporary-injunc
Court’s
the
precedent
Code
under
from'
Su
arid
precedent
tion
also conflicts
order
with
of
preme Court
Texas and the Fourteenth
this
Supreme
Court of Texas and
from
from
Court of
a
order
remand
Appeals]
requiring a court
follow the unam
court
necessary require
remanding court is a
biguous
of a court order. See
language
ment
See
for a remand
occur.'
28
Murchie,
331,
v.
949
332
Wilde
S.W.2d
1447(c) (West,
through
§
U.S.C.
Westlaw
(Tex.1997)
curiam);
(per
aka T.D. v.
T.N.
114-51)
that,
P.L.
(providing
after
fed
State,
14-13-00012-CV, 2013
No.
WL
signs
eral
court
remand order' and sends
6925028,
(Téx.App.
at *3
[14th
— Houston
court,
it to the clerk of the state
“[t]h'e
2013,
5,
(mem.op.).
pet.)
no
Dist Nov.
]
thereupon
may
proceed
State ’court
with
plain wording of the
Federal
Under
case”);
v.
such
Serros de Gonzalez
Guilbot
order,
4, 2014
September
Court’s
remand
533,
Guilbot,
537-38
Gonzalez
315 S.W.3d
occur
did not
before that date.
remand
(Tex.2010)
of
delivery
(holding
“hand
So,
subject-matter
Court had no
the State
successfully
order in this case
remand
date.,
jurisdiction before that
jurisdiction
the transfer' of
from
effected
court,” allowing
federal court to
hand
state
of a
Absence
Remand Order
of
delivery
mailing
rather than
the order
as a Procedural Defect
order,"
requiring
while still
remand
panel concludes that the absence
stating that “what matters more is what
procedural
ais
defect
remand order
ordered, not
the federal court
what
Hsin-Chi-Su,
See
and did waive.
mailed”); Quaestor
Su could
federal clerk
Invest
294,
at
74
2015
ments,
S.W.3d
WL
Inc. v.
Chiapas,
State
no juris state court lacked complaint Although en disfa- rehearing, banc Co., diction); In re & Crawford vored, necessary to appropriate it is (Tex.2015) (holding that a n.7 panel resolve the conflicts between complaint x-egarding party cannot waive precedents of this opinion prior and the subject-matter ju lack of Therefore, the trial court’s P. Tex.R.App. court. See 41.2. risdiction); Goodfriend, 347 v. Glassman motion grant appellant’s this court should [14th (Tex.App. rehearing. Because it for en banc does — Houston banc) not, denied) (en (stating panel opinion and instead lets pet. Dist.] stand, I dissent. respectfully subject-matter jurisdiction cannot be waiver); Univ. conferred consent or (Justice joins this Christopher at Center Houston Tex. Health Science opinion; Boyce, Justices dissenting Cheatham, 14-14-00628-CV, 2015 WL No. Donovan, Brown, Jamison, Busby, *2, n.4 (Tex.App. — Houston to, the motion for en banc deny vote Wise 23, 2015, pet.) (holding no Dist.] June [14th (Justice sitting). rehearing) McCally subject-matter juris prerequisites to pre court are never the .trial diction waived) (mem.op.);
sumed cannot *23 (Tex. S.A.H., re
App. pet) no [14th Dist.] —Houston
(stating jurisdiction subject-matter to a court’s to. decide a power
essential consent, and cannot be conferred case SCHREIBER, Wendy Appellant waiver).. estoppel, If the trial court fails jurisdic subject-matter note its lack no long tion and one raises the issue until LLOYDS, STATE Appellee FARM litigation, after substantial court NO. 14-14-00010-CV litigants may lost valuable have time resources, but the loss does Texas, of Appeals Court — change proceedings are the result (14th Dist.). Houston jurisdiction. subject-matter for lack void July Opinion filed Arguments efficiency ju championing Rehearing En Banc Overruled economy give parties dicial do a means November consequences of lack of to. avoid the See, subject-matter jurisdiction. e.g.,
Cheatham, *2, WL n.4
(holding that did not waive party complaint subject-matter
to lack prerequisite
jurisdiction, though party waited even four
nearly years complaint to assert this court,
in the trial tidal court’s because the
jurisdiction presumed is never and cannot waived). subject- When lacks jurisdiction, proceedings
matter are :
void.