SHAMOUN & NORMAN, LLP, еt al., Appellants, v. YARTO INTERNATIONAL GROUP, LP and YIG-GP, LLC, Appellees. Shamoun & Norman, LLP, et al., Appellants, v. Robert Yarto, et al., Appellees. In re Shamoun & Norman, LLP, et al.
Nos. 13-11-00087-CV, 13-11-00256-CV, 13-11-00281-CV
Court of Appeals of Texas, Corpus Christi-Edinburg
May 31, 2012
Opinion on Rehearing May 31, 2012
398 S.W.3d 272
Michael A. McGurk, Ricardo Pumarejo Jr., Kittleman, Thomas, Ramirez & Gonzales, McAllen, for Appellees.
J. Michael Moore, David J. Lumber, Guerra & Moore, McAllen, Raymond L. Thomas, Michael A. McGurk, Ricardo Pumarejo Jr., Kittleman, Thomas, Ramirez & Gonzales, McAllen, for Real Party in Interest.
Before Chief Justice VALDEZ and Justices GARZA and VELA.
OPINION ON REHEARING
Memorandum Opinion on Rehearing by Justice GARZA.
We grant in part and deny in part the motion for rehearing filed by appellants/relators Shamoun & Norman, LLP, Gregory Shamoun and Brian Norman (collectively “Shamoun“), vacate and withdraw our previous memorandum opinion and judgment dated January 19, 2012, and issue the following in its place.
By two interlocutory appeals and a petition for writ of mandamus, Shamoun challenges (1) the trial court‘s order imposing an anti-suit injunction, and (2) its orders denying two motions to transfer venue. We will deny the petition for writ of mandamus, reverse the trial court‘s judgment granting the anti-suit injunction, affirm the trial court‘s denial of the motions to transfer venue, and remand for further proceedings.
I. BACKGROUND
Shamoun, a law firm based in Dallas County, was sued by appellee/real party in interest Robert Yarto on April 28, 2010 in Hidalgo County. Yarto asserted claims of professional negligence, breach of fiduciary duty, and theft of trade secrets. Yarto‘s petition, which requested damages and injunctive relief, alleged that Shamoun represented Yаrto on several prior occasions but is “currently representing parties adverse to [Yarto] on matters similar to those for which [it] had previously represented [Yarto].” Yarto further alleged that Shamoun “illegally obtained confidential financial documents and/or trade secrets belonging to [Yarto].” According to the petition, Shamoun breached its fiduciary duty to Yarto by (1) “represent[ing] parties adverse to [Yarto],”1 (2) “disclos[ing] confidential communications” to those adverse parties during a 2010 mediation in Travis County, and (3) “us[ing] illegally obtained documents to [Yarto]‘s detriment.” The petition also named Rhoderick Williams and Steven Winkler as defendants.1
The next day, Yarto‘s suit was removed to bankruptcy court. The debtor in the bankruptcy proceedings was YITC-GP, LLC (“YITC-GP“), a corporation set up to serve as general partner of Yarto International Trading Group, L.P. (“YITC“). YITC and YITC-GP, as well as two other entities, appellees/real parties in interest Yarto International Group, L.P. (“YIG“), and YIG-GP, LLC (“YIG-GP“), were founded by Yarto but later came to be owned and operated by Williams and Winkler.2 At the time the bankruptcy proceedings commenced, YIG, YITC, Williams and Winkler were all represented by Shamoun in various lawsuits involving Yarto and multiple third parties. All of those pending cases, along with Yarto‘s suit against Shamoun, were removed to bankruptcy court on April 30, 2010. See
Eventually, the parties agreed to settle their outstanding claims in exchange for mutual releases. A global settlement agreement, drafted by Shamoun at the direction of the parties, was executed on December 9, 2010. As part of the agreement, YIG agreed to transfer certain assets to YITC; Williams and Winkler agreed to transfer ownership of YIG to Yarto; and YITC pledged to pay more than $1.5 million in settlement payments to various parties.3 The agreement further provided that: (1) YITC would release Yarto from any and all claims related to the pending litigation; and (2) Yarto would release YITC, along with its “past and present agents, representatives, officers, directors and attorneys,” including Winkler and Williams, from any and all claims related to the pending litigation, with one notable exception:
15. Shamoun Litigation. Nothing in this Agreement shall be construed as a release of Shamoun by Yarto. The Parties hereby acknowledge and agree that, with respect to any claim, lawsuit, complaint or proceeding (whether judicial or otherwise) brought by any of the Yarto Parties [i.e., Yarto and YIG] against Shamoun and/or any of its partners or affiliates (in each case, a “Shamoun Claim“), (a) such Shamoun Claim shall be brought in an appropriate state court located in Travis County, Texas, and (b) none of the Yarto Parties shall be permitted to bring a Shamoun Claim in any court not located in Travis County, Texas. The parties hereby acknowledge and agree that (y) Shamoun is and shall be considered a third-party beneficiary4 with respect to [this] Agreement, and (z) Shamoun shall have the right to directly enforce this provision on Shamoun‘s own behalf.
27. SUBMISSION TO JURISDICTION. THE PARTIES HEREBY AGREE THAT ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS, AND PROCEEDINGS RELATING TO THIS AGREEMENT OR THE OTHER AGREEMENTS CONTEMPLATED HEREIN SHALL BE FILED AND MAINTAINED ONLY IN AN APPROPRIATE STATE OR FEDERAL COURT IN TRAVIS COUNTY, TEXAS, AND THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF SUCH COURT.
On December 1, 2010, after the settlement agreement had been negotiated but prior to its execution, Shamoun sent a letter to Williams and Winkler addressing Shamoun‘s status theretofore as counsel of record for YIG. The letter stated:
Prior to the settlement, this firm provided services to the so-called YITC Parties which, at the beginning, included [YIG]. Pursuant to the Settlement Agreement, [YIG is] transferring certain assets to the YITC parties and ownership of [YIG] will be transferred solely to the so-called “Yarto Parties” side of the litigation. This letter is to confirm and clarify that, this firm provided services only to the YITC Parties. With respect to the Settlement Documents which provide that [YIG] will be transferred to the Yarto Parties, this firm has not represented [YIG]. [YIG] further acknowledge[s] that [it was] promptly made aware of this issue and [was] advised of [its] right to retain separate counsel to advise [it] regarding the YIG Settlement Documents and this letter.
[YIG] understand[s] that the YIG Settlement Documents were prepared according to instructions of the YITC Parties and the final instructions from the parties utilizing the YIG Settlement Documents and their attorneys at the time of closing of the YIG Settlement Documents. No representations have been made as to the legal effects or tax consequences of the YIG Settlement Documents. Additionally, [YIG] acknowledge[s] that [it] understand[s] that [Shamoun] has made no independent investigation, representation or assurance whatsoever regarding the compliance of the contemplated transaction as evidenced by the YIG Settlement Documents with tax, securities, or other law of the United States of America having jurisdiction over this transaction.
[YIG] understand[s] that [Shamoun] is not employed for representation generally or for any purpose in connection with the YIG Settlement Documents other than that stated above. [YIG] acknowledge[s] that [it has] read, understand[s], and hereby approve[s] of the YIG Settlement Documents.
After the settlement agreement was executed, the bankruptcy court remanded Yarto‘s suit to state district court in Hidalgo County. Yarto and Shamoun were the only parties remaining in the pending litigation. On December 29, 2010, Yarto filed an “Agreed Motion to Transfer Venue” in which he conceded that he “agreed in the settlement agreement to prosecute his remaining claims against [Shamoun] solely in Travis County, Texas.” The motion was signed by counsel for both Yarto and Shamoun.
However, on January 19, 2011, before the trial court heard оr ruled upon the agreed motion to transfer, YIG intervened in the case. Its petition in intervention, sworn to by Yarto as an authorized representative of YIG, asserted that Shamoun committed professional negligence and breached its fiduciary duty by, among other things: (1) representing parties adverse to YIG; (2) disclosing confidential communications involving YIG; and (3) “conspir[ing] with others to divest [YIG] of valuable and lucrative assets, leaving [YIG] devoid of all assets.” YIG additionally alleged that Shamoun “represent[ed] [YIG] in the course of the global settlement, and extracted terms and conditions of settlement for the benefit of [Shamoun] and to the detriment of [YIG].” The petition stated that “[v]enue is proper as to [YIG] because all or a substantial part of the acts and/or omissions complained of occurred in Hidalgo County . . . and [YIG‘s] claims arise from the same set of operative facts as [Yarto]‘s claims.” YIG‘s petition in intervention sought damages as well as injunctive relief, claiming that Shamoun “ha[s] already demonstrated the propensity to avoid this proper venue [Hidalgo County district court] at any cost, including the filing of frivolous pleadings and proceedings.” YIG requested an anti-suit injunction, noting that Shamoun had already brought suit against it in Dallas County and arguing that “there is an imminent threat of irreparable harm that [Shamoun] will, once agаin, attempt to avoid this proper venue by filing additional frivolous pleadings or proceedings in one or more different venues.”
After YIG filed its petition in intervention, Shamoun filed an amended motion to transfer arguing that the action should be transferred either to Travis County or Dallas County. The amended motion contended that Travis was a proper venue because Yarto “entered into a valid, binding contractual agreement to place venue in Travis County” and “the alleged acts of which [Yarto] complains occurred, if at all, in Travis County . . . .”
The trial court granted YIG‘s request for a temporary restraining order and, after a hearing on January 27, 2011, the trial court granted the requested temporary anti-suit injunction. Both orders enjoined Shamoun from “filing, initiating, serving any process, [or] continuing any litigation against [YIG and YIG-GP or their] employees, agents and representatives in any other court or forum unless leave of this Court is first obtained.” Shamoun appealed the temporary injunction order.6 See
At the January 27, 2011 hearing, the trial court was advised that Yarto‘s “Agreed Motion to Transfer Venue” and Shamoun‘s separately-filed motion to transfer were still pending. A hearing was held on the venue issue on March
II. DISCUSSION
A. Anti-Suit Injunction
In appellate cause number 13-11-00087-CV, Shamoun argues that the trial court erred by granting YIG‘s request for a temporary anti-suit injunction.
1. Standard of Review
Whether to grant or deny a temporary injunction is within the trial court‘s sound discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)). We will reverse an order granting injunctive relief only if the trial court abused that discretion. Id. (citing Walling, 863 S.W.2d at 58; Walker, 679 S.W.2d at 485).
2. Applicable Law
In general, the purpose of a temporary injunction is to preserve the status quo of the litigation‘s subject matter pending a trial on the merits. Id. An anti-suit injunction, in particular, will issue “only in very special circumstances.” Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996) (citing Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986); Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986)). An applicant for an anti-suit injunction must show that “a clear equity demands” such relief in order to: (1) address a threat to the court‘s jurisdiction; (2) prevent the evasion of important public policy; (3) prevent a multiplicity of suits; or (4) protect a party from vexatious or harassing litigation. Id. (citing Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 307). We have stated that the majority rule in Texas is that a party seeking an anti-suit injunction must satisfy the traditional prerequisites to injunctive relief as well as the more specific requirements applicable only to anti-suit injunctions. See Yarto v. Gilliland, 287 S.W.3d 83, 88 n. 8 (Tex. App.—Corpus Christi 2009, no pet.) (listing cases); see also Counsel Fin. Servs., L.L.C. v. Leibowitz, No. 13-10-00200-CV, 2011 WL 2652158, at *10-11 (Tex. App.—Corpus Christi July 1, 2011, no pet.) (mem. op.); Freddie Records, Inc. v. Ayala, No. 13-07-00363-CV, 2009 WL 3135790, at *4 (Tex. App.—Corpus Christi Sept. 30,
In the context of a request for temporary injunctive relief, a probable right to recovery and probable injury must be established by competent evidence adduced at a hearing. Millwrights Local Union No. 2484 v. Rust Eng‘g Co., 433 S.W.2d 683, 686 (Tex. 1968); see Armendariz v. Mora, 526 S.W.2d 542, 543 (Tex. 1975); see also Compass Bank v. Barrera, No. 13-10-00529-CV, 2011 WL 743399, at *3 (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) (mem. op.); McDaniel v. Connelly, No. 13-08-230-CV, 2008 WL 2744901, at *1 (Tex. App.—Corpus Christi July 3, 2008, pet. denied) (mem. op.).11 However, a sworn petition does not constitute evidence. Millwrights Local Union No. 2484, 433 S.W.2d at 686; see Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 623 (Tex. 2005).
We need not decide whether the traditional injunction requirements apply to anti-suit injunctions because, even assuming they do not apply, YIG has still failed to meet its burden because it did not produce any evidence on the requirements specific to anti-suit injunctions.
3. Analysis
Two hearings were held on YIG‘s request for injunctive relief. The first hearing took place on January 19, 2011, the same day that YIG filed its petition in intervention and request for injunctive relief. Counsel for YIG appeared in person and Gregory Shamoun appeared personally by telephone. No witnesses were called, no evidence was admitted, and the attorneys were not sworn and did not testify. Shamoun explained to the trial court that he had not yet been served with YIG‘s petition or request for injunctive relief and so could not agree to a temporary restraining order enjoining Shamoun from filing suit against YIG.12 The trial court granted the temporary restraining order and scheduled a temporary injunction hearing for the following week. See
The temporary injunction hearing took place on January 27, 2011. Counsel for Yarto, YIG, and Shamoun all appeared in person and offered arguments. Again, no witnesses were called and no sworn testimony was given by the attorneys. During the course of the hearing, six documents were accepted as exhibits by the trial court. YIG offered four documents: (1) Yarto‘s motion for remand filed in bankruptcy court; (2) a prior temporary anti-suit restraining order issued in a separate case on March 31, 2010, which enjoined YIG, YITC, Winkler, Williams, and others from filing suit against Yarto; (3) an order extending that temporary restraining order; and (4) a transcript of the January 19, 2011 telephonic hearing. Counsel for Shamoun introduced: (1) Shamoun‘s December 1, 2010 letter to Williams, Winkler, and others addressing Shamoun‘s status up until that point as counsel of record for YIG; and (2) a “Partial Release Agreement” executed by Yarto, dated December 6, 2010, in which Yarto “and his attorneys, heirs and assigns” agreed to release Shamoun from any and all claims related to the drafting of settlement documents, with the exception of Yarto‘s then-existing claim. Other than the “Partial Release Agreement,” which was sworn to by Yarto, none of the six documents that were accepted
On appeal, Shamoun argues that the trial court erred by granting the injunction because YIG “failed to meet any evidentiary burden placed on them” by rule or case law.13 We agree. As noted, an applicant for injunction must establish its probable right to recovery and a probable injury by competent evidence adduced at a hearing. Millwrights Local Union No. 2484, 433 S.W.2d at 686. Here, no witnesses presented sworn testimony at either the January 11 or January 27 hearings. Moreover, the documents which were introduced by YIG as exhibits at the January 27 hearing were not authenticated by testimony, nor were they self-authenticating by virtue of being sworn to or verified.14 The only “evidence” upon which the trial court based its ruling was YIG‘s sworn petition, the argument of counsel, and the six documents accepted as exhibits at the hearing. This was, in effect, no evidence. See id.; Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 590; see also Compass Bank, 2011 WL 743399, at *3-4.15 Accordingly, the trial court abused its discretion by granting the anti-suit injunction. See Millwrights Local Union No. 2484, 433 S.W.2d at 686; see also Operation Rescue-Nat‘l v. Planned Parenthood of Houston & Se. Tex., 975 S.W.2d 546, 560 (Tex. 1998) (“[A] trial court has no discretion to grant injunctive relief . . . without supporting evidence.“). We sustain Shamoun‘s issue in appellate cause number 13-11-00087-CV.
B. Interlocutory Appeal of Venue Determination
In appellate cause number 13-11-00256-CV, Shamoun argues that the trial court
1. Jurisdiction
Citing the Texas Supreme Court‘s 2000 opinion in American Home Products Corp. v. Clark, Yarto contends that we lack jurisdiction to consider Shamoun‘s appeal regarding venue because the statute upon which the appeal is based, section 15.003, applies only to orders “allowing or denying intervention or joinder.” See 38 S.W.3d 92, 96 (Tex. 2000). However, the Legislature amended section 15.003 in 2003. See Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 3.03, 2003 TEX. SESS. LAW SERV. 847, 853. Section 15.003(a) now applies to any “suit in which there is more than one plaintiff,” whether the plaintiffs are included “by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise.”
each plaintiff must, independently of every other plaintiff, establish proper venue. If a plaintiff cannot independently establish proper venue, that plaintiff‘s part of the suit, including all of that plaintiff‘s claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes that:
(1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure;
(2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit;
(3) there is an essential need to have that plaintiff‘s claim tried in the county in which the suit is pending; and
(4) the county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the suit is brought.
Subsection (b) of section 15.003 allows an interlocutory appeal of a trial court‘s determination that (1) a plaintiff did or did not independently establish proper venue, or (2) a plaintiff that did not independently establish proper venue did or did not establish the four requirements specified in subsection (a).
2. Applicable Law and Standard of Review
In general, plaintiffs are allowed to choose venue first, and the plaintiff‘s choice cannot be disturbed as long as suit is initially filed in a county of proper venue. Henry v. McMichael, 274 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); Crown Cent. LLC, 239 S.W.3d at 388. A trial court must consider all venue facts pled by the plaintiff as true unless they are specifically denied by an adverse party.
“Proper venue” means: (1) the mandatory venue, as provided by subchapter B of chapter 15 of the civil practice and remedies code or any other statute prеscribing mandatory venue; or (2) if there is no mandatory venue; the venue provided under the general venue statute or the
(Tex. App.—San Antonio Feb. 1, 2012, no pet.). The court cited Clark and Electronic Data Systems Corp. v. Pioneer Electronics (USA) Inc., 68 S.W.3d 254, 257 (Tex. App.—Fort Worth 2002, no pet.), for the proposition that section 15.003‘s “limited right of appeal applies only to a trial court‘s determination that a plaintiff may or may not intervene or join in the suit.” McCaskill, 2012 Tex. App. LEXIS 799, at *4. The court also cited Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999), for the proposition that interlocutory appellate jurisdiction lies only when the challenged order “necessarily rested on the trial court‘s determination of the propriety of joinder under section 15.003(a).” McCaskill, 2012 Tex. App. LEXIS 799, at *7-8.
We disagree with McCaskill and Gomez because those cases rely on obsolete authority. Clark, Electronic Data Systems Corp., and Surgitek each construed the pre-2003 version of the statute. Moreover, the current version of section 15.003(c) does not limit appeals in the manner suggested by Gomez. See
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) in the county of defendant‘s residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant‘s principal office in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
Under section 15.003(с)(1), we determine whether the trial court‘s order is proper “based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard.”
3. Analysis
Shamoun contends that neither Yarto nor YIG independently established that Hidalgo County was a proper venue for their suits. Because each plaintiff must independently establish venue, see
i. Yarto
In his first amended original petition, Yarto asserts that Hidalgo County is a proper venue for his suit under the Texas Theft Liability Act, which states in part that a suit for theft “may be brought in the county where the theft occurred or in the county where the defendant resides.”
We first address the waiver issue. Shamoun argues that, once Yarto filed the agreed motion to transfer, the trial court had a ministerial duty to grant that motion pursuant to section 15.063 of the civil practice and remedies code, which provides that a trial court “shall transfer an action to another county of proper venue” if “written consent of the parties to transfer to any other county is filed at any time.”
Because it was in writing, signed by counsel and filed with the trial court, the agreed motion to transfer did indeed serve as a Rule 11 agreement acknowledging that Yarto and Shamoun consented to transfer the case to Travis County. See
We find no such proof in the record. In an affidavit attached to Yarto‘s response to Shamoun‘s motion to transfer, Yarto alleged in part that, “[d]uring the mediation of the David E. Girault, et al. v. Rhoderick Tyrone Williams, et al. case, Shamoun . . . presented certain confidential financial documents . . . in an attempt to extort concessions from me with this confidential information.” Yarto also made this allegation in an affidavit attached to YIG‘s response to Shamoun‘s petition. In that subsequent affidavit, Yarto makes clear that the Girault mediation took place in Travis County. However, this lone, isolated allegation does not constitute a “substantial part” of the events giving rise to his claims. See
Other than this insubstantial assertion by Yarto, no party provided any evidence that “all or a substantial part of the events or omissions giving rise to the claim” occurred in Travis County. In fact, Yarto‘s live petition did not allege that any part of the events giving rise to his claims occurred in that county. We therefore conclude the trial court was not compelled to grant Yarto and Shamoun‘s agreed motion to transfer on this basis.
We next address Shamoun‘s contention that Yarto “failed to provide . . . any venue facts establishing or suggesting that [Shamoun] committed some act or omission in Hidalgo Cоunty.” Yarto‘s live petition alleged that his former employee Veronica Flores, “acting as an agent” of Shamoun, stole certain confidential financial documents (which Yarto calls “the trade secret documents“) that were contained on Yarto‘s computer servers situated in Hidalgo County. Shamoun specifically denied this allegation in its answer and in its motion to transfer, thereby placing the burden on Yarto to produce prima facie proof of these alleged venue facts. See
I maintain a computer server in Hidalgo County for Jenrob Investments, LP (“Jenrob“), a business in which I am a partner, and the managing partner. The trade secret documents were stored on the Jenrob server in Hidalgo County. The documents were taken from the Jenrob Server located in Hidalgo County. Veronica Flores, who was a resident of Hidalgo County at the time and former employee of Jenrob, had the access codes/passwords to obtain access to the Jenrob computer system. At all times in committing this theft, Veronica Flores was apparently acting as an agent of Shamoun & Norman. The stolen data was located in Hidalgo County, and was stolen from Hidalgo County. Additionally, Shamoun & Norman conspired with others, including Veronica Flores, to steal this data from JenRo[b]. In stealing this data from JenRob, Veronica Flores aided and abetted Shamoun & Norman in the breach of its fiduciary duty to me. The documents were not stolen from me in Travis County, as neither I nor my counsel brought said documents, nor had said documents in their possession, when we went to Travis County for mediation.
Shamoun provided an affidavit by Flores which denied these allegations. Specifically, Flores stated in her affidavit that she “never took any documents from any JenRob server when [she] left JenRob,” she “never took or stole any of JenRob‘s documents or other information,” she “never provided any of JenRob‘s documents to Rhod Williams or Steve Winkler,” and she “never acted as the agent of [Shamoun].” Brian Norman also provided an affidavit in which he stated:
Neither I nor my firm have ever had access to a computer belonging to [YIG] or Yarto in Hidalgo County. The documents to which Yarto refers were in the possession of Rhod[e]rick Williams and he obtained them from [YITC]‘s computer in Collin County. Williams brought the documents at issue to mediation and none of Shamoun & Norman, LLP or
any of its attorneys had anything to do with the presentation of such documents to the mediator.
Norman additionally averred that “Veronica Flores is not and has never been an agent or employee of [Shamoun]” and that “no data wаs stolen and certainly not stolen from any computer in Hidalgo County.”
Shamoun argues that the allegations made by Yarto in his affidavit do not constitute prima facie proof of venue facts because they are mere conjecture. We disagree. Yarto swore in the affidavit that the facts stated therein “are based upon my own personal knowledge, and they are true.” Moreover, even though Flores and Norman categorically denied Yarto‘s allegations, prima facie proof of venue facts by affidavit “is not subject to rebuttal, cross-examination, impeachment, or even disproof.” Ruiz, 868 S.W.2d at 757. And, though probative venue evidence is susceptible to being “destroyed” by conclusive evidence to the contrary, see Chiriboga, 96 S.W.3d at 678, no such countervailing evidence was adduced by Shamoun here. The denials sworn to by Flores and Norman contradict Yarto‘s account but they do not conclusively disprove it. The trial court was therefore required to accept the venue facts alleged in Yarto‘s petition and supported by affidavit. Ruiz, 868 S.W.2d at 757; Henry, 274 S.W.3d at 190. Those facts include Yarto‘s accusation that Flores committed theft of property situated in Hidalgo County while acting as an agent of Shamoun. Accordingly, venue for Yarto‘s suit against Shamoun is proper in that county under the Texas Theft Liability Aсt. See
Shamoun‘s issue in appellate cause number 13-11-00256-CV is overruled as it relates to Yarto.
ii. YIG
Unlike Yarto, YIG did not join in the agreed motion to transfer to Travis County, and there is no suggestion that YIG ever consented in any way to transfer. The only question, therefore, is whether YIG established that Hidalgo County was a proper venue for its suit under the applicable rules. In its appeal, Shamoun argues only that YIG failed to present prima facie proof establishing its alleged venue facts; it does not contend on appeal that the application of any mandatory venue provision renders Hidalgo County an improper venue.22 Therefore, in our consideration of this issue, we will determine only whether YIG met its burden to establish venue under the general or permissive venue statutes. See
YIG made various factual allegations in its petition in intervention. Shamoun filed a response on February 22, 2011 that generally denied all of YIG‘s allegations. However, “global” or “general” denials of venue allegations do not suffice as “specific” denials under the rules of civil procedure. Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 71 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (“[S]tatements such as ‘Defendant specifically denies those venue facts pleaded in Plaintiff‘s Petition’ do not constitute a ‘specific denial’ as required by [Texas Rulе of Civil Procedure] 87.“) (quoting Maranatha Temple, Inc. v. Enter. Prods. Co., 833 S.W.2d 736, 740 (Tex. App.—Houston [1st Dist.] 1992, writ denied)); see
Because Shamoun never properly denied YIG‘s venue allegations, the trial court was required to consider them as true. See
We overrule Shamoun‘s issue in appellate cause number 13-11-00256-CV as it relates to YIG.
C. Petition for Writ of Mandamus
In appellate cause number 13-11-00281-CV, Shamoun asks that we issue a writ of mandamus compelling the trial court to: (1) grant Shamoun‘s motion to transfer; and (2) grant the agreed motion to transfer filed by Yarto. Shamoun specifically alleges that Yarto and YIG consented to the venue transfer by entering into the settlement agreement and, in the case of Yarto, by filing an agreed motion to transfer. See
1. Standard of Review
Ordinarily, mandamus will issue only to correct a clear abuse of discretion for which the remedy by appeal is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The Texas Supreme Court has held that, “[g]enerally, an appellate remedy is adequate even though it involves delay and more expense than obtaining an extraordinary writ” and that “venue determinations as a rule are not reviewable by mandamus.” In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999); In re Mendoza, 83 S.W.3d 233, 236 (Tex. App.—Corpus Christi 2002, orig. proceeding); see also
However, an exception to this rule exists for the mandatory venue provisions contained in subchapter B of chapter 15 of the civil practice and remedies code. See
2. Applicable Law
In general, the fixing of venue by contract is invalid. In re Great Lakes Dredge & Dock Co., 251 S.W.3d 68, 76 (Tex. App.—Corpus Christi 2008, orig. proceeding) (citing Fid. Union Life Ins. Co. v. Evans, 477 S.W.2d 535, 537 (Tex. 1972)). An exception to that general rule appears in section 15.020 of the civil practice and remedies code, which states that contractual venue selection clauses may be enforceable in cases involving “major transactions.”
3. Analysis
In its petition for writ of mandamus, Shamoun contends that the settlement agreement executed on December 9, 2010, evidenced a “major transaction” as defined by the statute. We agree. The agreement was in writing and called for a party to the agreement, YITC, to make settlement payments totaling $1,777,500. The amounts of the payments were explicitly set forth in the agreement. Cf. In re Togs Energy, Inc., No. 05-09-01018-CV, 2009 WL 3260910, at *1, 2009 Tex. App. LEXIS 7949, at *2 (Tex. App.—Dallas Oct. 13, 2009, orig. proceeding) (mem. op.) (concluding that section 15.020 did not apply because agreement did not state the value of consideration). Yarto contends that section 15.020 does not apply to him because, although the agreement provided for payments in excess of $1 million to be made, Yarto “neither paid nor received $1 million from anyone.” However, the statute does not require that a party to the potentially transferred lawsuit be obligated to pay or entitled to receive $1 million or more in consideration; instead, it merely requires that “a person” be obligated to pay or entitled to receive such consideration. See
We must next determine whether the actions brought by Yarto and YIG, respectively, “ar[ose] from” the transaction evidenced by the December 9, 2010 agreement. See
Yarto‘s claims were first brought several months before the global settlement agreement was finalized. In a 2008 memorandum opinion, the Fourteenth Court of Appeals held that “[i]t would be erroneous to conclude that venue of a suit is fixed by agreement under section 15.020(b) when the claimed agreement was not executed until weeks after suit was filed.” In re Medical Carbon Research Institute, L.L.C., No. 14-08-00104-CV, 2008 WL 961750, at *1-2, 2008 Tex. App. LEXIS 2518, at *4 (Tex. App.—Houston [14th Dist.] Apr. 9, 2008, orig. proceeding) (mem. op.) (per curiam). We agree with that court‘s reasoning. Venue is to be determined by examining the facts existing at the time the cause of action accrued.
On the other hand, YIG‘s petition in intervention was filed on January 19, 2011, several weeks after the settlement agreement was executed. Although YIG‘s petition raised many of the same allegations as those originally raised by Yarto, YIG‘s principal complaint against Shamoun is that Shamoun “represent[ed] [YIG] in the course of the global settlement, and extracted terms and conditions of settlement for the benefit of [Shamoun] and to the detriment of [YIG].” Accordingly, YIG‘s claim “ar[ose] from” the settlement agreement.
But this observation does not end our inquiry, because the major transaction statute does not apply to all suits arising out оf major transactions. Instead, subsections (b) and (c) of the statute restrict the operation of the statute to limited circumstances.
First, subsection (b) states that “[a]n action arising from a major transaction shall be brought in a county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county.”
Next, subsection (c) of the statute states that “[a]n action arising from a major transaction may not be brought in a county” if:
(1) the party bringing the action has agreed in writing that an action arising from the transaction may not be brought in that county, and the action may be brought in another county of this state or in another jurisdiction; or
(2) the party bringing the action has agreed in writing that an action arising from the transaction must be brought in another county of this state or in another jurisdiction, and the action may be brought in that other county, under this section or otherwise, or in that other jurisdiction.
We first examine the applicability of subsection (c)(2). Here, “the party bringing the action“—i.e., YIG—agreed in section 27 of the settlement agreement that “ANY AND ALL CLAIMS . . . RELATING TO THIS AGREEMENT . . . SHALL BE FILED AND MAINTAINED ONLY IN AN APPROPRIATE STATE OR FEDERAL COURT IN TRAVIS COUNTY, TEXAS.” This is a written agreement that “an action arising from” the major transaction “must be
We cannot conclude that YIG‘s action “may be brought” in Travis County. As noted, the general venue statute states that all lawsuits shall be brought “in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred,” or in the county of the defendant‘s residence or principal office.
We turn finally to subsection (c)(1) of section 15.020, under which an action arising from a major transaction may not be brought in a particular county if “the party bringing the action has agreed in writing that an action arising from the transaction may not be brought in that county, and the action may be brought in another county of this state or in another jurisdiction.”
Assuming, without deciding, that these sections constitute written agreements by YIG that “an action arising from the transaction” may not be brought in Hidalgo County, we nevertheless find that subsection (c)(1) is inapplicable. That subsection applies only when “the action may be
As noted, mandamus will generally issue to correct a venue ruling only if a mandatory venue provision located in subchapter B of chapter 15 of the civil practice and remedies code applies. See
III. CONCLUSION
In appellate cause number 13-11-00087-CV, we reverse the trial court‘s judgment granting YIG‘s request for a temporary anti-suit injunction, and we remand the cause for further proceedings consistent with this opinion. In appellate cause number 13-11-00256-CV, we affirm the trial court‘s judgment denying Yarto and Shamoun‘s agreed motion to transfer. Finally, in appellate cause number 13-11-00281-CV, we deny Shamoun‘s petition for writ of mandamus.
DORI CONTRERAS GARZA
Justice
Notes
Camp v. Shannon, 162 Tex. 515, 519, 348 S.W.2d 517, 519 (1961).An applicant for a temporary injunction seeks extraordinary equitable relief. He seeks to immobilize the defendant from a course of conduct which it may well be his legal right to pursue. Crowded dockets, infrequent jury trial weeks, or trial tactics can often delay a trial of a case on its merits for many months. The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. If not, no purpose is served by the provisions of
Rule 680, [Texas Rules of Civil Procedure] , limiting the time for which a restraining order granted without a hearing can operate and requiring a hearing before a temporary injunction can issue. If he cannot or does not discharge his burden he is not entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.
Act of May 18, 2005, 74th Leg., R.S., ch. 138, § 1, 1995 TEX. SESS. LAW SERV. 978, 979 (amended 2003).Any person seeking intervention or joinder, who is unable to independently establish proper venue, or a party opposing intervention or joinder of such a person may contest the decision of the trial court allowing or denying intervention or joinder by taking an interlocutory appeal to the court of apрeals district in which the trial court is located under the procedures established for interlocutory appeals. . . .
Although we stated in Southwestern Bell that interlocutory appeals of venue rulings are available in cases “where joinder is challenged,” we did not intend to imply by those words that such appeals are only available in that instance. Instead, as we recognized, the 2003 statute permits interlocutory appeals of venue rulings “in any ‘suit in which there is more than one plaintiff,‘” id. at *6 (quoting
In McCaskill, the San Antonio court determined that it did not have jurisdiction under section 15.003 to consider an interlocutory appeal of an order denying a motion to transfer because “[i]t is clear from the motions to transfer venue that the appellants’ complaints focused primarily on the choice of Maverick County as the county of venue and not on whether [plaintiffs] the Viescas could intervene or join the lawsuit as plaintiffs.” Harding Bars, LLC v. McCaskill, No. 04-11-00629-CV, 2012 Tex. App. LEXIS 799, at *7
It is undisputed that these caveats do not apply, with one exception: YIG contends that the agreement regarding venue was unconscionable at the time it was made. We disagree. All parties to the December 9, 2010 agreement were sophisticated business entities and were represented by competent counsel throughout the settlement negotiations. Though YIG complains that Shamoun was representing it at the time the settlement was reached, the December 1, 2010 letter sent by Shamoun to YIG clearly advised YIG that Shamoun‘s representation of YIG had in fact ceased. Moreover, an agreement to litigate in a forum in which the parties had already participated in mediation is not inherently unfair. We find that the venue selection clauses in the December 9, 2010 settlement agreement were not unconscionable at the time they were made. See In re Poly-America, L.P., 262 S.W.3d 337, 348-49 (Tex. 2008) (orig. proceeding) (“Unconscionability is to be determined in light of a variety of factors, which aim to prevent oppression and unfair surprise; in general, a contract will be found unconscionable if it is grossly one-sided.“) (citing RESTATEMENT (SECOND) OF CONTRACTS § 208, cmt. a (1979) (“The determination that a contract or term is or is not unconscionable is made in the light of its setting, purpose, and effect. Relevant factors include weaknesses in the contracting process like those involved in more specific rules as to contrаctual capacity, fraud, and other invalidating causes; the policy also overlaps with rules which render particular bargains or terms unenforceable on grounds of public policy.“)). Whether venue was in fact proper is a separate matter that will be fully addressed herein.