Express Chipping, Inc. v. Redi-Mix Solutions, Ltd. and 2S Transport, LLC F/K/A H & S Transport, Ltd.

• Court: Court of Appeals of Texas
• Decided: December 18, 2015
• Docket: 12-15-00293-CV
• Status: Published

Opinion

ACCEPTED 12-15-00293-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 12/18/2015 4:45:30 PM Pam Estes CLERK

NO. 12-15-00293-CV In The FILED IN 12th COURT OF APPEALS Court Of Appeals TYLER, TEXAS For The 12/18/2015 4:45:30 PM PAM ESTES Twelfth district of Texas Clerk

EXPRESS CHIPPING, INC. Appellant, v.

REDI-MIX SOLUTIONS, LTD. AND 2S TRANSPORT, LLC f/k/a H&S TRANSPORT, LTD. Appellees.

On Appeal from the 369th District Court Anderson County, Texas Trial Court Cause No. DCCV15-311-369

APPELLANT’S MOTION TO STAY ORDER

Herbert W. Fortson, III SBN: 07277300 Micah B. Fortson SBN: 24083012 Fortson, Frazer, & Siegrist, P.C. 2702 Jackson Street Houston, Texas 77004 T: (713) 533-1520 F: (713) 533-1571 herb@fortson-co.com micah@fortson-co.com ATTORNEYS FOR APPELLANTS

INTRODUCTION

Appellant, Express Chipping, Inc. filed a notice of Interlocutory appeal

appealing the trial court’s denial of its special appearance to present motion

objecting to jurisdiction. After the special appearance was filed the trial court heard

and granted appellees’ request for a temporary injunction without notice to an

adverse party in violation of Tex. R. Civ. P. 120a and 681. Express Chipping, Inc.

now moves for an order staying the trial court’s order granting a temporary

injunction against Express Chipping, Inc pending the outcome of this appeal.

STATEMENT OF FACTS

On August 18, 2015 appellees Redi-Mix Solutions, Ltd. and 2S Transport,

LLC f/k/a H&S Transport, Ltd. (collectively “Redi-Mix”) filed their Verified

Original Petition and Request for Injunctive Relief. CR 5. On the same day,

without notice to appellant, Express Chipping, Inc. (“Express”) or defendant Knox,

the trial court granted a temporary restraining order against Express Chipping, Inc.

and defendant Knox. CR 37-39. On August 31, 2015 the trial court extended the

temporary restraining order to and set a Temporary Injunction hearing on

September 9, 2015 at 10:30 a.m. CR 41. On September 9, 2015, at 9:24 a.m., one

hour before the hearing on the Temporary Injunction, Express successfully filed its

Special Appearance to Present Motion Objecting to Jurisdiction. CR 42. Express

1 had unsuccessfully tried to file the special appearance twice the day before. The

Special Appearance hearing was set for September 24, 2015 at 10:00 a.m. CR 49.

On September 9, 2015 at the Temporary Injunction hearing counsel for

Redi-Mix affirmatively disclosed to the trial court that the hearing was taking place

without notice to defendant Knox and that Express had filed a special appearance

prior to the hearing. TAB 1, 2:17-19, 4:20-25. Regardless, the court granted the

Temporary Injunction and signed it into order on September 22, 2015. CR 53;

TAB 1, 4:25-5:4; TAB 2.

MOTION

Under Texas law a court cannot issue a temporary injunction without notice

to the adverse party and any motion challenging jurisdiction under Texas Rule of

Civil Procedure 120a shall be heard and determined before any other plea or

pleading may be heard.

A. No notice of the Temporary Injunction hearing to defendant Knox

Texas Rule of Civil Procedure 681 states very simply, “[n]o temporary

injunction shall be issued without notice to the adverse party.” Tex. R. Civ. P. 681.

During the hearing on the temporary injunction counsel for Redi-Mix

affirmatively disclosed, on the record, that Knox had not been served prior to that

hearing. The court stated: “Mr. Knox, we’ve not served yet because he’s on parole,

and we haven’t been able to file on him?” TAB 1, 2:13-15. Redi-Mix counsel

2 responded: “Yes, sir.” TAB 1, 2:16. Later counsel stated: “Mr. Knox, of course, is

on the lam, and we’re trying to find him so he can be served. But I would ask the

Court to continue – to make the TRO a Temporary Injunction under the same

terms and conditions, and continue the bond in the same amount against Express.”

TAB 1, 4:23-5:3. The court replied: “So ordered.” TAB 1, 5:4.

B. The Temporary Injunction was heard and determined after the Special

Appearance was filed but before it was heard and determined.

Texas Rule of Civil Procedure 120a(2) states that, “[a]ny motion to

challenge the jurisdiction provided for herein shall be heard and determined before

a motion to transfer venue or any other plea or pleading may be heard.” Express

filed its Special Appearance under rule 120a on September 9, 2015 at 9:24 a.m.,

one hour prior to the temporary injunction hearing. CR 41-42. Counsel for Redi-

Mix, on record, even acknowledged the filing of the Special Appearance at the

Temporary Injunction hearing. TAB 1, 4:20-23. The court heard and granted the

temporary injunction with knowledge of the special appearance, after the special

appearance was filed on September 9, 2015 and signed the order on September 22,

2015, two days before the Special Appearance hearing CR 41-50, 53-56; TAB 1 &

2.

A temporary injunction is a plea or pleading and it was heard and

determined after the special appearance was filed but before it was determined.

3 Because the temporary injunction was heard and determined without notice to the

adverse party and prior to hearing and determining the special appearance, it

should be stayed pending the outcome of this accelerated appeal on Express’

Special Appearance.

PRAYER

For the reasons stated above, appellant, Express Chipping, Inc., requests that

this Court stay the Order granting a Temporary Injunction signed September 22,

2015 (TAB 2) until such time as this accelerated appeal, regarding jurisdiction,

may be determined.

Respectfully submitted,

Fortson, Frazer & Siegrist, P.C.

/s/ Micah B. Fortson Herbert W. Fortson, III SBN: 07277300 herb@fortson-co.com Micah B. Fortson SBN: 24083012 micah@fortson-co.com Fortson, Frazer, & Siegrist, P.C. 2702 Jackson Street Houston, Texas 77004 T: (713) 533-1520 F: (713) 533-1571

ATTORNEYS FOR APPELLANT, EXPRESS CHIPPING, INC.

4 CERTIFICATE OF COMPLIANCE

I hereby certify that this document complies with the formatting requirements of the Texas Rules of Appellate Procedure and, Pursuant to Tex. R. App. P. 9.4(i)(3), this motion, created in Microsoft Word 2010, contains 748 words, excluding portions exempted under the rules.

/S/ Micah B. Fortson Micah B. Fortson

CERTIFICATE OF CONFERENCE

I certify that a reasonable effort was made to confer with appellees about the merits of the motion and whether they oppose the motion. T.R.A.P. 10.1(5).

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served on December 18, 2015 by electronic filing on:

Kyle L. Dickson James D. Hankins Murray-Lobb, PLLC Law Office of James D. Hankins 700 Gemini, Suite 115 606 E. Crawford Street Houston, Texas 77058 Palestine, Texas 75801 Tel: (281) 488-0630 Tel: (903) 729-2102 Fax: (281) 488-2039 Fax: (903) 731-4732 Email: kdickson@murray-lobb.com Email: jdh@jameshankinslaw.com

ATTORNEYS FOR APPELLEES REDI-MIX SOLUTIONS, LTD. AND 2S TRANSPORT, LLC F/K/A H&S TRANSPORT, LTD.

5 APPENDIX

1. Tab 1 – Court Reporter’s Certified Record of the September 9, 2015 hearing on Temporary Injunction. 2. TAB 2 – Order for Temporary Injunction signed September 22, 2015

2 TAB 1 i

1 REPORTER'S RECORD

2 TRIAL COURT CAUSE NO. DCCV15-311-369

3 VOLUME 1 of 1

5 REDI-MIX SOLUTIONS LTD, 2S ) IN THE DISTRICT COURT TRANSPORT, LLC F/K/A H&S ) 6 TRANSPORT, LTD, ) ) 7 ) Plaintiffs, ) 8 ) VS. ) ANDERSON COUNTY, TEXAS 9 ) ) 10 EXPRESS CHIPPING, INC., ) 369th JUDICIAL DISTRICT STANLEY KEITH KNOX, ) 11 ) Defendants. ) 12

15 ------------------------------

16 HEARING ON TEMPORARY INJUNCTION

17 ------------------------------

20 On the 9th day of September, 2015, the following

21 proceedings came on to be heard in the above-entitled

22 and numbered cause before the Honorable Bascom W.

23 Bentley, III, Judge presiding, held in Palestine,

24 Anderson County, Texas;

25 Proceedings reported by machine shorthand. ii

1 A P P E A R A N C E S

4 FOR THE PLAINTIFFS:

6 MR. JAMES D. HANKINS ATTORNEY AT LAW 7 618 E. CRAWFORD STREET PALESTINE, TEXAS 75801 8

10 FOR THE DEFENDANTS:

11 (None)

25 iii

1 I N D E X

2 VOLUME 1 of 1

3 Page Vol. SEPTEMBER 9, 2015 4

5 Reporter's Certificate.................. 6 1

7 PLAINTIFF'S WITNESSES

8 Direct Cross Voir Dire Vol. Brandi Scott 1 1 9

10 DEFENDANT'S WITNESSES 11 Direct Cross Voir Dire Vol. 12 (None)

14 EXHIBIT INDEX 15 PLAINTIFF'S 16 NO. DESCRIPTION MARKED OFFERED ADMITTED VOL. 17 1 Contract 1 1 1 1 18 (Knox & H&S)

19 2 Contract 1 2 2 1 (Knox & Redi-Mix) 20

21 EXHIBIT INDEX 22 DEFENDANT'S 23 NO. DESCRIPTION MARKED OFFERED ADMITTED VOL. 24 (None) 25 1

1 PROCEEDINGS

2 DATE: SEPTEMBER 9, 2015

3 TIME: 10:45 a.m.

4 THE COURT: Cause Number DCCV15-311-369,

5 Redi-Mix Solutions versus Express Chipping. Redi-Mix

6 case. Is she going to be your witness?

7 MR. HANKINS: Yes.

8 THE COURT: Ma'am, if you would raise

9 your right hand to be sworn.

10 (Oath administered)

11 THE WITNESS: I do.

12 BRANDI SCOTT,

13 having been first duly sworn, testified as follows:

14 DIRECT EXAMINATION

15 BY MR. HANKINS:

16 Q. Tell the court your name, please.

17 A. Brandi Scott.

18 Q. Ms. Scott, you are a principal in the business

19 HS2 Transport, Inc. and also Redi-Mix Solutions, Inc.;

20 correct?

21 A. Yes, sir.

22 (Plaintiff's Exhibit Numbers 1 and 2 were

23 marked for identification)

24 Q. And I want to hand you -- first of all, we'll

25 start off with what's been identified as P-1 and P-2. 2

1 And do you recognize those documents as being a

2 Non-Compete Clause Contract that you signed with Keith

3 Knox, who was a former employee?

4 A. Yes, sir.

5 MR. HANKINS: Judge, I offer P-1 and P-2.

6 THE COURT: They will be received.

7 (Plaintiff's Exhibit Numbers 1 and 2 were

8 offered and received)

9 Q. (By Mr. Hankins) The Court has granted a

10 Temporary Retraining Order restraining Express -- What

11 is Express' name?

12 A. Express Chipping.

13 Q. Yes. -- Express Chipping from interfering

14 with your business by their employment of Mr. Keith

15 Knox; is that correct?

16 A. Yes, sir.

17 Q. Mr. Knox, we've not served yet because he's on

18 parole, and we haven't been able to file on him?

19 A. Yes, sir.

20 Q. He's going around taking your customer list to

21 his new company, --

22 A. Yes, sir.

23 Q. -- and he's having the new company contact all

24 of your experienced employees and asked them to come to

25 work for them; is that correct? 3

1 A. Yes, sir. And he's also offering them more

2 money.

3 Q. Right. And just recently, you found out that

4 Mr. Knox has contacted Argos, Thomas Concrete, and Van

5 Eaton, and these are all concrete contractors who use

6 y'all's services; correct?

7 A. Yes, sir.

8 Q. He's asking them to come -- switch over and

9 work for Express; is that correct?

10 A. Yes, sir.

11 Q. And you're asking the Court to enjoin that

12 action in violation of this non-compete clause?

13 A. Yes, please.

14 Q. Okay. And you're asking the Court to enjoin

15 him from contacting -- or, Express from contacting your

16 current employees and trying to use them to come to work

17 for them?

18 A. Yes, sir.

19 Q. And this has damaged your business?

20 A. Yes, it has.

21 Q. Okay. Are we talking about thousands of

22 dollars that you've lost in future revenue?

23 A. Yes, sir.

24 Q. Okay.

25 A. And if he's not stopped, it will be more than 4

1 just several thousand. It will -- it can get into

2 the hundred thousands.

3 Q. Okay. And also, on your employees, many of

4 them have stayed, but they all come in and say If you

5 don't give us more money, I'm going to go to work for

6 Express because they're offering more money; correct?

8 Q. So, it's cost the company that way, also?

9 A. Yes, sir.

10 Q. All right. And you're asking the Court to

11 continue the orders of the Temporary Restraining Order

12 and to make that a Temporary Injunction against Express?

14 Q. Okay.

15 MR. HANKINS: That's all we have, Your

16 Honor.

17 THE COURT: All right. You may step

18 down, ma'am. Has anyone heard from the respondent as to

19 why he's not here?

20 MR. HANKINS: The respondent, Express,

21 has filed a special appearance, but I got a notice today

22 from the electronic filing that it's rejected, so -- I

23 don't know why they're here. Mr. Knox, of course, is on

24 the lam, and we're trying to find him so he can be

25 served. But I would ask the Court to continue -- to 5

1 make the TRO a Temporary Injunction under the same terms

2 and conditions, and continue the bond in the same amount

3 against Express.

4 THE COURT: So ordered.

5 MR. HANKINS: Thank you, Your Honor.

6 I'll get you an order.

7 (Hearing concluded at 10:48 a.m.)

25 6

1 REPORTER'S CERTIFICATE

2 THE STATE OF TEXAS) COUNTY OF ANDERSON) 3

4 I, Nancy K. Adams, Official Court Reporter in and

5 for the 369th District Court of Anderson County, State

6 of Texas, do hereby certify that the above and foregoing

7 contains a true and correct transcription of all

8 portions of evidence and other proceedings requested in

9 writing by counsel for the parties to be included in

10 this volume of the Reporter's Record, in the

11 above-styled and numbered cause, all of which occurred

12 in open court or in chambers and were reported by me.

13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $49.50 and was

18 paid by Defendant.

19 WITNESS MY OFFICIAL HAND this the 7th day of

20 October, 2015.

21 /s/ Nancy K. Adams 22 Nancy K. Adams, Texas CSR 3131 Expiration Date: 12/31/2015 23 Official Court Reporter 369th District Court 24 Anderson County, Texas Palestine, Texas 75801 25 903.723.7415 TAB 2