James R. Harris v. Guerra & Moore, Ltd., L. L. P.

• Court: Court of Appeals of Texas
• Decided: August 31, 2005
• Docket: 13-04-00676-CV
• Status: Published

Opinion

                              NUMBER 13-04-676-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JAMES R. HARRIS, ET AL.,                                      Appellants,

                                                             v.                               

GUERRA & MOORE, LTD., L.L.P.,                                       Appellee.

                             On appeal from the County Court at Law No. 3

                                                of Hidalgo County, Texas.

                               MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Hinojosa and Yañez

                            Memorandum Opinion by Justice Yañez

This is an interlocutory appeal of an anti-suit injunction^[1] in a suit for declaratory judgment involving appellee, Guerra & Moore, Ltd., L.L.P.=s claim for tortious interference.  In the underlying suit, appellee contends that appellants, James R. Harris, Andrew M. Greenwell, Harris & Greenwell, L.L.P., and David Burkett, tortiously interfered with appellee=s attorney-client relationship with its clients, Gerardo Perez and his family, regarding claims arising from the death of Anabel DeLeon.  In seven issues, appellants generally contend that the trial court abused its discretion in granting the anti-suit injunction.  We agree, and reverse and remand.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.^[2]

                                                                  Background

This case involves numerous lawsuits and proceedings within those lawsuits.  The record before us contains references to, and documents from, many but not all, of the lawsuits.  In the interest of clarity, we briefly identify the various lawsuits involved:

1)  The parties refer to the ATitan Tire@ case, which was a multi-plaintiff Duval County lawsuit that was settled in February 2000.  Although the record before us contains no documents from this case, it appears that one of the plaintiffs was Gerardo Perez, represented by Guerra & Moore. 

2)  Cause no. 98-61475-3, filed in County Court-at-Law No. 3 in Nueces County, styled Dan Alfaro, Individually and D/B/A Law Offices of Dan Alfaro & Associates, and Jose AShorty@ Adalberto DeLeon v. J. Michael Moore and Cornelio Garza.  The Alfaro lawsuit alleges that Alfaro executed a contract to represent Maria del Rosario and Guadalupe B. Garcia  regarding the wrongful death of their son.  It alleges that Defendant Cornelio Garza visited the Garcias, took them to the office of J. Michael Moore, and induced them to breach their contract with Alfaro for representation.

3)  The present cause, trial court Cause no. CL-32,460-A (later transferred to County Court-at-Law No. 5 as CL-32,460-E), filed in Hidalgo County on July 22, 1999.  In this suit, Guerra & Moore sued Bobby Garza, Burkett & Beam, L.L.P., Stephen L. Burkett, Individually and Patrick L. Beam, Individually, alleging tortious interference with Guerra & Moore=s  representation of Gerardo Perez.  Immediately after the suit was filed, on July 23, 1999, Guerra & Moore obtained a temporary restraining order prohibiting Bobby Garza, Burkett & Beam, L.L.P., Stephen L. Burkett, Individually and Patrick L. Beam, Individually, from contacting Gerardo Perez and his family.  This TRO expired in August 1999. 

Appellant David Burkett was added to this suit as a defendant on September 2, 2004.  Appellants Greenwell, Harris, and Harris & Greenwell, L.L.P. were added as defendants on September 21, 2004.     

4)  In Cause number 98-08-17359, represented by Harris & Greenwell,  the Perez family filed a AMotion for Appointment of Auditor and Other Relief@ on August 22, 2002, in the 229th district court in Duval County.  The action was styled Sara Ramirez, et al. v. Robert Elizondo, Administrator of the Estate of Hugo Raphael Gutierrez, Deceased, and Pirelli Tire Corporation and Gerardo Perez, Jr., Individually and as Next Friend of Crystal Monique De Leon, Kimberly Nicole Perez and Gerardo Perez, Jr., Minor Children, and Maria Luisa Perez, Plantiffs v. Carlos L. Guerra and J. Michael Moore, Individually and D/B/A Guerra & Moore, Ltd., L.L.P., G&M Esquires, P.C., J. Michael Moore, P.C., and/or as Successor-in-Interest to Guerra & Moore. L.L.P.  The motion alleges that  attorney fees in excess of the contractual amount were withheld from funds distributed to the Perezes.  The Duval County court eventually dismissed cause number 98-08-17359 on January 21, 2004.

5)  Cause number 43,065-B, filed in County Court-at-Law No. 2, in Hidalgo County, Texas, styled Guerra & Moore, Ltd., L.L.P., Carlos L. Guerra, and Michael Moore v. James R. Harris, Harris & Greenwell, L.L.P., Gerardo Perez, Individually and as Next Friend to Crystal Monique De Leon, Kimberly Nicole Perez, and Gerardo Perez, Jr., Minors, and Maria Luisa Perez.  The record before us does not contain a petition in  cause no. 43,065-B.  The record does contain, however, an anti-suit injunction dated February 27, 2004, in which Judge Palacios enjoined the defendants from filing claims in any other court concerning matters relating to the AMotion for Appointment of Auditor@ filed by the defendants in cause no. 98-08-17359 in the 229th District Court in Duval County.  Thus, the February 27, 2004 anti-suit injunction requires any claims by appellants concerning distribution of monies to the Perezes to be filed in Judge Palacios=s court. 

6)  Cause no. 04-61603-1, filed on August 11, 2004, in County Court-at-Law No. 1 in Nueces County, styled James R. Harris v. Guerra & Moore, Ltd., L.L.P., Carlos L. Guerra, and J. Michael Moore.  The lawsuit alleges Guerra & Moore breached an agreement whereby Harris was to be paid $50,000 as a result of a mediation concerning Athe Caritina Segundo litigation.@

7)  In the present cause (Cause no. CL-32,460-E), on September 28, 2004, Judge Arnoldo Cantu granted Guerra & Moore=s request for an anti-suit injunction.  The injunction prohibits appellants from filing matters pertaining to appellee=s relationship with the Perezes in any other court.  It is from this anti-suit injunction that appellants appeal.

                            Standard of Review and Applicable Law

Issuance of an anti‑suit injunction rests within the sound discretion of the trial court.^[3]  In reviewing the trial court=s order, we are to draw inferences from the evidence in the manner most favorable to the trial court=s ruling.^[4]    AA trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or misapplies the law to the established facts of the case.@^[5]  Although a trial court does not abuse its discretion when it bases its decision on conflicting evidence, that evidence must reasonably support the trial court=s decision.^[6] 

It is well-recognized that Texas state courts have the power to restrain persons from proceeding with suits filed in other courts of this state.^[7]  However, the principle of comity requires that courts exercise this equitable power sparingly, and only in very special circumstances.^[8]  The party seeking the injunction has the burden to show that a clear equity demands the injunction.^[9]  An anti‑suit injunction is appropriate in four instances: 1) to address a threat to the court's jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation.^[10]

                                                                      Analysis

Here, the trial court=s order prohibits appellants from Aasserting, prosecuting, filing, appearing in any other court, other than this court, concerning any aspect of the underlying transactions . . .@  The order includes the following findings:

C           that defendants must be enjoined to prevent a multiplicity of suits involving the same or similar issues;

C           that defendants must be enjoined to protect appellee from vexatious or harassing litigation;

C           that on February 27, 2004, in trial court cause no. CL-43,065-B, Judge Jaime Palacios found that (1)  appellants attempted to prosecute claims for an accounting in cause no. 98-08-17359 in the 229th district court in Duval County and that cause no. CL-43,065-B also arises out of cause no. 98-08-17359; (2) appellants would file another case in Duval County unless enjoined from doing so; and (3) appellants have engaged in forum-shopping. 

As a result, Judge Palacios granted an anti-suit injunction against appellants in cause no. CL-43,065-B.^[11]  In the order before us in the present case, the trial court accepted Judge Palacios=s findings in cause no. CL-43,065-B.   

 In support of its request for an anti-suit injunction, appellee introduced the following evidence at the temporary injunction hearing:

1)  the February 27, 2004 anti-suit injunction granted in appellee=s favor by Judge Palacios in cause no. CL-43,065-B (Plaintiffs= Exhibit #1);

2)  a copy of the petition in cause no. 98-61475-3, filed in County Court-at-Law No. 3 in Nueces County, styled Dan Alfaro, Individually and D/B/A Law Offices of Dan Alfaro & Associates, and Jose AShorty@ Adalberto DeLeon v. J. Michael Moore and Cornelio Garza (Plaintiffs= Exhibit #2);^[12] 

3)  the citation and AMotion for Appointment of Auditor and Other Relief@ in cause no. 98-08-17359, filed in the 229th District Court in Duval County (Plaintiffs= Exhibit #3);^[13]

4)  the order dismissing the Duval County suit (cause no. 98-08-17359) (Plaintiffs= Exhibit #4); and

5) a copy of the petition in cause no. 04-61603-1, filed in County Court-at-Law No. 1 in Nueces County, styled James R. Harris v. Guerra & Moore, Ltd., L.L.P., Carlos L. Guerra, and J. Michael Moore (Plaintiffs= Exhibit #5).  The lawsuit alleges Guerra & Moore breached an agreement whereby Harris was to be paid $50,000 as a result of a mediation concerning Athe Caritina Segundo litigation.@^[14] 

In its brief, appellee asserts that Athe ground asserted for the injunction at the hearing was protecting the court=s jurisdiction.@  In support of this argument, appellee cites to the record of the temporary injunction hearing held on September 8, 2004.  However, appellee did not add Greenwell, Harris, and Harris & Greenwell, L.L.P. as defendants until  September 21, 2004.  Nonetheless, appellee argues that its original petition in the present lawsuit, which alleges interference with appellee=s attorney-client relationship with Gerardo Perez, was filed in Hidalgo County on July 22, 1999.  Appellee argues that it is therefore the Afirst-filed@ case and the case of dominant jurisdiction.  Appellee contends that the trial court was thus entitled to issue an anti-suit injunction Ato protect [its] jurisdiction.@  Appellee asserts that the trial court found that appellants had filed suit against appellee in Duval County.^[15]  Appellee also asserts that Athe issue of [David] Burkett representing Gerardo Perez again arose@ when Harris & Greenwell filed a motion to substitute Burkett^[16] as attorney for Gerardo Perez in cause no. CL-43,065-B.^[17]

We first address appellee=s argument that the anti-suit injunction was necessary to Aprotect [the trial court=s] jurisdiction.@  We conclude that the evidence submitted by appellee failed to establish its entitlement to anti-suit injunctive relief on this basis.  Of the five documents submitted, only the Duval County suit challenged the distribution of monies to the Perezes.  The Duval County suit, however, was dismissed, and therefore cannot constitute a threat to the trial court=s jurisdiction.  We also reject appellee=s argument that appellants= motion to substitute counsel, filed in cause no. CL-43,065-B (a lawsuit filed by appellee), constitutes a threat to the court=s jurisdiction.  Of the five documents submitted by appellee, the only lawsuit filed by Harris (or any other appellant) is cause no. 04-61603-1, filed in County Court-at-Law No. 1 in Nueces County.  As noted, that suit alleges breach of an agreement to pay Harris $50,000; appellee has presented no evidence establishing that this case is related to its claims in the present case or that it constitutes a threat to the court=s jurisdiction.

We next address whether appellee provided evidence to support any of the other bases for an anti-suit injunction.  The order states that an injunction is necessary Ato prevent a multiplicity of suits,@ Ato protect [appellee] from vexatious or harassing litigation,@ and to prevent Ablatant forum shopping,@ which is against public policy.  

Typically, the multiplicity argument supports issuance of an anti‑suit injunction when a party files numerous lawsuits to re-litigate issues in different courts.^[18]  Texas cases that have approved injunctive relief to protect a party from vexatious or harassing litigation have done so based on evidence that a multiplicity of suits had been filed or on other evidence of harassment.^[19]  Here, the evidence presented by appellee shows only one lawsuit filed by appellants involving the Perez family=s claims: the Duval County suit, which has been dismissed.  Although we may still consider the dismissed Duval County suit as proof of a pattern of vexatious litigation, the record contains no evidence of other lawsuits which appellees have shown were filed by appellants regarding the Perezes.  The evidence offered by appellee includes only one other lawsuit filed by Harris, and as noted, appellee presented no evidence that it is related to the issues in the present case.  After thoroughly reviewing the record of the anti-suit injunction hearing, we note that appellee did not even assert that the Nueces County lawsuit filed by Harris was related in any way to the present  case.  Similarly, with regard to the Alfaro case, although Harris & Greenwell represented the plaintiffs in that lawsuit and appellee told the court that the case was Adirectly tied to the Titan Tire case,@ appellee did not explain how it was related to the present litigation and did not provide any evidence establishing such a connection.  Our review of cases deeming litigation Avexatious and harassing@ leads us to conclude there is no justification for injunctive relief here. 

We find no evidence in the record showing that the anti-suit injunction was appropriate to prevent a multiplicity of lawsuits, to provide protection from vexatious or harassing litigation, or to prevent a threat to the court=s jurisdiction or the evasion of important public policy.  We  sustain appellants= fifth issue^[20] and hold that the trial court abused its discretion by issuing the anti-suit injunction.

Appellants also note that the majority rule in Texas is  that in addition to meeting the requirements necessary to obtain an anti-suit injunction, the traditional pre-requisites to injunctive or equitable relief (probable right of recovery, imminent injury, irreparable harm, inadequate remedy at law, and the requirements of Texas Rule of Civil Procedure 683) must be met by a party seeking an anti-suit injunction.^[21]  However, because we have already determined that the trial court abused its discretion in granting the anti-suit injunction, it is unnecessary for us to address appellants= remaining arguments concerning the requirement to establish the traditional pre-requisites for injunctive relief.^[22]

We REVERSE the trial court=s temporary injunction order and the cause is REMANDED to the trial court for further proceedings consistent with this opinion.  

_______________________

LINDA REYNA YAÑEZ,

Justice

Memorandum Opinion delivered and

filed this the 31st day of August, 2005.

---

^[1] See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(4) (Vernon Supp. 2004-05). 

^[2] See Tex. R. App. P. 47.4.

^[3] London Mkt. Ins. v. Am. Home Assurance Co., 95 S.W.3d 702, 705 (Tex. App.BCorpus Christi 2003, no pet.).

^[4] See id. 

^[5] Id.  (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‑42 (Tex. 1985).

^[6] Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 (Tex. App.BCorpus Christi 2001, no pet.).

^[7] Gannon v. Payne, 706 S.W.2d 304, 305 (Tex. 1986); London Mkt., 95 S.W.3d at 706; In re Est. of Dilasky, 972 S.W.2d 763, 767 (Tex. App.BCorpus Christi 1998, no pet.). 

^[8] London Mkt., 95 S.W.3d at 706.

^[9] Id. 

^[10] Id. at 705-06 (citing Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996) (per curiam); Gannon, 706 S.W.2d at 307). 

^[11] Thus, appellee obtained essentially the same injunctive relief from two courts:  the injunction granted in the present case (prohibiting appellants from filing matters pertaining to appellee=s relationship with the Perezes in any other court) grants the same relief and accordingly, is in conflict with the February 27,2004 injunction previously obtained by appellee from Judge Palacios (prohibiting appellants from filing matters concerning the distribution of monies to the Perezes in any other court).   

^[12] At the hearing on the anti-suit injunction, appellants objected to the admission of Plaintiffs= Exhibit #2 on grounds that it was not relevant to any issue before the court.  Appellee responded that the Alfaro case  Ais directly tied to the Titan Tire case that was settled in Duval County in 2000.@  Appellee characterized the Alfaro case as Alitigation filed on behalf of Dan Alfaro and someone named Shorty De Leon who claimed entitlement in [the Titan Tire] case.@  Harris and Greenwell represent the plaintiffs in the Alfaro case.  At the hearing, Greenwell told the court, AThe fact that we as counsel represented Dan Alfaro and Shorty De Leon in a lawsuit against Michael Moore and Cornelio Garza has nothing to do with the issues before this case.@  There is no evidence in the record to support either assertion.  We note that as the party requesting anti-suit injunctive relief, the burden was on appellee to establish that the Alfaro suit was related to the present issue.  London Mkt., 95 S.W.3d at 706.  

^[13] At the anti-suit injunction hearing, appellant Greenwell told the court that the case filed in the 229th district court in Duval County is Athe only lawsuit that we=ve brought against Guerra & Moore on behalf of the Perezes and the DeLeons.@  Greenwell explained that after the Duval County case was dismissed, appellants brought a Acounterclaim@ in Cause no. CL-43,065-B, the case filed by Guerra & Moore pending in Hidalgo County Court-at-Law No. 2.   

^[14] At the anti-suit injunction hearing, appellants also objected to the admission of Plaintiffs= Exhibit #5 on grounds of relevance, arguing that Exhibit #5 involves Aanother agreement that has nothing to do with the circumstances before this case.@  Appellee responded that Exhibit #5 is relevant Ajust as more evidence of the vexatious litigation that has been involved with Jim Harris, Harris & Greenwell and Andrew Greenwell . . .@ 

^[15] We note that the trial court in the present case accepted the findings made by Judge Palacios in cause no. CL-43,065-B, which included the finding that appellants had attempted to prosecute claims against appellee in Cause no. 98-08-17359 in Duval County.

^[16] We note that the AMotion for Substitution of Counsel,@ filed on or about August 27, 2004, by Harris & Greenwell, L.L.P in cause no. CL-43,065-B, requests that David T. Burkett be substituted to represent Gerardo Perez and Maria Luisa Perez.  Guerra & Moore=s objection to the substitution, dated September 1, 2004, objects to the substitution of Stephen Burkett as counsel for Gerardo and Maria Luisa Perez.  The basis for Guerra & Moore=s objection is that Stephen Burkett is a defendant in the present cause, Cause no. CL-32,460-E.   

^[17] County Court-at-Law No. 2 in Hidalgo County.

^[18] Avco Corp. v. Interstate Southwest, LTD., 145 S.W.3d 257, 266 (Tex. App.BHouston [14th Dist.] 2004, no pet.).

^[19] See, e.g., Nguyen v. Intertex, Inc., 93 S.W.3d 288, 299 (Tex. App.BHouston [14th Dist.] 2002, no pet.) (finding anti-suit injunction warranted where appellant filed at least five lawsuits relating to the same judgment); Chandler v. Chandler, 991 S.W.2d 367, 403 (Tex. App.BEl Paso 1999, pet. denied) (anti-suit injunction warranted where appellant filed some ten lawsuits attempting to re-litigate matters which had been resolved against him; continuous barrage of lawsuits against former wife and every attorney involved in case was vexatious and meant to harass); In re Estate of Dilasky, 972 S.W.2d at 767-68 (finding anti-suit injunction warranted where appellant filed at least seven lawsuits attempting to re-litigate same or similar issues); In re Johnson, 961 S.W.2d 478, 482 (Tex. App.BCorpus Christi 1997, no pet.) (ant-suit injunction warranted to protect prevailing party from continued issuance of temporary orders blocking enforcement of a judgment).   

^[20] In their fifth issue, appellants challenge: 

Whether the trial court abused its discretion in granting an anti-suit injunction because there were no Acompelling circumstances@ justifying such extraordinary equitable relief:

a.  There was no evidence of a multiplicity of suits;

b.  There was no evidence of vexatious or harassing lawsuits;

c.  There was no evidence of an important public policy that was being evaded; or

d.  There was no threat to the court=s jurisdiction.

^[21] See, e.g., Bay Fin. Sav. Bank v. Brown, 142 S.W.3d 586, 591(Tex. App.BTexarkana 2004, no pet.) (holding that anti-suit injunctions must also comply with requirements provided in rules of civil procedure); Total Minatome Corp. v. Santa Fe Materials, Inc., 851 S.W.2d 336, 339 (Tex. App.BDallas 1993, no writ) (holding that Aclear equity@ justifying injunctive relief requires showing of irreparable injury, inadequate remedy at law, and probable right of recovery); Mfr. Hanover Trust Co. v. Kingdom Investors Corp., 819 S.W.2d 607, 610 (Tex. App.BHouston [1st Dist.] 1991, no writ) (holding applicant for anti-suit injunctive relief must show probable right to recovery, probable injury in interim, and inadequate remedy at law); but see Admiral Ins. Co. v. Atchison, Topeka and Santa Fe Ry. Co., 848 S.W.2d 251, 258 (Tex. App.BFort Worth 1993, writ denied), overruled on other grounds, Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996) (holding merits of underlying cause have no bearing on propriety of anti-suit injunction).

^[22] See Tex. R. App. P. 47.1.