ACCEPTED 14-15-00611-cv FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:09:52 PM CHRISTOPHER PRINE CLERK
NO. 14-15-00611-CV
FILED IN 14th COURT OF APPEALS In the Court of Appeals HOUSTON, TEXAS 9/11/2015 2:09:52 PM for the Fourteenth Judicial District at Houston, Texas CHRISTOPHER A. PRINE Clerk
PABLO RION Y ASOCIADOS, S.A. DE C.V. Appellant,
v.
DAVID DAUAJARE AND GABRIELA MARTINEZ DE DAUAJARE Appellees.
On Appeal from The 400th Judicial District Court of Fort Bend County, Texas Cause No. 13-DCV-208485
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS
Farbod Farnia State Bar No. 24078493 ffarnia@mccathernlaw.com
MCCATHERN, PLLC 3710 Rawlings, Suite 1600 Dallas, TX 75219 Phone: (214) 741-2662 Fax: (214) 741-4717
Counsel for Appellees REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS
COME NOW, Appellees David Dauajare and Gabriela Martinez de
Dauajare, and file this, their Reply in Support of Appellees’ Motion to Dismiss
pursuant to Texas Rule of Appellate Procedure 10.1. In support, Appellees
respectfully show the Court as follows:
I. BACKGROUND Appellant’s Response leaves no doubt: Appellant seeks to re-litigate issues
already decided on mandamus and challenge the Trial Court for refusing to adorn
its order of dismissal with conditions beyond the scope of this Court’s mandate.
An appeal on those grounds would be frivolous and should be dismissed before the
Court and the parties waste further resources on needless re-review of matters
already conclusively resolved.
II. ARGUMENT This Court “direct[ed] the trial court to vacate its February 3, 2014 order
denying relators’ motion to dismiss for forum non conveniens and to dismiss the 1 case on forum non conveniens.” The Trial Court did exactly that, and had no
discretion to do otherwise. Appellant now seeks to challenge the Trial Court’s
1 See In re Dauajare-Johnson No. 14-14-00256-CV, 2014 WL 3401094 at *12 (Tex. App. – Houston [14th Dist.] July 10, 2014) (original proceeding).
2 dismissal order on two grounds. First, Appellant argues that this Court’s ruling on
mandamus is not law of the case and may be revisited on appeal because “the prior
mandamus proceeding did not involve questions of law.” 2 Second, Appellant
argues that the Trial Court erred by declining to impose three “conditions” on its
order of dismissal that Appellant requested in a post-dismissal “Motion to Modify,
Correct, or Reform or for a New Trial” (“MNT”) – a motion that Appellant never
set for hearing and which was denied by operation of law. 3
Appellant is wrong on both counts, and its Response confirms that this
matter should be dismissed before briefing on the merits.
A. This Court’s Opinion and Order are Law of the Case
The question on mandamus was whether the Trial Court abused its
discretion by refusing to dismiss Appellant’s case on grounds of forum non-
conveniens. This Court concluded that it had, and directed the Trial Court to
2 Response at 4. 3 Specifically, Appellant requested that the Trial Court’s order of dismissal state: (1) that the case may be refiled in a federal district court in Mexico City or a local court of first instance in Mexico City; (2) that the Daujares’ agree to submit themselves to personal jurisdiction in Mexico; and (3) that in the event the court in Mexico City declined jurisdiction, the case would be reinstated in Trial Court. Notably, in addition to the arguments made below, conditions (1) and (2) would have been entirely superfluous since this Court already determined that the Mexican courts would have jurisdiction because Appellees had submitted affidavits agreeing to submit to the jurisdiction of the Mexican courts. See In re Dauajare-Johnson, 2014 WL 3401094 at *4-5.
3 dismiss the case on grounds of forum non-conveniens. That was a legal answer to
a legal question, and as law of the case it “govern[s] the case through its
subsequent stages,” including any subsequent appeal. 4
Appellant argues that this Court’s prior decision is not law of the case,
however, because it “could not have been based purely on questions of law,” and
indeed “did not involve questions of law” at all.5 That must come as a surprise to
this Court, which referred to its forum non-conveniens analysis as a “question of
law” or “legal question” no fewer than five times. 6
More fundamentally, Appellant is not correct that the law of the case
doctrine applies only to “pure” questions of law. Although the doctrine does not
preclude subsequent review of mixed questions of law and fact when the facts have
changed since the earlier decision – for example, when a case goes to trial after
interlocutory review of a summary judgment decision 7 – an appellate decision
indisputably remains law of the case when the facts “did not substantially change”
4 Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see also EP Energy E & P Co. v. Cudd Pressure Control, Inc., No. 14-13-00734-CV, 2014 WL 7345938 at *4 (Tex. App. – Houston [14th Dist.] Dec. 23, 2014, pet. denied) (“A reviewing court may not again decide any matter that was in effect disposed of on a former appeal or mandamus to that court.”). 5 Response at 4. 6 In re Dauajare-Johnson, 2014 WL 3401094 at *6, *8, *10, *11. 7 See, e.g., Hudson, 711 S.W.2d at 631.
4 on remand. 8 Here, there has been no change whatsoever in the factual record since
the Court’s prior decision because there were no further proceedings in the Trial
Court apart from: (1) entry of the order or dismissal; and (2) denial by operation of
law of the Appellant’s MNT. The factual record now is identical to the factual
record on mandamus. As such, the Court’s prior decision is law of the case and
may not be revisited. 9
B. The Trial Court Had No Authority to Place “Conditions” On Its Order of Dismissal Appellant also argues that the Trial Court erred by refusing to place
“conditions” on its order of dismissal. It did not. An unambiguous appellate order
“permit[s] the trial court to make but one decision,”10 and the “trial court has no
authority to take any action that is inconsistent with or beyond the scope of that
which is necessary to give full effect to the appellate court’s judgment and
mandate.”11
8 EP Energy E & P Co., 2014 WL 7345938 at *6; see also J.O. Lockridge Gen. Contractors, Inc. v. Morgan, 848 S.W.2d 248, 250 (Tex. App. – Dallas 1993, writ denied) (“The doctrine applies if the facts in the second trial are substantially the same as in the first trial or so nearly the same that they do not materially affect the legal issues involved in the second trial.”). 9 See EP Energy E & P Co., 2014 WL 7345938 at *6; Morgan, 848 S.W.2d at 250. 10 Keller Indus. v. Blanton, 804 S.W.2d 182, 185 (Tex. App. – Houston [14th Dist.] 1991, no writ). 11 Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013) (affirming reversal of trial court judgment that exceeded mandate of court of appeals).
5 This Court’s order was unambiguous. It directed the Trial Court “to dismiss
the case on forum non conveniens” – full stop. 12 It did not tell the Trial Court to
dismiss the case with the conditions that Appellant later sought in its MNT, and
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ACCEPTED 14-15-00611-cv FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:09:52 PM CHRISTOPHER PRINE CLERK
NO. 14-15-00611-CV
FILED IN 14th COURT OF APPEALS In the Court of Appeals HOUSTON, TEXAS 9/11/2015 2:09:52 PM for the Fourteenth Judicial District at Houston, Texas CHRISTOPHER A. PRINE Clerk
PABLO RION Y ASOCIADOS, S.A. DE C.V. Appellant,
v.
DAVID DAUAJARE AND GABRIELA MARTINEZ DE DAUAJARE Appellees.
On Appeal from The 400th Judicial District Court of Fort Bend County, Texas Cause No. 13-DCV-208485
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS
Farbod Farnia State Bar No. 24078493 ffarnia@mccathernlaw.com
MCCATHERN, PLLC 3710 Rawlings, Suite 1600 Dallas, TX 75219 Phone: (214) 741-2662 Fax: (214) 741-4717
Counsel for Appellees REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS
COME NOW, Appellees David Dauajare and Gabriela Martinez de
Dauajare, and file this, their Reply in Support of Appellees’ Motion to Dismiss
pursuant to Texas Rule of Appellate Procedure 10.1. In support, Appellees
respectfully show the Court as follows:
I. BACKGROUND Appellant’s Response leaves no doubt: Appellant seeks to re-litigate issues
already decided on mandamus and challenge the Trial Court for refusing to adorn
its order of dismissal with conditions beyond the scope of this Court’s mandate.
An appeal on those grounds would be frivolous and should be dismissed before the
Court and the parties waste further resources on needless re-review of matters
already conclusively resolved.
II. ARGUMENT This Court “direct[ed] the trial court to vacate its February 3, 2014 order
denying relators’ motion to dismiss for forum non conveniens and to dismiss the 1 case on forum non conveniens.” The Trial Court did exactly that, and had no
discretion to do otherwise. Appellant now seeks to challenge the Trial Court’s
1 See In re Dauajare-Johnson No. 14-14-00256-CV, 2014 WL 3401094 at *12 (Tex. App. – Houston [14th Dist.] July 10, 2014) (original proceeding).
2 dismissal order on two grounds. First, Appellant argues that this Court’s ruling on
mandamus is not law of the case and may be revisited on appeal because “the prior
mandamus proceeding did not involve questions of law.” 2 Second, Appellant
argues that the Trial Court erred by declining to impose three “conditions” on its
order of dismissal that Appellant requested in a post-dismissal “Motion to Modify,
Correct, or Reform or for a New Trial” (“MNT”) – a motion that Appellant never
set for hearing and which was denied by operation of law. 3
Appellant is wrong on both counts, and its Response confirms that this
matter should be dismissed before briefing on the merits.
A. This Court’s Opinion and Order are Law of the Case
The question on mandamus was whether the Trial Court abused its
discretion by refusing to dismiss Appellant’s case on grounds of forum non-
conveniens. This Court concluded that it had, and directed the Trial Court to
2 Response at 4. 3 Specifically, Appellant requested that the Trial Court’s order of dismissal state: (1) that the case may be refiled in a federal district court in Mexico City or a local court of first instance in Mexico City; (2) that the Daujares’ agree to submit themselves to personal jurisdiction in Mexico; and (3) that in the event the court in Mexico City declined jurisdiction, the case would be reinstated in Trial Court. Notably, in addition to the arguments made below, conditions (1) and (2) would have been entirely superfluous since this Court already determined that the Mexican courts would have jurisdiction because Appellees had submitted affidavits agreeing to submit to the jurisdiction of the Mexican courts. See In re Dauajare-Johnson, 2014 WL 3401094 at *4-5.
3 dismiss the case on grounds of forum non-conveniens. That was a legal answer to
a legal question, and as law of the case it “govern[s] the case through its
subsequent stages,” including any subsequent appeal. 4
Appellant argues that this Court’s prior decision is not law of the case,
however, because it “could not have been based purely on questions of law,” and
indeed “did not involve questions of law” at all.5 That must come as a surprise to
this Court, which referred to its forum non-conveniens analysis as a “question of
law” or “legal question” no fewer than five times. 6
More fundamentally, Appellant is not correct that the law of the case
doctrine applies only to “pure” questions of law. Although the doctrine does not
preclude subsequent review of mixed questions of law and fact when the facts have
changed since the earlier decision – for example, when a case goes to trial after
interlocutory review of a summary judgment decision 7 – an appellate decision
indisputably remains law of the case when the facts “did not substantially change”
4 Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see also EP Energy E & P Co. v. Cudd Pressure Control, Inc., No. 14-13-00734-CV, 2014 WL 7345938 at *4 (Tex. App. – Houston [14th Dist.] Dec. 23, 2014, pet. denied) (“A reviewing court may not again decide any matter that was in effect disposed of on a former appeal or mandamus to that court.”). 5 Response at 4. 6 In re Dauajare-Johnson, 2014 WL 3401094 at *6, *8, *10, *11. 7 See, e.g., Hudson, 711 S.W.2d at 631.
4 on remand. 8 Here, there has been no change whatsoever in the factual record since
the Court’s prior decision because there were no further proceedings in the Trial
Court apart from: (1) entry of the order or dismissal; and (2) denial by operation of
law of the Appellant’s MNT. The factual record now is identical to the factual
record on mandamus. As such, the Court’s prior decision is law of the case and
may not be revisited. 9
B. The Trial Court Had No Authority to Place “Conditions” On Its Order of Dismissal Appellant also argues that the Trial Court erred by refusing to place
“conditions” on its order of dismissal. It did not. An unambiguous appellate order
“permit[s] the trial court to make but one decision,”10 and the “trial court has no
authority to take any action that is inconsistent with or beyond the scope of that
which is necessary to give full effect to the appellate court’s judgment and
mandate.”11
8 EP Energy E & P Co., 2014 WL 7345938 at *6; see also J.O. Lockridge Gen. Contractors, Inc. v. Morgan, 848 S.W.2d 248, 250 (Tex. App. – Dallas 1993, writ denied) (“The doctrine applies if the facts in the second trial are substantially the same as in the first trial or so nearly the same that they do not materially affect the legal issues involved in the second trial.”). 9 See EP Energy E & P Co., 2014 WL 7345938 at *6; Morgan, 848 S.W.2d at 250. 10 Keller Indus. v. Blanton, 804 S.W.2d 182, 185 (Tex. App. – Houston [14th Dist.] 1991, no writ). 11 Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013) (affirming reversal of trial court judgment that exceeded mandate of court of appeals).
5 This Court’s order was unambiguous. It directed the Trial Court “to dismiss
the case on forum non conveniens” – full stop. 12 It did not tell the Trial Court to
dismiss the case with the conditions that Appellant later sought in its MNT, and
those conditions were in no way necessary “to give full effect” to this Court’s
mandate. 13 This Court’s mandate – to “dismiss the case on forum non conveniens”
– was given its fullest possible effect when the Trial Court did as instructed. The
additional conditions requested by Appellees were “beyond the scope” of this
Court’s mandate and thus beyond the scope of the Trial Court’s discretion on
remand. 14
C. Appellant’s Failure to Set Its MNT for Hearing Precludes Review
Appellant seeks to appeal the Trial Court’s denial of its MNT by operation
of law, and in particular its denial of Appellant’s request for extra conditions on its
order of dismissal. But this Court would review the Trial Court’s denial of the
MNT for abuse of discretion,15 and “[t]here is no abuse of discretion when the
movant fails to call his motion to the attention of the trial court through the request
12 See In re Dauajare-Johnson, 2014 WL 3401094 at *12. 13 Phillips, 407 S.W.3d at 234. 14 Id. 15 See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984) (“A motion for new trial is addressed to the trial court's discretion and the court's ruling on such will not be disturbed on appeal in the absence of a showing of an abuse of that discretion.”).
6 of a hearing, and instead allows it to be overruled by operation of law.”16
Appellant argues that this rule applies only where there has been a default
judgment, but that is wrong. This Court has consistently refused to review the
denial of a motion for new trial that the appellant never set for a hearing, regardless
of whether the case involved a default judgment. 17 Appellant’s failure to set its
MNT for a hearing deprived the Trial Court of “an opportunity to exercise [its]
discretion,”18 and precludes any finding on appeal that the Trial Court’s denial of
the MNT was an abuse of that discretion.
16 Monk v. Westgate Homeowners' Ass'n, Inc., No. 14-07-00886-CV, 2009 WL 2998985, at *3 (Tex. App. – Houston [14th Dist.] Aug. 11, 2009, no pet.) (citing Shamrock Roofing Supply, Inc. v. Mercantile Nat'l Bank, 703 S.W.2d 356, 357-58 (Tex.App.—Dallas 1985, no writ)). 17 See Monk, 2009 WL 2998985, at *3 (summary judgment); McGuire v. Comm’n for Lawyer Discipline, No. 14-01-00920, 2003 WL 359289, at *1 (Tex. App. – Houston [14th Dist.] Feb. 20, 2003, no pet.) (consent judgment). Other courts of appeals have also applied the principle in cases not involving default judgments. See Nat. Med. Fin. Servs., Inc. v. Irving Ind. Sch. Dist., 150 S.W.3d 901, 904-05 (Tex. App. – Dallas 2004, no pet.) (bench trial); Carson v. El Capitan Apartments, No. 05-13-01481-CV, 2015 WL 169879, at *3 (Tex. App. – Dallas Jan 14. 2015, no pet.) (summary judgment); Newby v. Pope, No. 07-97-0186-CV, 1998 WL 830855, at *4 (Tex. App. – Amarillo Nov. 30 1998, pet. denied) (not designated for publication) (summary judgment); Vernon E. Faulconer, Inc. v. HFI, Ltd. P’ship, 970 S.W.2d 36, 38-39 (Tex. App. – Tyler 1998, no pet.) (judgment on arbitration award); Couey v. State, No. 09-96-345 CV, 1997 WL 30917, at *1 (Tex. App. – Beaumont Jan. 23, 1997, no pet.) (not designated for publication) (dismissed for want of jurisdiction). 18 Shamrock Roofing Supply, 703 S.W.2d at 357-58.
7 III. CONCLUSION & PRAYER WHEREFORE, Appellees respectfully request that this Court dismiss the
appeal and award just damages to Appellees, and for all other relief, at law or in
equity, to which they show themselves justly entitled.
Respectfully Submitted,
/s/ James E. Sherry Farbod Farnia State Bar No. 24078493 ffarnia@mccathernlaw.com Jennette E. DePonte State Bar No. 00795935 jdeponte@mccathernlaw.com James E. Sherry State Bar No. 24086340 jsherry@mccathernlaw.com
MCCATHERN, PLLC Regency Plaza 3710 Rawlins, Suite 1600 Dallas, Texas 75219 Phone: (214) 741-2662 Fax: (214) 741-4717
8 CERTIFICATE OF SERVICE I certify that a true copy of this Reply in Support of Appellees’ Motion to Dismiss was served on the following counsel in the manner indicated on September 11, 2015.
VIA E-SERVICE Daniel W. Jackson Scott K. Vastine THE JACKSON LAW FIRM 3900 Essex Ln., Ste. 1116 Houston, Texas 77027
Counsel for Appellant
/s/ James E. Sherry James E. Sherry