Appeal from the 61st District Court Harris County, Texas
Trial Court Case No. 2014-54729
consists of Chief Justice Radack and Justices Brown and
Radack Chief Justice.
Elizabeth Thomas, attempts to appeal the trial court's
order that denied her request for a temporary injunction
against Codilis & Stawiarski, P.C. ("Codilis")
and a subsequent order that granted Codilis's plea to the
jurisdiction. In her sole issue on appeal, Thomas argues that
(1) the trial court abused its discretion when it failed to
follow Texas Supreme Court precedent.
underlying dispute concerns a home that Thomas purchased in
2007. The mortgage on the house became unpaid and the lender,
JP Morgan Chase Bank instituted foreclosure proceedings.
Chase hired Codilis to conduct the non-judicial foreclosure
she filed multiple lawsuits in State and Federal courts and
multiple bankruptcy filings, Thomas and other plaintiffs
filed the present suit against multiple defendants on August
31, 2015, along with a request for a temporary restraining
order. On August 31, 2015, the trial court granted a
temporary restraining order that restrained Codilis from
selling the home at a non-judicial foreclosure sale.
September 18, 2015, the trial court held a temporary
injunction hearing. Codilis's counsel stated that he
appeared strictly because of the trial court's order,
which commanded his presence. Although Codilis's counsel
waived notice for the hearing, he stated that Codilis had not
been served and that it was not a proper party. Codilis's
counsel argued that Thomas sued the wrong party because
Codilis is just an agent of Chase and that Chase was the
owner of the note. Codilis's counsel asked that the
temporary injunction be denied and that Codilis be dismissed
for being an improper party.
trial court said she did not think she had the necessary
parties and that the temporary injunction could not be
granted because the proper parties were not present. The
trial court further stated that Chase is the entity that owns
the loan and it was not a party to the lawsuit. After the
trial court stated she was denying the temporary injunction
and dissolving the temporary restraining order, Codilis's
counsel asked that Codilis be dismissed from the case. The
trial court said she was not sure if "anybody is a
proper party in this case at this point because there
hasn't been service that's been perfected. So, I
don't know that I can dismiss something that I'm not
real-I'm going to wait to see if there's a-an amended
pleading; but if you want to file a Motion to Dismiss, then
we can consider that later." The trial court concluded
by denying the temporary injunction, and stating,
"[t]here's the underlying case that's still
pending here that obviously has been going on for a while,
but we have to sort out who the actual parties are."
Codilis's counsel responded that, "We will certainly
wait for proper service of the underlying petition which we
have not received at all."
order dated September 18, 2015, the trial court dissolved the
temporary restraining order and denied Thomas's request
for a temporary injunction. Thomas filed an "Emergency
Motion for Reconsideration" on September 25, 2015, which
the trial court denied on October 5, 2015. Thomas filed a
notice of appeal of the trial court's order denying her a
temporary injunction. On November 30, 2015, we received a notice
of bankruptcy and stayed the appellate proceedings. After
reinstating the case on January 21, 2016, Thomas filed her
brief on January 26, 2016.
February 9, 2016, Codilis filed a plea to the jurisdiction in
the trial court. Codilis stated that according to
Thomas's fourth amended petition, Thomas is the sole
remaining plaintiff and Codilis is the sole defendant.
Codilis argued that Thomas never served Codilis with a copy
of any petition in the case and therefore the trial court
lacks "subject-matter jurisdiction over Thomas's
claims against [Codilis]."
February 16, 2016, Codilis filed its appellee's brief and
a motion to dismiss for lack of jurisdiction in this Court.
We notified the parties on March 14, 2016 that Codilis's
motion to dismiss was denied. On April 22, 2016, Thomas filed
in this Court an emergency motion to stay the trial
court's hearing on Codilis's plea to the jurisdiction
that had been set for May 6, 2016. We denied the emergency
motion to stay on April 25, 2016.
4, 2016, Thomas responded in the trial court to Codilis's
plea to the jurisdiction, arguing that Codilis "chose to
present this same issue to the First Court of Appeals for a
determination of: (1) whether C&S employee and prior
counsel Jeffrey B. Hardaway September 18, 2015, appearance
was a special appearance under Rule 120a which regulates
special appearances and mandates a special appearance must be
made by motion and affidavit and must not only be filed
before anything else but also must be heard and
determined before any other plea or pleading." Thomas
further stated, "The Court of appeals has already