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Dodd v. Evergreen National Construction, LLC

Court of Appeals of Texas, First District

June 20, 2017

ROBERT H. DODD, SR., Appellant
v.
EVERGREEN NATIONAL CONSTRUCTION, LLC, Appellee IN RE ROBERT H. DODD, SR., Relator

         On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2016-68823

         Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Jennings, Brown, and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice.

         Robert H. Dodd, Sr. has filed a notice of appeal of the trial court's temporary injunction that enjoins him from attempting to evict appellee and real party in interest, Evergreen National Construction, LLC, from property located at 5814 John Martin Road, Baytown, Texas (the "John Martin Property"). In two issues, Dodd contends that the trial court erred in granting the injunction because a Jefferson County District Court previously denied "the same injunction request" and Evergreen presented no evidence to support its request for injunctive relief. In three additional issues, Dodd contends that the temporary injunction order is void because the Jefferson County District Court has dominant jurisdiction and the order does not state the reasons Evergreen would suffer injury if an injunction were not granted, set a trial date, or fix the amount of a bond. We reverse the trial court's order granting the temporary injunction.

         Dodd also has filed a petition for a writ of mandamus, challenging the trial court's order denying his plea in abatement. In one issue, Dodd contends that respondent, the Honorable Alexandra Smoots-Thomas, abused her discretion in denying the plea in abatement because the Jefferson County District Court is the court with dominant jurisdiction over the parties and issues. We conditionally grant Dodd's petition.

         Background

         Dodd, as president of Dodd Coating, Consulting & Inspection Services, Inc., and Evergreen[1] executed an agreement for the purchase and sale of Dodd Coating, including the John Martin Property, to Evergreen. Dodd, individually, executed the agreement as the seller of the real estate and improvements. The agreement provided for a purchase price of "$750, 000.00 guaranteed, " with Evergreen to make "a down payment of $500, 000" by January 31, 2014, and minimum payments of $83, 333.33 "by the last day of January in 2015, 2016 and 2017." The agreement also included a non-competition provision prohibiting Dodd from "engag[ing] or participat[ing] in the industrial painting and coatings business in any manner . . . for a 100 mile radius from the [John Martin Property]" for five years after the closing date of the agreement.

          On February 3, 2015, Evergreen sued Dodd and others in Jefferson County District Court, asserting, in part, claims for misappropriation of trade secrets, breach of fiduciary duty, tortious interference with an existing contract and prospective business relations, conversion, and fraud. Several months later, Evergreen filed an "Application and Affidavit for Temporary Restraining Order and Temporary Injunction." In part, Evergreen alleged that it asserted against Dodd several causes of action "relating to [Evergreen's] purchase of a company" from him, Evergreen "had made the first payment to [Dodd] as required in the purchase agreement, which was intended to be the purchase price for the property, " and Dodd was seeking "to have [Evergreen] evicted from the real property that was part of the sale agreement." Evergreen requested a temporary restraining order and temporary injunction enjoining Dodd from attempting to evict Evergreen from the property.

         In April 2016, Evergreen filed its first amended petition in Jefferson County. Evergreen alleged that Dodd had "breached the purchase contract in several particulars, " including "[v]iolating a non-compete clause contained in the purchase agreement" and "[c]louding title to real property." In addition to claims asserted in its original petition, Evergreen asserted a suit to quiet title to the John Martin Property, and sought a declaratory judgment that Evergreen "was the sole and rightful owner[]" of the property and a temporary and permanent injunction enjoining Dodd from evicting Evergreen from the property. On April 29, 2016, the Jefferson County court denied Evergreen's request for a temporary injunction.

         On October 11, 2016, Evergreen filed another suit against Dodd in Harris County District Court. Evergreen alleged that Dodd had breached the purchase agreement by failing to provide title to the John Martin Property and had breached an agreement not to prosecute the eviction proceeding. Additionally, Evergreen alleged that "[t]he purchase agreement [was] broader than the sale of the property" and Dodd had breached the agreement by "embezzling funds" and "establishing a competing business." Evergreen sought specific performance of the purchase agreement, asserted a suit to quiet title to the John Martin Property, and requested a declaratory judgment that Evergreen "was the sole and rightful owner[]" of the property. Evergreen also sought an injunction preventing Dodd from proceeding with evicting Evergreen from the John Martin Property.

         In the Harris County proceeding, Dodd filed an answer that included a general denial and a plea contending that the Harris County suit should be abated or dismissed because the Jefferson County District Court had dominant jurisdiction over the parties and issues. Dodd also filed a separate plea in abatement in which he contended that the Jefferson County District Court had acquired dominant jurisdiction over an earlier-filed case involving the same parties and issues. Evergreen responded to Dodd's plea in abatement, contending that venue in Harris County was mandatory under Texas Civil Practice and Remedies Code section 15.011 because the suit concerned an interest in real property.

         The Harris County court first held a hearing on Evergreen's temporary injunction request. At that hearing, Dodd objected to the court's "hearing the matter" because "dominant jurisdiction is within the [Jefferson County] District Court" and the Harris County court had "no authority to enter an injunction." The court, however, did not consider Dodd's plea in abatement because it was "not set." On December 7, 2016, the Harris County District Court signed a temporary injunction order enjoining Dodd from attempting to evict Evergreen from the John Martin Property during the pendency of the litigation. On January 20, 2017, the Harris County court held a hearing and signed an order denying Dodd's plea in abatement. Dodd timely appealed the temporary injunction order and filed a petition for a writ of mandamus challenging the denial of his plea in abatement.

         Appeal-Temporary ...


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