Faddoul & Glasheen v. Oaxaca

Citation52 S.W.3d 209
Decision Date01 March 2001
Docket NumberNo. 08-00-00475-CV,08-00-00475-CV
Parties(Tex.App.-El Paso 2001) FADDOUL, GLASHEEN & VALLES, P.C., SAM FADDOUL AND KEVIN GLASHEEN, Appellants, v. J. ROBERTO OAXACA, BYRON CALDERON, AND OAXACA & CALDERON, A PARTNERSHIP, Appellees.
CourtCourt of Appeals of Texas

Appeal from the County Court at Law Number Five of El Paso County, Texas (TC# 98-3347) Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

OPINION

BARAJAS, Chief Justice.

This is an interlocutory appeal1 from a declaratory action filed by Appellants, Faddoul, Glasheen & Valles, P.C. ("FG&V"), Sam Faddoul ("Faddoul"), and Kevin Glasheen ("Glasheen"). For the reasons stated, we dismiss the instant appeal for want of jurisdiction.

I. SUMMARY OF THE EVIDENCE

Appellants filed suit against Appellees, J. Roberto Oaxaca ("Oaxaca"), Byron Calderon ("Calderon"), and Oaxaca and Calderon ("O&C"), for a declaration of the payment term, or percentage fee, due Appellees under an oral agreement between the parties to split attorneys' fees earned from representation of the plaintiffs in a lawsuit styled Cruz v. The Atchison, Topeka and Santa Fe Railway Co., et al., Cause No. 94-8483 (the "Railroad Case") tried in the County Court of Law Number Four of El Paso County, Texas.2 Appellees filed a counterclaim for fifty percent (50%) of the fees. Appellants filed the suit in Lubbock County and upon Appellees' motion, venue was transferred to El Paso County.

Appellees then filed a motion for temporary injunction requesting that Appellants deposit fifty percent (50%) of the attorneys' fees from the litigation into the registry of the court. Appellants argued in their response to the motion for temporary injunction that the El Paso court no longer had jurisdiction over the issues because a suit against Appellees had been filed by some of the plaintiffs in the Railroad Case in Parmer County, Texas, thus investing the Parmer County court with exclusive jurisdiction. Appellants requested that the trial court dismiss the suit for lack of jurisdiction. After a hearing, the trial court granted Appellees' request for temporary injunction, which ordered Appellants to deposit fifty percent (50%) of the attorneys' fees from the litigation into the registry of the court, and denied Appellants' motion to dismiss. It is these rulings from which Appellants appeal.

II. DISCUSSION
A. Jurisdiction

A jurisdictional issue has been raised by Appellees which needs to be considered before proceeding to the merits of Appellants' interlocutory appeal. In Appellees' Cross-Points One and Two, they maintain that this Court lacks jurisdiction (1) to consider the claim that another court has exclusive or dominant jurisdiction and (2) to hear the complaint about the trial court's order requiring funds be deposited into the court's registry. Appellants counter that this Court has authority to reverse the trial court's exercise of jurisdiction and direct the trial court to dismiss the underlying case.

First, Appellees argue that the order overruling Appellants' motion to dismiss or abate on the grounds that the Parmer County court has exclusive jurisdiction is not subject to interlocutory appeal under the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2001). We agree. Such determination is generally reviewed only on appeal from the final judgment in the case. See, e.g., Browne v. Bear, Stearns & Co., 766 S.W.2d 823, 824 (Tex. App.--Dallas 1989, writ denied); Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518 (Tex. App.--San Antonio 1995, orig. proceeding). If the trial court overrules the motion to abate, that court becomes vested with dominant jurisdiction and the case will proceed to trial in that court. See 4M Linen & Uniform Sup. Co. v. W. P. Ballard & Co., 793 S.W.2d 320, 322 (Tex. App.--Houston [1st Dist.] 1990, writ denied). Furthermore, the party that filed the motion to abate may not appeal the order overruling abatement until after the trial on the merits. See, e.g., Johnson v. Avery, 414 S.W.2d 441, 443 (Tex. 1966) (citing Wheeler v. Williams, 312 S.W.2d 221, 228 (Tex. 1958) (orig. proceeding)).

Appellants point out that at least one other appellate court has held that while appeal of a temporary injunction does not imbue the court with jurisdiction to address interlocutory matters in addition to those specified in the Civil Practice and Remedies Code, to the extent that subject matter of a non-appealable interlocutory order may affect the validity of the appealable order, the non-appealable order may be considered. See Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.--Amarillo 1998, pet. denied). Thus, Appellants argue that this Court has the authority to reverse the trial court's exercise of jurisdiction and direct the trial court to dismiss the underlying case because the denial of their motion to dismiss or abate affects the validity of the appealable order, the granting of the temporary injunction. We disagree and remain of the opinion that the motion to abate is reviewable on appeal after the case is terminated by a final judgment. See Browne, 766 S.W.2d at 824; Coastal Oil & Gas Corp., 908 S.W.2d at 518. Appellees' Cross-Point One is sustained.

In Cross-Point Two, Appellees argue that this Court lacks jurisdiction to hear the complaint about the trial court's preliminary order requiring funds be deposited in the court's registry. Appellees note that the first part of the temporary injunction issue by the trial court prevented Appellants from taking any action to delay or hinder the payment of the contingency attorneys' fees. The second part of the order required that the disputed portion of the contingency fee (50% of the net attorneys' fees) be deposited in the registry of the court after it was paid to Appellants. Prior to filing this appeal, Appellants deposited $2,707,863.32 with the registry of the trial court. Appellees argue that because Appellants have already deposited the funds, the first part of the temporary injunction order is moot. With regard to the second part of the order, Appellees argue that the portion of a temporary injunction order requiring the deposit of funds into the registry of the court is not injunctive relief and is, therefore, not subject to an interlocutory appeal. See Diana Rivera & Associates, P.C. v. Calvillo, 986 S.W.2d 795, 797-98 (Tex. App.-- Corpus Christi 1999, pet. denied) (citing McQuade v. E.D. Sys. Corp., 570 S.W.2d 33, 35 (Tex. Civ. App.--Dallas 1978, no writ)); see also Furr v. Furr, 346 S.W.2d 491, 495 (Tex. Civ. App.--Fort Worth 1961, writ ref'd n.r.e.) (an order directing payment of money into court, although entered on a motion for injunction, would not be deemed a temporary injunction from which an appeal would lie); Alpha Petroleum Co. v. Dunn, 60 S.W.2d 469, 471 (Tex. Civ. App.--Galveston 1933, writ dism'd) (orders to deposit money into the registry of the court cannot be characterized as appealable temporary injunctions). We agree.

As noted previously, the court's Temporary Injunction Order enjoined Appellants from directly or indirectly "transferring, spending, encumbering, or otherwise impairing 50% of the net attorneys' fees received by them under the contingency fee contracts related to [the] railroad litigation . . . and from taking any action, directly or indirectly, that delays or hinders the payment of the net attorneys' fees due under the contingency fee contracts[.]" This is the injunctive portion of the order and because Appellants have deposited the funds in controversy with the registry of the court, there is no danger of Appellants violating this provision. Thus, this issue is moot. Appellate courts cannot review an injunction that is moot because such review would constitute an impermissible advisory opinion. See Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). A case becomes moot if at any stage there ceases to be an actual controversy between the parties. See id. A temporary injunction becomes moot when it becomes inoperative due to a change in status of the parties or the passage of time, or because it has expired. See National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (citing Parr v. Stockwell, 159 Tex. 440, 322 S.W.2d 615, 616 (1959); Texas Educ. Agency v. Dallas Indep. Sch. Dist., 797 S.W.2d 367, 369 (Tex. App.--Austin 1990, no writ)). Because the first part of the temporary injunction order is moot and the second part of the order, requiring the deposit of funds into the registry of the court, is not injunctive relief and not...

To continue reading

Request your trial
32 cases
  • Judge Carlos Cascos
    • United States
    • Texas Court of Appeals
    • September 2, 2010
    ...moot); Hermann Hosp. v. Thu Nga Thi Tran, 730 S.W.2d 56, 57 (Tex.App.-Houston [14th Dist.] 1987, no writ) (same)); see also Faddoul v. Oaxaca, 52 S.W.3d 209, 212 (Tex.App.-El Paso 2001, no pet.) (“A temporary injunction becomes moot when it becomes inoperative due to a change in status of t......
  • Salas v. Chris Christensen Sys. Inc.
    • United States
    • Texas Court of Appeals
    • September 14, 2011
    ...argument pertaining to the temporary injunction that was granted would be moot as the terms of that order have expired. See Faddoul v. Oaxaca, 52 S.W.3d 209, 212 (Tex. App.—El Paso 2001, no pet.) ("A temporary injunction becomes moot when it becomes inoperative due to a change in status of ......
  • Shell Cortez Pipeline Co. v. Shores
    • United States
    • Texas Court of Appeals
    • January 8, 2004
    ...Air Prods. & Chems., Inc., 594 S.W.2d 219, 221-22 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.) (same). But see Faddoul, Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 211 (Tex.App.-El Paso 2001, no pet.) (holding refusal to abate case because another court acquired dominant jurisdiction......
  • Pediatrix Med. Servs. Inc. v. De La O
    • United States
    • Texas Court of Appeals
    • March 14, 2012
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT