Fleming v. Ahumada

• Decision Date: 18 May 2006
• Docket Number: No. 13-03-00139-CV.,13-03-00139-CV.
• Citation: 193 S.W.3d 704
• Parties: Tommy Wayne FLEMING, Appellant, v. Patricio AHUMADA, Jr. and Edwin L. McAninch, Appellees.
• Court: Texas Court of Appeals

193 S.W.3d 704

Tommy Wayne FLEMING, Appellant, v. Patricio AHUMADA, Jr. and Edwin L. McAninch, Appellees.

No. 13-03-00139-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

May 18, 2006.

Rehearing Overruled July 6, 2006.

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Craig H. Vittitoe, Roger W. Hughes, and Scott T. Clark, Adams & Graham, Attorney At Law, Harlingen, for Appellant.

Edwin L. McAninch, Attorney at Law, Kevin Risley, Houston, and Alison H. Moore, Thompson, Coe, Cousins & Irons, Dallas, for Appellees.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION

Opinion by Justice HINOJOSA.

This appeal is from the trial court's judgment granting appellees, Patricio Ahumada, Jr. and Edwin L. McAninch, declaratory relief and an anti-suit injunction. In eight issues, appellant, Tommy Wayne Fleming, contends the trial court erred in granting the judgment. We reverse and render in part and modify and affirm in part.

A. BACKGROUND

In 1997, Ahumada, by and through his counsel McAninch, sued Fleming in the 404th District Court of Cameron County, alleging legal malpractice, fraud, breach of fiduciary duty, and violations of the Texas Deceptive Trade Practices — Consumer Protection Act ("the malpractice suit"), stemming from Fleming's alleged actions in an underlying bankruptcy suit. In July 2002, Ahumada and Fleming reached a settlement agreement in the malpractice suit, which they signed on July 10th and 11th, respectively. The settlement agreement contained a non-disclosure provision which stated:

[T]he existence and terms of this agreement specifically including, but not limited to, the amount of consideration agreed to and the underlying facts and allegations of this suit, to the maximum extent permitted by law, shall remain confidential and shall not be disclosed to anyone.

The provision further stated that neither Ahumada nor any of his representatives would "release or otherwise communicate any of the terms or conditions of this settlement agreement or the amount paid," or "divulge the circumstances surrounding the alleged improper conduct made the subject of [Ahumada's] claims" against Fleming.

On July 25, 2002, Fleming filed suit against Ahumada and McAninch in the 288th District Court of Bexar County, seeking injunctive relief and damages. In the Bexar County suit, Fleming alleged that certain pleadings filed by McAninch on behalf of Ahumada in a lawsuit styled Texas Gulf Trawling Co., Inc., et al. v. RCA Trawlers & Supply, Inc., et al., Cause No. 94-09-4693-D, then pending in the 103rd District Court of Cameron County, violated the non-disclosure provision of the settlement agreement. The Bexar County court issued a temporary restraining order against Ahumada and McAninch and set a hearing on the temporary injunction request for August 9, 2002.

In response, on August 2, 2002, Ahumada, with McAninch as an intervenor, obtained a temporary restraining order from the 404th District Court of Cameron County ("Cameron County"), enjoining Fleming from pursuing any matter related to the non-disclosure claims asserted in Bexar County, including attending the temporary injunction hearing. In addition, on August 8, 2002, Ahumada and McAninch filed in the Bexar County suit (1) a motion to transfer venue to Cameron County, (2) a plea to abate the Bexar County suit, and (3) an answer asserting that (a) the venue selection clause in the settlement agreement was unenforceable and (b) the confidentiality agreement improperly interfered with Ahumada's claims in the Texas Gulf Trawling case. On August 14, 2002, Ahumada and McAninch further petitioned the Cameron County court for declaratory relief that the confidentiality provision of the settlement agreement did not preclude Ahumada or McAninch from prosecuting the Texas Gulf Trawling case.

Similarly, on August 13, 2002, Fleming filed in Cameron County a plea to abate the Cameron County suit, urging that Bexar County had dominant jurisdiction over the non-disclosure claims, and a motion to transfer venue to Bexar County.

On August 16, 2002, the Cameron County court granted Ahumada and McAninch a temporary injunction, enjoining Fleming from seeking any relief arising from the settlement agreement in any county other than Cameron County, and from pursuing a claim for violation of the confidentiality provision of the settlement agreement against Ahumada or McAninch for any conduct or disclosures made in connection with the defense or prosecution of the Texas Gulf Trawling case. In addition, the Cameron County court denied Fleming's plea to abate and set the case for trial.

Appellees' requests for declaratory relief and permanent injunction were tried to the Cameron County court, without a jury, on January 16, 2003. The trial court determined that it had jurisdiction over the action and granted declaratory and injunctive relief in favor of appellees. This appeal ensued.

B. JURISDICTION

In his second and third issues, Fleming complains the trial court erred in concluding that it had jurisdiction to resolve the dispute over the settlement agreement. Fleming asserts that Bexar County had dominant jurisdiction over his breach of contract claims and, therefore, the trial court erred in denying his plea to abate.

The Texas Supreme Court has specifically instructed that "[w]here [a] settlement dispute arises while the trial court has jurisdiction over the underlying action, a claim to enforce the settlement agreement should, if possible, be asserted in that court under the original cause number." Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex.1996); see also Batjet, Inc. v. Jackson, 161 S.W.3d 242, 245 (Tex.App.-Texarkana 2005, no pet.) (noting that the parties properly asserted their motion for summary judgment to enforce the settlement agreement in the trial court under the original cause number); Citgo Ref. & Mktg. v. Garza, 94 S.W.3d 322, 330 (Tex.App.-Corpus Christi 2002, no pet.) (noting that because settlement dispute arose while trial court still had jurisdiction, parties properly asserted claims to enforce settlement agreement under original cause number). Enforcement of a settlement agreement as a separate cause of action is only necessary where the trial court no longer has jurisdiction over the underlying action. See Mantas, 925 S.W.2d at 658-59.

Fleming filed his suit in Bexar County approximately two weeks after the parties signed the settlement agreement. On that date, however, the malpractice suit was still pending in the 404th District Court of Cameron County because the court had not yet signed an order of dismissal. Accordingly, the Cameron County court still had jurisdiction over the matter. Following Mantas, we conclude the parties were required to assert any claims regarding the settlement agreement in the 404th District Court of Cameron County under the original cause number.

Furthermore, we conclude that Fleming's arguments of "dominant jurisdiction" are inapplicable in this case. See Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (noting that once a court has acquired dominant jurisdiction under the "first-filed" rule, the second court is required to grant a properly requested plea in abatement). The concept of dominant jurisdiction applies only in circumstances where a suit would be proper in more than one county. Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex.2005). Under those circumstances, "the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other courts" if venue was proper in that county. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988) (citing Curtis, 511 S.W.2d at 267; V.D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800 (1937); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1070 (1926)); see also Gonzalez, 159 S.W.3d at 622. However, we conclude later in this opinion that venue is not proper in Bexar County. See discussion infra Part C. Because venue is proper only in Cameron County, the "first-filed" rule is inapplicable and the trial court did not err in denying appellant's plea to abate.

Fleming's second and third issues are overruled.

C. VENUE

In his eighth issue, Fleming contends the trial court erred in denying his motion to transfer venue to Bexar County. Fleming asserts that (1) venue was mandatory in Bexar County, and (2) the venue provision contained in the settlement agreement should be enforced as written consent to transfer venue.

In reviewing the venue determination of a trial court, we must conduct an independent review of the entire record. Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 2002); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993); Colonial County Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 527 (Tex.App.-Corpus Christi 2000, pet. denied). We conduct this review like any other review of a trial court's factual findings and legal rulings, except that we need not review the evidence for factual sufficiency. Ruiz, 868 S.W.2d at 758; Valdez, 30 S.W.3d at 527. If there is any probative evidence to support the trial court's determination, even if the preponderance of the evidence is to the contrary, we must uphold the trial court's venue determination. Ruiz, 868 S.W.2d at 758; Valdez, 30 S.W.3d at 527. Although we view the record in the light most favorable to the trial court's ruling, we do not defer to the trial court's application of the law to the facts of the case. See Ruiz, 868 S.W.2d at 758.

1. Mandatory Venue

Fleming asserts that venue was mandatory in Bexar County under section 15.012 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 15.012 (Vernon 2002) ("Actions to stay proceedings in a suit shall be brought in the county in which the suit is pending.").

By mandating that when an action has been previously filed, a party desiring to enjoin that action must proceed in the county in which the action is pending, section 15.012 prohibits pa...