In re Henry, 01-07-00601-CV.

Citation274 S.W.3d 185
Decision Date02 October 2008
Docket NumberNo. 01-07-00601-CV.,No. 01-07-00622-CV.,01-07-00601-CV.,01-07-00622-CV.
PartiesIn re David HENRY, Relator. David Henry, Appellant, v. James McMichael and Elizabeth Ann Koehler, Co-Independent Executors of the Estate of W.T. McMichael, and Catherine McMichael, Appellees.
CourtCourt of Appeals of Texas

John W. Havins, Havins & Associates, P.C., Houston, Scott A. Whisler, Scott A. Whisler, P.C., Dallas, for Relator.

Lynn J. Klement, Law Office of Lynn J. Klement, Angleton, TX, for Real Party In Interest.

Panel consists of Justices TAFT, HANKS, and HIGLEY.

OPINION ON MOTION FOR REHEARING

GEORGE C. HANKS, JR., Justice.

On April 24, 2008, this Court issued an opinion affirming the trial court's judgment. Appellant David Henry filed a motion for rehearing. After due consideration, we deny Henry's motion for rehearing, but withdraw our opinion and substitute the following. Our judgment in this case remains unchanged.

On interlocutory appeal, relator, David Henry alleges that the Brazoria County trial court erred in temporarily enjoining his prosecution of an action in Harris County because (1) the Brazoria County Court has dominant jurisdiction over the Brazoria County Court and (2) neither the application for temporary injunction filed in Brazoria County nor the evidence submitted in support of that application satisfies the requisites for injunctive relief under Texas Rule of Civil Procedure 680. Henry also petitions this Court for a writ of mandamus directing the Brazoria County trial court to set aside its order denying his motion to abate, by which the court effectively asserts dominant jurisdiction.1

We conclude that the Brazoria County trial court has dominant jurisdiction over the claims asserted in Harris County and the Brazoria County Court did not err in issuing the temporary injunction. Henry's petition for writ of mandamus is denied.

Background

W.T. McMichael and Henry were joint owners of Girard Holdings. In 1997, W.T. and Henry entered into a Stock Purchase Agreement (the "Agreement") for their ownership interests in Girard Holdings. The Agreement provided that, if one died, the other would have the right to purchase his stock in Girard Holdings for a price based on the stock's book value at the time of death. W.T.'s wife, Catherine McMichael, also signed the Agreement.

W.T. died on May 16, 2006. Four months later, Henry attempted to exercise his right to buy W.T.'s 1000 shares of Girard Holdings for approximately $148,000. After Henry sent a demand letter, Catherine McMichael refused to sell the stock to him, alleging that the stock was actually worth between $2 and $4 million at the time of W.T.'s death and that the book value did not reflect the true value of the stock.

On September 1, 2006, Catherine, along with James McMichael and Elizabeth Ann Koehler, Catherine's children and independent co-executors of W.T.'s estate (collectively "the McMichaels"), filed an action for damages against Henry in Brazoria County, where W.T. resided at the time of his death. In this action, the McMichaels, on behalf of the estate, asserted claims against Henry for breach of fiduciary duty, fraud/misrepresentation, unjust enrichment, and for a declaratory judgment that those wrongful acts rendered the Agreement unenforceable. Henry filed a motion to abate in Brazoria County and a motion to transfer venue to Harris County.

Two weeks later, on September 13, 2006, Henry sued the McMichaels in Harris County, seeking specific performance of the Agreement and asserting a breach of contract claim based on the Agreement. The McMichaels filed a motion to transfer venue to Brazoria County, and they later filed a plea in abatement in the Harris County case, arguing that the Brazoria County Court had dominant jurisdiction because the two lawsuits were the same and because they filed their lawsuit first in Brazoria County.

In November 2006, after a non-evidentiary hearing, the Harris County Court denied the McMichaels' plea in abatement. Henry supplemented his motion to abate in the Brazoria County Court, attaching a copy of the Harris County Court's order denying the McMichaels' plea. After a hearing and receiving further evidence from the parties, the Brazoria County Court denied Henry's motions to abate and to transfer venue.

Henry subsequently filed a motion for partial summary judgment in Harris County. The McMichaels then refiled their plea in abatement in Harris County, attaching a copy of the Brazoria County Court's order denying Henry's motions to abate and transfer venue. The Harris County Court again denied the McMichaels' plea in abatement, and the McMichaels requested a continuance on Henry's motion for partial summary judgment, which the trial court granted.

The next week, the McMichaels filed an application for temporary restraining order ("TRO") in Brazoria County, and, on June 18, 2007, the Brazoria County Court granted an ex parte TRO finding that it had dominant jurisdiction and prohibiting Henry from proceeding with (1) a hearing on his motion for partial summary judgment in the Harris County case and (2) prosecution of the Harris County case. Nine days later, the trial court, after hearing testimony from the McMichaels' attorney, granted a temporary injunction on the same terms as the TRO.

Henry filed this petition for writ of mandamus on June 26, 2007, challenging the Brazoria County Court's order denying his motion to abate.2 The next day, the Brazoria County Court signed an order for temporary injunction. Henry then filed this interlocutory appeal of the temporary injunction order.

Interlocutory Appeal—Temporary Injunction

In this interlocutory appeal, Henry asserts that the Brazoria County trial court erred in issuing a temporary injunction enjoining his prosecution of the Harris County action because (1) the Harris County Court has acquired dominant jurisdiction over the Brazoria County Court under the estoppel exception to the general rule of dominant jurisdiction and (2) neither the McMichaels' application for temporary injunction nor the evidence submitted in support of that application satisfies the requisites for injunctive relief under Texas Rule of Civil Procedure 680.

Standard of Review

Texas state courts have the power to restrain persons from proceeding with suits filed in other courts of this state by granting an "anti-suit injunction," abating proceedings in a second forum. Gannon v. Payne, 706 S.W.2d 304, 305 (Tex.1986). The trial court's decision is reviewed under an abuse of discretion standard. Id. A trial court abuses its discretion when it misapplies the law to the established facts of the case. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Dominant Jurisdiction

In his first issue, Henry argues that, although the Harris County action was not the first to be filed, under the estoppel exception to the general rule of dominant jurisdiction, the Harris County Court acquired dominant jurisdiction by denying the McMichaels' plea of abatement before the Brazoria County Court denied Henry's plea in abatement.

The general rule of dominant jurisdiction is that, where a suit would be proper in more than one county, the county in which the suit was first filed acquires dominant jurisdiction to the exclusion of other counties of equal stature. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); Lamar Sav. Ass'n v. White, 731 S.W.2d 715, 716 (Tex.App.-Houston [1st Dist.] 1987, orig. proceeding). "As long as the forum is a proper one, it is the plaintiff's privilege to choose the forum." Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). Accordingly, we must first determine whether Brazoria County would be a proper venue for the McMichaels' action.

Venue in Brazoria County

Section 15.002(a)(1) of the Civil Practices and Remedies Code provides that venue for an action is proper in the county in which "all or a substantial part of the events or omissions giving rise to the claim occurred." TEX. CIV. PRAC. REM. CODE § 15.002(a)(1). Venue may be proper in more than one county under the venue rules. See, e.g., GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex.1998). In general, plaintiffs are allowed to choose venue first, and the plaintiff's choice of venue cannot be disturbed as long as the suit is initially filed in a county of proper venue. KW Constr. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex.App.-Texarkana 2005, pet. denied); Gerdes v. Kennamer, 155 S.W.3d 541, 549 (Tex.App.-Corpus Christi 2004, no pet.); Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 678 (Tex.App.-Austin 2003, no pet.).

A trial court must consider all venue facts pled by the plaintiff as true, unless they are specifically denied by an adverse party. See TEX.R. CIV. P. 87(3)(a). Once the adverse party specifically denies venue facts, the plaintiff must then respond with prima facie proof of that venue fact. Id. "Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading." Id. This prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.1993); Chiriboga, 96 S.W.3d at 678. On appeal, the trial court's determination that venue is proper in a particular county will be upheld if there is any probative evidence supporting venue in the county of suit, even if the evidence preponderates to the contrary. Chiriboga, 96 S.W.3d at 678 (citing Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995)).

In this case, the McMichaels allege that venue is proper in Brazoria County and offered probative evidence, in affidavit form, that a substantial part of the omissions serving as the basis for their tort claims occurred in Brazoria County. The...

To continue reading

Request your trial
38 cases
  • Wyrick v. Bus. Bank of Tex., N.A.
    • United States
    • Court of Appeals of Texas
    • April 30, 2019
    ...second court (Dimmit County) refused to abate the claims before it in deference to the first court (Travis County) as was the case in Henry v. McMichael .16 Insofar as our record reveals, the Bank did not seek to abate the Dimmit County proceeding before requesting an anti-suit injunction i......
  • Roman-Perez v. Alvarez
    • United States
    • Court of Appeals of Texas
    • November 19, 2020
    ...their adversaries from filing the subsequent suit more promptly by fraudulently representing that they would settle. Id.; In re Henry, 274 S.W.3d 185, 191 (Tex. App.—Houston [1st Dist. 2008, orig. proceeding). Other examples of inequitable conduct sufficient to defeat the first-filed rule a......
  • Nalle Plastics Family Ltd. v. Porter
    • United States
    • Court of Appeals of Texas
    • April 18, 2013
    ......1. Applicable Law and Standard of Review          In general, plaintiffs are allowed to choose venue first, and the plaintiff's choice cannot be disturbed as long as suit is initially filed in a county of proper venue. In re Henry, 274 S.W.3d 185, 190 (Tex.App.-Houston [1st Dist.] 2008, pet. denied); Crown Cent. LLC v. Anderson, 239 S.W.3d 385, 388 (Tex.App.-Beaumont 2007, pet. denied). In a suit in which there is more than one plaintiff, each plaintiff must, independently of every other plaintiff, establish proper venue. ......
  • Shamoun & Norman, LLP v. Yarto Int'l Grp., LP
    • United States
    • Court of Appeals of Texas
    • May 31, 2012
    ......We conclude that we have jurisdiction over Shamoun's appeal. 2. Applicable Law and Standard of Review          In general, plaintiffs are allowed to choose venue first, and the plaintiff's choice cannot be disturbed as long as suit is initially filed in a county of proper venue. Henry v. McMichael, 274 S.W.3d 185, 190 (Tex.App.-Houston [1st Dist.] 2008, pet. denied); Crown Cent. LLC, 239 S.W.3d at 388. A trial court must consider all venue facts pled by the plaintiff as true unless they are specifically denied by an adverse party. Tex.R. Civ. P. 87(3)(a). Once an adverse party ......
  • 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