Temporary injunction rules vs. Arbitration: which one is superior?

Posted on January 25, 2012 by Mike Northrup

The Texas arbitration statutes contemplate that a trial court has jurisdiction to issue an injunction in support of an arbitration.  So what happens if the trial court issues a temporary injunction but the form of the injunction does not (and cannot) comply with Rule 683?  According to the Dallas Court of Appeals, Rule 683 takes a backseat to the Texas Arbitration Act.

Senter Investments, L.L.C. v. Veerjee, involves an interlocutory appeal from a temporary injunction order.  The parties to the appeal had a lease agreement that required them to arbitrate, but the Veerjees asserted that there was a breach of the agreement when Senter entered into a contract with a third party to sell the property without first giving the Veerjees a right of first offer.  For that reason, the Veerjees sought and obtained a temporary injunction to halt the sale.  The trial court also ordered the parties to arbitrate pursuant to the arbitration clause in the lease agreement.  In its interlocutory appeal, Senter challenged the injunction as void because Rule 683 requires an injunction order to set a date for trial on the merits.

The court of appeals held that Rule 683's trial-setting requirement would conflict with the Texas Arbitration Act and that the Texas Arbitration Act must prevail over court rule.  Interestingly, the court also refused to address any of the merit-based challenges to the temporary injunction on the ground that doing so would constitute an advisory opinion, which is prohibited.  The court's opinion scolds the parties for having done nothing toward filing and pursuing the arbitration ordered by the trial court.  One question that is raised by this opinion (and the predecessor opinions cited within it) is whether the statutory right to an interlocutory appeal to challenge the granting of a temporary injunction is an empty right if it means a party can never have the merits of the temporary injunction determined by the court of appeals.  The court's opinion may be found here.

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Certificate of Merit Requirement is Broad

Posted on October 25, 2011 by Mike Northrup

In 2007, the Texas Legislature adopted a Certificate of Merit requirement applicable to claims against architects and engineers.  The statutory requirement is much like the expert affidavit requirement applicable to health care liability claims.  The Houston First District Court of Appeals has given us an idea of just how broadly the statute should be interpreted.

In Carter & Burgess Inc. v. Sardari, Sardari brought suit against a contractor--Carter & Burgess--responsible for installing a door in a business in the Houston Galleria after Sardari cut her wrist on the edge of the door.   The trial court denied Carter & Burgess's motion to dismiss, which was based upon Sardari's failure to file a certificate of merit.  Sardari argued that she was not required to file a certificate of merit because the nature of her claim against Carter & Burgess was not based upon its design services, but instead was based upon its actions as a project manager during construction.

Carter & Burgess filed an interlocutory appeal, which is provided as part of the statutory scheme.  The court of appeals reversed and remanded with instructions to the trial court to dismiss.  Civil Practice and Remedies Code Section 150.002(a) requires a certificate of merit in any action (or arbitration) arising out of professional services provided by a licensed or registered professional.  Section 150.001(1) broadly defines "licensed professional" to include "any firm in which such licensed or registered professional practices."  Thus, it would appear that so long as any defendant employs a licensed, practicing architect, engineer, landscape architect, or land surveyor, a certificate of merit is required--even if the person who is the licensed professional has nothing to do with the activity sued over.  The court of appeals expressly rejected Sardari's argument that Carter & Burgess's use of an unlicensed employee to provide the services in question takes the case outside of the statutory requirement.  The court's opinion may be found here.

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Demise of Interlocutory Appeal of Temporary Injunctions?

Posted on January 19, 2011 by Mike Northrup

If you've got a pending interlocutory appeal from a temporary injunction, or if you are considering filing such an appeal, you will want to pay attention to this.

The Dallas Court of Appeals has held that interlocutory appeals of temporary injunctions should be dismissed because they seek advisory opinions.  In Dallas/Fort Worth International Airport Board v. Association of Taxicab Operators, USA, the Association of Taxicab Operators sought temporary and permanent injunctive relief against the Airport Board's new airport policy favoring taxicabs with dedicated CNG-powered engines.  After the trial court granted a temporary injunction, the Airport Board appealed.  Notably, at the oral argument, the court of appeals panel asked about the status of the trial on the permanent injunction and the parties advised the court that they had agreed to continue the case because of the pendency of the appeal of the temporary injunction.

In reliance on prior authority (decided in 1993), the court of appeals holds that "[a] party may not use an appeal of a temporary injunction ruling to get an advance ruling on the merits."  Because there was no trial on the merits of the permanent injunction with a final judgment, the court of appeals holds that appeal seeks an improper advance ruling on the merits.

Separately, the Court cites Civil Procedure Rule 683's requirement that the appeal of a temporary injunction "shall constitute no cause for delay of the trial" and reiterates its prior disapprovals of such tactics.  The court reasons that "[j]udicial economy dictates that we not reward such efforts" and dismisses the appeal.  The court's opinion may be found here.

So, I've got three questions after reading this opinion (at least two).  First, how is it that an appeal of an interlocutory injunction seeks an advisory opinion, but the initial request in the district court does not?  The concept of an advisory opinion is not unique to courts of appeals.  See, e.g., Coulson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980) ("District courts, under our Constitution, do not give advice nor decide cases upon speculative, hypothetical, or contingent situations.").  Second, if neither party raises a complaint of a violation of Rule 683, can the court of appeals sua sponte raise such a violation as a basis for dismissal of the appeal without running afoul of the rule against raising issues that neither party raised?  Third, does this opinion effectively cut off a party's right to an interlocutory appeal of a temporary injunction?
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Mandamus is not the way to challenge denial of arbitration under the FAA

Posted on December 10, 2010 by Mike Northrup

Once upon a time, if there was doubt about whether an arbitration agreement was subject to the Federal Arbitration Act (FAA), a party complaining of a denial of a motion to compel arbitration had to file (1) an interlocutory appeal AND (2) a petition for writ of mandamus, then seek to consolidate the two separate proceedings.  The separate mandamus is not required since September of 2009, when Texas Civil Practice and Remedies Code Section 51.016 went into effect and allowed for an interlocutory appeal of agreements subject to the FAA.  (why this statute was not located with the other interlocutory appeal provisions is a mystery to me).

The El Paso Court of Appeals points out the implications of the adoption of Section 51.016 on mandamus practice in In re H.D. Vest Inc.  In short, the court denied a petition for writ of mandamus because the court concluded that the Relators have an adequate remedy by appeal under Section 51.016.  The court's opinion may be found here.

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Mootness and the CORYER Exception

Posted on February 24, 2009 by Byron Henry

The Dallas Court of Appeals recently had an opportunity to review and apply the mootness doctrine with respect to appeals and, in the process, expound on the rarely invoked exception to mootness known as "capable of repetition, yet evading review" (CORYER).  In this case, the Plaintiff sought a temporary injunction and declaratory judgment that Duncanville's ordinance prohibiting the operation of Plaintiff's "sex club," known as the Cherry Pit, as a public nuisance.  The trial court denied Plaintiff's request for a temporary injunction and the Plaintiff filed an interlocutory appeal.  While the case was on appeal, Duncanville repealed and amended the challenged ordinance.  Duncanville moved to dismiss the appeal because it was moot.

The Court first addressed mootness generally by stating that "a case on appeal is moot if: (1) there are no live controversies between the parties; and (2) any decision rendered by the appellate court would be an advisory opinion."  The Plaintiff argued that his case fell into the exception to mootness known as CORYER.  The Court rejected this argument and held that: 

"This exception only applies in rare circumstances  . . . .  It is limited to situations where the following circumstances are simultaneously present: (1) the challenged action was in its duration too short to be litigated prior to its cessation or expiration, or the party cannot obtain review before the issue becomes moot; and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again." 

Because there was "no reasonable expectation" that Plaintiff would "suffer the same alleged wrong" by enforcement of the repealed ordinance and would have "ample time to obtain judicial review" of the new ordinance,  the Court held that the CORYER exception did not apply and dismissed the appeal as moot.  The Court's opinion in Trulock v. CIty of Duncanville can be found at this link.     

 

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