Express Chipping, Inc. v. Redi-Mix Solutions, Ltd. and 2S Transport, LLC F/K/A H & S Transport, Ltd. ( 2015 )

ACCEPTED
12-15-00293-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/18/2015 4:45:30 PM
Pam Estes
CLERK
NO. 12-15-00293-CV
In The FILED IN
12th COURT OF APPEALS
Court Of Appeals TYLER, TEXAS
For The 12/18/2015 4:45:30 PM
PAM ESTES
Twelfth district of Texas Clerk
EXPRESS CHIPPING, INC.
Appellant,
v.
REDI-MIX SOLUTIONS, LTD. AND 2S TRANSPORT, LLC f/k/a
H&S TRANSPORT, LTD.
Appellees.
On Appeal from the 369th District Court
Anderson County, Texas
Trial Court Cause No. DCCV15-311-369
APPELLANT’S MOTION TO STAY ORDER
Herbert W. Fortson, III
SBN: 07277300
Micah B. Fortson
SBN: 24083012
Fortson, Frazer, & Siegrist, P.C.
2702 Jackson Street
Houston, Texas 77004
T: (713) 533-1520
F: (713) 533-1571
herb@fortson-co.com
micah@fortson-co.com
ATTORNEYS FOR APPELLANTS
INTRODUCTION
Appellant, Express Chipping, Inc. filed a notice of Interlocutory appeal
appealing the trial court’s denial of its special appearance to present motion
objecting to jurisdiction. After the special appearance was filed the trial court heard
and granted appellees’ request for a temporary injunction without notice to an
adverse party in violation of Tex. R. Civ. P. 120a and 681. Express Chipping, Inc.
now moves for an order staying the trial court’s order granting a temporary
injunction against Express Chipping, Inc pending the outcome of this appeal.
STATEMENT OF FACTS
On August 18, 2015 appellees Redi-Mix Solutions, Ltd. and 2S Transport,
LLC f/k/a H&S Transport, Ltd. (collectively “Redi-Mix”) filed their Verified
Original Petition and Request for Injunctive Relief. CR 5. On the same day,
without notice to appellant, Express Chipping, Inc. (“Express”) or defendant Knox,
the trial court granted a temporary restraining order against Express Chipping, Inc.
and defendant Knox. CR 37-39. On August 31, 2015 the trial court extended the
temporary restraining order to and set a Temporary Injunction hearing on
September 9, 2015 at 10:30 a.m. CR 41. On September 9, 2015, at 9:24 a.m., one
hour before the hearing on the Temporary Injunction, Express successfully filed its
Special Appearance to Present Motion Objecting to Jurisdiction. CR 42. Express
1
had unsuccessfully tried to file the special appearance twice the day before. The
Special Appearance hearing was set for September 24, 2015 at 10:00 a.m. CR 49.
On September 9, 2015 at the Temporary Injunction hearing counsel for
Redi-Mix affirmatively disclosed to the trial court that the hearing was taking place
without notice to defendant Knox and that Express had filed a special appearance
prior to the hearing. TAB 1, 2:17-19, 4:20-25. Regardless, the court granted the
Temporary Injunction and signed it into order on September 22, 2015. CR 53;
TAB 1, 4:25-5:4; TAB 2.
MOTION
Under Texas law a court cannot issue a temporary injunction without notice
to the adverse party and any motion challenging jurisdiction under Texas Rule of
Civil Procedure 120a shall be heard and determined before any other plea or
pleading may be heard.
A. No notice of the Temporary Injunction hearing to defendant Knox
Texas Rule of Civil Procedure 681 states very simply, “[n]o temporary
injunction shall be issued without notice to the adverse party.” Tex. R. Civ. P. 681.
During the hearing on the temporary injunction counsel for Redi-Mix
affirmatively disclosed, on the record, that Knox had not been served prior to that
hearing. The court stated: “Mr. Knox, we’ve not served yet because he’s on parole,
and we haven’t been able to file on him?” TAB 1, 2:13-15. Redi-Mix counsel
2
responded: “Yes, sir.” TAB 1, 2:16. Later counsel stated: “Mr. Knox, of course, is
on the lam, and we’re trying to find him so he can be served. But I would ask the
Court to continue – to make the TRO a Temporary Injunction under the same
terms and conditions, and continue the bond in the same amount against Express.”
TAB 1, 4:23-5:3. The court replied: “So ordered.” TAB 1, 5:4.
B. The Temporary Injunction was heard and determined after the Special
Appearance was filed but before it was heard and determined.
Texas Rule of Civil Procedure 120a(2) states that, “[a]ny motion to
challenge the jurisdiction provided for herein shall be heard and determined before
a motion to transfer venue or any other plea or pleading may be heard.” Express
filed its Special Appearance under rule 120a on September 9, 2015 at 9:24 a.m.,
one hour prior to the temporary injunction hearing. CR 41-42. Counsel for Redi-
Mix, on record, even acknowledged the filing of the Special Appearance at the
Temporary Injunction hearing. TAB 1, 4:20-23. The court heard and granted the
temporary injunction with knowledge of the special appearance, after the special
appearance was filed on September 9, 2015 and signed the order on September 22,
2015, two days before the Special Appearance hearing CR 41-50, 53-56; TAB 1 &
2.
A temporary injunction is a plea or pleading and it was heard and
determined after the special appearance was filed but before it was determined.
3
Because the temporary injunction was heard and determined without notice to the
adverse party and prior to hearing and determining the special appearance, it
should be stayed pending the outcome of this accelerated appeal on Express’
Special Appearance.
PRAYER
For the reasons stated above, appellant, Express Chipping, Inc., requests that
this Court stay the Order granting a Temporary Injunction signed September 22,
2015 (TAB 2) until such time as this accelerated appeal, regarding jurisdiction,
may be determined.
Respectfully submitted,
Fortson, Frazer & Siegrist, P.C.
/s/ Micah B. Fortson
Herbert W. Fortson, III
SBN: 07277300
herb@fortson-co.com
Micah B. Fortson
SBN: 24083012
micah@fortson-co.com
Fortson, Frazer, & Siegrist, P.C.
2702 Jackson Street
Houston, Texas 77004
T: (713) 533-1520
F: (713) 533-1571
ATTORNEYS FOR APPELLANT,
EXPRESS CHIPPING, INC.
4
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the formatting
requirements of the Texas Rules of Appellate Procedure and, Pursuant to Tex. R.
App. P. 9.4(i)(3), this motion, created in Microsoft Word 2010, contains 748
words, excluding portions exempted under the rules.
/S/ Micah B. Fortson
Micah B. Fortson
CERTIFICATE OF CONFERENCE
I certify that a reasonable effort was made to confer with appellees about the
merits of the motion and whether they oppose the motion. T.R.A.P. 10.1(5).
/s/ Micah B. Fortson
Micah B. Fortson
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
served on December 18, 2015 by electronic filing on:
Kyle L. Dickson James D. Hankins
Murray-Lobb, PLLC Law Office of James D. Hankins
700 Gemini, Suite 115 606 E. Crawford Street
Houston, Texas 77058 Palestine, Texas 75801
Tel: (281) 488-0630 Tel: (903) 729-2102
Fax: (281) 488-2039 Fax: (903) 731-4732
Email: kdickson@murray-lobb.com Email: jdh@jameshankinslaw.com
ATTORNEYS FOR APPELLEES
REDI-MIX SOLUTIONS, LTD. AND
2S TRANSPORT, LLC F/K/A H&S
TRANSPORT, LTD.
/s/ Micah B. Fortson
Micah B. Fortson
5
APPENDIX
1. Tab 1 – Court Reporter’s Certified Record of the September 9, 2015 hearing
on Temporary Injunction.
2. TAB 2 – Order for Temporary Injunction signed September 22, 2015
2
TAB 1
i
1 REPORTER'S RECORD
2 TRIAL COURT CAUSE NO. DCCV15-311-369
3 VOLUME 1 of 1
4
5 REDI-MIX SOLUTIONS LTD, 2S ) IN THE DISTRICT COURT
TRANSPORT, LLC F/K/A H&S )
6 TRANSPORT, LTD, )
)
7 )
Plaintiffs, )
8 )
VS. ) ANDERSON COUNTY, TEXAS
9 )
)
10 EXPRESS CHIPPING, INC., ) 369th JUDICIAL DISTRICT
STANLEY KEITH KNOX, )
11 )
Defendants. )
12
13
14
15 ------------------------------
16 HEARING ON TEMPORARY INJUNCTION
17 ------------------------------
18
19
20 On the 9th day of September, 2015, the following
21 proceedings came on to be heard in the above-entitled
22 and numbered cause before the Honorable Bascom W.
23 Bentley, III, Judge presiding, held in Palestine,
24 Anderson County, Texas;
25 Proceedings reported by machine shorthand.
ii
1 A P P E A R A N C E S
2
3
4 FOR THE PLAINTIFFS:
5
6 MR. JAMES D. HANKINS
ATTORNEY AT LAW
7 618 E. CRAWFORD STREET
PALESTINE, TEXAS 75801
8
9
10 FOR THE DEFENDANTS:
11 (None)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
iii
1 I N D E X
2 VOLUME 1 of 1
3 Page Vol.
SEPTEMBER 9, 2015
4
5 Reporter's Certificate.................. 6 1
6
7 PLAINTIFF'S WITNESSES
8 Direct Cross Voir Dire Vol.
Brandi Scott 1 1
9
10
DEFENDANT'S WITNESSES
11
Direct Cross Voir Dire Vol.
12 (None)
13
14
EXHIBIT INDEX
15
PLAINTIFF'S
16
NO. DESCRIPTION MARKED OFFERED ADMITTED VOL.
17
1 Contract 1 1 1 1
18 (Knox & H&S)
19 2 Contract 1 2 2 1
(Knox & Redi-Mix)
20
21
EXHIBIT INDEX
22
DEFENDANT'S
23
NO. DESCRIPTION MARKED OFFERED ADMITTED VOL.
24
(None)
25
1
1 PROCEEDINGS
2 DATE: SEPTEMBER 9, 2015
3 TIME: 10:45 a.m.
4 THE COURT: Cause Number DCCV15-311-369,
5 Redi-Mix Solutions versus Express Chipping. Redi-Mix
6 case. Is she going to be your witness?
7 MR. HANKINS: Yes.
8 THE COURT: Ma'am, if you would raise
9 your right hand to be sworn.
10 (Oath administered)
11 THE WITNESS: I do.
12 BRANDI SCOTT,
13 having been first duly sworn, testified as follows:
14 DIRECT EXAMINATION
15 BY MR. HANKINS:
16 Q. Tell the court your name, please.
17 A. Brandi Scott.
18 Q. Ms. Scott, you are a principal in the business
19 HS2 Transport, Inc. and also Redi-Mix Solutions, Inc.;
20 correct?
21 A. Yes, sir.
22 (Plaintiff's Exhibit Numbers 1 and 2 were
23 marked for identification)
24 Q. And I want to hand you -- first of all, we'll
25 start off with what's been identified as P-1 and P-2.
2
1 And do you recognize those documents as being a
2 Non-Compete Clause Contract that you signed with Keith
3 Knox, who was a former employee?
4 A. Yes, sir.
5 MR. HANKINS: Judge, I offer P-1 and P-2.
6 THE COURT: They will be received.
7 (Plaintiff's Exhibit Numbers 1 and 2 were
8 offered and received)
9 Q. (By Mr. Hankins) The Court has granted a
10 Temporary Retraining Order restraining Express -- What
11 is Express' name?
12 A. Express Chipping.
13 Q. Yes. -- Express Chipping from interfering
14 with your business by their employment of Mr. Keith
15 Knox; is that correct?
16 A. Yes, sir.
17 Q. Mr. Knox, we've not served yet because he's on
18 parole, and we haven't been able to file on him?
19 A. Yes, sir.
20 Q. He's going around taking your customer list to
21 his new company, --
22 A. Yes, sir.
23 Q. -- and he's having the new company contact all
24 of your experienced employees and asked them to come to
25 work for them; is that correct?
3
1 A. Yes, sir. And he's also offering them more
2 money.
3 Q. Right. And just recently, you found out that
4 Mr. Knox has contacted Argos, Thomas Concrete, and Van
5 Eaton, and these are all concrete contractors who use
6 y'all's services; correct?
7 A. Yes, sir.
8 Q. He's asking them to come -- switch over and
9 work for Express; is that correct?
10 A. Yes, sir.
11 Q. And you're asking the Court to enjoin that
12 action in violation of this non-compete clause?
13 A. Yes, please.
14 Q. Okay. And you're asking the Court to enjoin
15 him from contacting -- or, Express from contacting your
16 current employees and trying to use them to come to work
17 for them?
18 A. Yes, sir.
19 Q. And this has damaged your business?
20 A. Yes, it has.
21 Q. Okay. Are we talking about thousands of
22 dollars that you've lost in future revenue?
23 A. Yes, sir.
24 Q. Okay.
25 A. And if he's not stopped, it will be more than
4
1 just several thousand. It will -- it can get into
2 the hundred thousands.
3 Q. Okay. And also, on your employees, many of
4 them have stayed, but they all come in and say If you
5 don't give us more money, I'm going to go to work for
6 Express because they're offering more money; correct?
7 A. Yes, sir.
8 Q. So, it's cost the company that way, also?
9 A. Yes, sir.
10 Q. All right. And you're asking the Court to
11 continue the orders of the Temporary Restraining Order
12 and to make that a Temporary Injunction against Express?
13 A. Yes, please.
14 Q. Okay.
15 MR. HANKINS: That's all we have, Your
16 Honor.
17 THE COURT: All right. You may step
18 down, ma'am. Has anyone heard from the respondent as to
19 why he's not here?
20 MR. HANKINS: The respondent, Express,
21 has filed a special appearance, but I got a notice today
22 from the electronic filing that it's rejected, so -- I
23 don't know why they're here. Mr. Knox, of course, is on
24 the lam, and we're trying to find him so he can be
25 served. But I would ask the Court to continue -- to
5
1 make the TRO a Temporary Injunction under the same terms
2 and conditions, and continue the bond in the same amount
3 against Express.
4 THE COURT: So ordered.
5 MR. HANKINS: Thank you, Your Honor.
6 I'll get you an order.
7 (Hearing concluded at 10:48 a.m.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS)
COUNTY OF ANDERSON)
3
4 I, Nancy K. Adams, Official Court Reporter in and
5 for the 369th District Court of Anderson County, State
6 of Texas, do hereby certify that the above and foregoing
7 contains a true and correct transcription of all
8 portions of evidence and other proceedings requested in
9 writing by counsel for the parties to be included in
10 this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $49.50 and was
18 paid by Defendant.
19 WITNESS MY OFFICIAL HAND this the 7th day of
20 October, 2015.
21
/s/ Nancy K. Adams
22 Nancy K. Adams, Texas CSR 3131
Expiration Date: 12/31/2015
23 Official Court Reporter
369th District Court
24 Anderson County, Texas
Palestine, Texas 75801
25 903.723.7415
TAB 2