Gerald Jackson, Jr. v. Ali Zaher Enterprises, LLC D/B/A Playtri ( 2019 )

AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed February 20, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00288-CV
GERALD JACKSON, JR., Appellant
V.
ALI ZAHER ENTERPRISES, LLC D/B/A PLAYTRI, Appellee
On Appeal from the 95th Judicial District Ct
Dallas County, Texas
Trial Court Cause No. DC-17-03371
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Nowell
Opinion by Justice Schenck
Gerald Jackson, Jr. appeals the trial court’s (1) order dismissing his claims without
prejudice after receiving Ali Zaher Enterprises, LLC d/b/a Playtri (“Playtri”)’s notice of nonsuit
and (2) its order denying Jackson’s motion to either vacate the resulting judgment or for new trial.
We affirm the part of the trial court’s order dismissing Playtri’s claims against Jackson, reverse
the part of the trial court’s order dismissing Jackson’s claim for attorney’s fees, and remand that
issue for further proceedings consistent with this opinion. Because all issues are settled in law, we
issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Playtri is a business that provides training and related services for multi-sport athletes
through coaches who associate with Playtri as employees or independent contractors. On June 20,
2013, Jackson agreed to serve as a coach for Playtri. At that time, the parties signed two separate
but related contracts: (1) an Employment Contract, including a non-compete agreement, and (2) a
certification and equipment agreement that asserts itself as additional consideration for the
employment contract. In December 2016, Jackson voluntarily terminated his relationship with
Playtri.
On March 22, 2017, Playtri filed a petition and application for temporary restraining order
and injunction, asserting a breach of contract claim and seeking a declaratory judgment against
Jackson for alleged violations of the Employment Contract. The following day, the trial court
signed a temporary restraining order enjoining Jackson from engaging in business that competes
with Playtri within a specified geographic area and soliciting business from or attempting to sell
products or services to any customer or client of Playtri. The order also set a hearing on Playtri’s
application for temporary injunction for the following month. Jackson filed an answer in which
he asserted general and specific denials, verified pleas and denials, affirmative defenses, and a
request for disclosure to Playtri. In his prayer, and without citing any claim or other theory of
entitlement, Jackson included a request for his costs and reasonable and necessary attorney’s fees
from Playtri. After conducting a hearing, the trial court granted Playtri’s application for temporary
injunction and set the case for trial later in 2017. Two weeks before trial was scheduled to begin,
Jackson amended his answer but did not further elaborate on his request for his attorney’s fees
from Playtri.
On November 29, 2017, Playtri filed a notice of nonsuit pursuant to Rule 162 of the Texas
Rules of Civil Procedure in which it dismissed all of its claims, without prejudice. That same day,
the trial court signed an order of dismissal, dismissing all claims without prejudice and dissolving
the temporary injunction. On December 27, 2017, Jackson filed a motion to vacate the judgment
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and for new trial.1 In that motion, Jackson urged that the order of dismissal was overly broad in
dismissing “all claims,” asserting that he had a pending claim for attorney’s fees under either the
Texas Non-Compete Act (NCA) or the Declaratory Judgment Act (DJA). Jackson also referenced
and attached a judgment in another case finding an employment contract between Playtri and
another employee (which he stated was the same as the Employment Contract between himself
and Playtri) to be unenforceable. Jackson requested the trial court vacate the dismissal order or
set the case for a new trial on the issue of his attorney’s fees and his costs pursuant to Rule 162.
On February 15, 2018, the trial court denied Jackson’s motion to vacate or for new trial.
DISCUSSION
In his first issue, Jackson urges the trial court erred in entering an order dismissing all
claims when Jackson’s request for attorney’s fees was still pending. On appeal, Jackson argues
his claim for attorney’s fees is pursuant to section 15.51(c) of the business and commerce code.
Generally, a plaintiff may dismiss a case or take a nonsuit at any time before it introduces
all of its evidence. TEX. R. CIV. P. 162. But such a dismissal “shall not prejudice the right of an
adverse party to be heard on a pending claim for affirmative relief . . . .” Id. To qualify as a claim
for affirmative relief, the defendant must allege a cause of action, independent of the plaintiff’s
claim, on which he could recover compensation or relief even if the plaintiff abandons or fails to
establish his cause of action. In re C.A.S., 128 S.W.3d 681, 685–86 (Tex. App.—Dallas 2003, no
pet.). An affirmative claim, stated in an answer, for recovery of attorney’s fees for preparation
and prosecution of a defense constitutes a claim for affirmative relief for the purpose of Rule 162.
Id. at 686.
1
His motion also asserted that the temporary restraining order was wrongfully issued, urging the Employment Contract was never enforceable,
and requested an award of damages in the amount of the bond posted in the matter. As none of his issues on appeal address this claim, we need not
discuss it further. See TEX. R. APP. P. 47.4.
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A general prayer for relief will not support an award of attorney’s fees because it is a
request for affirmative relief that must be supported by the associated pleading or pleadings. See
Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App.—Dallas
2009, no pet.). However, in passing on the sufficiency of a pleading, all allegations in the
adversary’s pleading may be considered, and any omission in the pleading is cured when the
missing substance is fairly supplied by the opponent’s pleading. See id. An opposing party should
use special exceptions to identify defects in a pleading so that they may be cured, if possible, by
amendment. Id. When a party fails to specially except, courts should construe the pleadings
liberally in favor of the pleader. Id. We review whether the trial court’s dismissal prejudiced a
party’s pending claim for affirmative relief as a matter of law. See Tex. Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31, 38 (Tex. 2008).
We first examine whether Jackson’s request for attorney’s fees in his pleading constituted
a claim for affirmative relief under section 15.51 of the Texas Civil Practice and Remedies Code,
which provides for procedures and remedies in actions to enforce covenants not to compete. TEX.
BUS. & COM. CODE ANN. § 15.51. Subsection c provides that “the court may award the promisor
the costs, including reasonable attorney’s fees, actually and reasonably incurred by the promisor
in defending the action to enforce the covenant,” but only if the promisor can establish the
following: (1) the primary purpose of the agreement to which the covenant not to compete is
ancillary is to obligate the promisor to render personal services, (2) the promisee knew at the time
of the execution of the agreement that the covenant did not contain limitations as to time,
geographical area, and scope of activity to be restrained that were reasonable and the limitations
imposed a greater restraint than necessary to protect the goodwill or other business interest of the
promisee, and (3) the promisee sought to enforce the covenant to a greater extent than was
necessary to protect the goodwill or other business interest of the promisee. See id. § 15.51(c).
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In Alan Reuber Chevrolet, this Court concluded that a defendant’s general request for
attorney’s fees was sufficient to give the plaintiff fair notice that the defendant sought attorney’s
fees under an agreement where the plaintiff had already requested attorney’s fees under the
agreement and failed to specially except to the defendant’s pleading. See Alan Reuber Chevrolet,
Inc., 287 S.W.3d at 885–86. Here, in his original and amended answers, Jackson included in his
prayer “that Defendant recover his costs and reasonable and necessary attorneys’ fees from
Plaintiff.” Nowhere in his pleadings did Jackson cite to the section 15.51 or any other section of
the NCA, nor did he set forth any allegations regarding the enforceability of the Employment
Contract. Of course, a pleading is not intended to be a novel or a schematic.
While Playtri’s petition only linked its request for attorney’s fees to its claims for breach
of contract and declaratory judgment, citing to sections 37.009 and 38.001(8) of the civil practice
and remedies code,2 that theory already carried the prospect of a fee award to the defendant, and
Playtri’s petition went on to refer specifically to the NCA in its claim for breach of contract.3 As
Playtri did not specially except to Jackson’s pleadings, it cannot complain of a lack of notice of
the prospect of a fee award to the prevailing defendant in the face of its own pleading and the
defendant’s request for fees. With the exception of certain special matters not at issue here, a
pleading need only provide “fair notice” of the claim and relief sought. See Alan Reuber Chevrolet,
Inc., 287 S.W.3d at 884. The pleader is under no obligation to provide citation to statutes,
subsections of statutes, or decisions and authority applying it. See Hines v. Foreman, 243 S.W.
479, 484 (Tex. Comm’n App. 1922).
2
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.009 (providing that in DJA claims, “the court may award costs and reasonable and necessary
attorney’s fees as are equitable and just”), 38.001(8) (providing for recovery of attorney’s fees in claim for written contract).
3
Specifically, Playtri’s petition alleged the Employment Contract met the requirements for enforcement under the NCA and, alternatively, if
the trial court found the requirements of the NCA were not met, requested the trial court reform the Employment Contract and enforce it as reformed.
Additionally, the NCA preempts other procedures and remedies in an action to enforce a covenant not to compete under common law or otherwise.
See BUS. & COM. § 15.52.
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In light of the foregoing, Playtri and the trial court should have been on notice that
attorney’s fees could be available to Jackson in Playtri’s attempt to enforce the Employment
Contract, and therefore, Jackson presented an affirmative claim for relief. See Alan Reuber
Chevrolet, Inc., 287 S.W.3d at 885–86. Accordingly, the trial court erred in dismissing Jackson’s
claim for attorney’s fees. See TEX. R. CIV. P. 162. We sustain Jackson’s first issue.
In light of our resolution of his first issue, we need not address Jackson’s second or third
issues.4
In his fourth issue, Jackson urges the trial court erred by entering an order dismissing
Paytri’s claims without prejudice instead of with prejudice and in failing to award Jackson his
costs. Jackson relies on the fact that, after the order of dismissal, he presented evidence of another
trial court’s decision that an employment agreement he alleges to be the same as the Employment
Contract was unenforceable. Jackson urges that decision collaterally estopped Playtri from re-
litigating the “same issue in this lawsuit.” However, there is no indication that the trial court
considered Jackson’s request for attorney’s fees, by formal hearing or otherwise. See, e.g.,
Duchouquette v. Prestigious Pets, LLC, No. 05-16-01163-CV, 2017 WL 5109341, at *4 (Tex.
App.—Dallas Nov. 6, 2017, no pet.) (remanding to trial court for consideration of Texas Citizens
Participation Act motion where no indication trial court considered merits of motion before
erroneously dismissing case for want of jurisdiction). Having concluded the trial court erred in
dismissing Jackson’s claim for attorney’s fees, we pretermit Jackson’s fourth issue.
4
In his second issue, Jackson argues the trial court erred by dismissing his pending request for attorney’s fees without notice and opportunity
to be heard. In his third issue, Jackson maintains the trial court violated his due process rights by signing the order of dismissal and the order
denying Jackson’s motion to vacate the order or for new trial without giving him a meaningful opportunity to be heard.
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CONCLUSION
We affirm the part of the trial court’s order of dismissal that dismisses Playtri’s claims,
reverse the part of the trial court’s order of dismissal that dismisses Jackson’s claim for attorney’s
fees, and remand that issue for further proceedings consistent with this opinion.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
180288F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GERALD JACKSON, JR., Appellant On Appeal from the 95th District Court,
Dallas County, Texas
No. 05-18-00288-CV V. Trial Court Cause No. DC-17-03371.
Opinion delivered by Justice Schenck,
ALI ZAHER ENTERPRISES, LLC D/B/A Justices Reichek and Nowell participating.
PLAYTRI, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
order dismissing Gerald Jackson, Jr.’s claim for attorney’s fees and AFFIRM that portion of the
trial court’s order dismissing Playtri’s claims against Gerald Jackson, Jr. We REMAND the
issue of Gerald Jackson, Jr.’s claim for attorney’s fees to the trial court for further proceedings
consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 20th day of February 2019.
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