in Re Petrobras America Inc. and Petroleo Brasileiro S.A.- Petrobras

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
September 25, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00801-CV
IN RE PETROBRAS AMERICA INC. AND PETRÓLEO BRASILEIRO
S.A.—PETROBRAS, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
270th District Court
Harris County, Texas
Trial Court Cause No. 2016-43650
MEMORANDUM OPINION
On September 12, 2018, relators Petrobras America Inc. and Petróleo
Brasileiro S.A.—Petrobras (collectively “Petrobras”) filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see
also Tex. R. App. P. 52. In the petition, Petrobras asks this court to compel the
Honorable Brent Gamble, presiding judge of the 270th District Court of Harris
County, to vacate his August 21, 2018 Amended Order Granting Supplemental
Relief Enforcing Judgment (the “Amended Arbitration Injunction”), which enjoins
Petrobras from “directly or indirectly continuing to pursue in any way the claims
asserted in the ICDR Arbitration.” Petrobras also filed a motion asking this court to
stay the Amended Arbitration Injunction. See Tex. R. App. P. 52.8(b), 52.10.
Additionally, Petrobras filed a notice of appeal through which it has appealed
the Amended Arbitration Injunction to our court, No. 14-18-00793-CV.
With certain exceptions not applicable here, to obtain mandamus relief, a
relator must show that the relator has no adequate remedy at law, such as an appeal.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding).
The Amended Arbitration Injunction is a permanent anti-suit injunction that
the trial court issued to enforce the final judgment it issued on June 12, 2018, which
among other things, ordered that Petrobras take nothing on its claims.
We conclude that Amended Arbitration Injunction is appealable, and
Petrobras is not entitled to mandamus relief because it has an adequate remedy
through its appeal of that injunction. Our court has previously exercised appellate
jurisdiction to review on appeal anti-suit injunctions issued to enforce the trial
court’s judgment. See Parham Family Ltd. P’ship v. Morgan, 434 S.W.3d 774, 792
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (on appeal, reversing anti-suit
injunction issued to enforce a judgment); Bridas Corp. v. Unocal Corp., 16 S.W.3d
887, 888 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d w.o.j.) (on appeal,
reversing anti-suit injunction issued to enforce a judgment). Other courts of appeals
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have likewise exercised appellate jurisdiction to review anti-suit injunctions issued
to enforce a judgment. 1
An order or judgment is final for purposes of appeal if it disposes of all parties
and claims in the case. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200, 206 (Tex.
2001); Spates v. Office of Attorney Gen., Child Support Div., 485 S.W.3d 546, 551
(Tex. App.—Houston [14th Dist.] 2016, no pet.). A permanent injunction that
disposes of all issues and parties is a final, appealable judgment. Ulmer v. Ulmer,
130 S.W.3d 294, 296–97 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The trial
court’s permanent ant-suit injunction arguably is an appealable final judgment because
it disposed of all issues, parties and claims pending before the trial court; the record does
not show that any other matters are pending in the trial court.2
Additionally, in Alexander Dubose Jefferson & Townsend LLP v. Chevron
Phillips Chem. Co., L.P., 540 S.W.3d 577, 586–87 (Tex. 2018), the Texas Supreme
Court held that a turnover order is final and appealable if it is injunctive in nature
and requires a party to take some affirmative act. The Amended Arbitration
Injunction is analogous to a turnover order that grants injunctive relief against a
1
See Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 387 (Tex. App.—Beaumont 2004, pet. denied)
(recognizing that a trial court may enforce its final judgment through an anti-suit injunction, and on appeal,
affirming a permanent anti-suit injunction); Ford v. Ruth, No. 03-14-00460-CV, 2016 WL 1305209, at *3
(Tex. App.—Austin Mar. 31, 2016, pet. denied) (mem. op.) (recognizing that a trial court may enforce its
final judgment with an anti-suit injunction even after its plenary power expires, and on appeal, affirming a
permanent anti-suit injunction); Panda Energy Corp. v. Allstate Ins. Co., 91 S.W.3d 29, 32 (Tex. App.—
Dallas 2002, review granted, judgment vacated and remanded by agreement) (on appeal, affirming a
permanent anti-suit injunction issued to enforce a judgment).
2
Some courts of appeals have held that generally, an order made for the purpose of carrying into
effect an already-entered judgment is not a final judgment and cannot be appealed as such. See State Office
of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi 2011, pet. denied) and Kennedy
v. Hudnall, 249 S.W.3d 520, 523 (Tex. App.—Texarkana 2008, no pet.). But these decisions did not
involve, as here, a permanent anti-suit injunction that disposed of all matters pending before the trial court.
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party; it enjoins Petrobras from continuing to pursue the claims it has asserted in the
ICDR Arbitration and therefore implicitly requires Petrobras to take the affirmative
act of dismissing its arbitration proceeding. The Amended Arbitration Injunction,
like a turnover order that grants injunctive relief against a party, is final and
appealable. Petrobras therefore has an adequate remedy by appeal.
Accordingly, we deny Petrobras’s petition for writ of mandamus and motion
for stay. Petrobras may proceed with its appeal in Case No. 14-18-00793-CV.
PER CURIAM
Panel consists of Justices Donovan, Wise, and Jewell.
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