Michael Lee Wyrick A/K/A Mike Wyrick and Gregory Michael Ruhnke A/K/A Greg Ruhnke v. Business Bank of Texas, N. A.

Affirmed as Modified and Opinion filed April 30, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00062-CV
MICHAEL LEE WYRICK A/K/A MIKE WYRICK AND GREGORY
MICHAEL RUHNKE A/K/A GREG RUHNKE, Appellants
V.
BUSINESS BANK OF TEXAS, N.A., Appellee
On Appeal from the 200th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-16-002323
OPINION
Two individual guarantors of a $3 million promissory note appeal the trial
court’s summary judgment enforcing the guaranty in favor of a bank and dismissing
the guarantors’ tort claims. In their first two issues, the note guarantors, appellants
Michael Lee Wyrick and Gregory Michael Ruhnke, contend the trial court erred in
granting summary judgment to the bank, appellee Business Bank of Texas, N.A.,
(the “Bank”), because legally sufficient evidence supports their contract defenses
(fraudulent inducement, negligent misrepresentation, mutual mistake, and equitable
estoppel) and affirmative counterclaims (fraud, tortious interference, negligence,
and gross negligence). We conclude that appellants lack standing to assert some of
their counterclaims and that the summary judgment evidence does not raise a fact
issue as to the remainder of their counterclaims and their contract defenses.
In their third and fourth issues, appellants challenge the trial court’s
permanent anti-suit injunction, which bars appellants and others, including a
company they own, Barquero Energy Services, LLC (“Barquero”), from initiating
or proceeding with any related claims they may have against the Bank in any other
forum. After careful review of the record, we conclude the trial court erred in
granting the anti-suit injunction, and we modify the judgment to dissolve the
injunction. We otherwise affirm the trial court’s judgment as modified.
Background
Read in the light most favorable to appellants,1 the record reveals the
following pertinent background facts. The Bank loaned $3,000,000 to Barquero for
investment in a salt water disposal well (the “Barquero SWD”), and Barquero signed
a promissory note to the Bank in that amount. The note promising the loan’s
repayment specifies as “security for payment” (1) “an Assignment of Leases”
covering the leasehold interest in the Barquero SWD and (2) an assignment of
interest in Barquero stock and three life insurance policies. Wyrick signed the note
as managing member of Barquero. The Bank did not sign the note, though appellants
contend the Bank drafted the note’s terms. The Bank’s representatives, Ed Lette and
Ray Bearden, assured Wyrick and Ruhnke, another Barquero member, that the loan
would be secured by a valid security interest in the Barquero SWD lease. By a
1
See Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
2
separate document signed the same day as the note, the Bank and Barquero agreed
to arbitrate all claims, disputes, and controversies between and among them arising
out of or relating to the loan.
Each of the appellants signed an agreement titled “Unlimited, Unconditional
Guaranty,” which provides in relevant part:
1. Guarantor unconditionally, irrevocably, and absolutely
. . . guarantees to Lender . . . that (a) the principal of and interest on,
and attorneys’ fees provided in, the Note . . . will be promptly paid when
due in accordance with the provisions thereof . . . ; (b) all covenants and
agreements of Borrower contained in the Note, the Assignment, the
Debt, and any other instrument, . . . will be duly and promptly observed
and performed and (c) all additional amounts owing or which hereafter
become owing by Borrower under the terms of the Note, the
Assignment, the Debt, and any other instrument . . . will be promptly
paid when due.
2. The obligations of Guarantor shall be performable without
demand of Lender and shall be unconditional irrespective of the
genuineness, validity, regularity or enforceability of the Note, the
Assignment, or any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or a guarantor, and
Guarantor hereby waives the benefit of all principles or provisions of
law, statutory or otherwise, which are or might be in conflict with the
terms of this Unconditional Guaranty, and agrees that the obligations
of Guarantor shall not be affected by any circumstances, whether or
not referred to in this Unconditional Guaranty, which might
otherwise constitute a legal or equitable discharge of a surety or
guarantor. Specifically, to the extent this Unconditional Guaranty is
governed by the laws of the State of Texas, the Guarantor waives all
rights and remedies accorded by law to guarantors and sureties and
further waives the benefits of any right of discharge under Article 34 of
the Texas Business and Commerce Code[2] and any other rights of
sureties and guarantors thereunder, together with all rights and
2
Former chapter 34 of the Business and Commerce Code has been re-codified as chapter
43 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 43.001-
.005.
3
remedies under Texas Property Code Sections 51.003 to 51.005, as
amended. Without limiting the generality of the foregoing, the
Guarantor hereby waives diligence, presentment, demand of
payment, protest, all notices (whether of nonpayment, intention to
accelerate, acceleration, dishonor, protest or otherwise) with respect to
the note, notice of acceptance of this Unconditional Guaranty and of
the incurring by borrower of any of the obligations hereinbefore
mentioned, all demands whatsoever, and all rights to require Lender
to (a) proceed against the borrower; (b) proceed against or exhaust
any collateral held by Lender to secure the payment of the
indebtedness or (c) pursue any other remedy it may now or
hereafter have against the borrower.
3. Guarantor hereby agrees that, at any time or from time to time,
without notice to Guarantor and without affecting the liability of
Guarantor, . . . any security for the Debt may be modified, exchanged,
surrendered or otherwise dealt with or additional security may be
pledged or mortgaged for the Debt.
(Emphases added).
Appellants acknowledge signing the guaranties but contend the Bank assured
them that it would execute on the collateral, rather than pursue the guaranties, in the
event of Barquero’s default on the note.
Barquero defaulted on the note. However, contrary to what appellants
allegedly were led to believe through the Bank’s assurances, the Bank did not
foreclose on the Barquero SWD but rather sought to enforce the personal guaranties.
Appellants refused to honor their guaranties. According to appellants, the Bank was
unable to foreclose on the collateral due to a problem of its own making: the Bank
failed to secure all necessary leasehold assignments and landowner consent to the
assignments, as contemplated by the note. Further, appellants contend, the Bank
began operating as if it were the owner of the Barquero SWD, which interfered with
appellants’ ability to sell the well for its true value or to attract investors. Appellants
4
claim that the Bank’s actions caused them to lose potential investors and buyers, and
negatively impacted their credibility with vendors.
The Bank sued appellants in Travis County for breach of their personal
guaranties.3 Appellants answered with a general denial and asserted affirmative
defenses of fraudulent inducement and negligent misrepresentation. They later
amended their answers to also plead mutual mistake and equitable estoppel.
Appellants filed counterclaims against the Bank, Lette, and Bearden, alleging fraud,
tortious interference with prospective contracts, negligence, and gross negligence.
Barquero asserted similar cross-claims against the Bank, but Barquero and the Bank
agreed to arbitrate Barquero’s claims pursuant to the arbitration agreement between
them. The trial court signed an agreed order compelling all of Barquero’s claims
against the Bank to arbitration, and severing and abating those claims. Barquero
nonsuited its cross-claims that were subject to the arbitration order.
After the parties agreed to arbitrate Barquero’s claims in Travis County,
Barquero Fund I, LLC (“Barquero Fund”)—an entity owned by Barquero and
ostensibly controlled by appellants—filed suit against the Bank in Dimmit County,
asserting claims similar if not identical to those Barquero had asserted against the
Bank in Travis County. The Bank filed a motion for sanctions and for an anti-suit
injunction in Travis County when it discovered Barquero Fund’s lawsuit in Dimmit
County.
Meanwhile, in the Travis County lawsuit, the Bank, Lette, and Bearden sought
summary judgment against appellants in two similar motions on both traditional and
3
The Supreme Court of Texas transferred this case to our court from the Third Court of
Appeals. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court of
Appeals precedent and that of this court on any relevant issue, and the parties cite none. See Tex.
R. App. P. 41.3.
5
no-evidence grounds.4 In the traditional portion of the motions, the movants asserted
that: (1) appellants are liable for breach of their guaranties; (2) appellants’
affirmative defenses of fraudulent inducement and negligent misrepresentation fail
for lack of justifiable reliance; (3) the defense of mutual mistake does not void the
guaranties because appellants assumed the risk of any failure of collateral;5
(4) appellants lack standing to bring counterclaims because those claims belong to
Barquero; and (5) appellants’ counterclaims fail because the damages are
speculative. In the no-evidence portion of the motions, the movants argued that
appellants had no evidence of any required elements of their fraud, tortious
interference, negligence, or gross negligence counterclaims.
Appellants filed responses to each summary judgment motion, asserting that
they were not liable on the guaranties due to the Bank’s purported misrepresentations
concerning the loan collateral—i.e., that the Bank had or would obtain a valid
security interest in the Barquero SWD leasehold. Appellants also asserted that they
had standing to assert their counterclaims, that their damages were based on
reasonable certainty, and that they had substantial evidence supporting their fraud,
tortious interference, and negligence-based claims.
The trial court granted partial summary judgment in favor of the Bank on
Ruhnke’s guaranty and denied Ruhnke’s motion to reconsider. The court later
granted summary judgment in the Bank’s favor on Wyrick’s guaranty and signed a
4
According to the Bank, “The motions against the two guarantors are virtually identical as
they are based on the same guaranties and the same law. They differ only in that Wyrick made
certain admissions that Ruhnke did not.”
5
The Bank asserted this ground in its motion against Wyrick only because, at the time the
Bank filed its motion against Ruhnke, appellants had not yet pleaded mutual mistake. However,
Ruhnke later asserted a mutual mistake defense and the parties briefed it in the trial court. On
appeal, the Bank does not argue that Ruhnke failed to raise mutual mistake, and we presume the
issue is properly before us as to both appellants.
6
final judgment, which incorporated the partial summary judgment against Ruhnke.
The trial court awarded the Bank damages of $3 million plus interest, as well as
attorney’s fees and costs (including conditional appellate fees). The trial court also
dismissed with prejudice appellants’ counterclaims against the Bank and granted
summary judgment in favor of Lette and Bearden.6
The day before it signed the judgment, the trial court granted the Bank’s
motion for a permanent anti-suit injunction, the terms of which the court expressly
incorporated into the judgment. The anti-suit injunction barred appellants,
Barquero, Barquero Fund, and all those acting in concert with them from initiating
or proceeding with any related claims against the Bank in Dimmit County or any
other county except Travis County. We discuss the injunction’s terms in more detail
below in connection with appellants’ third and fourth issues.
This appeal timely followed.
The Guaranties
In their first two issues, appellants challenge the trial court’s summary
judgments in the Bank’s favor.
A. Standard of Review
We review de novo a trial court’s decision to grant summary judgment.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per
curiam). We consider the evidence in the light most favorable to the non-movant,
indulging reasonable inferences and resolving doubts in the non-movant’s favor.
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We credit evidence
favorable to the non-movant if reasonable fact finders could, and we disregard
6
Appellants do not challenge the judgment in favor of Lette and Bearden.
7
contrary evidence unless reasonable fact finders could not. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
In a no-evidence motion for summary judgment, the movant asserts that no
evidence exists of one or more essential elements of the claims for which the non-
movant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Timpte Indus.,
Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The non-movant then must present
more than a scintilla of probative evidence that raises a genuine issue of material
fact supporting each element contested in the motion. See Forbes Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Wal-Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502, 506 & n.4 (Tex. 2002). More than a scintilla exists when
the evidence would enable reasonable and fair-minded people to reach different
conclusions. Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014); see also
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). The non-
movant “is ‘not required to marshal its proof; its response need only point out
evidence that raises a fact issue on the challenged elements.’” Hamilton v. Wilson,
249 S.W.3d 425, 426 (Tex. 2008) (per curiam) (quoting Tex. R. Civ. P. 166a(i) cmt.-
1997). Unless the non-movant raises a genuine issue of material fact, the trial court
must grant summary judgment. Tex. R. Civ. P. 166a(i). But if the non-movant
satisfies its burden of production on the no-evidence motion, then the court cannot
properly grant summary judgment. See Smith v. O’Donnell, 288 S.W.3d 417, 424
(Tex. 2009).
A traditional summary judgment movant must show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Tex. R.
Civ. P. 166a(c); Fielding, 289 S.W.3d at 848. When a plaintiff moves for summary
judgment on its cause of action, it must conclusively prove all essential elements of
its claim as a matter of law. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.—
8
Houston [14th Dist.] 2015, no pet.); Cullins v. Foster, 171 S.W.3d 521, 530 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). Evidence is conclusive only if
reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005); see also Appleton v. Appleton, 76 S.W.3d 78, 83 (Tex.
App.—Houston [14th Dist.] 2002, no pet.). The non-movant has no burden to
respond to a motion for summary judgment unless the movant conclusively
establishes each element of its cause of action as a matter of law. Rhone-Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999).
If the movant produces evidence conclusively establishing its right to
summary judgment, then the burden of proof shifts to the non-movant to present
grounds for avoiding summary judgment, Home Loan Corp. v. JPMorgan Chase
Bank, N.A., 312 S.W.3d 199, 205 (Tex. App.—Houston [14th Dist.] 2010, no pet.),
including evidence sufficient to raise a genuine issue of material fact, if the non-
movant so contends. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995). If the non-movant relies on affirmative defenses to defeat summary judgment
on the movant’s cause of action, the non-movant must do more than merely plead
the affirmative defense. Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex.
App.—Houston [1st Dist.] 2014, no pet.). The non-movant must produce sufficient
evidence to conclusively prove or at least raise a material issue of fact as to each
element of the affirmative defense. Leonard, 551 S.W.3d at 909-10; see Wiggins v.
Overstreet, 962 S.W.2d 198, 200 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied).
In granting summary judgment to the Bank, the trial court necessarily
construed the guaranties. Courts construe unambiguous guaranty agreements as any
other contract, i.e., by determining the true intentions of the parties as expressed in
the contract. See Moayedi v. Interstate 35/Chisam Road, L.P., 438 S.W.3d 1, 6 (Tex.
9
2014). We examine and consider the entire writing to determine the parties’ intent.
See id. We review de novo a trial court’s construction of an unambiguous contract.
Id. No party contends the guaranties are ambiguous.
B. Appellants’ Affirmative Defenses
In their first issue, appellants contend the trial court erred in granting summary
judgment in the Bank’s favor because they raised a fact issue on their affirmative
defenses of fraudulent inducement, negligent misrepresentation, mutual mistake,
and equitable estoppel. Appellants do not argue that the Bank failed to establish
conclusively all elements of its breach of contract claim, and they do not otherwise
contest their liability under the guaranties in the event their affirmative defenses fail
as a matter of law. We agree that the Bank met its initial summary judgment burden.
Accordingly, appellants bore the burden to bring forward sufficient summary
judgment evidence to raise a fact issue on each element of their affirmative defenses.
Leonard, 551 S.W.3d at 909-10. As we explain, appellants either could not or did
not meet this burden as to each affirmative defense.
1. Fraudulent Inducement and Negligent Misrepresentation Defenses
In their live pleading, appellants alleged that the Bank represented to them
that it would obtain a valid security interest in the Barquero SWD as collateral for
Barquero’s note, but that the Bank failed to do so. In support of this defense,
appellants alleged that the Bank’s misrepresentation about the collateral was
negligent or fraudulent and induced them into signing their guaranties. We begin
with the fraudulent inducement defense.
10
To prevent the guaranties’ enforcement based on the Bank’s alleged
fraudulent inducement,7 appellants had to show among other things that they
justifiably relied on the Bank’s representations.8 JPMorgan Chase Bank, N.A. v.
Orca Assets, G.P., LLC, 546 S.W.3d 648, 653-54 (Tex. 2018); Simulis, L.L.C. v.
Gen. Elec. Cap. Corp., 439 S.W.3d 571, 577 (Tex. App.—Houston [14th Dist.]
2014, no pet.); see also Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd., 566 S.W.3d
801, 819-20 (Tex. App.—Houston [14th Dist.] 2018, no pet. h.) (identifying reliance
as element of fraudulent inducement affirmative defense). Although justifiable
reliance usually presents a fact question, it may be negated as a matter of law when
circumstances show that the reliance cannot be justified. See JPMorgan Chase, 546
S.W.3d at 654; Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 424-25
(Tex. 2015) (per curiam) (“[A]s Texas courts have repeatedly held, a party to a
written contract cannot justifiably rely on oral misrepresentations regarding the
contract’s unambiguous terms.”) (citing Thigpen v. Locke, 363 S.W.2d 247, 251
(Tex. 1962)); DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d
854, 858-59 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (reliance on oral
7
“A contract is subject to avoidance on the ground of fraudulent inducement.” Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex. 2011); see also
Tex. R. Civ. P. 94 (listing fraud as an affirmative defense).
8
To prevail on a fraudulent-inducement defense, a party must establish the elements of
fraud “as they relate to an agreement between the parties.” See Haase v. Glazner, 62 S.W.3d 795,
798-99 (Tex. 2001); Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd., 566 S.W.3d 801, 819 (Tex.
App.—Houston [14th Dist.] 2018, no pet. h.) (discussing fraudulent inducement as an affirmative
defense). The elements of fraud are (1) a false material representation, (2) made with knowledge
of its falsity or made recklessly without knowledge of its truth, and (3) intending that the
misrepresentation would be acted on by the other party, where (4) the other party acts in justifiable
reliance on the misrepresentation, and (5) thereby suffers injury. See, e.g., JPMorgan Chase Bank,
N.A. v. Orca Assets, G.P., LLC, 546 S.W.3d 648, 653 (Tex. 2018); Formosa Plastics Corp. USA
v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47-48 (Tex. 1998); Tex. Black Iron, 566
S.W.3d at 819.
11
representation that is directly contradicted by express terms of written agreement not
justified as a matter of law).
Though as a traditional summary judgment movant on its breach-of-guaranty
claim the Bank had no burden to negate appellants’ affirmative defenses,9 the Bank’s
motion challenged the element of justifiable reliance. The Bank argued pre-
emptively that the guaranties’ written terms contradict appellants’ purported reliance
on the Bank’s alleged oral misrepresentation that it had perfected, or would perfect,
its security interest in the Barquero SWD. Thus, the Bank contends, appellants’
fraudulent inducement defense fails as a matter of law on the justifiable reliance
element. We agree.
Appellants’ guaranties state explicitly that appellants’ obligations would be
“unconditional irrespective of the genuineness, validity, regularity[,] or
enforceability” of the loan or assignment of the Barquero SWD. By signing the
guaranties, appellants waived “the benefit of all principles or provisions of law,
statutory or otherwise” that contradict the terms of the guaranties and agreed that
their obligations would not be subject to any legal or equitable discharges.
Appellants further agreed that “any security for the Debt may be modified,
exchanged, surrendered[,] or otherwise dealt with,” and that in any event the Bank
was not required to proceed first against the borrower or exhaust any collateral
before enforcing the guaranties. Because the guaranties’ express terms make clear
that the Bank could have abandoned or “surrendered” the collateral altogether,
whether the Bank actually secured the collateral or whether the collateral is actually
available is immaterial. If, for example, the Bank secured the assignments of leases
and then released the collateral, appellants concede they would be liable on their
9
See, e.g., Leonard, 551 S.W.3d at 909-10.
12
guaranties. The guaranties’ language places the risk for any failure of collateral
squarely on appellants, not the Bank. Assuming the Bank’s representatives made
the statements appellants attribute to them, appellants could not have relied
justifiably on those statements as a matter of law because they contradict the
unambiguous text of the guaranties that they admittedly read and signed. See, e.g.,
JPMorgan Chase Bank, 546 S.W.3d at 659-60; Nat’l Prop. Holdings, 453 S.W.3d
at 424-26; DRC Parts & Accessories, 112 S.W.3d at 858-59.
Wyrick’s argument on reliance fails for an additional reason. A party may not
rely justifiably on a fraudulent misrepresentation when “he knows that it is false or
its falsity is obvious to him.” Triesch v. Triesch, No. 03-15-00102-CV, 2016 WL
1039035, at *2 (Tex. App.—Austin Mar. 8, 2016, no pet.) (mem. op.). This rule
applies to Wyrick because at the time he signed his guaranty, he knew that the Bank
did not have a valid assignment of the lease: “I know that for a fact because the
[Bank representatives] told me they were going to have to go to Mr. B[]aty to get
that. And I arranged for that to happen.” Thus, Wyrick could not have relied
justifiably on the Bank’s alleged misrepresentations about the collateral to avoid his
guaranty obligations.
Appellants assert that the guaranties’ “unconditional” language is “overly
expansive and insufficient to shift the risk that the Bank would fail to secure the
collateral,” relying on the Dallas Court of Appeals’ opinion in Orca Assets, G.P.,
L.L.C. v. JPMorgan Chase Bank, N.A., 542 S.W.3d 591, 603-06 (Tex. App.—Dallas
2015), reversed by JPMorgan Chase Bank, 546 S.W.3d at 650.10 But the Supreme
Court of Texas has rejected as “too strict to be workable” the requirement that “both
the contractual clause and the extra-contractual representation it supposedly
10
Appellants also rely on Italian Cowboy, 341 S.W.3d 323, but, “because this is a direct-
contradiction case and not a waiver case, it falls outside Italian Cowboy’s purview.” JPMorgan
Chase, 546 S.W.3d at 654 n.1.
13
contradicts must explicitly speak to the same subject matter with sufficient
specificity to correct and contradict the prior oral representation.” See JPMorgan
Chase, 546 S.W.3d at 659. This argument does not support reversal.
Appellants contend further that, in addition to making the oral representations
regarding the collateral, the Bank also falsely represented in the promissory note
itself that “the Loan was secured by the Assignment of Leases.” This argument fails
for at least two reasons: (1) the note does not clearly state that the contemplated
assignment of leases had been secured; and (2) the Bank did not sign the note.
Appellants cite no other evidence or authority establishing that the terms of a
document the Bank did not sign may be considered as the Bank’s representations.
Negligent misrepresentation, to the extent it is available as an affirmative
defense in these circumstances,11 shares with fraud the common element of
justifiable reliance. See, e.g., JPMorgan Chase Bank, 546 S.W.3d at 653-54;
Simulis, 439 S.W.3d at 577 (“Reliance is an element of Simulis’s claims for
fraudulent misrepresentation, fraud by nondisclosure, and negligent
misrepresentation . . . .”). Accordingly, appellants’ failure to present evidence of
justifiable reliance negates this defense as well.
We conclude that appellants failed in their burden to bring forward sufficient
summary judgment evidence to raise a fact issue on the justifiable reliance element
of their fraudulent inducement and negligent misrepresentation affirmative defenses.
11
We presume without deciding that a negligent-misrepresentation theory may be asserted
as an affirmative defense to defeat an otherwise enforceable contract, though some courts have
stated otherwise. See Chavez v. Kansas City S. Ry. Co., 518 S.W.3d 33, 48-49 (Tex. App.—San
Antonio 2015) (explaining that “there is no affirmative defense of negligent misrepresentation in
avoidance of a contract”), rev’d on other grounds by 520 S.W.3d 898 (Tex. 2017); Soto v. S. Life
& Health Ins. Co., 776 S.W.2d 752, 756 (Tex. App.—Corpus Christi 1989, no writ) (“[F]alse
statements which are made negligently, carelessly or by mistake are not sufficient to avoid a life
insurance policy where the defense is based upon the insured’s misrepresentation of a material
fact.”).
14
Thus, the trial court did not err in rejecting those defenses and granting summary
judgment in the Bank’s favor. See Leonard, 551 S.W.3d at 909-10.
2. Mutual Mistake Defense
Appellants pleaded that the guaranties are unenforceable due to mutual
mistake. “A mutual mistake of fact occurs when the parties to an agreement have a
common intention, but the written agreement does not accurately reflect that
intention due to a mutual mistake.” N.Y. Party Shuttle, LLC v. Bilello, 414 S.W.3d
206, 212 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The elements of
mutual mistake are: (1) a mistake of fact; (2) held mutually by the parties; (3) which
materially affects the agreed-on exchange. Id.; City of The Colony v. N. Tex. Mun.
Water Dist., 272 S.W.3d 699, 735 (Tex. App.—Fort Worth 2008, pet. dism’d).
According to appellants’ answer, the alleged mutual mistake was that “neither
Ruhnke nor Wyrick nor the Bank was aware that there was no collateral.” The Bank
challenged this defense in its summary judgment motion, asserting that appellants
assumed the risk of any mistake under the guaranties’ terms. A “person who
intentionally assumes the risk of unknown facts cannot escape a bargain by alleging
mistake or misunderstanding.” Geodyne Energy Income Prod. P’ship I-E v. Newton
Corp., 161 S.W.3d 482, 491 (Tex. 2005). In Geodyne, the Supreme Court of Texas
rejected a mutual-mistake defense based on section 154 of the Restatement, which
provides that a party bears the risk of a mistake when the risk of the mistake is
allocated to that party by agreement. See id. (citing Restatement (Second) of
Contracts § 154 (1981)); Berry v. Encore Bank, No. 01-14-00246-CV, 2015 WL
3485970, at *7-8 (Tex. App.—Houston [1st Dist.] June 2, 2015, pet. denied) (mem.
op.).
Here, appellants assumed the risk that the Bank’s acts or omissions would
leave the Bank without collateral, or that the Bank could enforce the guaranties
15
without first proceeding against any secured collateral, because all parties agreed
appellants would be liable on the guaranties “irrespective of the genuineness,
validity, regularity[,] or enforceability of the Note, the Assignment, or any other
circumstance which might otherwise constitute a legal or equitable discharge.” See
Restatement (Second) of Contracts § 154(a) (explaining that a party bears the risk of
a mistake when “the risk is allocated to him by agreement of the parties”); Berry,
2015 WL 3485970, at *7-8 (quoting Restatement (Second) of Contracts § 154 cmt.
b; “Just as a party may agree to perform in spite of impracticability or frustration
that would otherwise justify his non-performance, he may also agree, by appropriate
language or other manifestations, to perform in spite of mistake that would otherwise
justify his avoidance.”). Appellants further agreed that “. . . at any time or from time
to time, without notice to Guarantor and without affecting the liability of Guarantor,
. . . any security for the Debt may be modified, exchanged, surrendered[,] or
otherwise dealt with or additional security may be pledged or mortgaged for the
Debt.” (Emphasis added). If it is true that appellants and the Bank mistakenly
presumed the existence and enforceability of collateral, appellants expressly
assumed the risk that they would have to perform their guaranties even if the
collateral was unperfected, unenforceable, or, for that matter, surrendered.
Thus, appellants failed in their burden to prove a mistake of fact held mutually
by the parties and thus did not raise a fact issue on their mutual mistake affirmative
defense. The trial court did not err in granting the Bank’s motion as to this defense.
See Geodyne, 161 S.W.3d at 491; Berry, 2015 WL 3485970, at *8.
3. Equitable Estoppel Defense
In response to the Bank’s summary judgment motion, appellants made no
argument and presented no evidence that their equitable estoppel affirmative defense
precluded summary judgment in the Bank’s favor. See Leonard, 551 S.W.3d at 909-
16
10. Therefore, we do not consider this affirmative defense as grounds for reversing
the summary judgment. See, e.g., Tex. Black Iron, 566 S.W.3d at 821 (refusing to
consider estoppel affirmative defense when non-movant did not raise it in summary
judgment response); see also Tex. R. Civ. P. 166a(c) (“Issues not expressly
presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.”).
* * *
For these reasons, we conclude that the trial court did not err in granting
summary judgment in the Bank’s favor by rejecting appellants’ affirmative defenses.
We overrule appellants’ first issue.
C. Appellants’ Counterclaims
In issue two, appellants challenge the summary judgment in the Bank’s favor
on their counterclaims of fraud/fraud by nondisclosure, tortious interference with
prospective contracts, negligence, and gross negligence. The factual bases for
appellants’ counterclaims, as pleaded, revolve around the Bank’s alleged conduct
occurring after the loan’s default. According to appellants’ first amended
counterclaim, the Bank knew that it did not have an enforceable lien against the
Barquero SWD because it had no assignments or agreements with the owners.
Largely for this reason, appellants allege, the Bank abandoned efforts to foreclose
on the Barquero SWD for fear of conducting a wrongful foreclosure and increased
its efforts to sell the SWD so it could be repaid. To this end, appellants claim, the
Bank contacted unnamed investors, potential purchasers, and vendors, with the
message that the Bank was going to foreclose, that Barquero, Wyrick, and Ruhnke
would lose their interest in the Barquero SWD, and that all the negotiations should
be with the Bank. These alleged representations by the Bank form the basis of
appellants’ counterclaims for fraud and fraud by nondisclosure, as well as tortious
17
interference with prospective contracts, and allegedly injured the Barquero SWD’s
value.
The Bank sought a no-evidence summary judgment as to each counterclaim.
The Bank identified each element of appellants’ counterclaims and argued that
appellants lacked evidence to support all elements. See Tex. R. Civ. P. 166a(i). We
must sustain a no-evidence point when (a) there is a complete absence of evidence
of a vital fact; (b) we are barred by rules of law or evidence from giving weight to
the only evidence offered to prove a vital fact; (c) the evidence offered to prove a
vital fact is no more than a scintilla; or (d) the evidence conclusively establishes the
opposite of a vital fact. City of Keller, 168 S.W.3d at 816; King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
The Bank also moved for traditional summary judgment as to each
counterclaim, arguing that (1) appellants lack standing to assert them and
(2) appellants’ alleged damages are too speculative.
The trial court’s judgment does not specify the grounds on which it ruled for
the Bank. The Bank’s challenge to appellants’ standing invokes subject-matter
jurisdiction, which is essential to the court’s authority. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Because standing is never presumed,
we address that issue first and apply de novo review. See Sneed v. Webre, 465
S.W.3d 169, 180 (Tex. 2015); Tex. Ass’n of Bus., 852 S.W.2d at 444-45.
1. Standing
Standing is a constitutional prerequisite to maintaining suit in either federal
or state court. Sneed, 465 S.W.3d at 179-80. A court has no jurisdiction over a claim
made by a party who lacks standing to assert it. Gribble v. Layton, 389 S.W.3d 882,
886 (Tex. 2012). Under Texas law, a party has standing if the party has suffered a
particular injury and there exists a real controversy between the parties that will be
18
determined by the judicial declaration sought. Brown v. Todd, 53 S.W.3d 297, 305
(Tex. 2011); Parham Family Ltd. P’ship v. Morgan, 434 S.W.3d 774, 785 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Appellants bring the counterclaims at
issue in their individual capacities. To establish standing, appellants must
affirmatively show, through pleadings and other evidence relevant to the
jurisdictional inquiry, a distinct interest in their counterclaims such that the Bank’s
alleged actions have caused them some particular injury. See Jessen v. Duvall, No.
14-16-00869-CV, 2018 WL 1004659, at *3 (Tex. App.—Houston [14th Dist.] Feb.
2, 2018, no pet.) (mem. op.) (citing Cty. of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002); Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)). We perform a claim-
by-claim analysis to ensure that a particular plaintiff has standing to bring each of
the particular claims asserted. Heckman v. Williamson Cty., 369 S.W.3d 137, 153
(Tex. 2012).
We first address appellants’ standing to assert their counterclaims for fraud,
fraud by nondisclosure, negligence, and gross negligence. In their summary
judgment responses, appellants argued that these claims were supported by the
Bank’s wrongful conduct related to procuring the personal guaranties. For example,
in support of their negligence and gross negligence claims, appellants argued that
the Bank owed them an “independent duty” not to fraudulently procure the
guaranties. Similarly, appellants argued as to their fraud and fraud by nondisclosure
claims that the Bank’s misconduct induced them into signing the guaranties. They
did not argue in their summary judgment responses that these claims were supported
by the Bank’s post-default conduct.12 These counterclaims and alleged injuries are
12
Appellants’ summary judgment arguments as to these counterclaims differed materially
from their pleading in support of those claims, which were based on the Bank’s post-default
conduct. The record does not reveal any objection by the Bank that appellants’ summary judgment
arguments exceeded the scope of their pleading.
19
grounded on appellants’ commitment to personally guarantee the loan to Barquero.
Thus, they have a sufficient personal stake in that controversy and have standing.
See Jessen, 2018 WL 1004659, at *3; Jerry L. Starkey, TBDL, L.P. v. Graves, 448
S.W.3d 88, 98 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, despite
appellants’ standing, we conclude for other reasons that summary judgment against
appellants on these counterclaims was not reversible error, as explained below.
Our conclusion on standing is different as to appellants’ counterclaim for
tortious interference with prospective contracts. As to this claim, appellants’
summary judgment response focused on the Bank’s post-default conduct, not its
conduct in procuring the guaranties. Appellants seek redress for injury to the
Barquero SWD’s value and the Bank’s alleged attempts to interfere with Barquero’s
potential contracts with third parties after Barquero defaulted on the loan.
Appellants undisputedly are the sole managing members of Barquero, a limited
liability company. Generally, shareholders have no independent right to bring an
action for injuries suffered by the corporation even though they may sustain losses
indirectly through their ownership interests. See Siddiqui v. Fancy Bites, LLC, 504
S.W.3d 349, 360 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); Haut v.
Green Café Mgmt., Inc., 376 S.W.3d 171, 177 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (citing Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990),
superseded by statute on other grounds by Sneed, 465 S.W.3d at 185); Emmett
Props., Inc. v. Halliburton Energy Servs., Inc., 167 S.W.3d 365, 371 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (holding shareholders had no right to bring
suit for damages to corporation in their own names). It “is the nature of the wrong,
whether directed against the corporation only or against the shareholder personally,
not the existence of injury, which determines who may sue.” Haut, 376 S.W.3d at
177.
20
Appellants do not own the Barquero SWD; Barquero owns it. The alleged
damage to the well’s value is Barquero’s injury. Seeking damages for that injury,
Barquero asserted the same claims appellants do, but the trial court ordered
Barquero’s claims to arbitration. Appellants lack standing to assert those claims in
Barquero’s stead. See, e.g., Siddiqui, 504 S.W.3d at 360; Barrera v. Cherer, No. 04-
13-00612-CV, 2014 WL 1713522, at *2 (Tex. App.—San Antonio Apr. 30, 2014,
no pet.) (mem. op.) (member of limited liability company lacks standing to assert
claims individually when cause of action belongs to company); Haut, 376 S.W.3d at
177; Emmett Props., Inc., 167 S.W.3d at 371; see also Wingate, 795 S.W.2d at 719
(“A corporate stockholder cannot recover damages personally for a wrong done
solely to the corporation, even though he may be injured by that wrong.”). Because
appellants lack standing to sue for Barquero’s damages, the trial court did not err in
granting summary judgment on appellants’ counterclaim for tortious interference
with prospective contracts.
2. Fraud, Fraud by Nondisclosure, Negligence, and Gross Negligence
Counterclaims
The Bank also sought a no-evidence summary judgment on appellants’
counterclaims for fraud, fraud by nondisclosure, negligence, and gross negligence.
On appeal, appellants argue that the Bank’s misconduct after default supplies the
necessary evidence to support each element of those counterclaims. They cite
evidence that the Bank misrepresented the enforceability of the collateral after the
loan defaulted and that the Bank wrongfully attempted to sell the Barquero SWD.
These arguments, however, do not align with appellants’ contentions advanced in
their summary judgment responses as to these counterclaims. As mentioned,
appellants opposed no-evidence summary judgment as to these counterclaims based
on the Bank’s alleged misconduct in procuring the personal guaranties in the first
place. Appellants’ arguments on appeal and their arguments in the trial court are
21
grounded on substantively different alleged misconduct occurring at different times.
Even if we assumed that appellants’ appellate contentions had merit, they could not
support a reversal because appellants did not expressly present them in their
summary judgment responses. See Tex. R. Civ. P. 166a(c) (“Issues not expressly
presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.”); Unifund CCR Partners v. Weaver,
262 S.W.3d 796, 797 (Tex. 2008) (per curiam) (“A party who fails to expressly
present to the trial court any written response in opposition to a motion for summary
judgment waives the right to raise any arguments or issues post-judgment.”). Thus,
appellants have not shown that the trial court erred in granting no-evidence summary
judgment on appellants’ fraud, fraud by nondisclosure, negligence, and gross
negligence counterclaims.
* * *
In sum, appellants have not demonstrated that the trial court erred in granting
summary judgment in the Bank’s favor on their counterclaims. We overrule
appellants’ second issue.
The Anti-suit Injunction
In their third issue, appellants contend the trial court erred by granting the
Bank a permanent anti-suit injunction. Appellants challenge the injunction on
several independent grounds: (1) the Bank failed to comply with procedural
prerequisites for obtaining injunctive relief; (2) the Bank did not establish a factual
or legal basis for permanent anti-suit injunctive relief, citing Golden Rule Ins. Co. v.
Harper, 925 S.W.2d 649 (Tex. 1996); and (3) the Bank did not first seek alternative
remedies that would have adequately served the same purpose as the extraordinary
relief of an anti-suit injunction.
22
A. Background Pertinent to the Anti-Suit Injunction
As part of the loan documents, Barquero signed an arbitration agreement with
the Bank. The arbitration agreement required Barquero and the Bank to “submit to
binding arbitration all claims, disputes and controversies between or among them,
whether in tort, contract or otherwise (and their respective employees, officers,
directors, attorneys, and other agents) arising out of or relating to in any way . . .
each and every debt, liability[,] and obligation of every type and description which
[Barquero] may now or at any time hereafter owe to the Bank . . . or . . . any loan or
security documents, and any loan’s negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination. . . .” The agreement provided for
arbitration to occur in Austin, Texas, which is in Travis County.
Barquero first inserted itself into this suit by filing cross-claims against the
Bank, Lette, and Bearden for fraud, tortious interference, negligence, and gross
negligence. The Bank filed a motion to compel Barquero’s cross-claims to
arbitration pursuant to the arbitration agreement. The trial court signed an agreed
order compelling Barquero and the Bank to arbitrate Barquero’s cross-claims in
Travis County, severing Barquero’s cross-claims into a separate lawsuit, and abating
the severed lawsuit.
Thereafter, Barquero Fund, an LLC with Barquero as its sole managing
member, filed suit in Dimmit County against the Bank for fraud, tortious
interference, negligence, and gross negligence. A review of the relevant pleadings
reveals that, though the parties to the two suits are not identical,13 the nature of
Barquero Fund’s claims against the Bank in Dimmit County generally mirror those
13
In Travis County, Barquero, Wyrick, and Ruhnke sued the Bank, Lette, and Beardon; in
Dimmit County, Barquero Fund sued the Bank.
23
of Barquero in Travis County. For example, Barquero, Wyrick, and Ruhnke in
Travis County, and Barquero Fund in Dimmit County, all assert nearly identical
factual allegations arising from the Bank’s alleged post-default conduct in that the
Bank purportedly made false statements to third parties that impaired the Barquero
SWD’s value and damaged appellants’ interest therein.
In response to the Dimmit County lawsuit, the Bank filed in Travis County an
unverified motion for sanctions and for an anti-suit injunction. The Bank argued
that an anti-suit injunction was necessary to protect the Travis County district court’s
dominant jurisdiction, to prevent a multiplicity of suits, and to enforce the court’s
order compelling Barquero to arbitrate its claims against the Bank, thereby
furthering Texas’s policy to enforce arbitration agreements. Although the Bank
acknowledged that Barquero Fund was neither a signatory to the arbitration
agreement nor a party to the agreed arbitration order, the Bank asserted that Barquero
Fund nonetheless was bound by the agreement and order because Barquero Fund, as
the owner of the Barquero SWD, benefited from the Bank’s loan.
After a non-evidentiary hearing, the trial court signed an order granting the
anti-suit injunction. The next day, the court signed a “final judgment,” in which the
court granted summary judgment to the Bank, Lette, and Bearden on the merits, and
also incorporated into the judgment the same anti-suit injunction language from the
prior order. The judgment states that appellants and those acting in concert with
them are “enjoined from initiating or proceeding with the Dimmit County suit and
from initiating any further actions, claims[,] or causes of action against [the Bank]
. . . relating to or arising from the claims made the basis of this lawsuit in any other
court, tribunal[,] or forum.”
In support of the permanent anti-suit injunction, the trial court found:
24
1. Defendants Michael Lee Wyrick aka Mike Wyrick and Gregory
Michael Ruhnke aka Greg Ruhnke are the sole managing
members of Barquero Energy Services, LLC. On December 12,
2016, Defendants caused [Barquero] to intervene in this case as
a party to assert claims of fraud, tortious interference and
negligence against [Bank] and its officers, Ed Lette and Ray
Bearden, Individually (“Barquero Energy Counterclaims”).
2. On March 30, 2017, [Barquero] consented to an Agreed Order
Granting Plaintiff’s Motion to Compel Arbitration (“Arbitration
Order”) that was entered by this Court, which severed and abated
the Barquero Energy Counterclaims until further order of the
Court.
3. On May 1, 2017, immediately after the Arbitration Order was
entered, Defendants nonsuited by amendment the Barquero
Energy Counterclaims that were subject to the Arbitration Order
abating those claims.
4. On May 12, 2017, Defendants filed the same Barquero Energy
Counterclaims against the Bank in the name of [Barquero Fund]
in a lawsuit styled 17-04-13145- DCVAJA, Barquero Fund, LLC
v. Business Bank of Texas, N.A., in the 365th Judicial District
Court of Dimmit County, Texas (“Dimmit County Suit”). The
sole managing member of [Barquero Fund] is [Barquero] , which
is an entity controlled solely by the Defendants.
5. [Barquero Fund] was the beneficiary and recipient of the
$3,000,000 loan borrowed by [Barquero]. The Dimmit County
Suit complains of and arises out of the same loan transaction
made the basis of this suit that is subject to the Arbitration
Agreement and Arbitration Order. The Arbitration Agreement
provides for the arbitration in Austin, Travis County, Texas.
6. The Travis County Court has dominant jurisdiction over all
parties and claims joined or that could be joined because: (1) this
action was the first filed lawsuit among the parties and their
affiliates and the claims made the basis of the Dimmit County
Suit could have been brought in this Court; (2) the claims in the
Dimmit County Suit arise out of the same transaction, occurrence
and facts made the basis of this lawsuit and are inherently related
to this case.
25
7. The Dimmit County Suit is a threat to this Court’s jurisdiction.
An Anti-Suit Injunction in this case will protect against: a) the
threat to this Court’s dominant jurisdiction, b) collateral attack
of this Court’s orders and judgments, c) evasion of important
public policy concerns regarding enforcement of arbitration
agreements, and d) a multiplicity of suits.
Based on the foregoing facts and the totality of circumstances
presented in the record, clear equities favor the entry of an Anti-Suit
Injunction as provided by Golden Rule Ins. Co. v. Harper, 925
S.W.2d 649, 651 (Tex. 1996). This Court also has inherent power
to protect its orders, judgments[,] and dominant jurisdiction with an
anti-suit injunction.
B. Applicable Law
A unique and extraordinary remedy, an anti-suit injunction will issue “only in
very special circumstances.” Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651
(Tex. 1996) (per curiam) (citing Christensen v. Integrity Ins. Co., 719 S.W.2d 161,
163 (Tex. 1986); Gannon v. Payne, 706 S.W.3d 304, 306 (Tex. 1986)); see Gonzalez
v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005). The Supreme Court of
Texas has identified those circumstances as: (1) addressing a threat to a court’s
jurisdiction; (2) preventing the evasion of important public policy; (3) preventing a
multiplicity of suits; and (4) protecting a party from vexatious or harassing litigation.
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 512 (Tex. 2010); Golden Rule, 925
S.W.2d at 651; see also Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416,
433-34 (Tex. App.—Austin 2004, pet. denied). In all events, an anti-suit injunction
is a remedy to be employed “sparingly and carefully” and only in the most
“compelling” circumstances when “clear equity demands” it. See Golden Rule, 925
S.W.2d at 651; Gannon, 706 S.W.2d at 306; Bridas Corp. v. Unocal Corp., 16
S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d w.o.j.). We
26
review a trial court’s anti-suit injunction under an abuse-of-discretion standard.
Gannon, 706 S.W.2d at 305.
We are confronted with a permanent anti-suit injunction that the trial court
included in its judgment. It was not a pre-judgment temporary injunction of the sort
at issue in Golden Rule. Here, the trial court based the injunction on essentially four
grounds and cited Golden Rule. All parties on appeal likewise structure their
arguments around Golden Rule. We, too, will engage the presumption that Golden
Rule applies.14 After considering each justification stated in the judgment, we agree
with appellants that the anti-suit injunction is unsupportable for the reasons the Bank
advanced and the trial court cited.
1. The Dimmit County suit is not a threat to the Travis County district
court’s jurisdiction.
We begin with the court’s finding that the injunction is necessary to protect
against a threat to the Travis County district court’s dominant jurisdiction. “The
general common law rule in Texas is that the court in which suit is first filed acquires
dominant jurisdiction to the exclusion of other coordinate courts.” In re J.B. Hunt
Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding). The dominant
jurisdiction analysis is applicable, however, only when multiple suits are inherently
interrelated and venue is proper in each county. In re Red Dot Bldg. Sys., Inc., 504
S.W.3d 320, 322 (Tex. 2016) (orig. proceeding); In re J.B. Hunt, 492 S.W.3d at 294;
Gonzalez, 159 S.W.3d at 622. The subject matter of multiple lawsuits can inherently
14
The Dallas Court of Appeals has opined that once a lawsuit reaches final judgment,
Golden Rule’s underlying justification—to shield a trial court’s ability to bring to final
adjudication all claims and parties before it—dissipates. See Ortiz v. Legal Concierge, Inc., 263
S.W.3d 385, 391 (Tex. App.—Dallas 2008, pet. denied) (discussing difference in anti-suit
injunctions issued before and after final judgment). We need not explore that subject given the
parties’ joint contention that Golden Rule applies to the anti-suit injunction included in this
judgment.
27
interrelate even when, as here, the parties to each proceeding are not identical. See
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988) (“It is not required
that the exact issues and all the parties be included in the first action before the
second is filed, provided that the claim in the first suit may be amended to bring in
all necessary and proper parties and issues.”); In re Second Street Props LLC, No.
14-16-00390-CV, 2016 WL 7436649, at *3-4 (Tex. App.—Houston [14th Dist.]
Dec. 22, 2016, orig. proceeding) (mem. op.). The parties join issue on whether
Barquero Fund’s claims in Dimmit County are inherently interrelated to Barquero’s
and appellants’ claims in Travis County. We need not decide this point for our
analysis and will presume that the two suits are inherently interrelated and that Travis
County acquired dominant jurisdiction.
We instead agree with appellants that the Dimmit County suit is not a threat
to the Travis County district court’s jurisdiction. As noted, the factual allegations
and claims asserted by Barquero Fund in Dimmit County are essentially identical to
the factual allegations and claims asserted by Barquero and appellants in Travis
County, although the parties differ. While efforts to prosecute the claims in both
venues would no doubt involve overlapping evidence, two suits “present[ing]
identical issues” do not themselves pose an “irreparable miscarriage of justice”
justifying an anti-suit injunction. Golden Rule, 925 S.W.2d at 652. At the time the
Bank moved the Travis County court for an injunction and at the time the Travis
County court signed its judgment containing the injunction, the Dimmit County
court had taken no action purporting to affect the proceedings in Travis County. The
court in the second-filed action (Dimmit County), for example, issued no order
directed at the first-filed action (Travis County) as was the case in Gonzalez15, nor
15
See Gonzalez, 159 S.W.3d at 623. Distinguishing Golden Rule’s facts, the high court in
Gonzalez upheld an anti-suit injunction because, among other reasons, the judge in the second-
28
had the 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 in Travis County, and the Bank
has not shown that a motion to abate in Dimmit County—which the Bank
acknowledged at oral argument is an available remedy—would have provided
inadequate relief.17 See Atkinson v. Arnold, 893 S.W.2d 294, 298 (Tex. App.—
Texarkana 1995, no writ) (explaining that anti-suit injunction was improper
“[a]bsent a showing that peculiar circumstances exist in this case to make the plea
in abatement an inadequate remedy”).
We have stated that: “[a]lthough there are ‘no precise guidelines’ for
reviewing an anti-suit injunction, we will uphold an injunction issued to protect a
court’s dominant jurisdiction where, if the enjoined party were allowed to proceed,
the dominant court would lose its ability to proceed with the case.” Parham Family
Ltd. P’ship, 434 S.W.3d at 790-91. That circumstance is not present here. Nothing
about the Dimmit County proceeding impaired the Travis County court’s ability to
proceed to adjudicate the claims and render judgment, which in fact had occurred
filed action in Hidalgo County purported to order the district clerk in the first-filed action in Harris
County to remove the case from the docket. Id.
16
See Henry v. McMichael, 274 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2008,
pet. denied). Henry affirmed an anti-suit temporary injunction. Though Henry concluded Golden
Rule did not apply to the facts there presented, it noted that, to the extent Golden Rule applied, the
court with dominant jurisdiction issued an injunction only after the judge in the second-filed suit
denied a plea in abatement and set a summary judgment motion for hearing. Id.
17
Filing a plea in abatement in a later-filed action is the general method for drawing a
court’s attention to another court’s possible dominant jurisdiction. In re Puig, 351 S.W.3d 301,
305 (Tex. 2011) (orig. proceeding); see also In re Red Dot Bldg. Sys., 504 S.W.3d at 322; In re
J.B. Hunt, 492 S.W.3d at 294. When dominant jurisdiction applies, the court in the second-filed
action is required to abate that proceeding, and mandamus may issue to compel such relief if the
trial court fails to grant it. See In re Red Dot, 504 S.W.3d at 322; In re J.B. Hunt, 492 S.W.3d at
294.
29
almost simultaneously with the injunction’s issuance. At that point, any need for an
anti-suit injunction to guard the Travis County court’s dominant jurisdiction to
adjudicate the claims before it was diminished. And, with the Travis County court
having rendered judgment on the merits, the Bank potentially was armed with the
additional defenses of issue or claim preclusion that it could have asserted in Dimmit
County. That court is obliged to respect the Travis County court’s earlier judgment.
See Gannon, 706 S.W.2d at 307.18 For this reason, the possibility of inconsistent
judgments does not justify an anti-suit injunction. See id.
Accordingly, the record does not show that “clear equity demands” a
permanent anti-suit injunction to protect the Travis County district court’s dominant
jurisdiction. See Frost Nat’l Bank, 315 S.W.3d at 512; Golden Rule, 925 S.W.2d at
651; Gannon, 706 S.W.2d at 307. We therefore conclude that the trial court abused
its discretion in issuing the injunction on grounds of protecting its dominant
jurisdiction.
2. The injunction does not protect against a multiplicity of suits.
The trial court also found the anti-suit injunction was needed to protect against
a multiplicity of suits. To be sure, the claims Barquero Fund asserted against the
Bank in Dimmit County are based on the same alleged facts as the claims Barquero
asserted against the Bank in Travis County. But those claims were not pending
simultaneously in the two proceedings because Barquero’s Travis County claims
against the Bank were severed, abated, ordered to arbitration, and, according to the
18
“Once a final judgment is reached in one of the actions, the second forum is usually
obliged to respect the prior adjudication under the rules regarding the enforcement of foreign
judgments. Thus, even if both proceedings continue, there should be only one judgment
recognized in both forums.” Id.
30
judgment, nonsuited by Barquero.19 Further, the record does not show a multiplicity
of suits as to Wyrick and Ruhnke because they are not parties to the Dimmit County
suit. At most, this case involves similar claims asserted by different parties in two
different venues.
Even presuming the two proceedings were identical in substance and parties,
a single parallel proceeding is neither a “multiplicity of suits” nor a miscarriage of
justice and does not in itself create a clear equity justifying the extraordinary relief
of an anti-suit injunction. Golden Rule, 925 S.W.2d at 651; AutoNation, Inc. v.
Hatfield, 186 S.W.3d 576, 579 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see
also AVCO Corp. v. Interstate Sw., Ltd., 145 S.W.3d 257, 266 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (stating multiplicity argument typically supports issuance
of anti-suit injunction when party files numerous lawsuits to relitigate issues in
different courts). The permanent anti-suit injunction does not further the interest of
stopping a multiplicity of suits, and we conclude that granting the injunction on that
ground was an abuse of discretion.
3. The injunction does not prevent evasion of important public policy
concerns regarding enforcement of arbitration agreements.
A third ground underlying the anti-suit injunction is to discourage evasion of
the arbitration agreement between Barquero and the Bank and to enforce the trial
court’s arbitration order. The Bank, however, did not show that Barquero Fund’s
claims in Dimmit County violate the arbitration order, which applies only to the
claims Barquero asserted against the Bank. Similarly, appellants’ claims are not
subject to the arbitration order, and appellants are not parties to the arbitration
agreement. Appellants allegedly caused a third party also not subject to the
19
The judgment states that Barquero nonsuited by amendment its claims that were subject
to the arbitration order.
31
arbitration order—Barquero Fund—to file claims in Dimmit County against the
Bank. Whether the arbitration agreement binds Barquero Fund, Wyrick, or Ruhnke
as non-signatories is not before us;20 but the arbitration order clearly does not apply
to their claims. These facts do not demonstrate the arbitration order’s violation. The
Bank notably does not seek to defend this discrete ground for the injunction in its
appellate brief.
We conclude that the trial court abused its discretion in granting a permanent
anti-suit injunction on the ground that it protects against the evasion of important
public policy concerns regarding enforcement of arbitration agreements.
4. The injunction is not supportable on the ground that it protects against
collateral attack on the Travis County court’s judgment.
Finally, the trial court found that the injunction was warranted to protect
against a collateral attack on its judgment.21 Generally, a trial court has jurisdiction
to enjoin other state court proceedings to enforce its judgment. See, e.g., Howell,
143 S.W.3d at 434. That a court has jurisdiction to issue a permanent anti-suit
injunction, however, does not mean it is proper to do so absent special and
compelling circumstances or when the second suit does not interfere directly with
enforcement of the court’s judgment. See Panda Energy Corp. v. Allstate Ins. Co.,
20
In its motion for an anti-suit injunction, the Bank argued that Barquero Fund was bound
to the arbitration agreement between Barquero and the Bank under the direct benefits estoppel
theory. But that is an argument more appropriate for the Dimmit County judge via a motion to
compel Barquero Fund’s claims to arbitration, which, as far as we are aware, has not been filed.
The Travis County district court had no jurisdiction over Barquero Fund so it could not make a
binding determination as to whether Barquero Fund is required to arbitrate under the agreement,
see, e.g., Chesapeake Operating, Inc. v. Denson, 201 S.W.3d 369, 373 (Tex. App.—Amarillo
2006, pet. denied) (trial court lacked jurisdiction to adjudicate potential claims of nonparties), and
it made no finding in that regard.
21
This was not a ground the Bank asserted in its motion for an anti-suit injunction. At the
time the Bank filed the motion, the court had not yet rendered a judgment. The trial court, however,
identified this rationale in the judgment as justification for the permanent anti-suit injunction.
32
91 S.W.3d 29, 34 (Tex. App.—Dallas 2002, pet. granted, judgm’t vacated w.r.m.).
“In cases where new litigation does not directly interfere with the efficacy of a prior
final judgment, the court abuses its discretion by granting injunctive relief
preventing the new litigation.” Id. The Supreme Court of Texas has held that
enjoining other lawsuits is not an appropriate method to enforce a judgment when
the second suit has no effect on the judgment other than seeking to relitigate the
same issues. See, e.g., Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684
(Tex. 1989) (original proceeding seeking writ of prohibition not appropriate to
resolve claim of res judicata); Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d
780, 788 (Tex. 1978) (second suit properly barred only when it relitigates issues and
filing of action or request for a hearing destroys effectiveness of the prior judgment).
Other courts have refused to enjoin new litigation when defenses of issue or claim
preclusion would provide adequate relief. See, e.g., Panda Energy, 91 S.W.3d at 34;
Jones v. McDonald, 880 S.W.2d 260, 263 (Tex. App.—Waco 1994, no writ); Mid
Plains Reeves, Inc. v. Baskin, 793 S.W.2d 286, 288 (Tex. App.—El Paso 1990, no
writ).
The record does not show that the Dimmit County suit interferes directly with
enforcement, or affects the efficacy, of the Travis County judgment. The judgment
is enforceable in Dimmit County and that court is required to respect it. To the extent
the Bank contends the Dimmit County suit creates a risk of inconsistent judgments,
its potential remedy lies in the Dimmit County district court,22 absent evidence that
preclusive defenses are not available or would not provide adequate relief. Cf.
Bridas, 16 S.W.3d at 892 (evidence existed showing that res judicata defense may
not be available or provide adequate relief in foreign jurisdiction of Afghanistan).
The Bank has not attempted to assert the Travis County judgment’s preclusive effect
22
See Panda Energy, 91 S.W.3d at 36.
33
in the Dimmit County suit, and the trial court made no findings that such potential
defensive measures would be unavailable or ineffective. In addition to potential
preclusive defenses, the Bank still has the option to file a motion to compel Barquero
Fund’s claims in Dimmit County to arbitration.
On appeal, the Bank argues that the court’s power to enforce its judgments is
inherent in its jurisdiction and a court may employ suitable methods, such as an anti-
suit injunction, to enforce its jurisdiction. The Bank cites Rapid Settlements, Ltd. v.
Symetra Life Insurance Co., 234 S.W.3d 788, 796 (Tex. App.—Tyler 2007, no pet.)
(“The trial court possessed the inherent power to enjoin another proceeding whose
prosecution would obstruct or interfere with the proper enforcement of its
judgment.”); Bridas Corp., 16 S.W.3d at 892-93 (affirming anti-suit injunction when
proof clearly showed intent to disregard the jurisdiction of the court and circumvent
its final judgment); and Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 387 (Tex.
App.—Beaumont 2004, pet. denied) (anti-suit injunction appropriate to prevent re-
litigation of issues in foreign jurisdiction subject to final judgment and preclusive
res judicata effect of judgment). Rapid Settlements, Bridas, and Sanders contrast
with our facts and do not support the present injunction. In those cases, courts
enjoined other proceedings whose prosecution directly obstructed or interfered with
the proper enforcement of judgment, see Rapid Settlements, 234 S.W.3d at 796, or
evidence showed that res judicata may not be available in a foreign jurisdiction, see
Bridas, 16 S.W.3d at 892, or the anti-suit injunction was appropriate to protect a
class action settlement from attack in other jurisdictions, see Sanders, 127 S.W.3d
at 387.
The facts in today’s case do not present the requisite “very special
circumstances” warranting an anti-suit injunction. See Gannon, 706 S.W.3d at 306.
Were courts to approve permanent anti-suit injunctions merely as general judgment
34
enforcement mechanisms when compelling and clearly equitable situations do not
demand them, they risk becoming a more commonplace addition to judgments where
they are not truly needed. Traditional mechanisms are sufficient to enforce final
judgments. We conclude that the trial court abused its discretion in granting a
permanent anti-suit injunction on the ground that it protects against collateral attack
on the Travis County court’s judgment.
* * *
We sustain appellants’ third issue. Due to our disposition, we need not reach
appellants’ argument that the injunction fails for lack of compliance with non-
jurisdictional procedural requirements. Likewise, we need not address appellants’
fourth issue, in which they seek reformation of the injunction’s language.
Conclusion
We overrule appellants’ first two issues challenging the summary judgment
on their personal guaranties. We thus affirm that portion of the trial court’s
judgment. We sustain appellants’ third issue and hold that the trial court’s
permanent anti-suit injunction constitutes an abuse of discretion. We modify the
judgment to dissolve the anti-suit injunction and delete those portions of the
judgment. We affirm the judgment as modified.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jewell.
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