Saturday, August 8, 2009

Bill of Review Denied where petitioners could have brought conventional appeal, but didn't


QUESTION PRESENTED:
Does the taxpayers' failure to pursue a direct appeal from the judgment preclude the setting aside of the judgment through an equitable bill of review?

ANSWER BY THE COURT OF APPEALS: Yes, taxpayers should have filed notice of appeal, and pursued direct attack on the judgment in the tax suit, after their motion for new trial was overruled.

FROM THE OPINION IN LANGSTON V. CITY OF HOUSTON:

Under their first issue, the Langstons argue that the summary-judgment evidence raises a genuine issue of material fact as to each of the essential elements that the Langstons needed to prove to obtain relief under an equitable bill of review. The Langstons were served with process in the property-tax collection suit. They had notice of the trial setting. They were aware of the trial court's rendition of the Judgment. The Langstons timely filed a motion for new trial; however, they did not pursue a direct appeal of the Judgment.

Though the Langstons allege that an opposing attorney made a fraudulent representation that prevented them from attending the trial in the tax-collection suit, the Langstons do not allege that they were prevented from pursuing a direct appeal from the Judgment by any fraud, accident, or wrongful act of the Taxing Authorities.

Under these circumstances, the requirement that the Langstons be free from fault or negligence is negated as a matter of law, and the trial court properly granted summary judgment in favor of the Taxing Authorities. See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (affirming summary judgment in favor of bill-of-review-action defendants under these circumstances); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 295-96 (Tex. App.- Houston [14th Dist.] 2002, no pet.) (same). Accordingly, we overrule the Langstons' first issue.


Langston v. City of Houston et al. (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost) (bill of review denied, taxpayer suit, failure to avail oneself of available remedies, i.e. direct appeal, precludes bill-of-review relief) (fundamental error claim based on constitutional arguments also rejected)
Also see --> Page on other
City of Houston litigation

August 2009 Civil Appellate Opinions from the Fourteenth Court of Appeals


Decisions and Links to Opinions in Significant Cases

August 28, 2009

Civil Cases:


Alcala Concurrence in Denial of En Banc Review in Macy v. Waste Management, Inc. (Tex.App.- Houston [1st
Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by
Justice Alcala) (proper
designation of opinions issues by the court
)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County
Trial Court Judge: The
Honorable Randall Wilson

Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)(Dissent by Jennings)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Jennings
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from
157th District Court of Harris County

Brannan v. Estate of Brannan (Tex. App.- Houston [1st Dist.] Aug. 28, 2009)(Open Beaches Act)
AFFIRM TC JUDGMENT:
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00179-CV Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob
Albert Brannan, Deceased, et al v. The State of Texas, et al

Appeal from 239th District Court of Brazoria County

August 27, 2009

Civil Causes Decided:

Sheppard v. Interbay Funding, LLC (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(
real estate transactions, deeds, refinancing, declaratory judgment lien priority status, equitable subrogation)
Air Products & Chemicals Inc. v. Odfjell Seachem (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(
jury charge error claim overruled, harmful error analysis, what is negligence per se claim, amending
pleadings)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00591-CV Air Products & Chemicals Inc. v. Odfjell Seachem A/S, Odfjell Asia Pte. Ltd., and Odfjell
Singapore Pte., Ltd Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. John Donovan

Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(
TTCA, drowning death of child, uncovered culvert, siblings' bystander claim rejected)( drowning death of child, uncovered culvert, siblings' bystander claim for wrongful death of brother rejected, drowning deaths)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings
Before Justices Jennings, Alcala and Higley
01-08-00905-CV Landon Jones and Loren Jones v. City of Houston
Appeal from 215th District Court of Harris County
Trial Court Judge:
Hon. Levi J. Benton
Dissenting Opinion by Justice Alcala in Jones v. City of Houston


A Utterly Rare Criminal Reversal (with dissent)

Blackman v. State of Texas (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
("A jury found appellant, James Blackman, guilty of the offense of possession of a controlled substance,
namely cocaine, with intent to deliver (1) and assessed his punishment at confinement for thirty years. In three points of error, appellant contends that the evidence is legally and factually insufficient to support his
conviction and that the trial court erred in (2) denying his
Batson challenge. ... we hold that the evidence is
legally insufficient to support appellant's conviction of the offense of possession of a controlled substance. We reverse and render.")
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00138-CR James Blackman v. The State of Texas
Appeal from 230th District Court of Harris County
Dissenting Opinion by Justice Keyes
(“I respectfully dissent. I would hold that the evidence was legally and factually sufficient to establish affirmative links showing that appellant exercised "care, custody, control or management" over the cocaine at issue in this case. (1) Therefore, I would overrule appellant's first issue rather than reversing and rendering judgment acquitting him.”)

August 21, 2009

Civil Causes Decided:

Gallagher Healthcare Ins. Service, Inc. v. Vogelsang (Tex.App.- Houston [1st Dist.] Aug. 21, 2009)(Keyes)
(
enforceability of covenant-not-to-compete provision in employment agreement; noncompete held enforceable)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Evelyn Keyes
Before Justices Jennings, Keyes and Higley
01-07-00478-CV Gallagher Healthcare Insurance Services, Inc. v. Page M. Vogelsang, Michelle Friede, Patti
Philippone, Trisha Birdsong, and Lockton Companies, Inc.
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle
Dissenting Opinion by Justice Jennings in Gallagher Healthcare Insurance Services, Inc. v. Vogelsang


August 20, 2009

Civil Causes Decided:

Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st Dist] Aug. 20, 2009)(Bland)
(
work site injury, premises liability, direct negligence,
right to control issue as predicate for liability for worker's injury, jury instructions)
AFFIRM TC JUDGMENT: Opinion by
Justice Jane Bland
Before Justices Jennings, Hanks and Bland
01-07-01106-CV Kenneth W. Moss and Michelle Moss v. Waste Management National Services, Inc. Appeal
from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Dissent by Justice Jennings in Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st
Dist] Aug. 20, 2009)(Jennings) ("I would hold that the trial court erred in submitting the question to the jury
predicating Waste Management's liability to Moss on its right to control Rustin's work. Because it is
fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in
the law and the trial court's error probably caused the rendition of a harmful judgment, I would remand the
case to the trial court for a new trial. See Tex. R. App. P. 44.1(a)(1); Crown Life Ins. Co. v. Casteel, 22 S.W.3d
378, 388 (Tex. 2000). The majority's holding and judgment to the contrary is in error. Accordingly, I
respectfully dissent.") See -->
other Houston appellate cases with dissent (or concurring opinion)

In re Elliott (Tex.App.- Houston [1st Dist] Aug. 20, 2009)
(
no appellate jurisdiction to issue mandamus against JP court judge)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Hanks, Higley and Massengale
01-09-00713-CV In re Michael W. Elliott
[Docket says] Appeal from County Court [sic] of Harris County
Trial Court Judge:
David Patronella [Harris County JP Court 1-2]

In Re Elliott (Tex.App.- Houston [1st Dist.] Aug. 20, 2009)(per curiam)
(
court of appeals has no authority to issue writ of mandamus against Justice of the Peace)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Hanks, Higley and Massengale
01-09-00714-CV In re Micheal W. Elliott
Appeal from County Court [?] of Harris County
Trial court judge: David Patronella [
Harris County JP Precinct 1, Place 2]

August 6, 2009

Noteworthy Civil Cases:

Virginia Power Energy Marketing, Inc v. Apache Corp. (Tex.App.- Houston [14th Dist.] Aug. 6, 2009 (Sullivan) (dispute involving the interpretation, application and effect of force majeure provisions in a natural-gas supply contract, contract construction, excuse for nonperformance) (fact issue precludes summary judgment)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by
Justice Sullivan
Before Justices Brock Yates, Guzman and Sullivan
14-07-00787-CV Virginia Power Energy Marketing, Inc and Dominion Resources, Inc v. Apache
Corporation Appeal from 157th District Court of Harris County
Trial Court Judge: Randy Wilson

Langston v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost)
(
bill of review denied, tax suit, failure to avail oneself of available remedies, i.e. direct appeal precludes bill-of-review relief, claim of fundamental error rejected)
AFFIRMED: Opinion by
Justice Frost
Before Justices Frost, Seymore and Boyce
14-08-00063-CV C. Dale Langston and Sue Langston v. City of Houston, Harris County, Pasadena
Independent School District and San Jacinto Community College
Appeal from 55th District Court of Harris County
Trial Court Judge: Jeff Brown

August 4, 2009

Noteworthy Civil Cases:

Langhorne v. Miller (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore) (conversion of aircraft, proof of conversion damages, market value, owner may testify, quantum meruit claim fails)
AFFIRMED: Opinion by
Justice Seymore
Before Justices Seymore, Brown and Sullivan

14-08-00081-CV Danny Langhorne v. Kay M. Miller
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court
Judge: Linda Storey

Office Buildings of Houston, Inc. v. Newman (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Frost) (dispute over the amount of commission owed as a result of a real estate transaction, contract construction)
AFFIRMED: Opinion by
Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-08-00173-CV Office Buildings of Houston, Inc v. Carlton B. Newman
Appeal from 215th District Court of Harris County
Trial Court Judge:
LEVI JAMES BENTON

Rosemond v. Al-Lahiq, MD (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore)
(
med mal suit, untimely, insufficient expert report, presumption of receipt based on service pursuant to Rule 21a and rebuttal of presumption by controverting affidavit of nonreceipt)
AFFIRMED: Opinion by
Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost

14-08-00550-CV Ulysses L. Rosemond v. Maha Khalifa Al-Lahiq, M.D.
Appeal from 133rd District Court of Harris County
Trial Court Judge:
LAMAR MCCORKLE

North Cypress Med. Ctr. Operation Co, Ltd. v. Laurent, MD (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Sullivan) (interlocutory appeal of temporary injunction, no irreparable damages shown, temporary injunction dissolved by court of appeals)(partnership dispute)
REVERSED AND REMANDED: Opinion by
Justice Sullivan
Before Justices Seymore, Brown and Sullivan

14-09-00204-CV North Cypress Medical Center Operating Company, Ltd. and North Cypress Operating G.P. LLC v. Matthew St. Laurent, M.D
Appeal from 333rd District Court of Harris County
Trial Court Judge:
JOSEPH J. HALBACH

In Re North Cypress Medical Center Operating Company, Ltd (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Sullivan) (mandamus granted to vacate order requiring funds to be paid into the registry of the court, criteria for such order not satisfied)
MOTION OR WRIT GRANTED: Opinion by
Justice Kent Sullivan
Before Justices Seymore, Brown and Sullivan
14-09-00289-CV In Re North Cypress Medical Center Operating Company, Ltd. and North Cypress Medical Center Operating Company GP, LLC
Appeal from
333rd District Court of Harris County


Wednesday, August 5, 2009

Temporary Injunction Vacated: No Irreparable Harm Shown, Court of Appeals Says


In a dispute involving a doctor's partnership interest, the 14th Court of Appeals, in a panel opinion by Justice Kent Sullivan issued Aug. 4, 2009, holds that immediate injunctive relief was not warranted because the applicant failed to show that he could not be adequately compensated by monetary damages later.

Citing the criteria for the grant of a temporary injunction under established precedents, and stressing that the party seeking the relief has the burden to prove the elements, the appellate panel sets aside the trial court's temporary injunction order, against which the opposing party had brought a challenge by accelerated interlocutory appeal. The court also grants a cross-petition for mandamus relief, vacating an order requiring deposit of funds into the registry of the court.


North Cypress Med. Ctr. Operating Co, Ltd. v. St. Laurent, M.D. (Tex.App. - Houston [14th Dist.] Aug. 4, 2009)(Sullivan) (requirements for temporary injunction not satisfied, no irreparable injury shown that cannot be remedied through monetary compensation.)


O P I N I O N


This consolidated appellate proceeding, consisting of an accelerated appeal and petition for writ of mandamus, arises from a doctor's attempts to prevent the sale of his profits-only ownership interest in a hospital's limited partnership. In the accelerated appeal, the partnership challenges a temporary injunction preventing the sale or transfer of the doctor's shares. The trial court that issued the temporary injunction also ordered the partnership to deposit the doctor's future distributions into the court's registry, prompting the partnership to seek mandamus relief from this Court.


The doctor has not shown he has an inadequate remedy, at law, that is, that money damages would result in inadequate compensation for the loss of his profits-only share in the partnership. Thus, the record does not support a necessary finding that the doctor would suffer an irreparable injury but for the temporary injunction. Accordingly, we reverse the trial court's order granting a temporary injunction. We further hold that the record does not support a conclusion that disputed funds are likely to be lost or depleted, a necessary finding before a trial court may order a party to deposit money into the court's registry. Therefore, we conditionally grant the petition for writ of mandamus.


I.

Background


In January 2004, Matthew St. Laurent, M.D., the appellee/real party in interest, purchased four limited partnership shares, termed "units," in North Cypress Medical Center Operating Company, Ltd. (the "partnership").[1] Under the terms of the limited partnership agreement (the "Agreement"), St. Laurent was permitted to share in the partnership's net income and occasional distributions but had no right to manage or control the partnership's operation, business, or activities. The Agreement also provided that the partnership, "at its sole option," could sell St. Laurent's shares without his consent for a variety of reasons, including his breach of the Agreement.


In November 2007, the partnership notified St. Laurent that he had breached the Agreement's non-competition clause and that it intended to sell his shares. He responded by filing suit against North Cypress for breach of contract, conversion, breach of fiduciary duty, and conspiracy to commit breach of fiduciary duty. He sought money damages in excess of $250,000, and also asked for the equitable remedy of an injunction preventing the sale of his shares.


In February 2009, the trial court granted St. Laurent's request for a temporary injunction, thereby preventing the partnership from transferring or selling his shares. That ruling prompted North Cypress to file this accelerated appeal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(4) (Vernon 2008). In addition, the trial court ordered North Cypress to pay into the court's registry St. Laurent's portion of any future partnership distributions. That order forms the basis for North Cypress's petition for writ of mandamus.


II.

Temporary Injunction


In the accelerated appeal, which we address first, North Cypress contends St. Laurent was not entitled to a temporary injunction because he failed to show that he would suffer an irreparable injury in the absence of injunctive relief.


We agree.


The purpose of a temporary injunction is to preserve the status quo of a lawsuit's subject matter pending a full trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). However, a temporary injunction is an extraordinary remedy that does not issue as a matter of right. Id. Instead, the applicant bears the burden of pleading and proving that he has (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. Id.


The party seeking injunctive relief - here, St. Laurent - carries the burden to demonstrate an irreparable injury. See Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834, 838 (Tex. App.- Houston [14th Dist.] 2005, no pet.). An injury is considered irreparable if the party cannot be adequately compensated in damages, or if those damages are incapable of calculation. Butnaru, 84 S.W.3d at 204; Reach Group, L.L.C., 173 S.W.3d at 838. Generally, however, courts do not enforce contractual rights by injunction, because an applicant who may recover breach-of-contract damages can rarely establish an irreparable injury and accompanying inadequate legal remedy. Butnaru, 84 S.W.3d at 211; Reach Group, L.L.C., 173 S.W.3d at 838.


We review the grant or denial of a temporary injunction for an abuse of discretion. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 696 (Tex. App.- Houston [14th Dist.] 2004, no pet.). A trial court does not abuse its discretion if it bases its decision on conflicting evidence in the record. Law v. William Marsh Rice Univ., 123 S.W.3d 786, 792 (Tex. App.- Houston [14th Dist.] 2003, pet. denied). With respect to the resolution of factual issues, the appellant must establish the trial court reasonably could have reached only one decision. Emeritus Corp. v. Ofczarzak, 198 S.W.3d 222, 225B26 (Tex. App.- San Antonio 2006, no pet.). To the extent that we must consider the evidence to resolve this appeal, we review the evidence in the light most favorable to the trial court's order, indulging reasonable inferences in its favor. See EMSL Analytical, Inc., 154 S.W.3d at 696. Therefore, we will not disturb the trial court's ruling if some evidence in the record reasonably supports the decision. Butnaru, 84 S.W.3d at 211. However, a trial court abuses its discretion if it misapplies the law to the established facts of the case. Law, 123 S.W.3d at 792.


Here, St. Laurent contends that his partnership shares are “unique" such that money damages cannot fully compensate him for their loss. In the alternative, he suggests that the amount of such damages cannot be adequately measured. We will address each of these contentions, in turn.


A. “Uniqueness" of Profits-Only Limited Partnership Share


Generally, money damages may be inadequate to compensate an injured party for the loss of property deemed to be legally "unique" or irreplaceable. See, e.g., Patrick v. Thomas, No. 2-07-339-CV, 2008 WL 1932104, at *3 (Tex. App.- Fort Worth May 1, 2008, no pet.) (mem. op.) (discussing owner's sentimental, nonmonetary attachment to horses). The “uniqueness" rule is most commonly applied when the disputed property involves real estate. See Lavigne v. Holder, 186 S.W.3d 625, 629 (Tex. App.- Fort Worth 2006, no pet.); In re Stark, 126 S.W.3d 635, 640 (Tex. App.- Beaumont 2004, orig. proceeding [mand. denied]) (“We agree . . . that every piece of real estate is unique and that its uniqueness may, in an injunction case, constitute some evidence of an irreparable injury.").


Apparently hoping to invoke this common real-estate principle, St. Laurent claims that his partnership shares should be treated as an interest in real estate because one of the purposes of the partnership is to own and maintain a hospital, North Cypress Medical Center. We disagree. First, the limited partners, including St. Laurent, do not own the hospital real estate; only the partnership does. Second, under the Agreement, St. Laurent has no right to control the management or operation of the hospital. Instead, as a limited partner, St. Laurent's only interest in the hospital real estate is confined to whatever net income may be generated from the hospital's business. Therefore, we are not persuaded that St. Laurent's attenuated connection to the physical plant of the hospital is sufficient to constitute a “unique" interest in real estate. Cf. Lavigne, 186 S.W.3d at 629 (upholding land purchaser's right to injunctive relief to prevent foreclosure on real estate).


Alternatively, St. Laurent suggests that his shares are unique because they are irreplaceable. As he notes, the partnership's shares are not publicly traded and, under the terms of the Agreement, additional limited partners may not be admitted without the general partner's consent. Thus, St. Laurent is correct that, once he loses his shares, he cannot simply replace them with other partnership shares. However, he has not shown that money damages cannot take their place. That is, a subjective desire to keep one's shares does not, by itself, render money damages an inadequate substitute. See Pesch v. First City Bank of Dallas, 637 F. Supp. 1539, 1547 (N.D. Tex. 1986). This is particularly true here where, unlike the shares discussed in Pesch, St. Laurent's ownership interest gives him no voice in the control or management of the partnership. See Pesch, 637 F. Supp. at 1546. Instead, the Agreement provides:


The General Partner shall conduct, direct and exercise full control over all activities of the Partnership. Except as otherwise expressly provided herein, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and the Limited Partners shall not have any right of control or management power over the business and affairs of the Partnership. . . . [T]he General Partner shall have full power and authority to do all things deemed necessary or desirable by it to conduct the business of the Partnership without the consent or approval of the Limited Partners[.][2]


The undisputed evidence in the record indicates that St. Laurent is at risk for loss of only his proportionate share in the partnership's net income and any future distributions. Both of these items represent an interest in money. Therefore, St. Laurent has not shown that breach-of-contract damages would be inadequate to compensate him for any such monetary losses.


B. Calculation of Damages


Alternatively, St. Laurent acknowledges that damages may compensate for the loss of partnership shares but argues that, in this case, his damages are incapable of mathematical calculation. See Reach Group, L.L.C., 173 S.W.3d at 838. He reasons that, because no ready market exists for the sale and purchase of these privately held shares, the value of his ownership interest cannot be readily ascertained. However, the record does not support that argument.


The Agreement contains numerous provisions relative to the value of each limited partner's ownership interest in the partnership. Under its terms, the partnership must establish and maintain a “Capital Account" as to each partner, reflecting the current value of his ownership interest. That amount incorporates, among other things, (1) the cash amount or fair market value of all shares owned by the partner, (2) his proportionate share of the partnership's net income or loss, (3) the amount of partnership liabilities attributable to him, and (4) the cash amount or fair market value of all distributions of cash or property made to him. In addition, the Agreement contains several other provisions affecting the value of each partner's Capital Account, including interest, value following transfer of a partnership interest, and the effect of loans to the partnership. In the event a partner's shares are to be sold, the Agreement specifies, through mathematical formulas, the exact consideration to be paid.


St. Laurent acknowledges that he can determine the value of his current ownership interest. In fact, during the temporary-injunction hearing, he testified about the value of his Capital Account as of a specific date shortly before the hearing. However, he claims that his future damages cannot be measured once he is divested of his shares, at which point he will no longer be eligible to receive distributions or a proportionate share of net income. He notes that, under the Agreement, the general partner may declare distributions in its sole discretion, “from time to time." Drawing from that fact, St. Laurent argues in his brief that "[t]here is nothing in the record that establishes any reliable method of affirmatively establishing the value of future distributions."


St. Laurent's argument misstates the burden of proof. In a temporary-injunction hearing, the burden is on the applicant to prove that his damages cannot be calculated, not on the non-movant to disprove that notion. See Reach Group, L.L.C., 173 S.W.3d at 838. After reviewing the record, we conclude that St. Laurent failed to carry that burden because he produced no evidence, either express or implicit, that his future damages are simply too speculative to be calculated.[3]


To the contrary, expert witnesses frequently offer opinions about the value of a partnership interest,[4] even when, as here, some unspecified future revenue source remains pending. See, e.g., Von Hohn v. Von Hohn, 260 S.W.3d 631, 637-38 (Tex. App.- Tyler 2008, no pet.) (approving expert testimony as to value of partnership interest in a law firm, even though some of the firm's lawsuits had not yet settled or even been filed). That task calls upon expert witnesses, out of necessity, to make reasonable assumptions about a litigant's future damages resulting from some intervening event, such as the defendant's alleged wrongdoing. See, e.g., Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 254-55 (Tex. 2008) (requiring expert's future-damage calculations to adhere to reasonable assumptions not inconsistent with undisputed facts); Checker Bag Co. v. Washington, 27 S.W.3d 625, 638-39 (Tex. App.- Waco 2000, pet. denied) (upholding future-damages testimony, based on reasonable assumptions, by expert economist). In that regard, this case is not unlike any other case involving the calculation of future damages. See Hughes v. Houston Nw. Med. Ctr., Inc., 680 S.W.2d 838, 842 (Tex. App.- Houston [1st Dist.] 1984, writ ref'd n.r.e.) ("Damages must be established with reasonable certainty, but the amount of damages need not be certain, or future damages would never be recoverable.") (citations omitted).


Here, although the Agreement introduces some degree of uncertainty about the precise timing of future distributions, it expressly requires the partnership to “use reasonable efforts to distribute annually at least an amount of Available Cash to the Partners sufficient to cover the federal, state and local income tax owing by the Partners as a result of Partnership allocations of income, gain, loss, deduction and credit to the Partners[.]"[5] Thus, the Agreement contemplates, at a minimum, annual distributions tied into the amount of the partnership's net income, if any. In addition, appropriate discovery should reveal the timing and amount of past distributions, facts that may offer insight into the predictability of future distributions. Moreover, St. Laurent's inability to predict the precise timing of the partnership's distributions of its assets does not mean that the net present value of his interest in those income-generating assets is incalculable. See, e.g., State v. Whataburger, Inc., 60 S.W.3d 256, 262 (Tex. App.- Houston [14th Dist.] 2001, pet. denied) (discussing valuation of income-generating property).


Thus, on the record presented, St. Laurent did not prove that money damages could not compensate him or that such damages are incapable of calculation. Absent proof of an irreparable harm, St. Laurent was not entitled to injunctive relief. See SRS Prods. Co. v. LG Eng'g Co., 994 S.W.2d 380, 386 (Tex. App.- Houston [14th Dist.] 1999, no pet.). Accordingly, we reverse the trial court's order, dissolve the temporary injunction, and remand.[6]

* * *


IV.

Conclusion


St. Laurent has not shown that, in the absence of a temporary injunction, he would suffer irreparable injury. Therefore, we reverse the trial court's ruling, dissolve the temporary injunction, and remand for further proceedings not inconsistent with this opinion.


In addition, we conditionally grant the petition for a writ of mandamus, and direct the trial court to vacate its order compelling North Cypress to deposit funds into the court's registry. We are confident the trial court will comply; therefore, the writ will issue only in the unlikely event that it fails to do so.


Funds wrongfully ordered deposited into court's registry


Fourteenth Court of Appeals grants petition for mandamus relief to vacate trial court's order requiring deposit of funds into the court's registry pending suit. Reviewing court holds that trial court judge abused his discretion in requiring the funds be transferred to the control of the court where the evidence did not establish that the funds were in actual peril of being lost or depleted.


In Re North Cypress Medical Center Operating Co., Ltd. (Tex.App.- Houston [14th Dist.] Aug. 4, 2009) (partnership dispute, temporary injunction reversed in interlocutory appeal, mandamus granted to vacate order requiring money be deposited in the court's registry)


FROM THE OPINION BY JUSTICE KENT SULLIVAN:


Deposits into Court's Registry


After granting the temporary injunction, the trial court, citing its inherent authority, also ordered North Cypress to deposit into the court's registry any future distributions attributable to St. Laurent. In response, North Cypress asked us to issue a writ of mandamus vacating the trial court's order because the record does not indicate that disputed funds are likely to be “lost or depleted," a requisite for the court's order.

We agree, and conditionally grant mandamus relief.


A. Mandamus Standard of Review

Mandamus relief may be available if the relator establishes a clear abuse of discretion for which there is no adequate appellate remedy. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Although we will not disturb the trial court's resolution of disputed fact matters, a trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992) (orig. proceeding).


B. Evidence of “Loss or Depleting" Funds

If there is evidence that disputed funds are in danger of being "lost or depleted," a trial court, through its inherent authority, may order a party to pay those funds into the court's registry. See Castilleja v. Camero, 414 S.W.2d 431, 433 (Tex. 1967). Here, however, the record contains no such evidence. Instead, the undisputed evidence suggests only that the partnership may use the same bank account to fund several activities, including the reinvestment of funds into the hospital's physical plant. By itself, that evidence is insufficient to warrant the trial court's order in this case.


During the temporary-injunction hearing, St. Laurent testified that the hospital has recently undergone capital improvements, including an expansion of the existing structure and the construction of a separate professional building and parking garage. It appears that these capital improvements might be funded, at least in part, from the partnership's “Available Cash," the same source used to pay partner distributions. After reviewing these facts alone, the trial court concluded that the hospital's capital improvements are likely to deplete the funds available to pay future distributions. However, that legal conclusion is not supported by the evidence, for two reasons.


First, the funds in question have not been shown to be in danger of being “lost or depleted." Instead, the evidence suggests that those funds are being reinvested in the hospital's physical plant, a partnership asset. Thus, in the event St. Laurent prevails in the dispute over his partnership distributions, his efforts to collect on that judgment would not be limited solely to the hospital's “Available Cash" account. See generally Tex. Civ. Prac. & Rem. Code Ann. '' 31.001-.010 (Vernon 2008). As St. Laurent conceded during oral argument, the record contains no suggestion that North Cypress is insolvent or otherwise unable to pay a potential judgment in this case.


Second, even were we to hold that reinvested funds qualify as “lost or depleted" within the meaning of Castilleja, the record is still insufficient to show that Available Cash is dwindling or being depleted. For example, the record is devoid of evidence about (1) the balance of Available Cash, (2) the amount or source of the hospital's revenue and net income used to fund that account, (3) the monthly or annual cash flow in the Available Cash account (4) the cost of the ongoing capital improvements, or (5) the extent, if any, to which Available Cash may be dwindling because of the capital improvements.


Instead, the record, particularly the Agreement, hints only that North Cypress uses the Available Cash account for several purposes:


“Available Cash" shall mean, at the time of determination, all Partnership cash receipts derived from the conduct of the Partnership's business reduced by (i) such amount as is necessary to pay the current operating expenses and debt service of the Partnership, and (ii) such reserves for the reasonable needs of the Partnership's business as the General Partner shall determine, in its sole discretion, including reserves for replacements, capital improvements and additions.


Because the undisputed evidence does not indicate that funds are actually in danger of being lost or depleted, the trial court abused its discretion by ordering the payment of such funds into its registry. See Castilleja, 414 S.W.2d at 433; In re Deponte Invs., Inc., No. 05-04-01781-CV, 2005 WL 248664, at *2 (Tex. App.- Dallas Feb. 3, 2005, orig. proceeding) (mem. op.).


Further, we determine that, in this case, the benefits to mandamus review outweigh the detriments. See Prudential Ins. Co., 148 S.W.3d at 136. Here, North Cypress has been deprived of the use of its money without a showing either of liability or an intent to hide assets from a possible judgment, as in Castilleja.[7] Therefore, we hold that North Cypress does not have an adequate remedy by appeal. See Deponte Invs., 2005 WL 248664, at *2. Accordingly, we conditionally grant mandamus relief.


IV.

Conclusion


St. Laurent has not shown that, in the absence of a temporary injunction, he would suffer irreparable injury. Therefore, we reverse the trial court's ruling, dissolve the temporary injunction, and remand for further proceedings not inconsistent with this opinion.


In addition, we conditionally grant the petition for a writ of mandamus, and direct the trial court to vacate its order compelling North Cypress to deposit funds into the court's registry. We are confident the trial court will comply; therefore, the writ will issue only in the unlikely event that it fails to do so.


/s/ Kent C. Sullivan


Justice


In Re North Cypress Medical Center Operating Co., Ltd. (Tex.App.- Houston [1st Dist.] Aug. 4, 2009)(Sullivan)

DISPOSITION: PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

OPINION AUTHOR: Justice K. Sullivan

PANEL MEMBERS: Justices Seymore, Brown and Sullivan

APPELLATE CAUSE NO: 14-09-00289-CV

FULL CASE STYLE: In Re North Cypress Medical Center Operating Company, Ltd. and North Cypress Medical Center Operating Company GP, LLC

TRIAL COURT: Appeal from 333rd District Court of Harris County (Judge Halbach)


Sunday, August 2, 2009

State court of appeals takes judicial notice of PACER bankruptcy records (sort of)


Houston's Fourteenth Court of Appeals indicates in recent dismissal opinions that it is checking the status of bankruptcy proceedings (and bankruptcy stays of pending appeals) by accessing the federal judiciary's on-line system for docket management - PACER. One wonders if the court can now also be requested to take judicial notice of documents in federal cases that can be accessed through the subscription-based system and are not available through Westlaw or Lexis-Nexis.


M E M O R A N D U M O P I N I O N

This is an appeal from a judgment signed June 24, 2005. On December 8, 2005, this court abated the appeal because appellant petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 05-94171. See Tex. R. App. P. 8.2.

Through the Public Access to Court Electronic Records (PACER) system, the court has learned that the bankruptcy case was closed on March 29, 2006. The parties failed to advise this court of the bankruptcy court action.

On June 25, 2009, this court issued an order stating that unless any party to the appeal filed a motion demonstrating good cause to retain the appeal within twenty days of the date of the order, this appeal would be dismissed for want of prosecution. See Tex. R. App. P. 42.3(b). No response was filed.

Accordingly, we reinstate the appeal and order it dismissed.

PER CURIAM

Panel consists of Justices Anderson, Guzman and Boyce.


Patton v. Patton (Tex.App.- Houston [14th Dist.] July 30, 2009)(per curiam dismissal of appeal after conclusion of bankruptcy and notice to parties; stay was in effect)
DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-05-00803-CV Laura A. Patton v. Jimmy R. Patton
Appeal from
246th District Court of Harris County