in Re Shamoun & Norman, LLP

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

13-11-00281-CV

IN RE SHAMOUN & NORMAN, LLP, ET AL.

On Petition for Writ of Mandamus.

13-11-00087-CV

SHAMOUN & NORMAN, LLP, ET AL., Appellants,

v.

YARTO INTERNATIONAL GROUP, L.P. AND
YIG-GP, LLC, Appellees,

13-11-00256-CV

SHAMOUN & NORMAN, LLP, ET AL., Appellants,

v.
ROBERT YARTO, ET AL., Appellees,
 On appeal from the 332nd District Court
of Hidalgo County, Texas

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Garza
By two interlocutory appeals and a petition for writ of mandamus,

appellants/relators Shamoun & Norman, LLP, Gregory Shamoun and Brian Norman

(collectively ―Shamoun‖) challenge (1) the trial court’s order imposing an anti-suit

injunction, (2) its order denying a motion to transfer venue, and (3) its failure to rule on

an agreed motion to transfer venue. We will reverse the trial court’s anti-suit injunction

and remand for further proceedings, dismiss Shamoun’s appeal regarding venue for

want of jurisdiction, and conditionally grant the petition for writ of mandamus in part.

I. BACKGROUND

Shamoun, a law firm based in Dallas County, was sued by appellee/real party in

interest Robert Yarto on April 28, 2010 in Hidalgo County. Yarto asserted claims of

professional negligence, breach of fiduciary duty, and theft of trade secrets. Yarto’s

petition, which requested damages and injunctive relief, alleged that Shamoun

represented Yarto on several prior occasions but is ―currently representing parties

adverse to [Yarto] on matters similar to those for which [it] had previously represented

[Yarto].‖ Yarto further alleged that Shamoun ―illegally obtained confidential financial

documents and/or trade secrets belonging to [Yarto].‖ According to the petition,

Shamoun breached its fiduciary duty to Yarto by (1) ―represent[ing] parties adverse to

[Yarto],‖ (2) ―disclos[ing] confidential communications‖ to those adverse parties during a

2
2010 mediation in Travis County, and (3) ―us[ing] illegally obtained documents to

[Yarto]’s detriment.‖ The petition also named Rhoderick Williams and Steven Winkler

as defendants.1

On April 29, 2010, Shamoun answered Yarto’s suit and filed a motion to transfer

venue. The answer contained a general denial of Yarto’s allegations and asserted

various affirmative defenses. The motion to transfer asserted that Dallas County or

Collin County was a proper venue for the litigation, and Hidalgo County was improper,

because: (1) the alleged tortious acts and omissions occurred in Dallas and/or Collin

Counties; (2) Shamoun maintains its principal place of business in those counties; and

(3) witnesses, documents, and evidence related to the case are located in those

counties.

The next day, Yarto’s suit was removed to bankruptcy court. The debtor in the

bankruptcy proceedings was YITC-GP, LLC (―YITC-GP‖), a corporation set up to serve

as general partner of Yarto International Trading Group, L.P. (―YITC‖). YITC and YITC-

GP, as well as two other entities, appellees/real parties in interest Yarto International

Group, L.P. (―YIG‖), and YIG-GP, LLC (―YIG-GP‖), were founded by Yarto but later

came to be owned and operated by Williams and Winkler.2 At the time the bankruptcy

proceedings commenced, YIG, YITC, Williams and Winkler were all represented by

Shamoun in various lawsuits involving Yarto and multiple third parties. All of those

pending cases, along with Yarto’s suit against Shamoun, were removed to bankruptcy

court on April 30, 2010. See 28 U.S.C. § 1334(b) (stating that federal district courts

1
Williams and Winkler are two of the adverse parties that Yarto claims Shamoun is representing
to his detriment. Williams and Winkler are not parties to the proceedings before this Court.
2
For ease of reference, YIG and YIG-GP will be referred to collectively as ―YIG,‖ and YITC and
YITC-GP will be referred to collectively as ―YITC.‖

3
have ―original but not exclusive jurisdiction of all civil proceedings . . . arising in or

related to cases under‖ the federal bankruptcy code); id. § 1452(a) (providing for

removal to bankruptcy court of claims related to bankruptcy cases).

Eventually, the parties agreed to settle their outstanding claims in exchange for

mutual releases. A global settlement agreement, drafted by Shamoun at the direction of

the parties, was executed on December 9, 2010. As part of the agreement, YIG agreed

to transfer certain assets to YITC; Williams and Winkler agreed to transfer ownership of

YIG to Yarto; and YITC pledged to pay more than $1.5 million in settlement payments to

various parties.3 The agreement further provided that: (1) YITC would release Yarto

from any and all claims related to the pending litigation; and (2) Yarto would release

YITC, along with its ―past and present agents, representatives, officers, directors and

attorneys,‖ including Winkler and Williams, from any and all claims related to the

pending litigation, with one notable exception:

15. Shamoun Litigation. Nothing in this Agreement shall be construed as
a release of Shamoun by Yarto. The Parties hereby acknowledge and
agree that, with respect to any claim, lawsuit, complaint or proceeding
(whether judicial or otherwise) brought by any of the Yarto Parties [i.e.,
Yarto and YIG] . . . against Shamoun and/or any of its partners or affiliates
(in each case, a ―Shamoun Claim‖), (a) such Shamoun Claim shall be
brought in an appropriate state court located in Travis County, Texas, and
(b) none of the Yarto Parties . . . shall be permitted to bring a Shamoun
Claim in any court not located in Travis County, Texas. The parties
hereby acknowledge[] and agree that (y) Shamoun is and shall be
considered a third-party beneficiary[4] with respect . . . to [this] Agreement,
and (z) Shamoun shall have the right to directly enforce this provision . . .
on Shamoun’s own behalf.

3
Specifically, the agreement called for YITC to make payments of $1,165,000 to JenRob
Investments, L.P., $300,000 to Compass Bank, and $312,500 to David Girault. Each of the specified
payees was involved in the pending litigation and each was a party and signatory to the settlement
agreement.
4
Shamoun was not a signatory to the settlement agreement, even though it was already a party
to the underlying litigation at the time the agreement was reached.

4
The agreement stated that, upon execution of the settlement documents, Yarto’s suit

against Shamoun would be remanded from bankruptcy court to state district court. 5 The

settlement agreement also contained the following paragraph:

27. SUBMISSION TO JURISDICTION. THE PARTIES HEREBY AGREE
THAT ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS,
AND PROCEEDINGS RELATING TO THIS AGREEMENT OR THE
OTHER AGREEMENTS CONTEMPLATED HEREIN SHALL BE FILED
AND MAINTAINED ONLY IN AN APPROPRIATE STATE OR FEDERAL
COURT IN TRAVIS COUNTY, TEXAS, AND THE PARTIES HEREBY
CONSENT TO THE JURISDICTION OF SUCH COURT.

On December 1, 2010, after the settlement agreement had been negotiated but

prior to its execution, Shamoun sent a letter to Williams and Winkler addressing

Shamoun’s status theretofore as counsel of record for YIG. The letter stated:

Prior to the settlement, this firm provided services to the so-called YITC
Parties which, at the beginning, included [YIG]. Pursuant to the
Settlement Agreement, [YIG is] transferring certain assets to the YITC
parties and ownership of [YIG] will be transferred solely to the so-called
―Yarto Parties‖ side of the litigation. This letter is to confirm and clarify
that, this firm provided services only to the YITC Parties. With respect to
the Settlement Documents which provide that [YIG] will be transferred to
the Yarto Parties, this firm has not represented [YIG]. [YIG] further
acknowledge[s] that [it was] promptly made aware of this issue and [was]
advised of [its] right to retain separate counsel to advise [it] regarding the
YIG Settlement Documents and this letter.

[YIG] understand[s] that the YIG Settlement Documents were prepared
according to instructions of the YITC Parties and the final instructions from
the parties utilizing the YIG Settlement Documents and their attorneys at
the time of closing of the YIG Settlement Documents. No representations
have been made as to the legal effects or tax consequences of the YIG
Settlement Documents. Additionally, [YIG] acknowledge[s] that [it]
understand[s] that [Shamoun] has made no independent investigation,
representation or assurance whatsoever regarding the compliance of the
contemplated transaction as evidenced by the YIG Settlement Documents
with tax, securities, or other law of the United States of America having
jurisdiction over this transaction.
5
The agreement also helpfully provided that Winkler and Williams, owners and operators of YITC
and YITC-GP, must change the names of those entities so that they do not include the word ―Yarto.‖

5
 [YIG] understand[s] that [Shamoun] is not employed for representation
generally or for any purpose in connection with the YIG Settlement
Documents other than that stated above. [YIG] acknowledge[s] that [it
has] read, understand[s], and hereby approve[s] of the YIG Settlement
Documents.

The letter was countersigned by Williams and Winkler as representatives of YIG.

After the settlement agreement was executed, the bankruptcy court remanded

Yarto’s suit to state district court in Hidalgo County. Yarto and Shamoun were the only

parties remaining in the pending litigation. On December 29, 2010, Yarto filed an

―Agreed Motion to Transfer Venue‖ in which he conceded that he ―agreed in the

settlement agreement to prosecute his remaining claims against [Shamoun] solely in

Travis County, Texas.‖ The motion was signed by counsel for both Yarto and

Shamoun.

However, on January 19, 2011, before the trial court heard or ruled upon the

agreed motion to transfer, YIG intervened in the case. Its petition in intervention, sworn

to by Yarto as an authorized representative of YIG, asserted that Shamoun committed

professional negligence and breached its fiduciary duty by, among other things: (1)

representing parties adverse to YIG; (2) disclosing confidential communications

involving YIG; and (3) ―conspir[ing] with others to divest [YIG] of valuable and lucrative

assets, leaving [YIG] devoid of all assets.‖ YIG additionally alleged that Shamoun

―represent[ed] [YIG] in the course of the global settlement, and extracted terms and

conditions of settlement for the benefit of [Shamoun] and to the detriment of [YIG].‖ The

petition stated that ―[v]enue is proper as to Intervenors because all or a substantial part

of the acts and/or omissions complained of occurred in Hidalgo County . . . and

Intervenors’ claims arise from the same set of operative facts as [Yarto]’s claims.‖ YIG’s

6
petition in intervention sought damages as well as injunctive relief, claiming that

Shamoun ―ha[s] already demonstrated the propensity to avoid this proper venue

[Hidalgo County district court] at any cost, including the filing of frivolous pleadings and

proceedings.‖ YIG requested an anti-suit injunction, noting that Shamoun had already

brought suit against it in Dallas County and arguing that ―there is an imminent threat of

irreparable harm that [Shamoun] will, once again, attempt to avoid this proper venue by

filing additional frivolous pleadings or proceedings in one or more different venues.‖

After YIG filed its petition in intervention, Shamoun filed an amended motion to

transfer arguing that the action should be transferred either to Travis County or Dallas

County. The amended motion contended that Travis was a proper venue because

Yarto ―entered into a valid, binding contractual agreement to place venue in Travis

County‖ and ―the alleged acts of which [Yarto] complains occurred, if at all, in Travis

County. . . .‖

The trial court granted YIG’s request for a temporary restraining order and, after

a hearing on January 27, 2011, the trial court granted the requested temporary anti-suit

injunction. Both orders enjoined Shamoun from ―filing, initiating, serving any process,

[or] continuing any litigation against [YIG and YIG-GP or their] employees, agents and

representatives in any other court or forum unless leave of this Court is first obtained.‖

Shamoun appealed the temporary injunction order.6 See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(4) (West 2008) (permitting appeal from interlocutory order granting

temporary injunction).

At the January 27, 2011 hearing, the trial court was advised that Yarto’s ―Agreed

6
Appellate cause number 13-11-00087-CV.

7
Motion to Transfer Venue‖ and Shamoun’s separately-filed motion to transfer were still

pending. A hearing was held on the venue issue on March 10, 2011. On March 31,

2011, the trial court rendered an order denying Shamoun’s motion to transfer venue.

The court did not rule on the ―Agreed Motion to Transfer Venue‖ filed by Yarto.7

Shamoun appealed the trial court’s judgment,8 see id. § 15.003(b)(1) (West Supp. 2010)

(permitting appeal of interlocutory order determining that a plaintiff independently

established proper venue), and filed a petition for writ of mandamus.9

II. DISCUSSION

A. Anti-Suit Injunction

In appellate cause number 13-11-00087-CV, Shamoun argues that the trial court

erred by granting YIG’s request for a temporary anti-suit injunction.

1. Standard of Review

Whether to grant or deny a temporary injunction is within the trial court’s sound

discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling

v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); State v. Walker, 679 S.W.2d 484, 485 (Tex.

1984)). We will reverse an order granting injunctive relief only if the trial court abused

that discretion. Id. (citing Walling, 863 S.W.2d at 58; Walker, 679 S.W.2d at 485).

2. Applicable Law

In general, the purpose of a temporary injunction is to preserve the status quo of

the litigation’s subject matter pending a trial on the merits. Id. An anti-suit injunction, in

7
The record reflects that counsel for Shamoun sent a letter to the trial court on April 7, 2011,
asking if the court intended to enter an order ruling on the agreed motion. The trial court’s assistant sent
the letter back to counsel on April 11, 2011, with a simple ―No!‖ written on it.
8
Appellate cause number 13-11-00256-CV.
9
Appellate cause number 13-11-00281-CV.

8
particular, will issue ―only in very special circumstances.‖ Golden Rule Ins. Co. v.

Harper, 925 S.W.2d 649, 651 (Tex. 1996) (citing Christensen v. Integrity Ins. Co., 719

S.W.2d 161, 163 (Tex. 1986); Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986)). An

applicant for an anti-suit injunction must show that ―a clear equity demands‖ such relief

in order to: (1) address a threat to the court’s jurisdiction; (2) prevent the evasion of

important public policy; (3) prevent a multiplicity of suits; or (4) protect a party from

vexatious or harassing litigation. Id. (citing Christensen, 719 S.W.2d at 163; Gannon,

706 S.W.2d at 307). We have stated that the majority rule in Texas is that a party

seeking an anti-suit injunction must satisfy the traditional prerequisites to injunctive relief

as well as the more specific requirements applicable only to anti-suit injunctions. See

Yarto v. Gilliland, 287 S.W.3d 83, 88 n.8 (Tex. App.—Corpus Christi 2009, no pet.)

(listing cases); see also Counsel Fin. Servs., L.L.C. v. Leibowitz, No. 13-10-00200-CV,

2011 Tex. App. LEXIS 5079, at *32–33 (Tex. App.—Corpus Christi July 1, 2011, no

pet.) (mem. op.); Freddie Records, Inc. v. Ayala, No. 13-07-00363-CV, 2009 Tex. App.

LEXIS 7681, at *12 (Tex. App.—Corpus Christi Sept. 30, 2009, no pet.) (mem. op.).10

10
Though a majority of courts have held that an anti-suit injunction applicant must meet the
traditional requirements for injunctive relief, there remains conflict and confusion over this issue. See,
e.g., Bay Fin. Sav. Bank v. Brown, 142 S.W.3d 586, 591 (Tex. App.—Texarkana 2004, no pet.) (holding
that anti-suit injunctions must also comply with requirements provided in rules of civil procedure);
Marroquin v. D & N Funding, Inc., 943 S.W.2d 112, 114 (Tex. App.—Corpus Christi 1997, no pet.)
(assessing whether a trial court erred in denying request for an anti-suit injunction by assessing whether
party had pleaded and proven a probable injury if relief was denied and a probable right to recovery);
Total Minatome Corp. v. Santa Fe Materials, Inc., 851 S.W.2d 336, 339 (Tex. App.—Dallas 1993, no writ)
(holding that ―clear equity‖ justifying an anti-suit injunction requires showing of irreparable injury,
inadequate remedy at law, and probable right of recovery); but see, e.g., In re Henry, 274 S.W.3d 185,
193–94 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (op. on reh’g) (rejecting contention that a party
seeking an anti-suit injunction is also required to establish a probable right of recovery in the underlying
lawsuit, irreparable harm, and that no adequate remedy at law exists); Admiral Ins. Co. v. Atchison,
Topeka & Santa Fe Ry. Co., 848 S.W.2d 251, 258 (Tex. App.—Fort Worth 1993, writ denied) (rejecting
contention that a person seeking an anti-suit injunction must establish a probable right to recovery on the
merits). The Texas Supreme Court has not explicitly ruled on this issue; however, in 2005, the Court
addressed only the requirements specific to anti-suit injunctions in affirming the issuance of such an
injunction. See Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 623 (Tex. 2005).

9
Those traditional prerequisites are: (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. Butnaru, 84 S.W.3d at 204 (citing Walling, 863 S.W.2d at 57; Sun Oil Co. v.

Whitaker, 424 S.W.2d 216, 218 (Tex. 1968)).

In the context of a request for temporary injunctive relief, a probable right to

recovery and probable injury must be established by competent evidence adduced at a

hearing. Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683, 686

(Tex. 1968); see Armendariz v. Mora, 526 S.W.2d 542, 543 (Tex. 1975); see also

Compass Bank v. Barrera, No. 13-10-00529-CV, 2011 Tex. App. LEXIS 1558, at *7–8

(Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) (mem. op.); McDaniel v. Connelly, No.

13-08-230-CV, 2008 Tex. App. LEXIS 5119, at *2–3 (Tex. App.—Corpus Christi July 3,

2008, pet. denied) (mem. op.).11 However, a sworn petition does not constitute

evidence. Millwrights Local Union No. 2484, 433 S.W.2d at 686; Rogers v. Howell, 592

S.W.2d 402, 403 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.); see also Compass

Bank, 2011 Tex. App. LEXIS 1558, at *9. Further, in the absence of an agreement

We need not decide whether the traditional injunction requirements apply to anti-suit injunctions
because, even assuming they do not apply, YIG has still failed to meet its burden because it did not
produce any evidence on the requirements specific to anti-suit injunctions.
11
More than half a century ago, the Texas Supreme Court explained why competent evidence is
required to support a request for temporary injunction:

An applicant for a temporary injunction seeks extraordinary equitable relief. He seeks to
immobilize the defendant from a course of conduct which it may well be his legal right to
pursue. Crowded dockets, infrequent jury trial weeks, or trial tactics can often delay a
trial of a case on its merits for many months. The applicant has, and in equity and good
conscience ought to have, the burden of offering some evidence which, under applicable
rules of law, establishes a probable right of recovery. If not, no purpose is served by the
provisions of Rule 680, [Texas Rules of Civil Procedure], limiting the time for which a
restraining order granted without a hearing can operate and requiring a hearing before a
temporary injunction can issue. If he cannot or does not discharge his burden he is not
entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.

Camp v. Shannon, 162 Tex. 515, 519, 348 S.W.2d 517, 519 (1961).

10
between the parties, the proof required to support a judgment issuing a temporary

injunction may not be made by affidavit. Millwrights Local Union No. 2484, 433 S.W.2d

at 686; but see Pierce v. State, 184 S.W.3d 303, 307 (Tex. App.—Dallas 2005, no pet.)

(holding that ―a trial court may issue a temporary injunction based on affidavit testimony

admitted into evidence at the hearing thereon‖) (emphasis in original). And, ―remarks of

counsel during the course of a hearing are not competent evidence unless the attorney

is actually testifying.‖ Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 590 (Tex.

App.—Texarkana 2004, no pet.); see Collier Servs. Corp. v. Salinas, 812 S.W.2d 372,

377 (Tex. App.—Corpus Christi 1991, orig. proceeding); see also Compass Bank, 2011

Tex. App. LEXIS 1558, at *10.

3. Analysis

Two hearings were held on YIG’s request for injunctive relief. The first hearing

took place on January 19, 2011, the same day that YIG filed its petition in intervention

and request for injunctive relief. Counsel for YIG appeared in person and Gregory

Shamoun appeared personally by telephone. No witnesses were called, no evidence

was admitted, and the attorneys were not sworn and did not testify. Shamoun

explained to the trial court that he had not yet been served with YIG’s petition or request

for injunctive relief and so could not agree to a temporary restraining order enjoining

Shamoun from filing suit against YIG.12 The trial court granted the temporary restraining

order and scheduled a temporary injunction hearing for the following week. See TEX. R.

12
At the January 27, 2011 temporary injunction hearing and on appeal, YIG points to Shamoun’s
reluctance to agree to a temporary restraining order as evidence that Shamoun intended to file suit
against YIG in another venue, and therefore that YIG would suffer irreparable harm if the injunction did
not issue. However, the statements made by Shamoun’s counsel at the hearing are not evidence
because Shamoun was not sworn. See Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 590 (Tex.
App.—Texarkana 2004, no pet.).

11
CIV. P. 680 (―Every restraining order shall include an order setting a certain date for

hearing on the temporary or permanent injunction sought.‖).

The temporary injunction hearing took place on January 27, 2011. Counsel for

Yarto, YIG, and Shamoun all appeared in person and offered arguments. Again, no

witnesses were called and no sworn testimony was given by the attorneys. During the

course of the hearing, six documents were accepted as exhibits by the trial court. YIG

offered four documents: (1) Yarto’s motion for remand filed in bankruptcy court; (2) a

prior temporary anti-suit restraining order issued in a separate case on March 31, 2010,

which enjoined YIG, YITC, Winkler, Williams, and others from filing suit against Yarto;

(3) an order extending that temporary restraining order; and (4) a transcript of the

January 19, 2011 telephonic hearing. Counsel for Shamoun introduced: (1) Shamoun’s

December 1, 2010 letter to Williams, Winkler, and others addressing Shamoun’s status

up until that point as counsel of record for YIG; and (2) a ―Partial Release Agreement‖

executed by Yarto, dated December 6, 2010, in which Yarto ―and his attorneys, heirs

and assigns‖ agreed to release Shamoun from any and all claims related to the drafting

of settlement documents, with the exception of Yarto’s then-existing claim. Other than

the ―Partial Release Agreement,‖ which was sworn to by Yarto, none of the six

documents that were accepted by the trial court as exhibits contained sworn

verifications. After the hearing, the trial court granted YIG’s request for a temporary

injunction barring Shamoun from filing suit against YIG in any other venue.

On appeal, Shamoun argues that the trial court erred by granting the injunction

because YIG ―failed to meet any evidentiary burden placed on them‖ by rule or case

12
law. 13 We agree. As noted, an applicant for injunction must establish its probable right

to recovery and a probable injury by competent evidence adduced at a hearing.

Millwrights Local Union No. 2484, 433 S.W.2d at 686. Here, no witnesses presented

sworn testimony at either the January 11 or January 27 hearings. Moreover, the

documents which were introduced by YIG as exhibits at the January 27 hearing were

not authenticated by testimony, nor were they self-authenticating by virtue of being

sworn to or verified.14 The only ―evidence‖ upon which the trial court based its ruling

was YIG’s sworn petition, the argument of counsel, and the six documents accepted as

exhibits at the hearing. This was, in effect, no evidence. See id.; Bay Fin. Sav. Bank,

FSB, 142 S.W.3d at 590; see also Compass Bank, 2011 Tex. App. LEXIS 1558, at *9–

10.15 Accordingly, the trial court abused its discretion by granting the anti-suit

injunction. See Millwrights Local Union No. 2484, 433 S.W.2d at 686; see also

13
At oral argument, YIG asserted that Shamoun waived this issue by failing to present it to the
trial court. See TEX. R. APP. P. 33.1. However, Shamoun’s complaint is essentially that there was legally
insufficient evidence to support the trial court’s order granting the injunction; and, ―[i]n a nonjury case, a
complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on
appeal in the complaining party’s brief.‖ TEX. R. APP. P. 33.1(d). We therefore reject YIG’s contention
that the issue was waived.
14
The general rule established in Millwrights is that, in the absence of an agreement between the
parties, the proof required to support a temporary injunction may not be made by affidavit. Millwrights
Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683, 686 (Tex. 1968). We note, however, that the
Dallas Court of Appeals held in 2005 that ―a trial court may issue a temporary injunction based on affidavit
testimony admitted into evidence at the hearing thereon.‖ Pierce v. State, 184 S.W.3d 303, 307 (Tex.
App.—Dallas 2005, no pet.) (emphasis in original). We do not herein approve or disapprove of Pierce,
but instead merely note that, in any event, YIG did not introduce any affidavits or other verified documents
as evidence at either injunction hearing.
15
YIG notes that, in a 2005 memorandum opinion, this Court found evidence supporting a
temporary injunction to be sufficient, even in the absence of live testimony, where court documents had
been judicially noticed by the trial court. See Tex. Mut. Ins. Co. v. Howell, No. 13-05-026-CV, 2005 Tex.
App. LEXIS 6950, at *22–23 (Tex. App.—Corpus Christi Aug. 25, 2005, pet. granted, judgm’t vacated
w.r.m.) (mem. op.). Here, however, the record reflects that the trial court never formally took judicial
notice of the various documents produced at the January 27, 2011 hearing. Moreover, while this Court
may take judicial notice of court documents on appeal, see Office of Pub. Util. Counsel v. Pub. Util.
Comm’n, 878 S.W.2d 598, 600 (Tex. 1994), no such request was made by any party in this case.
Accordingly, the documents cannot by themselves be considered competent evidence supporting the
temporary injunction order.

13
Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., 975 S.W.2d 546,

560 (Tex. 1998) (―[A] trial court has no discretion to grant injunctive relief . . . without

supporting evidence.‖).

B. Interlocutory Appeal of Venue Determination

In appellate cause number 13-11-00256-CV, Shamoun argues that the trial court

erred by denying its motion to transfer venue because Yarto and YIG did not

―independently establish venue as required under [Texas Civil Practice and Remedies

Code section] 15.003(a).‖ See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a) (―In a suit

in which there is more than one plaintiff, whether the plaintiffs are included by joinder,

by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise,

each plaintiff must, independently of every other plaintiff, establish proper venue.‖).

Citing the Texas Supreme Court’s 2000 opinion in American Home Products

Corp. v. Clark, YIG contends that we lack jurisdiction to consider Shamoun’s appeal

regarding venue because the statute allegedly authorizing an interlocutory appeal,

section 15.003, applies only to orders ―allowing or denying intervention or joinder.‖ See

38 S.W.3d 92, 96 (Tex. 2000). We agree. The order on appeal does not purport to

allow or deny YIG’s intervention in the case; instead, it merely denies Shamoun’s

motion to transfer venue. We note that, in 2006, we observed that section 15.003 was

amended post-Clark to clarify that ―interlocutory appeals are available in all venue

determinations involving multiple plaintiffs where joinder is challenged.‖ Sw. Bell Tel.

Co. v. Superior Payphones, Ltd., 13-05-00661-CV, 2006 Tex. App. LEXIS 1502, at *7

(Tex. App.—Corpus Christi Feb. 23, 2006, pet. dism’d by agr.) (mem. op.). However, at

no time did Shamoun challenge YIG’s intervention or joinder in the case; instead, it only

sought to transfer the case on the basis that YIG had not independently established
14
venue. A direct appeal may not be taken from an order merely ruling on a motion to

transfer venue. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a) (West 2002)

(providing generally that ―[n]o interlocutory appeal shall lie from the determination [of

venue questions]‖). We conclude that we lack jurisdiction over Shamoun’s interlocutory

appeal in appellate cause number 13-11-00256-CV. We proceed to consider

Shamoun’s petition for writ of mandamus challenging the trial court’s denial of its motion

to transfer.

C. Petition for Writ of Mandamus

In appellate cause number 13-11-00281-CV, Shamoun asks that we issue a writ

of mandamus compelling the trial court to: (1) grant Shamoun’s motion to transfer; and

(2) grant, or at least rule upon, the agreed motion to transfer filed by Yarto. Shamoun

specifically alleges that Yarto and YIG consented to the venue transfer by entering into

the settlement agreement and, in the case of Yarto, by filing an agreed motion to

transfer. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(b) (West Supp. 2010); see

also id. § 15.063(3) (West 2002).

1. Standard of Review

Ordinarily, mandamus will issue only to correct a clear abuse of discretion for

which the remedy by appeal is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135–36 (Tex. 2004) (orig. proceeding). The Texas Supreme Court has held that,

―[g]enerally, an appellate remedy is adequate even though it involves delay and more

expense than obtaining an extraordinary writ‖ and that ―venue determinations as a rule

are not reviewable by mandamus.‖ In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.

1999); In re Mendoza, 83 S.W.3d 233, 236 (Tex. App.—Corpus Christi 2002, orig.

proceeding); see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(c) (West 2002) (―A
15
court’s ruling or decision to grant or deny a transfer under Subsection (b) [providing for

transfer based on the non-mandatory venue provisions of subchapters A or C of chapter

15] is not grounds for appeal or mandamus and is not reversible error.‖); In re Gibbs,

No. 13-08-00134-CV, 2008 Tex. App. LEXIS 2327, at *2 (Tex. App.—Corpus Christi

Apr. 1, 2008, orig. proceeding) (mem. op.) (per curiam) (―We lack jurisdiction to issue

writs of mandamus to supervise or correct incidental trial rulings when there is an

adequate remedy by appeal . . . . Incidental rulings include venue determinations.‖).

However, an exception to this rule exists for the mandatory venue provisions

contained in subchapter B of chapter 15 of the civil practice and remedies code. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.011–.020 (West Supp. 2010). Mandamus

relief is available when a trial court erroneously denies enforcement of one of those

provisions. Id. § 15.0642 (West 2002) (―A party may apply for a writ of mandamus with

an appellate court to enforce the mandatory venue provisions of this chapter.‖).

Moreover, when enforcement of a mandatory venue provision is sought, the relator

need not show that it has an inadequate remedy by appeal. In re Tex. Ass’n of Sch.

Bds., Inc., 169 S.W.3d 653, 657 (Tex. 2005) (orig. proceeding) (citing In re Mo. Pac.

R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999) (orig. proceeding)).

2. Applicable Law

In general, the fixing of venue by contract is invalid. In re Great Lakes Dredge &

Dock Co., 251 S.W.3d 68, 76 (Tex. App.—Corpus Christi 2008, orig. proceeding) (citing

Fid. Union Life Ins. Co. v. Evans, 477 S.W.2d 535, 537 (Tex. 1972)). An exception to

that general rule appears in section 15.020 of the civil practice and remedies code,

which states that contractual venue selection clauses may be enforceable in cases

involving ―major transactions.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 15.020. A ―major
16
transaction‖ is ―a transaction evidenced by a written agreement under which a person

pays or receives, or is obligated to pay or entitled to receive, consideration with an

aggregate stated value equal to or greater than $1 million.‖ Id. § 15.020(a).16 Section

15.020 is one of the mandatory venue provisions contained in chapter 15 of the civil

practice and remedies code and is therefore enforceable by mandamus. See id. §

15.0642.

3. Analysis

Shamoun argues that the settlement agreement executed on December 9, 2010,

evidenced a ―major transaction‖ as defined by the statute. We agree. The agreement

was in writing and called for a party to the agreement, YITC, to make settlement

payments totaling $1,777,500. The amounts of the payments were explicitly set forth in

the agreement. Cf. In re Togs Energy, Inc., No. 05-09-01018-CV, 2009 Tex. App.

16
The definition of ―major transaction‖ excludes transactions ―entered into primarily for personal,
family, or household purposes, or to settle a personal injury or wrongful death claim . . . .‖ TEX. CIV. PRAC.
& REM. CODE ANN. § 15.020(a) (West Supp. 2010). Moreover, the mandates of section 15.020 are not
applicable where: (1) the agreement regarding venue was unconscionable at the time that it was made;
(2) the agreement regarding venue is voidable under chapter 272 of the business and commerce code,
relating to construction and repairs of improvements to real estate; or (3) venue is established under a
statute other than title 2 of the civil practice and remedies code. Id. § 15.020(d).

It is undisputed that these caveats do not apply, with one exception: YIG contends that the
agreement regarding venue was unconscionable at the time it was made. We disagree. All parties to the
December 9, 2010 agreement were sophisticated business entities and were represented by competent
counsel throughout the settlement negotiations. Though YIG complains that Shamoun was representing
it at the time the settlement was reached, the December 1, 2010 letter sent by Shamoun to YIG clearly
advised YIG that Shamoun’s representation of YIG had in fact ceased. Moreover, an agreement to
litigate in a forum in which the parties had already participated in mediation is not inherently unfair. We
find that the venue selection clauses in the December 9, 2010 settlement agreement were not
unconscionable at the time they were made. See In re Poly-America, L.P., 262 S.W.3d 337, 348–49
(Tex. 2008) (orig. proceeding) (―Unconscionability is to be determined in light of a variety of factors, which
aim to prevent oppression and unfair surprise; in general, a contract will be found unconscionable if it is
grossly one-sided.‖) (citing RESTATEMENT (SECOND) OF CONTRACTS § 208, cmt. a (1979) (―The
determination that a contract or term is or is not unconscionable is made in the light of its setting,
purpose, and effect. Relevant factors include weaknesses in the contracting process like those involved
in more specific rules as to contractual capacity, fraud, and other invalidating causes; the policy also
overlaps with rules which render particular bargains or terms unenforceable on grounds of public
policy.‖)).

17
LEXIS 7949, at *2 (Tex. App.—Dallas Oct. 13, 2009, orig. proceeding) (mem. op.)

(concluding that section 15.020 did not apply because agreement did not state the value

of consideration). Yarto contends that section 15.020 does not apply to him because,

although the agreement provided for payments in excess of $1 million to be made,

Yarto ―neither paid nor received $1 million from anyone.‖ However, the statute does not

require that a party to the potentially transferred lawsuit be obligated to pay or entitled to

receive $1 million or more in consideration; instead, it merely requires that ―a person‖ be

obligated to pay or entitled to receive such consideration. See TEX. CIV. PRAC. & REM.

CODE ANN. § 15.020(a). Moreover, though the statute does not define ―person,‖ the

Texas Supreme Court has implied that transactions solely between corporate entities

may be subject to section 15.020. See In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d

at 657–58 (holding that section 15.020 was not applicable to suit arising from insurance

contract between corporate entities only because insurance coverage limits could not

be included in the ―aggregate stated value‖ of consideration).17

We must next determine whether the actions brought by Yarto and YIG,

respectively, ―ar[ose] from‖ the transaction evidenced by the December 9, 2010

agreement. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(b).

Yarto’s claims were first brought several months before the global settlement

agreement was finalized. In a 2008 memorandum opinion, the Fourteenth Court of

Appeals held that ―[i]t would be erroneous to conclude that venue of a suit is fixed by

agreement under section 15.020(b) when the claimed agreement was not executed until

17
The statute is ambiguous in that it does not state whether one single party must be obligated to
pay or entitled to receive more than $1 million, or if multiple obligations between various parties may be
aggregated in order to reach the $1 million amount. In any event, assuming without deciding that the
former construction of the statute is correct, the agreement at issue qualifies as a ―major transaction‖
because one single party—YITC—was obligated to pay the entire $1,777,500 in consideration.

18
weeks after suit was filed.‖ In re Medical Carbon Research Institute, L.L.C., No. 14-08-

00104-CV, 2008 Tex. App. LEXIS 2518, at *4 (Tex. App.—Houston [14th Dist.] Apr. 9,

2008, orig. proceeding) (mem. op.) (per curiam). We agree with that court’s reasoning.

Venue is to be determined by examining the facts existing at the time the cause of

action accrued. TEX. CIV. PRAC. & REM. CODE ANN. § 15.006 (West 2002). Yarto filed

suit on April 28, 2010, more than seven months before the settlement agreement was

executed on December 9, 2010. The facts at the time of the accrual of Yarto’s cause of

action therefore did not include the existence of a settlement agreement containing

venue selection provisions. See id. It follows that Yarto’s claims did not ―arise from‖ the

transaction evidenced by that agreement, and section 15.020 does not apply to Yarto’s

claims.18

On the other hand, YIG’s petition in intervention was filed on January 19, 2011,

several weeks after the settlement agreement was executed. Although YIG’s petition

raised many of the same allegations as those originally raised by Yarto, YIG’s principal

complaint against Shamoun is that Shamoun ―represent[ed] [YIG] in the course of the

global settlement, and extracted terms and conditions of settlement for the benefit of

[Shamoun] and to the detriment of [YIG].‖ Accordingly, YIG’s claim ―ar[ose] from‖ the

settlement agreement.

18
Shamoun argues that Yarto waived his ability to oppose transfer to Travis County by filing the
December 29, 2010 agreed motion to transfer. In support of this argument, Shamoun cites Farris v. Ray,
895 S.W.2d 351, 352 (Tex. 1995), in which the Texas Supreme Court found that an appellant waived his
ability to appeal the trial court’s transfer order because he previously joined in a rule 11 agreement
consenting to the transfer. We do not find this argument persuasive because, regardless of what position
Yarto may have taken in the trial court, Shamoun still failed to show that a mandatory venue statute
compelled transfer of Yarto’s claims. Therefore, Shamoun is not entitled to mandamus relief on those
grounds.

19
 But this observation does not end our inquiry, because the major transaction

statute does not apply to all suits arising out of major transactions. Instead, subsections

(b) and (c) of the statute restrict the operation of the statute to limited circumstances.

First, subsection (b) states that ―[a]n action arising from a major transaction shall

be brought in a county if the party against whom the action is brought has agreed in

writing that a suit arising from the transaction may be brought in that county.‖ Id. §

15.020(b) (emphasis added). Here, ―the party against whom the action is brought‖—

i.e., Shamoun—did not agree in writing that ―a suit arising from‖ a major transaction may

be brought in Travis County. Shamoun was not a signatory or party to the settlement

agreement, and so it cannot be said to have ―agreed in writing‖ as to venue in that

agreement, regardless of whether Shamoun is considered a third-party beneficiary to

that agreement. And, although counsel for Shamoun signed the written ―Agreed Motion

to Transfer Venue‖ filed by Yarto, we have already held that Yarto’s suit did not ―arise

from‖ a major transaction. See id. Subsection (b) therefore does not apply to YIG’s

claims.

Next, subsection (c) of the statute states that ―[a]n action arising from a major

transaction may not be brought in a county‖ if:

(1) the party bringing the action has agreed in writing that an action
arising from the transaction may not be brought in that county, and
the action may be brought in another county of this state or in
another jurisdiction; or

(2) the party bringing the action has agreed in writing that an action
arising from the transaction must be brought in another county of
this state or in another jurisdiction, and the action may be brought
in that other county, under this section or otherwise, or in that other
jurisdiction.

20
Id. § 15.020(c) (emphasis added). Here, ―the party bringing the action‖—i.e., YIG—

agreed in section 27 of the settlement agreement that ―ANY AND ALL CLAIMS . . .

RELATING TO THIS AGREEMENT . . . SHALL BE FILED AND MAINTAINED ONLY IN

AN APPROPRIATE STATE OR FEDERAL COURT IN TRAVIS COUNTY, TEXAS.‖

This is a written agreement that ―an action arising from‖ the major transaction ―must be

brought‖ in Travis County. See id. § 15.020(c)(2). Accordingly, subsection (c)(2) of

section 15.020 will compel the transfer of YIG’s suit if and only if ―the action may be

brought in [Travis County], under this section or otherwise. . . .‖ Id. § 15.020(c)(2)

(emphasis added).19

We cannot conclude that YIG’s action ―may be brought‖ in Travis County. The

general venue statute states that all lawsuits shall be brought:

(1) in the county in which all or a substantial part of the events or
omissions giving rise to the claim occurred;

(2) in the county of defendant’s residence at the time the cause of
action accrued if defendant is a natural person;

(3) in the county of the defendant’s principal office in this state, if the
defendant is not a natural person; or

(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which
the plaintiff resided at the time of the accrual of the cause of action.

Id. § 15.002(a). As noted, the principal complaint against Shamoun contained in YIG’s

petition in intervention is that Shamoun ―represent[ed] [YIG] in the course of the global

settlement, and extracted terms and conditions of settlement for the benefit of

[Shamoun] and to the detriment of [YIG].‖ However, YIG does not allege, and the

19
YIG also agreed in section 15 of the settlement agreement that ―none of the Yarto Parties
[including YIG]. . . shall be permitted to bring a Shamoun Claim in any court not located in Travis County,
Texas.‖ This provision applies only to ―Shamoun Claims‖ and does not state that any action arising from
the transaction must not be brought in a particular county; therefore, subsection (c)(1) of section 15.020
does not apply. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020(c)(1).

21
record does not reveal, that at least a ―substantial part‖ of the actions taken by

Shamoun as alleged by YIG occurred in Travis County. See id. § 15.002(a)(1).20

Though the 2010 mediation, which forms the basis of Yarto’s suit, occurred in Travis

County, YIG’s pleadings do not state implicitly or explicitly that any part of Shamoun’s

allegedly tortious acts or omissions took place at that mediation. Moreover, Travis

County is not the location of Shamoun’s principal place of business, nor is it the county

of residence of either Shamoun’s or YIG’s principals. See id. § 15.002(a)(2)–(4). Travis

County is therefore not a proper venue under the general venue statute, and so it

cannot be said that YIG’s action ―may be brought‖ there. See id. § 15.020(c)(2).

Section 15.020(c)(2) does not apply.

As noted, mandamus will issue to correct a venue ruling only if a mandatory

venue provision located in subchapter B of chapter 15 of the civil practice and remedies

code applies. See id. § 15.0642; In re Masonite Corp., 997 S.W.2d at 197. The major

transaction statute is the only mandatory venue provision invoked by Shamoun in its

petition for writ of mandamus. Accordingly, we conclude that Shamoun is not entitled to

a writ of mandamus compelling the trial court to transfer venue to Travis County.

However, Shamoun’s petition also argued that the trial court abused its

discretion, leaving Shamoun without an adequate appellate remedy, by refusing to rule

on the December 29, 2010 ―Agreed Motion to Transfer‖ filed by Yarto and signed by

counsel for Shamoun. We agree. A trial court has a ministerial duty to consider and

rule on motions properly filed and pending before the court within a reasonable time and

20
We note that Shamoun’s original motion to transfer, which was filed on April 29, 2010 in
response to Yarto’s petition, asserted only that Dallas County and Collin County were proper venues for
Yarto’s suit—despite the fact that Yarto’s petition alleged in part that Shamoun ―disclosed confidential
communications‖ to adverse parties during a 2010 mediation in Travis County. YIG’s petition in
intervention, in comparison, does not contain that allegation.

22
mandamus may issue to compel the judge to act. In re Layton, 257 S.W.3d 794, 795

(Tex. App.—Amarillo 2008, orig. proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d

268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). Here, though the ―Agreed

Motion to Transfer‖ was properly filed, the trial court’s April 11, 2011 letter to Shamoun

indicated unequivocally that it does not intend to rule on the motion. 21 See supra n.7.

This constitutes a clear abuse of discretion. Eli Lilly & Co. v. Marshall, 829 S.W.2d 157,

158 (Tex. 1992) (holding that trial court abused its discretion by ―refusing to conduct a

hearing and render decision‖ on a properly filed motion); In re Mission Consol. Indep.

Sch. Dist., 990 S.W.2d 459, 461 (Tex. App.—Corpus Christi 1999, orig. proceeding)

(―[C]ourts of appeals have the power to compel the trial judge by mandamus to rule on

pending motions.‖). We therefore grant Shamoun’s petition for writ of mandamus in

part.

III. CONCLUSION

In appellate cause number 13-11-00087-CV, we reverse the trial court’s

judgment granting YIG’s request for a temporary anti-suit injunction, and we remand the

cause for further proceedings consistent with this opinion. We dismiss Shamoun’s

appeal in appellate cause number 13-11-00256-CV for want of jurisdiction. Finally, in

appellate cause number 13-11-00281-C, we conditionally grant Shamoun’s petition for

writ of mandamus in part and direct the trial court to rule upon Yarto and Shamoun’s

―Agreed Motion to Transfer‖ within thirty days of the date of this opinion. The writ will

21
Yarto contends that the trial court committed no abuse of discretion in failing to rule on the
motion because Shamoun never set the motion for a hearing. However, the trial court’s duty to rule on
the motion was not contingent on Shamoun’s calling the motion for a hearing; rather, the duty arose when
Shamoun sent its April 7, 2011 letter to the trial court requesting that it rule on the motion. See O’Connor
v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (―Mandamus will issue when there is a legal duty
to perform a non-discretionary act, a demand for performance, and a refusal.‖).
23
issue only if the trial court fails to comply. The petition for writ of mandamus is in all

other respects denied.

_________________________
DORI CONTRERAS GARZA
Justice

Delivered and filed the
19th day of January, 2012.

24