Kody Russell Kothmann v. Elizabeth Tuttle and Michael Scanio ( 1996 )

Kothmann TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00368-CV



Kody Russell Kothmann, Appellant

v.

Elizabeth Tuttle and Michael Scanio, Appellees



FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT NO. 90-0773, HONORABLE LINDA RODRIGUEZ, JUDGE PRESIDING

Appellant, Kody Russell Kothmann, appeals from the trial court's denial of his motion to dissolve a prior injunction. His former wife, Elizabeth Tuttle, and her attorney, Michael Scanio, are appellees. Kothmann brings two points of error, complaining that the trial court abused its discretion in refusing to dissolve the injunction and in granting attorney's fees. We will reverse the trial court's judgment.

BACKGROUND

This appeal is part of a complex and lengthy dispute between Elizabeth Tuttle and Kody Kothmann following their divorce in Lubbock in 1987. We will set forth details sufficient to give a proper context for this chapter of their dispute; a more complete picture of the parties' protracted wrangling is set forth in Scanio v. McFall, 877 S.W.2d 888 (Tex. App.--Amarillo 1994, orig. proceeding).

Kothmann appealed the trial court's original order granting the divorce. After that judgment was affirmed on appeal, he began a series of motions to reduce his court-ordered child support. Because Tuttle and the children had moved to San Marcos, these post-divorce matters were transferred from Lubbock County to Hays County. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 129 (Tex. Fam. Code Ann. § 11.06, since repealed and re-codified at Tex. Fam. Code Ann. § 103.002(a)). After a trial on Kothmann's motion to reduce support and Tuttle's motion to enforce support, Kothmann was held in contempt, assessed attorney's fees and placed on probation. He eventually violated that probation and was arrested on a motion to revoke probation and a capias warrant issued from the Hays County trial court. Two days before the hearing on the motion to revoke probation in Hays County, Kothmann filed suit in Lubbock County against Tuttle, her attorney Scanio, his former attorney Clint Cook, and the Honorable Linda Rodriguez, the judge presiding in the Hays County action. In the Lubbock suit, Kothmann alleged a conspiracy among all the defendants to convert his property, falsely imprison him, defraud him and intentionally inflict emotional distress upon him. He sought to have the Lubbock court declare his Hays County arrest illegal and sought to enjoin the named parties from conspiring against him and his property. In November 1993, Kothman non-suited Judge Rodriguez and dropped his request for an injunction, but continued the remainder of his action against the other named parties. The Lubbock court denied Tuttle and Scanio's pleas in abatement, motions to transfer and motions to dismiss. Tuttle and Scanio sought a writ of mandamus and a writ of prohibition in the Amarillo Court of Appeals; while that appeal was pending, they obtained an injunction in the Hays County suit that commanded Kothmann and his attorneys and agents

to desist and refrain from directly or indirectly filing suit or proceeding with litigation in any other court related to the order issued by this Court in this cause, and from initiating or continuing discovery or proceeding with litigation in [the Lubbock action] from the date of entry of this order until further order of this Court; provided, however, said persons are not restrained from responding to mandamus and prohibition actions, taken by [Tuttle] and Michael Scanio in the Amarillo Court of Appeals.

When the Amarillo Court of Appeals declined to issue mandamus directing the Lubbock court to dismiss the lawsuit or to transfer it to Hays County and declined to issue a writ of prohibition barring the court from taking further action in Kothmann's Lubbock suit, Scanio, 877 S.W.2d at 894, Kothmann came back to Hays County and asked the trial court to dissolve its earlier injunction. Kothmann appeals the trial court's denial of his motion to dissolve the injunction.

JURISDICTION

Appellees raise two jurisdictional issues. They suggest that the trial court entered a permanent injunction that became final and non-appealable thirty days after it was signed, or thirty days after a timely filed motion for new trial was overruled. See Tex. R. Civ. P. 329b(d) & (e). They argue that because this final judgment was never appealed, the trial court lost its plenary jurisdiction to set aside that earlier final judgment except by bill of review. See Tex. R. Civ. P. 329b(f). Appellees further characterize this appeal from the denial of the motion to dissolve as an attack on the original injunction, and argue that this court does not have jurisdiction to consider this untimely appeal of that earlier order.

The very nature of this dispute and the specific language of the injunction belie the characterization of the court's action as a permanent injunction. If the court entered an injunction to protect its continuing jurisdiction of the parent-child relations between the parties, by its very nature the injunction was not a final judgment disposing of all issues between the parties, but rather was an effort by the court to protect its jurisdiction so that those "continuing" matters could be decided by that court. Furthermore, the language of the injunction itself reflects its temporary nature; the parties are enjoined "until further order of this Court." Because this injunction was temporary, we hold that the trial court had jurisdiction to revisit its appropriateness, and this court has jurisdiction to hear this appeal from the trial court's decision to deny the motion to dissolve the prior injunction. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(4) (West Supp. 1996).

In this appeal, we do not consider the correctness of the original injunction, but only whether the trial court abused its discretion in refusing to dissolve its original injunction. See Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex. App.--Houston [14th Dist.] 1990, no writ); Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 834 (Tex. App.--Austin 1984, no writ). The appellant has the burden to show that the trial court abused its discretion in refusing to dissolve the earlier order. Tober, 668 S.W.2d at 834. In the Tober decision, we suggested that the only basis for seeking dissolution of a temporary injunctive order is changed circumstances. Id. at 835. We now examine Kothmann's argument that the circumstances have changed sufficiently to make it an abuse of discretion to continue the original injunction in effect.

CHANGED CIRCUMSTANCES

Kothmann argues that after Tuttle and Scanio failed to persuade the Amarillo Court of Appeals to dismiss Kothmann's Lubbock lawsuit, or transfer it to Hays County, it was no longer appropriate for the Hays County court to continue its anti-suit injunction. We agree. A temporary injunction should only issue if the applicant pleads a cause of action and establishes a probable right on final trial to the relief sought and a probable injury in the interim. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Fasken v. Darby, 901 S.W.2d 591, 592 (Tex. App.--El Paso 1995, no writ h.). At the time the original injunction was granted, two days after the Lubbock court had denied appellees' pleas in abatement and motions to transfer or dismiss, the Hays County court might have disagreed with the Lubbock Court's ruling and might have been persuaded that Tuttle and Scanio had a probable right to ultimately prevail in their mandamus action. However, after Tuttle and Scanio failed to obtain a writ of mandamus or a writ of prohibition, they could no longer demonstrate a probable right to the relief they sought. For this reason, the appellate court decision changed the appropriateness of the injunctive relief granted by the Hays County court. It was an abuse of discretion for the trial court to continue the injunction once the appellees had lost their probable right to prevail in the relief they sought, that is the dismissal or transfer of the Lubbock lawsuit. The circumstance that changed was the possibility of appellees' prevailing in this matter.

The original injunction was entered after appellees had lost their pleas to the jurisdiction in the Lubbock trial court but before they had presented their argument to the appellate court. The writ of injunction enjoined Kothmann and his attorneys "until further order," indicating that it was not an attempt to forever prevent them from proceeding to trial in Lubbock. Without commenting on the correctness of the form of the injunction, we note that the Hays County court could have seen the anti-suit injunction as an appropriate action to preserve what it considered its "dominant jurisdiction" over the entire dispute between Kothmann, Tuttle and Tuttle's attorney, until the appropriate forum had been finally decided. See Gannon v. Payne, 706 S.W.2d 304, 305-06 (Tex. 1986) (state court may protect jurisdiction by enjoining parties to suit subsequently filed in another state court). Whether or not we agree with the decision issued by the Amarillo court, we hold that its decision could not be ignored by the Hays County trial court. Once the venue questions were finally decided adversely to Tuttle and Scanio, the Hays County court had no basis for continuing to enjoin Kothmann from proceeding with his lawsuit in Lubbock. It was an abuse of discretion for the Hays County district court to attempt to grant to appellees the mandamus relief that they were unsuccessful in obtaining from the Amarillo Court of Appeals. One district court does not sit to bar further action in another district court with co-equal powers. See Tex. Const. art. V, § 8; Tex. Gov't Code Ann. §§ 21.001 and 24.007 (West 1988).

We understand the trial court's frustration with Kothmann's stubborn refusal to follow the orders entered for the support of his children and its exasperation with his actions in protracting this post-divorce dispute. Nevertheless, we hold that the trial court abused its discretion in continuing the anti-suit injunction after the appellees had failed in their efforts to have the appellate court dismiss or transfer the Lubbock lawsuit. We sustain appellant's first point of error, reverse the trial court's decision and render judgment that the temporary injunction be dissolved. We further hold that the trial court abused its discretion in awarding attorney's fees to appellees. We therefore sustain appellant's second point of error and render judgment that appellees take no attorney's fees.

Bea Ann Smith, Justice

Before Justices Powers, Jones and B. A. Smith

Reversed and Rendered

Filed: February 7, 1996

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