                                                                                    ACCEPTED
                                                                                 14-15-00611-cv
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           9/11/2015 2:09:52 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                        NO. 14-15-00611-CV

                                                               FILED IN
                                                        14th COURT OF APPEALS
               In the Court of Appeals                     HOUSTON, TEXAS
                                                        9/11/2015 2:09:52 PM
for the Fourteenth Judicial District at Houston, Texas  CHRISTOPHER A. PRINE
                                                                 Clerk




               PABLO RION Y ASOCIADOS, S.A. DE C.V.
                            Appellant,

                                  v.

      DAVID DAUAJARE AND GABRIELA MARTINEZ DE DAUAJARE
                          Appellees.


                           On Appeal from
     The 400th Judicial District Court of Fort Bend County, Texas
                     Cause No. 13-DCV-208485


  REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS



                                   Farbod Farnia
                                   State Bar No. 24078493
                                   ffarnia@mccathernlaw.com

                                   MCCATHERN, PLLC
                                   3710 Rawlings, Suite 1600
                                   Dallas, TX 75219
                                   Phone: (214) 741-2662
                                   Fax: (214) 741-4717

                                   Counsel for Appellees
      REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS

      COME NOW, Appellees David Dauajare and Gabriela Martinez de

Dauajare, and file this, their Reply in Support of Appellees’ Motion to Dismiss

pursuant to Texas Rule of Appellate Procedure 10.1.         In support, Appellees

respectfully show the Court as follows:

                                 I. BACKGROUND
      Appellant’s Response leaves no doubt: Appellant seeks to re-litigate issues

already decided on mandamus and challenge the Trial Court for refusing to adorn

its order of dismissal with conditions beyond the scope of this Court’s mandate.

An appeal on those grounds would be frivolous and should be dismissed before the

Court and the parties waste further resources on needless re-review of matters

already conclusively resolved.

                                 II. ARGUMENT
      This Court “direct[ed] the trial court to vacate its February 3, 2014 order

denying relators’ motion to dismiss for forum non conveniens and to dismiss the
                                 1
case on forum non conveniens.”       The Trial Court did exactly that, and had no

discretion to do otherwise. Appellant now seeks to challenge the Trial Court’s


1
 See In re Dauajare-Johnson No. 14-14-00256-CV, 2014 WL 3401094 at *12 (Tex. App. –
Houston [14th Dist.] July 10, 2014) (original proceeding).

                                            2
dismissal order on two grounds. First, Appellant argues that this Court’s ruling on

mandamus is not law of the case and may be revisited on appeal because “the prior

mandamus proceeding did not involve questions of law.” 2 Second, Appellant

argues that the Trial Court erred by declining to impose three “conditions” on its

order of dismissal that Appellant requested in a post-dismissal “Motion to Modify,

Correct, or Reform or for a New Trial” (“MNT”) – a motion that Appellant never

set for hearing and which was denied by operation of law. 3

         Appellant is wrong on both counts, and its Response confirms that this

matter should be dismissed before briefing on the merits.

A. This Court’s Opinion and Order are Law of the Case

         The question on mandamus was whether the Trial Court abused its

discretion by refusing to dismiss Appellant’s case on grounds of forum non-

conveniens. This Court concluded that it had, and directed the Trial Court to


2
    Response at 4.
3
 Specifically, Appellant requested that the Trial Court’s order of dismissal state: (1) that the case
may be refiled in a federal district court in Mexico City or a local court of first instance in
Mexico City; (2) that the Daujares’ agree to submit themselves to personal jurisdiction in
Mexico; and (3) that in the event the court in Mexico City declined jurisdiction, the case would
be reinstated in Trial Court. Notably, in addition to the arguments made below, conditions (1)
and (2) would have been entirely superfluous since this Court already determined that the
Mexican courts would have jurisdiction because Appellees had submitted affidavits agreeing to
submit to the jurisdiction of the Mexican courts. See In re Dauajare-Johnson, 2014 WL
3401094 at *4-5.



                                                     3
dismiss the case on grounds of forum non-conveniens. That was a legal answer to

a legal question, and as law of the case it “govern[s] the case through its

subsequent stages,” including any subsequent appeal. 4

         Appellant argues that this Court’s prior decision is not law of the case,

however, because it “could not have been based purely on questions of law,” and

indeed “did not involve questions of law” at all.5 That must come as a surprise to

this Court, which referred to its forum non-conveniens analysis as a “question of

law” or “legal question” no fewer than five times. 6

         More fundamentally, Appellant is not correct that the law of the case

doctrine applies only to “pure” questions of law. Although the doctrine does not

preclude subsequent review of mixed questions of law and fact when the facts have

changed since the earlier decision – for example, when a case goes to trial after

interlocutory review of a summary judgment decision 7 – an appellate decision

indisputably remains law of the case when the facts “did not substantially change”



4
  Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see also EP Energy E & P Co. v. Cudd
Pressure Control, Inc., No. 14-13-00734-CV, 2014 WL 7345938 at *4 (Tex. App. – Houston
[14th Dist.] Dec. 23, 2014, pet. denied) (“A reviewing court may not again decide any matter that
was in effect disposed of on a former appeal or mandamus to that court.”).
5
    Response at 4.
6
    In re Dauajare-Johnson, 2014 WL 3401094 at *6, *8, *10, *11.
7
    See, e.g., Hudson, 711 S.W.2d at 631.

                                                   4
on remand. 8 Here, there has been no change whatsoever in the factual record since

the Court’s prior decision because there were no further proceedings in the Trial

Court apart from: (1) entry of the order or dismissal; and (2) denial by operation of

law of the Appellant’s MNT. The factual record now is identical to the factual

record on mandamus. As such, the Court’s prior decision is law of the case and

may not be revisited. 9

B.       The Trial Court Had No Authority to Place “Conditions” On Its Order
         of Dismissal
         Appellant also argues that the Trial Court erred by refusing to place

“conditions” on its order of dismissal. It did not. An unambiguous appellate order

“permit[s] the trial court to make but one decision,”10 and the “trial court has no

authority to take any action that is inconsistent with or beyond the scope of that

which is necessary to give full effect to the appellate court’s judgment and

mandate.”11


8
  EP Energy E & P Co., 2014 WL 7345938 at *6; see also J.O. Lockridge Gen. Contractors, Inc.
v. Morgan, 848 S.W.2d 248, 250 (Tex. App. – Dallas 1993, writ denied) (“The doctrine applies if
the facts in the second trial are substantially the same as in the first trial or so nearly the same
that they do not materially affect the legal issues involved in the second trial.”).
9
    See EP Energy E & P Co., 2014 WL 7345938 at *6; Morgan, 848 S.W.2d at 250.
10
  Keller Indus. v. Blanton, 804 S.W.2d 182, 185 (Tex. App. – Houston [14th Dist.] 1991, no
writ).
11
   Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013) (affirming reversal of trial court
judgment that exceeded mandate of court of appeals).

                                                     5
           This Court’s order was unambiguous. It directed the Trial Court “to dismiss

the case on forum non conveniens” – full stop. 12 It did not tell the Trial Court to

dismiss the case with the conditions that Appellant later sought in its MNT, and

those conditions were in no way necessary “to give full effect” to this Court’s

mandate. 13 This Court’s mandate – to “dismiss the case on forum non conveniens”

– was given its fullest possible effect when the Trial Court did as instructed. The

additional conditions requested by Appellees were “beyond the scope” of this

Court’s mandate and thus beyond the scope of the Trial Court’s discretion on

remand. 14

C.         Appellant’s Failure to Set Its MNT for Hearing Precludes Review

           Appellant seeks to appeal the Trial Court’s denial of its MNT by operation

of law, and in particular its denial of Appellant’s request for extra conditions on its

order of dismissal. But this Court would review the Trial Court’s denial of the

MNT for abuse of discretion,15 and “[t]here is no abuse of discretion when the

movant fails to call his motion to the attention of the trial court through the request

12
     See In re Dauajare-Johnson, 2014 WL 3401094 at *12.
13
     Phillips, 407 S.W.3d at 234.
14
     Id.
15
   See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984) (“A motion for new trial is
addressed to the trial court's discretion and the court's ruling on such will not be disturbed on
appeal in the absence of a showing of an abuse of that discretion.”).

                                                   6
of a hearing, and instead allows it to be overruled by operation of law.”16

Appellant argues that this rule applies only where there has been a default

judgment, but that is wrong. This Court has consistently refused to review the

denial of a motion for new trial that the appellant never set for a hearing, regardless

of whether the case involved a default judgment. 17 Appellant’s failure to set its

MNT for a hearing deprived the Trial Court of “an opportunity to exercise [its]

discretion,”18 and precludes any finding on appeal that the Trial Court’s denial of

the MNT was an abuse of that discretion.




16
   Monk v. Westgate Homeowners' Ass'n, Inc., No. 14-07-00886-CV, 2009 WL 2998985, at *3
(Tex. App. – Houston [14th Dist.] Aug. 11, 2009, no pet.) (citing Shamrock Roofing Supply, Inc.
v. Mercantile Nat'l Bank, 703 S.W.2d 356, 357-58 (Tex.App.—Dallas 1985, no writ)).
17
   See Monk, 2009 WL 2998985, at *3 (summary judgment); McGuire v. Comm’n for Lawyer
Discipline, No. 14-01-00920, 2003 WL 359289, at *1 (Tex. App. – Houston [14th Dist.] Feb. 20,
2003, no pet.) (consent judgment). Other courts of appeals have also applied the principle in
cases not involving default judgments. See Nat. Med. Fin. Servs., Inc. v. Irving Ind. Sch. Dist.,
150 S.W.3d 901, 904-05 (Tex. App. – Dallas 2004, no pet.) (bench trial); Carson v. El Capitan
Apartments, No. 05-13-01481-CV, 2015 WL 169879, at *3 (Tex. App. – Dallas Jan 14. 2015, no
pet.) (summary judgment); Newby v. Pope, No. 07-97-0186-CV, 1998 WL 830855, at *4 (Tex.
App. – Amarillo Nov. 30 1998, pet. denied) (not designated for publication) (summary
judgment); Vernon E. Faulconer, Inc. v. HFI, Ltd. P’ship, 970 S.W.2d 36, 38-39 (Tex. App. –
Tyler 1998, no pet.) (judgment on arbitration award); Couey v. State, No. 09-96-345 CV, 1997
WL 30917, at *1 (Tex. App. – Beaumont Jan. 23, 1997, no pet.) (not designated for publication)
(dismissed for want of jurisdiction).
18
     Shamrock Roofing Supply, 703 S.W.2d at 357-58.

                                                   7
                       III.      CONCLUSION & PRAYER
      WHEREFORE, Appellees respectfully request that this Court dismiss the

appeal and award just damages to Appellees, and for all other relief, at law or in

equity, to which they show themselves justly entitled.



                                      Respectfully Submitted,

                                      /s/ James E. Sherry
                                      Farbod Farnia
                                      State Bar No. 24078493
                                      ffarnia@mccathernlaw.com
                                      Jennette E. DePonte
                                      State Bar No. 00795935
                                      jdeponte@mccathernlaw.com
                                      James E. Sherry
                                      State Bar No. 24086340
                                      jsherry@mccathernlaw.com

                                      MCCATHERN, PLLC
                                      Regency Plaza
                                      3710 Rawlins, Suite 1600
                                      Dallas, Texas 75219
                                      Phone: (214) 741-2662
                                      Fax: (214) 741-4717




                                            8
                            CERTIFICATE OF SERVICE
     I certify that a true copy of this Reply in Support of Appellees’ Motion to
Dismiss was served on the following counsel in the manner indicated on
September 11, 2015.

VIA E-SERVICE
Daniel W. Jackson
Scott K. Vastine
THE JACKSON LAW FIRM
3900 Essex Ln., Ste. 1116
Houston, Texas 77027

Counsel for Appellant

                                           /s/ James E. Sherry
                                           James E. Sherry




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