It is well-settled that once the appeal is perfected, the trial court loses jurisdiction and the appellate court acquires jurisdiction over the order that is the subject of the appeal. In re Bonifice, 650 S.W.2d 776, 778 (Tex. 1983). An appeal is perfected by the filing of a proper cost bond or affidavit in lieu thereof, see id at 778, which Brown accomplished on July 1, 1997 by filing a cash deposit in lieu of a bond. By thus perfecting an appeal of the Order, this Court now has jurisdiction to enforce the Order.
The appellate court's exclusive jurisdiction over orders that are on appeal has been recognized in the context of efforts to enforce temporary injunctions, and related contempt proceedings:
After the jurisdiction of the Appellate Court attached, is alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending appeal .... The district court could exercise no such authority while power to consider and determine these very matters lay exclusively in a higher court.
Ex Parte Bonifice, 650 S.W.2d at 777 (emphasis added) (quoting Ex Parte Travis, 123 Tex. 480, 73 S.W.2d 487, 489 (1934)). Stated otherwise, once the jurisdiction of the appellate court has attached, the proceedings to enforce an order granting injunctive relief must be instituted in the appellate court rather than in the trial court. Id. at 778.
Court's have the inherent power to enforce court orders by finding parties before them in contempt of court. As the Supreme court recognized, "[t]he power to punish a party who fails or refuses to obey a prior order or decree of the court for contempt is an inherent power of a court and is an essential element of judicial independence and authority." Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980); Ex parte Pryor, 800 S.W.2d 511, 512 (Tex. 1990); see also Tex. Gov. Code Ann. 21.001 (stating that courts have all necessary power to enforce lawful orders and to control proceedings). The Texas Rules of Civil Procedure similarly authorize a court to enforce violations of an injunction. Specifically, the rules provide as follows:
Disobedience of an injunction may be punished by the court or judge, in term time or in vacation, as a contempt. . . . On return of such attachment or show cause order, the judge shall proceed to hear proof, and if satisfied that such person has disobeyed the injunction, either directly or indirectly, may commit such person to jail without bail until he purges himseff of such contempt, in such manner and form as the court or judge may direct.
Tex. R. Civ. P. 692 (emphasis added).
The Court's inherent power to enforce orders through holding a party in contempt is a necessary instrument in order to ensure compliance with court orders. The Supreme Court "has recognized that this power [contempt] enables courts to persuade parties to obey an order or decree of the court so that the order will not be rendered ineffectual by recalcitrant litigants." Ex Parte Pryor, 800 S.W.2d at 512. See also, Ex parte Gibson, 811 S.W.2d 594, 596 (Tex.Crim.App. 1991) (explaining that the essence of contempt is conduct that obstructs or tends to obstruct the proper administration of justice); Ex parte Taylor, 807 S.W.2d 746, 748 (Tex.Crim.App. 199 1) (same).
The purpose of civil contempt, such as that requested by DSC, is remedial and coercive in nature. Ex Parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976). As the Texas Supreme Court has explained:
A judgment of civil contempt exerts the judicial authority of the court to persuade the contemptor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditioned upon obedience and therefore the civil contemptor carries the keys of [his] prison in [his] own pocket."
Id. (citing Shillitani v. United States, 3 84 U. S. 3 64, 3 68 (1966); Gompers v. Buck Stove & R. Co., 221 U.S. 418, 422 (1910)).
Although there are no Texas cases that are factually analogous to the instant case, the Myrick decision is instructive on the availability of contempt proceedings for enforcement of mandatory injunctions. In Ex Parte Myrick, the court had granted a wife an injunction ordering her husband to execute certain documents transferring property to the wife. Ex Parte Myrick, 474 S.W.2d 767, 768-69 (Tex. App. --Houston [1st Dist.] 1971, no writ). The husband subsequently refused or otherwise failed to sign the documents, was held in contempt and ultimately incarcerated. Id. Although ultimately finding the mandatory injunction void for lack of definiteness, the court stated that a court has the power to punish anyone who violates a prohibitory injunction and that "[r]eason compels the conclusion that the same rule should apply to any mandatory order and judgment ...." Id. at 769.
By way of analogy, decisions in the criminal courts also support this Court's ability to enforce the preliminary injunction through contempt proceedings. In the criminal context, a witness who refuses to testify on the basis of her Fifth Amendment privilege can be held in contempt if she maintains her refusal after being given immunity. Ex Parte Wilkinson, 641 S.W.2d 927, 929-31 (Tex.Crim.App. 1982); Ex Parte Shorthouse, 640 S.W.2d 924, 926 (Tex.Crim.App. 1982) (discussing court's holding witnesses in contempt for failure to testify before grand jury after grant of immunity); Ex Parte Joseph, 356 S.W.2d 789, 791-92 (Tex.Crim.App. 1962) (denying habeas relief to a witness held in contempt for failure to testify after grant of immunity); Ex Parte Jackson, 253 S.W. 287 (Tex.Crim.App. 1923). Based on the foregoing cases, Texas law authorizes the Court to enforce the June 30, 1997 Temporary Injunction Order via contempt proceedings.
Brown's conduct over the past two (2) weeks demonstrates a clear and unmistakable intent to violate and disregard the Order. The Order imposed a unequivocal obligation on Brown to "appear in person at the office of DSC, 1000 Coit Road, Plano, Texas, each business day at 9:00 a.m. beginning July 1, 1997, and to remain at DSC until 5:00 p.m. each day, and to continue to appear each business day thereafter from 9:00 a.m. to 5:00 p.m. until the disclosure to the DSC Development Team is complete." Pinker Aff., Exhibit 3 (Order, p. 2). Notwithstanding this clear obligation, Brown has never appeared at the offices of DSC (since July 1, 1997). He has made no disclosure of the Solution. And, he has not attempted to explain or obtain permission for his failure to comply with the clear requirements of the Order.
The violation of an injunction is punishable by contempt. See Ex parte Jackman, 663 S.W.2d 520 (Tex.App.--Dallas, 1983, no writ). When faced with such flagrant disregard of a properly issued order granting injunctive relief, Texas courts have not hesitated to make a finding of civil contempt in order to enforce the terms of the injunction. See Ex parte Jackman, 663 S.W.2d 520; Texas Soc. v. Fort Bend Chapter, 590 S.W.2d 156 (Tex.Civ.App.--Texarkana 1979, writ ref . n.r.e.). See also Western Water Management, Inc. v. Brown, 40 F.3d 105 (5th Cir. 1994); Alberti, 610 F.Supp. 138 (holding that the failure to comply with an injunctive order is actionable as contempt of court).
Brown's conduct in violating the Order is in clear violation of the bedrock principle that court orders must be followed, and requires that the Court enforce the Order by finding Brown in contempt of court. Accordingly, DSC requests that the Court find Brown to be in civil contempt of Court, and issue an order requiring Brown to appear and show cause why he should not be held in civil contempt of court for willful and continuing violation of the trial court's Order.
In the alternative, in the event that the Court determines additional evidence is needed in order to determine contempt, DSC requests that the Court hold an evidentiary hearing, or refer the matter of hearing evidence and taking testimony to the trial court, with the transcript of that hearing then being provided to the Court of Appeals. See Ex Parte Boniface, 650 S.W.2d at 778 (describing this to be the preferred procedure when additional evidence is required); Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976) (describing this to be the preferred procedure when additional evidence is required).
Brown's pending appeal of the Order to this Court does not in any way justify or excuse his disregard and violation of the Order. To the contrary, the judicial system is based on the fundamental principle that orders of the court hearing the case must be followed. It is well-settled that a party cannot avoid compliance with the commands of a temporary injunction by simply moving to dissolve the order, moving to modify a portion of the order, or appealing the order. See Ex Parte Jackman, 663 S.W.2d 520, 524 (Tex.App.--Dallas 1983, no writ). "An injunction which is not void must be obeyed while it remains in effect and has not been overturned." Ex Parte Kimberlin, 126 Tex. 60, 86 S.W.2d 717 (1935).
At the temporary injunction hearing, DSC offered evidence demonstrating that any delay by Brown in disclosing the Solution to DSC could irreparably harm DSC and could make the trial court's eventual determination of ownership of the Solution utterly ineffectual. Specifically, DSC introduced evidence that other companies are currently working to develop technology to perform the same function as the Solution. In the event that any of these companies file a patent application, either in the United States or in a foreign country, that filing could permanently prevent DSC from asserting any legal right to that technology. Such an occurrence would make the trial court's eventual determination of ownership of the Solution utterly ineffectual.
Based on this evidence, which was not disputed by Brown, the trial court specifically recognized and held that "any delay to DSCs ability to exploit the Solution or take action to protect its rights in the Solution such as patent applications on the Solution, will irreperably harm DSC." Pinker Aff., Exhibit 3 (Order, p. 2) (emphasis added).
Brown's refusal to comply with the disclosure requirement of the Order makes it impossible for DSC to take any action to protect the Solution, such as through the filing of a patent application. This is precisely the harm that the trial court sought to remedy through entry of the Order. As such, pursuant to Texas Rule of Appellate Procedure 19(e), DSC respectfully requests that the Court consider this as an emergency motion, and rule on it prior to the expiration of ten (10) days. In the alternative, DSC respectfully requests that the Court schedule this Motion for hearing at the earliest possible time, in order to enable DSC to present further argument concerning why Browns disobedience of the Order requires an Order of the Court.
WHEREFORE, PREMISES CONSIDERED, DSC moves for the Court to treat this as an emergency motion pursuant to Rule 19(e), Tex. R. App. P., and to enter an order holding Defendant Brown in civil contempt of Court for his willful and purposeful refusal to comply with the trial court's Temporary Injunction Order.
- Respectfully submitted,
LYNN STODGILL MELSHEIMER & TILLOTSON, L.L.P.
By: ~F~-
Michael P. Lynn, P.C.
Texas Bar No. 12738500
Eric W. Pinker
Texas Bar No. 16016550
John T. Cox III
Georgia Bar No. 192530
750 North St. Paul Street
Suite 1400
Dallas, Texas 75201
(214) 981-3800 - Telephone
(214) 981-3839 - Telecopy
ATTORNEYS FOR PLAINTIFF
DSC COMMUNICATIONS CORPORATION
Notes:
- This Motion is not related to Appeal No. 05-97-00856-CV. This Motion seeks to enforce the July 1, 1997 Temporary Injunction Order, whereas Appeal No. 05-97-00856-CV involves an appeal from a May 13, 1997 order in is case
- This was the second temporary injunction hearing in this case. Judge Roach of the 199th Judicial District Court first heard DSC's application for a Temporary Injunction on May 2, 1997, and thereafter entered a May 13, 1997 Temporary Injunction in favor of DSC. Following the entry of that order, Brown moved to disqualify the Judge Roach on the ground that he was a stockholder in DSC, a fact which Brown knew about and agreed to several days before the temporary injunction hearing. Nonetheless, Brown's Motion for Disqualification was eventually granted on June 27, 1997, and the case was assigned to Judge Henderson of the 219th Judicial District Court. See Affidavit of Eric W. Pinker, Exhibit 1 & Exhibit 2.
- Brown has estimated that disclosure of the Solution will take approximately one month. See Brown's Emergency Motion for Stay of Temporary Injunction Pending Appeal, p9.
End of Legal Text
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