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Date: 09-13-2022

Case Style:


Case Number: 01-20-00615-CV

Judge: Amparo Guerra


Court of Appeals For The First District of Texas

On appeal from 152nd District Court Harris County, Texas

Plaintiff's Attorney:

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Defendant's Attorney:
Alan B. Daughtry
Dylan B Russell


Houston, Texas – Employment lawyer represented Appellant with contending the trial court erred on its tort and contract claims against appellees.

Jetall’s claims against appellees in the underlying lawsuit derive from an
earlier, separate lawsuit to which appellees were parties but Jetall was not—namely,
a wrongful termination suit brought by Heil against Oakum and Davy (“Heil
Lawsuit”) in 2014. Oakum and Davy employed Heil as the Chief Financial Officer
of the title company they co-owned, Declaration Title, LLC, with each holding a
50% interest. After he was fired, Heil sued Oakum, Davy, and Declaration Title for
wrongful termination and obtained a $3 million jury verdict. Heil agreed not to move
for entry of judgment on the jury verdict for 60 days to give Oakum and Davy time
to fund a potential settlement.
1 We note the case style in the trial court’s judgment, which carries forward in this
appeal, contains an error listing Renee Davy’s name twice.
Jetall raised a third issue in its opening brief, contending the trial court erred by
refusing a bench trial on appellees’ attorney’s fees. Jetall withdrew this issue in its
reply brief, recognizing that the second supplemental reporter’s record filed after
Jetall’s opening brief refuted the complained-of error and showed the trial court
conducted an evidentiary hearing on attorney’s fees. Accordingly, we do not
consider Jetall’s withdrawn, third issue.
Before the 60 days expired, Oakum contacted Jetall’s owner, Ali Choudhri
(“Choudhri”), about borrowing money to fund a settlement of the Heil Lawsuit.
Oakum knew Choudhri because Declaration Title leased office space from Jetall.
Choudhri proposed that Jetall would assume liability for the Heil Lawsuit verdict in
exchange for obtaining Oakum’s and Davy’s interests in Declaration Title.
According to Jetall, it entered a binding agreement with Oakum for his 50% interest
in Declaration Title on June 25, 2016 and, a few days later, entered a similar
agreement with Davy for her 50% interest in Declaration Title. Oakum and Davy
disputed that they executed final agreements to transfer their ownership of
Declaration Title to Jetall. In August 2016, they instead assigned their collective
100% interest in Declaration Title to Heil and his partner, Julio Fernandez
(“Fernandez”), in settlement of the Heil Lawsuit.
Six months later, Jetall sued Heil, Oakum, and Davy, alleging it was the
rightful owner of Declaration Title. Jetall pleaded claims against Oakum and Davy
for breach of contract, common law fraud, statutory fraud, aiding and abetting, and
civil conspiracy; and against Heil for tortious interference, aiding and abetting, and
civil conspiracy. In addition to the remedies of specific performance on its contract
claims and damages, Jetall sought a declaratory judgment that the agreements with
Oakum and Davy were “valid and enforceable,” making Jetall “the 100% owner of
Declaration Title,” and that the purported sale and transfer to Heil and Fernandez
was “invalid, null, and void.” Jetall later added a declaratory judgment claim against
Fernandez based on his ownership interest in Declaration Title.
The case proceeded to trial in March 2020. At the pretrial hearing on March
9, the trial court granted a no-answer default judgment against Oakum, who failed
to answer Jetall’s lawsuit and did not appear for trial. The other parties gave opening
statements and began taking witness testimony the next day, on Tuesday, March 10.
At the end of the first week of trial—on Friday, March 13—the Governor of Texas
declared a state of disaster in the State’s 254 counties in response to the imminent
threat of the COVID-19 pandemic. Effective the same day, the Texas Supreme Court
issued an emergency order on the conduct of court proceedings during the disaster,
which provided in pertinent part:
2. Subject only to constitutional limitations, all courts in Texas may in
any case, civil or criminal—and must to avoid risk to court staff,
parties, attorneys, jurors, and the public—without a participant’s
a. Modify or suspend any and all deadlines and procedures, whether
prescribed by statute, rule, or order, for a stated period ending no
later than 30 days after the Governor’s state of disaster has been
lifted; [and]
. . .
f. Take any other reasonable action to avoid exposing court
proceedings to the threat of COVID-19.
See First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d
265 (Tex. 2020).
When the parties reconvened the following Monday, March 16, the trial court
informed them he was getting “pressure from [his] colleagues to declare a mistrial
and send everyone home.” He stated: “I’m thinking about that because it’s not just
your lawsuit that’s important here. It’s those twelve folks who are sitting in the jury
room right now.” Ultimately, the trial court did not grant a mistrial that Monday and
allowed the case to proceed. But on each day that followed, the trial court expressed
growing concern for the developing pandemic. On Tuesday, March 17, the trial court
warned the parties that he would grant a mistrial if the trial was not completed within
two days. Jetall rested at the end of the day on March 17. The next morning, before
Heil or Davy presented any evidence, the trial court expressed skepticism that the
trial could be completed on time, considering the remaining witnesses and the time
needed to prepare the jury charge, and orally declared a mistrial.
Immediately after the trial court ordered the mistrial, counsel for Heil and
Davy asked the trial court to reconsider his ruling. Counsel indicated that to avoid
the expense of a second trial while addressing the trial court’s health and safety
concerns, the defense would rest without presenting any evidence so that the jury
could deliberate that afternoon. After discussions with counsel for both sides, the
trial court rescinded his order of mistrial.
After hearing closing arguments and deliberating for less than an hour, the
jury returned a unanimous defense verdict. The jury found that neither Oakum nor
Davy agreed “to assign their collective 100% membership interest in Declaration
Title[ ] to Jetall,” and that Davy did not commit fraud against Jetall. Because the jury
did not find an agreement by Oakum or Davy to transfer their interest in Declaration
Title to Jetall, it did not reach the charge questions related to Heil’s alleged
interference with that agreement or his participation in an alleged conspiracy with
Davy that damaged Jetall. Nor did the jury answer any damages question. The trial
court accepted the jury’s verdict without objection from either party.
Two days after the trial court accepted the jury verdict, Jetall filed a written
motion for mistrial, arguing that the pandemic had prejudiced the jury’s
deliberations. Jetall complained in the motion that the trial court’s decision to submit
the case to the jury required the jurors to deliberate near one another, after state and
local authorities issued emergency orders encouraging the suspension of in-person
3 The jury was not present in the courtroom when the trial court first granted and then
rescinded the order of mistrial. The trial court indicated in his on-the-record
comments that he had spoken with the jurors and they were “willing” to continue,
“but nobody’s staying past today [Wednesday, March 18].” The jury was never
proceedings, and improperly influenced the jurors to rush their deliberations.
Without supporting affidavits from jurors or other exhibits, the motion recited:
Many of the jurors stated, as they were rushing to leave the courthouse,
that they wanted to be done with their deliberations and leave the
courthouse by five p.m. The jury was improperly motivated and
influenced by the specter of life and health to quickly answer the jury
charge in a manner that could result in a quick deliberation. The jury
spent more time in reading the verdict and selecting the foreman before
even considering the parties’ trial exhibits or the evidence.
Appellees responded that Jetall’s post-verdict mistrial motion was untimely.
In addition, they argued waiver based on Jetall’s failure to object when the trial court
rescinded its order of mistrial and submitted the case to the jury. The trial court
denied Jetall’s motion for mistrial.

Heil, Fernandez, and Davy jointly moved for entry of judgment on the jury’s
verdict, requesting, among other things, that the trial court set aside the interlocutory
default judgment against Oakum as inconsistent with the jury’s finding that neither
Oakum nor Davy had agreed “to assign their collective 100% membership interest
in Declaration Title” to Jetall. For its part, Jetall opposed the motion for entry of
judgment and requested the trial court declare that it owned 50% of Declaration Title
based on Oakum’s no-answer default. The trial court ultimately entered the final
Jetall reurged its complaint about the jury’s rushed deliberations in other postverdict filings, including in its opposition to appellees’ motion for entry of judgment
on the jury’s verdict. The trial court did not grant any relief based on Jetall’s
judgment requested by Heil, Fernandez, and Davy, thereby rejecting Jetall’s request
for a declaration of its ownership interest in Jetall. The final judgment ordered that:
• Jetall take nothing on its claims against any appellee, including Oakum;
• Jetall owns no interest in Declaration Title; and
• Heil and Fernandez, “collectively, are and have been the true and lawful
owners of 100% of Declaration Title” since August 2016.
The final judgment also awarded Heil and Davy their attorney’s fees, interest, and
In its first issue, Jetall argues the trial court abused its discretion by rescinding
its order of mistrial and requiring the jury to deliberate under the imminent threat of
the COVID-19 pandemic.5 According to Jetall, the jury was improperly influenced
to rush its deliberations by the “specter of the Coronavirus.”
5 There is no question that the trial court retained jurisdiction to rescind the mistrial
order. See Jack v. Holiday World of Hou., 262 S.W.3d 42, 47 (Tex. App.—Houston
[1st Dist.] 2008, no pet.) (trial court retained jurisdiction to withdraw order of
mistrial and resume trial); see also Rodriguez v. State, 852 S.W.2d 516, 520 (Tex.
Crim. App. 1993) (“[A]t least as a matter of jurisdiction, the trial court does not lack
authority to withdraw or rescind its order of mistrial. . . . That an order granting a
mistrial that is not subsequently withdrawn [has] the effect of nullifying all
proceedings to that point does not mean the trial court may not rescind that order,
and continue with the trial, so long as that remains a viable option under the
circumstances.”); Montemayor v. State, 55 S.W.3d 78, 87 n.2 (Tex. App.—Austin
2001, no pet.) (“By failing to discharge the jury and by ordering the jury to resume
deliberation, the court implicitly withdrew its decision to grant a mistrial.”). Jetall’s
issue regards only whether the trial court abused its discretion by doing so. See Epps
v. Deboise, 537 S.W.3d 238, 249 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
There is a question whether Jetall preserved this issue for appellate review.
Generally, to preserve error for our review, the complaining party must raise the
complaint before the trial court by way of a timely request, objection, or motion and
either obtain an express or implicit ruling or pursue the request until the trial court
refuses to rule. See TEX. R. APP. P. 33.1(a). The parties disagree whether the trial
court initially granted a mistrial sua sponte or on Jetall’s motion. We need not resolve
that disagreement because it is not controlling. The ruling that is the subject of
Jetall’s complaint on appeal is not the trial court’s decision to grant a mistrial in the
first instance but its decision rescinding the mistrial. And as to the rescission, Jetall
made no objection that the jury could not properly deliberate because of
COVID-related health and safety concerns either before the case was submitted to
the jury or before the trial court accepted the jury’s verdict. See id.
Even if we presume, without deciding, that Jetall preserved error by moving
post-verdict for a mistrial and that the trial court could grant Jetall’s motion after it
discharged the jury, our review is limited by the abuse-of-discretion standard that
applies to the trial court’s decision to grant or deny a mistrial. See Epps v. Deboise,
537 S.W.3d 238, 249 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (appellate court
reviews trial court’s ruling on motion for mistrial for abuse of discretion); Schlafly
(appellate court reviews trial court’s decision to grant or deny mistrial for abuse of
v. Schlafly, 33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
(appellate court “does not substitute its judgment for that of the trial court but decides
whether the trial court’s decision constitutes an abuse of discretion”). And no abuse
of discretion is shown on this record.
The trial court’s charge instructed the jury to consider “the evidence admitted
in court,” to base its answers on a “preponderance of the evidence,” and not to
“consider the effect [its] answers will have.” In the absence of evidence to the
contrary, an appellate court “must assume that a jury properly followed the trial
court’s instructions.” Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642
S.W.2d 160, 167 (Tex. 1982); Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811,
817 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Jetall’s mistrial motion was
not accompanied by any affidavit or other evidence that COVID-related health and
safety concerns improperly influenced the jury to ignore the evidence to reach a
quick verdict. Instead, it rested on the assertion that informal polling of the jurors
after trial revealed that they rushed deliberations out of fear of COVID-19 and
because they wanted to “leave the courthouse by five p.m.” But that assertion was
unsupported, as neither the informal polling cited in the motion nor the jurors’
purported confession of rushed deliberations is reflected in the record.
Jetall points to the trial court’s remark on March 18 that “nobody’s staying
past today” as evidence the jury could not reach an impartial verdict because it had
predetermined the length of its deliberations, but the trial court’s remark does not
establish that the jury refused to properly consider the evidence in reaching its
verdict. It is not clear from the record whether the trial court’s remark reflected his
own preference not to continue beyond March 18 or the jury’s refusal to do so.6
Consequently, we cannot conclude on this record that the trial court abused its
discretion either by rescinding its order of mistrial or by denying Jetall’s post-verdict
motion for mistrial on the basis that the jury’s verdict was improperly influenced by
COVID-related health and safety concerns.
We overrule Jetall’s first issue.
Interlocutory Default Judgment
In its second issue, Jetall contends the trial court erred by not including in the
final judgment a declaration that Jetall is a 50% owner of Declaration Title.
According to Jetall, the interlocutory default judgment based on Oakum’s failure to
answer had the effect of admitting Oakum’s liability for agreeing to transfer his
interest in Declaration Title to Jetall and nullifying his assignment of the same
6 The trial court remarked in full:
THE COURT: I’ve visited with the jury - -
[Jetall’s counsel]: Okay.
THE COURT: - - and they’re here. So they will be willing - -
everybody’s okay on that, but nobody’s staying past today.
interest to Heil and Fernandez. In other words, Jetall asserts: Heil’s and Fernandez’s
“purported assignments and ownership in Declaration Title were void to the extent
they received it from Oakum because Oakum had—by virtue of the Trial Default—
already assigned his interest to Jetall.” While we agree that a party like Oakum, who
fails to answer a lawsuit against him, generally is “said to have admitted both the
truth of facts set out in the petition and [his] liability on any cause of action properly
alleged by those facts,” see Paradigm Oil, Inc. v. Retamco Operating, Inc., 372
S.W.3d 177, 183 (Tex. 2012), we disagree the default judgment against Oakum
required the trial court to declare Jetall a 50% owner of Declaration Title.
Jetall cites this Court’s opinion in Sustainable Texas Oyster Resource
Management, L.L.C. v. Hannah Reef, Inc. for the proposition that a trial court’s final
judgment incorporates prior interlocutory orders as a matter of law. See 623 S.W.3d
851, 863 (Tex. App.—Houston [1st Dist.] 2020, pet. filed). There, the parties
asserted competing rights to cultivate and harvest oysters in certain areas of
Galveston and Trinity Bays. Id. at 854. A group of oystermen with oyster leases
issued by the Texas Parks and Wildlife Department (“TPWD”) entitling them to
cultivate and harvest oyster beds in submerged lands brought an action against
STORM, a company claiming an exclusive right to engage in oyster-production
activities in the same area through a coastal surface lease issued by a regional
navigation district. Id. The oystermen asserted claims to quiet title and for trespass
to try title, tortious interference with prospective business relations, and declaratory
relief. STORM filed counterclaims, including for trespass. Id. In a pretrial, partial
summary judgment in favor of the oystermen, the trial court declared: (1) the TPWD
had the exclusive authority to regulate oyster cultivation and harvesting, (2) the
navigation district did not have the legal authority to issue the coastal surface lease
to STORM, and (3) STORM’s coastal surface lease was void and unenforceable
against the oystermen’s rights. Id. at 855. The trial court also declared that the
oystermen were not trespassers as a matter of law and ordered that STORM take
nothing on its counterclaims. Id. After a jury trial on attorney’s fees, the trial court
rendered a final judgment awarding the oystermen fees. Id. The final judgment also
ordered that the oystermen take nothing on their claim for trespass to try title. Id.
On appeal, STORM asserted that the final judgment’s provision ordering that
the oystermen take nothing on their trespass-to-try-title claim conflicted with the
declarations in the partial summary judgment order. Id. at 869–70. STORM argued:
“because the final judgment render[ed] judgment against the Oystermen on their
trespass to try title claim, it necessarily vest[ed] title and the right of possession to
the land in STORM.” Id. at 870. But this Court found no conflict between the final
judgment and the partial summary judgment because the declarations did not give
the oystermen ownership or possession of the disputed areas. Id. Consequently, the
Court held the declaratory relief granted to the oystermen was not erroneous. Id.
This holding is consistent with the general rule that interlocutory orders that
are not inconsistent merge into a final judgment. See generally Paulsen v. Yarrell,
537 S.W.3d 224, 234 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Unless
modified, interlocutory orders merge into the final judgment.”); see also Quanaim
v. Frasco Rest. & Catering, 17 S.W.3d 30, 39–40 (Tex. App.—Houston [14th Dist.]
2000, pet. denied) (holding that second judgement vacated first judgment with which
second judgment was inconsistent, even though trial court did not refer to first
judgment or expressly state intention to vacate prior judgment in second judgment);
Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 680 (Tex. App.—Amarillo 1998,
pet. denied) (holding that terms of judgment disposing of all parties and claims
necessarily vacates prior inconsistent interlocutory order, even though trial court did
not refer to prior order or expressly state intention to vacate prior order in second
judgment). Jetall urges this is what should have occurred here because a declaration
that Jetall owns 50% of Declaration Title based on the default judgment against
Oakum is not inconsistent with the jury’s finding that neither Oakum nor Davy
agreed to “assign their collective 100% membership interest in Declaration Title” to
Jetall. According to Jetall, the assignment of Oakum’s and Davy’s collective
interests is a separate issue from the assignment of Oakum’s singular 50% interest
under the default judgment.
Appellees respond that the declaratory relief requested by Jetall irreconcilably
conflicts with the jury’s finding, and thus the trial court did not err by refusing to
incorporate such relief into the final judgment. We need not resolve the parties’
disagreement because, under the law requiring that all persons who have or claim an
interest that would be affected by the declaration must be made parties, the default
judgment could not have encompassed the declaratory relief requested by Jetall. See
TEX. CIV. PRAC. & REM. CODE § 37.006(a).
Although Jetall’s petition requested a judgment declaring that it owns 100%
of Declaration Title and that “the purported sale and transfer to Heil and Fernandez
is therefore invalid, null[,] and void,” Heil and Fernandez also claimed a 100%
interest in Declaration Title. The Texas Declaratory Judgments Act requires that:
When declaratory relief is sought, all persons who have or claim any
interest that would be affected by the declaration must be made parties.
A declaration does not prejudice the rights of a person not a party to the
Id. Under this provision, Heil and Fernandez were necessary parties to any judgment
declaring ownership of Declaration Title. See id. Unlike Oakum, they answered
Jetall’s lawsuit, appeared to defend against Jetall’s claims, and asserted their own
interest in Declaration Title. Consequently, the trial court could not have determined
the question of ownership as to Oakum’s 50% interest by order of default against
Oakum, because doing so would have excluded Heil and Fernandez as necessary
parties to that controversy. See id.; see also TEX. R. CIV. P. 240 (“Where there are
several defendants, some of whom have answered or have not been duly served and
some of whom have been duly served and have made default, an interlocutory
judgment by default may be entered against those who made default, and the cause
may proceed or be postponed as to the others.” (emphasis added)). We therefore find
no error in the trial court’s refusal to grant Jetall declaratory relief in the final
judgment based on the default judgment against Oakum.
We overrule Jetall’s second issue.

Outcome: We affirm the trial court’s judgment.

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