C&G All Solutions, Inc., Becky Binh Nguyen, Trang Thuy Dang, and Le Giang Tran v. Fugo Tran, Individually and Derivatively on Behalf of the Kute Bar, LLC and Affiliated Entities

Affirmed and Opinion Filed October 30, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01292-CV

C&G ALL SOLUTIONS, INC., BECKY BINH NGUYEN, TRANG THUY
DANG, AND LE GIANG TRAN, Appellants
V.
FUGO TRAN, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF
THE KUTE BAR, LLC AND AFFILIATED ENTITIES, Appellees

On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-23-05355

MEMORANDUM OPINION
Before Justices Partida-Kipness, Goldstein, and Miskel
Opinion by Justice Partida-Kipness
Appellants C&G All Solutions, Inc. (C&G), Becky Binh Nguyen (Nguyen),

Trang Thuy Dang (Dang), and Le Giang Tran (Le) appeal the denial of their Texas

Citizens Participation Act (TCPA) motion to dismiss. See TEX. CIV. PRAC. & REM.

CODE §§ 27.001–.011. Appellants raise a single issue on appeal, arguing the trial

court erred in denying the motion to dismiss because Appellee Fugo Tran’s abuse of

process claim is based on or in response to Appellants’ right to petition, and Tran

failed to establish a prima facie case to support his claim. We do not reach the merits
of the TCPA issue because we conclude Tran’s abuse of process claim was subject

to a prior abatement. We therefore affirm the trial court’s judgment.

BACKGROUND

This dispute arises from the creation and operation of a restaurant and karaoke

bar in Richardson (the Bar). C&G, Dang, Le, and Tran formed a limited liability

company, The Kute Bar, LLC (the LLC), to operate the business. Nguyen wholly

owns C&G. According to Tran, the original plan was for each party to own a 25%

share of the business. Tran alleged that, due to an inability to obtain a small business

loan to finance the project, Appellants and Tran modified their agreement.

Thereunder, each party would make a $150,000 initial capital contribution,

Appellants would be silent partners, and Tran would have the majority share of

ownership and would make all business decisions for the Bar. Any additional

contributions by Tran would increase his percentage ownership in the business.

The project proceeded and the parties leased and renovated a suitable location

for the Bar. According to Tran, he alone hired and worked with the general

contractor during the build-out phase of the Bar and had to invest additional personal

capital and labor to get the Bar ready for business. The Bar opened in November

2022, but problems immediately ensued. Tran alleged the Bar had a cashflow

problem because Le contributed less than the $150,000 promised. Tran also claimed

Le made unauthorized withdrawals from the Bar’s operating account and used the

Bar’s credit card for personal purchases. Meanwhile, Appellants claimed Tran failed

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to direct the Bar’s revenue into the LLC’s business account, and instead funneled

payments into his own accounts. Ultimately, Appellants and Tran could not agree

on the management of the Bar and began discussing arrangements for Tran to buy

out Appellants’ ownership interests. The parties dispute whether any agreement was

reached.

Appellants subsequently brought suit against Tran on January 23, 2023 in the

17th Judicial District Court of Tarrant County (the Tarrant County Suit). Therein

Appellants alleged Tran breached fiduciary duties to the LLC and Appellants

individually. Appellants also asserted breach of contract for Tran’s alleged failure to

purchase their ownership interests as promised.

On March 27, 2023, the LLC members held a special meeting and voted to

terminate the LLC, cease the Bar’s operations, sell the Bar’s assets, and distribute

the sale’s proceeds to the LLC members after satisfying creditors. Tran was present

but opposed shutting down the Bar, claiming it would likely result in lease

termination due to non-operation of the business, and would put the business

equipment at risk of landlord’s liens.

Appellants claim that the same day they voted to cease operations, Tran and

his friends forcibly broke into the Bar to open it for dinner service. The next day,

March 28, 2023, Appellants filed an application for temporary restraining order

(TRO) and temporary injunction in the Tarrant County Suit. Appellants sought to

enforce the results of the LLC meeting vote and to enjoin Tran and his associates

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from entering or operating the Bar or removing its assets. The trial court held a

hearing the same day and entered an agreed TRO at its conclusion.

Then, on April 24, 2023, Tran filed the present suit in the 160th Judicial

District Court of Dallas County (the 160th Court Suit). Tran alleged the parties had

modified their original agreement into a partnership with Tran as the majority

partner/owner. Accordingly, Tran alleged Appellants could not close the LLC or Bar

without his consent. Tran alleged that, despite this partnership agreement,

Appellants schemed to force Tran to buy out Appellants’ interests by filing the

Tarrant County Suit and arguing they each had an equal ownership of the business.

Tran alleged Appellants shut down the business at the March 28, 2023 LLC meeting

despite his warnings about the lease’s non-operation clause and potential liens on

equipment. Tran claimed that closing the Bar resulted in a default and later

termination of the lease. Tran asserted various fraud claims against Appellants

related to the formation of the business, and civil conspiracy. Tran also sought a

declaration that a partnership existed between the parties and asserted breach of

fiduciary duty and conspiracy claims on behalf of the LLC.

On May 4, 2023, another individual, Luat Nguyen d/b/a All Solutions (Luat)

filed suit against Tran, the LLC, and Victory Shops at Habibi Market, LLC in the

14th Judicial District Court of Dallas County (the 14th Court Suit). This suit arose

from Luat’s contract with the LLC to install and assemble certain equipment at the

Bar after structural renovations were completed. Apparently, due to the Bar’s

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numerous issues, the Bar failed to fulfill its payment obligations to Luat. Tran had

personally guaranteed the LLC’s contract with Luat.

Tran answered Luat’s suit and filed a third-party petition against Appellants

on May 17, 2023. Tran made similar factual allegations as in the 160th Court Suit

and added allegations he had contracted with Luat to complete equipment

installation at the Bar. Tran alleged that, despite knowing of the contracts with Luat

and others, and despite the negative impact it would have on the Bar’s operations,

Appellants filed the Tarrant County Suit to pressure Tran into a buyout of the

business. Tran asserted an abuse of process claim against Appellants due to their

filing the Tarrant County Suit and their “improper” application for injunctive relief,

which led to the Bar’s demise and damages to Tran. Tran also brought tortious

interference claims related to the contract with Luat and the commercial lease for

the Bar.

Back in the 160th Court Suit, Appellants filed a plea in abatement on May 22,

2023. Therein Appellants argued Tran’s suit asserted claims against nearly identical

parties relating to the same relationship and company at issue in the Tarrant County

Suit. Appellants asserted Tran’s claims in the 160th Court Suit and the first-filed

Tarrant County Suit are inherently interrelated. As such, Appellants argued the

Tarrant County court had dominant jurisdiction over the lawsuit and Tran’s claims

were compulsory counterclaims required to be brought in the Tarrant County Suit.

Appellants repeatedly requested the 160th Court to “abate this lawsuit,” though in

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their prayer requested that “Plaintiff’s Original Petition be dismissed or abated.”

Appellants alternatively requested transfer of the lawsuit to Tarrant County.

Two months later, on July 24, 2023, the 14th Court Suit (which included

Tran’s Thirty-Party Petition and abuse of process claim) was transferred and

consolidated into the 160th Court Suit.

On September 15, 2023, Appellants filed a TCPA motion to dismiss Tran’s

abuse of process claim in the 160th Court Suit. Appellants argued Tran’s abuse of

process claim was in response to their right to petition by filing the Tarrant County

Suit.

Then, on October 13, 2023, the 160th Court heard Appellants’ plea in

abatement and signed an order granting the plea that day. The order granting the plea

stated: “the Plea should be GRANTED…Plaintiffs’ Counterclaim is abated, pending

the final disposition of [the Tarrant County Suit].” Tran then non-suited “all of his

original claims and third-party claims” against Appellants.

Finally, on November 3, 2023, the 160th Court heard Appellants’ TCPA

motion to dismiss Tran’s abuse of process claim. Appellants argued the abuse of

process claim had not been abated by the prior order and the use of “Counterclaim”

in the order was a scrivener’s error. Tran argued the TCPA motion was not proper,

as the suit had been abated, and regardless the motion was moot due to his non-suit.

The trial court heard additional arguments on the abatement and mootness issues but

declined to proceed on the TCPA motion to dismiss. The trial court did not rule on

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the motion, and it was denied by operation of law. See TEX. CIV. PRAC. & REM. CODE

§ 27.008(a). This appeal followed. See id. § 51.014(a)(12).

STANDARD OF REVIEW

We review de novo a trial court’s ruling on a TCPA dismissal motion.

Vaughn-Riley v. Patterson, No. 05-20-00236-CV, 2020 WL 7053651, at *2 (Tex.

App.—Dallas Dec. 2, 2020, no pet.) (mem. op.). In reviewing an order sustaining a

plea in abatement, we apply the abuse of discretion standard. See Wyatt v. Shaw

Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988), abrogated in part by In re J.B.

Hunt Transp., Inc., 492 S.W.3d 287, 292-93 (Tex. 2016). A trial court abuses its

discretion when it rules without reference to any guiding rules or principles. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).

However, when one court acquires dominant jurisdiction over a case, another court

has no discretion to deny a proper plea in abatement. Wyatt, 760 S.W.2d at 248.

ANALYSIS

C&G raises a single issue on appeal, arguing the trial court erred in denying

the TCPA motion to dismiss because Tran’s abuse of process claim is based on or

in response to Appellants’ right to petition, and Tran failed to establish a prima facie

case to support his abuse of process claim. In response, Tran contends the prior

abatement deprived the trial court of authority to rule on the TCPA motion to

dismiss. We first address the abatement issue because it is dispositive to our

resolution.

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I. Dominant Jurisdiction and Abatement Principles

The general common-law rule in Texas is that the court in which suit is first

filed acquires dominant jurisdiction to the exclusion of other coordinate courts. In re

J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (citation omitted). As a

result, when two suits are inherently interrelated, a plea in abatement in the second

action must be granted. Id. This first-filed rule flows from principles of comity,

convenience, and the necessity for an orderly procedure in the trial of contested

issues. Id. The default rule thus favors dominant jurisdiction in the court in which

suit is first filed. Id. Unless otherwise specified in the abatement order, any action

taken by the court or the parties during the abatement is a legal nullity. Amrhein v.

La Madeleine, Inc., 206 S.W.3d 173, 174-75 (Tex. App.—Dallas 2006, no pet.).

In determining whether an inherent interrelationship exists for purposes of

abatement, courts should be guided by the compulsory counterclaim rule. J.B. Hunt,

492 S.W.3d at 292. A counterclaim is compulsory if: (1) it is within the jurisdiction

of the court; (2) it was not the subject of a pending action when the original suit was

commenced; (3) the action is mature and owned by the pleader at the time of filing

the answer; (4) it arises out of the transaction or occurrence that is the subject matter

of the opposing party’s claim; (5) it is against an opposing party in the same capacity;

and (6) it does not require for its adjudication the presence of third parties over whom

the court cannot acquire jurisdiction. See TEX. R. CIV. P. 97(a), (d); J.B. Hunt, 492

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S.W.3d at 292-93; Wyatt, 760 S.W.2d at 247. If a claim meets these elements, it must

be asserted in the initial action. Wyatt, 760 S.W.2d at 247.

When an inherent interrelation of the subject matter exists in two pending

lawsuits, a plea in abatement in the second action must be granted. Id. It is not

required that the exact issues and all the parties be included in the first action before

the second is filed, provided that the claim in the first suit may be amended to bring

in all necessary and proper parties and issues. Id.

II. The Abatement Foreclosed Consideration of the TCPA Motion to
Dismiss

Here, Tran contends his abuse of process claim was abated, precluding the

trial court from taking any action on Appellants’ TCPA motion to dismiss.

Appellants contend their plea in abatement was directed only at Tran’s claims in his

original petition filed in the 160th Court. Tran filed his third-party complaint

including the abuse of process claim in the 14th Court Suit on May 17, 2023, a few

days prior to Appellants’ plea in abatement in the 160th Court. Appellants’ plea in

abatement repeatedly asked the 160th Court “abate this lawsuit,” and alleged that all

of Tran’s claims relate to the same transaction or occurrence as the Tarrant County

Lawsuit. It is not clear whether Appellants were aware of Tran’s abuse of process

claim in the 14th Court Suit at the time Appellants filed their plea in abatement.

However, by the time of the plea in abatement hearing, Tran’s abuse of process claim

was part of the live pleadings, having been transferred into the 160th Court Suit

almost three months prior.
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The order granting Appellants’ plea in abatement states: “the Plea should be

GRANTED,” and “Plaintiffs’ Counterclaim is abated….” While Appellants argued

“counterclaim” in the order was a scrivener’s error, the record does not reflect

Appellants sought clarification or modification of that order. Tran was a defendant

in the 14th Court Suit when he filed his third-party abuse of process claim. We

conclude the abatement included Tran’s abuse of process claim.1

Appellants argue the trial court could not have abated Tran’s abuse of process

claims because “a trial court cannot award relief that was not requested in a party’s

live pleading,” and their plea in abatement was never amended to request abatement

of the abuse of process claims in Tran’s third-party petition.

Rule 301 provides that the judgment of the court shall conform to the

pleadings. TEX. R. CIV. P. 301. A trial court has no authority to grant relief not

requested by the parties. Guillory v. Dietrich, 598 S.W.3d 284, 294 (Tex. App.—

Dallas 2020, pet. denied). Such relief is generally that which the parties have

requested in a live pleading. In re S.M.G., No. 05-22-00937-CV, 2023 WL 3963992,

at *2 (Tex. App.—Dallas June 13, 2023, no pet.) (mem. op.). This is so because

pleadings must provide fair notice of the claims asserted and allow the opposing

1
The record does not include the transcript from the hearing on Appellants’ plea in abatement. See
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (burden is on appellant to present a sufficient
record to show error requiring reversal). However, the transcript from the hearing on the TCPA motion to
dismiss reveals the parties devoted their arguments to the abatement issue. The trial court declined to hear
the merits of the TCPA motion, supporting that the court believed Tran’s abuse of process claim had been
previously abated.
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party to ascertain the nature and basic issues of the controversy. Id. In determining

whether a judgment conforms to the pleadings, we view the pleadings as a whole.

Id.

While Appellants are generally correct that a trial court cannot award relief

not requested in a party’s live pleading, that rule does not aid Appellants’ cause.

Appellants’ live pleading (their plea in abatement) broadly requested abatement of

“this lawsuit,” and by the time of the hearing on the plea, Tran’s live pleadings

included the abuse of process claim. Appellants had fair notice of Tran’s claim, and

Appellants did not request modification or clarification of the order granting the

abatement.

Furthermore, even if Appellants did not intend the plea in abatement to

capture Tran’s abuse of process claim, it is so interrelated with Appellants’ other

claims as to require adjudication in the Tarrant County Suit because that court has

dominant jurisdiction.

Appellants previously argued Tran’s other claims were within the Tarrant

County court’s jurisdiction; there is no reason Tran’s abuse of process claim would

not be within the Tarrant County court’s jurisdiction as well. The claim was not the

subject of a pending action when Appellants filed the Tarrant County Suit. And,

there is nothing in the record to suggest the claim was not mature and owned by Tran

at the time he answered the Tarrant County Suit.

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Likewise, there can be little dispute Tran’s abuse of process claim arises out

of the same transaction or occurrence that is the subject matter of Appellants’ claims

in the Tarrant County Suit. In the Tarrant County Suit, Appellants alleged Tran

improperly managed the Bar, leading to disputes among the LLC members and

subsequent negotiations regarding Tran’s purchase of the other LLC members’

interests. Appellants further alleged Tran breached a buyout agreement. Meanwhile,

Tran’s suit alleged modification of the LLC and the existence of a partnership, with

improper conduct by Le in managing the Bar. Tran alleged Appellants had the

ulterior motive of forcing a buyout after negotiations reached an impasse. He further

alleged Appellants filed the Tarrant County Suit and sought injunctive relief as part

of that motive to pressure Tran and force a buyout. Tran claimed the improper

application for injunctive relief and resulting TRO resulted in the Bar being shut

down and termination of its lease.

The allegations in Appellants’ and Tran’s suits center on the formation of the

LLC, an alleged modification of the parties’ agreement, the operation of the Bar, the

subsequent problems, and the attempts to negotiate a buyout by Tran. In their plea

in abatement, Appellants argued all of Tran’s claims in this lawsuit relate to the

formation, operation, and governance of the LLC, as well as the relationship between

Tran and Appellants as it relates to the LLC—the same issues that are in dispute in

the Tarrant County Lawsuit. The addition of Tran’s abuse of process claim does not

change that fact.

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Moreover, Tran’s abuse of process claim is directed against largely the same

parties in the same capacity, with the addition of Nguyen (as owner of C&G) as a

defendant. Finally, the claim does not require the presence of third parties over

whom the court cannot acquire jurisdiction, as the necessary persons are already

parties to the suit.2

Accordingly, the two suits are inherently related, and abatement of the 160th

Court Suit was required. J.B. Hunt, 492 S.W.3d at 294. When, as here, another court

acquired dominant jurisdiction, it would have been an abuse of discretion to deny an

abatement. See Wyatt, 760 S.W.2d at 248 (trial court lacked discretion to deny plea

in abatement). Granting Appellants’ TCPA motion to dismiss after abatement would

have been a legal nullity. Amrhein, 206 S.W.3d at 174-75.

Furthermore, principles of comity and res judicata militate against Appellants’

position. Tran also asserted an abuse of process counterclaim in the Tarrant County

Suit, and Appellants filed a TCPA motion to dismiss that claim. The Tarrant County

court denied the motion on March 13, 2024, and Appellants appealed to the Second

District Court of Appeals. That court issued an opinion on October 24, 2024,

reversing the trial court and dismissing Tran’s abuse of process claim. Here,

2
In their plea in abatement, Appellants asserted the Tarrant County court could acquire jurisdiction
over Nguyen, and a review of the docket from that suit reveals Nguyen is now a party to that suit. See TEX.
R. EVID. 201(b); In re Johnson, 599 S.W.3d 311, 312 n.1 (Tex. App.—Dallas 2020, orig. proceeding)
(noting an appellate court has discretion to take judicial notice of adjudicative facts that are matters of
public record on its own motion, including judicial notice of the trial court docket in underlying
proceedings).
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exercising jurisdiction in the 160th Court would create the possibility of competing

rulings on the same issues between the various trial and appellate courts.

We therefore conclude Tran’s abuse of process claim was abated by the trial

court’s October 13, 2023 abatement order. The trial court did not err in allowing

Appellants’ TCPA motion to dismiss to be denied by operation of law. We overrule

Appellants’ sole issue on appeal.

CONCLUSION

The trial court did not err in allowing Appellants’ TCPA motion to dismiss

Tran’s abuse of process claim to be denied by operation of law. That claim was

previously abated by the trial court, and any subsequent action taken by the court on

that claim would have been a nullity. Accordingly, we affirm the trial court’s

judgment.

/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
231292F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

C&G ALL SOLUTIONS, INC., On Appeal from the 160th Judicial
BECKY BINH NGUYEN, TRANG District Court, Dallas County, Texas
THUY DANG, AND LE GIANG Trial Court Cause No. DC-23-05355.
TRAN, Appellants Opinion delivered by Justice Partida-
Kipness. Justices Goldstein and
No. 05-23-01292-CV V. Miskel participating.

FUGO TRAN, INDIVIDUALLY
AND DERIVATIVELY ON
BEHALF OF THE KUTE BAR,
LLC AND AFFILIATED
ENTITIES, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellees FUGO TRAN, INDIVIDUALLY AND
DERIVATIVELY ON BEHALF OF THE KUTE BAR, LLC AND AFFILIATED
ENTITIES recover their costs of this appeal from appellants C&G ALL
SOLUTIONS, INC., BECKY BINH NGUYEN, TRANG THUY DANG, AND LE
GIANG TRAN.

Judgment entered this 30th day of October, 2024.

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