in Re Andrew VanBlarcum and James VanBlarcum

NUMBER 13-15-00056-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ANDREW VANBLARCUM AND JAMES VANBLARCUM

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam1

By petition for writ of mandamus, relators Andrew VanBlarcum and James

VanBlarcum seek to compel the Honorable David Stith, Presiding Judge of the 319th

District Court of Nueces County, Texas, to withdraw his order denying their plea in

abatement.

I. STANDARD OF REVIEW

To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court committed a clear abuse of discretion for which the relator has

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
no adequate remedy at law. In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex. 2012)

(orig. proceeding); In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 887 (Tex.

2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.

2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding). The relator has the burden of establishing both prerequisites to mandamus

relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). This burden

is a heavy one. Id.; Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994)

(orig. proceeding).

A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to

correctly analyze or apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d at

888; Walker, 827 S.W.2d at 840. The second requirement for mandamus relief, that the

relator has no adequate remedy by appeal, “has no comprehensive definition” and is

decided on a case-by-case basis. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.

2005) (orig. proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).

Generally, the disposition of a plea in abatement is an incidental ruling which

ordinarily does not support mandamus relief. See In re Puig, 351 S.W.3d 301, 306 (Tex.

2011) (original proceeding) (per curiam); Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

However, when a court issues an “order which actively interferes with the exercise of

jurisdiction” by a court possessing dominant jurisdiction, mandamus relief is appropriate.

In re Puig, 351 S.W.3d at 306; see Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex. 2001);

Abor, 695 S.W.2d at 567; Curtis v. Gibbs, 511 S.W.2d 263, 266–68 (Tex. 1974) (orig.

proceeding). Further, mandamus relief may be available when a trial court refuses to

abate based on the pendency of another action. See In re ExxonMobil Prod. Co., 340

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S.W.3d 852, 857 (Tex. App.—San Antonio 2011, orig. proceeding [mand. denied]); see

also In re Truck Ins. Exch., No. 12-12-00183-CV, 2013 WL 1760793, at *2 (Tex. App.—

Tyler Apr. 24, 2013, orig. proceeding) (mem. op.).

II. PLEA IN ABATEMENT

The proper method to assert a court’s lack of dominant jurisdiction is to file a plea

in abatement. In re Puig, 351 S.W.3d at 303; Wyatt v. Shaw Plumbing Co., 760 S.W.2d

245, 247–48 (Tex. 1988). The party seeking abatement has the burden of proof to

establish the allegations in its motion to abate. Flowers v. Steelcraft Corp., 406 S.W.2d

199, 199 (Tex. 1966); S. Cnty. Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 469 (Tex. App.—

Corpus Christi 2000, no pet.) (op. on reh’g); Bernal v. Garrison, 818 S.W.2d 79, 82 (Tex.

App.—Corpus Christi 1991, writ denied). We review the trial court’s action in granting or

denying a plea in abatement using an abuse of discretion standard. Wyatt, 760 S.W.2d

at 248.

III. DOMINANT JURISDICTION

Generally, when cases involving the same subject matter are brought in different

courts in which venue would be proper, the court with the first-filed case has dominant

jurisdiction and should proceed, and the other case should be abated. Perry, 66 S.W.3d

at 252; Wyatt, 760 S.W.2d at 248; In re Coronado Energy E&P Co., L.L.C., 341 S.W.3d

479, 481 (Tex. App.—San Antonio 2011, orig. proceeding); Lee v. GST Transp. Sys., 334

S.W.3d 16, 18 (Tex. App.—Dallas 2008, pet. denied). The obvious reasons for

abatement are conservation of judicial resources, avoidance of delay, and “comity,

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

or, in other words, to “prevent races from court to court by vigilant counsel.” Perry, 66

S.W.3d at 252 (internal citations omitted). When a matter is filed in a court of competent

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jurisdiction, that court’s action is necessarily exclusive because it is impossible for two

courts to make a final determination regarding the same controversy between the same

parties at the same time. Id. Moreover, the first-filed rule evokes concepts of fairness—

in a race to the courthouse, the winner’s suit should have dominant jurisdiction. Id.

To succeed on a motion to abate in a second-filed suit to allow a court with

dominant jurisdiction to proceed, a movant must establish: (1) a suit in another court was

commenced first; (2) the first-filed suit remains pending; (3) the first-filed suit does include,

or could be amended to include, all of the parties; and (4) the controversies are the same

or the first-filed suit could be amended to include all of the claims. Wyatt, 760 S.W.2d at

247; In re ExxonMobil Prod. Co., 340 S.W.3d at 856. In Wyatt, the Texas Supreme Court

recognized three exceptions to the “first-filed” rule of dominant jurisdiction: (1) an inability

to bring all parties before the court in the first suit; (2) a lack of intent to diligently prosecute

the first-filed suit; and (3) conduct by a party that estops it from asserting prior active

jurisdiction. Wyatt, 760 S.W.2d at 248.

A trial court abuses its discretion when it refuses to grant a plea in abatement when

abatement is mandatory, that is, “when there exists a complete identity of parties and

controversies between it and an earlier suit.” Coastal Oil & Gas Corp. v. Garza Energy

Trust, 268 S.W.3d 1, 26 (Tex. 2008) (internal quotations omitted); see Dolenz v.

Continental Nat’l Bank of Fort Worth, 620 S.W.2d 572, 575 (Tex. 1981); Curtis, 511

S.W.2d at 266–68. In contrast, the granting of a plea of abatement in a later-filed suit is

discretionary when there is a lack of identity between the causes. Coastal Oil & Gas

Corp., 268 S.W.3d at 26; Dolenz, 620 S.W.2d at 575; In re Martin, 358 S.W.3d 767, 770–

71 (Tex. App.—Texarkana 2012, orig. proceeding). When there is a lack of identity, a

court may abate an action for reasons of comity, convenience and orderly procedure,

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looking to the practical results to be obtained, dictated by a consideration of the inherent

interrelation of the subject matter of the two suits. Coastal Oil & Gas Corp., 268 S.W.3d

at 26, Wyatt, 760 S.W.2d at 247–48; Dolenz, 620 S.W.2d at 575; see also Timon v. Dolan,

244 S.W.2d 985, 987 (Tex. Civ. App.—San Antonio 1951, no writ). In such instances, 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.” Wyatt, 760 S.W.2d at 247. “In

determining whether an inherent interrelationship exists, courts should be guided by the

rule governing persons to be joined if feasible and the compulsory counterclaim rule.” Id.

These are “matters committed to the sound discretion of the trial court.” Coastal Oil &

Gas Corp., 268 S.W.3d at 26; see Dolenz, 620 S.W.2d at 575.

IV. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus,

the response, the reply, letter briefs, and the applicable law, is of the opinion that relators

have not met their burden to obtain mandamus relief. See Coastal Oil & Gas Corp., 268

S.W.3d at 26, Wyatt, 760 S.W.2d at 247–48; Dolenz, 620 S.W.2d at 575; In re Martin,

358 S.W.3d at 770–71. Accordingly, we LIFT the stay previously imposed by this Court.

See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary

relief is effective until the case is finally decided.”). We DENY the petition for writ of

mandamus. See id. 52.8(a). The “Motion for Clarification of Order Granting Stay,

Alternatively, Motion to Stay San Patricio Suit” filed by real party in interest Nexus Integrity

Management, LLC is DISMISSED as moot.

PER CURIAM

Delivered and filed the
22nd day of April, 2015.
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