NUMBER 13-14-00429-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE STATE FARM LLOYDS AND RICHARD FREYMANN
On Petition for Writ of Mandamus
ORDER
Before Chief Justice Valdez and Justices Perkes and Longoria
Per Curiam Order
Relators, State Farm Lloyds and Richard Freymann have filed a petition for writ of
mandamus requesting that this Court direct respondent, the Honorable Rose Guerra
Reyna, Presiding Judge of the 206th District Court of Hidalgo County, Texas, to withdraw
her order entered on May 28, 2014 denying relators’ verified plea in abatement and to
enter an order abating the suit for damages brought against relators by the real parties in
interest, Marco Antonio Rivera Cruz and Maria Elena Leal, until sixty days after the real
parties in interest provide relators with a notice letter for their claim stating the specific,
separate amounts for the claimed damages and attorney’s fees. See TEX. INS. CODE ANN.
§ 541.154 (West, Westlaw through 2013 3d C.S.) (“Prior Notice of Action”); id. § 541.155
(West, Westlaw through 2013 3d C.S.) (“Abatement”); TEX. R. APP. P. 52.1
(“Commencement” of Original Proceedings). In addition, relators request that this Court
issue immediate temporary relief staying respondent’s order of May 28, 2014 pending
final disposition of this original proceeding. See TEX. R. APP. P. 52.10 (“Temporary
Relief”). As set forth below, the Court, having fully considered the petition for writ of
mandamus, the request for immediate temporary relief, and the law, is of the opinion that
a response should be requested from the real parties in interest and that the request for
temporary relief should be granted.
I. STANDARD OF REVIEW
To establish entitlement to relief by mandamus, relators “must meet two
requirements.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). “One
is to show that the trial court clearly abused its discretion.” Id. “The other requirement . .
. . is to show that . . . [relators have] no adequate remedy by appeal.” Id. at 135–36. The
Texas Supreme Court has explained that “[t]he operative word, ‘adequate,’ has no
comprehensive definition; it is simply a proxy for the careful balance of jurisprudential
considerations that determine when appellate courts will use original mandamus
proceedings to review the actions of lower courts.” Id. at 136. Although the Texas
Supreme Court “has tried to give more concrete direction for determining the availability
of mandamus review, rigid rules are necessarily inconsistent with the flexibility that is the
remedy’s principal virtue.” Id.
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II. APPLICABLE LAW
The general rule is that “[p]leas in abatement are incidental rulings, the denial of
which ordinarily does not support mandamus relief.” In re Puig, 351 S.W.3d 301, 306
(Tex. 2011) (orig. proceeding) (per curiam). However, the Texas Supreme Court has
“note[d] that the improper denial of a plea in abatement may, on occasion, warrant
mandamus relief.” Id.
For instance, the Texas Supreme Court has granted mandamus relief in the
context of a plea in abatement when a trial court issued an order actively interfering with
the exercise of jurisdiction by a second court possessing dominant jurisdiction. See Curtis
v. Gibbs, 511 S.W.2d 263, 266–68 (Tex. 1974) (granting mandamus relief directing a
judge to sustain a plea in abatement in a child custody suit where one court attempted to
exercise jurisdiction with respect to the children, despite the fact that dominant jurisdiction
had previously been established in another court).
In addition, the Texas Supreme Court has considered the appropriate remedy
when a trial court erroneously denies a defendant’s request for abatement based on the
failure of a plaintiff to provide the sixty day pre-suit notice required by the Texas Deceptive
Trade Practices Act (DTPA). See Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992). In
Hines, the Texas Supreme Court held that under such circumstances, a “[d]efendant is
entitled, but not obliged, to seek review of a denial of abatement by mandamus.” Id.
Alternatively, a “[d]efendant may wait until appeal from the final judgment to seek review
of a denial of abatement, but the trial court’s error must be shown to have been harmful
to obtain reversal.” Id. “Ordinarily, this would require a showing that defendant was
unable to limit his damages under the statute by tendering a settlement offer.” Id.
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At least two intermediate courts of appeals that have considered the same issue
in the context of the sixty day pre-suit notice provision of the Texas Insurance Code have
concluded that mandamus relief is available to correct a trial court’s erroneous denial of
a motion to abate. For instance, the Fourth Court of Appeals has held that mandamus
relief is appropriate when a trial court denies a plea in abatement based on a claimant’s
failure to provide the pre-suit notice required by Section 541.154 of the Texas Insurance
Code. See In re Behr, No. 04-05-00895-CV, 2006 WL 468001, *2–3 (Tex. App.—San
Antonio Mar. 1, 2006, orig. proceeding) (mem. op.) (holding that trial court’s erroneous
denial of request for abatement effectively deprived defendant of substantial rights “to
limit his damage exposure through an offer of settlement” for which there was no
adequate remedy on appeal). The Fourteenth Court of Appeals has also reached the
same conclusion. See In re Liberty Mutual Fire Ins. Co., No. 14-09-00876-CV, 2010 WL
1655492, at *5 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (mem. op.)
(holding that mandamus relief was appropriate to correct trial court’s erroneous denial of
insurance company’s plea in abatement based on claimant’s failure to provide sufficient
pre-suit notice as required by insurance code).
III. CONCLUSION
Based on the foregoing, we conclude that it is appropriate to ask the real parties
in interest to respond to relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.4
(“Response”), R. 52.8(b)(1) (“Interim Action”). Accordingly, the Court requests that the
real parties in interest, or any others whose interest would be directly affected by the relief
sought, file a response to the petition for writ of mandamus on or before the expiration of
five days from the date of this order. Furthermore, the Court, having considered relators’
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request for temporary relief, is of the opinion that the request should be granted.1
Accordingly, relators’ request for temporary relief is hereby granted. See TEX. R. APP. P.
52.10 (“Temporary Relief”). Respondent’s order of May 28, 2014 is hereby stayed
pending further order of this Court or final disposition of this original proceeding.
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the
31st day of July, 2014.
1 Relators have not requested, and this Court has not granted, a stay of further proceedings in the
district court.
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