in Re: Fort Apache Energy, Inc., Allan P. Bloxsom, and Drilling Risk Management, Inc.

Dissenting Opinion Filed December 16, 2015

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01159-CV

IN RE FORT APACHE ENERGY, INC., ALLAN P. BLOXSOM, AND DRILLING RISK
MANAGEMENT, INC., Relators

On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-01534

DISSENTING OPINION
Before Justices Lang-Miers, Evans, and Whitehill
Dissenting Opinion by Justice Whitehill

The primary dispute in this dominant jurisdiction–plea in abatement mandamus case is

whether the second filed court’s order setting the matter for trial one month before the dominant

court’s trial setting presents sufficient “active interference” with the first court’s jurisdiction such

that relators lack an adequate appellate remedy.

Relators moved to abate a lawsuit against them, contending that another Texas trial court

possesses dominant jurisdiction over this controversy. The trial court denied relators’ motion to

abate, and relators sought mandamus relief from this Court. The majority concludes that relators

have an adequate remedy by appeal and so denies relief. I disagree and respectfully dissent.
 I. BACKGROUND

The real party in interest is Huddleston Exploration Limited Liability Company. In

November 2014, relator Fort Apache Energy, Inc. sued Huddleston in Kendall County, Texas.

Fort Apache alleged the following facts:

Fort Apache and Huddleston entered into a Participation Agreement and an Operating

Agreement in June 2012. These agreements obliged Huddleston to pay 65% of the drilling and

completion costs of a certain mineral well, and Huddleston defaulted.

In October 2014, the parties met in Kendall County and executed a further Payment

Agreement in which Huddleston promised to pay its past due obligations pursuant to a payment

schedule or risk triggering remedies available to Fort Apache under the Operating Agreement.

After Huddleston breached the Payment Agreement, Fort Apache sought a court order

transferring Huddleston’s interest in the well to Fort Apache, plus court costs and attorneys’ fees.

Huddleston answered the Kendall County suit, but two months later sued Fort Apache

and the other relators in Dallas County. After amending its Dallas County pleading twice,

Huddleston alleged that (i) Fort Apache had breached the Participation Agreement and the

Operating Agreement, (ii) Fort Apache and relator Bloxsom committed breach of fiduciary duty,

fraud, and negligent misrepresentation, and (iii) Huddleston was entitled to an accounting from

Fort Apache, Bloxsom, and relator Drilling Risk Management, Inc.

The parties litigated forum selection issues in both courts. The Kendall County court

refused to transfer venue to Dallas County. Relators moved the Dallas County court to abate the

case because the Kendall County court had dominant jurisdiction over the controversy, but the

court denied that motion.

Meanwhile, in March 2015, the Dallas County court set its case for trial on February 22,

2016. In June 2015, the Kendall County court set its case for trial on March 14, 2016.

–2–
 Relators filed this original proceeding in September 2015, about six weeks after the

Dallas County court denied relators’ motion to abate. We requested and received a response, to

which relators replied.

II. ANALYSIS

A. Did the trial court clearly abuse its discretion?

The majority does not address whether relators have shown that the trial court clearly

abused its discretion by denying relators’ motion to abate. I would address that issue and hold

that the trial court clearly abused its discretion because relators established that the Kendall

County court possessed dominant jurisdiction over this controversy.

The question is whether there is an inherent interrelationship between the subject matters

of the two lawsuits:

When an inherent interrelation of the subject matter exists in two pending
lawsuits, a plea in abatement in the second action must be granted. 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. . . . 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.

Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988); see also TEX. R. CIV. P. 97(a)

(compulsory counterclaim rule).

The two lawsuits involved here are inherently interrelated. Fort Apache is the plaintiff in

Kendall County and a defendant in Dallas County. Huddleston is the defendant in Kendall

County and the plaintiff in Dallas County. Although Bloxsom and Drilling Risk Management

are parties only in the Dallas County suit, there is no indication they could not be added to the

Kendall County suit. And the claims and defenses in both suits arise from and relate to the same

set of agreements and transactions.

–3–
 The Wyatt test for dominant jurisdiction is satisfied. The trial court had only one

reasonable decision it could make: abate its case in favor of the Kendall County action.

B. Do relators have an adequate remedy by appeal?

It is well settled that mandamus will issue only if the relator shows that it lacks an

adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 840–44 (Tex. 1992). I

disagree with the majority’s conclusion that relators have failed to make that showing.

In Curtis v. Gibbs, the supreme court addressed a trial court’s violation of the dominant

jurisdiction rule and said, “If the second court refuses to sustain a proper plea in abatement, or

attempts to interfere with the prior action, this court has the power to act by mandamus or other

appropriate writ to settle the conflict of jurisdictions.” 511 S.W.2d 263, 267 (Tex. 1974) (orig.

proceeding) (emphasis added).

But in Abor v. Black, the court discussed Curtis and effectively changed Curtis’s “or” to

an “and.” See 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding). Although the Abor trial

court erred by refusing to yield jurisdiction to another court, the supreme court denied mandamus

relief because the trial court had not granted an injunction or issued any other order that “actively

interfere[d]” with the other court’s exercise of jurisdiction. Id.

We have interpreted Abor to hold the following: “Mandamus relief will not lie, however,

to determine dominant jurisdiction between two courts when both courts have jurisdiction to act

and neither court is interfering with the other’s exercise of jurisdiction.” Reynolds, Shannon,

Miller, Blinn, White & Cook v. Flanary, 872 S.W.2d 248, 250 (Tex. App.—Dallas 1993, no

writ).

But in 2004, the supreme court indicated that the determination of whether a relator has

an adequate remedy by appeal is not susceptible to rigid rules or formulas. In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Rather, courts must

–4–
consider a range of both public and private interests in determining whether the benefits of

mandamus review outweigh the detriments. Id.

Since the Prudential decision, our sister courts have split on the continued viability of

Abor’s bright-line rule that mandamus relief will not issue unless there is active interference with

the dominant court’s jurisdiction. San Antonio has concluded that Prudential lifted the

constraint imposed by Abor. In re ExxonMobil Prod. Co., 340 S.W.3d 852, 857–59 (Tex.

App.—San Antonio 2011, orig. proceeding [mand. denied]). However, Texarkana and the

Houston Fourteenth Court have continued to follow Abor. In re E. Beach Project Phase I, Ltd.,

No. 14-11-00393-CV, 2011 WL 2650946, at *3 (Tex. App.—Houston [14th Dist.] July 7, 2011,

orig. proceeding) (mem. op.); In re Brown, No. 06-10-00108-CV, 2010 WL 4880675, at *2 (Tex.

App.—Texarkana Nov. 30, 2010, orig. proceeding) (mem. op.).

We have denied relief for lack of active interference in a post-Prudential case. In re City

of Coppell, 219 S.W.3d 552, 562 (Tex. App.—Dallas 2007, orig. proceeding). But we recently

noted the conflict between our sister courts of appeals and, without citing City of Coppell,

suggested that this Court has not yet decided whether Prudential changes the rule of Abor. See

In re King, No. 05-15-01035-CV, 2015 WL 6334672, at *3 (Tex. App.—Dallas Oct. 22, 2015,

orig. proceeding).

We need not reassess the viability of Abor in this case, consider the effect that Prudential

might have on this case, or choose between our sister courts, because the Dallas County trial

court’s order setting the case for trial one month before the Kendall County case is set to be tried

(and maintaining that trial setting) actively interferes with the Kendall County court’s dominant

jurisdiction, within Abor’s parameters. For example, in Perry v. Del Rio, the supreme court

faced an array of five lawsuits involving redistricting after the 2010 census. 66 S.W.3d 239–43

(Tex. 2001) (orig. proceeding). Four of the cases were set for trial the same day. Id. at 258. The

–5–
supreme court first determined which trial court possessed dominant jurisdiction, id. at 248–56,

and then held that the conflicting trial settings satisfied the Abor rule, id. at 258. But Perry does

not require that the trial settings must be contemporaneous before conflicting settings can be

active interference.

Furthermore, the San Antonio Court of Appeals has held that a trial setting in violation of

another court’s dominant jurisdiction is sufficient interference to warrant mandamus relief under

Abor and Perry, even though the dominant court in that case had apparently not yet set its case

for trial. See In re Benavides, No. 04-14-00718-CV, 2014 WL 6979438, at *3 (Tex. App.—San

Antonio Dec. 10, 2014, orig. proceeding) (mem. op.).

In the present case, the trial court’s trial setting precedes the trial setting in the dominant

court by about three weeks. This state of affairs has existed since June 2015, and the problem

has not been remedied in the intervening months—despite relator’s bringing this matter to the

Dallas County court’s attention. The erroneous trial setting is now only about two months away,

and what was a potential problem is now an actual problem. Presently, the Dallas County trial

court’s trial setting interferes with the Kendall County court’s ability to try the case at a time

consistent with its own docket needs.

Moreover, refusal to correct the trial court’s clear abuse of discretion by mandamus

presents a strong likelihood of wasted public and private resources alike. The parties will be put

to the effort and expense of preparing and trying a case that will result in a judgment almost

certainly subject to reversal on appeal. See In re Prudential, 148 S.W.3d at 136 (mandamus can

“spare private parties and the public the time and money utterly wasted enduring eventual

reversal of improperly conducted proceedings”).

The above consequences make relators’ remedy by appeal inadequate under even Abor.

–6–
 For the foregoing reasons, I would grant mandamus relief and direct the trial court to

abate the case. Because the majority does not do so, I respectfully dissent.

151159DF.P 05 /Bill Whitehill/
BILL WHITEHILL
JUSTICE

–7–