dissenting.
I respectfully dissent.
Abatement is generally an incidental ruling not susceptible to mandamus. Trial courts generally have discretion in abatement decisions. Dolenz v. Continental Nat’l Bank of Fort Worth, 620 S.W.2d 572, 575 (Tex.1981); Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985); Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970). The trial courts should consider what effect, if any, the abatement will have on Plaintiffs ability to prosecute the remaining claims. Gebhardt v. Gallardo, 891 S.W.2d 327, 332 (Tex.App.— San Antonio 1995, no writ).
The trial court in this case used its discretion to determine that the abatement sought was not applicable at the time under the unique facts presented. The trial court order denying abatement on December 17, 1997 was not void. Although, assuming paragraph 4 of Plaintiff’s Original Petition entitled “Breach of Contract and Warranty” may have constituted a cause of action under RCLA and that an automatic abatement was effected on December 8, 1997, because no verified controverting plea was filed by the real parties (the homeowners) pursuant to Section (d)(2) of § 27.004 of the RCLA, the trial court was required to allow the real parties a reasonable opportunity to amend to remove the abatement. Bryce v. Corpus Christi Area Convention and Tourist Bureau, 569 S.W.2d 496, 499 (Tex.Civ.App.— Corpus Christi 1978, writ ref'd n.r.e.); Atkinson v. Reid, 625 S.W.2d 64, 67 (Tex.App.— San Antonio 1981, no writ); Bluebonnet Farms, Inc. v. Gibraltar Savings Association, 618 S.W.2d 81, 83 (Tex.Civ.App. — Houston [1 st Dist.] 1981, writ ref'd n.r.e.); M & M Const. Co. v. Great American Ins., 747 S.W.2d 552, 554 (Tex.App. — Corpus Christi 1988, no writ). It would have been error had the trial court refused the real parties the right to amend as they did to delete said paragraph 4. The the real parties amendment had already been filed at the time of the hearing on the Motion to Abate. It would have been absurd to require the real parties to refile their Second Amended Petition immediately after that hearing. The majority opinion errs because it holds the Second Amended Petition to be a nullity and it doesn’t set forth information necessary to guide the real parties to a correct procedure to correct the defect which can be cured. M & M Const. Co. v. Great American Ins., 747 S.W.2d at 554; Bryce v. Corpus Christi Area Convention and Tourist Bureau, 569 S.W.2d at 499; Atkinson v. Reid, 625 S.W.2d at 67. The real parties should have been given a reasonable opportunity to amend as was pos*528sible in this case to remove the obstacle created by the automatic abatement. A case is revived upon removal of the obstacle which prevented its further prosecution in the first instance. M & M Const. Co. v. Great American Ins., 747 S.W.2d at 554; and Texas Highway Dept. v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967). The automatic abatement in this case is not a permanent abatement preventing the prosecution of other alleged causes of action by the real parties. The fact that the real parties filed their Second Amended Petition omitting said paragraph 4 on December 15, 1997 operates as would a voluntary dismissal of the alleged RCLA cause of action, and is no longer a pleading in the case, and retains real parties common law and statutory fraud causes of action. Wu v. Walnut Equipment Leasing Co., 909 S.W.2d 273, 278 (Tex.App.-Houston [14 th Dist.] 1995, rev’d on other grounds, appeal dism’d w.o.j., 920 S.W.2d 285 (Tex.1996)); Harris v. Shoults, 817 S.W.2d 854, 855 (Tex.App.-Fort Worth 1994, no writ); Gage v. Langford, 615 S.W.2d 934, 940 (Tex.Civ.App.-Eastland 1981, writ ref'd n.r.e.). Texas v. Tamminga, 928 S.W.2d 737, 740 (Tex.App.-Waco 1996). It is no different than if the real parties took a voluntary non-suit as to the RCLA paragraph. Real parties retained the viable fraud causes of action which were not preempted by RCLA. Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122 (Tex.App. — San Antonio 1997, writ denied). Contrary to the majority the trial court could not abate the fraud causes notwithstanding an automatic abatement of the RCLA cause. Atkinson v. Thompson, 311 S.W.2d 250, 253-257 (Tex.Civ.App.- Houston 1958, writ refd n.r.e.). Therefore, the automatic abatement was in effect only eight days, from-December 8,1997 (11 days after the filing of the motion to abate) until December 15, 1997, the date appellants’ filed their Second Amended Petition. There is no rule to prevent the real parties from filing a voluntary dismissal, either through a non-suit or an amended petition, to avoid having to prove a cause of action under RCLA. The RCLA cause of action, if any, was no longer before the trial court once the Amended Petition was filed. Tex.R. Civ. P. 64, 65. The effect of the majority opinion is that the real parties could not dismiss and would be required to proceed under the RCLA against their wishes. Not only does the RCLA not preempt the real parties fraud causes of action it does not require appellants to plead and proceed under the act if they do not so desire.
The trial court did not abuse its discretion in deciding there was no longer an RCLA cause of action in the case. I would deny the mandamus.