United States: Mandamus Available For Denial Of A Plea In Abatement

Last Updated: August 19 2016
Article by Judith R. Blakeway

May 27, 2016, the Texas Supreme Court announced a new rule in venue disputes—mandamus relief is now available for denial of a plea in abatement. In re J.B. Hunt Transport Inc. 2016 Tex. LEXIS 414 (May 27, 2016).

The case arose when a J.B. Hunt tractor-trailer struck a disabled vehicle on IH 10 in Waller County. The vehicle's occupants were injured and one ultimately died. J.B. Hunt sued the occupants in Waller County to recover property-damage costs. Ten days later, the occupants sued J.B. Hunt in Dallas County to recover personal-injury damages.

J.B. Hunt filed a plea in abatement in the Dallas County court, arguing that the Waller County court, where suit was first filed, had dominant jurisdiction. The occupants claimed, and the Dallas County court agreed, that exceptions to the first-filed rule applied and the Dallas County court had dominant jurisdiction.

J.B. Hunt filed a petition for writ of mandamus in the Dallas Court of Appeals which summarily denied it. J.B. Hunt then filed a mandamus petition in the Texas Supreme Court.

The General Rule—First-Filed Suit is Dominant

The general common law rule in Texas is that the court in which the suit is first filed acquires dominant jurisdiction to the exclusion of coordinate courts. When two suits are inherently interrelated, a plea in abatement in the second action must be granted. Citing the general rule, the Supreme Court reasoned that whether the denial was an abuse of discretion depended on whether any exceptions to the general rule applied. The injured occupants relied on two exceptions—inequitable conduct and lack of diligent prosecution.

Inequitable Conduct Exception

Under the inequitable conduct exception, a plaintiff in a first-filed suit who is guilty of inequitable conduct is estopped from relying on the suit to abate a subsequent suit brought by his adversary. But establishing inequitable conduct alone is insufficient; the second filer must also show that the inequitable conduct caused his delay in filing suit. Because the occupants fatally failed to allege that J.B. Hunt's conduct caused their delay in filing suit, the first exception did not apply.

Failure to Diligently Prosecute Exception

The mere physical filing of a suit is not sufficient; a first filer must also diligently prosecute the suit. The injured occupants argued that J.B. Hunt sued "not because it wanted to recover property damages, but because it intended to secure a favorable venue to defend a significant personal injury case." The Supreme Court rejected that argument for three reasons.

  • First, intending to secure a favorable venue is not impermissible.
  • Second, it doesn't matter why J.B. Hunt filed first. As the Supreme Court says: "this exception concerns only whether the first-filer has demonstrated a bona fide intent to prosecute its suit (what has the first-filer done?), not whether the suit 'makes no sense' as the trial court put it (why did the first-filer do what it has done?)."
  • Third, a potential litigant is not required to "sit on his hands because his claim, viable though it may be, could be countered by an equally viable claim."

The Court also rejected the occupants' claim that J.B. Hunt did not use diligence in serving them, because their attorneys rejected J.B. Hunt's multiple requests to accept service on their behalf. The Court refused to fault J.B. Hunt for not sending a constable to the hospital rooms of the injured parties, one of whom would later die from his injuries, to serve them with process: "Diligence does not compel such insensitivity."

Availability of Mandamus Relief

Having concluded that the trial court abused its discretion, the final question was whether J.B. Hunt was entitled to mandamus relief. In Arbor v. Black, 695 S.W.2d 564 (Tex. 1985) the Court held that mandamus relief is unavailable to correct an erroneous denial of a plea in abatement unless there is a conflict of jurisdiction. The Court now rejects that test and instead adopts the balancing test of In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004). Reasoning that permitting the case to proceed in the wrong court "necessarily costs private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings," the Court concludes that "a relator need only establish a trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to a plea in abatement in a dominant-jurisdiction case."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Judith R. Blakeway
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