in Re Clear Diamond, Inc. ( 2021 )

NUMBER 13-21-00068-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE CLEAR DIAMOND, INC.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Benavides 1
By petition for writ of mandamus, relator Clear Diamond, Inc. (Clear Diamond)
seeks to compel the trial court to abate the underlying suit based on dominant jurisdiction
and to vacate an order denying Clear Diamond’s motion to transfer venue. We
conditionally grant the petition for writ of mandamus with regard to Clear Diamond’s plea
in abatement as discussed below.
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. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
I. BACKGROUND
This case arises from a tractor-trailer collision that occurred on January 15, 2019,
in Crockett County, Texas, at the intersection of U.S. Highway 137 and U.S. Highway
190. Clear Diamond had contracted with Lonesome Dove Logistics, LLC (Lonesome
Dove) to deliver a load of highly flammable liquid natural gas. In the agreement,
Lonesome Dove agreed to indemnify Clear Diamond for damage to its trailer or cargo.
Lonesome Dove dispatched driver Kenneth Wartenbee with the load of liquid natural gas.
In the course of his trip, Wartenbee collided with a tractor-trailer driven by Flavio Zapata.
Flavio’s father, Sergio Zapata Montoya d/b/a Openroad Transportation (Openroad)
owned the tractor driven by Flavio, and Eduardo Tapia owned the trailer being hauled by
Flavio. Openroad was the named insured under a policy of insurance issued by Clear
Blue Insurance Company (Clear Blue). 2
Flavio died as a result of the collision, and was survived by his wife, Rebeca
Zapata, and his two minor children, A.N.Z. and B.A.Z. Both tractor-trailers sustained
significant damage. The parties disagree regarding fault for the collision. Clear Diamond
contends that Flavio failed to observe two flashing stop signs, failed to yield the right-of-
way, and entered the intersection directly in front of Wartenbee, who had the right-of-way.
Flavio’s family asserts, in contrast, that Clear Diamond failed to train Wartenbee
adequately and dispatched Wartenbee in an unreasonable manner that created a
foreseeable risk of harm to others by sending him on a dangerous route in hazardous
2 Clear Blue Insurance Company was apparently incorrectly named as Clear Blue Insurance
Corporation in the underlying matters. This discrepancy is not material to our analysis.
2
conditions, and that Wartenbee failed to maintain a reasonable lookout and failed to
operate his rig in a reasonable manner.
On February 5, 2019, Clear Diamond and Wartenbee filed suit against Estela
Zapata (Flavio’s mother), Sergio Zapata Montoya, Rebeca, individually and as
representative of Flavio’s estate, and Lonesome Dove in the 452nd District Court of
McCulloch County, Texas, for personal injuries and property damage. Clear Diamond
asserted that venue was proper there because it was the county of Lonesome Dove’s
principal office. They sued for damage to the trailer, loss of cargo, and loss of Wartenbee’s
personal property. They alleged that, on information and belief, the tractor operated by
Flavio was owned by Estela, Sergio, and Rebeca. They alleged that Lonesome Dove
contracted with Clear Diamond to deliver the load of liquified natural gas, dispatched
Wartenbee on the trip, and contracted to indemnify Clear Diamond for any damage to its
trailer or cargo. They alleged, inter alia, that Estela, Sergio, and Rebeca committed
negligent entrustment and were negligent in hiring, training, and supervising Flavio, that
Lonesome Dove was negligent in dispatching Wartenbee, and that Lonesome Dove owed
Clear Diamond indemnity.
On February 12, 2019, Rebeca, individually, as personal representative of Flavio’s
estate, and as next friend for minor children A.N.Z. and B.A.Z, filed suit against Clear
Diamond and Tapia in the 275th District Court of Hidalgo County, Texas. This lawsuit
gave rise to the remainder of the proceedings relevant to this original proceeding. Rebeca
alleged that Clear Diamond’s tanker collided with Tapia’s trailer causing Flavio’s death.
She filed a wrongful death and survival cause of action and sought injunctive relief to
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preserve evidence relevant to the case. She alleged that venue was proper in Hidalgo
County based on Tapia’s residence there.
In response, Clear Diamond filed a “Motion to Transfer Venue, Plea in Abatement,
and Subject Thereto, Original Answer.” Clear Diamond specifically denied that Tapia
resided in Hidalgo County, requested transfer to McCulloch County as the location of
Clear Diamond’s principal office, and asserted that a transfer of venue would serve the
convenience of the parties and witnesses. Clear Diamond also sought abatement based
on the dominant jurisdiction of the case that it had previously filed in McCulloch County.
Clear Diamond’s pleading was not verified but was supported by: (1) the Texas Peace
Officer’s Crash Report regarding the collision at issue; and (2) a file-stamped copy of
Clear Diamond’s original petition in McCulloch County.
On June 18, 2020, Rebeca, this time proceeding only as next friend for A.N.Z. and
B.A.Z., filed a “First Amended Original Petition and Application for Declaratory and
Injunctive Relief.” She reiterated her claims against Clear Diamond and Tapia. She added
Clear Blue as a defendant and sought a declaratory judgment that Tapia had no claim
against the Clear Blue insurance policy.
On September 8, 2020, Rebeca as next friend filed a “Response to Plea in
Abatement and Motion to Transfer Venue.” She alleged that Clear Diamond’s plea in
abatement was moot because it challenged her original petition, “a petition that has been
amended to remove the parties that were improperly sued by [Clear Diamond] in
McCulloch County.” She argued that the doctrine of dominant jurisdiction was inapplicable
because the minor children and Tapia were not parties to the McCulloch County case;
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their claims and defenses are not at issue there; and the minors had filed their claims in
Hidalgo County, which “is a county of proper venue for their wrongful death and
declaratory judgment claims.” She similarly alleged that Clear Diamond’s motion to
transfer venue was moot because she had amended her pleadings. She urged the trial
court to maintain venue in Hidalgo County because transfer of the suit would cause
injustice and hardship for the real parties because they would have to travel over three
hundred miles to McCulloch County to attend court. She supported her response with an
affidavit regarding her inability to pursue or defend the case in McCulloch County due to
financial constraints.
On September 29, 2020, Clear Diamond filed a “Supplement to Plea in
Abatement.” Clear Diamond reiterated that its McCulloch County suit was first filed, that
“both lawsuits involve[] the same issues from the same collision,” and that abatement was
required under the applicable law. In support of its contentions, Clear Diamond again
attached its original petition filed in McCulloch County, and further provided: (1) the Texas
Highway Patrol Division Crash Investigation report regarding the collision; (2) a motion to
transfer venue from McCulloch County to Webb County, 3 as filed in McCulloch County
by Rebeca, individually and as representative of Flavio’s estate; (3) a “Rule 11”
agreement between the parties continuing the hearing on Clear Diamond’s plea in
abatement; and (4) orders denying motions to transfer venue filed by Rebeca, Estela, and
Sergio rendered by the McCulloch County trial judge. See TEX. R. CIV. P. 11.
3 Rebeca alleged that venue was proper in Webb County because she “resided in Webb [C]ounty
at the time the cause of action accrued . . . .”
5
On January 12, 2021, Rebeca as next friend filed a “Supplemental Response to
Defendant’s Supplement to Plea in Abatement.” She argued that Clear Diamond’s “plea
to the jurisdiction” and motion to transfer venue were moot because she had amended
her petition. She also asserted that the dominant jurisdiction doctrine did not apply
“because this suit involves completely different parties with entirely different claims.” And
further, she argued that dominant jurisdiction did not apply because Clear Diamond “lacks
intent to prosecute the McCulloch County lawsuit.” According to Rebeca, Clear Diamond’s
conduct provided an additional reason for the trial court to refuse abatement:
To manufacture venue in McCulloch County, [Clear Diamond] filed a sham
lawsuit against [Lonesome Dove], a McCulloch County company owned
by . . . Clear Diamond’s foreman and his wife. Clear Diamond has no
intention of actually prosecuting its own foreman. [Clear Diamond] claims
that its own employee negligently dispatched Clear Diamond’s driver of the
18-wheeler to pick up natural gas liquids prior to the crash at issue.
Finally, Rebeca alleged that Hidalgo County was the “only” county of proper venue and
convenient to the parties.
On January 12, 2021, the trial court held a non-evidentiary hearing on pending
motions, including Clear Diamond’s plea in abatement.
On January 13, 2021, Clear Diamond filed a “Notice of Filing” including the
declaration of Daniel Heath McBride in support of its plea in abatement. In his declaration,
McBride stated that he had reviewed the factual statements in the plea in abatement and
supplement to the plea, and they were based on personal knowledge and were true and
correct.
On January 15, 2021, Estela and Sergio filed an “Original Petition in Intervention”
seeking declaratory relief against Tapia and Clear Blue regarding their relative rights
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under the Clear Blue insurance policy and alleging negligence and gross negligence
against Clear Diamond and Wartenbee.
Also on January 15, 2021, Rebeca, this time proceeding individually, as personal
representative of Flavio’s estate, and as next friend for A.N.Z. and B.A.Z., filed a “Second
Amended Original Petition and Application for Declaratory and Injunctive Relief” against
Clear Diamond, Tapia, and Clear Blue. In this second amended pleading, Rebeca also
included claims against Wartenbee.
On February 2, 2021, the trial court signed an order denying both Clear Diamond’s
plea in abatement and its motion to transfer venue.
This original proceeding ensued. By four issues, Clear Diamond asserts that the
trial court abused its discretion by refusing to abate a second-filed lawsuit that is inherently
interrelated with a previously filed lawsuit and mandamus should issue to correct this error
(issues one and two), and the trial court abused its discretion by denying Clear Diamond’s
motion to transfer venue without hearing or notice, and mandamus is available to remedy
this error (issues three and four).
This Court requested and received a response to the petition for writ of mandamus
from Rebeca, individually and as personal representative of Flavio’s estate and as next
friend of A.N.Z. and B.A.Z. The parties have also provided further briefing: Clear Diamond
has filed a reply to the response, and the real parties have filed a sur-reply.
II. STANDARD FOR MANDAMUS REVIEW
“To obtain relief by writ of mandamus, a relator must establish that an underlying
order is void or a clear abuse of discretion and that no adequate appellate remedy exists.”
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In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (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, 839–40 (Tex. 1992) (orig. proceeding). Under this
standard of review, we defer to the trial court’s factual determinations that are supported
by evidence, but we review the trial court’s legal determinations de novo. See In re Labatt
Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). An abuse of
discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made
without regard for guiding legal principles or supporting evidence. In re Nationwide, 494
S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). A trial court
abuses its discretion when it fails to analyze or apply the law correctly or apply the law
correctly to the facts. In re Nationwide, 494 S.W.3d at 712; In re H.E.B. Grocery Co., 492
S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). “This principle applies ‘even
when the law is unsettled.’” In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 294 (Tex.
2016) (orig. proceeding) (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136). A
trial court abuses its discretion concerning factual matters if the record establishes that
the trial court could have reached only one conclusion. Walker, 827 S.W.2d at 841.
We determine the adequacy of an appellate remedy by balancing the benefits of
mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528
(Tex. 2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d
at 136. In deciding whether the benefits of mandamus outweigh the detriments, we weigh
the public and private interests involved in the case, and we look to the facts involved in
each case to determine the adequacy of an appeal. In re United Servs. Auto. Ass’n, 307
8
S.W.3d 299, 313 (Tex. 2010) (orig. proceeding); In re McAllen Med. Ctr., Inc., 275 S.W.3d
458, 469 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at
136–37.
III. PRINCIPLES OF DOMINANT JURISDICTION
“In instances where inherently interrelated suits are pending in two counties, and
venue is proper in either county, the court in which suit was first filed acquires dominant
jurisdiction.” In re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 322 (Tex. 2016) (orig.
proceeding); see In re J.B. Hunt Transp., Inc., 492 S.W.3d at 294; Gonzalez v. Reliant
Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005); Wyatt v. Shaw Plumbing Co., 760 S.W.2d
245, 248 (Tex. 1988), overruled on other grounds, In re J.B. Hunt Transp., Inc., 492
S.W.3d at 292–93. In these circumstances, the general rule is that the court in the second
action must abate the suit. In re Red Dot Bldg. Sys., Inc., 504 S.W.3d at 322; In re J.B.
Hunt Transp. Inc., 492 S.W.3d at 294; Wyatt, 760 S.W.2d at 247.
The reasons for abatement include conservation of judicial resources, avoidance
of delay, and “comity, convenience, and the necessity for an orderly procedure in the trial
of contested issues.” Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (orig. proceeding)
(quoting Wyatt, 760 S.W.2d at 248); see In re J.B. Hunt Transp. Inc., 492 S.W.3d at 294;
see also Dodd v. Evergreen Nat’l Constr., LLC, No. 01-16-00974-CV, 2017 WL 2645041,
at *4 (Tex. App.—Houston [1st Dist.] June 20, 2017, no pet.) (combined appeal & orig.
proceeding) (mem. op.). “A further justification is simple fairness: in a race to the
courthouse, the winner’s suit should have dominant jurisdiction.” Perry, 66 S.W.3d at 252;
see In re King, 478 S.W.3d 930, 933 (Tex. App.—Dallas 2015, orig. proceeding). “The
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default rule thus tilts the playing field in favor of according dominant jurisdiction to the
court in which suit is first filed.” In re J.B. Hunt Transp., Inc., 492 S.W.3d at 294 (footnotes
and internal quotations omitted); see Mayfield v. Peek, 546 S.W.3d 253, 265–66 (Tex.
App.—El Paso 2017, no pet.). “As long as the forum is a proper one, it is the plaintiff’s
privilege to choose the forum,” and a defendant is “simply not at liberty to decline to do
battle in the forum chosen by the plaintiff.” Wyatt, 760 S.W.2d at 248; see In re Amoco
Fed. Credit Union, 506 S.W.3d 178, 184 (Tex. App.—Tyler 2016, orig. proceeding). We
conduct our dominant jurisdiction analysis under the deferential abuse of discretion
standard. In re J.B. Hunt Transp., Inc., 492 S.W.3d at 293.
IV. DOMINANT JURISDICTION ANALYSIS
We turn to the relator’s arguments pertaining to dominant jurisdiction. Clear
Diamond contends that the trial court abused its discretion by refusing to abate a second-
filed suit that is inherently interrelated with pending litigation. In connection with this
argument, Clear Diamond argues that the cases are inherently interrelated; the real
parties’ “manipulation of the pleadings did not negate the interrelatedness of the lawsuits”;
venue is proper in McCulloch County; no exceptions to dominant jurisdiction apply to bar
abatement; and Clear Diamond’s pleadings did not suffer from any deficiency that would
prevent mandamus relief.
In response, the real parties allege that the trial court acted within its discretion to
deny Clear Diamond’s plea in abatement because Clear Diamond offered no evidence to
support the grounds for its plea, there is not a “sufficient interrelation” between the parties
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and claims in the two suits under the “compulsory counterclaim” test, and venue was not
proper in McCulloch County. 4
A. Evidence
We begin by examining the real parties’ assertion that Clear Diamond offered no
evidence in support of its plea in abatement. “It is well established that a party seeking
abatement must prove the allegations in its plea by a preponderance of the evidence.” In
re HPGM, LLC, No. 06-20-00019-CV, 2020 WL 5737529, at *4, __ S.W.3d __, __ (Tex.
App.—Texarkana Sept. 25, 2020, orig. proceeding) (citing Flowers v. Steelcraft Corp.,
406 S.W.2d 199, 199 (Tex. 1966)); see S. Cnty. Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452,
469 (Tex. App.— Corpus Christi – Edinburg 2000, no pet.); Lopez v. Tex. Workers’ Comp.
Ins. Fund, 11 S.W.3d 490, 493 (Tex. App.—Austin 2000, pet. denied); Bernal v. Garrison,
818 S.W.2d 79, 82 (Tex. App.—Corpus Christi–Edinburg 1991, writ denied); Brazos Elec.
Power Co-Op., Inc. v. Weatherford Indep. Sch. Dist., 453 S.W.2d 185, 188 (Tex. App.—
Fort Worth 1970, writ ref’d n.r.e.). Even the verification of a plea does not do away with
the requirement that the one urging the plea prove the grounds by a preponderance of
the evidence at the time the plea is presented to the court. Brazos Elec. Power Co-Op.,
Inc., 453 S.W.2d at 189; see also In re Truck Ins. Exch., No. 12-12-00183-CV, 2013 WL
4 There are exceptions to the general rule that the first-filed suit acquires dominant jurisdiction. See
In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding); Wyatt v. Shaw Plumbing
Co., 760 S.W.2d 245, 248 (Tex. 1988). These exceptions include: (1) conduct by a party that estops it from
asserting prior active jurisdiction; (2) lack of persons to be joined if feasible, or the power to bring them
before the court; and (3) lack of intent to prosecute the first lawsuit. Wyatt, 760 S.W.2d at 248; see In re
PlainsCapital Bank, No. 13-17-00021-CV, 2018 WL 2979836, at *10 (Tex. App.—Corpus Christi–Edinburg
June 8, 2018, orig. proceeding) (mem. op.). Although some of the real parties’ terminology and argument
in this original proceeding invoke some of these exceptions to the general rule, the real parties do not
expressly argue that these exceptions apply and do not offer evidence in support of the exceptions.
Accordingly, we do not address them herein.
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1760793, at *2 (Tex. App.—Tyler Apr. 24, 2013, orig. proceeding) (mem. op.). A plea in
abatement is sustainable without proof only when the plaintiff’s pleadings establish the
grounds urged in the plea. In re HPGM, LLC, 2020 WL 5737529, at *4, __ S.W.3d at __;
Bernal, 818 S.W.3d at 82; Brazos Elec. Power Co-Op., Inc., 453 S.W.2d at 188; see also
In re Truck Ins. Exch., 2013 WL 1760793, at *2.
As stated previously, Clear Diamond’s plea in abatement was not verified or
supported by affidavits at the time that it was filed. As exhibits to its plea in abatement,
Clear Diamond attached the Texas Peace Officer’s Report and the file-stamped petition
filed by Clear Diamond in McCulloch County. Clear Diamond offered additional exhibits
in conjunction with its supplement to the plea in abatement. The hearing on the plea in
abatement was not evidentiary in nature. After the hearing, but before the trial court issued
its ruling, Clear Diamond filed the declaration of McBride, which stated that the factual
statements in the plea in abatement and supplement were based on personal knowledge
and were true and correct. 5 The trial court’s order states that the trial court considered
“the pleadings, the response, the affidavits, and the court’s file, and arguments of
counsel.” Cf. B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 260 (Tex. 2020)
(per curiam) (reviewing the record for evidence indicating that the trial court allowed the
late filing of a summary judgment response).
5 We note that if a defendant fails to verify a denial that must be verified under the rules, the plaintiff
must object to the defect, or it waives the error. See Werner v. Colwell, 909 S.W.2d 866, 870 (Tex. 1995).
And, a pleading may usually be amended to include a verification, even during trial. See, e.g., Chapin &
Chapin, Inc. v. Tex. Sand & Gravel Co., 844 S.W.2d 664, 664–65 (Tex. 1992) (per curiam).
12
Reviewing the pleadings, evidence, and arguments presented to the trial court, we
conclude that Clear Diamond met its burden in this case. The record contains no factual
disputes; rather, the parties merely disagree, albeit vehemently, regarding the
interpretation of those facts as it pertains to dominant jurisdiction. The real parties’
pleadings acknowledge that the McCulloch County suit was filed first and remains
pending, although the real parties allege that the parties and claims are different. Further,
the real parties’ pleadings are expressly based on the January 15, 2019 collision between
Clear Diamond’s tanker and Tapia’s trailer. Under these circumstances, we reject real
parties’ contention that Clear Diamond’s plea must be denied because it lacks evidentiary
support.
B. Interrelationship
In determining whether an inherent interrelationship exists between two lawsuits,
“courts should be guided by the rule governing persons to be joined if feasible and the
compulsory counterclaim rule.” Wyatt, 760 S.W.2d at 247; see TEX. R. CIV. P. 39, 97(a);
In re J.B. Hunt Transp., Inc., 492 S.W.3d at 292. Texas Rule of Civil Procedure 97(a),
regarding compulsory counterclaims, provides:
A pleading shall state as a counterclaim any claim within the jurisdiction of
the court, not the subject of a pending action, which at the time of filing the
pleading the pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing party’s
claim and does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction; provided, however, that a
judgment based upon a settlement or compromise of a claim of one party
to the transaction or occurrence prior to a disposition on the merits shall not
operate as a bar to the continuation or assertion of the claims of any other
party to the transaction or occurrence unless the latter has consented in
writing that said judgment shall operate as a bar.
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TEX. R. CIV. P. 97(a). A counterclaim is compulsory if, in addition to Rule 97(a)’s other
requirements, it was not the subject of a pending action when the original suit was
commenced. In re J.B. Hunt Transp., Inc., 492 S.W.3d at 293. “The compulsory
counterclaim rule is a means of bringing all logically related claims into a single litigation,
through precluding a later assertion of omitted claims.” White v. Rupard, 788 S.W.2d 175,
178 (Tex. App.—Houston [14th Dist.] 1990, writ denied). “A counterclaim is logically
related to the opposing party’s claim where separate trials on each of their respective
claims would involve a substantial duplication of effort and time by the parties and courts.”
Id.; see also In re Second St. Props., LLC, No. 14-16-00390-CV, 2016 WL 7436649, at
*3 (Tex. App.—Houston [14th Dist.] Dec. 22, 2016, orig. proceeding) (mem. op.) (orig.
proceeding). “The logical relationship test is met when the same facts, which may or may
not be disputed, are significant and logically relevant to both claims.” Moore v. First Fin.
Resolution Enters., Inc., 277 S.W.3d 510, 516 (Tex. App.—Dallas 2009, no pet.).
We examine whether there is an inherent interrelationship between the subject
matters of the two lawsuits. Wyatt, 760 S.W.2d at 247; see also TEX. R. CIV. P. 39 (stating
the rule regarding the joinder of persons needed for “just adjudication”); id. R. 97(a)
(delineating the compulsory counterclaim rule). If such an inherent interrelationship exists,
we then proceed to assess dominant jurisdiction. In re J.B. Hunt Transp., Inc., 492 S.W.3d
at 292. To determine whether there is an inherent interrelationship, we consider whether:
(1) the McCulloch County suit commenced first; (2) the McCulloch County suit is still
pending; (3) the McCulloch County suit does include or could be amended to include all
the parties; and (4) the controversies are the same or the McCulloch County suit could
14
be amended to include all of the claims. See Wyatt, 760 S.W.2d at 247; In re Amoco Fed.
Credit Union, 506 S.W.3d at 187; In re King, 478 S.W.3d at 933; In re ExxonMobil Prod.
Co., 340 S.W.3d 852, 856 (Tex. App.—San Antonio 2011, orig. proceeding).
The McCulloch County suit was commenced first and is still pending. See Wyatt,
760 S.W.2d at 247; In re Amoco Fed. Credit Union, 506 S.W.3d at 187. The McCulloch
County suit includes Clear Diamond, Wartenbee, Estela, Sergio, Rebeca, individually and
as representative of Flavio’s estate, and Lonesome Dove. The Hidalgo County suit, based
on the current incarnation of the pleadings, includes these parties, and additionally
includes Rebeca as next friend of A.N.Z. and B.A.Z., Clear Blue, and Tapia.
The real parties assert that the McCulloch County suit cannot be amended to
include the minor children. According to real parties, “even under the foul-play tactics of
Clear Diamond in suing Flavio’s widow and mother, Clear Diamond apparently could not
come up with any claim to assert against the minors, seeking to somehow blame them
for the untimely death of their father.” They further assert that the “independent claims
belonging to the Zapata Children are not claims owned by any pleading defendant that
could have been pleaded as ‘counterclaims’ at the time any defendant answered Clear
Diamond’s suit in McCulloch County,” and thus, “the ‘inherent interrelation’ test is simply
not satisfied on this record.”
We disagree. As a threshold matter, “[i]t 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; see also French v. Gilbert, No. 01–07–00186–CV,
15
2008 WL 5003740, at *6 (Tex. App.—Houston [1st Dist.] Nov. 26, 2008, orig. proceeding)
(mem. op.). Here, the minor children are Texas residents and are represented by their
mother and next friend who is already a party to the action. See TEX. R. CIV. P. 44
(allowing minors to “sue and be represented” by next friends); In re Bridgestone Americas
Tire Operations, LLC, 459 S.W.3d 565, 572 (Tex. 2015) (orig. proceeding). In fact, the
minors appear in the real parties’ current live pleading. There is nothing apparent in this
record which would prevent Rebeca from prosecuting the minor’s claims, and contrary to
the real parties’ assertions, there is no requirement that they appear in the lawsuit as
defendants. In short, the real parties have not identified any jurisdictional obstacles which
would prevent these parties from joining suit.
We next examine whether the controversies in the two suits are the same. See
Wyatt, 760 S.W.2d at 247; In re Amoco Fed. Credit Union, 506 S.W.3d at 187. Both
lawsuits arise from the same tractor-trailer collision and concern liability for Flavio’s death
and the property damage to both tractor-trailers. The lawsuits arise from the same facts,
and the claims for personal injury and property damage are significant and logically
related. Separate trials of these claims and issues would involve a substantial duplication
of effort and time by the parties and courts, and separate trials of these claims could lead
to conflicting determinations on these matters. See White, 788 S.W.2d at 178; see also
In re Second St. Props. LLC, 2016 WL 7436649, at *4.
We note that the Texas Supreme Court’s decision in J.B. Hunt Transport, Inc.
involved substantially similar facts. See 492 S.W.3d 287. In that case, a J.B. Hunt tractor-
trailer traveling on I–10 in Waller County struck a disabled vehicle in the tractor-trailer’s
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lane. Id. at 289. The vehicle’s occupants suffered personal injuries and one ultimately
died. Id. J.B. Hunt sued the occupants in Waller County to recover for its property
damages. Id. Ten days later, the occupants of the disabled vehicle sued J.B. Hunt in
Dallas County to recover for their personal injuries. Id. J.B. Hunt filed a plea in abatement
in the Dallas County court on grounds that the Waller County court had dominant
jurisdiction. Id. The occupants of the car claimed, and the Dallas County court agreed,
that exceptions to the first-filed rule applied and the Dallas County court had dominant
jurisdiction. Id. The Texas Supreme Court disagreed and held that the Waller County
court had dominant jurisdiction, and the Dallas County court should have granted the plea
in abatement. Id.Based on the foregoing, we conclude that there is an inherent interrelationship
between the two lawsuits. See id. at 293; Wyatt, 760 S.W.2d at 247.
C. Venue
As stated previously, venue must be proper in McCulloch County in order for
dominant jurisdiction to apply. See In re Red Dot Bldg. Sys., Inc., 504 S.W.3d at 322; In
re J.B. Hunt Transp., Inc., 492 S.W.3d at 294. In its McCulloch County petition, Clear
Diamond asserted that:
Venue is proper in McCulloch County, Texas because it is the county of the
principal office of [Lonesome Dove] at the time [real parties’] causes of
action accrued. TEX. CIV. PRAC. & REM. CODE ANN. [§] 15.002(a)(3). Venue
is proper as to all other Defendants because “[i]n a suit in which the plaintiff
has established proper venue against a defendant, the court also has venue
of all defendants in all claims or actions arising out of the same transaction,
occurrence, or series of transactions or occurrences.” Id. § 15.005.
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The real parties do not dispute that Lonesome Dove is a defendant in the McCulloch
County lawsuit or that Lonesome Dove’s principal office is in McCulloch County.
Real parties assert that venue is not proper in McCulloch County because, inter
alia, the issue of venue is “currently pending” before the Third Court of Appeals, and as
“established” by their brief in that matter and as argued in this proceeding, “Clear
Diamond’s claim against Lonesome Dove (which provides the only basis for jurisdiction
in McCulloch County) is a sham,” and, “[a]s a matter of law, Clear Diamond cannot sue
its own foreman for liability resulting from the negligent dispatch of its own driver; nor does
it have a basis to sue a company owned by the foreman’s wife.”6 The record before this
Court is devoid of any evidence supporting the real parties’ allegations, and since this
matter was briefed in this Court, the Austin Court of Appeals has affirmed the McCulloch
County trial court’s ruling that venue is proper in McCulloch County. See Clear Diamond,
Inc. & Kyle Wartenbee v. Rebeca Zapata, Individually & as Representative of the Estate
of Flavio Zapata, No. 03-20-00057-CV, 2021 WL 3572725, at *8 (Tex. App.—Austin Aug.
13, 2021, no pet. h.) (mem. op.) (affirming the trial court’s order denying Clear Diamond
and Wartenbee’s motion for dismissal of a motion for sanctions under the Texas Citizens
Participation Act (TCPA) and affirming the trial court’s order denying motions to transfer
venue filed by Rebeca, Estela, and Sergio). Given that Lonesome Dove’s principal office
is in McCulloch County, we conclude that McCulloch County is a county of proper venue
as it pertains to the dominant jurisdiction analysis.
6 We express no opinion regarding the real parties’ assessment of the legal effect of Clear
Diamond’s lawsuit against Lonesome Dove, and reference it here only as an argument made by the real
parties regarding dominant jurisdiction.
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D. Summary
We conclude that the trial court abused its discretion by refusing to abate the
second-filed Hidalgo County suit because it is inherently interrelated to the first-filed
McCulloch County suit. Accordingly, we sustain Clear Diamond’s first issue.
In its second issue, Clear Diamond asserts that this error is subject to review by
petition for writ of mandamus. We agree. A relator need not establish that that there is an
inadequate remedy by appeal regarding a plea in abatement in a case involving dominant
jurisdiction and instead need only establish that the trial court abused its discretion to
demonstrate entitlement to mandamus relief. In re J.B. Hunt Transp., Inc., 492 S.W.3d at298–300; see also In re Red Dot Bldg. Sys., Inc., 504 S.W.3d at 322. We agree with Clear
Diamond that it lacks an adequate remedy by appeal, and thus sustain its second issue.
V. CONCLUSION
Because the McCulloch County and Hidalgo County suits are inherently
interrelated, and venue is proper in either county, the court in which suit was first filed,
McCulloch County, acquired dominant jurisdiction. See In re Red Dot Bldg. Sys., Inc., 504
S.W.3d at 322; In re J.B. Hunt Transp., Inc., 492 S.W.3d at 294. Therefore, the trial court
erred in failing to grant the motion to abate the Hidalgo County case. Having reached this
conclusion, we need not address Clear Diamond’s two remaining issues pertaining to
venue. See TEX. R. APP. P. 47.1; id. R. 47.4; see also In re PlainsCapital Bank, No. 13-
17-00021-CV, 2018 WL 2979836, at *15 (Tex. App.—Corpus Christi–Edinburg June 8,
2018, orig. proceeding) (mem. op.).
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Thus, the Court, having examined and fully considered the petition for writ of
mandamus, the response, the additional briefing provided by the parties, and the
applicable law, is of the opinion that Clear Diamond has met its burden to obtain relief.
Accordingly, we lift the stay previously imposed in this case. 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 conditionally grant the petition for writ of mandamus and direct
the trial court to vacate its order denying Clear Diamond’s plea in abatement and to issue
an order granting that plea. Our writ will issue only in the event that the trial court fails to
do so.
GINA M. BENAVIDES
Justice
Delivered and filed on the
31st day of August, 2021.
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