in Re KCS Resources, LLC

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November
10, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-11-00712-CV
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IN RE KCS RESOURCES, LLC, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
129th District Court
Harris County, Texas
Trial Court Cause No. 2010-15225
MEMORANDUM OPINION
On August 19, 2011, relator, KCS Resources, LLC (KCS), filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.
KCS complains that respondent, the Honorable Michael Gomez, presiding judge of the
129th District Court of Harris County, abused his discretion in denying KCS’s motion to
stay the underlying suit under principles of comity until the resolution of a suit filed in
Louisiana. See In re Autonation, Inc., 228 S.W.3d 663, 670 (Tex. 2007) (orig.
proceeding) (recognizing the general rule that Texas courts will stay a later-filed
proceeding pending adjudication of the first suit between the same parties and concerning
the same subject matter).
Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the
law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).
At oral argument, counsel for KCS advised this court that KCS has amended its
pleadings in the Louisiana action. The respondent trial court has not been afforded an
opportunity to consider the stay request in light of the amended pleadings. A party’s right
to mandamus relief generally requires a predicate request for some action and a refusal of
that request. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999); Axelson, Inc. v. McIlhany,
798 S.W.2d 550, 556 (Tex. 1990). But the requirement that there be a predicate request
and adverse ruling is excused when such a request would have been futile and the trial
court’s refusal little more than a formality. See In re Texas Best Staff Leasing, Inc., Nos.
01-08-00296-CV & 01-08-00418-CV, 2008 WL 4531028, at *5-6 (Tex. App.—Houston
[1st Dist.] Oct. 9, 2008, orig. proceeding [mand. denied]) (mem. op.). Because a request
to stay based upon the amended Louisiana pleadings would have added something for the
trial court’s consideration, we conclude that such a request would not have been futile.
See id. Because KCS has not satisfied the requirement of a predicate request and refusal
by the trial court, it is not entitled to the mandamus relief requested. See Axelson, Inc.,
798 S.W.2d at 556; In re Texas Best Staff Leasing, Inc., 2008 WL 4531028, at *5-6.
Accordingly, we deny KCS’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Frost, Boyce, and Christopher.
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