in Re Javier Cahue

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-20-00254-CV
___________________________
IN RE JAVIER CAHUE, Relator
Original Proceeding
County Court at Law No. 3 of Tarrant County, Texas
Trial Court No. 2019-004706-3
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
I. INTRODUCTION
Relator Javier Cahue is the plaintiff in a suit arising out of a January 2019 multi-
vehicle accident. He filed his suit in a Dallas County district court. On the motion of
real party in interest Stephanie Ortiz, respondent Judge Mike Hrabal consolidated
Cahue’s suit into Ortiz’s previously filed suit, which arose out of the same car accident
and was pending in Judge Hrabal’s court. Judge Hrabal presides over County Court at
Law No. 3 of Tarrant County. Cahue asserts that Judge Hrabal abused his discretion
by interfering with the Dallas County court’s jurisdiction over his suit and by
consolidating Cahue’s case with the Tarrant County suit because, while both counties
are permissible venues, the Tarrant County court does not have jurisdiction over
Cahue’s claims because the amount in controversy in Cahue’s suit is outside the
jurisdictional limit of that court. We agree that the Tarrant County court does not
have jurisdiction over Cahue’s suit, and Cahue is entitled to mandamus relief.
II. BACKGROUND
A. THE TWO SUITS
On June 20, 2019, Ortiz sued Classic Shuttle Acquisition Corp., Abraham
Asresu Abay, and Cahue in County Court at Law No. 3 of Tarrant County; she later
added Veronica Villegas as a defendant. Ortiz pleaded for damages of an amount not
more than $200,000.
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On April 3, 2020, Cahue sued Ortiz, Classical Shuttle, Abay, and Villegas in the
160th District Court of Dallas County.1 Cahue’s petition alleged that he was seeking
“monetary relief in a sum greater than $1,000,000.”
B. CONSOLIDATION
In May 2020, Ortiz filed in the Tarrant County court a motion to consolidate
the two suits on the basis that the two actions involved the same parties, issues of law
and fact, and liability evidence, and that her suit had been filed first. She filed a notice
of her motion in the Dallas County court. On June 17, 2020, the Tarrant County
court granted the motion and ordered that Cahue’s Dallas County suit be consolidated
into Ortiz’s suit under cause number 2019-004706-3.2
On July 16, 2020, Cahue filed a special appearance and plea in abatement in the
Tarrant County action,3 arguing that because he had pled damages in excess of
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Both suits alleged that the accident occurred on State Highway 183 and that
Ortiz was driving ahead of Cahue and Abay when another vehicle (which Cahue
alleged was driven by Villegas) switched into her lane in front of her vehicle; that
Abay’s vehicle hit the back of Cahue’s vehicle; and that Cahue’s vehicle hit the back of
Ortiz’s. Both suits further alleged that Abay was at the time an employee of Classic
Shuttle. Both suits asserted negligence claims against the respective defendants.
The case information sheet filed by Cahue states that the Tarrant County court
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held a hearing on the motion on June 17, 2020, and that “Dallas P did not appear.”
However, the trial court’s consolidation order states that the court had “heard the . . .
argument of counsel for all parties.”
The day before, Cahue had filed in the Dallas County court an objection and
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response to Ortiz’s notice of her motion to consolidate, asserting that Cahue had not
received notice of the motion and that the motion was not properly before either the
Tarrant County court or the Dallas County court because Texas Rule of Civil
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$1 million, the Tarrant County court did not have jurisdiction over his claims “and as
such cannot hold dominant jurisdiction.” He asked the Tarrant County court to abate
Ortiz’s suit “so that the case can proceed in the court with dominant jurisdiction.”
The record filed by Cahue does not include an order, if any, on the special
appearance. However, on July 24, 2020, the trial court signed an amended
consolidation order, which added Brianna Marie Villegas to the style of the case.
III. JURISDICTION OF THE TARRANT COUNTY COURT
The two suits arise out of the same vehicle accident and involve the same
parties, and Ortiz filed her suit first. When two suits pending in separate courts are
inherently related, “[t]he general common law rule in Texas is that the court in which
suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate
courts.” In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig.
proceeding) (quoting Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974)); In re King,
478 S.W.3d 930, 933 (Tex. App.—Dallas 2015, orig. proceeding).
But the dominant jurisdiction doctrine operates to determine proper venue and
does not confer subject-matter jurisdiction over an action. Gordon v. Jones, 196 S.W.3d
376, 382–83 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Thus, the doctrine has
no application when the court of the first-filed suit does not have jurisdiction over the
Procedure 174 does not permit a court to transfer and consolidate cases pending
before other courts. The mandamus record does not include any ruling by the Dallas
court on this filing. However, Cahue filed a “case information” page for the suit,
which reflects that the trial court has closed that case.
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second-filed suit; “[w]here a claim asserted in a second-filed case is outside the
jurisdictional limit of the court in the first-filed case, . . . it is beyond the first court’s
reach, and the court in which suit was first filed cannot assert dominant jurisdiction
over it.” King, 478 S.W.3d at 933.
County Court at Law No. 3 of Tarrant County has jurisdiction over “civil cases
in which the matter in controversy exceeds $500 and does not exceed $200,000,
excluding mandatory damages and penalties, attorney’s fees, interest, and costs.” Tex.
Gov’t Code Ann. § 25.2222(b)(1). Cahue pleaded an amount in controversy in excess
of $200,000. Accordingly, the Tarrant County court does not have jurisdiction over
Cahue’s suit. See King, 478 S.W.3d at 934–35.
IV. AVAILABILITY OF RELIEF
Cahue is entitled to mandamus relief from the trial court’s amended
consolidation order.4 Mandamus relief is generally proper when, as here, the trial
court lacks subject matter jurisdiction over the underlying proceeding, “and in such a
case, a relator need not establish that [he] lacks an adequate remedy by appeal.” In re
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Cahue asks this court to vacate both consolidation orders. However, the trial
court’s original consolidation order was replaced by the amended consolidation order
and is therefore no longer in effect. See City of Houston v. Dolcefino Commc’ns, LLC,
No. 01-17-00979-CV, 2018 WL 5539447, at *3 n.8 (Tex. App.—Houston [1st Dist.]
Oct. 30, 2018, no pet.) (mem. op.) (stating that trial court’s amended order rendered
the court’s previous order moot, and thus confining its discussion to the amended
order); cf. In re Grande Garbage Collection Co., LLC, No. 04-16-00450-CV, 2016 WL
5922394, at *1 (Tex. App.—San Antonio Oct. 12, 2016, orig. proceeding) (mem. op.)
(reviewing only an amended order, which replaced the initial order).
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St. Thomas High Sch., 495 S.W.3d 500, 514 (Tex. App.—Houston [14th Dist.] 2016,
orig. proceeding) (quoting In re Footman, No. 03–15–00477–CV, 2015 WL 7164170, at
*2 n.1 (Tex. App.—Austin Nov. 10, 2015, orig. proceeding) (mem. op.)). Further,
because any judgment in Cahue’s case would be void, see Interest of D.S., 602 S.W.3d
504, 512 (Tex. 2020); Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005), permitting
the case to proceed in the Tarrant County court would necessarily cost the parties and
the public “the time and money utterly wasted enduring eventual reversal of [the]
improperly conducted proceedings.’” In re J.B. Hunt, 492 S.W.3d at 299 (quoting In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004), and discussing, in the
context of dominant jurisdiction, whether a relator has an adequate remedy by appeal
when a trial court erroneously denies a plea in abatement); cf. In re Dickason,
987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (granting mandamus relief from
new trial order entered after the trial court’s plenary power expired because “the trial
court had no power to grant the new trial,” its order doing so was therefore void, and
“any subsequent retrial would be a nullity”). Accordingly, mandamus is proper.
V. CONCLUSION
We conditionally grant Cahue’s requested relief. We order the trial court to
vacate its order consolidating Cahue’s case into cause number 2019-004706-3. Our
August 18, 2020 order staying the trial court’s consolidation order will be
automatically lifted when the trial court vacates the consolidation order.
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We are confident that the trial court will act in accordance with this opinion.
The writ will issue only if the trial judge fails to do so.
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: September 15, 2020
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