NUMBER 13-14-00395-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE STATE FARM LLOYDS AND RICHARD FREYMANN, 

AND AARON AQUILES GALVAN

On Petition for Writ of Mandamus

ORDER

Before Chief Justice Valdez and Justices Perkes and Longoria

Per Curiam Order

Relators, State Farm Lloyds, Richard Freymann, and Aaron Aquiles Galvan, have 

filed a petition for writ of mandamus requesting that this Court direct respondent, the 

Honorable Rose Guerra Reyna, Presiding Judge of the 206th District Court of Hidalgo 

County, Texas, to withdraw her order entered on May 29, 2014 denying relators’ verified 

plea in abatement and to enter an order abating the suit for damages brought against 

relators by the real party in interest, Fred Kurth d/b/a Sherwood Partnership, until sixty 

days after the real party in interest provides relators with a notice letter for his claim stating 
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the specific, separate amounts for his claimed damages and attorney’s fees. See TEX.

INS. CODE ANN. § 541.154 (West, Westlaw through 2013 3d C.S.) (“Prior Notice of 

Action”); id. § 541.155 (West, Westlaw through 2013 3d C.S.) (“Abatement”); TEX. R. APP.

P. 52.1 (“Commencement” of Original Proceedings). In addition, relators request that this 

Court issue immediate temporary relief staying respondent’s order of May 29, 2014 

pending final disposition of this original proceeding. See TEX. R. APP. P. 52.10 

(“Temporary Relief”). As set forth below, the Court, having fully considered the petition 

for writ of mandamus, the request for immediate temporary relief, and the law, is of the 

opinion that a response should be requested from the real party in interest and that the 

request for temporary relief should be granted.

I. STANDARD OF REVIEW

To establish entitlement to relief by mandamus, relators “must meet two 

requirements.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). “One 

is to show that the trial court clearly abused its discretion.” Id. “The other requirement . . 

. . is to show that . . . [relators have] no adequate remedy by appeal.” Id. at 135–36. The 

Texas Supreme Court has explained that “[t]he operative word, ‘adequate,’ has no 

comprehensive definition; it is simply a proxy for the careful balance of jurisprudential 

considerations that determine when appellate courts will use original mandamus 

proceedings to review the actions of lower courts.” Id. at 136. Although the Texas 

Supreme Court “has tried to give more concrete direction for determining the availability 

of mandamus review, rigid rules are necessarily inconsistent with the flexibility that is the 

remedy’s principal virtue.” Id.
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II. APPLICABLE LAW

The general rule is that “[p]leas in abatement are incidental rulings, the denial of 

which ordinarily does not support mandamus relief.” In re Puig, 351 S.W.3d 301, 306 

(Tex. 2011) (orig. proceeding) (per curiam). However, the Texas Supreme Court has 

“note[d] that the improper denial of a plea in abatement may, on occasion, warrant 

mandamus relief.” Id. 

For instance, the Texas Supreme Court has granted mandamus relief in the 

context of a plea in abatement when a trial court issued an order actively interfering with

the exercise of jurisdiction by a second court possessing dominant jurisdiction. See Curtis 

v. Gibbs, 511 S.W.2d 263, 266–68 (Tex. 1974) (granting mandamus relief directing a 

judge to sustain a plea in abatement in a child custody suit where one court attempted to 

exercise jurisdiction with respect to the children, despite the fact that dominant jurisdiction 

had previously been established in another court). 

In addition, the Texas Supreme Court has considered the appropriate remedy 

when a trial court erroneously denies a defendant’s request for abatement based on the 

failure of a plaintiff to provide the sixty day pre-suit notice required by the Texas Deceptive 

Trade Practices Act (DTPA). See Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992). In 

Hines, the Texas Supreme Court held that under such circumstances, a “[d]efendant is 

entitled, but not obliged, to seek review of a denial of abatement by mandamus.” Id. 

Alternatively, a “[d]efendant may wait until appeal from the final judgment to seek review 

of a denial of abatement, but the trial court’s error must be shown to have been harmful 

to obtain reversal.” Id. “Ordinarily, this would require a showing that defendant was 

unable to limit his damages under the statute by tendering a settlement offer.” Id. 
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At least two intermediate courts of appeals that have considered the same issue 

in the context of the sixty day pre-suit notice provision of the Texas Insurance Code have 

concluded that mandamus relief is available to correct a trial court’s erroneous denial of 

a motion to abate. For instance, the Fourth Court of Appeals has held that mandamus 

relief is appropriate when a trial court denies a plea in abatement based on a claimant’s 

failure to provide the pre-suit notice required by Section 541.154 of the Texas Insurance 

Code. See In re Behr, No. 04-05-00895-CV, 2006 WL 468001, *2–3 (Tex. App.—San 

Antonio Mar. 1, 2006, orig. proceeding) (mem. op.) (holding that trial court’s erroneous 

denial of request for abatement effectively deprived defendant of substantial rights “to 

limit his damage exposure through an offer of settlement” for which there was no 

adequate remedy on appeal). The Fourteenth Court of Appeals has also reached the 

same conclusion. See In re Liberty Mutual Fire Ins. Co., No. 14-09-00876-CV, 2010 WL 

1655492, at *5 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (mem. op.)

(holding that mandamus relief was appropriate to correct trial court’s erroneous denial of 

insurance company’s plea in abatement based on claimant’s failure to provide sufficient 

pre-suit notice as required by insurance code).

III. CONCLUSION

Based on the foregoing, we conclude that it is appropriate to ask the real party in 

interest to respond to relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.4

(“Response”), R. 52.8(b)(1) (“Interim Action”). Accordingly, the Court requests that the 

real party in interest, or any others whose interest would be directly affected by the relief 

sought, file a response to the petition for writ of mandamus on or before the expiration of 

five days from the date of this order. Furthermore, the Court, having considered relators’ 
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request for temporary relief, is of the opinion that the request should be GRANTED.

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Accordingly, relators’ request for temporary relief is hereby granted. See TEX. R. APP. P. 

52.10 (“Temporary Relief”). Respondent’s order of May 29, 2014 is hereby stayed 

pending further order of this Court or final disposition of this original proceeding.

IT IS SO ORDERED.

PER CURIAM

Delivered and filed the

11th day of July, 2014.

 

1 Relators have not requested, and this Court has not granted, a stay of further proceedings in the 

district court.