NO. 12-12-00183-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: §

TRUCK INSURANCE EXCHANGE, § ORIGINAL PROCEEDING

RELATOR §

MEMORANDUM OPINION

Relator Truck Insurance Exchange (TIE) seeks mandamus relief from the trial court’s denial 

of its plea in abatement.1 TIE contends that the 53rd Judicial District Court of Travis County has 

dominant jurisdiction over the 114th Judicial District Court of Smith County because TIE’s suit (the 

Travis County suit) was the first filed and involves the same parties and subject matter as the Smith 

County suit. We deny the petition.

BACKGROUND

Brown Eyed Girl, LLC d/b/a Leigh Oliver’s (Oliver’s), the real party in interest, creates, 

markets, and manufactures all natural food products. In late 2008, Oliver’s entered into a “copacker” relationship with Gourmet Resources, LLC, which was owned by Alexandra Weeks. 

Gourmet was to produce, package, and ship products manufactured by Oliver’s. Oliver’s soon 

became dissatisfied with Gourmet’s performance, and their relationship continued to deteriorate 

through 2009. In early 2010, Oliver’s terminated their relationship, and Alexandra Weeks d/b/a 

Gourmet Food Resources, LLC filed for bankruptcy.

As required by its contract with Oliver’s, Gourmet had obtained two insurance policies–a 

business owner’s liability policy and an excess liability policy. Both were issued by TIE, and the 

general liability policy named Oliver’s as an additional insured. Oliver’s sought, and was granted, 

 

1 The respondent is the Honorable Christi J. Kennedy, Judge of the 114th Judicial District Court, Smith 

County, Texas.
2

relief from the automatic stay in Weeks’s bankruptcy. The order authorized Oliver’s to pursue its 

claim under the general liability policy and to join “Debtor as a party for insurance policy liability 

purposes only.” 

Oliver’s sued Gourmet and Weeks for damages resulting from Gourmet’s alleged negligence 

in packaging and shipping Oliver’s products and its alleged breach of express and implied 

warranties.2 TIE filed an answer on behalf of Gourmet pursuant to a qualified defense under a 

reservation of rights, but later withdrew its defense. Ultimately, the trial court signed a postanswer 

default judgment against Gourmet and Weeks awarding Oliver’s in excess of $4 million.

On October 18, 2011, TIE filed suit in Travis County seeking a declaratory judgment that no 

coverage exists under Gourmet’s general liability policy for the claims Oliver’s alleged against 

Gourmet. Oliver’s was the sole defendant in this suit. Also on October 18, Alexandra Weeks, 

individually and d/b/a Gourmet Resources, and on behalf of Gourmet Resources, LLC, executed an 

assignment of “any and all” of their claims against TIE, its insuring agent, and his insurance agency. 

Oliver’s, the only other party to the assignment, executed the document on October 19, 2011–one 

day after TIE filed suit in Travis County. 

Eight days later, before being served with citation in TIE’s declaratory judgment action, 

Oliver’s sued Farmers Insurance Group3and Jim Boldin, individually and d/b/a Boldin Insurance 

Agency. TIE filed a plea in abatement in the Smith County suit, alleging that the Travis County suit 

was filed first and requesting that the Smith County suit be abated. After a hearing, the trial court 

denied the plea.

PREREQUISITES TO MANDAMUS

A writ of mandamus will issue if the trial court committed a clear abuse of discretion for 

which the relator has no adequate remedy at law. In re Frank Motor Co., 361 S.W.3d 628, 630 

(Tex. 2012) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary 

and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to 

correctly analyze or apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 888 

(Tex. 2010) (orig. proceeding). Mandamus is available when a trial court refuses to abate based on 

the pendency of another action. In re ExxonMobil Prod. Co., 340 S.W.3d 852, 857 (Tex. App.–

 

2

 Oliver’s joined Weeks as a defendant alleging that she had caused Gourmet to be dissolved.

3

 It is undisputed that TIE should have been named as the defendant instead of Farmers Insurance Group. 
3

San Antonio 2011, orig. proceeding [mand. denied]) (applying In re Prudential Ins. of Am., 148 

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)). 

DOMINANT JURISDICTION

Generally, when cases involving the same subject matter are brought in different courts in 

which venue would be proper, the court with the first-filed case has dominant jurisdiction and 

should proceed, and the other case should be abated. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 

2001); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). The proper means of 

contesting a court’s lack of dominant jurisdiction is the filing of a plea in abatement in the court 

without dominant jurisdiction. See In re Puig, 351 S.W.3d 301, 303 (Tex. 2011) (original 

proceeding) (per curiam). When an inherent interrelation of the subject matter exists in two 

pending lawsuits, a plea in abatement in the second action must be granted. Wyatt, 760 S.W.2d at 

247. But it 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. Id. 

PLEA IN ABATEMENT

It is well established that the party seeking abatement has the burden of establishing the 

allegations in its plea in abatement by a preponderance of the evidence. Flowers v. Steelcraft 

Corp., 406 S.W.2d 199, 199 (Tex. 1966); Bernal v. Garrison, 818 S.W.2d 79, 82 (Tex. App.–

Corpus Christi 1991, writ denied). A plea in abatement is sustainable without proof only when the 

truth of the matters alleged in the defendant’s plea in abatement appears on the face of the plaintiff’s 

pleadings. Bernal, 818 S.W.2d at 83. In all other instances, a defendant who merely presents its 

plea in abatement without offering evidence to prove the grounds urged waives the plea unless it 

can demonstrate that the plaintiff’s petition establishes the grounds urged in the plea. Id. 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. v. Weatherford Indep. Sch. Dist., 453 S.W.2d 185, 189 (Tex. Civ. App.–

Fort Worth 1970, writ ref’d n.r.e.).

For TIE to have prevailed on its plea in abatement, it had to establish, as it alleged in its 

plea, that (1) the Travis County suit was filed first; (2) the Travis County suit was still pending; (3) 

the Travis County suit and the Smith County suit involved the same parties; and (4) the Travis 
4

County suit and the Smith County suit involved the same issues. See Flowers, 406 S.W.2d at 199; 

Bernal, 818 S.W.2d at 82.

In its reply to one of Oliver’s arguments in this proceeding, TIE implicitly characterizes the 

hearing on its plea as nonevidentiary. It recognizes that a reporter’s record of the hearing is part of 

the record in this proceeding, but states that “[a] reporter’s record of a hearing does not necessarily 

make the hearing an evidentiary one.” TIE also emphasizes that “the plea in abatement did not 

involve any factual dispute, but was decided on legal issues based on the parties’ filings and 

arguments of counsel.” The record supports TIE’s implication that the hearing–at least as to TIE–

was nonevidentiary. 

TIE’s presentation to the trial court consisted solely of the arguments of its counsel. TIE 

provided the trial court with a file-marked copy of its petition in the Travis County suit and of 

Oliver’s petition in the Smith County suit. But neither of these copies was offered or admitted into 

evidence. See Flowers, 406 S.W.2d at 199. Moreover, the allegations in Oliver’s petition do not 

show the truth of the matters alleged in TIE’s plea in abatement. See Bernal, 818 S.W.2d at 83. 

And despite TIE’s contention that no factual dispute existed, there is no agreed stipulation of facts 

relieving TIE of its burden to prove the allegations in its plea in abatement by a preponderance of 

the evidence. 

Because there is no evidence in the record pertaining to TIE’s plea in abatement, and the 

allegations in Oliver’s petition in the Smith County suit do not aid TIE, the trial court did not abuse 

its discretion in denying the plea. See, e.g., De Los Santos v. Johnson, No. 13-07-00502-CV, 2008 

WL 3971455, at *5 (Tex. App.–Corpus Christi Aug. 28, 2008, pet. denied) (mem. op.) (plea in 

abatement properly denied where no evidence introduced to support it); Upchurch v. Albear, 5 

S.W.3d 274, 277 (Tex. App.–Amarillo 1999, pet. denied) (same).

DISPOSITION

Because TIE has not shown that the trial court abused its discretion in denying the plea in 

abatement, TIE’s petition for writ of mandamus is denied.

JAMES T. WORTHEN

 Chief Justice

Opinion delivered April 24, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 24, 2013

NO. 12-12-00183-CV

TRUCK INSURANCE EXCHANGE,

Relator

v.

HON. CHRISTI J. KENNEDY,

Respondent

 

 

 ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed 

by TRUCK INSURANCE EXCHANGE, who is the relator in Cause No.11-3019-B, pending 

on the docket of the 114th Judicial District Court of Smith County, Texas. Said petition for writ 

of mandamus having been filed herein on May 21, 2012, and the same having been duly 

considered, because it is the opinion of this Court that a writ of mandamus should not issue, it is 

therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of 

mandamus be, and the same is, hereby DENIED.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.