NO. 05-15-01159-CV

IN THE COURT OF APPEALS

FOR THE FIFTH JUDICIAL DISTRICT

DALLAS, TEXAS

IN RE FORT APACHE ENERGY, INC.,

ALLAN P. BLOXSOM, AND

DRILLING RISK MANAGEMENT, INC.,

Relators

On Petition for Writ of Mandamus

from the 162nd District Court

of Dallas County, Texas

REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

Charles J. Cain

State Bar No. 00796292

ccain@cstrial.com 

Zachary H. Bowman

State Bar No. 24073944

zbowman@cstrial.com

CAIN & SKARNULIS PLLC

400 W. 15th Street, Suite 900

Austin, Texas 78701

512-477-5000

512-477-5011—Facsimile

COUNSEL FOR RELATORS

FORT APACHE ENERGY, INC., 

ALLAN P. BLOXSOM, AND

DRILLING RISK MANAGEMENT, INC.

ORAL ARGUMENT REQUESTED

ACCEPTED

05-15-01159-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

11/4/2015 4:26:39 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 11/4/2015 4:26:39 PM LISA MATZ Clerk
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TABLE OF CONTENTS

Page

Table of Contents....................................................................................................... i

Index of Authorities..................................................................................................ii

I. Introduction .................................................................................................... 1

II. Argument........................................................................................................ 3

A. The claims asserted in Dallas County concern the same

contracts that form the basis of Relator’s lawsuit in Kendall

County .................................................................................................. 3

1. Huddleston’s response confuses venue and 

dominant jurisdiction ................................................................. 4

2. Huddleston mischaracterizes the nature of Fort 

Apache’s lawsuit in Kendall County ......................................... 5

3. The lawsuits are so intertwined that resolving the 

Dallas County lawsuit will resolve the Kendall 

County lawsuit and eliminate Fort Apache’s right 

to choose its venue as Plaintiff................................................... 6

B. The failure to order abatement of a second-filed lawsuit that has 

ordered a trial date earlier than the first-filed lawsuit is an abuse 

of discretion for which there is no adequate appellate remedy ............ 8

Conclusion and Prayer............................................................................................ 10

Certificate of Counsel ............................................................................................. 11

Certificate of Compliance ....................................................................................... 11

Certificate of Service .............................................................................................. 12
ii

INDEX OF AUTHORITIES

CASES PAGE(S)

Curtis v. Gibbs, 

511 S.W.2d 263 (Tex. 1974) .......................................................................... 4

GeoChem Tech Corp. v. Verseckes, 

962 S.W.2d 541 (Tex. 1998) .......................................................................... 4

Gonzalez v. Reliant Energy, Inc., 

159 S.W.3d 615 (Tex. 2005) .......................................................................... 5

In re ExxonMobil Production Co., 

340 S.W.3d 852 (Tex. App.—San Antonio 2011, 

orig. proceeding [mand. denied]) ........................................................ 8, 9, 10

In re King, 

No. 05-15-01035-CV, 2015 WL 6334672 

(Tex. App.—Dallas Oct. 22, 2015) (mem. op.).......................................... 1, 2

In re Prudential Ins. Co. of Am., 

148 S.W.3d 124 (Tex. 2004) (orig. proceeding) .................................... 2, 8, 9

In re Puig, 

351 S.W.3d 301 (Tex. 2011) .......................................................................... 8

Perry v. Del Rio, 

66 S.W.3d 239 (Tex. 2001) ............................................................................ 8

Team Rocket,

256 S.W.3d 257 (Tex. 2008) (orig. proceeding) .......................................... 10

Tindle v. Jackson Nat’l Life Ins., 

837 S.W.2d 795 (Tex. App.—Dallas 1992, no writ)...................................... 7

Wyatt v. Shaw Plumbing Co.,

760 S.W.2d 245 (Tex. 1988) .......................................................................... 5
1

TO THE HONORABLE COURT OF APPEALS:

Fort Apache Energy, Inc., Allan P. Bloxsom, and Drilling Risk 

Management, Inc. (collectively, Relators) file this Reply in Support of their 

Petition for Writ of Mandamus and respectfully ask the Court to issue a writ of 

mandamus commanding the 162nd Judicial District Court of Dallas County to 

vacate its order of August 7, 2015, and enter an order granting Relators’ motion to 

abate the second filed proceeding in favor of a first-filed proceeding in Kendall 

County.

I. INTRODUCTION

This Court recently denied mandamus in the distinguishable case of In re 

King, No. 05-15-01035-CV, 2015 WL 6334672 (Tex. App.—Dallas Oct. 22, 2015) 

(mem. op.). This Court held in King that the denial of abatement of a second-filed 

suit was not an abuse of discretion because the first-filed suit was in a Harris 

County justice court and the justice court could not have subject matter jurisdiction 

over a counterclaim for more damages than was subsequently filed in Collins 

County District Court. Id. at *4.

That situation does not exist here. Huddleston Exploration Limited Liability 

Company (Huddleston), as the real party in interest, can still assert his Dallas 

County claims as counterclaims in Kendall County without running afoul of 

subject matter jurisdiction, and in fact, is required to under the compulsory 
2

counterclaim analysis that courts have used when ordering abatement of 

second-filed suits. Despite Huddleston asserting more claims in Dallas County, 

those claims still concern the same contracts at issue in Fort Apache’s lawsuit in

Kendall County, and must be brought there.

In King, this Court also recognized the disparate authority on whether the 

denial of abatement warrants mandamus relief, but because the lower court had not 

abused its discretion, this Court saved the issue for another day. Id. at 3. That day 

is here. The denial of abatement in this case warrants mandamus relief for two 

reasons. First, the Dallas County District Court has set the second filed suit for 

trial before trial in the first filed suit in Kendall County, thus disturbing the 

dominant jurisdiction of the Kendall County Court. Second, the mandamus 

standards announced in In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 

(Tex. 2004) (orig. proceeding), have led courts of appeal to hold that denial of a 

proper abatement is not adequately addressed by appeal due to the waste of time 

and resources that occur when proceeding to trial in a case that should have been 

abated.

Huddleston’s lawsuit in Dallas County has been pursued in an effort to avoid 

the venue determinations of the Kendall County Court, which has twice denied 

Huddleston’s motions to transfer venue and its motion to abate the Kendall County 

proceeding. Because the Dallas County District Court abused its discretion in 
3

denying Relator’s proper motion to abate, and has set trial prior to the court with 

dominant jurisdiction, this Court should issue a writ of mandamus commanding the 

162nd Judicial District Court of Dallas County to vacate its order denying a proper 

motion for abatement.

II. ARGUMENT

A. The claims asserted in Dallas County concern the same contracts that 

form the basis of Relator’s lawsuit in Kendall County.

Both the lawsuit in Kendall County and the lawsuit in Dallas County 

concern the contracts regarding the Williams #1 Well in Louisiana and the dispute 

over unpaid drilling and completion costs between Huddleston and Fort Apache. 

Huddleston has attempted to argue that the Kendall County lawsuit solely concerns 

a “stand-alone” agreement and can proceed independently. This assertion is 

contradicted by Huddleston’s own admissions below regarding the intertwined 

nature of the two lawsuits. If the Kendall County claims could proceed 

independently, then the question begs asking as to why Huddleston twice pursued a 

transfer of venue in Kendall County and argued that the claims there should be 

determined with its own lawsuit in Dallas County.

Fort Apache filed suit in Kendall County after Huddleston defaulted on a 

Payment Agreement that was meant to establish certain payment deadlines and 

resolve conflicts among the parties over the payment of drilling and completion 

costs that Huddleston owed to Fort Apache pursuant to a Participation Agreement 
4

and Joint Operating Agreement. App. G, Ex. A [Fort Apache’s Original Petition 

(Kendall County)]. That is why Fort Apache attached all three agreements to its 

Original Petition in Kendall County. App. G, Ex. A [Original Petition] with 

attached Exs. A, B and C. In fact, the remedy Fort Apache sought in its Original 

Petition in Kendall County was foreclosure of Huddleston’s interest in the Well 

pursuant to a section within the Joint Operating Agreement. App. G, Ex. A, at 

¶ 16. Fort Apache has since amended its petition to assert it seeks the unpaid 

drilling and completion costs as damages and seeks declarations regarding the 

parties’ several contracts. Therefore, while the Payment Agreement may have 

formed the primary basis for venue in Kendall County, it was not the only 

agreement that formed the basis of Fort Apache’s lawsuit in Kendall County.

1. Huddleston’s response confuses venue and dominant jurisdiction.

Huddleston argues in its Response that venue and dominant jurisdiction are 

related concepts. Response, at 10. While the concepts are related, the application 

of each concept requires a different analysis. Venue can be proper in multiple 

counties, but only one court can have dominant jurisdiction over a dispute. 

See GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998). Once 

venue is determined to be proper, that court acquires dominant jurisdiction to the 

exclusion of all other counties of equal stature. Curtis v. Gibbs, 511 S.W.2d 263, 

267 (Tex. 1974). Therefore, Huddleston’s argument that more of the contracts at 
5

issue were negotiated in Dallas County in opposition to Realtors’ motion to abate 

that proceeding is irrelevant. Kendall County properly determined that a 

substantial part of the transactions at issue occurred in Kendall County, which is 

why it twice denied Huddleston’s motion to transfer venue to Dallas.

Huddleston’s continued focus on where more of the contracts were executed

ignores the analysis required for abatement and dominant jurisdiction. “The court 

in which suit is first filed generally acquires dominant jurisdiction to the exclusion 

of other courts if venue is proper in the county in which suit was first filed.” 

Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005) (emphasis in 

original). “As long as the forum is a proper one, it is the plaintiff’s privilege to 

choose the forum.” Id. (quoting Wyatt, 760 S.W.2d at 248). Plaintiff’s choice of 

venue in Kendall County should be honored under long-standing Texas law, and 

Huddleston clouds the issue of abatement by arguing which agreements were 

executed in Dallas County. Because all of the agreements relate to the Williams #1 

Well in Louisiana, the disputes concerning those agreements must be litigated in 

the same venue.

2. Huddleston mischaracterizes the nature of Fort Apache’s lawsuit 

in Kendall County.

Huddleston misstates the record by arguing that Fort Apache “sought 

adjudication only of the Napkin Agreement, not the three contracts,” and that 
6

“Huddleston meanwhile brought suit related to the three contracts, not the Napkin 

Agreement.” Response, at 9. This is simply not true.

As explained above, Fort Apache sought the remedy of forfeiture of 

Huddleston’s interest in the Williams #1 Well pursuant to a provision within the 

Joint Operating Agreement. See App. G, Ex. A, at ¶ 16. At the same time, 

Huddleston sought remedies against enforcement of the Kendall County Payment 

Agreement in its suit in Dallas County. Therefore, both lawsuits concern the same 

series of transactions between the parties. Huddleston claims below that the

Kendall County Payment Agreement was the product of duress and fraud: defenses 

that should clearly be the subject of Fort Apache’s suit to enforce the Payment 

Agreement in Kendall County. App. A [Huddleston’s Original Petition]; ¶ 74; 

App. B [Huddleston’s Second Amended Petition], ¶¶ 72-81. Huddleston even 

states in its Response to this Petition for Writ of Mandamus that “[a]s the cases are 

currently postured, after the parties have amended their pleadings in both venues, 

the disputed facts are the same in both cases.” Response, at 9. Relators are hard 

pressed to find a more conciliatory admission of the necessity of abatement.

3. The lawsuits are so intertwined that resolving the Dallas lawsuit 

will resolve the Kendall County lawsuit and eliminate Fort 

Apache’s right to choose its venue as plaintiff.

Huddleston also mistakenly argues in its Response that “[t]here should be no 

concern about the courts reaching inconsistent judgments because the parties’ 
7

complaints, as originally filed, do not concern the same contracts and do not 

involve essential facts that are significantly and logically related.” Response, 

at 9-10. However, Huddleston expressed the exact opposite in the Kendall County 

Court when seeking a transfer of venue:

The handwritten document [Payment Agreement] must be read in 

conjunction with both the Participation Agreement and Operating 

Agreement that form the relationship between Huddleston and Fort 

Apache. Both of those contracts were negotiated in Dallas County in 

June 2012, and they were both to be performed in Louisiana.

See App. G [Relator’s Amended Verified Motion to Abate], Ex. B [Huddleston’s 

Motion to Transfer Venue], at 2. Huddleston also admitted the cases were 

intertwined at the hearing on Relator’s Plea to the Jurisdiction in Dallas County:

[Huddleston’s counsel]: Additionally, our case that does involve three 

contracts as well as ongoing fraud and extortion from the defendants in this 

case, does also resolve all of the claims that are in Kendall County.

App. I [Huddleston’s Response to Defendants’ Amended Verified Motion to 

Abate], Ex. B [Transcript of May 5, 2015], at p. 11:14-17.

The lawsuits in Kendall and Dallas Counties involve the same series of 

transactions and common nucleus of operative facts, the agreements between Fort 

Apache and Huddleston regarding the Williams #1 Well in Louisiana. See Tindle 

v. Jackson Nat’l Life Ins., 837 S.W.2d 795, 798 (Tex. App.—Dallas 1992, no writ). 

The trial court’s denial of abatement constitutes an abuse of discretion.
8

B. The failure to order abatement of a second filed suit that has ordered a

trial date earlier than the first-filed suit is an abuse of discretion for 

which there is no adequate appellate remedy.

Although courts before In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 

135 (Tex. 2004) (orig. proceeding) held that the denial of mandamus relief could 

typically be addressed by appeal, courts over the past ten years have assessed the 

realities of proceeding to trial in a proceeding that should have been abated as a 

waste of time and resources for all parties involved. See, e.g., In re ExxonMobil 

Production Co., 340 S.W.3d 852, 859 (Tex. App.—San Antonio, 2011, orig. 

proceeding [mand. denied]) (holding that the Texas Supreme Court rejected rigid 

application of mandamus principals in Prudential and that the denial of a proper 

motion to abate warrants mandamus relief). That is particularly true where the 

case that should have been abated will proceed to trial before the court with 

dominant jurisdiction, as is the case here. See In re Puig, 351 S.W.3d 301, 306 

(Tex. 2011) (“[W]hen a court issues an order which actively interferes with the 

exercise of jurisdiction by a court possessing dominant jurisdiction, mandamus 

relief is appropriate.”); Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (holding 

that the second filed suit having an earlier trial date conflicted with the exclusivity 

of the other court’s dominant jurisdiction and warranted mandamus).

Relators have no adequate appellate remedy if they must proceed to trial in 

Dallas County and then potentially deal with Huddleston asserting res judicata in 
9

Kendall County. Essentially, Fort Apache’s right to choose venue as a plaintiff in 

Kendall County will be rendered moot by being forced to proceed to trial in a 

second-filed suit before trial in its own first-filed suit.

In Prudential, the Texas Supreme Court held that cases warranting 

mandamus relief cannot be split into generally accepted categories; the

consideration of whether to grant mandamus relief must depend on the facts of the 

case. Prudential, 148 S.W.3d at 136 (“This determination is not an abstract or 

formulaic one; it is practical and prudential. It resists categorization . . .”). “Rigid 

rules are necessarily inconsistent with the flexibility that is the remedy’s principal 

virtue.” Id. The Texas Supreme Court’s prior holding in Abor v. Black, relied 

upon by Huddleston, “is an example of the type of rigid rule that Prudential 

rejected.” ExxonMobil, 340 S.W.3d at 859 (“Limiting mandamus relief as per 

Abor precludes the flexibility of the remedy in plea in abatement cases because 

Abor’s holding fails to account for any case-by-case consideration of the benefits 

and detriments of mandamus review.”).

The Texas Supreme Court recently reinforced this view in In re Team 

Rocket, when it granted mandamus relief to correct a trial court’s refusal to enforce 

a prior venue ruling by another trial court. In Team Rocket, mandamus was proper 

because it “spared [the] litigants and [the] public ‘the time and money utterly 

wasted enduring eventual reversal of improperly conducted proceedings.’” 
10

Team Rocket, 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding) (citing 

Prudential, 148 S.W.3d at 136). Mandamus is proper here for the same reason. If

the Dallas County lawsuit proceeds to trial before the Kendall County lawsuit, it 

will be a waste of time and resources because the judgment cannot stand on appeal. 

See ExxonMobil, 340 S.W.3d at 859 (“The appellate remedy for the improper 

denial of a plea in abatement is virtually automatic reversal.” (internal quotes 

omitted)).

CONCLUSION AND PRAYER

For these reasons, Relators Fort Apache Energy, Inc., Allan P. Bloxsom, and 

Drilling Risk Management, Inc. respectfully request this Court grant their Petition 

and issue a writ of mandamus directing the Dallas County District Court to vacate 

its order signed on August 7, 2015, sign an order abating the Dallas County 

litigation, and for such other and further relief to which they may be entitled.

Respectfully submitted,

/s/ Charles J. Cain

Charles J. Cain

State Bar No. 00796292

ccain@cstrial.com 

Zachary H. Bowman

State Bar No. 24073944

zbowman@cstrial.com
11

CAIN & SKARNULIS PLLC

400 W. 15th Street, Suite 900

Austin, Texas 78701

512-477-5000

512-477-5011—Facsimile

COUNSEL FOR RELATORS

FORT APACHE ENERGY, INC., 

ALLAN P. BLOXSOM, AND DRILLING 

RISK MANAGEMENT, INC.

CERTIFICATE OF COUNSEL

I certify that I have reviewed this Reply in Support of Petition for Writ of 

Mandamus and that every factual statement in the Petition is supported by 

competent evidence included in the Appendix or Mandamus Record.

/s/ Charles J. Cain

Charles J. Cain

CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with the typeface requirements of Texas 

Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional 

typeface no smaller than 14-point for text and 12-point for footnotes. This 

document also complies with the word-count limitations of Texas Rule of 

Appellate Procedure 9.4(i), if applicable, because it contains 2285 words,

excluding any parts exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Charles J. Cain

Charles J. Cain
12

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Reply in Support of 

Petition for Writ of Mandamus has been forwarded to all counsel of record in 

accordance with the Texas Rules of Appellate Procedure on this 4th day of 

November 2015, as follows:

Method of Service Party(ies) Counsel

E-service Respondent The Honorable Phyllis Lister Brown

162nd Judicial District Court

George L. Allen, Sr. Courts Building

600 Commerce Street, Suite 440

Dallas, Texas 75202

Mthomas@dallascourts.org

E-service Counsel for Real Party in 

Interest

Jerry D. Bullard

jdb@all-lawfirm.com

ADAMS, LYNCH & LOFTIN, P.C.

3950 State Highway 360

Grapevine, Texas 76051

817-552-7742

817-328-2942—Facsimile

John Holman Barr

jbarr@bbarr.com

M. Forest Nelson

fnelson@bbarr.com

BURT BARR & ASSOCIATES, L.L.P.

P. O. Box 223667

Dallas, Texas 75222-3667

214-943-0012

214-943-0048—Facsimile

/s/ Charles J. Cain

Charles J. Cain