NUMBER 13-18-00283-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DEBRA V. BENGE

On Petition for Writ of Mandamus.

MEMORANDUM OPINION 

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Longoria1

Relator Debra V. Benge filed a petition for writ of mandamus in the above cause 

on May 31, 2018 contending that the trial court abused its discretion by abating the 

underlying case for an indefinite period.2 Through this original proceeding, relator seeks 

to set aside the May 7, 2018 order of abatement. We conditionally grant the petition for 

writ of mandamus.

 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).

2 This original proceeding arises from trial court cause number 16-05-23,749 in the 24th District 

Court of De Witt County, Texas, and the respondent is the Honorable Kemper Stephen Williams III. See

TEX. R. APP. P. 52.2. Dinah Voelkel is an interested party. See id. 
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I. BACKGROUND

Benge filed suit against Margaret A. Thomas and Frank W. Burns III as co-trustees 

of the Thomas Family Trust (also known as the “1992 Trust”) for breach of fiduciary duty, 

an accounting, and removal of these individuals as trustees. She sought attorney’s fees, 

litigation expenses, and disgorgement of trustees’ fees. Thomas and Burns filed a joint 

motion to appoint a third-party trustee and to abate the case. They asserted that they 

“are concerned that the cost of trial will deplete the assets of the Trust and have submitted 

notice to the beneficiaries of the 1992 Trust that they intend to resign as co-trustees.” 

They requested that the court “appoint a neutral, third-party successor trustee upon their 

resignation, and abate this proceeding until the newly appointed successor trustee enters 

an appearance on behalf of the 1992 Trust.” In support of their request for abatement, 

they argued that suits against a trust must be brought against a trustee. See, e.g., In re 

Ashton, 266 S.W.3d 602, 604 (Tex. App.—Dallas 2008, orig. proceeding) (“Well-settled 

law requires a suit against a trust to be brought against its legal representative, the 

trustee.”); In re Guetersloh, 326 S.W.3d 737, 739 (Tex. App.—Amarillo 2010, orig. 

proceeding) (“[S]uits against a trust must be brought against the trustee.”).

Another party to the suit, Dinah Voelkel, filed a response and support in favor of 

the joint motion to appoint a third-party trustee and to abate the lawsuit. Benge filed a 

response to the joint motion, and Thomas and Burns filed a joint reply to Benge’s 

response. 

On May 7, 2018, the trial court granted the motion, in part, and ruled that “this 

matter is hereby ABATED pending the conclusion (by trial or settlement) of cause no. 

11466 pending in the Probate Court of De Wittt County, Texas.” Based on the record, 
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cause number 11466 is a consolidated case pending in front of a statutory probate judge 

involving two lawsuits filed by Benge against the Thomas Family 2012 Trust and the 

estate of Ann Friar Thomas.3

This original proceeding ensued. By two issues, Benge asserts that the trial court 

committed a clear abuse of discretion when it abated the underlying lawsuit for an 

indefinite period and that she lacks an adequate remedy by appeal. This Court requested 

that the real parties in interest, Margaret A. Thomas, individually and as co-trustee of the 

Thomas Family Trust; Frank W. Burns III, individually and as co-trustee of the Thomas 

Family Trust; and Dinah Voelkel, 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 ten days from the date of this order. See TEX. R. APP. P. 52.2, 52.4, 52.8. 

Real parties in interest Thomas and Burns, individually and co-trustees, and Dinah 

Voelkel filed a response to the petition for writ of mandamus. They argue that: (1) the 

trial court did not abuse its discretion because the related case is set for trial on October 

1, 2018, and thus the abatement is not indefinite and overbroad; (2) Benge has an 

adequate remedy at law to address the alleged error here because “all of the Prudential

factors” weigh against mandamus review; and (3) if the court takes judicial notice of 

documents as requested by Benge; it should similarly take judicial notice of documents 

presented by the real parties. As a threshold matter, we have not and need not take 

judicial notice of any documents presented by the parties to this original proceeding to 

resolve this matter on the merits.

 3 This Court has previously addressed an original proceeding arising from cause number 11466 in 

the County Court of De Witt County, Texas. See In re Benge, No. 13-17-00616-CV, 2018 WL 1062899, at 

*1 (Tex. App.—Corpus Christi Feb. 27, 2018, orig. proceeding) (mem. op.).
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II. STANDARD OF REVIEW

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 

302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a 

clear abuse of discretion when there is no adequate remedy by appeal. In re Christus 

Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator 

bears the burden of proving these requirements. In re H.E.B. Grocery Co., 492 S.W.3d 

at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse 

of discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made 

without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. 

Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 

363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy 

by balancing the benefits of mandamus review against the detriments. In re Essex Ins. 

Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 

148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). 

An abatement order may be reviewed by petition for writ of mandamus when the 

abatement is indefinite in duration. See In re Shulman, No. 14-17-00508-CV, 2017 WL 

6331176, at *3, __ S.W.3d __, __ (Tex. App.—Houston [14th Dist.] Dec. 12, 2017, orig. 

proceeding); In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San Antonio 2007, orig. 

proceeding); Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 471 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied); Gebhardt v. Gallardo, 891 S.W.2d 327, 332 (Tex. 

App.—San Antonio 1995, orig. proceeding). This is because an adequate remedy by 

appeal does not exist when the plaintiff is “‘effectively denied any other method of 

challenging the court’s action for an indefinite period of time during which the cause of 
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action remains in a suspended state.’” In re Immobiliere Jeuness Establissement, 422 

S.W.3d 909, 914 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (quoting 

Trapnell v. Hunter, 785 S.W.2d 426, 429 (Tex. App.—Corpus Christi 1990, orig. 

proceeding)); see, e.g., In re Am. Homes For Rent Props. Eight, L.L.C., 498 S.W.3d 153, 

155–56 (Tex. App.—Dallas 2016, orig. proceeding); In re Discovery Operating, Inc., 216 

S.W.3d 898, 905 (Tex. App.—Eastland 2007, orig. proceeding [mand. denied]). Similarly, 

an abatement order may be subject to mandamus review if it effectively vitiates a party’s 

ability to present a claim or defense. See In re Shulman, 2017 WL 6331176, at *3; In re 

R.R., 26 S.W.3d 569, 573–74 (Tex. App.—Dallas 2000, orig. proceeding); Gebhardt, 891 

S.W.2d at 332–33.

III. ANALYSIS

“All courts shall be open, and every person for an injury done him, in his lands, 

goods, person or reputation, shall have remedy by due course of law.” TEX. CONST. art. 

1, § 13; see Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014). This 

requirement “guarantees that a common law remedy will not be unreasonably abridged.”

Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 521 (Tex. 1995). Stated 

otherwise, the “open courts” provision of the Texas Constitution ensures that citizens 

bringing common law causes of action will not unreasonably be denied access to the 

courts. See In re D.M., 191 S.W.3d 381, 391 (Tex. App.—Austin 2006, pet. denied). 

Under certain circumstances, abating a case indefinitely can violate the open courts 

provision. See Gebhardt, 891 S.W.2d at 332; Trapnell, 785 S.W.2d at 429.

In a similar vein, parties in a civil case are entitled to full discovery within a 

reasonable time, to develop their claims and defenses, and to have their case tried. In re 
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Gore, 251 S.W.3d at 699. Even when an abatement is not “indefinite,” if it completely 

curtails the prosecution of an entire case and denies a party the right to proceed with full 

discovery or to resolution within a reasonable time, the aggrieved party has no adequate 

remedy by appeal and mandamus may issue. See In re Shulman, 2017 WL 6331176, at 

*4; In re Gore, 251 S.W.3d at 699–700; see also In re Baldridge, No. 04-16-00011-CV, 

2016 WL 1128236, at *4 (Tex. App.—San Antonio Mar. 23, 2016, orig. proceeding) (mem. 

op.). By its nature, abatement of an action not only precludes the trial court from going 

forward on a case, it prohibits the parties from proceeding in any manner until the case 

has been reinstated. In re Am. Homes for Rent Properties Eight, L.L.C., 498 S.W.3d at 

155–56; In re Immobiliere Jeuness Establissement 422 S.W.3d at 916–17; In re Kimball 

Hill Homes Tex., Inc., 969 S.W.2d 522, 527 (Tex. App.—Houston [14th Dist.] 1998, orig. 

proceeding).

Here, the trial court’s abatement order required the abatement of the underlying 

case “pending the conclusion (by trial or settlement) of cause no. 11466 pending in the 

Probate Court of De Wittt County, Texas.” We conclude that the trial court abused its 

discretion by rendering an abatement order which completely curtails the prosecution of 

an entire case and denies the parties the right to proceed with full discovery or to 

resolution within in a reasonable time. See In re Shulman, 2017 WL 6331176, at *4; In 

re Gore, 251 S.W.3d at 699–700; see also In re Baldridge, 2016 WL 1128236, at *4. 

There is nothing in the record before us that enables us to determine when the abatement 

imposed by the trial court’s order will end. To the extent that the real parties argue that 

the abatement will end after resolution of the October trial in the separate case and 

therefore is not “indefinite,” we note that whether the trial court’s order exceeded its 
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discretion “does not turn solely on whether the abatement is ‘indefinite.’” In re Gore, 251 

S.W.3d at 700. By completely curtailing prosecution of the entire case, the abatement 

order at issue here was impermissibly overbroad. See id.; see also In re Shulman, 544 

S.W.3d at 870. Though the order is not by its technical terms indefinite, the abatement’s 

uncertain termination date causes us to conclude that it was an abuse of discretion.

The real parties contend that Benge has failed to show how mandamus would 

protect important substantive and procedural rights from impairment or loss and she 

cannot demonstrate that mandamus relief would give needed and helpful direction to the 

law. They urge that a balance of jurisprudential considerations weighs heavily against 

mandamus relief. We conclude, however, that Benge lacks an adequate remedy by 

appeal and mandamus may issue. See In re Am. Homes For Rent Props. Eight, LLC, 

498 S.W.3d at 155–56; In re Immobiliere Jeuness Establissement, 422 S.W.3d at 914; 

Trapnell, 785 S.W.2d at 429. Here, Benge is effectively denied any method of challenging 

the court’s action for an indefinite period during which her cause of action remains in 

stasis. Because a trial judge may not arbitrarily halt trial proceedings, mandamus will lie 

to compel a trial judge to proceed to trial and judgment. Trapnell, 785 S.W.2d at 429.

IV. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus, 

the response, and the record, is of the opinion that Benge has established her right to 

mandamus relief. Because the trial court abused its discretion in granting the joint motion 

to abate, mandamus is proper. See In re Immobiliere Jeuness Establissement, 422 

S.W.3d at 914. Accordingly, we conditionally grant the petition for writ of mandamus and 

direct the trial court to vacate its order of abatement in the underlying lawsuit. We trust 
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that the trial court will promptly comply with this opinion and order. The writ will issue only 

if the trial court fails to do so.

NORA L. LONGORIA

Justice

Delivered and filed the

3rd day of July, 2018.