The Texas Supreme Court’s holding in In re Prudential Insurance Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)—that determining whether an appellate remedy is “adequate” requires a balancing of the benefits and detriments of mandamus review and is not an abstract or formulaic determination—seems to have caused a split among the Courts of Appeal concerning the availability of mandamus relief for issues of dominant jurisdiction.
“The 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.” Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). “Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement.” Id. Almost 20 years before Prudential, the Supreme Court created a bright-line rule, holding that mandamus relief is available only when there is a “conflict of jurisdiction” such that an injunction or order from the non-dominant court interferes with the dominant court’s exercise of jurisdiction. Abor v. Black, 695 S.W.2d 564, 566-67 (Tex. 1985).
The San Antonio Court of Appeals has concluded that Abor‘s bright-line rule is no longer applicable because it “precludes the flexibility of remedy” required by Prudential‘s balancing test. See In re ExxonMobil. On December 16, 2015, in In re Fort Apache Energy, Inc., the Dallas Court of Appeals joined the Houston Fourteenth Court of Appeals (In re E. Beach Project Phase I) and the Texarkana Court of Appeals (In re Brown) in holding that Prudential did not change the application of Abor.
But the emerging appellate court split is not the only notable issue raised in Fort Apache. In his first dissenting opinion since taking the bench last January, Justice Bill Whitehill opined that the Court did not need to decide the continuing viability of Abor or the effect Prudential might have on the case. Rather, the Justice Whitehill opined that the second court’s trial setting, which was quickly approaching and set three weeks before the dominant court’s trial setting, actively interfered with the dominant court’s exercise of jurisdiction within the parameters of Abor. The majority disagreed, distinguished the case from Perry v. Del Rio (granting mandamus relief in a case with conflicting trial settings), and held that the circumstances in Fort Apache did not “amount to the kind of direct interference” required under Abor.
Last week, the Dallas Court of Appeals denied the relator’s motion for reconsideration en banc.