

 
NUMBER 13-98-469-CV
 

COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI
 ___________________________________________________________________ 


SOUTHERN COUNTY MUTUAL INSURANCE 
COMPANY AND TRINITY UNIVERSAL 
INSURANCE COMPANY , Appellants, 


v.
 

DAVID OCHOA, ET AL. , Appellees. 
___________________________________________________________________ 


On appeal from the 332nd District Court
 of Hidalgo County, Texas.
 ___________________________________________________________________ 


OPINION ON MOTION FOR REHEARING
 

Before Chief Justice Seerden and Justices Dorsey and Chavez 
Opinion on Motion for Rehearing by Chief Justice Seerden
 



 This Court's opinion of March 2, 2000, held that the trial court erred in granting summary judgment in favor of the Ochoas. 
We thus reversed and remanded this matter to the trial court.  In so doing, however, we concluded that the trial court did
not err in denying Trinity's plea in abatement based on dominant jurisdiction.  In its motion for rehearing, Trinity has asked
that we reconsider our opinion regarding its  plea in abatement.   
 We review the trial court's action in granting or denying a plea in abatement using an abuse of discretion standard.  See
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). 
 In order to establish that Williamson County had dominant jurisdiction, Trinity was required to allege and prove: (1) the
Williamson County suit was commenced first; (2) it was still pending; (3) the same parties were involved; and (4) the
controversies were the same.  Wyatt, 760 S.W.2d at 248.  However, Williamson County would not have dominant
jurisdiction if the parties in the Williamson County lawsuit lacked intent to prosecute that action.  Wyatt, 760 S.W.2d at
248.  
 In considering this issue, we found that the trial court did not abuse its discretion by denying the plea in abatement based
on Trinity's delay in service, showing Trinity's lack of intent to prosecute the lawsuit in Williamson County.  Our opinion
relied, in part, on the fact that Trinity failed to establish that the Texas Supreme Court had stayed the Williamson County
action, thus excusing Trinity's failure to exercise reasonable diligence in prosecuting that suit.  
 On motion for rehearing, Trinity brings forward a certified copy of the stay order issued by the Supreme Court in the
appendix to its motion for rehearing, and has further requested the preparation of a supplemental clerk's record containing
the above-referenced order. Trinity also refers this Court to the reporter's record wherein counsel for Trinity referenced the
stay order in argument to the trial court.  Trinity argues that the stay order precluded Trinity from taking any action to
prosecute the Williamson County suit during the pendency of that stay order, and thus Trinity exercised reasonable
diligence in prosecuting the Williamson County suit.  Therefore, Trinity argues that because no exception to dominant
jurisdiction applies in this case, the trial court abused its discretion in denying Trinity's plea in abatement. 
 Trinity originally filed the Williamson County action on  December 10, 1997, naming only Ronnie D. Bleeker as a
defendant.  By its first amended original petition, filed on December 19, 1997, Trinity added the Ochoa and Villarreal
families as defendants.  Trinity did not request service on any defendant.  The first amended original petition specifically
states that no citations were requested at that time.  Bleeker was ultimately served on February 4, 1998.  The Texas
Supreme Court pronounced its stay order on February 14, 1998, and lifted the stay on April 14, 1998.  Trinity's motion for
rehearing was overruled by the Texas Supreme Court on June 5, 1998.  Citation was not requested or service completed on
any of the other defendants until June 10, 1998. 
 Even if we were to assume that Trinity's supplementation of the record is timely and proper, Trinity has failed to establish
that it properly commenced suit in Williamson County and that it intended to prosecute that suit.  In short, the duration of
the stay order is not coexistent with the periods of delay in service.  Trinity did not request the issuance of citation from
December 19, 1997, when the amended petition was filed, to February 14, 1998, when the stay order was pronounced.  In
argument, Trinity contended that the  plaintiff's addresses were unknown and that it was in the process of investigation,
however, the record does not contain any evidence substantiating this argument. Further, Trinity did not request citation
from April 14, 1998, when the stay order was pronounced, until June 10, 1998, yet Trinity could have issued citation while
its motion for rehearing was pending. 
 Moreover,  the record contains additional evidence supporting the trial court's denial of the plea in abatement.  The first
amended original petition in the Williamson County action explicitly directs that no issuance of service of citation be made
to any defendant. The mere filing of a petition does not fulfill the requirement of commencement of a suit for the purposes
of abatement.  See Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737 (1932)(suit will not be commenced where plaintiff
does not intend that process be immediately issued and served). Further, the record reflects that Trinity had previously filed
a similar declaratory judgment action in Williamson County which was dismissed for want of prosecution in 1995. 
 Trinity had the burden of proof to establish the allegations in its motion to abate.  Flowers v. Steelcraft Corp., 406 S.W.2d
199, 199 (Tex. 1966).  We conclude that 
Trinity has failed to establish that the trial court abused its discretion in denying its plea in abatement. 




       _________________________________ 
       ROBERT J. SEERDEN, Chief Justice 


Publish . 
Tex. R. App. P. 47.3. 


Opinion on Motion for Rehearing delivered 
and filed this 11th day of May, 2000. 
 
