                                               OPINION
                                          No. 04-10-00766-CV

IN RE EXXONMOBIL PRODUCTION COMPANY, EXXON MOBIL CORPORATION,
               and EXXONMOBIL PIPELINE COMPANY

                                    Original Mandamus Proceeding 1

Opinion by:      Phylis J. Speedlin, Justice

Sitting:         Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: March 23, 2011

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relators ExxonMobil Production Company, Exxon Mobil Corporation, and ExxonMobil

Pipeline Company (collectively “ExxonMobil”) seek mandamus relief from the Starr County

trial court’s denial of a motion to abate. ExxonMobil contends the Brooks County court has

dominant jurisdiction over the Starr County suit because at the time the lawsuit was filed a suit

was pending in Brooks County that was filed by real parties in interest the Encinitos Ranch and

McGill Ranch Ltd. (collectively “Encinitos”) and involves the same parties and subject matter.

We agree and conclude the trial court erred in failing to grant the motion to abate.




1
 This proceeding arises out of Cause No. DC-10-109, styled The Encinitos Ranch and McGill Ranch, Ltd. v.
ExxonMobil Production Company, et al., pending in the 381st Judicial District Court, Starr County, Texas, the
Honorable Jose Luis Garza presiding.
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                                                 BACKGROUND

           The Encinitos Ranch is comprised of more than 38,000 contiguous acres that extend

through Starr, Hidalgo, Jim Hogg, and Brooks Counties. McGill Ranch, Ltd. is a partnership

that owns a substantial portion of the surface estate of the ranch and manages the ranch.

ExxonMobil is the lessee of most of the minerals underlying the ranch.

           In 2007, a suit was filed in Brooks County by McGill Ranch, Ltd., the Encinitos Ranch,

and members of the McGill family, acting individually and on behalf of five different trusts and

one estate, (“plaintiffs”) against numerous defendants, including Exxon Mobil Corporation and

ExxonMobil Production Company. 2 In the Second Amended Petition filed on May 9, 2008,

plaintiffs contend:

                    Generally speaking, this action is brought to recover damages for
                    physical harm done to the land, to enjoin the defendants from
                    further damaging the property, to enjoin further trespasses, to
                    recover damages for trespass, to require lessees to implement
                    reasonable and prudent programs, policies and procedures to
                    safeguard and protect the property from any future damage,
                    contamination or harm . . . .

Plaintiffs assert claims for property damage, trespass to the property that arises from the

contamination, pollution, and improper abandonment of oil field production facilities, equipment

and infrastructure, negligence, and various breaches of the lease agreements. Additionally,

plaintiffs assert claims for negligence, gross negligence, and breach of contract against the

ExxonMobil defendants and another defendant in connection with a large fire that occurred on

March 18, 2008 that allegedly resulted from poorly maintained power lines.

           In 2010, a second suit was filed in Starr County by the Encinitos Ranch and McGill

Ranch, Ltd. against only ExxonMobil Production Company, Exxon Mobil Corporation, and

ExxonMobil Pipeline Company. Plaintiffs assert in their First Amended Petition as follows:
2
    Encinitos Ranch, et al. v. Exxon Mobil Corp., et al,. No. 07-12-14420-CV (79th Dist. Ct., Brooks County, Tex.).

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               This is a lawsuit arising from Defendants’ acts and omissions in
               causing and continuing to cause chemical contamination to real
               property, including surface, subsurface and freshwater zones,
               located in Starr County, Texas. By virtue of this lawsuit, Plaintiffs
               seek equitable remedies requiring Defendants to clean up or
               remediate hydrocarbon, heavy metals and other identified
               contamination in Starr County at the ExxonMobil facility
               commonly known as Tank Battery 3 or Meter Site No. 3 and at the
               ExxonMobil facility commonly known as S.E. Kelsey Station,
               where irreparable injury to real or personal property is threatened
               and/or occurring.

Plaintiffs seek injunctive relief requiring defendants to abate and/or remediate the conditions

causing the contamination, and assert claims based on negligence, negligence per se, trespass,

nuisance, and breach of contract and implied covenants. Real parties in interest assert in their

response in this court that the Starr County suit arose out of a June 2009 spill on the Encinitos

Ranch in Starr County.

       After filing an answer in the Starr County suit, ExxonMobil moved to abate the Starr

County suit, asserting the Brooks County court has dominant jurisdiction because the Brooks

County suit was filed first and involved the same parties and claims. Following a hearing, the

trial court denied ExxonMobil’s motion to abate and subsequently denied its motion to

reconsider. This petition for writ of mandamus ensued.

                                           ANALYSIS

I.         Standard of Review

       Mandamus will issue only to correct a clear abuse of discretion for which the relator has

no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,”

and “a clear failure by the trial court to analyze or apply the law correctly will constitute an



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abuse of discretion.” Walker, 827 S.W.2d at 840. To satisfy the clear abuse of discretion

standard, the relator must show “that the trial court could reasonably have reached only one

decision.” Id.

II.          Dominant Jurisdiction

          As a general rule, when cases involving the same subject matter are brought in different

courts, the court with the first-filed case has dominant jurisdiction, and the other case should be

abated. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); see also Perry v. Del

Rio, 66 S.W.3d 239, 252 (Tex. 2001); In re Sims, 88 S.W.3d 297, 303 (Tex. App.—San Antonio

2002, orig. proceeding). The Supreme Court emphasized that “[i]t has long been the policy of

the courts and the legislature of this state to avoid a multiplicity of lawsuits. The need for

judicial economy has recently become more acute because the dockets of our trial courts are

overburdened, and litigants must wait far too long for their cases to be heard.” Wyatt, 760

S.W.2d at 246-47.

          In order to determine whether dominant jurisdiction exists, we must analyze whether

there is an inherent interrelation of the subject matter between the two pending lawsuits. Id. at

247. It is not required that the precise issues and all of the parties be included in the first suit

before the second suit is filed, provided that the claims in the first suit can be amended to bring

in all of the necessary and proper parties and the claims. See id. Therefore, in order for

ExxonMobil to have succeeded on its motion to abate, it had to establish that (1) the Brooks

County suit commenced first; (2) the Brooks County suit is still pending; (3) the Brooks County

suit could be amended to include all of the parties; and (4) the controversies are the same or the

Brooks County suit could be amended to include all of the claims. See id.; In re Sims, 88 S.W.3d

at 303.



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       Encinitos does not dispute that the first three requirements have been met. Instead,

Encinitos’s sole contention is that the controversies are not the same in the two cases. Encinitos

argues that because the alleged damage from the June 2009 spill in Starr County had not yet

occurred when the Brooks County suit was filed, the Starr County suit involves a discrete injury

that is not the same as the controversy in the Brooks County suit. Encinitos offers no other

explanation as to why the injury is discrete. In addition, Encinitos fails to explain why the

Brooks County suit could not be amended to include the claims made in the Starr County suit.

Pleadings can be amended to include subsequent claims; in fact, as previously noted, Encinitos

amended its Brooks County suit to include claims for damages from a 2008 fire—a fire that

occurred after the Brooks County suit was originally filed in 2007.

       Here, based on the pleadings in both suits, there is an inherent interrelation of the subject

matter between the two pending suits, and the Brooks County suit could be amended to include

the claims in the Starr County suit. See Wyatt, 760 S.W.2d at 247. Encinitos’s Second Amended

Petition in the Brooks County suit provides that “[g]enerally speaking, this action is brought to

recover damages for physical harm done to the land . . . .” Likewise, the First Amended Petition

in the Starr County suit provides that “[t]his is a lawsuit arising from Defendants’ acts and

omissions in causing and continuing to cause chemical contamination to real property. . . .” Both

suits at least in part are based on damage to the ranch property. We are unaware of any reason

why Encinitos could not amend its claims in the Brooks County suit to incorporate the claims in

the Starr County suit. As a result of the foregoing, we conclude the Brooks County court has

dominant jurisdiction over the Starr County suit. In order to avoid the multiplicity of suits and

the waste of judicial resources the Supreme Court cautioned against in Wyatt, we conclude the




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trial court erred in not granting the motion to abate the Starr County suit to Brooks County. See

id. at 246-47.

III.   Adequate Remedy by Appeal

       In Abor, the Supreme Court held mandamus relief is not available to address a trial

court’s erroneous refusal to abate a suit based on dominant jurisdiction unless there is a conflict

in jurisdiction where one of the trial courts issues an order that actively interferes with the other

court or enjoins the other from proceeding. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). In

the past, this court, along with other appellate courts, has not issued mandamus relief unless

relator established there was a conflict of jurisdiction in accordance with Abor. See, e.g., In re

Brown, No. 06-10-00108-CV, 2010 WL 4880675, at *1 (Tex. App.—Texarkana 2010, orig.

proceeding); In re Akins, No. 09-09-00447-CV, 2009 WL 3763776, at *1 (Tex. App.—

Beaumont 2009, orig. proceeding); In re Barnes, No. 04-07-00864-CV, 2007 WL 4375222, at *1

(Tex. App.—San Antonio 2007, orig. proceeding). However, ExxonMobil contends that in light

of Prudential, it lacks an adequate remedy by appeal and mandamus relief is warranted, although

no conflict of jurisdiction exists as set out in Abor. See Prudential, 148 S.W.3d at 135-36. We

agree and conclude ExxonMobil does not have an adequate remedy by appeal.

       In Prudential, the Supreme Court granted mandamus relief to a relator complaining of a

trial court’s denial of its request to enforce an opposing party’s contractual waiver of a trial by

jury. Id. at 138. In distinguishing between mandamus review of incidental, interlocutory trial

court rulings and significant rulings, the Court explained that mandamus review of those

incidental rulings “unduly interferes with trial court proceedings, distracts appellate court

attention to issues that are unimportant both to the ultimate disposition of the case at hand and to

the uniform development of the law, and adds unproductively to the expense and delay of civil



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litigation.”    Id. at 136.     However, the Court found that review of significant rulings in

exceptional cases may be essential to: (1) preserve a relator’s substantive or procedural rights

from impairment or loss; (2) allow appellate courts to give needed and helpful direction to the

law that would otherwise prove elusive in an appeal from a final judgment; and (3) prevent the

waste of public and private resources invested into proceedings that would eventually be

reversed. Id.

        The Court articulated a balancing test by which to determine whether there existed an

adequate remedy on appeal. Id. An appellate remedy is adequate if the detriments to issuing

mandamus relief outweigh the benefits; but if the detriments are outweighed by the benefits,

“courts must consider whether the appellate remedy is adequate.” Id. The Court explained that

prior cases in which it found an appellate remedy was inadequate “serve to illustrate that whether

an appellate remedy is ‘adequate’ so as to preclude mandamus review depends heavily on the

circumstances presented . . . .” Id. at 137 (emphasis added). Elaborating that the decision of

whether to issue a writ of mandamus depends heavily on the circumstances presented, the Court

expressly rejected the application of rigid rules in deciding whether a remedy on appeal is

adequate.      Id. at 136.    It reasoned that such rigid rules and categorizations contradict the

flexibility of mandamus, which is its “principal virtue.” See id. at 136. The Court’s holding in

Abor, limiting the propriety of mandamus relief in plea in abatement cases to conflicts of

jurisdiction, is an example of the type of rigid rule that Prudential rejected. See Abor, 695

S.W.2d at 567. 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. See id.




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         Other Texas Supreme Court cases concerning mandamus review of trial court rulings on

forum issues demonstrate both the importance of considering the waste of public and private

resources and Prudential’s broad applicability. See, e.g., In re Team Rocket, L.P., 256 S.W.3d

257, 262 (Tex. 2008) (orig. proceeding). 3 In Team Rocket, the Court granted mandamus relief to

correct a trial court’s improper refusal to enforce a prior venue ruling by another trial court. Id.

at 263. There, a Harris County court granted a motion to transfer venue and transferred the case

to Williamson County. Id. at 259. Plaintiffs, dissatisfied with the transfer, nonsuited the case

and subsequently filed suit in Fort Bend County. Id. The trial court in Fort Bend County refused

to enforce the prior venue ruling. Id. The Texas Supreme Court analyzed the facts through

Prudential’s prism, assessing the adequacy of appeal “by balancing the benefits of mandamus

review against the detriments.” Id. at 262. It considered whether mandamus would “spare

litigants and the public ‘the time and money utterly wasted enduring eventual reversal of

improperly conducted proceedings.”’ Id. (quoting Prudential, 148 S.W.3d at 136). The Court

emphasized that “extraordinary relief can be warranted when a trial court subjects taxpayers,

defendants, and all of the state’s district courts to meaningless proceedings and trials.” Id. It

concluded, “To say that the Fort Bend County trial court . . . committed reversible error while

declining to correct the injustice would compromise the integrity of the venue statute and result

in an irreversible waste of resources.” Id. at 263.

         The three factors outlined in Prudential and elaborated upon in Team Rocket favor

granting mandamus in this case. See Team Rocket, 256 S.W.3d at 262; Prudential, 148 S.W.3d



3
  See In re AutoNation, Inc., 228 S.W.3d 663, 668 (Tex. 2007) (orig. proceeding) (holding that mandamus was
appropriate for forum selection clauses because failing to enforce such a clause resulted in judicial “inefficiency by
enabling forum-shopping, wasting judicial resources, delaying adjudication on the merits, and skewing settlement
dynamics contrary to the parties’ contracted-for expectations”); In re AIU Ins. Co., 148 S.W.3d 109, 118 (Tex.
2004) (orig. proceeding) (“We have acted to prevent a waste of judicial resources in contexts other than discovery
disputes.”).

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at 136. First, the present case involves an impairment of the defendant’s procedural rights. The

Court in Team Rocket recognized that Texas venue statutes “create a balance” by giving the

plaintiff “the first choice of venue when he files suit” and restricting the defendant to one motion

to transfer that venue. Team Rocket, 256 S.W.3d at 262. The Court reasoned that the plaintiff’s

taking a nonsuit and refiling the suit in another county in response to an unfavorable ruling on

the defendant’s motion to transfer venue violated the defendant’s procedural rights by permitting

the plaintiff to circumvent the balance established by the venue statutes. Id. at 261 Here, the

plaintiffs have filed a separate, concurrent suit in another county and have thereby impaired the

defendants’ procedural rights to defend against only one lawsuit in the venue that the plaintiff

first chose to file suit. See id.

        Second, mandamus review presents this Court with the opportunity to give needed and

helpful direction to the law. See Prudential, 148 S.W.3d at 136. In Team Rocket, the Court

suggested that this factor weighs in favor of mandamus if a legal issue “is likely to recur, as

demonstrated by the . . . decisions that have already addressed it.” Team Rocket, 256 S.W.3d at

262. In fact, this Court has already addressed the issue of competing lawsuits where plaintiffs

filed multiple suits, also relating to an oil and gas lease, against the same defendants in different

courts. Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518 (Tex. App.—San Antonio

1995, no writ). In Flores, this Court, though holding that the trial court clearly abused its

discretion, felt constrained by Abor, refused to abate the second suit, and denied mandamus

relief. Id. at 519 Additionally, the same issue is pending before this court in In re Coronado

Energy E&P Co., L.L.C., No. 04-10-00748-CV (Tex. App.—San Antonio filed Oct. 19, 2010,

orig. proceeding). Coronado is a nearly identical case to the case at hand, involving the same




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underlying suit in Brooks County as this case and one of the same plaintiffs, McGill Ranch. See

id.

       Third, the present case raises similar concerns as Team Rocket and Flores because the

trial court’s failure to grant ExxonMobil’s plea in abatement will result in an irreversible waste

of resources.   See In re Team Rocket, 256 S.W.3d at 262; Flores, 908 S.W.2d at 518

(acknowledging Abor’s constraints, but “lamenting the gross and unnecessary waste of economic

and judicial resources” that was caused by the decision). In Team Rocket, the Court noted that a

subsequent reversal of a trial court ruling that was the object of the relator’s request for

mandamus relief and the retrying of the case would “subject[] taxpayers, defendants, and all of

the state’s district courts to meaningless proceedings and trials.” 256 S.W.3d at 262. This

concern weighed in favor of granting mandamus. Id. at 263. The appellate remedy for the

improper denial of a plea in abatement is “virtually automatic” reversal. Flores, 908 S.W.2d at

519.   In light of the fact that the trial court abused its discretion, a trial court judgment

unfavorable to ExxonMobil will likely be reversed on appeal. See id. And even if ExxonMobil

was to prevail below, the gross and unnecessary waste of the resources of the parties and of the

judiciary could not be adequately redressed by an appellate remedy. In the suit in Brooks

County, there are two entities, six individual plaintiffs acting on behalf of five different trusts

and one estate, and eighteen defendants.      The plaintiffs have asserted claims for property

damage, trespass to the property, negligence, and various breaches of the lease agreements. In

Starr County, two of the same plaintiffs have sued two of the same defendants and one additional

defendant, asserting claims for violations of the Natural Resources Code, negligence, negligence

per se, trespass, nuisance, breach of contract, and breach of implied covenants. Based on the




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foregoing, we conclude that after applying the Prudential factors, mandamus relief is warranted

in this case because ExxonMobil lacks an adequate remedy by appeal.

IV.        Waiver

       Finally, Encinitos contends ExxonMobil waived its right to mandamus relief by waiting

four months from the time the trial court denied the motion to abate before filing its petition for

writ of mandamus in this court. When analyzing whether a relator’s delay in filing a mandamus

prevents the writ from being issued, the Texas Supreme Court has held that “[a]lthough

mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles.

One such principle is that ‘[e]quity aids the diligent and not those who slumber on their rights.’”

Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding) (quoting

Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) (orig. proceeding)). In

determining if a relator’s delay prevents the issuance of the writ, courts have analogized to the

doctrine of laches. In re Hinterlong, 109 S.W.3d 611, 620 (Tex. App.CFort Worth 2003, orig.

proceeding); Sanchez v. Hester, 911 S.W.2d 173, 177 (Tex. App.CCorpus Christi 1995, orig.

proceeding). A party asserting the defense of laches must show: (1) unreasonable delay by the

other party in asserting its rights, and (2) harm resulting to the party as a result of the delay. In

re Hamel, 180 S.W.3d 226, 230 (Tex. App.CSan Antonio 2005, orig. proceeding); In re Bahn,

13 S.W.3d 865, 871 (Tex. App.CFort Worth 2000, orig. proceeding).

       The trial court signed the order denying the motion to abate on June 21, 2010, and on

July 15, 2010, ExxonMobil moved for reconsideration. The trial court heard and subsequently

denied ExxonMobil’s request for reconsideration on August 25, 2010. ExxonMobil filed its

petition for writ of mandamus in this court on October 22, 2010. We conclude ExxonMobil did

not unreasonably delay in filing its petition for writ of mandamus in this court. See Hamel, 180



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S.W.3d at 230. Furthermore, Encinitos fails to discuss how it was harmed as a result of any

delay. See id. Accordingly, we conclude ExxonMobil did not waive its right to mandamus

relief.

                                          CONCLUSION

          We conclude the trial court abused its discretion in denying ExxonMobil’s motion to

abate. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is

ordered to (1) vacate the June 21, 2010 Order Denying Defendants’ Amended Motion to Abate,

and (2) enter an order granting Defendants’ Amended Motion to Abate. The writ will issue only

if the trial court fails to comply within fourteen days.



                                                          Phylis J. Speedlin, Justice




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