                                                 OPINION
                                            No. 04-10-00748-CV

                          IN RE CORONADO ENERGY E&P CO., L.L.C.

                                      Original Mandamus Proceeding 1

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Phylis J. Speedlin, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: March 30, 2011

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relator Coronado Energy E&P Co., L.L.C. seeks mandamus relief from the Starr County

trial court’s denial of a plea in abatement. Coronado 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 party in interest McGill Ranch Ltd. and

involves the same parties and subject matter. We agree and conclude the trial court erred in

failing to grant the plea in abatement.




1
  This proceeding arises out of Cause No. DC-10-55, styled McGill Ranch, Ltd. v. Coronado Energy E&P Co.,
L.L.C., 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.

           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 Coronado and ExxonMobil. 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 McGill Ranch, Ltd. against only

Coronado Energy E&P Co., L.L.C. Plaintiffs assert in their Original Petition as follows:

                    Pursuant to [the “Exploitation Agreement,”] Coronado prepared a
                    road and location to drill its McGill Bros. Well No. 617 on the
                    Encinitos Ranch in Starr County, Texas. Coronado severely
                    damaged the land, devalued it, and destroyed native trees and
                    brush and the sensitive wildlife habitat. Coronado . . . damaged the
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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                 land and has been invoiced for the damages but has not paid for the
                 damages.

This damage allegedly occurred in April of 2008.

       After filing an answer in the Starr County suit, Coronado 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 Coronado’s plea in abatement. 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

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

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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 claims. Id. Therefore, in order for Coronado to

have succeeded on its plea in abatement, 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.

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

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

McGill Ranch argues that because the April 2008 damage at the well located on the ranch 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.

McGill Ranch offers no other explanation as to why the injury is discrete. In addition, McGill

Ranch 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, McGill Ranch and the other plaintiffs amended the 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.



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        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. McGill Ranch’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 petition in

the Starr County suit claims that Coronado damaged the land. Both suits at least in part are

based on damage to the ranch property. We are unaware of any reason why McGill Ranch 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 trial court erred in not

granting the motion to abate of the Starr County suit to Brooks County. See id. at 246-47.

III.    Adequate Remedy by Appeal

        For the reasons stated in In re ExxonMobil Production Co., No. 04-10-00766-CV (Tex.

App.—San        Antonio      Mar.      23,     2011,     orig.     proceeding),     available      at

http://www.4thcoa.courts.state.tx.us/opinions/docket.asp?FullDate=20110323,          we    conclude

Coronado lacks an adequate remedy by appeal. Therefore, mandamus relief is appropriate in this

case.

IV.        Waiver

        Finally, McGill Ranch contends Coronado waived its right to mandamus relief by waiting

four months from the time the trial court denied the plea in abatement 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



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“[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. See In re Northern, 327 S.W.3d 181, 188 (Tex. App.CSan

Antonio 2010, orig. proceeding [mand. denied]); 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. See 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). However, McGill Ranch fails to discuss how it was harmed as a result of any

delay. Id. As a result, we need not reach McGill Ranch’s argument that Coronado unreasonably

delayed in filing the petition for writ of mandamus. Accordingly, we conclude McGill Ranch

failed to establish Coronado waived its right to mandamus relief.

                                        CONCLUSION

       We conclude the trial court abused its discretion in denying Coronado’s plea in

abatement. Accordingly, we conditionally grant the petition for writ of mandamus. The trial

court is ordered to (1) vacate the June 21, 2010 order denying Coronado’s plea in abatement, and

(2) enter an order granting Coronado’s plea in abatement. The writ will issue only if the trial

court fails to comply within fourteen days.

                                                            Steven C. Hilbig, Justice



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