                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-13-00327-CV
                              _________________


                          IN RE C.R. ENGLAND, INC.

________________________________________________________________________

                               Original Proceeding
________________________________________________________________________

                                    OPINION

      In this mandamus proceeding, we address whether, under the local rules

adopted by Jefferson County, civil cases filed in other district courts after a

temporary injunction suit was filed to preserve evidence in the 172nd District

Court should have been consolidated by the judge of the 60th District Court into

that court. We conclude that under the local rules of Jefferson County, the earliest

filed case was the temporary injunction suit, which was filed in the 172nd District

Court; we further conclude that the local rules required subsequently filed cases, if

consolidated, to be consolidated into the 172nd District Court. Accordingly, by

consolidating Causes B-194,401 and E-194,251 into the 60th District Court, the

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60th District Court failed to comply with the local rules governing the

consolidation of suits involving common questions of fact and law. We

conditionally grant mandamus relief and direct the 60th District Court to vacate its

order of June 6, 2013.

                                    Background

      After the occupants of one of the cars involved in a 2012 Thanksgiving Day

collision on Interstate 10 suffered fatal injuries, Vincent Leggio Jr., individually

and as representative of the estates of Vincent Leggio Sr. and Debra Leggio, filed a

temporary injunction to preserve evidence from the collision against several

entities, including C.R. England, Inc. and its employee, Richardo Fernando Kerr.

In his application seeking injunctive relief, Leggio asked the trial court to prohibit

the responding parties from disposing of several of the vehicles involved in the

Thanksgiving Day collision. The district clerk assigned the temporary injunction

suit (Leggio I) to the 172nd District Court as Cause Number E-193,633.

      On November 29, 2012, Vincent Leggio Jr., individually and as

representative of the Leggios’ estate, Richard Leggio, and Amanda Machowicz,

filed a wrongful death suit against several defendants, including C.R. England, Inc.

and its employee, Richardo Fernando Kerr (Leggio II), seeking to recover damages

resulting from the Thanksgiving Day collision. The district clerk assigned this suit

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to the 60th District Court, assigning it as Cause Number B-193,657. On December

12, 2012, Leggio filed a motion asking to nonsuit Leggio I. On a date not apparent

from the record before us, the 172nd District Court granted Leggio’s request and

rendered an order of nonsuit. Additionally, after Leggio asked the trial court to

dismiss Leggio I, C.R. England and Kerr removed Leggio II to federal court, where

it was assigned Cause Number 1:13-CV-38.

      On February 5, 2013, the Leggios moved to remand Leggio II to state court,

asserting that some of the properly joined defendants in Leggio II were Texas

residents. Finding that the case was properly removed and remand was not

warranted, the federal district court denied the motion to remand.

      In a separate suit, three others, Damon Francois, Terrance Bell, and Devin

Cash, passengers who were travelling in a car driven by Tamika Francois, sued

Vincent Leggio Jr., as representative of the Estate of Vincent Leggio Sr., Richardo

Fernando Kerr, and C.R. England, Inc. (Francois) seeking to recover for their

injuries. The district clerk assigned the Francois case Cause Number E-194,251,

and assigned it to the 172nd District Court.

      On April 25, 2013, the Leggios filed a motion in federal court seeking to

nonsuit Leggio II without prejudice. Finding that no dispositive motions had been

filed and no rulings had been made that might affect the choice of law or impair

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the defendants’ ability to present a viable defense, the federal district court granted

the motion on May 15, 2013. Approximately two weeks later, the Leggios filed a

wrongful death suit against several defendants, including C.R. England (Leggio

III). The district clerk assigned the Leggios’ new wrongful death case Cause

Number B-194,401, and assigned it to the 60th District Court.

      In June 2013, the Leggios filed motions in the cases that were pending in the

60th (Leggio III) and 172nd (Francois), requesting that the trial courts consolidate

or transfer the two suits to the 60th District Court. C.R. England moved to abate

the Leggios’ motion to consolidate, and filed its own motion, requesting the judge

of the 172nd District Court to consolidate Francois and Leggio III into Francois in

the 172nd District Court. On June 6, 2013, the elected judge of 60th District Court,

sitting as the 60th District Court, 1 rendered an order consolidating Leggio III and

Francois into the 60th District Court.

                              Standards and Guidelines

      Rule 174 of the Texas Rules of Civil Procedure and Local Civil Rule 6

govern the consolidation of civil cases filed in district courts in Jefferson County.



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       The Judge of the 60th District Court also serves as the local administrative
judge. We address the Leggios’ argument that the judge of the 60th District Court
could have transferred the case to the 60th District court in his capacity as the local
administrative judge separately.
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See Tex. R. Civ. P. 174(a); Jefferson (Tex.) Civ. Dist. Ct. Loc. R. 6(B), (D). Rule

174(a) provides:

      When actions involving a common question of law or fact are pending
      before the court, it may order a joint hearing or trial of any or all the
      matters in issue in the actions; it may order all the actions
      consolidated; and it may make such orders concerning proceedings
      therein as may tend to avoid unnecessary costs or delay.

Tex. R. Civ. P. 174(a). Local Rule 6(B) of the Jefferson County local rules

provides:

      All consolidations of cases shall be into the earliest-filed case, and
      shall remain pending on the docket of the court in which that case was
      originally filed. Any and all motions for consolidation shall be heard
      and decided only by the presiding judge of the court in which the
      earliest-filed case was filed.

Jefferson (Tex.) Civ. Dist. Ct. Loc. R. 6(B). Local Rule 6(D) also addresses what

the district clerk is required to do if a party non-suits a case and then refiles it: “If a

case is non-suited, then refiled, it must be reassigned to the same Court. The clerk

is to take all steps to effectuate this rule, and any party may move to enforce the

same.” Id., Civ. Dist. Ct. Loc. R. 6(D).

       Rules involving similar parties and multiple filings are intended to provide a

clear rule that avoids quarrels over which court’s rulings should be given priority.

“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

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v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Generally, if a party calls the

pendency of the prior suit to the trial court’s attention, the trial court must either

abate or dismiss the case. Id. If the court presiding over the second-filed case

attempts to interfere with the first-filed case, mandamus relief is appropriate “to

settle the conflict of jurisdictions.” Id., see also In re SWEPI, L.P., 85 S.W.3d 800,

809 (Tex. 2002).

                                   Earliest Filing

        The parties dispute which of the various cases should be considered to have

been filed first. The Leggios argue that Leggio I should not be considered as the

first filed case because the temporary injunction suit and the wrongful death suit

lack a complete identity of parties. Relators argue that Leggio I was the first filed

case.

        Although Leggio I was nonsuited, it involves some of the plaintiffs in the

subsequently filed cases as well as some of the defendants, and it is the first case

filed in Jefferson County that involved the Thanksgiving Day collision, a subject

matter that is common to all of the suits at issue. Local Civil Rule 6 is designed to

prevent forum-shopping by requiring the district clerk to reassign a case that is

nonsuited to the court where the district clerk assigned the plaintiff’s original

filing. See Jefferson (Tex.) Civ. Dist. Loc. R. 6(D). The rule is ministerial and does

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not require a finding that forum-shopping has in fact occurred. See id. Under Local

Civil Rule 6(D), a case that is non-suited “must be reassigned to the same Court.”

Id.

      The Leggios argue that as an ancillary proceeding for a temporary

restraining order, Leggio I cannot be a “case [that] is non-suited, then refiled” for

purposes of Local Civil Rule 6(D). However, the Texas Rules of Civil Procedure

allow a plaintiff to join “as many claims either legal or equitable or both as he may

have against an opposing party.” Tex. R. Civ. P. 51(a). Thus, the plaintiffs in

Leggio I could have included a claim for damages along with their claim for

injunctive relief.

      Given its purpose to prevent forum shopping, we are not persuaded that the

term “case,” used in Local Rule 6, should be given a construction that is at odds

with Rule 51. In common legal usage, a “case” is “[a] civil or criminal proceeding,

action, suit, or controversy at law or in equity[.]” Black’s Law Dictionary 243 (9th

ed. 2009). A “proceeding” is

      1. The regular and orderly progression of a lawsuit, including all acts
      and events between the time of commencement and the entry of
      judgment. 2. Any procedural means for seeking redress from a
      tribunal or agency. 3. An act or step that is part of a larger action. 4.
      The business conducted by a court or other official body; a hearing.

Id. at 1324. “Action” includes “[a] civil or criminal judicial proceeding.” Id. at 32.

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“Suit” means “[a]ny proceeding by a party or parties against another in a court of

law; case.” Id. at 1572. An “ancillary suit” is “[a]n action, either at law or in

equity, that grows out of and is auxiliary to another suit and is filed to aid the

primary suit, to enforce a prior judgment, or to impeach a prior decree.” Id. A

“controversy” is “[a] justiciable dispute.” Id. at 379. A “new cause of action,” as

part of the definition of “cause of action”, is “[a] claim not arising out of or relating

to the conduct, occurrence, or transaction contained in the original pleading.” Id. at

251. It is apparent that the common legal usage for the word “case” does not

exclude ancillary proceedings which seek temporary injunctive relief.

       Additionally, construing Local Rule 6 to define the term “case” to exclude

injunctive proceedings is inconsistent with the rule’s purpose to prevent forum

shopping. In our view, a local rule that exists to prevent forum-shopping would not

function as intended if it allows attorneys to engage in forum shopping by

splintering actions based on the character of relief requested.

      Leggio I asserted legal rights against Relators in a proceeding directly and

exclusively related to the Thanksgiving Day collision that claimed the lives of

Vincent and Debra Leggio. With respect to the various cases, we conclude Leggio I

is the earliest-filed case that concerns the Thanksgiving Day collision at issue. We

also conclude that the 60th District Court was not authorized under Local Rule

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6(B) and 6(D) to decide whether the matters at issue were to be consolidated. See

Jefferson (Tex.) Civ. Dist. Ct. Loc. R. 6(B), (D). We hold that Relators have shown

that an abuse of discretion occurred.

                                        Remedy

      According to the Leggios, even if the trial court erred by consolidating the

matters for trial, Relators have an adequate remedy by appeal making mandamus

relief inappropriate. Generally, a trial court has discretion to consolidate cases

concerning “common question of law or fact” when those cases “are pending

before the court.” Tex. R. Civ. P. 174; see In re Gauci, No. 14-12-00707-CV, 2012

WL 3629064, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2012, orig.

proceeding) (mem. op.) (consolidation followed uncontested administrative

transfer). Appeal can be an adequate remedy where the judge of the earliest-filed

case orders the transfer or consolidation with another case filed in another court.

See In re Guideone Lloyds Ins. Co., No. 09-08-472-CV, 2008 WL 4821569, at *1

(Tex. App.—Beaumont Nov. 5, 2008, orig. proceeding, [mand. denied]) (mem.

op.); Hayes v. Floyd, 881 S.W.2d 617, 619 (Tex. App.—Beaumont 1994, orig.

proceeding). Mandamus relief is appropriate, however, when a trial court acts

without authority and interferes with a matter on another court’s docket in the face




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of a rule designed to prevent one court from interfering with cases on another

court’s docket. See Curtis, 511 S.W.2d at 267.

       Additionally, a decision to delay resolving the parties’ dispute pending an

appeal would allow a party to circumvent the clear mandate of the local rules with

respect to which court has priority to make decisions about consolidating cases.

Although we recognize that the 172nd District Court could use the rules to

accomplish a proper consolidation of cases and that it could then transfer the cases

to the 60th District Court, Relators have demonstrated that the local rules

governing consolidation were not followed in obtaining the order of consolidation

at issue.

       We may consider an appellate remedy inadequate when, by remedying the

trial court’s error at an early stage, the parties avoid the potential expenses

presented by the prospect of multiple trials to resolve whether a case is in the

proper forum. In weighing whether an appellate remedy is adequate, the Texas

Supreme Court has explained:

       Mandamus review of significant rulings in exceptional cases may be
       essential to preserve important substantive and procedural rights from
       impairment or loss, allow the appellate courts to give needed and
       helpful direction to the law that would otherwise prove elusive in
       appeals from final judgments, and spare private parties and the public
       the time and money utterly wasted enduring eventual reversal of
       improperly conducted proceedings. An appellate remedy is
       “adequate” when any benefits to mandamus review are outweighed by
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       the detriments. When the benefits outweigh the detriments, appellate
       courts must consider whether the appellate remedy is adequate.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.

proceeding). A decision at this stage of the dispute could well avoid the need for

another trial.

       The Leggios argue that the judge of the 60th District Court could have acted

in his capacity as local administrative judge to administratively transfer Francois

to the 60th District Court. See Tex. Gov’t Code Ann. § 74.094(b) (West 2013)

(“The judges shall try any case and hear any proceeding as assigned by the local

administrative judge.”). However, there is no evidence that the local administrative

judge executed the order at issue while acting in that capacity. The record also does

not support the Leggios’ argument that the 60th District Court acted as a visiting

judge in the 172nd when rendering the order at issue. See Tex. Gov’t Code Ann. §

74.094(a) (a judge may hear a matter pending in another district court in the

county). And, the local administrative judge has a duty to “implement and execute

the local rules of administration, including the assignment, docketing, transfer, and

hearing of cases[.]” Tex. Gov’t Code Ann. § 74.092(a)(1) (West 2013). Because

the record does not support the Leggios’ arguments asserting the 60th District

Court acted in a capacity different than his capacity as the elected judge of the 60th


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District Court, we need not address the Leggios’ claim that the cases could have

been consolidated had a different procedure been followed.

      We hold that the trial court abused its discretion in granting the motion to

consolidate or transfer where the earlier-filed case was pending in another district

court. We lift our stay order and conditionally grant mandamus relief directing the

trial court to vacate its order consolidating Cause Number E-194,251 into Cause

Number B-194,401. We are confident the trial court will act promptly in accord

with this opinion. The writ of mandamus will issue only if the trial court fails to act

within a reasonable time.

      PETITION CONDITIONALLY GRANTED.



                                                            PER CURIAM


Submitted on July 31, 2013
Opinion Delivered September 5, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.




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