                           In The
                     Court of Appeals
       Sixth Appellate District of Texas at Texarkana
               ______________________________

                     No. 06-10-00108-CV
               ______________________________



                       IN RE:
RAYMOND L. BROWN AND PARKS, PATON, HOEPFL & BROWN, LLC




                  Original Mandamus Proceeding




            Before Morriss, C.J., Carter and Moseley, JJ.
              Memorandum Opinion by Justice Carter
                                    MEMORANDUM OPINION

       In September 2008, Scott Martin, SKM Partnership, Ltd., individually and as a shareholder

on behalf of Martin Resource Management Corporation (MRMC), filed suit in Harris County

against MRMC, Ruben S. Martin, III, and thirty-nine other individuals. That suit alleged, among

other things, that Ruben caused MRMC to issue shares of stock to the other defendants and

breached a fiduciary duty. The suit listed numerous causes of action and prayed for actual,

exemplary, special, and consequential damages, declaratory relief that the stock issuance was

improper, return of the shares issued, and other relief.

       In May 2010, MRMC sued Scott Martin and four other defendants, alleging that they

tortiously interfered with MRMC’s contract to refinance existing indebtedness by filing the Harris

County lawsuit and for slander by issuing disparaging statements regarding MRMC and its

management. MRMC prayed for actual and exemplary damages.

         In this original proceeding, Raymond L. Brown and Parks, Paton, Hoepfl & Brown, LLC,

Michael Gayler, Gaylersmith Group, LLC, and Scott Martin (Relators) contend that a Gregg

County judge clearly abused his discretion in denying their pleas to abate and dismiss the Gregg

County suit in favor of a first-filed suit in Harris County, containing ―inherently interrelated‖ facts.

       Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion

or violation of a duty imposed by law when no other adequate remedy by law is available. In re

Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (citing State v. Walker, 679 S.W.2d 484, 485


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(Tex. 1984)). ―Absent extraordinary circumstances not present here, a denial of a motion to

dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be

corrected by mandamus, but by the legal remedy of the ordinary appellate process.‖ Hooks v.

Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (citing Abor v. Black, 695 S.W.2d 564,

566–67 (Tex. 1985) (―This court has consistently held that it lacks jurisdiction to issue writs of

mandamus to supervise or correct incidental rulings of a trial judge, such as denials when there is

an adequate remedy by appeal . . . includ[ing] . . . pleas in abatement.‖)).

       Relators argue that the abatement was required under the principle of dominant

jurisdiction. We have previously stated that ―[m]andamus is ordinarily available to resolve a

conflict in jurisdiction between courts of coordinate jurisdiction only when the trial court first

taking jurisdiction has been prohibited from proceeding, e.g., when the second court enjoins the

parties from taking any more action in the first court.‖ In re Ramsey, 28 S.W.3d 58, 63–64 (Tex.

App.—Texarkana 2000, orig. proceeding) (citing Abor, 695 S.W.2d at 567). When both courts

proceed with their separate actions without attempting to hinder the other court’s jurisdiction, even

questions of dominant jurisdiction may generally be reviewed adequately by appeal. Id. It is

only when one court directly interferes with the jurisdiction of the other that mandamus becomes

an appropriate remedy. Id.; see also In re U.S. Silica Co., 157 S.W.3d 434, 438–39 (Tex. 2005).

       Relators argue that mandamus rules have been modified by recent Texas Supreme Court

opinions to the extent that our determination as to the adequacy of an appellate remedy should be


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determined by a ―practical and prudential‖ balancing of the benefits and detriments of mandamus

review. Citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136–37 (Tex. 2004); Perry v.

Del Rio, 66 S.W.3d 239 (Tex. 2001). While Prudential did not concern a dominant jurisdiction

question, Perry did. But in Perry, the Texas Supreme Court, in determining the proper presiding

court in a congressional redistricting challenge, held that since substantial rights of the citizens of

Texas were implicated, mandamus relief was necessary. Perry, 66 S.W.3d at 257. Even in those

circumstances, the Texas Supreme Court determined the district court order actively interfered

with the other court and met the requirements of Abor. Abor held that mandamus is available to

resolve a conflict in jurisdiction between courts only when the second court actively interferes

with the exercise of jurisdiction of the first court; otherwise, a traditional appeal is an adequate

remedy. 695 S.W.2d at 567. No authority has been cited, nor has been found, rejecting Abor or

holding that it is no longer authoritative in mandamus issues involving dominant trial court

jurisdiction.

        The two suits are related in that they both involve MRMC and the two major shareholders,

Scott and Ruben. But the basic dispute in the Harris County case is that MRMC and Ruben

improperly issued additional shares of stock in MRMC, resulting in damage to Scott, whereas the

Gregg County case alleges that Scott’s actions, including filing the Harris County suit and making

disparaging statements, interfered with MRMC’s business relationship and damaged the company.

        In Morris v. Legatt, this Court found that even though the controversies in that matter were


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interwoven, since the second suit did not interfere with the exercise of jurisdiction to decide the

ultimate issues in the first suit, mandamus was not a proper remedy. 877 S.W.2d 899, 901 (Tex.

App.—Texarkana 1994, orig. proceeding). Because the mandamus record filed in this case does

not reveal any interference by the Gregg County court upon the proceedings in the Harris County

court, Relators have an adequate remedy by appeal. See In re Akins, No. 09-09-00447-CV, 2009

WL 3763776, at *1 (Tex. App.—Beaumont Nov. 12, 2009, orig. proceeding) (concluding

mandamus relief inappropriate); In re Barnes, No. 04-07-00864-CV, 2007 WL 4375222 (Tex.

App.—San Antonio Dec. 17, 2007, orig. proceeding) (same).

       Finally, Relators also argue that the Gregg County court abused its discretion in failing to

deny the plea in abatement for the purely discretionary reasons of ―comity, convenience, and

orderly procedure.‖ The only authority cited is Dolenz v. Continental National Bank of Fort

Worth, 620 S.W.2d 572 (Tex. 1981), which is not a mandamus proceeding, but is the normal

appellate review after a final judgment. Consequently, Dolenz is inapplicable to this case. Even

when basing the decision on purely discretionary grounds, the Relators argue that the proper

application of the law allows only one conclusion—that the Gregg County case should be abated

or dismissed. Based on the standard required for mandamus relief, we cannot conclude that the

trial court clearly abused its discretion in denying the abatement.

       Accordingly, we deny the petition for writ of mandamus.




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                                          Jack Carter
                                          Justice

Date Submitted:   November 29, 2010
Date Decided:     November 30, 2010




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