                               NUMBER 13-14-00395-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

        IN RE STATE FARM LLOYDS AND RICHARD FREYMANN,
                   AND AARON AQUILES GALVAN


                         On Petition for Writ of Mandamus


                                          ORDER
     Before Chief Justice Valdez and Justices Perkes and Longoria
                           Per Curiam Order

       Relators, State Farm Lloyds, Richard Freymann, and Aaron Aquiles Galvan, have

filed a petition for writ of mandamus requesting that this Court direct respondent, the

Honorable Rose Guerra Reyna, Presiding Judge of the 206th District Court of Hidalgo

County, Texas, to withdraw her order entered on May 29, 2014 denying relators’ verified

plea in abatement and to enter an order abating the suit for damages brought against

relators by the real party in interest, Fred Kurth d/b/a Sherwood Partnership, until sixty

days after the real party in interest provides relators with a notice letter for his claim stating
the specific, separate amounts for his claimed damages and attorney’s fees. See TEX.

INS. CODE ANN. § 541.154 (West, Westlaw through 2013 3d C.S.) (“Prior Notice of

Action”); id. § 541.155 (West, Westlaw through 2013 3d C.S.) (“Abatement”); TEX. R. APP.

P. 52.1 (“Commencement” of Original Proceedings). In addition, relators request that this

Court issue immediate temporary relief staying respondent’s order of May 29, 2014

pending final disposition of this original proceeding.        See TEX. R. APP. P. 52.10

(“Temporary Relief”). As set forth below, the Court, having fully considered the petition

for writ of mandamus, the request for immediate temporary relief, and the law, is of the

opinion that a response should be requested from the real party in interest and that the

request for temporary relief should be granted.

                                      I. STANDARD OF REVIEW

       To establish entitlement to relief by mandamus, relators “must meet two

requirements.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). “One

is to show that the trial court clearly abused its discretion.” Id. “The other requirement . .

. . is to show that . . . [relators have] no adequate remedy by appeal.” Id. at 135–36. The

Texas Supreme Court has explained that “[t]he operative word, ‘adequate,’ has no

comprehensive definition; it is simply a proxy for the careful balance of jurisprudential

considerations that determine when appellate courts will use original mandamus

proceedings to review the actions of lower courts.” Id. at 136. Although the Texas

Supreme Court “has tried to give more concrete direction for determining the availability

of mandamus review, rigid rules are necessarily inconsistent with the flexibility that is the

remedy’s principal virtue.” Id.




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                                        II. APPLICABLE LAW

       The general rule is that “[p]leas in abatement are incidental rulings, the denial of

which ordinarily does not support mandamus relief.” In re Puig, 351 S.W.3d 301, 306

(Tex. 2011) (orig. proceeding) (per curiam). However, the Texas Supreme Court has

“note[d] that the improper denial of a plea in abatement may, on occasion, warrant

mandamus relief.” Id.

       For instance, the Texas Supreme Court has granted mandamus relief in the

context of a plea in abatement when a trial court issued an order actively interfering with

the exercise of jurisdiction by a second court possessing dominant jurisdiction. See Curtis

v. Gibbs, 511 S.W.2d 263, 266–68 (Tex. 1974) (granting mandamus relief directing a

judge to sustain a plea in abatement in a child custody suit where one court attempted to

exercise jurisdiction with respect to the children, despite the fact that dominant jurisdiction

had previously been established in another court).

       In addition, the Texas Supreme Court has considered the appropriate remedy

when a trial court erroneously denies a defendant’s request for abatement based on the

failure of a plaintiff to provide the sixty day pre-suit notice required by the Texas Deceptive

Trade Practices Act (DTPA). See Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992). In

Hines, the Texas Supreme Court held that under such circumstances, a “[d]efendant is

entitled, but not obliged, to seek review of a denial of abatement by mandamus.” Id.

Alternatively, a “[d]efendant may wait until appeal from the final judgment to seek review

of a denial of abatement, but the trial court’s error must be shown to have been harmful

to obtain reversal.” Id. “Ordinarily, this would require a showing that defendant was

unable to limit his damages under the statute by tendering a settlement offer.” Id.



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       At least two intermediate courts of appeals that have considered the same issue

in the context of the sixty day pre-suit notice provision of the Texas Insurance Code have

concluded that mandamus relief is available to correct a trial court’s erroneous denial of

a motion to abate. For instance, the Fourth Court of Appeals has held that mandamus

relief is appropriate when a trial court denies a plea in abatement based on a claimant’s

failure to provide the pre-suit notice required by Section 541.154 of the Texas Insurance

Code. See In re Behr, No. 04-05-00895-CV, 2006 WL 468001, *2–3 (Tex. App.—San

Antonio Mar. 1, 2006, orig. proceeding) (mem. op.) (holding that trial court’s erroneous

denial of request for abatement effectively deprived defendant of substantial rights “to

limit his damage exposure through an offer of settlement” for which there was no

adequate remedy on appeal). The Fourteenth Court of Appeals has also reached the

same conclusion. See In re Liberty Mutual Fire Ins. Co., No. 14-09-00876-CV, 2010 WL

1655492, at *5 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (mem. op.)

(holding that mandamus relief was appropriate to correct trial court’s erroneous denial of

insurance company’s plea in abatement based on claimant’s failure to provide sufficient

pre-suit notice as required by insurance code).

                                         III. CONCLUSION

       Based on the foregoing, we conclude that it is appropriate to ask the real party in

interest to respond to relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.4

(“Response”), R. 52.8(b)(1) (“Interim Action”). Accordingly, the Court requests that the

real party in interest, or any others whose interest would be directly affected by the relief

sought, file a response to the petition for writ of mandamus on or before the expiration of

five days from the date of this order. Furthermore, the Court, having considered relators’



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request for temporary relief, is of the opinion that the request should be GRANTED.1

Accordingly, relators’ request for temporary relief is hereby granted. See TEX. R. APP. P.

52.10 (“Temporary Relief”). Respondent’s order of May 29, 2014 is hereby stayed

pending further order of this Court or final disposition of this original proceeding.

        IT IS SO ORDERED.



                                                                  PER CURIAM

Delivered and filed the
11th day of July, 2014.




        1  Relators have not requested, and this Court has not granted, a stay of further proceedings in the
district court.

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