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                                   MEMORANDUM OPINION

                                          No. 04-09-00101-CV

                                     Victor Manuel RODRIGUEZ,
                                              Appellant

                                                     v.

                                      Lydia Esther RODRIGUEZ,
                                                Appellee

                    From the 293rd Judicial District Court, Maverick County, Texas
                                 Trial Court No. 07-04-22506-MCV
                            Honorable Cynthia L. Muniz, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: March 10, 2010

REVERSED AND REMANDED

           The sole issue presented in this appeal from a final divorce decree is whether the trial court

abused its discretion in denying a plea in abatement. Victor asserts the trial court abused its

discretion in denying his plea because a court in Denton County had dominant jurisdiction over the

divorce proceedings. We reverse the final divorce decree and remand the cause for further

proceedings.
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                                          BACKGROUND

       In April of 2005, Victor filed a petition for divorce from Lydia Esther Rodriguez in Denton

County. In August of 2005, Lydia answered and filed a counterpetition for divorce. Victor and

Lydia have two children, who were the subject of temporary orders.

       In April of 2007, while the divorce was still pending in Denton County, Victor filed a lawsuit

in Maverick County against Lydia and various other defendants. Victor asserted numerous common

law tort claims and a claim for interference with possessory rights pursuant to Chapter 42 of the

Texas Family Code. The claim under Chapter 42 was based on the temporary orders issued by the

Denton County court.

       After Lydia filed a counterclaim for divorce in the Maverick County lawsuit, Victor filed a

plea in abatement, asserting Denton County had dominant jurisdiction to consider the divorce

proceedings. Lydia responded that Victor’s filing of the lawsuit in Maverick County estopped him

from asserting that Denton County had dominant jurisdiction. The Maverick County court denied

Victor’s plea in abatement. Victor filed this appeal challenging the denial of the plea after the

Maverick County court signed a final divorce decree.

                                           DISCUSSION

       A trial court’s ruling on a motion to abate is reviewed under an abuse of discretion standard.

French v. Gilbert, No. 01-07-00186-CV, 2008 WL 5003740, at *4 (Tex. App.—Houston [1st Dist.]

2008, no pet.) (mem. op.); Hartley v. Coker, 843 S.W.2d 743, 748 (Tex. App.—Corpus Christi 1992,

no writ). 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. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001); In re Sims, 88 S.W.3d 297, 303 (Tex.


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App.—San Antonio 2002, orig. proceeding). Estoppel, however, is a long-established exception to

the general rule of dominant jurisdiction. In re Henry, 274 S.W.3d 185, 190 (Tex. App.—Houston

[1st Dist.] 2008, orig. proceeding [mand. denied]). Under this exception, a plaintiff who filed the

first suit may be estopped from asserting the dominant jurisdiction of the first court if the plaintiff

is guilty of inequitable conduct. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); In re Henry, 274

S.W.3d at 190-91. If raised, estoppel is a fact issue that must be determined by the trial court where

the plea in abatement is filed. Curtis, 511 S.W.2d at 267; In re Henry, 274 S.W.3d at 191.

        A party may be estopped from raising the dominant jurisdiction of a prior action by a variety

of conduct. Sweezy Construction, Inc. v. Murray, 915 S.W.2d 527, 532 (Tex. App.—Corpus Christi

1995, orig. proceeding [leave denied]). For example, Texas courts have found parties guilty of

inequitable conduct and have applied the estoppel exception where the plaintiffs in the first-filed

suit: (1) filed suit merely to obtain priority, without a bona fide intention to prosecute the suit; or (2)

prevented their adversaries from filing first by fraudulently representing that they would settle.

Curtis, 511 S.W.2d at 267; In re Henry, 274 S.W.3d at 191. In another case, a Texas court found

a plaintiff, who filed the same lawsuit in two different trial courts, was estopped from asserting the

dominant jurisdiction of the trial court where he first filed suit because he: (1) sought mandamus

relief to compel the trial court with the second-filed case to hold a hearing; and (2) expressly

represented in the mandamus petition that the trial court with the second-filed case conclusively

obtained jurisdiction of the cause of action. Howell v. Mauzy, 899 S.W.2d 690, 698 (Tex.

App.—Austin 1994, writ denied).

        In the instant case, the only ground asserted by Lydia as a basis to estop Victor from asserting

Denton County’s dominant jurisdiction was his filing of the Maverick County lawsuit which Lydia


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asserted involved “the very same factual issues that were pending in his previously-filed Denton

County Suit.” In her response to Victor’s plea in abatement, Lydia asserted, “In initiating the

Maverick County proceeding, [Victor] not only subjected himself to and actively invoked the

jurisdiction of [the Maverick County] [c]ourt, [but also] represented in his pleadings that [the

Maverick County] [c]ourt had jurisdiction to administer the lawsuit.” Thus, the issue presented to

the trial court was whether Victor’s filing of the Maverick County lawsuit made him guilty of such

inequitable conduct as would estop him from relying on the Denton County lawsuit to abate the

Maverick County lawsuit. See Curtis, 511 S.W.2d at 267.

        One of the claims Victor asserted in the Maverick County lawsuit was a cause of action under

Chapter 42 of the Texas Family Code for interference with possessory rights based on the temporary

orders issued by the Denton County court. Chapter 42 establishes a statutory cause of action for

damages against both: (1) a person who takes or retains possession of a child in violation of a

possessory right of another person; and (2) a person who aids or assists the person in such conduct.

TEX . FAM . CODE ANN . §§ 42.002, 42.003, 42.006 (Vernon 2008). “Possessory right” is defined as

a court-ordered right of possession of or access to a child, and order is defined to include a temporary

order of a Texas court. TEX . FAM . CODE ANN . § 42.001 (Vernon 2008). Section 42.008 expressly

provides that the cause of action is in addition to any other civil or criminal remedy available. TEX .

FAM . CODE ANN . § 42.008 (Vernon 2008). Finally, section 42.005 allows the suit to be filed in the

county in which the defendant resides. TEX . FAM . CODE ANN . § 42.005 (Vernon Supp. 2009).

        Given that Chapter 42 permitted Victor to file his claim for interference with possessory

rights in Maverick County, the trial court abused its discretion in finding that the filing of the lawsuit

made Victor guilty of such inequitable conduct as would estop him from asserting that Denton


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County had dominant jurisdiction over the divorce proceedings.              Therefore, the trial court

erroneously denied the plea in abatement because Denton County, where the divorce proceeding was

first filed, had dominant jurisdiction.1 See Curtis, 511 S.W.2d at 267.

          Because we must overturn the trial court’s ruling on the plea in abatement, we must also

reverse the final divorce decree which was signed after a jury found Lydia should be named sole

managing conservator and Victor should not be named a possessory conservator. Although we

appreciate that the reversal of the final divorce decree might appear inefficient and unfair, we are

bound by existing legal precedent that mandates this result. See V. D. Anderson Co. v. Young, 101

S.W.2d 798, 801 (Tex. 1937) (noting denial of plea in abatement is interlocutory order and can be

reviewed by appellate court after a final judgment is signed); In re Matter of Marriage of Pharr, 543

S.W.2d 433, 436 (Tex. Civ. App.—Corpus Christi 1976, no writ) (noting proper procedure for

challenging denial of a plea in abatement is to appeal ruling after final judgment is signed by trial

court).

                                             CONCLUSION

          The final divorce decree is reversed, and the cause is remanded to the trial court for further

proceedings.

                                                         Catherine Stone, Chief Justice




        … We note that whenever a suit for the dissolution of a marriage is filed, the Texas
          1

Family Code mandates that any suit affecting the parent-child relationship involving children
born or adopted of that marriage be joined with the dissolution suit or transferred to the court
where the suit for the dissolution of the marriage is filed. TEX . FAM . CODE ANN . §§ 6.406-6.407
(Vernon Supp. 2009).

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