Opinion issued May 14, 2013




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-12-01134-CV
                            ———————————
   IN RE BIG MOUNTAIN TRADING CO., LLC D/B/A TURBO MECH
 INTERNATIONAL, GARY BATEMAN, SR. AND GARY BATEMAN, JR.,
                         Relators



            Original Proceeding on Petition for Writ of Mandamus



                        MEMORANDUM OPINION

      On December 14, 2012, relators, Big Mountain Trading Co., LLC d/b/a

Turbo Mech International (“Turbo Mech”), Gary Bateman, Sr. and Gary Bateman,

Jr., filed a petition for writ of mandamus, complaining that the trial court erred in

denying their plea to the jurisdiction and plea in abatement, and requesting

sanctions against the real party in interest, IMMI Turbines, Inc. (“IMMI”). IMMI

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filed a response on June 7, 2012 and a supplemental response and request for

sanctions against Turbo Mech on February 27, 2013.1

                                  Background

      On August 15, 2011, Big Mountain Trading Co., LLC, d/b/a Turbo Mech

International, filed a lawsuit in Montgomery County, alleging numerous causes of

action against IMMI in connection with (1) a 2009 services contract in which

IMMI agreed to inspect and service certain solar turbine engines that Turbo Mech

was refurbishing for Dubai Petroleum Establishment as part of the Falah B Project,

and (2) an exchange engine project.

      On November 8, 2011, IMMI filed suit in Harris County against “Turbo

Mech International, Inc.,” its director and president (the Batemans), and others

asserting, inter alia, claims for breach of contract arising out of Turbo Mech

International, Inc.’s failure to pay IMMI for its work in connection with the Falah

B project and other supply agreements.

      On December 13, 2011, Relators filed a plea to the jurisdiction and verified

plea in abatement. In their plea in abatement, Relators argued that IMMI had sued

the wrong defendants in the Harris County suit. According to Relators, IMMI

erroneously named “Turbo Mech International, Inc.,” and the Batemans in their

1
      The underlying case is Case No. 2011-67559, IMMI Turbines, Inc. v. Big
      Mountain Trading Co., LLC d/b/a Turbo Mech International, et al, pending in
      80th District Court, Harris County, the Honorable Larry Weiman, presiding.

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capacity as its director and president of that fictitious company when IMMI should

have sued Big Mountain Trading Co., LLC, d/b/a Turbo Mech International. In

their plea to the jurisdiction, Relators argued that the Harris County court lacked

subject-matter jurisdiction over IMMI’s petition because (1) the Montgomery

County court had “exclusive and continuing jurisdiction” over the matter, (2) there

was no justiciable issue before the Harris County court, and (3) there was a

“question of who has standing to bring suit and who has capacity to be sued.”

      After conducting three evidentiary hearings, the trial court denied both

pleas.2 On December 14, 2012, Relators filed this petition for writ of mandamus

asking the Court the dismiss the Harris County suit and order IMMI to bring its

counterclaims in the Montgomery County suit or, alternatively, to abate the Harris

County suit until such time as IMMI sues the correct parties.

      On January 24, 2013, Turbo Mech amended its petition in the Montgomery

County suit to remove any allegations or claims relating to the Falah B Project—

which is the subject of the Harris County suit. IMMI amended its petition in the

Harris County suit in February 2013 and added Big Mountain Trading Co., LLC,

d/b/a Turbo Mech International as a defendant.

                               Mandamus Standard

      The standard for the issuance of a writ of mandamus is well established.


2
      No transcripts from these hearings are included in the mandamus record.
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Mandamus relief is appropriate only if a trial court abuses its discretion and no

adequate appellate remedy exists. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.

2003) (per curiam); see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary,

L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding) (“Mandamus should not

issue to correct grievances that may be addressed by other remedies.”). The relator

bears the heavy burden of establishing his or her right to mandamus. See In re

CSX Corp., 124 S.W.3d at 151.

   1. Relators have not established their right to mandamus relief

            a. Relators’ Plea to the Jurisdiction

      In their plea to the jurisdiction, Relators argued that the Harris County court

lacked subject-matter jurisdiction over IMMI’s petition because (1) the

Montgomery County court had “exclusive and continuing jurisdiction” over the

matter, (2) there was no justiciable issue before the Harris County court because

IMMI and “Turbo Mech International, Inc.” never had a business relationship, and

in fact, “Turbo Mech International, Inc.” dissolved before IMMI came into

existence, and (3) the fact that IMMI was suing a company that (a) it had never

done business with, and (b) that dissolved in 2007 and lost its corporate standing

“beg[ged] the question of who has standing to bring suit and who has capacity to

be sued.”




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      Subject-matter jurisdiction refers to a court’s power to hear a particular type

of suit. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). Texas district courts

are courts of general jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75

(Tex. 2000). A district court’s subject-matter jurisdiction “consists of exclusive,

appellate, and original jurisdiction of all actions, proceedings, and remedies, except

in cases where exclusive, appellate, and original jurisdiction may be conferred by

this Constitution or other law on some other court, tribunal, or administrative

body.” TEX. CONST. art. V, § 8; see also TEX. GOV’T CODE ANN. § 24.007 (West

Supp. 2012) (granting jurisdiction to district courts as provided in Texas

Constitution article V, section 8). A district court may hear any case “that is

cognizable by courts of law or equity and may grant any relief that could be

granted by either courts of law or equity.” TEX. GOV’T CODE ANN. § 24.008 (West

2004).    Courts of general jurisdiction are presumed to have subject-matter

jurisdiction unless a showing can be made to the contrary. Dubai, 12 S.W.3d at

75. Thus, the Harris County and the Montgomery County district courts each had

subject-matter jurisdiction over their respective civil business suits.

      Contrary to Relators’ characterization of this case, neither court had

exclusive subject-matter jurisdiction; each had concurrent subject-matter

jurisdiction. Thus, the question presented by the Harris County and Montgomery

County suits is one of dominant jurisdiction, not “exclusive and continuing

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jurisdiction.” As a general rule, when cases involving the same subject matter and

same parties are brought in different courts, the court with the first-filed case has

dominant jurisdiction, and the other case should be abated. See 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). To contest a court’s lack of dominant jurisdiction

requires the filing of a plea in abatement, not a plea to the jurisdiction. See In re

Puig, 351 S.W.3d 301, 306 (Tex. 2011) (orig. proceeding).

      Accordingly, Relators’ first issue was required to have been raised as part of

their plea of abatement. Further, Relators second and third issues are variations of

the argument raised in their plea of abatement (i.e., IMMI sued the wrong “Turbo

Mech International”). Accordingly, we will address the issues raised in Realtors’

“plea to the jurisdiction” as part of their plea of abatement.

          b. Relators’ Plea of Abatement

      Generally, mandamus is not available to control the incidental rulings of a

trial court, such as rulings on pleas in abatement. Abor v. Black, 695 S.W.2d 564,

566–67 (Tex. 1985); see also Hooks v. Fourth Court of Appeals, 808 S.W.2d 56,

59 (Tex. 1991) (orig. proceeding) (“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.”).

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      Remedy by mandamus, however, is available to resolve a conflict in

jurisdiction between courts of coordinate jurisdiction when the trial court first

taking jurisdiction has been stopped from proceeding (e.g. when the second court

enjoins the parties from taking any more action in the first court). See Abor, 695

S.W.2d at 567. As the Harris County trial court has not prohibited another court

from proceeding, mandamus is not an appropriate remedy in this case. See id.

Because the Harris and Montgomery County courts are not directly interfering with

each other, Relators have an adequate remedy by appeal. See In re Ramsey, 28

S.W.3d 58, 63–64 (Tex. App.—Texarkana 2000, orig. proceeding).

      With respect to their other issues, Relators have not shown that IMMI’s

erroneous naming of “Turbo Mech International, Inc.” as a defendant in the Harris

County suit constitutes the type of “extraordinary circumstances” which would

entitle them to mandamus relief.

   2. Sanctions

      Both Relators and IMMI have asked this Court to sanction the other. Texas

Rule of Appellate Procedure 52.11(a) authorizes the imposition of sanctions

against party or attorney who is not acting in good faith as indicated by, inter alia,

the “filing a petition that is clearly groundless.” TEX. R. APP. P. 52.11(a). “An

appellate court should exercise the discretion afforded by Rule 52.11 with caution

and only after careful deliberation.” In re Cooper, 320 S.W.3d 905, 911 (Tex.

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App.—Texarkana 2010, orig. proceeding); see also In re Lerma, 144 S.W.3d 21,

26 (Tex. App.—El Paso 2004, orig. proceeding).

         a. Relators’ Request for Sanctions

      Relators contend that IMMI relied upon “Turbo Mech International, Inc.” in

“a fraudulent attempt to convey jurisdiction on a Harris County court,” and they

are requesting “reasonable and necessary attorney’s fees for the filing of the plea to

the jurisdiction as sanctions for IMMI’s filing of a frivolous lawsuit.” 3 Notably,

Relators’ own documents filed in this mandamus indicate that the proper party to

IMMI’s Harris County suit—Turbo Mech—has its principal office in Houston,

Texas. In light of this information, we disagree that IMMI’s suit is “frivolous”

and, we decline to exercise our discretion to impose sanctions against IMMI.

         b. IMMI’s Request for Sanctions

      In its supplemental response, IMMI argues that Turbo Mech’s recent

admission that the Montgomery County and Harris County suits are separate and

independent demonstrates that Turbo Mech’s petition for mandamus is clearly

groundless and IMMI asks this Court to “impose appropriate sanctions” on this

basis. See TEX. R. APP. P. 52.11(a) (authorizing imposition of sanctions against

party or attorney “for filing a petition that is clearly groundless”). IMMI, however,

previously acknowledged in its initial response that at the time Turbo Mech filed
3
      This is the extent of Relators’ sanctions argument. They have provided no
      citations to authority or any meaningful discussion or analysis of the issue.

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its pleas and its mandamus, Turbo Mech was asserting claims associated with the

Falah B project in its Montgomery County suit. As such, the facts in this case do

not warrant the imposition of sanctions and we decline to exercise our discretion to

impose sanctions against Relators.

                                     Conclusion

      The petition for writ of mandamus and both requests for sanctions are

denied.

                                     PER CURIAM

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Huddle, concurring in judgment only.




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