                                NO. 07-12-00152-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL A

                                    MAY 25, 2012


                       IN RE WILLIAM SKIP GRAY, RELATOR


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                             MEMORANDUM OPINION

       Relator William Gray seeks a writ of mandamus compelling respondent, the

Honorable Douglas R. Woodburn, judge of the 108th Judicial District Court of Potter

County, to vacate a writ of sequestration and the order granting its issuance.     He

asserts the execution of this process interferes with the dominant jurisdiction of the

181st Judicial District Court of Potter County. At our request, real party in interest

Plaska Transmission Line Construction, LLC filed a response. We will deny Gray’s

petition.


                                     Background


       Gray, Greg Jackson, and Ace Whelchel each claim a membership interest in

Plaska.     A dispute arose among these individuals concerning the company.         In

December 2011, Gray filed suit against Jackson and Whelchel in the 181st District

Court. The case was assigned cause number 99,190-B. By the action, Gray alleged
breach of contract and fraud. He sought an accounting and “an attachment lien upon all

assets”1 of Plaska. Jackson and Whelchel answered and filed a counterclaim against

Gray alleging breach of contract, fraud, and theft of property.2


         On March 1, 2012, Plaska filed suit against Gray in the 108th District Court of

Potter County.       The action was assigned cause number 100,410-E and by it the

company sought a judgment declaring that it was the owner of three pieces of

equipment. Plaska also requested sequestration of the equipment. Through an ex

parte order, the court ordered issuance of the writ of sequestration conditioned on a

bond of $1,000.


         The mandamus record contains a copy of a writ of sequestration signed by the

district clerk but the officer’s return, including the property description, is blank.

According to Plaska’s response to Gray’s mandamus petition, the sheriff executed the

writ and seized the equipment. Although not addressed in the documents appended to

its response, Plaska also tells us the equipment was delivered to Plaska and Gray has

not sought its replevy.3


         In response to Plaska’s 108th District Court pleadings, Gray filed a document

entitled “Plea to the Jurisdiction, Alternatively Plea in Abatement and Answer.” The

         1
          The mandamus record does not show the status of Gray’s attempt to obtain a
writ of attachment. See E.E. Maxwell Co., Inc. v. Arti Decor, Ltd., 638 F.Supp. 749, 753
(N.D. Tex. 1986) (prejudgment application applying Texas law).
         2
             Texas Theft Liability Act, Tex. Civ. Prac. & Rem. Code Ann. ch. 134 (West
2011).
         3
         See Tex. R. Civ. P. 701 (providing for replevy by defendant of sequestered
property and judicial review of the amount of the replevy bond).
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copy in the mandamus record contains no file stamp but bears a certificate showing its

service on March 5, 2012. Pointing to his prior filing of cause number 99,190-B, Gray

sought an order vacating orders issued in cause number 100,410-E, the return of

property subject to the writ of sequestration, and dismissal or abatement of the case.


      In a letter to the parties dated March 26, 2012, Judge Woodburn stated cause

number 100,410-E was abated “pending resolution or abandonment of Cause No.

99,190-B.” Gray was directed to prepare an order. Gray submitted three proposed

orders for Judge Woodburn’s consideration. The first vacated the writ and order of

sequestration, restored the equipment to Gray, and dismissed the case. The second

was like the first except it ordered abatement rather than dismissal of the case. The

third proposed order decreed that the 181st District Court in cause number 99,190-B “is

the dominant case to the exclusion of all other Courts and it is ordered that this case is

hereby ABATED pending further orders of this Court.” It did not provide for vacation of

the writ and order nor did it direct restoration of the equipment to Gray. On April 6,

2012, Judge Woodburn signed the third proposed order without elaboration.4


      In his mandamus petition, Gray does not object to the abatement of the 108th

District Court action. Indeed, he expressly requested such relief. Rather, his complaint

on mandamus is Judge Woodburn’s failure to vacate the writ of sequestration and the

order directing its issuance and failure to order the sequestered equipment restored to




      4
         Neither party filed the reporter’s record of the hearing Judge Woodburn held on
Gray’s motion. See Tex. R. App. P. 52.7(a)(2). Plaska states testimony was not offered
at the hearing.
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him.   He contends that by failing to take those actions the 108th District Court is

interfering with the dominant jurisdiction of the 181st District Court.


       A writ of mandamus will issue if the trial court committed a clear abuse of

discretion for which the relator has no adequate remedy at law. In re Laibe Corp., 307

S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per curiam).              A trial court clearly

abuses its discretion when it reaches a decision that is so arbitrary and unreasonable as

to constitute a clear and prejudicial error of law or if it clearly fails to correctly analyze or

apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig.

proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding)). A court may not resolve contested fact issues in an original mandamus

proceeding. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990).


       It was generally viewed that mandamus was not available to resolve questions of

dominant jurisdiction between two courts over the same case.               Hall v. Lawlis, 907

S.W.2d 493, 494 (Tex. 1995) (orig. proceeding) (per curiam). Mandamus would lie,

however, when the courts directly interfered with each other by issuing conflicting

orders. Id. (citing Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding); cf.

HCA Health Services v. Salinas, 838 S.W.2d 246, 247-248 (Tex. 1992) (orig.

proceeding) (per curiam) (when competing orders from first and second court held

litigation “deadlocked,” relators had no adequate remedy by appeal); In re Guerra &

Moore, L.L.P., 35 S.W.3d 210, 217 (Tex.App.--Corpus Christi 2000, orig. proceeding).

Mandamus now may have a more flexible application to questions of dominant

jurisdiction. See In re Exxonmobil Prod. Co., 340 S.W.3d 852, 858 (Tex.App.--San

                                               4
Antonio 2011, orig. proceeding) (following In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 136 (Tex. 2004) (orig. proceeding) and stating, “limiting mandamus relief as per

Abor precludes the flexibility of the remedy in plea in abatement cases because Abor’s

holding fails to account for any case-by-case consideration of the benefits and

detriments of mandamus review”).


       A trial court’s lack of dominant jurisdiction is properly asserted by a plea in

abatement. In re Puig, 351 S.W.3d 301, 303 (Tex. 2011) (orig. proceeding) (per curiam)

(citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247-48 (Tex. 1988)).                “An

abatement is a present suspension of all proceedings in a suit. The case is held in

suspended animation and may be revived when the reason for abatement is removed.

During abatement, the court and the parties are prohibited from proceeding in any

manner."    Campbell v. Kosarek, 44 S.W.3d 647, 650 (Tex.App.--Dallas 2001, pet.

denied) (citations omitted); In re Kimball Hill Homes Texas, Inc., 969 S.W.2d 522, 527

(Tex.App.--Houston [14th Dist.] 1998, no pet.); Lumbermens Mutual Casualty Co. v.

Garza, 777 S.W.2d 198, 199 (Tex.App.--Corpus Christi 1989, no pet.).


       The 108th District Court abated cause number 100,410-E on Gray’s motion and

nothing before us shows it or the parties have taken further action.          The claimed

interference with the jurisdiction of the 181st District Court comes not from the refusal of

the 108th to abate prosecution of Plaska’s suit, for this was done as Gray requested,

but its asserted refusal to vacate the order and writ of sequestration and restore

sequestered equipment to Gray.        As noted, nothing before us establishes that the

property was actually sequestered. If the property was sequestered, we are not shown

                                             5
undisputed facts requiring the property’s return to Gray’s possession. If the property

was sequestered, we are not shown or told why Gray may not seek its replevy in the

trial court. And if the property was sequestered, we are not shown or told how this has

affected Gray’s ability to obtain relief in the 181st District Court action.


       In short, on the record presented us, we can say neither that Judge Woodburn

has committed a clear abuse of discretion by signing one of the orders presented him

by Gray rather than the order granting all the relief Gray desires, nor that Gray has

demonstrated he has no adequate remedy at law if indeed he is entitled to possession

of the equipment. Either conclusion would require our resort to speculation or

supposition. See Frink v. Blackstock, 813 S.W.2d 602, 605 (Tex.App.--Houston [1st

Dist.] 1991, orig. proceeding) (“We will not issue a writ of mandamus when the petition

leaves us speculating about the justification for the requested coercive action”); Fisher

v. Harris County Republican Executive Comm., 744 S.W.2d 339, 340 (Tex.App.--

Houston [1st Dist.] 1988, orig. proceeding) (explaining extraordinary nature of remedy of

mandamus requires specific and positive averments in petition showing clear and

unqualified right to relief).


       Accordingly, Gray’s petition for writ of mandamus is denied.




                                                           Per Curiam




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