Court of Appeals of Texas, Amarillo.
In re Alice JENNINGS, Surviving Widow, and Trevor Jennings and Lela Jennings, Surviving Children of Joe Jennings, Deceased.
No. 07-97-0476-CV.
|
Jan. 21, 1998.
Before BOYD, C.J., and QUINN and REAVIS, JJ.
OPINION
DON H. REAVIS, Justice.
*1 By this original proceeding, relators, Alice, Trevor, and Lela Jennings, the surviving widow and children of the deceased, Joe Jennings, seek a writ of mandamus and prohibition to compel respondent, the Honorable David L. Gleason, Judge of the 47th District Court in Potter County, to: (1) vacate the order denying relators’ plea in abatement, (2) grant relators’ plea in abatement to the trial court’s jurisdiction, (3) vacate all orders which interfere with the jurisdiction of the 55th District Court in Harris County, including the trial setting, and (4) cease and desist from any act of interference with the dominant jurisdiction of the 55th District Court over the matter pending before that court in cause number 96-217,254. We conclude that under applicable principles of law, the petition for writ of mandamus and prohibition must be denied.
On April 28, 1996, Joe Jennings, an employee of Petroleum Gas Products, Inc., a/k/a Mid-Con Gas Corp. (hereafter PGP), was in the process of filling a tanker truck, owned by his employer, with condensate at the Turkey Creek Gas Plant near Fritch, Texas, when an explosion occurred. The explosion killed Jennings and injured Willie Thrash, an employee of American Processing L.P., the owner of the gas plant.1
On May 2, 1996, the Texas Workers’ Compensation Insurance Fund (the TWCIF), which insured PGP, filed suit in the 47th District Court in Potter County, in the name of the relators, seeking a declaratory judgment, and injunctive relief against KN Energy Inc., in its capacity as owner of the Turkey Creek Gas Plant. Shortly thereafter, American Processing L.P. intervened contending that PGP, through the negligence of its own employee, Jennings, caused the explosion. American Processing L.P. also requested that the TWCIF show its authority to bring its action in the interest of relators.
On May 13, 1996, the TWCIF filed its response to the motion to show authority, and it was determined by respondent that, because of statutory subrogation rights, the TWCIF’s action was properly filed in the name of the relators. On May 15, 1996, American Processing L.P. filed an amended third party petition naming PGP, the TWCIF, and relators as third party defendants. The TWCIF was served with process, but no service was attempted on relators. On May 31, 1996, the TWCIF filed notice of non-suit in the 47th District Court in Potter County.
On the same day that the TWCIF non-suited its case in the 47th District Court, relators filed suit in the 55th District Court in Harris County alleging negligence on the part of KN Energy, American Processing L.P., and American Oil & Gas, a/k/a AOG Management, Inc., n/k/a American Pipeline Co. (the plant owners), in causing the death of Jennings.
On June 27, 1996, Thrash filed a plea in intervention in the 47th District Court against PGP, the owners of the truck, alleging negligence, and seeking compensation for the personal injuries he sustained in the explosion. Subsequent to Thrash’s intervention in the 47th District Court, the plant owners filed a plea in abatement and a motion to transfer venue in the 55th District Court in Harris County claiming that, because suit was initially filed in the 47th district Court, it had dominant jurisdiction.
*2 In October 1996, after non-suiting its action in the 47th District Court, the TWCIF intervened in the suit previously filed by relators in the 55th District Court in Harris County. On December 11, 1996, and in the 55th District Court, relators filed a plea in opposition to the plant owners’ plea in abatement contending generally that fact issues of estoppel and lack of intent to prosecute the suit in the 47th District Court vested dominant jurisdiction in the 55th District Court. On February 6, 1997, the 55th District Court denied the plant owners’ plea in abatement.
Following the denial of the plant owners’ plea in abatement by the 55th District Court, relators filed a plea in abatement in the 47th District Court alleging that dominant jurisdiction was with the 55th District Court. On July 2, 1997, the 47th District Court realigned the parties as follows: Willie Thrash and American Processing L.P. v. PGP, the TWCIF, and relators, defendants. Eight days later, respondent signed an order denying relators’ motion to abate. On October 27, 1997, relator preferentially set the case for trial on December 15, 1997.2 Finally, on December 4, 1997, respondent apparently denied relators’ motion to reconsider the denial of their plea in abatement. He simultaneously denied their motion for continuance and motion for severance, but no order was signed.
On December 10, 1997, contending that the 47th District Court had abused its discretion in denying their plea in abatement, relators filed a petition for writ of mandamus and prohibition, and moved for a temporary emergency stay requesting that the December 15, 1997, trial setting in the 47th District Court in Potter County be stayed. We granted the motion for temporary emergency stay of the trial setting in the 47th District Court and, in accordance with Texas Rule of Appellate Procedure 52.8, we requested responses from the real parties in interest, and set the case for oral argument. Having received the requested responses and heard the arguments of various counsel, we set forth our reasons for denying relators’ petition for a writ of mandamus and prohibition.
DISCUSSION
Initially, we consider relators’ request that we issue a writ of prohibition against the 47th District Court. Under Texas Government Code section 22.221(a), when our jurisdiction has been invoked by an ordinary appeal, we may issue a writ of mandamus, “and all other writs necessary to enforce the jurisdiction of the court.” Tex. Gov.Code Ann. § 22.221(a) (Vernon 1988). However, in an original proceeding we do not have the broader authority to issue a writ of prohibition. Tex. Gov.Code Ann. § 22.221(b) (Vernon Supp.1998); Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, 578 (1914). In order for us to have jurisdiction to issue a writ of prohibition, an ordinary appeal must have been perfected. Bayoud v. North Cent. Inv. Corp., 751 S.W.2d 525, 529 (Tex.App.-Dallas 1988, writ denied). Because relators bring an original proceeding and not an ordinary appeal, their petition for a writ of prohibition is denied. Seal v. Ashmore, 589 S.W.2d 812, (Tex.Civ.App.-Dallas 1979, orig. proceeding); Shelvin v. Lykos, 741 S.W.2d 178, 181-82 (Tex.App.-Houston [1st Dist.] 1987, orig. proceeding).
*3 We now turn to relators’ petition for mandamus relief. In Hall v. Lawlis, 907 S.W.2d 493 (Tex.1995), the Supreme Court declined to issue mandamus relief from a refusal by the trial court to abate. Relying on Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985), the Supreme Court adhered to the rule that it would not review by mandamus, the refusal of a trial court to abate an action based upon the pendency of another action, “unless the courts were directly interfering with each other by issuing conflicting orders or injunctions.” Hall v. Lawlis, 907 S.W.2d at 494. Unlike the facts presented in Home Sav. Ass’n v. Bevers, 745 S.W.2d 504 (Tex.App.-Amarillo 1988, orig. proceeding), the 47th District Court has not issued any orders or injunctions which conflict with the 55th District Court. Because the 47th and 55th District Courts are not directly interfering with each other, relators are not entitled to mandamus relief from the 47th District Court’s refusal to abate its proceeding. Hall v. Lawlis, 907 S.W.2d at 494.
Moreover, although the pending litigation in both the 47th and 55th District Courts arises from the same explosion, there is no complete identity of parties and controversies between the two suits. Mandamus may be available where the subsequent suit involves the same parties and the same controversy, Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974), but the extraordinary writ of mandamus is not available here because Thrash and PGP are only parties in the 47th District Court, not in the 55th District Court. See Dolenz v. Continental Nat. Bank of Fort Worth, 620 S.W.2d 572, 575 (Tex.1981). Furthermore, although relators’ and Thrash’s negligence claims arise out of the same explosion, they seek relief against different parties, therefore the controversies are not the same. See Home Sav. Ass’n v. Bevers, 745 S.W.2d 504, 510 (where, in addition to involving common parties, a determination of the questions in the Dallas County suit would have been determinative of the questions raised in the Lubbock County proceedings). Here, a verdict in the 55th District Court will not be determinative of Thrash’s claims in the 47th District Court against PGP. Therefore, we hold that under this record, respondent did not act arbitrarily or unreasonably in denying relators’ plea in abatement. Dolenz v. Continental Nat. Bank of Fort Worth, 620 S.W.2d at 575.
Finally, because respondent’s ruling on relators’ plea in abatement was an incidental ruling, and because relators’ have an adequate remedy at law by appeal to correct this incidental ruling, mandamus is inappropriate. Abor v. Black, 695 S.W.2d at 566-67.
Consequently, relators’ petition for mandamus and prohibition is denied.
Footnotes |
||
|
1 |
The record does not clearly indicate who owns, operates, and controls the Turkey Creek Gas Plant, but apparently, KN Energy Corp. is affiliated with, and has the power to exercise control over, American Processing L.P., who’s general partner is AOG Management Inc., a/k/a American Oil & Gas, n/k/a American Pipeline Co., and as a group they own and operate the plant. |
|
|
2 |
The 55th District Court in Harris County set the case for trial the week of January 5, 1998. |
|