in-re-western-rim-investors-2006-3-lp-western-rim-investors-2006-4 ( 2011 )

Motion Denied; Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 14, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-11-00587-CV

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IN RE WESTERN RIM INVESTORS 2006-3, L.P.,

WESTERN RIM INVESTORS 2006-4, L.P.,

WESTERN RIM INVESTORS 2006-5, L.P.,

WESTERN RIM INVESTORS 2007-1, L.P.,

MANSIONS CUSTOM HOMES III, LP,

CASCADES OF TYLER JOINT VENTURE, L.L.P.,

CASCADES OF TYLER HOMES JOINT VENTURE, L.L.P.

and MARCUS HILES , Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

270th District Court

Harris County, Texas

Trial Court Cause No. 2010-42061

M E M O R A N D U M   O P I N I O N

            On July 11, 2011, relators filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.  Relators complain that respondent, the Honorable Brent Gamble, presiding judge of the 270th District Court of Harris County, abused his discretion in refusing to continue the trial scheduled for July 18, 2011, and denying their motion to abate, which asserted dominant jurisdiction in Dallas County.  Relators also filed a motion for temporary relief asking that this court stay all proceedings in the trial court pending resolution of this proceeding.  See Tex. R. App. P. 52.10.

            The underlying dispute arose from the alleged breach of an agreement for the real party in interest, Arnie & Company, P.C., to provide forensic accounting services to relators in connection with a previous lawsuit.  Relators filed suit against the real party and others in Dallas County on June 15, 2010.  On July 8, 2010, the real party filed suit on a sworn account against relators in Harris County for collection of fees under the contract.  On December 16, 2010, the Harris County trial court denied relators’ motion to transfer venue to Dallas County.  The court then denied relators’ motion to abate on February 18, 2011.  On July 8, 2011, the count denied relators’ motion for continuance of the trial scheduled for July 18, 2011.  Relators then filed this petition for writ of mandamus and motion for stay.

            Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles, when there is no other adequate remedy by law.  See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).  A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).

            The denial of a motion for continuance is an incidental trial ruling ordinarily not reviewable by mandamus.  Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997).  Relators have not presented unique circumstances justifying extraordinary relief for complaints historically not subject to mandamus.  See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136-37 (Tex. 2004).

            Appeal also ordinarily provides an adequate remedy to review other incidental rulings, such as pleas in abatement.  Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988).  The Supreme Court has held that mandamus relief is not available to address a trial court’s refusal to abate a suit based on dominant jurisdiction unless there is a conflict in jurisdiction where one of the trial courts issues an order that actively interferes with the other court or enjoins the other from proceeding.  Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985); see also Hall v. Lawlis, 907 S.W.2d 493, 494 (Tex. 1995) (orig. proceeding) (“In the absence of such interference, the refusal to abate can be adequately reviewed on appeal

            Relators have not established entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relators’ petition for writ of mandamus and motion for temporary relief.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.