Southern County Mutual Insurance Company and Trinity Universal Insurance Company v. Ochoa, David ( 2000 )

NUMBER 13-98-469-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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SOUTHERN COUNTY MUTUAL INSURANCE

COMPANY AND TRINITY UNIVERSAL

INSURANCE COMPANY , Appellants,

v.

DAVID OCHOA, ET AL. , Appellees.

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On appeal from the 332nd District Court

of Hidalgo County, Texas.

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OPINION ON MOTION FOR REHEARING

Before Chief Justice Seerden and Justices Dorsey and Chavez

Opinion on Motion for Rehearing by Chief Justice Seerden

This Court's opinion of March 2, 2000, held that the trial court erred in granting summary judgment in favor of the Ochoas. We thus reversed and remanded this matter to the trial court. In so doing, however, we concluded that the trial court did not err in denying Trinity's plea in abatement based on dominant jurisdiction. In its motion for rehearing, Trinity has asked that we reconsider our opinion regarding its plea in abatement.

We review the trial court's action in granting or denying a plea in abatement using an abuse of discretion standard. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988).

In order to establish that Williamson County had dominant jurisdiction, Trinity was required to allege and prove: (1) the Williamson County suit was commenced first; (2) it was still pending; (3) the same parties were involved; and (4) the controversies were the same. Wyatt, 760 S.W.2d at 248. However, Williamson County would not have dominant jurisdiction if the parties in the Williamson County lawsuit lacked intent to prosecute that action. Wyatt, 760 S.W.2d at 248.

In considering this issue, we found that the trial court did not abuse its discretion by denying the plea in abatement based on Trinity's delay in service, showing Trinity's lack of intent to prosecute the lawsuit in Williamson County. Our opinion relied, in part, on the fact that Trinity failed to establish that the Texas Supreme Court had stayed the Williamson County action, thus excusing Trinity's failure to exercise reasonable diligence in prosecuting that suit.

On motion for rehearing, Trinity brings forward a certified copy of the stay order issued by the Supreme Court in the appendix to its motion for rehearing, and has further requested the preparation of a supplemental clerk's record containing the above-referenced order. Trinity also refers this Court to the reporter's record wherein counsel for Trinity referenced the stay order in argument to the trial court. Trinity argues that the stay order precluded Trinity from taking any action to prosecute the Williamson County suit during the pendency of that stay order, and thus Trinity exercised reasonable diligence in prosecuting the Williamson County suit. Therefore, Trinity argues that because no exception to dominant jurisdiction applies in this case, the trial court abused its discretion in denying Trinity's plea in abatement.

Trinity originally filed the Williamson County action on December 10, 1997, naming only Ronnie D. Bleeker as a defendant. By its first amended original petition, filed on December 19, 1997, Trinity added the Ochoa and Villarreal families as defendants. Trinity did not request service on any defendant. The first amended original petition specifically states that no citations were requested at that time. Bleeker was ultimately served on February 4, 1998. The Texas Supreme Court pronounced its stay order on February 14, 1998, and lifted the stay on April 14, 1998. Trinity's motion for rehearing was overruled by the Texas Supreme Court on June 5, 1998. Citation was not requested or service completed on any of the other defendants until June 10, 1998.

Even if we were to assume that Trinity's supplementation of the record is timely and proper, Trinity has failed to establish that it properly commenced suit in Williamson County and that it intended to prosecute that suit. In short, the duration of the stay order is not coexistent with the periods of delay in service. Trinity did not request the issuance of citation from December 19, 1997, when the amended petition was filed, to February 14, 1998, when the stay order was pronounced. In argument, Trinity contended that the plaintiff's addresses were unknown and that it was in the process of investigation, however, the record does not contain any evidence substantiating this argument. Further, Trinity did not request citation from April 14, 1998, when the stay order was pronounced, until June 10, 1998, yet Trinity could have issued citation while its motion for rehearing was pending.

Moreover, the record contains additional evidence supporting the trial court's denial of the plea in abatement. The first amended original petition in the Williamson County action explicitly directs that no issuance of service of citation be made to any defendant. The mere filing of a petition does not fulfill the requirement of commencement of a suit for the purposes of abatement. See Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737 (1932)(suit will not be commenced where plaintiff does not intend that process be immediately issued and served). Further, the record reflects that Trinity had previously filed a similar declaratory judgment action in Williamson County which was dismissed for want of prosecution in 1995.

Trinity had the burden of proof to establish the allegations in its motion to abate. Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex. 1966). We conclude that

Trinity has failed to establish that the trial court abused its discretion in denying its plea in abatement.

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ROBERT J. SEERDEN, Chief Justice

Publish .

Tex. R. App. P. 47.3.

Opinion on Motion for Rehearing delivered

and filed this 11th day of May, 2000.