See Dawson-Austin v. Austin, S. Frost Bank ignores the rest of Sims's responsive pleadings in the Medina County lawsuit where she expressly states that her answer and counterclaims are "subject to the jurisdiction and plea in abatement. Based upon the record, we conclude that Sims did not submit to the jurisdiction of the County Court at Law in Medina County and waive the issue of dominant jurisdiction in this proceeding.
Starnes, S. Finally, Frost Bank contends that Sims waived her claim for mandamus relief because she served Frost Bank with discovery in the declaratory judgment action in Medina County. Once again, Frost Bank fails to cite any authority for its contention. The record reflects that after the Bexar County District Court granted Frost Bank's plea in abatement, Sims sent requests for disclosures and requests for production to Frost Bank in the Medina County case.
Sims expressly stated that her discovery was "subject to her Plea to the Jurisdiction and Plea in Abatement. See Case v. Grammar, 31 S. Further, other Texas courts have held that a party does not waive a special plea even if it seeks the trial court's protection from the discovery process.
See Indus. State Bank of Houston v. Eng'g Serv. In light of this precedent, we conclude that Sims did not acquiesce to the court's jurisdiction in Medina County and waive the issue of dominant jurisdiction. Frost Bank also contends that this court should deny Sims's petition on the basis that she has adequate legal remedies.
Black wherein the Court stated that appellate courts generally lack jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial judge when there is an adequate remedy on appeal. Incidental rulings include a trial court's rulings on a plea in abatement. In Abor, the relator had filed a wrongful death action against a pharmaceutical company. That suit was subsequently removed to federal court and ultimately dismissed.
When no suit was pending, one of the defendants in the first lawsuit filed a declaratory judgment action in Bell County, Texas, in which the pharmaceutical company intervened. The relator then refiled her wrongful death action in Harris County. She also filed a plea in abatement in the Bell County lawsuit which was ultimately denied. On appeal, the Texas Supreme Court commented that the Bell County court should have declined to exercise jurisdiction; however, it refused to grant Abor's petition on the basis that Abor had a remedy on appeal to correct the trial court's error in denying the plea.
Hunter, S. Unlike the facts in Curtis v. Gibbs , the court noted that the Bell County court had done nothing to actively interfere with the exercise of jurisdiction in the Harris County District Court. Following Abor, this court refused to grant mandamus relief when a trial court denied a plea in abatement in a lawsuit despite the existence of a pending lawsuit which had been previously filed containing the same parties and issues.
See Allstate Ins. Garcia, S. We held so on the basis that the trial court in the first suit had not been prevented from proceeding nor had refused to proceed to trial. When the Bexar County District Court granted Frost Bank's plea in abatement, it effectively denied Sims any other method of challenging its ruling for an indefinite period of time. See Trapnell, S. Because a trial court may not arbitrarily suspend the trial proceedings, mandamus will lie to compel a trial court to proceed to trial and judgment in a case pending in his or her court.
On this basis, we hold that Sims has no adequate remedy on appeal. We sustain Sims's sole issue. We hold that respondent had no discretion to grant Frost Bank's plea in abatement and that mandamus is available to correct this extraordinary type of plea in abatement case. We conditionally grant Sims's petition for writ of mandamus.
A writ will issue only if respondent fails to vacate his order of abatement within ten 10 days from the issuance of this opinion. Given the fact the Bexar County District Court granted Frost Bank's plea, it did not hear and rule on the motion for temporary orders filed by Sims. A court empowered with probate jurisdiction may only exercise its probate jurisdiction over matters incident to the estate when a probate proceeding relating to such matter is already pending in that court.
See Bailey v. Cherokee County Appraisal Dist. Dembrinski, 12 S. The record clearly reflects that probate proceedings were not pending when Sims filed suit. As noted above, Sims was free to do this given the fact that she had filed her lawsuit first. In Dawson-Austin , one of the issues the Texas Supreme Court faced was whether the appellant had made a general appearance for purposes of negating her special appearance.
Construing Rule a of the Texas Rules of Civil Procedure, the Court concluded that the appellant's motion to quash, plea to the jurisdiction and plea in abatement did not constitute a general appearance even though the appellant failed to state the motion and pleas were "subject to" her special appearance. In the instant matter, unlike the appellant in Dawson Austin , Sims expressly conditioned her answer and counterclaims on her plea in abatement. Your Notes edit none. Cited By 26 This case has been cited by other opinions: Griffith v.
Sonic Systems Intern. Authorities 14 This opinion cites: Walker v. Black, S. Please support our work with a donation. Court of Appeals of Texas, San Antonio. Already own a Sims 3 game? Please register your game and get full access to the site's features.
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Newsfeed RSS. Message 3 of 21 7, Views. June - last edited June If you find a lawyer willing to take such an obviously frivolous case, you will have deserved each other.
Message 4 of 21 7, Views. IF I tasked a Plumber to fix my buildings plumbing, then I expect him to do his job. IF I hired a Mechanic to fix my car, then he should do so personally shut down some garages that deliberately sabotaged their customers cars so they would return to them. IF anybody disagrees with me, then welcome to Communist Russia.
Message 5 of 21 7, Views. Vladimir Lenin, here So let me get this straight, someone hacked your game not the publisher's fault then. How would it be possible to 'roll-back' game progress and achievements exactly? And what exactly are you making a case 'about'? Old timer. Helping out here does not mean I work for EA so I don't have all the answers. Also hangs out on BSN. Message 6 of 21 7, Views. June Be prepared to pay, I doubt a lawyer will take such a case on contingency.
Message 7 of 21 7, Views. Does no one read these? Message 8 of 21 7, Views. Less Than One Person In " [ Source ] Irrespective of that, I'm increasingly doubtful that this thread can offer much to the more recent 'concerned' poster other than, "mmm, ok
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