Defendant Trips in the Dance of Dominant Jurisdiction, But Gets Relief from Overbroad Discovery

In August 2014, Air Liquide Industrial, U.S. sent Gulf Coast Fabricators notices that four of its sources of argon had temporarily ceased production and declared a “Force Majeure Period” during which Air Liquide estimated it could provide seventy percent of Gulf Coast’s normal monthly product consumption.   On September 14, 2014, Gulf Coast files suit in the Jefferson County Court at Law Number One for a determination that the contract’s “Excuse of Performance” provision does not apply, that Gulf Coast has fully complied with its obligations under the agreement, that Gulf Coast has not breached the agreement, and that Gulf Coast and Air Liquide have no more continuing obligations under the contract. On October 14, 2014, Air Liquide sued for breach of contract in the 157th District Court of Harris County. On January 23, 2015, Air Liquide Large Industries, U.S., an affiliate of Air Liquide was sued for breach of contract in Jefferson County's 172nd District Court. Gulf Coast files a motion to abate in the Harris County case, but that court denied abatement.

Now, Gulf Coast moves to abate the County Court at Law case in the Harris County court, but is denied.

Air Liquide pleads in the County Court at Law that it-- the Court-- lacks jurisdiction and complains there of overbroad discovery. The County Court at Law maintained its jurisdiction and refused to limit the discovery, and Air Liquide  moves for a writ of mandamus in the Ninth Supreme Judicial District.

Where a dispute arises that could be tried in a number of courts, the rule that determines which of the courts have dominant jurisdiction is summarized in Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, (Tex. 1988).  The general rule is that the case which is filed first has dominant jurisdiction. There are three exceptions in Wyatt:

• A plaintiff could lose the dominant jurisdiction by acting inequitably.
• A court of subsequent filing could overcome the dominant jurisdiction of the court of first filing if a party is not part of the case of that first-filed change and cannot be joined.
• A plaintiff could lose the dominant jurisdiction if it does not have the intent to prosecute the first-filed case.

The second court can take dominant jurisdiction if it finds that a Wyatt exception. Clawson v. Millard, 934 S.W.2d 899 (Tex. App.—Houston [1st Dist.] 1996) (orig. proceeding). “The proper method for contesting a court’s lack of dominant jurisdiction is the filing of a plea in abatement, not a plea to the jurisdiction[.]” In re Puig, 351 S.W.3d 301 (Tex. 2011) (orig. proceeding). The Beaumont appeals court held that the county court at law still had dominant jurisdiction, at least until an appeals court overturned the Harris County court's decision. The appellate courts for Harris County are the First and Fourteenth Courts of Appeal, while Beaumont's court of appeals supervise Jefferson County.

The per curiam judgment of  Justices Charles Kreger, Hollis Horton, and Leanne Johnson did not overturn the dominant jurisdiction, but did order the County Court at Law to curtail some of Gulf Coast's discovery requests-- no big surprise, since Gulf Coast's counsel admitted that some of the discovery requests were overbroad.

The court of appeals gave no opinion as to whether the suit in the County Court at Law was within the economic value of the county court at law's jurisdiction. The amount of the damages as to the County Court action was not mentioned. This may be why Air Liquide's motion was against that court's jurisdiction instead of its dominance.

In re Air Liquide Industrial U.S., L.P.,No. 09-15-00111-CV, (Tex. App.-- Beaumont, Apr.28, 2015)  (per curiam) (orig. proceeding).