15-25-00016-CV
Tex. App.Feb 11, 2025Background
- November 27, 2023: Allen Lawrence Berry filed the first suit (later transferred to Nueces County) alleging self-dealing by his brothers and seeking TRO/temporary injunction concerning numerous Berry-related companies and real property (including Axis Midstream, Redfish Bay properties, and CPH leasehold).
- January 2024: Marty, Berry GP, and related Berry entities filed counterclaims in the Nueces action seeking declaratory relief under TCPRC Ch. 37 and claims for conversion, breach of fiduciary duty, fraud, and return/voiding of transfers (including alleged transfers involving Axis/Lone Star). Extensive discovery followed about ownership, governance, and financials of Axis, Lone Star, Midway, etc.
- October 31, 2024: Allied Ports LLC and Ted Powers (aligned with Lawrence) filed a second suit in Harris County (removed to Business Court) seeking injunctive relief and obtained an ex parte TRO that restrained meetings, management changes, and transfers related to the Project entities (Axis, RFB, CPH, etc.).
- November 8, 2024: Marty and Axis filed a Plea in Abatement in the Harris action arguing the Nueces County (first-filed) case has dominant jurisdiction because both suits are inherently intertwined (ownership/control of the same companies and property).
- January 17, 2025: The Business Court (Judge Sofia Adrogue) entered an Order denying the Plea in Abatement. Relators (Marty and Axis) petitioned the Fifteenth Court of Appeals for mandamus relief to vacate that denial and to abate the Harris County action in favor of the first-filed Nueces action.
- Central factual/legal overlap: both suits center on ownership and governance of Axis, the RFB land used for the Axis/LSP project, and CPH leasehold interests; state filings and franchise reports show GP asserting 100% ownership/control of Axis, while Powers/Allied claim competing ownership through LSPE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Harris County action must be abated because a first-filed Nueces County action has dominant jurisdiction | Allied/Powers/Lawrence: the Harris suit raises distinct contract-based claims and does not duplicate or interfere with Nueces; no dominant jurisdiction | Marty/Axis/GP: the cases are inherently intertwined over Axis ownership, RFB land and governance; first-filed rule gives Nueces dominant jurisdiction and the Harris action should be abated | Business Court denied the Plea in Abatement (order entered Jan 17, 2025); relators seek mandamus to vacate that denial |
| Whether the scope of the first-filed action extends to claims/parties added later (i.e., whether first-filed can be amended to include necessary parties/claims) | Allied/Powers: contend first-filed does not control all issues between different parties and claims here | Marty/Axis: Texas law allows the first-filed court to amend/add necessary parties and claims; dominant jurisdiction covers issues that can be brought in that action | Trial court ruled against abatement despite relators’ argument that first-filed pleadings/discovery already encompass Axis-related claims; relators assert this is error |
| Whether injunctive relief sought in Harris County conflicts with or duplicates relief considered/decided in Nueces County (risk of conflicting orders) | Allied/Powers: say the requested injunctive relief can be crafted not to interfere with Nueces rulings and is contract-centered | Marty/Axis: TRO2 sought broader restraints that conflict with Judge Galvan’s order in Nueces (which allows internal governance actions subject to 48-hour notice); proceeding in Harris risks conflicting orders | Business Court allowed Harris proceedings to continue (TRO2 initially issued ex parte); relators argue the denial of abatement permits conflicting jurisdiction and is an abuse of discretion |
| Whether mandamus is the proper remedy to challenge denial of a plea in abatement | Allied/Powers: likely contend mandamus is not warranted unless clear abuse of discretion; ordinary appeal may suffice | Marty/Axis: contend denial of abatement causes irreparable jurisdictional injury and mandamus is appropriate to protect first-filed court’s dominant jurisdiction | Relators petitioned the appellate court for mandamus, arguing the trial court abused its discretion by denying abatement; mandamus relief pending (no appellate decision in the record provided) |
Key Cases Cited
- Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex. 1988) (first-filed rule and abatement for inherently intertwined cases)
- Cleveland v. Ward, 285 S.W. 1063 (Tex. 1926) (historic articulation of exclusive jurisdiction of first-filed court)
- In re J.B. Hunt Transp., Inc., 492 S.W.3d 287 (Tex. 2016) (race-to-the-courthouse principle: first-filed suit ordinarily has dominant jurisdiction)
- Encore Enters. v. Borderplex Realty Trust, 583 S.W.3d 713 (Tex. App.—El Paso 2019) (applying first-filed/default rule and dominant jurisdiction concepts)
- In re Coronado Energy EP Co., 341 S.W.3d 479 (Tex. App.—San Antonio 2011) (scope of first-filed case may include amendable claims and necessary parties)
- French v. Hay, 89 U.S. 250 (U.S. 1874) (early Supreme Court authority on respecting jurisdiction of first-possessing court)