In Re Axis Energy Marketing, LLC v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 23, 2024
• Docket: 01-23-00906-CV
• Status: Published

Opinion

Opinion issued April 23, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00906-CV ——————————— IN RE AXIS ENERGY MARKETING, LLC, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator Axis Energy Marketing, LLC seeks mandamus relief to vacate the

trial court’s August 23, 2023 order denying relator’s motion to transfer venue and

plea in abatement and to direct the trial court to abate the Harris County lawsuit.1

We conditionally grant the petition.

1 The underlying case is Apricus Enterprises, LLC v. Axis Energy Marketing, LLC , cause number 2023-47355, pending in the 190th District Court of Harris County, Texas, the Honorable Beau A. Miller presiding. Background

Axis Energy Marketing, LLC sources crude oil, which is then delivered by

suppliers to Axis’s customers. DK Trading & Supply LLC and Lion Oil Company,

LLC (collectively “Delek”) entered into an agreement with Axis to supply West

Texas sour crude oil to locations Delek designated, including Enterprise Station #7

in Midland County, Texas. Axis then contracted with real party in interest, Apricus

Enterprises, LLC, to provide and deliver the oil to locations Delek specified in

Midland. Axis and Apricus agreed that the terms and conditions in the 2017

ConocoPhillips Domestic Crude Oil and Condensate Agreements governed the

transaction between them.

After the crude oil was delivered, Delek alleged that the oil was contaminated

and filed suit against Axis in Midland County on April 19, 2023, asserting claims of

breach of contract, fraud, and negligence and gross negligence. Axis contends that

the parties were in discussions when, on July 27, 2023, Apricus filed suit in Harris

County against Axis for its failure to pay for the crude oil purchased, alleging claims

for breach of contract, sworn account, and quantum meruit.

Axis then filed a document containing both a motion to transfer venue and a

plea in abatement. In the motion to transfer venue portion, Axis argued that venue

was improper in Harris County and was proper in Midland County. In the plea in

2 abatement portion of this document, Axis claimed that Midland County had venue

and had acquired dominant jurisdiction, which required the Harris County suit to be

abated. After a response and reply were filed, the trial court held a hearing, and on

August 23, 2023, signed an order denying the motion and plea and giving no reasons

for the denial. Before the trial court signed this order, Axis had added Apricus as a

third-party defendant in the Midland lawsuit. Apricus filed a plea in abatement in

the Midland court, but it was denied.

On October 6, 2023, Axis filed a motion to reconsider the Harris County

court’s denial of its plea in abatement. Three days later, Apricus filed a motion for

summary judgment on liability and set it for a hearing on October 30, 2023. Axis

filed an emergency motion for a continuance of the summary judgment hearing,

asserting that it would prevent Axis from conducting any meaningful discovery and

would harm its ability to defend against Apricus’s claims and to prosecute its

counterclaims.

The trial court held a hearing on November 17, 2023, allegedly on four

motions, including Axis’s motion to reconsider, but the argument during the hearing

focused on Apricus’s motion for summary judgment. No rulings were made during

the hearing. On November 27, 2023, the trial signed several orders, denying Axis’s

motion to reconsider the denial of its plea in abatement, denying Axis’s motion for

3 continuance, and granting Apricus’s motion for summary judgment on liability. A

hearing was scheduled for January 19, 2024, for attorney’s fees.

Axis filed its petition for writ of mandamus on December 6, 2023. Although

the petition was initially assigned to the Fourteenth Court of Appeals, that court

issued an order, transferring the case to this Court pursuant to Local Rule 1.5. 14th

Tex. App. (Houston) Loc. Ru. 1.5. Before the transfer, the Fourteenth Court had

granted a stay of all trial court proceedings, and by order of December 12, 2023, we

ordered that the previously-ordered stay of all trial court proceedings was to remain

in effect and directed real party in interest Apricus to file a response, which was filed

on January 8, 2024.

Standard of Review

To be entitled to mandamus relief, a relator must show that the trial court

clearly abused its discretion and the relator lacks an adequate remedy by appeal. See

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). A clear abuse of discretion occurs “when a trial court ‘reaches a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error

of law.’” In re Mabray, 355 S.W.3d 16, 22 (Tex. App.—Houston [1st Dist.] 2010,

orig. proceeding) (quoting Johnson v. Fourth Ct. of Apps., 700 S.W.2d 916, 917

(Tex. 1985) (orig. proceeding)). As the reviewing court, we may not substitute our

4 judgment for the trial court’s even if we would have decided the issue differently

unless the decision was arbitrary and unreasonable. Mabray, 355 S.W.3d at 22.

In its petition for writ of mandamus, Axis challenges only the trial court’s

denial of the plea in abatement as an abuse of discretion. Texas courts hold that, if

two suits are inherently interrelated, a plea in abatement filed in the second suit “must

be granted” and the trial court abuses its discretion in denying the plea. See In re

J.B. Hunt Transport, Inc., 492 S.W.3d 287, 294, 298 (Tex. 2016) (orig. proceeding)

(emphasis in original). And if we find that the trial court abused its discretion, Axis

need not show that it lacked an adequate remedy by appeal. The Texas Supreme

Court has held that “a relator need only establish a trial court’s abuse of discretion

to demonstrate entitlement to mandamus relief with regard to a plea in abatement in

a dominant-jurisdiction case.” Id. at 299–300. Thus, if Axis establishes that the trial

court abused its discretion in failing to grant its plea in abatement, we are to presume

that Axis lacks an adequate remedy by appeal. See id.

Dominant Jurisdiction

Axis contends that the trial court abused its discretion in denying the August

23, 2023 order denying the plea in abatement.2 This motion asserted both that venue

2 The plea in abatement was included in a document that contained both a motion to transfer venue and the plea in abatement. The trial court denied both the motion to transfer venue and plea in abatement by order signed on August 23, 2023, merely saying both requests for relief were denied. Axis does not contest the denial of the motion to transfer venue in the petition for writ of mandamus. 5 was proper in Midland County where Delek has filed suit against Axis and that the

doctrine of dominant jurisdiction required abatement of the Harris County suit.

Apricus filed a response to the motion to transfer venue but did not respond to the

plea in abatement.

“The general common law rule in Texas is that the court in which suit is first

filed acquires dominant jurisdiction to the exclusion of other coordinate courts.”

Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). “The dominant jurisdiction

analysis is applicable, however, only when multiple suits are inherently interrelated

and venue is proper in each county.” Wyrick v. Business Bank of Tex., N.A., 577

S.W.3d 336, 357 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citing In re Red

Dot Bldg. Sys., Inc., 504 S.W.3d 320, 322 (Tex. 2016) (orig. proceeding)). “The

jurisprudential reason for the rule is that once a matter is before a court of competent

jurisdiction, ‘its action must necessarily be exclusive’ because it is ‘impossible that

two courts can, at the same time, possess the power to make a final determination of

the same controversy between the same parties.’” Perry v. Del Rio, 66 S.W.3d 239,

252 (Tex. 2001). Pragmatically, there are further justifications for abatement,

including efficiency and fairness. See id. There are exceptions to applicability of

dominant jurisdiction3 but none have been raised in this case.

3 Exceptions to the dominant-jurisdiction rule arise “when the first court does not have the full matter before it, or when conferring dominant jurisdiction on the first 6 1. Inherent Interrelationship

The question of which court has dominant jurisdiction arises when there are

inherently interrelated lawsuits in two different counties. See J.B. Hunt Transport,

492 S.W.3d at 292. To determine if two pending suits are inherently interrelated,

courts are guided by the compulsory-counterclaim test which requires a showing of

six characteristics:

(1) it is a claim within the jurisdiction of the court;

(2) not the subject of a pending action;

(3) which at the time of filing the pleading the pleader has against any opposing party;

(4) it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

(5) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

In re Tex. Christian Univ., 571 S.W.3d 384, 389 (Tex. App.—Dallas 2019, orig.

proceeding) (citing TEX. R. CIV. P. 97(a)). To determine if two suits are inherently

court will delay or even prevent a prompt and full adjudication, or when the race to the courthouse was unfairly won.” Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001). The dominant-jurisdiction rule is inapplicable when “a party’s conduct estops him from asserting dominant jurisdiction, if joinder of parties is infeasible or impossible, or if the plaintiff in the first case is not intent on prosecuting his claims.” Id.

7 interrelated or arise out of the same transaction or occurrence, courts apply the

“logical relationship test,” which “is met when the same facts, which may or may

not be disputed, are significant and logically relevant to both claims.” Id. at 389–

90.

Axis contends that the same facts—concerning the very same crude oil—are

significant and logically related to the suits in both Midland and Harris Counties and

therefore, the same transaction or occurrence requirement is met. Apricus disagrees,

asserting that the parties are different in that the Midland County lawsuit involves

Delek and Axis and the Harris County lawsuit involves Apricus and Axis. Apricus

further argues that the Harris County lawsuit is the first one concerning the contract

between Axis and Apricus, and the claims asserted in the two lawsuits are different.

Finally, Apricus contends that Axis is essentially seeking indemnification, which

does not meet the compulsory-counterclaim test.

Axis responds first by arguing that the exact parties and issues are not

required. See Guy v. Damson Oil Corp., No. 13-91-028-CV, 1997 WL 33760709,

at *4, 6 (Tex. App.—Corpus Christi-Edinburgh Mar. 27, 1997, no writ) (mem. op.).

In Guy, the first and second suit involved most but not all of the same defendants,

both arose from the same transaction and involved the same property interests. See

id. at *5–6. In both suits, the same plaintiff sought to acquire the benefits of mineral

8 rights in the same property and therefore, the court determined that the evidence was

sufficient to show that the two suits were inherently interrelated. See id. at *6.

Similarly, in In re Second Street Properties. LLC, the Fourteenth Court of

Appeals held that the trial court abused its discretion by denying a plea in abatement

because both lawsuits presented the same threshold issue—the identity of the general

partner of the partnership. See No. 14-16-00390-CV, 2016 WL 7436649, at *1–3

(Tex. App.—Houston [14th Dist.] Dec. 22, 2026, orig. proceeding) (mem. op.). The

partnership was a named plaintiff in both suits, and the court determined that if both

courts decided the issue of which party was the general partner and authorized to

bring suit, it would lead to a waste of judicial resources, duplication of costs, and

potentially conflicting decisions. See id. at *3.

Even if parties and claims are not identical, it is sufficient if the claims can be

amended to bring in all necessary and proper parties. See Comp-E-Ware Tech.

Assocs., Inc. v. Mushkin, Inc., 629 S.W.3d 549, 555 (Tex. App.—Fort Worth 2021,

pet. denied). Axis has brought Apricus into the Midland County lawsuit as a third-

party defendant, alleging breach of contract, negligence, and third-party liability.

We agree with Axis that, although the two suits involve different plaintiffs,

they present the issue of liability for payment for the same crude oil, which was

alleged to be contaminated by the ultimate user. The obvious reason for Axis’s plea

in abatement is that having two lawsuits concerning payment for the crude oil could 9 result in Axis being held liable twice for the same crude oil. Axis was sued in

Midland County by Delek, the purchaser of the crude oil, for the cost of the crude

oil and for the damages caused by the alleged contamination of that crude oil. Axis

has also been sued for the cost of the same crude oil by Apricus who supplied the

crude oil. Thus, Axis is currently a defendant in two lawsuits for payment for the

same crude oil, which if the plaintiffs are both successful, would result in Axis being

liable for payment for the same crude oil twice, as well as for other alleged damages.

Axis contended in the trial court that the two lawsuits were inherently

interrelated because the resolution of the Midland County lawsuit would have a

“significant, if not dispositive, impact on the majority of Apricus’s claims in this

lawsuit.” Axis argued that the Midland County trier of fact could determine that the

oil Apricus delivered to Delek was contaminated, which would be fatal to Apricus’s

claims against Axis.

Apricus disagrees, arguing that there is no foundation for conflating the

dispute between Axis and Delek with the dispute between Apricus and Axis because

the contract between Delek and Axis was for the sale of crude oil in Midland without

reference to Apricus and was “wholly distinct and unrelated to the Agreement

between Axis and Apricus.” But this ignores the fact that the allegedly contaminated

crude oil Apricus sold to Axis is the same crude oil that Axis sold to Delek. And

although Apricus contends the issues are different in the two suits, both involve

10 payment for the same crude oil and Axis has raised the alleged contamination of the

crude oil as a defense to liability.

Apricus, however, interprets Axis’s claim concerning contamination of the

crude oil as one seeking indemnification for the damages it owes. Citing Ingersoll-

Rand Co. v. Valero Energy Corp., 997 S.W.2d 203 (Tex. 1999), Apricus contends

that, because a claim for indemnification does not mature until the indemnitee’s

liability is “fixed and certain,” Axis may not bring a compulsory counterclaim for

indemnification in the Midland suit. This argument has two parts: whether a claim

must be a compulsory counterclaim for dominant-jurisdiction analysis to apply and

whether an indemnification claim fails the compulsory-counterclaim test such that

this claim is not inherently interrelated to the Midland County claims.

As to the first question, Axis disagrees, noting that merely because courts are

to be guided by the compulsory-counterclaim rule, not all requirements for a

compulsory counterclaim are required to be shown. See In re PlainsCapital Bank,

No. 13-17-00021-CV, 2018 WL 2979836, at *9 n.5 (Tex. App.—Corpus Christi-

Edinburgh June 8, 2018, orig. proceeding) (citing Hopkins v. NCNB Tex. Nat’l Bank,

822 S.W.2d 353, 355 (Tex. App.—Fort Worth 1992, no writ) (which held that

compulsory counterclaim need not be alleged in second suit for inherent

interrelationship to exist). In French v. Gilbert, the Frenches challenged the trial

court’s abatement of their malpractice suit in Harris County based on appellees’ first-

11 filed Montgomery County suit against the Frenches for attorney’s fees. See No. 01-

07-00186-CV, 2008 WL 5003740, at *3 (Tex. App.—Houston [1st Dist.] Nov. 26,

2008, no pet.). The Frenches claimed that the trial court abused its discretion in

abating their lawsuit because their malpractice claims were not compulsory

counterclaims in the Montgomery County attorney’s fees case. See id. A panel of

this Court responded to this argument as follows:

The Frenches’ argument misconstrues the standards by which a trial court is to make a determination of whether abatement is mandatory under a claim of dominant jurisdiction. In deciding whether abatement is mandatory, a trial court must determine whether there exists “an inherent interrelation of the subject matter” in the two suits. If so, the granting of a plea in abatement is mandatory, even when there is not already a complete unity of issues and parties between the two suits, so long as the claim in the first suit may be amended to bring in all necessary parties and issues. ....

This requirement that the trial court be “guided” by the compulsory counterclaim rule likewise guides our review as to whether a trial court has abused its discretion in determining the question of an inherent interrelationship between two suits. However, it does not establish that a trial court abuses its discretion if it finds that there is an inherent interrelationship between two suits when one or more elements of the compulsory counterclaim rule are not met as to the claim in the second suit.

Id. at *6 (citations omitted). This language clarifies that a complete unity of parties

and issues need not exist and not all elements of a compulsory counterclaim need to

be met to determine that the two suits are inherently interrelated.

12 But because Apricus focuses on Axis allegedly seeking indemnification, we

address that argument. A claim for third-party indemnification is contingent and not

mature until liability is determined. Ingersoll-Rand, 997 S.W.2d at 208. To

determine the accrual date of an indemnity claim, we look to the contract. “There

are two types of indemnity agreements, those that indemnify against liabilities and

those that indemnify against damages.” Id. at 207. A broadly-worded provision that

“holds the indemnitee ‘harmless’ against ‘all claims’ and ‘liabilities’ evidences an

agreement to indemnify against liability.” Id. Such a provision entitles the

indemnitee to recover when liability is “fixed and certain, as by rendition of a

judgment, whether or not the indemnitee has yet suffered actual damages, as by

payment of a judgment.” Id. But a party may assert an indemnity claim before there

is a judgment establishing liability, in which case the claim is permissive, not

compulsory. See id. at 209–10.

The contract between Axis and Apricus contains an indemnity provision that

holds Axis, as buyer, harmless from “all losses, liabilities, expenses, demands,

actions, suits, damages, settlements, judgments, and claims” that occur before

delivery or after delivery to the buyer. Thus, this is a broadly-worded provision that

evidences an agreement to indemnify against liability and this claim accrues when

liability becomes fixed and certain by rendition of a judgment of liability against

Axis. See id.

13 Although any indemnity claim brought by Axis against Apricus in the Harris

County suit would be a permissive counterclaim and not compulsory, Axis has other

counterclaims for negligence and breach of contract. Axis has also alleged these

claims in its third-party petition in Midland County.4 And despite Apricus’s

arguments concerning the maturity of Axis’s claim for indemnity, not all

requirements of the compulsory-counterclaim rule must be shown for a

determination that the suits are inherently interrelated. See, e.g., Encore Enters., Inc.

v. Borderplex Realty Trust, 583 S.W.3d 713, 723 (Tex. App.—El Paso 2019, no

pet.). The compulsory-counterclaim rule is merely a guide. See id. Thus, the

argument about indemnity not being a mature claim does not prevent a finding that

the two suits are inherently interrelated.

We conclude that the claims in both Midland and Harris Counties, which

concern the same crude oil, the alleged contamination of that crude oil, and how that

alleged contamination affects liability for payment for the crude oil, are facts that

are significant and logically related to both suits. See Tex. Christian Univ., 571

S.W.3d at 389–90. Accordingly, we conclude that Axis established that the two suits

are inherently interrelated.

4 The mandamus record does not include Axis’s answer and counterclaims or affirmative defenses, but Apricus lists and addresses those counterclaims in its motion for summary judgment. 14 2. Venue

We next consider whether venue was proper in both or either of the two

counties. The Texas Supreme Court has stated that “unless venue would be proper

in both . . . counties, the concept of ‘dominant jurisdiction’ is inapplicable to this

case.” Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005).

Although the general rule mentions venue being proper in both counties, “[t]he court

in which suit is first filed generally acquires dominant jurisdiction to the exclusion

of other courts if venue is proper in the county in which suit was first filed.” Id.

(emphasis added). Thus, if Midland County is shown to have proper venue, that is

sufficient for the doctrine of dominant jurisdiction to apply.

Although Axis is not challenging the denial of its motion to transfer venue,

Axis argued that venue was proper in Midland County. Apricus opposed the motion

to transfer venue, asserting that the mandatory venue provision, section 65.023, was

inapplicable because that statute compels mandatory venue in defendant’s county of

domicile only if the plaintiff’s suit is primarily injunctive in nature. See TEX. CIV.

PRAC. & REM. CODE § 65.023(a). Apricus further argued that venue was proper in

Harris County under Texas Civil Practice and Remedies Code section 15.002(a)

because all or a substantial part of the events or omissions giving rise to its claims

occurred in Harris County and it is entitled to deference for its venue choice. See

TEX. CIV. PRAC. & REM. CODE § 15.002(a).

15 But Axis has not challenged the denial of the motion to transfer venue. All

that must be shown for dominant jurisdiction to apply is that venue would be proper

in both counties. See Gonzalez, 159 S.W.3d at 622. Thus, we review the venue

arguments made in the trial court to determine if Axis established that venue was

proper in Midland County, even if it were also proper in Harris County.

a. Mandatory venue statute does not apply

Section 65.023 provides that a suit for a writ of injunction against a party who

resides in Texas “shall be tried in a district or county court in the count in which the

party is domiciled.” TEX. CIV. PRAC. & REM. CODE § 65.023(a). The Texas Supreme

Court has held that this statute is “operative only when a plaintiff’s pleadings in the

underlying suit establish the relief sought is ‘purely or primarily injunctive.’” In re

Fox River Real Estate Holdings, Inc., 596 S.W.3d 759, 765 (Tex. 2020) (orig.

proceeding). Thus, if the request for injunctive relief is “merely ancillary” to the

main relief sought, “section 65.023(a) has no application.” Id. at 765–66.

The Texas Supreme Court has stated that “the Legislature did not intend for

the tail to wag the dog,” and thus, section 65.023 applies only when the pleadings

seek relief that is “primarily or purely injunctive,” such as where a plaintiff sought

to remove a television antenna allegedly interfering with an airport runway. See id.

at 765 (citing Brown v. Gulf Television Co., 306 S.W.2d 706, 707 (Tex. 1957)); see

also In re Dole Food Co., Inc., 256 S.W.3d 851, 855 ((Tex. App.—Beaumont 2008,

16 orig. proceeding) (determining that section 65.023 applied because plaintiff was

seeking “truly injunctive” relief to protect existing and potential contracts from

interference by strangers to contracts). “When the injunctive relief is sought simply

to maintain the status quo pending resolution of the lawsuit, then the injunctive relief

is ancillary to the relief sought and section 65.023 does not apply.” In re FPWP GP

LLC, No. 05-16-01145-CV, 2017 WL 461255, at *3 (Tex. App.—Dallas 2017, orig.

proceeding).

In this case, Apricus’s pleading stated that it sought a temporary restraining

order to preserve the status quo until a hearing could be held on its request for a

temporary injunction. Apricus based its request for injunctive relief on Walling v.

Metcalfe, 863 S.W.2d 56 (Tex. 1993), in which the Court held that, even though it

is unusual, “circumstances can arise in which a temporary injunction is appropriate

to preserve the status quo pending an award of damages at trial.” Id. at 58.

Apricus sought injunctive relief to preserve the status quo because it argued it

could demonstrate a probable right to relief and a probable injury before trial “if

Axis is able to transfer or otherwise distribute funds.” These facts clearly show that

the injunctive relief Apricus sought was ancillary and thus, section 65.023 is

inapplicable here.

b. Permissive venue appropriate in both counties

Axis also argued in the trial court that under section 15.002(a) venue was

17 proper in Midland County. According to section 15.002(a), venue is proper “in the

county in which all or a substantial part of the events or omissions giving rise to the

claim occurred.” TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1). In breach of

contract cases, courts consider “where the contract was made, performed, and

breached.” See In re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 323 (Tex. 2016)

(orig. proceeding).

In determining whether the doctrine of dominant jurisdiction applies, we need

not determine that venue in Harris County is improper. We need only decide

whether venue in Midland County would also have been proper. See id. (finding

that dominant jurisdiction applied when record showed venue was proper in both

counties). Apricus has not argued in its response to the petition that venue in

Midland County is improper.

In its response to Axis’s motion to transfer venue in the trial court, Apricus

asserted that venue was improper in Midland County because its choice of venue

should not be disturbed when venue is proper in Harris County under the permissive

statute. See Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex.

App.—Austin 2003, no pet.). In its response in the trial court, Apricus only

addressed the motion to transfer venue and, although it mentioned that venue could

be proper in Midland County and Harris County, it stated:

[I]t is well established that venue can be proper in more than one county and a substantial part of the events or omissions giving rise to a claim 18 may occur in more than one county. Even if some facts would otherwise support permissive venue in Midland County, Axis has introduced no facts that demonstrate that Houston would be an improper county for this lawsuit, and consequently, the Court should maintain the lawsuit in Harris County.

While Apricus’s arguments may be applicable to whether the trial court abused its

discretion in denying the motion to transfer venue, that ruling was not challenged in

Axis’s petition for writ of mandamus. The only ruling challenged was the trial

court’s denial of the plea in abatement concerning dominant jurisdiction.

In its response to Axis’s argument under section 15.002(a), Apricus asserted

that Axis had failed to present prima facie proof that venue was maintainable in

Midland County. But Axis asserted that significant events and omissions giving rise

to Apricus’s claims occurred in Midland County, including that Axis is located there,

Axis accepted the terms of the contract there, and the performance of the contract

was performed there as the majority of deliveries of crude oil were delivered to

locations in Midland County.

We conclude, based on the record before us, that Axis established the

propriety of venue in both counties. In its motion, Axis asserted that its principal

place of business is in Midland County, the contract between Axis and Apricus was

accepted by Axis in Midland County and concerned the delivery of crude oil to

locations in Midland County, and the majority of damages caused by Apricus’s

delivery of allegedly contaminated oil occurred in Midland County. These facts are

19 sufficient to show that permissive venue was proper in Midland County, even if it

was also proper in Harris County. And proper venue in both counties is all that is

required for dominant jurisdiction to apply. See Red Dot Bldg., 504 S.W.3d at 323.

Accordingly, the record supports a finding that venue is proper in both

Midland and Harris Counties and, because Axis established that the two lawsuits are

inherently interrelated, the Midland County court acquired dominant jurisdiction and

the trial court was required to grant Axis’s plea in abatement. See id. at 322. The

trial court abused its discretion in failing to do so.

20 Conclusion

Having concluded that the trial court abused its discretion in denying the plea

in abatement, we conditionally grant the petition for writ of mandamus directing the

Harris County trial court to (1) vacate the portion of the August 23, 2023 order

denying Axis’s plea in abatement, and (2) grant the plea in abatement. We are

confident the trial court will comply, and the writ will issue only if it does not.

Richard Hightower Justice

Panel consists of Justices Goodman, Landau, and Hightower.