In Re Pioneer Energy Services Corp. and Pioneer Drilling Services, Ltd. v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas

OPINION No. 04-24-00066-CV

IN RE PIONEER ENERGY SERVICES CORP. AND PIONEER DRILLING SERVICES, LTD.

Original Mandamus Proceeding 1

Opinion by: Beth Watkins, Justice

Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice

Delivered and Filed: July 17, 2024

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Relators Pioneer Energy Services Corp. and Pioneer Drilling Services, Ltd. (collectively,

the Pioneer entities) filed a petition for writ of mandamus challenging the trial court’s denial of

their plea in abatement. We conditionally grant the petition.

BACKGROUND

In May of 2021, a vehicle driven by Jonathan Lawhorn and purportedly owned by J&J’s

Bargain Barn, LLC collided with a vehicle driven by real party in interest Christian Luna and

purportedly owned by Blue Star Towing, LLC. 2 The collision occurred in Dawson County, Texas.

1 This proceeding arises out of Cause No. 2022-CI-20075, styled Shonda Bryce, Christian Luna, and Kimberly Luna, Individually and as Next Friend of M.L., a Minor v. Pioneer Energy Services Corp., Pioneer Drilling Services Ltd., EOG Resources, Inc., Tammy Lawhorn as Representative of the Estate of Jonathan Lawhorn, Stephanie Anders, J&J's Bargain Barn, LLC, True Directional Services, LLC and Total Directional Services, LLC, pending in the 37th Judicial District Court, Bexar County, Texas, the Honorable Cynthia Marie Chapa presiding. 2 These recitations of the vehicles’ owners are taken from the allegations in the parties’ pleadings. We express no opinion on the merits of those allegations, which are not at issue in this proceeding. 04-24-00066-CV

Lawhorn and his three passengers—Taylor Bryce, Jimmy Lee Sipes, and Colt Alan Atkins—died,

and Luna was injured. The Pioneer entities contend that Lawhorn, Bryce, Sipes, and Atkins were

employed by Pioneer Drilling at the time of the collision, and that Pioneer Energy is a separate

entity.

On August 27, 2021, the widows of Bryce and Sipes (the Ector County plaintiffs) sued

Luna and Blue Star in Ector County. Their petition, which did not name any other defendants,

alleged Ector County was a proper venue because Blue Star maintained its principal place of

business there and Luna resided there. On August 19, 2022, Atkins’s widow intervened in the

Ector County lawsuit, and the record indicates that her original petition in intervention did not

name any additional defendants.

On October 10, 2022, Bryce’s mother, Shonda Bryce, sued Pioneer Energy in Bexar

County. She alleged that Pioneer Energy was Lawhorn’s employer and that it was vicariously

liable for his negligence and directly liable for its own negligence in hiring, training, retaining, and

supervising him and entrusting a vehicle to him. Shonda later amended her petition to assert the

same vicarious and direct claims against Pioneer Drilling. She also amended her petition to add

claims against EOG Resources, Inc.; Stephanie Anders; J&J’s Bargain Barn; True Directional

Services, LLC; Total Directional Services, LLC; and the administrator of Lawhorn’s estate.

On February 16, 2023, Luna—who, as noted above, was already a defendant in the Ector

County lawsuit—intervened in Shonda’s Bexar County lawsuit and asserted claims against the

Pioneer entities. Like Shonda, Luna alleged that Lawhorn was an employee of one or both of the

Pioneer entities and that they were vicariously liable for his negligence and directly liable for their

own negligence in hiring, training, supervising, and retaining him. Luna later amended his petition

to add his wife, real party in interest Kimberly Luna, as an intervenor and to assert claims against

all the defendants named in Shonda’s then-live petition.

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On May 5, 2023, the Ector County plaintiffs amended their petition to add the Pioneer

entities and EOG Resources as defendants in that lawsuit. The Ector County plaintiffs alleged that

one or both of the Pioneer entities were vicariously liable for Lawhorn’s negligence and directly

liable for their own negligence in hiring, training, retaining, and supervising Lawhorn and

entrusting a vehicle to him. It is undisputed that the Pioneer entities were not parties to the Ector

County lawsuit until May 5, 2023. Again, however, Pioneer Energy was a party to the Bexar

County lawsuit when Shonda filed her original petition in October of 2022; Pioneer Drilling had

been a party to the Bexar County lawsuit since February 14, 2023.

On June 2, 2023, the Pioneer entities moved to abate the Bexar County lawsuit, arguing

the Ector County district court had acquired dominant jurisdiction over claims arising out of the

May 2021 collision. In her response to the motion, Shonda argued the Pioneer entities were

judicially estopped from asserting a dominant jurisdiction claim or had waived that claim because

they had previously moved to transfer venue of the Bexar County lawsuit to Midland County. She

also argued, however, that the Bexar County litigation should be consolidated with the Ector

County case. In their response, the Lunas argued: (1) the Ector County case was not the first-filed

case against the Pioneer entities; (2) the Pioneer entities should have sought an abatement on

dominant jurisdiction grounds when Pioneer Energy filed its original answer in Bexar County in

2022; and (3) the Pioneer entities engaged in a significant amount of litigation activity in Bexar

County. Like Shonda, the Lunas alternatively argued the Bexar County litigation should be

consolidated with the Ector County case. In July of 2023, the trial court held a hearing on the

Pioneer entities’ plea in abatement, but it did not make an oral ruling or sign a written order on the

motion at that time.

On August 14, 2023, True Directional filed a First Amended Motion to Transfer Venue

contending that Shonda’s Bexar County claims should be transferred to Ector County. True

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Directional argued: (1) the Pioneer entities had established that Bexar County was not a proper

venue; (2) Ector County had acquired dominant jurisdiction over this dispute; and (3) the case

should be transferred to Ector County. On August 30, 2023, Shonda, the Pioneer entities, EOG

Resources, J&J’s Bargain Barn, and True Directional filed a joint motion to sever Shonda’s Bexar

County claims and transfer those claims to Ector County. On December 7, 2023, the Honorable

Rosie Alvarado signed an agreed order granting True Directional’s motion to transfer venue “as

to the claims and causes of action brought by Plaintiff Shonda Bryce . . . against all Defendants”

in the Bexar County case. The order directed the Bexar County District Clerk “to transfer all of

[Shonda’s] claims” to Ector County.

Five days later, the Honorable Cynthia Marie Chapa, respondent here, signed an order

denying the Pioneer entities’ plea in abatement. On January 30, 2024, the Pioneer entities filed this

original proceeding challenging Judge Chapa’s order.

ANALYSIS

Standard of Review

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of

discretion when the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., L.P., 235

S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A trial court abuses its discretion if its ruling is

arbitrary, unreasonable, or without regard to guiding rules or principles. See In re J.B. Hunt

Transp., Inc., 492 S.W.3d 287, 293–94 (Tex. 2016) (orig. proceeding).

A relator has no adequate remedy by appeal when the denial of mandamus relief would

result in an “irreversible waste of judicial and public resources[.]” In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 136–37 (Tex. 2004) (quoting In re Masonite Corp., 997 S.W.2d 194, 198 (Tex.

1999) (orig. proceeding)). Because allowing a case to proceed in the wrong court wastes both the

parties’ and the court’s resources, “a relator need only establish a trial court’s abuse of discretion

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

jurisdiction case.” In re J.B. Hunt, 492 S.W.3d at 299–300.

Applicable Law

“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.” Id. at 294 (internal quotation

marks omitted); In re Sims, 88 S.W.3d 297, 302 (Tex. App.—San Antonio 2002, orig. proceeding).

“Where two actions involving the same subject matter are brought in different courts having

concurrent jurisdiction, the court which first acquires jurisdiction should retain such jurisdiction,

undisturbed by the interference of another court, and dispose of the controversy.” In re Sims, 88

S.W.3d at 303. “This first-filed rule flows from principles of comity, convenience, and the

necessity for an orderly procedure in the trial of contested issues.” In re J.B. Hunt, 492 S.W.3d at

294 (internal quotation marks omitted).

The proper method to assert a claim of dominant jurisdiction is through a plea in abatement

in the second-filed suit. See In re Puig, 351 S.W.3d 301, 305 (Tex. 2011) (per curiam) (orig.

proceeding). If the party asserting dominant jurisdiction establishes that the doctrine applies, the

trial court in the second-filed suit has no discretion to deny the plea unless the party resisting

abatement establishes an exception to the rule of dominant jurisdiction. See In re J.B. Hunt, 492

S.W.3d at 294 (concluding real parties’ evidence “[fell] well below the legal standards” to establish

exception to dominant jurisdiction); see also In re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 322–

23 (Tex. 2016) (per curiam) (orig. proceeding); In re Tex. Christian Univ., 571 S.W.3d 384, 389,

391 (Tex. App.—Dallas 2019, orig. proceeding).

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Application

Does Dominant Jurisdiction Apply Here?

Our first task is to determine whether the Ector County and Bexar County lawsuits are

inherently interrelated. See In re J.B. Hunt, 492 S.W.3d at 292. In both the trial court and this court,

the Lunas argued there was no inherent interrelation because Christian Luna “did not have a

compulsory counterclaim against any of the parties in the Ector County lawsuit . . . when he filed

his Petition in Intervention in Bexar County.” The Texas Supreme Court has noted, “In

determining whether an inherent interrelationship exists, courts should be guided by the rule

governing persons to be joined if feasible and the compulsory counterclaim rule.” Wyatt v. Shaw

Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988) (emphasis added), overruled on other grounds

by In re J.B. Hunt, 492 S.W.3d at 292–93. But the Texas Supreme Court has never held that

dominant jurisdiction only applies when the compulsory counterclaim rule is satisfied. See Encore

Enters., Inc. v. Borderplex Realty Tr., 583 S.W.3d 713, 723–24 (Tex. App.—El Paso 2019, no

pet.) (op. on reh’g). We decline to do so here.

As support for their plea in abatement, the Pioneer entities presented pleadings from both

the Ector County lawsuit and the Bexar County lawsuit. They also asked the trial court to take

judicial notice of the filings in the Bexar County lawsuit. Those records showed that both lawsuits

involved the same subject matter: the May 2021 collision and the question of who, if anyone, was

responsible for the collision and any preceding events that caused it. See id. at 722 (two suits

inherently interrelated because they “focus[ed] on the same transaction”); In re ExxonMobil Prod.

Co., 340 S.W.3d 852, 856–57 (Tex. App.—San Antonio 2011, orig. proceeding) (two suits based

on damage to the same land inherently interrelated even though claimed damages occurred on

different dates); see also Roman-Perez v. Alvarez, Nos. 13-19-00044-CV & 13-19-00067-CV,

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2020 WL 6789209, at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 19, 2020, pet. denied) (mem.

op.) (two lawsuits inherently interrelated because they arose “from the same set of facts”).

The Ector County lawsuit was filed more than a year before the Bexar County lawsuit. See

In re J.B. Hunt, 492 S.W.3d at 294. Nevertheless, the Lunas argued below that dominant

jurisdiction does not apply here because the Ector County lawsuit was not the first-filed case

against the Pioneer entities. This argument is contrary to well-established law. See In re

Volkswagen Clean Diesel Litig., 557 S.W.3d 73, 77 (Tex. App.—Austin 2017, orig. proceeding)

(reviewing plaintiffs’ argument that dominant jurisdiction principles do not apply to their suits,

which were the first to name certain defendants, and noting “the supreme court has rejected this

argument”) (citing Wyatt, 760 S.W.2d at 247). “It is not required that the precise issues and all of

the parties be included in the first suit before the second suit is filed, provided that the claims in

the first suit can be amended to bring in all of the necessary and proper parties and the claims.” In

re ExxonMobil, 340 S.W.3d at 856.

Here, the record shows that a Bexar County district court judge—albeit a different judge

than the respondent here—signed an order transferring Shonda’s claims against the Pioneer entities

and the other Bexar County defendants to Ector County. Because Shonda’s claims have been

transferred to Ector County, all of the parties involved in the Bexar County litigation—with the

sole exception of Kimberly Luna—are now before the Ector County district court. See id. Both

Kimberly Luna’s and Christian Luna’s claims against the Pioneer entities are nearly identical to

Shonda’s, and the Lunas have not argued that the Ector County case cannot be amended to include

their claims. 3 To the extent the trial court accepted the Lunas’ argument that the Ector County case

was not the first-filed lawsuit, it abused its discretion. See id. at 856–57.

3 We note that under the Texas Rules of Civil Procedure, Christian Luna could have asserted his causes of action against the Pioneer entities by filing a third-party claim in the Ector County lawsuit in which he was a named defendant

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We conclude that the two lawsuits are inherently interrelated as a matter of law and that

the Ector County litigation was the first-filed case. See id. Consequently, the trial court had no

discretion to deny the Pioneer entities’ plea in abatement unless the Lunas established an exception

to dominant jurisdiction. See In re J.B. Hunt, 492 S.W.3d at 294; Wyatt, 760 S.W.2d at 248.

Does an Exception to Dominant Jurisdiction Apply Here?

The Lunas argued below that the Pioneer entities waived dominant jurisdiction by failing

to timely file their plea in abatement. A plea in abatement based on dominant jurisdiction must be

timely asserted or it is waived. See, e.g., Finlan v. Peavy, 205 S.W.3d 647, 652 (Tex. App.—Waco

2006, no pet.). Waiver is the intentional relinquishment of a known right or intentional conduct

inconsistent with claiming that right. See In re Amoco Fed. Credit Union, 506 S.W.3d 178, 185–

86 (Tex. App.—Tyler 2016, orig. proceeding) (applying waiver analysis to dominant jurisdiction).

“The elements of waiver include the following: (1) existing right, benefit, or advantage; (2) actual

or constructive knowledge of its existence; (3) an actual intent to relinquish the right (which can

be inferred from the conduct).” ASI Techs., Inc. v. Johnson Equip. Co., 75 S.W.3d 545, 548 (Tex.

App.—San Antonio 2002, pet. denied) (internal quotation marks omitted) (discussing waiver

generally). Accordingly, to determine whether a party timely asserted the doctrine of dominant

jurisdiction, we must consider whether that party’s purported delay amounted to the intentional

relinquishment of a known right, benefit, or advantage. Cf. id. We cannot answer that question

without determining when the right, benefit, or advantage of dominant jurisdiction first applied to

the party who asserted that doctrine. Cf. id.; see also In re Luby’s Cafeterias, Inc., 979 S.W.2d

813, 817 (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding) (“Courts may examine the

equities of the situation in deciding whether the plea is timely filed.”).

instead of by intervening in Shonda’s separate Bexar County lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.062(b).

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The Lunas claimed the Pioneer entities waived dominant jurisdiction because they “should

have sought abatement in 2022 when they filed their answer in this [Bexar County] case.” We

disagree. As a threshold matter, we note that Pioneer Drilling was not sued in the Bexar County

litigation until February of 2023 and was not sued in the Ector County litigation until May of 2023.

The Pioneer entities have alleged that they are legally separate, and the Lunas have not argued or

presented any evidence to support a conclusion that Pioneer Drilling is bound by Pioneer Energy’s

actions. See PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 173 (Tex. 2007)

(“Texas law presumes that two separate corporations are distinct entities.”). The Lunas’ assertion

that Pioneer Drilling should have sought abatement in 2022 therefore finds no support in the

record.

Furthermore, one of the policy rationales behind dominant jurisdiction is preventing the

waste of the parties’ and the courts’ resources that would be caused by trying interrelated lawsuits

in multiple counties. See Wyatt, 760 S.W.2d at 246–48; In re ExxonMobil, 340 S.W.3d at 857; see

also Lodhi v. Haque, No. 04-18-00917-CV, 2019 WL 5765787, at *6 n.9 (Tex. App.—San

Antonio Nov. 6, 2019, pet. denied) (mem. op.). Between October of 2022 (when Pioneer Energy

was first sued in Bexar County) and May of 2023 (when both Pioneer entities were first sued in

Ector County), any inefficiencies caused by trying the facts of this dispute in two separate counties

would not have affected either of the Pioneer entities’ rights. It was not until the Pioneer entities

had been sued in both counties that they knew they faced the inconvenience and risk of defending

against two virtually identical lawsuits in two separate venues. Moreover, until the Pioneer entities

were sued in both Bexar County and Ector County, neither court ran the risk that the two cases

might result in conflicting judgments regarding the Pioneer entities’ liability.

This record does not support a conclusion that the Pioneer entities intentionally

relinquished any right, benefit, or advantage to either themselves or the courts by failing to assert

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the primacy of a case to which they were strangers. See ASI Techs., 75 S.W.3d at 548. The Pioneer

entities filed their plea in abatement less than one month after they were sued in Ector County—

i.e., less than one month after they first knew they had any reason to assert dominant jurisdiction.

The Lunas did not argue below that a one-month delay is sufficient to waive a claim of dominant

jurisdiction, and we have found no authority to support such a conclusion. Under these

circumstances, the trial court would have abused its discretion by concluding the Pioneer entities

did not timely assert dominant jurisdiction.

The Lunas also argued below that the Pioneer entities waived Ector County’s dominant

jurisdiction because they “engaged in a significant amount of litigation in” Bexar County by

participating in discovery and filing motions to transfer venue to Midland County. Again, we

disagree. We have previously held that a party did not waive the issue of dominant jurisdiction by

engaging in discovery. See In re Sims, 88 S.W.3d at 305. Similarly, the Fourteenth Court of

Appeals has held, “The fact that [relator] participated in discovery was of necessity to defend itself,

not a waiver.” See In re Luby’s, 979 S.W.2d at 817–18. The Pioneer entities did not waive the

dominant jurisdiction of the Ector County court merely by participating in discovery in the only

lawsuit that was pending against them during the relevant time. Compare In re La.-Pac. Corp.,

112 S.W.3d 185, 189–90 (Tex. App.—Beaumont 2003, orig. proceeding) (party’s actions did not

waive dominant jurisdiction because party did not actively pursue parallel litigation), with Howell

v. Mauzy, 899 S.W.2d 690, 698 (Tex. App.—Austin 1994, writ denied) (party waived dominant

jurisdiction because he “chose to pursue actively” the second-filed case).

The Pioneer entities’ motions to transfer venue to Midland County also did not establish

waiver under these circumstances. Because those motions explicitly argued venue was improper

in Bexar County, they did not show that the Pioneer entities were actively pursuing litigation in

Bexar County. Cf. Howell, 899 S.W.2d at 698. And, for the reasons explained above, the Pioneer

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entities had no reason to assert that Ector County had dominant jurisdiction over the claims against

them until they had been sued in that county. See In re Luby’s, 979 S.W.2d at 817. Since the

Pioneer entities filed their motions to transfer venue to Midland County before they were sued in

Ector County, those motions did not amount to an intentional relinquishment of their right to assert

Ector County’s dominant jurisdiction. See In re Amoco Fed. Credit Union, 506 S.W.3d at 186

(considering procedural posture and relator’s party status to determine whether relator waived

dominant jurisdiction).

For these reasons, the record does not support the Lunas’ waiver argument. Because the

Lunas did not assert any other exceptions to the doctrine of dominant jurisdiction, the trial court

abused its discretion by denying the Pioneer entities’ plea in abatement. See In re J.B. Hunt, 492

S.W.3d at 294; Wyatt, 760 S.W.2d at 248.

CONCLUSION

We conditionally grant the Pioneer entities’ petition for writ of mandamus.

Beth Watkins, Justice

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