In re Big Mountain Trading Co., LLC d/b/a Turbo Mech International, Gary Bateman, Sr. and Gary Bateman, Jr.Appeal from 80th District Court of Harris County (Memorandum Opinion Per Curiam)

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2013 » In re Big Mountain Trading Co., LLC d/b/a Turbo Mech International, Gary Bateman, Sr. and Gary Bateman, Jr.Appeal from 80th District Court of Harris County (Memorandum Opinion Per Curiam)

State: Texas

Court: Texas Northern District Court

Docket No: 01-12-01134-CV

Case Date: 05/14/2013

Preview:Opinion issued May 14, 2013

In The

Court of Appeals
For The

First District of Texas
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NO. 01-12-01134-CV ---------------------- IN RE BIG MOUNTAIN TRADING CO., LLC D/B/A TURBO MECH INTERNATIONAL, GARY BATEMAN, SR. AND GARY BATEMAN, JR., Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION
On December 14, 2012, relators, Big Mountain Trading Co., LLC d/b/a Turbo Mech International ("Turbo Mech"), Gary Bateman, Sr. and Gary Bateman, Jr., filed a petition for writ of mandamus, complaining that the trial court erred in denying their plea to the jurisdiction and plea in abatement, and requesting sanctions against the real party in interest, IMMI Turbines, Inc. ("IMMI"). IMMI
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filed a response on June 7, 2012 and a supplemental response and request for sanctions against Turbo Mech on February 27, 2013.1 Background On August 15, 2011, Big Mountain Trading Co., LLC, d/b/a Turbo Mech International, filed a lawsuit in Montgomery County, alleging numerous causes of action against IMMI in connection with (1) a 2009 services contract in which IMMI agreed to inspect and service certain solar turbine engines that Turbo Mech was refurbishing for Dubai Petroleum Establishment as part of the Falah B Project, and (2) an exchange engine project. On November 8, 2011, IMMI filed suit in Harris County against "Turbo Mech International, Inc.," its director and president (the Batemans), and others asserting, inter alia, claims for breach of contract arising out of Turbo Mech International, Inc.'s failure to pay IMMI for its work in connection with the Falah B project and other supply agreements. On December 13, 2011, Relators filed a plea to the jurisdiction and verified plea in abatement. In their plea in abatement, Relators argued that IMMI had sued the wrong defendants in the Harris County suit. According to Relators, IMMI erroneously named "Turbo Mech International, Inc.," and the Batemans in their
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The underlying case is Case No. 2011-67559, IMMI Turbines, Inc. v. Big Mountain Trading Co., LLC d/b/a Turbo Mech International, et al, pending in 80th District Court, Harris County, the Honorable Larry Weiman, presiding. 2

capacity as its director and president of that fictitious company when IMMI should have sued Big Mountain Trading Co., LLC, d/b/a Turbo Mech International. In their plea to the jurisdiction, Relators argued that the Harris County court lacked subject-matter jurisdiction over IMMI's petition because (1) the Montgomery County court had "exclusive and continuing jurisdiction" over the matter, (2) there was no justiciable issue before the Harris County court, and (3) there was a "question of who has standing to bring suit and who has capacity to be sued." After conducting three evidentiary hearings, the trial court denied both pleas.2 On December 14, 2012, Relators filed this petition for writ of mandamus asking the Court the dismiss the Harris County suit and order IMMI to bring its counterclaims in the Montgomery County suit or, alternatively, to abate the Harris County suit until such time as IMMI sues the correct parties. On January 24, 2013, Turbo Mech amended its petition in the Montgomery County suit to remove any allegations or claims relating to the Falah B Project-- which is the subject of the Harris County suit. IMMI amended its petition in the Harris County suit in February 2013 and added Big Mountain Trading Co., LLC, d/b/a Turbo Mech International as a defendant. Mandamus Standard The standard for the issuance of a writ of mandamus is well established.

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No transcripts from these hearings are included in the mandamus record. 3

Mandamus relief is appropriate only if a trial court abuses its discretion and no adequate appellate remedy exists. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam); see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding) ("Mandamus should not issue to correct grievances that may be addressed by other remedies."). The relator bears the heavy burden of establishing his or her right to mandamus. See In re CSX Corp., 124 S.W.3d at 151. 1. Relators have not established their right to mandamus relief a. Relators' Plea to the Jurisdiction In their plea to the jurisdiction, Relators argued that the Harris County court lacked subject-matter jurisdiction over IMMI's petition because (1) the Montgomery County court had "exclusive and continuing jurisdiction" over the matter, (2) there was no justiciable issue before the Harris County court because IMMI and "Turbo Mech International, Inc." never had a business relationship, and in fact, "Turbo Mech International, Inc." dissolved before IMMI came into existence, and (3) the fact that IMMI was suing a company that (a) it had never done business with, and (b) that dissolved in 2007 and lost its corporate standing "beg[ged] the question of who has standing to bring suit and who has capacity to be sued."

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Subject-matter jurisdiction refers to a court's power to hear a particular type of suit. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). Texas district courts are courts of general jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). A district court's subject-matter jurisdiction "consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, and original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." TEX. CONST. art. V,

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