In Texas, a plea in abatement is a legal maneuver in which one party to a civil lawsuit asks the court in which the case is pending to temporarily pause the lawsuit. A party would seek a plea in abatement, because there is some procedural problem with the case.
It is important to note that a plea in abatement does not address the merits of the case. If one party seeks a plea, it is not because there is a problem with the merits of their case, but rather because there is a procedural problem that needs to be addressed and can be fixed. A party can seek a plea in abatement in any civil lawsuit, whether it is a claim for nuisance, personal injury or breach of contract.
If the plea is granted, the case is temporarily paused until the problem can be corrected. The Texas Rules of Civil Procedure and certain statutes regulate pleas in abatement, including the timing and notice requirements. A Texas lawyer consultation would help a person understand the role that a plea in abatement plays in civil cases in that state.
How Does Abatement Work for Pending Actions in Texas?
When a court grants a plea in abatement, the case does not proceed temporarily while the party who sought the plea corrects the problem with the case. The plaintiff retains the right to continue prosecution of their case once the problem is resolved, which is what distinguishes abatement from outright dismissal.
The court usually grants a specified period of time within which the party may correct the problem. If the party cures the defect within the specified time, the abatement ends, and the case may proceed.
While the abatement is in effect, neither party may file any new motions, conduct discovery, e.g., hold a deposition, or request court hearings or trial.
A motion to dismiss, on the other hand, asks a court to end the case permanently. A defendant may seek dismissal for a variety of reasons. They may claim that the plaintiff failed to state a valid legal claim. Or, they may claim that the court in which the lawsuit is pending does not have jurisdiction over the defendant. If a court should rule that the defendant’s claim is valid, the case would be dismissed.
Is the Abatement of Duplicate Claims Possible under Texas Law?
When the same parties are involved in the same lawsuits that are pending in 2 different courts in Texas, then the case that was filed last should be abated under what is referred to as “the dominant jurisdiction doctrine.”
The general rule is that the court where a lawsuit is filed first has the “dominant jurisdiction,” and all other courts must defer to it. When two lawsuits are in some way inherently related, then abatement of the one that has been filed last is legally required.
There are 2 exceptions to the rule of dominant jurisdiction for pending actions and abatement. Firstly, the plaintiff in the lawsuit that was filed first may have engaged in some kind of inequitable conduct that caused prejudice to the other party.
Secondly, the plaintiff who may have filed first may have done so only to establish their priority without having any real intent to prosecute the case. Of course, the party who seeks to succeed with their claim of grounds for an exception must prove that the plaintiff in the case that was filed first did not intend to prosecute the case. This could be challenging, especially if the plaintiff in the first-filed case promptly took steps to prosecute the case after they filed it.
Does the Death of a Party Abate a Claim in Texas?
In Texas, a case typically abates if the plaintiff dies. Abatement based on death of a plaintiff leads to a pause in all proceedings in the case, so that a representative of the plaintiff’s estate can file a motion to substitute themselves or the executor of the plaintiff’s estate in the case.
However, if a writ of execution has already been issued, the writ does not abate. Of course, a writ of execution is a court order that gives effect to a judgment obtained by a plaintiff in a civil lawsuit. In a writ of execution, a court usually orders a sheriff or other similar official to take possession of property owned by a judgment debtor so it can be used to pay a court judgment against them.
The plaintiff can still execute a levy of the assets of the defendant to satisfy a judgment debt, and the assets would be forwarded to the estate of the plaintiff.
If the plaintiff in a civil lawsuit dies, the heirs or the administrator of the plaintiff’s estate can appear in court and request to be substituted as the plaintiff in the lawsuit. This is done by the heir or administrator filing a suggestion of death in open court.
In divorce cases, the action abates upon the death of either party before a judgment is rendered.
Overall, while most cases abate upon the plaintiff’s death,in specific circumstances, such as ongoing executions, they may be able to continue.
Are There Exceptions to Abatement and Revival Rules in Texas?
A plea in abatement should be filed promptly. The best timing would be to file within the time the defendant has to file their initial answer to a complaint, which is typically 30 days.
Courts regard pleas in abatement as a maneuver that can be waived. So it is not advisable to wait as waiting too long may end in forfeiture of the right. Of course, the plea in abatement must be submitted to the court in written form. It must clearly state the specific defect that requires correction and the relief that the party seeks, e.g., abatement for the specified time required to correct the defect.
If a lawsuit involves parties to a contract, their contract may contain a clause that specifies the choice of law and the forum in which disputes should be litigated. If one party files a lawsuit that involves a claim related to the contract, e.g., a claim for breach of contract, in a jurisdiction other than the one identified in the contract provision, a court may grant the request to allow the party to file in the right jurisdiction.
The Texas Rules of Civil Procedure require the plea to be verified with a sworn affidavit if it is based on one of the several specified grounds. The issues raised that must come with a verified plea include a claim of lack of capacity to sue or be sued, the existence of another pending suit between the same parties involving the same claim, and defects of parties.
If a party files a plea that is not verified when verification is required, the court treats it the same as not filing a plea at all.
How Can a Lawyer Help With Pending Actions and Abatement?
Some of the most technical aspects of civil lawsuits may be involved in a plea in abatement. Determining when one should be sought and how it should be presented to a court can involve complicated legal analysis. It would require the kind of analysis for which a lawyer could provide needed insight.
It would be best to talk to a Texas lawyer about whether a plea in abatement would be the right move, how the defect in the case would be corrected and what the process for seeking one is.
How Can I Get Help with Abatement from a Texas Personal Injury Lawyer?
If you are a party to a lawsuit and believe that a plea in abatement is called for in your case, you want to talk to a Texas personal injury lawyer. As we can see from the above review, seeking a plea in abatement is a technical issue and can be complex as well. It is important to know what defect needs correction, how it can be done and how much time it would take.
LegalMatch can quickly connect you to an attorney in your area who can help you with your injury claim.
Your Texas personal injury lawyer is going to be well informed about procedure in civil lawsuits and can provide the guidance you need to succeed with a plea in abatement if that is the right move in your case.
