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Estoppel to Plead Abatement;Waiver

Although a subsequent suit growing out of the same transaction is a valid ground for abatement, a party may be estopped from pleading the abatement of a second action in certain specific instances.  Granting abatement is subject to the discretion of the court, and the court will take into consideration the particular circumstances and requirements of each case.[i] For instance, if the plaintiff in the first suit may be guilty of some inequitable conduct, such plaintiff will be prohibited or estopped from relying on that suit to abate a subsequent proceeding brought by the opposite party.  An example of such conduct is the party’s fraudulent conduct such as where the party fraudulently induces the other party to postpone filing of a suit so the first party may bring suit in a different county.  In such a case, principles of equity and fair dealing require that such defendant be estopped from asserting, as ground for abatement, the pendency of the suit filed fraudulently.  Accordingly, “the proposed plaintiff filed his suit in the court in which he so contemplated bringing it, such court takes and holds the dominant jurisdiction over the parties and subject matter of the suit.”[ii] Courts will not permit a defendant to avail the fruits of his/her own fraud and defraud the plaintiff of the benefits of the full jurisdiction of that court which, in good conscience, the plaintiff is entitled to enjoy.[iii]

Courts have held that the mere physical filing of a petition without a bona fide intention is not the commencement of a suit in the legal sense.[iv]

[i] Ryan v. Campbell Sixty-Six Express, Inc., 365 Mo. 127, 133 (Mo. 1955)

[ii] Russell v. Taylor, 49 S.W.2d 733, 736-737 (Tex. Comm’n App. 1932)

[iii] Cleveland v. Ward, 116 Tex. 1 (Tex. 1926)

[iv] Ricker v. Shoemaker, 81 Tex. 22 (Tex. 1891)

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