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Primary vs. Ancillary Claims Case to be Heard in Supreme Court

On Behalf of | Feb 5, 2013 | Firm News

The Supreme Court heard arguments today on In re John W. Cook, et al., a case that could yield a clarification of what constitutes primary and ancillary relief in Pleadings, along with direction on enforcing mandatory venue provisions in light of contradictory statutory allowances.

The Attorney General’s Consumer Protection Division brought a DTPA claim against the owners of a series of gas stations, claiming that they were diluting premium grade gasoline with regular grade gasoline. Citing the section 17.47(a) and (b) of the DTPA statute, the State filed suit in Travis County as a place where the Defendants had conducted business. In response, the Defendant’s cited Texas Civil Practice and Remedies Code Section 65.023’s mandatory venue provision as controlling due the primacy of an Injunction to the State’s claims. The State responded that suit under the DTPA was its primary relief, leaving an injunction as merely ancillary. Therefore, the State argued, the DTPA’s carve out which specifically endows venue privileges to the Consumer Protection Division takes precedence.

The Trial Court denied the Defendants’ Motion for Change of venue, and the Third Court of Appeals affirmed in a one-sentence memorandum decision.

Mike H. Bassett is a Senior Partner at The Bassett Firm. Mr. Bassett’s practice focuses on Insurance Defense, Transportation Litigation, Products liability, Premises Liability, and Employment Litigation. He received his B.B.A from the University of Texas El Paso in 1984 and his J.D. with distinction from St. Mary’s School of Law in 1987. Mr. Bassett was voted a Texas Super Lawyer in 2006.

R.G. Bradshaw Hawkins is a Law Clerk at The Bassett Firm. Mr. Hawkins received his undergraduate degree with honours from University of St. Andrews, Scotland, and is in his second year at Southern Methodist University Dedman School of Law in Dallas, Texas.


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