The court of appeals affirmed the Nueces County district court, holding that the decision to grant a plea in abatement was within the discretion of the Nueces County court and there was no abuse of that discretion. 736 S.W.2d 763. We hold that the Nueces County district court was required to grant the plea in abatement because a previously filed suit between the parties was pending.
Although an original proceeding is not an "appeal," the doctrine has been held applicable to an original proceeding that reached the merits. See ITC Cellular, Inc. v. Morris, 909 S.W.2d 182, 183 (Tex. App.-Texarkana 1995, no writ); Johnnie C. Ivy Plumbing Co. v. Keyser, 601 S.W.2d 158, 159 (Tex. Civ. App.-Waco 1980, no writ); cf. Wyatt v. Shaw Plumbing Co., 736 S.W.2d 763, 768 (Tex. App.-Corpus Christi 1987) (prior mandamus opinion not law of the case when resolved without reaching the merits), rev'd on other grounds, 760 S.W.2d 245 (Tex. 1988). In In re BSP Marketing Incorporation d/b/a BSP Marketing, Inc., No. 05-03-00496-CV (Tex. App.-Dallas Apr. 9, 2003, orig. proceeding [mand denied]) (mem. op.), a panel of this Court concluded that "the relator has failed to show the trial judge abused his discretion in dismissing relator's appeal."
Insurance Corp. of Ireland, Ltd. v. Compagniedes Bauxites, 456 U.S. 694, 705, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982). This same rule has been adopted by Texas Courts. Wyatt v. Shaw Plumbing Co., 736 S.W.2d 763, 767 (Tex.App. — Corpus Christi 1987), rev'd on other grounds, 760 S.W.2d 245 (Tex. 1988). Because the trial court afforded the appellant every procedural right to which he was entitled, appellant's due process rights have neither been violated nor are they implicated in this case.
Generali claims that the trial court erred in precluding it from presenting evidence of nonliability under the insurance policy and evidence tending to prove that Milsap intentionally burned the horses in order to collect the insurance proceeds. Generali cites Southern Pacific Transp. Co. v. Evans, 590 S.W.2d 515 (Tex.Civ.App. — Houston [1st Dist.] 1979, writ ref'd n.r.e.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980), and Wyatt v. Shaw Plumbing Co., 736 S.W.2d 763 (Tex.App. — Corpus Christi 1987, writ ref'd n.r.e.), in support of its contention that the mere striking of pleadings does not create a default. Both cases uphold the striking of pleadings and the preclusion of the violator's evidence: Southern Pacific holds that the trial court did not abuse its discretion in granting the nonviolator's motion for interlocutory default judgment; Wyatt holds that the nonviolator is still required to present evidence to support his claim.
A trial court abuses its discretion if the sanction it imposes does not further one of the purposes that discovery sanctions were intended to further. Wyatt v. Shaw Plumbing Co., 736 S.W.2d 763, 767 (Tex.App. — Corpus Christi 1987, writ ref'd n.r.e.). The purposes of discovery sanctions are to: (1) secure the parties' compliance with the rules of discovery; (2) deter other litigants from violating the discovery rules; and (3) punish parties that violate the rules of discovery.