IN RE WILMINGTON TRUST, NATIONAL ASSOCIATION, Relator
PROCEEDING WRIT OF MANDAMUS 215th District Court Harris
County, Texas Trial Court Cause No. 2015-23016
consists of Justices Christopher, Jamison, and Donovan.
Hill Jamison, Justice
relator is Wilmington Trust, National Association
(Plaintiff), and the real party-in-interest is Jsin-Chi Su
January 27, 2017, Plaintiff filed a petition for writ of
mandamus in this court. See Tex. Gov't Code Ann.
§ 22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, Plaintiff asks this court to compel the
Honorable Elaine Palmer, presiding judge of the 215th
District Court of Harris County, to vacate her October 10,
2016 Order that strikes Plaintiff's Motion to Resolve the
Order of March 14, 2016 and denies Plaintiff's Motion to
Substitute Counsel. The trial court's March 14 Order
states, "[T]his Court is of the opinion that
Defendant's objections to the jurisdiction of the Court,
objections to venue and motion to dismiss based on improper
venue and the motion to quash service should be
GRANTED." The trial court's striking of and refusal
to consider the merits of Plaintiff's Motion to Resolve
the Order of March 14, 2016 and its denial of the Motion to
Substitute Counsel appears to be based on the trial
court's determination that its March 14 Order was a final
judgment and that its plenary jurisdiction to grant the
requested relief had expired. The March 14 Order is not a
final judgment because it does not contain any decretal
language disposing of the action. The trial court therefore
abused its discretion by refusing to consider the merits of
Plaintiff's Motion to Resolve the March 14 Order and
Plaintiff's Motion to Substitute Counsel.
conditionally grant the petition for writ of mandamus.
obtain mandamus relief, a relator generally must show both
that the trial court clearly abused its discretion and that
the relator has no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court clearly abuses its
discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of
law or if it clearly fails to analyze the law correctly or
apply the law correctly to the facts. In re
Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex.
2005) (orig. proceeding) (per curiam). The appellate court
reviews the trial court's application of the law de novo.
See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
relief is proper when a trial court erroneously holds that
its plenary power has expired, particularly when the trial
court fails to recognize that an order is interlocutory
rather than final. See In re Bro Props., Inc., 50
S.W.3d 528, 529, 531 (Tex. App.-San Antonio 2000, orig.
proceeding); In re Metcalfe, No. 05-06-01281-CV,
2007 WL 4064, at *2 (Tex. App.-Dallas Jan. 2, 2007, orig.
proceeding) (mem. op.).
Factual and Procedural Background
sued Defendant for breach of a guarantee for the payment of a
loan of $91.6 million dollars for the purchase of a maritime
filing an answer, Defendant filed "Hsin Chi Su's
Special Appearance and, Subject thereto, Objections to Venue
and Motion to Dismiss Based on Improper Venue and Motion to
Quash Service" (the motions). Plaintiff responded to the
motions with a single filing that asked the court to deny all
three motions. The trial court's ruling on the motions is
the March 14 Order, which states only that the motions should
claims that it did not receive actual notice of the March 14
Order until August 29, 2016, when it received a postcard
notice from the district court clerk.
September 27, 2016, Plaintiff filed a Motion to Substitute
Counsel that requested permission for the withdrawal of
Plaintiff's then lead ...