Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 254th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-16-09231
Justices Lang, Myers, and Whitehill.
underlying proceeding is a divorce action between relator and
his wife, Nadereh. Relator seeks a writ of mandamus directing
the trial court to dismiss the underlying divorce in accord
with a joint notice of non-suit. The wife's former
counsel maintains that the trial court did not abuse its
discretion by not non-suiting the case because that counsel
is seeking to enforce preexisting attorney's fees orders.
After reviewing relator's petition, the response of
Nadereh's counsel, Orsinger, Nelson, Downing &
Anderson, L.L.P. (ONDA), and the mandamus record, we conclude
relator is not entitled to the relief requested because he
has not shown that the trial court abused its discretion by
delaying signing the dismissal order.
weeks before trial, relator and Nadereh purportedly
reconciled and decided not to continue with the divorce
proceedings. Relator's counsel prepared a notice of
nonsuit for relator's and Nadereh's signatures.
advised Nadereh of the effect of the nonsuit, counseled her
against signing the nonsuit, and told her that they would
move to withdraw as counsel if her decision remained to
nonsuit her claims. ONDA told Nadereh that she could proceed
with the nonsuit as a pro se party after the withdrawal was
before ONDA could file the withdrawal motion, relator's
counsel filed the nonsuit on behalf of relator and Nadereh.
The nonsuit was signed by relator and Nadereh in their
hours after the nonsuit was filed, ONDA filed a motion to
withdraw and a petition in intervention seeking, in part,
enforcement of prior attorney's fees orders requiring
relator to pay certain fee awards directly to ONDA. ONDA
later filed an amended petition that included a motion for
sanctions against relator and his counsel.
filed this original proceeding after the trial court retained
the trial setting for the divorce proceeding and refused to
sign an order of dismissal granting the nonsuit. Relator
seeks a writ of mandamus directing the trial court to sign a
dismissal order without ruling on ONDA's pending motions
Applicable Standards and Law
entitled to mandamus relief, a relator must show both that
the trial court has clearly abused its discretion and that
relator has no adequate appellate remedy. In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004)
162 permits a plaintiff to dismiss a case or take a nonsuit
at any time before the plaintiff has introduced all of his
evidence other than rebuttal evidence and provides that:
Any dismissal pursuant to this rule shall not prejudice the
right of an adverse party to be heard on a pending claim for
affirmative relief or excuse the payment of all costs taxed
by the clerk. A dismissal under this rule shall have no
effect on any motion for sanctions, attorney's fees or
other costs, pending at the time of dismissal, as determined
by the court. Any dismissal pursuant to this rule which
terminates the case ...