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In re Bagheri

Court of Appeals of Texas, Fifth District, Dallas

May 9, 2018

IN RE BEHNAM BAGHERI, Relator

          On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-09231

          Before Justices Lang, Myers, and Whitehill.

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE.

         The 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.

         I. Background

         Two 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.

         ONDA 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 granted.

         But 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 individual capacities.

         Two 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.

         Relator 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 and intervention.

         II. Applicable Standards and Law

         To be 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) (orig. proceeding).

         Rule 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 ...

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