Court of Appeals of Texas, Fifth District, Dallas
IN RE SOUTHERN MANAGEMENT SERVICES, INC. AND DAVID DISIERE, Relators
Original Proceeding from the 101st Judicial District Court
Dallas County, Texas Trial Court Cause No. DC-16-03991
Justices Whitehill, Partida-Kipness, and Pedersen, III
mandamus proceeding, relators seek relief from an order
reinstating a case that was dismissed for want of
prosecution. They argue that the order is void because it was
signed after the trial court lost plenary power. We conclude
relators are entitled to the relief requested and accordingly
grant the writ instanter.
party in interest The Land Rig Clearing House, LLC sued
relators Southern Management Services, Inc. and David
March 29, 2018, the trial court dismissed the suit for want
April 16, 2018, real party in interest filed a motion to
reinstate. The docket sheet suggests that the trial court
heard the motion on May 4, 2018, but no order was signed then
or for almost a year thereafter.
April 12, 2019, the trial judge finally signed an order
granting the plaintiff's motion and reinstating the
lawsuit. On Friday, May 31, 2019, the trial court clerk
notified the parties' counsel that the case had been
called to trial the following Tuesday, June 4.
3, relators filed this original proceeding and sought
emergency relief. We granted emergency relief and stayed all
trial court proceedings. We also requested responses to the
mandamus petition from real party in interest and respondent
by June 18. We received no response. However, the online
Dallas County Texas Courts Portal shows that (i) real party
in interest filed a notice of nonsuit as to the whole case on
June 19 and (ii) the trial court signed a nonsuit order on
June 20. We take judicial notice of these events.
See Tex. R. Evid. 201(b)-(d).
argue that the April 12, 2019 reinstatement order is void
because the trial court's plenary period had previously
Availability of Mandamus Review
obtain mandamus relief, a relator must show both that the
trial court has clearly abused its discretion and that the
relator has no adequate appellate remedy. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding).
is available to set aside a reinstatement order signed after
the trial court's plenary power expires. In re
Integras Capital Recovery LLC, No. 05-15-00362-CV, 2015
WL 1730200, at *2 ...