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In re Southern Management Services, Inc.

Court of Appeals of Texas, Fifth District, Dallas

July 19, 2019

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

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         In this 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.

         I. Background

         Real party in interest The Land Rig Clearing House, LLC sued relators Southern Management Services, Inc. and David Disiere.

         On March 29, 2018, the trial court dismissed the suit for want of prosecution.

         On 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.

         On 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.

         On June 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).

         Relators argue that the April 12, 2019 reinstatement order is void because the trial court's plenary period had previously expired.

         II. Availability of Mandamus Review

         To 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).

         Mandamus 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 ...


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