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In re Nusbaum

Court of Appeals of Texas, Fifth District, Dallas

September 23, 2019

IN RE MARK NUSBAUM, CHRIS CLARK, AND LEAD EQUITY GROUP, LLC, Relators

          Original Proceeding from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-18-18742

          Before Justices Bridges, Myers, and Nowell

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         Mark Nusbaum, Chris Clark, and Lead Equity Group, LLC seek a writ of mandamus requiring the trial court to vacate its order denying relators' motion to dismiss under the Texas Citizens Participation Act (TCPA) because the trial court had granted the motion to dismiss in an earlier order and the court signed the order denying the motion to dismiss more than thirty days after the hearing on the motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001– .011.[1] Because the trial court lacked authority to vacate its earlier order to grant the motion to dismiss, we conditionally grant the writ.

         BACKGROUND

         Real parties in interest Wellington Management, LLC, WRC Advisers, LLC, and David Shaffer filed suit against relators, alleging relators breached their fiduciary duties, breached contracts, tortiously interfered with contracts, were unjustly enriched, and stole trade secrets by hiring the real parties in interest's employees and opening a competing business. Relators moved for dismissal under the TCPA of all the causes of action except theft of trade secrets.

         The trial court held a hearing on the motion to dismiss on May 17, 2019.

         Twenty-five days later, on June 11, the trial court signed an order granting the motion to dismiss the seven causes of action.

         On July 30, seventy-four days after the hearing, the trial court signed the "Order Reconsidering and Denying TCPA Motion to Dismiss." The July 30 order states the trial court had further considered the motion to dismiss and concluded the motion to dismiss should be denied.

         Two days later, on August 1, relators filed a motion asking the trial court to vacate the July 30 order and reconsider its ruling denying the motion to dismiss, and they attached a copy of this Court's opinion in In re Hartley, No. 05-19-00571-CV, 2019 WL 2266672 (Tex.App.-Dallas May 24, 2019, orig. proceeding [mand. pending]) (mem. op.). The trial court denied the motion to reconsider.

         AVAILABILITY OF MANDAMUS RELIEF

         Mandamus generally issues to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Mandamus is also proper, however, if a trial court issues an order beyond its jurisdiction because such an order is void. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). For example, mandamus is appropriate when a trial court issues an order after its plenary power has expired. In re Daredia, 317 S.W.3d 247, 250 (Tex. 2010) (orig. proceeding) (per curiam); In re Brookshire Grocery Co., 250 S.W.3d 66, 68–69 (Tex. 2008) (orig. proceeding). When an order is void, the relator need not show he lacks an adequate appellate remedy to obtain mandamus relief. In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

         MOTION TO DISMISS UNDER THE TCPA

         The TCPA "is directed toward the expeditious dismissal and appeal of suits that are brought to punish or prevent the exercise of certain constitutional rights." Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 (Tex.App.-Houston [14th Dist.] 2013, no pet.). In keeping with that purpose, the TCPA requires the trial court to rule on the motion to dismiss within thirty days of the hearing. Civ. Prac. ยง 27.005(a). If the trial court does not rule on a motion to dismiss under the TCPA within thirty days after the ...


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