Court of Appeals of Texas, Fifth District, Dallas
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
Justices Bridges, Myers, and Nowell
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. Because the trial court
lacked authority to vacate its earlier order to grant the
motion to dismiss, we conditionally grant the writ.
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.
trial court held a hearing on the motion to dismiss on May
days later, on June 11, the trial court signed an order
granting the motion to dismiss the seven causes of action.
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.
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.
OF MANDAMUS RELIEF
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.
TO DISMISS UNDER THE TCPA
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. § 27.005(a). If the
trial court does not rule on a motion to dismiss under the
TCPA within thirty days after the ...