in Re: Amy E. Davis

Deny and Opinion Filed July 30, 2015
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-15-00888-CV
IN RE AMY E. DAVIS, Relator
Original Proceeding from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-06944
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Bridges, and Justice Stoddart
Opinion by Chief Justice Wright
This petition for writ of mandamus seeks to set aside a sanctions order signed by the trial
court in 2008 following entry of judgment on a jury verdict. In May 2012, after appeal of both
the judgment1 and the sanctions order,2 the plaintiff and defendants jointly moved the trial court
to vacate the sanctions order. In an apparently unopposed petition for writ of mandamus, the
relator requests that the Court order the trial court to rule on the motion to vacate the sanctions
order or, in the alternative, requests that the Court grant the motion to vacate the sanctions order.
The Court’s power to grant a writ of mandamus is statutorily limited. We are permitted
to grant writs of mandamus “agreeable to principles of law” regulating writs of mandamus
against a judge of a district or county court in this Court’s appeals district. TEX. GOV’T CODE
1
Ritchie v. Rupe, 339 S.W.3d 275 (Tex. App.—Dallas 2011), rev’d, 443 S.W.3d 856 (Tex. 2014).
2
Davis v. Rupe, 307 S.W.3d 528 (Tex. App.—Dallas 2010, no pet.).
ANN. § 22.221(b) (West 2004). The principles of law regulating writs of mandamus in civil
cases require that a relator 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). A trial court has no “discretion” in determining what the law is
or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Here, the
trial court has correctly concluded that it lacks plenary power to grant the requested relief and
has properly declined to take action. Accordingly, we may not grant mandamus relief,
irrespective of the wishes of the parties.
The relator alternatively requests that the Court grant the joint motion to vacate the
sanctions order. We, too, lack the plenary power to do so in either the appeal related to the
sanctions order or the appeal of the judgment currently pending on remand from the supreme
court. A court of appeals’ plenary power over its judgment expires thirty days after the court
overrules all timely filed motions for rehearing or en banc reconsideration and all timely filed
motions to extend time to file such a motion. TEX. R. APP. P. 19.1(b). After its plenary power
has expired, an appellate court may only (a) correct a clerical error in its judgment or opinion; (b)
issue and recall its mandate as provided in the rules of appellate procedure; (c) enforce or
suspend enforcement of its judgment as the rules of appellate procedure or applicable laws
provide; (d) order or modify the amount and type of security required to suspend a judgment and
decide the sufficiency of the sureties under rule 24; and (e) order its opinion published in
accordance with rule 47. TEX. R. APP. P. 19.3. Our plenary power in the appeal from the
sanctions order expired on May 20, 2010, thirty days after the Court overruled the motion for
rehearing.
With respect to the appeal from the final judgment, our plenary power in that appeal
expired May 27, 2011, thirty days after the Court denied the motion for rehearing. Following
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appeal to the supreme court, the supreme court has remanded that case to this Court for further
proceedings consistent with its opinion. Ritchie v. Rupe, 443 S.W.3d at 892. The supreme
court’s remand has revived our plenary power for the limited purpose of complying with the
supreme court’s mandate. See Bramlett v. Phillips, 359 S.W.3d 304, 311 (Tex. App.—Amarillo
2012) (construing the mandate of the supreme court as vesting trial court with the limited
authority to determine the issue addressed in supreme court’s opinion), aff'd, 407 S.W.3d 229
(Tex. 2013). But our plenary power is limited to the issues specified in the mandate and the
scope of the mandate is determined by referring to the supreme court’s opinion and the mandate
itself. See In re Texas Mut. Ins. Co., 358 S.W.3d 869, 871 (Tex. App.—Dallas 2012, orig.
proceeding).
The supreme court’s mandate remanded the case to this Court for proceedings consistent
with the supreme court’s opinion. The supreme court’s opinion in turn states:
Because the court of appeals based its decision solely on the finding of oppressive
conduct, we remand this case to the court of appeals so that it may resolve
Dennard, Ritchie, and Lutes’s challenges to Rupe’s breach-of-fiduciary-duty
claim. The court of appeals previously found that the evidence does not support
the jury's valuation of Rupe’s shares. Thus, if the court of appeals concludes that
Rupe may recover on her breach-of-fiduciary-duty claim, and that the buyout
order is available as a remedy, it will need to remand the case to the trial court for
a redetermination of the value of Rupe’s shares and whether the buyout is
equitable in light of the newly determined value and the impact that a buyout at
that price will have on RIC and its other shareholders.
Ritchie v. Rupe, 443 S.W.3d at 892. We have no authority to take any action to address issues
other than those we are required to address pursuant to the mandate. See Cessna Aircraft Co. v.
Aircraft Network, LLC, 345 S.W.3d 139, 145 (Tex. App.—Dallas 2011, no pet.). To do
otherwise would exceed the scope of the mandate. Id. The supreme court’s opinion and
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mandate do not authorize us to set aside the sanctions order. Thus, we may not grant the relief
requested.3
We deny the petition for writ of mandamus.
150888F.P05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
3
Although we may not set aside the sanctions order, rule 19.3 does permit the Court to suspend enforcement of our judgment which
affirmed the sanctions order; however, relator has not requested that we suspend enforcement of the judgment. Our ruling on this petition for writ
of mandamus is without prejudice to relator’s right to file a motion in the appeal from the sanctions order requesting that the Court suspend
enforcement of its judgment in that appeal.
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