in Re Diogu Law Firm PLLC

Motion Denied, Petition for Writ of Mandamus Denied, and Opinion filed
October 16, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00878-CV
IN RE DIOGU LAW FIRM PLLC, ET AL, RELATORS
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 18-DCV-251076
MEMORANDUM OPINION
On Wednesday, October 10, 2018, relators Diogu Law Firm PLLC and Diogu
K. Diogu II filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code
Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relators ask this Court to
compel the Honorable James H. Shoemake, presiding judge of the 434th Judicial
District Court of Fort Bend County, to stay all trial proceedings because relator non-
suited his claims. Relators also filed an emergency motion asking this court to stay
all proceedings in the trial court pending our resolution of their petition. See Tex. R.
App. P. 52.10(a).
Relators are the plaintiffs in the underlying lawsuit. The defendants filed a
motion to dismiss under the Texas Citizens’ Participation Act (TCPA). See Tex. Civ.
Prac. & Rem. Code Ann. § 27.003. After the motion to dismiss was filed, relators
orally non-suited their claims under Texas Rule of Civil Procedure 162 and argued
their non-suit mooted the motion to dismiss. The trial court denied the non-suit,
granted the motion to dismiss, and announced it would hold a hearing on the
defendants’ request for attorneys’ fees and sanctions under the TCPA. In their
petition for mandamus, relators contend the trial court had no authority to continue
proceedings in this case after they non-suited their claims.
At any time before the plaintiff has introduced all of his evidence other than
rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit. Tex. R. Civ.
P. 162. A non-suit shall not prejudice the right of an adverse party to be heard on a
pending claim for affirmative relief. Id. A non-suit shall have no effect on any
motion for sanctions, attorney’s fees, or other costs, pending at the time of dismissal,
as determined by the court. Id. A motion to dismiss under the TCPA survives a non-
suit because a victory on the motion to dismiss, which may include attorneys’ fees
and sanctions, would afford the movants more relief than a non-suit would.
Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL
3118601, at *14 (Tex. App.—Houston [14th Dist.] June 26, 2018, no pet.) (mem.
op.) (citing Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.—Fort Worth
2014, no pet.), overruled on other grounds by Hersh v. Tatum, 526 S.W.3d 462, 467
(Tex. 2017)).
It appears from the mandamus record that the only issue remaining in the
underlying suit is the defendants’ request for attorneys’ fees and sanctions. When
that issue is determined, a final judgment may be signed and appealed.
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With certain exceptions, to obtain mandamus relief relator must show both
that the trial court clearly abused its discretion and that relator has no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding). Relators have not shown that the trial court clearly abused
its discretion or that they lack an adequate remedy by appeal.
Accordingly, we deny relators’ emergency motion to stay and petition for writ
of mandamus.
PER CURIAM
Panel consists of Justices Christopher, Jamison, and Brown
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