In re Wilmington Trust, 14-17-00074-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Martha Hill Jamison, Justice
• Citation: 524 S.W.3d 790
• Parties: IN RE WILMINGTON TRUST, NATIONAL ASSOCIATION, Relator
• Docket Number: NO. 14-17-00074-CV.,14-17-00074-CV.
• Decision Date: 09 March 2017

524 S.W.3d 790

IN RE WILMINGTON TRUST, NATIONAL ASSOCIATION, Relator

NO. 14-17-00074-CV.

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed March 9, 2017

Chad Flores, Alistair B. Dawson, Joshua Smith, Houston, TX, for Relator.

524 S.W.3d 791

Deirdre Carey Brown, Edward L. Rothberg, Houston, TX, for Real Party in Interest.

Panel consists of Justices Christopher, Jamison, and Donovan.

OPINION

Martha Hill Jamison, Justice

The relator is Wilmington Trust, National Association (Plaintiff), and the real party-in-interest is Jsin–Chi Su (Defendant).

On January 27, 2017, Plaintiff filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004) ; see also Tex. R. App. P. 52. In the petition, Plaintiff asks this court to compel the Honorable Elaine Palmer, presiding judge of the 215th District Court of Harris County, to vacate her October 10, 2016 Order that strikes Plaintiff's Motion to Resolve the Order of March 14, 2016 and denies Plaintiff's Motion to Substitute Counsel. The trial court's March 14 Order states, "[T]his Court is of the opinion that Defendant's objections to the jurisdiction of the Court, objections to venue and motion to dismiss based on improper venue and the motion to quash service should be GRANTED." The trial court's striking of and refusal to consider the merits of Plaintiff's Motion to Resolve the Order of March 14, 2016 and its denial of the Motion to Substitute Counsel appears to be based on the trial court's determination that its March 14 Order was a final judgment and that its plenary jurisdiction to grant the requested relief had expired. The March 14 Order is not a final judgment because it does not contain any decretal language disposing of the action. The trial court therefore abused its discretion by refusing to consider the merits of Plaintiff's Motion to Resolve the March 14 Order and Plaintiff's Motion to Substitute Counsel.

We conditionally grant the petition for writ of mandamus.

I. MANDAMUS STANDARD

To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co ., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The appellate court reviews the trial court's application of the law de novo. See Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

Mandamus relief is proper when a trial court erroneously holds that its plenary power has expired, particularly when the trial court fails to recognize that an order is interlocutory rather than final. See In re Bro Props., Inc ., 50 S.W.3d 528, 529, 531 (Tex. App.–San Antonio 2000, orig. proceeding) ; In re Metcalfe , No. 05-06-01281-CV, 2007 WL 4064, at *2 (Tex. App.–Dallas Jan. 2, 2007, orig. proceeding) (mem. op.).

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff sued Defendant for breach of a guarantee for the payment of a loan of $91.6 million dollars for the purchase of a maritime cargo vessel.

Before filing an answer, Defendant filed "Hsin Chi Su's Special Appearance and, Subject thereto, Objections to Venue and Motion to Dismiss Based on Improper Venue and Motion to Quash Service" (the motions). Plaintiff responded to the motions with a single filing that asked the

524 S.W.3d 792

court to deny all three motions. The trial court's ruling on the motions is the March 14 Order, which states only that the motions should be granted.

Plaintiff claims that it did not receive actual notice of the March 14 Order until...