Opinion
NO. 01-17-00026-CV
05-23-2017
IN RE AMERICAN FISHERIES, INC., Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, American Fisheries, Inc., has filed a petition for writ of mandamus in this Court seeking to vacate the respondent trial judge's October 21, 2016 order quashing the depositions on written questions propounded by relator to Zong Dao Shao, Feng Shao, Sizhong Ge, and Jiahua Ma, and the November 11, 2016 order denying relator's motion for reconsideration of the prior order, in the underlying proceeding. This Court's January 19, 2017 Order granted the emergency motion filed by relator to stay the February 6, 2017 trial date, pending disposition of this petition, and requested a response to the petition from the real parties in interest National Honey, Inc., Jun Yang, and Lin Yang ("NHI RPIs"), which was later extended to March 10, 2017. This Court's March 28, 2017 Order granted, in part, the NHI RPIs' second extension request to file their response and lifted this Court's January 19, 2017 stay order to allow the respondent to sign an order, if any, to enforce the parties' Rule 11 Agreement.
The underlying case is American Fisheries, Inc. v. National Honey, Inc. d/b/a National Commodities Company, National Honey, Inc. d/b/a NCC Group, LTD., Jun Yang, Individually and Lin Huang, Individually, Cause No. 2013-29749, pending in the 157th District Court of Harris County, Texas, the Honorable Randy Wilson presiding.
On April 27, 2017, the NHI RPIs filed a third request for an extension of time to file their response or else they would request a dismissal of this mandamus action as moot. The NHI RPIs noted that the respondent had ordered relator's compliance with the Rule 11 Agreement by signing an order on April 25, 2017, which, among other things, required relator to notify this Court within two business days of that order that this petition had become moot.
On May 10, 2017, the NHI RPIs filed a "Notice to Court of Final Judgment" in this Court noting that the respondent had signed a Final Judgment on April 28, 2017, which was attached to their notice. The notice also stated that relator had filed a notice of appeal from the Final Judgment, which has been assigned by the Clerk of this Court to appellate cause number 01-17-00340-CV.
The April 28, 2017 Final Judgment states that, among other things, it is a "final and appealable judgment and fully disposes of all parties and claims in this 2013-29749 case." See, e.g., In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014) ("A judgment is final 'if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.'") (quoting, inter alia, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)).
Thus, because a final judgment has issued and relator has filed a notice of appeal, which remains pending under 01-17-00340-CV, relator has an adequate appellate remedy to challenge the respondent's orders that were the subject of this petition. See Walker, 827 S.W.2d at 840 (mandamus relief is not available when adequate appellate remedy exists); see also In re Esparza, No. 14-16-00748-CV, 2016 WL 5947445, at *1 (Tex. App.—Houston [14th Dist.] Oct. 13, 2016, orig. proceeding) (per curiam) (mem. op.) (citations omitted) ("Except in unusual circumstances, not applicable here, mandamus relief is not available after a final judgment has been issued because relator then has an adequate remedy by direct appeal."); see, e.g., In re Portillo, No. 14-11-00520-CV, 2011 WL 5118982, at *1 (Tex. App.—Houston [14th Dist.] Oct. 27, 2011, orig. proceeding) (citations omitted) (granting motion to dismiss mandamus petition after final order superseded order that was subject of petition, rendering petition moot).
Accordingly, we deny the petition for writ of mandamus as moot. We dismiss all pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Massengale.