In Re Bondex International, Inc.--Appeal from 128th District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-078 CV
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IN RE BONDEX INTERNATIONAL, INC.
Original Proceeding
MEMORANDUM OPINION (1)

On motion for rehearing, our opinion of March 4, 2005, is withdrawn. The following opinion is substituted in its place.

Bondex International, Inc. ("Bondex") filed a petition for writ of mandamus and request for emergency relief on March 3, 2005. Three sets of plaintiffs sued Bondex and others in a toxic tort case filed in the 128th District Court of Orange County, Texas. The plaintiffs filed a notice of non-suit as to their claims against Bondex on January 9, 2004. The trial court did not enter an order of non-suit, but on January 15, 2004, the trial court signed an order severing the claims of John F. Schwager, individually and as personal representative of the Estate of John B. Schwager, ("Schwager") into a separate suit, Cause No. A030146-C-A. Bondex's answer was included in the pleadings transferred to the severed cause. On January 10, 2005, Schwager filed a motion to withdraw its non-suit against Bondex. The trial court granted the motion without notice to the relator. On February 7, 2005, Bondex filed a motion to reconsider the withdrawal of non-suit. The trial court conducted a hearing on February 18, 2005, and denied the motion to reconsider. Relator contends the filing of a notice of non-suit placed the parties in the same position as if the suit had never been filed, that Schwager's claims are barred by limitations, and that the trial court abused its discretion in permitting the plaintiff to withdraw the notice of non-suit after limitations expired. Relator contends appeal would not be an adequate remedy because it did not participate in discovery conducted while the notice of non-suit was on file, and contends it would be a waste of public resources to force the relator to endure a trial before the trial court's error is corrected on appeal.

Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Under the facts and circumstances brought forward in its petition, the relator has not demonstrated that appeal would not be an adequate remedy. Accordingly, the motion for emergency relief and the petition for writ of mandamus are denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered March 17, 2005

Before Gaultney, Kreger and Horton, JJ.

1. Tex. R. App. P. 47.4.