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 

M E M O R A N D U M O P I N I O N 

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 nonsuited 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. 
2

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 nonsuit 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. 
3

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