Opinion filed January 19, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-17-00327-CV
                                     __________

                          IN RE CLINT FLETCHER


                          Original Mandamus Proceeding


                      MEMORANDUM OPINION
      Relator, Clint Fletcher, has filed in this court an original mandamus
proceeding related to an order entered on November 14, 2017, by the 385th District
Court of Midland County in Cause No. CV53506. In the order, the Honorable Judge
Robin Darr granted a motion to compel and required Fletcher to fully and completely
respond to certain discovery requests within twenty days. Shortly after the petition
for writ of mandamus was filed, this court granted Fletcher’s motion for temporary
emergency relief and ordered a stay of the proceedings below. We now lift the stay
and conditionally grant the petition for writ of mandamus.
      In the underlying cause, Blake Reynolds sued Fletcher, alleging defamation
and tortious interference. After Fletcher filed an answer, he filed a verified plea in
abatement under the Defamation Mitigation Act (DMA), TEX. CIV. PRAC. & REM.
CODE ANN. §§ 73.051–.062 (West 2017). In the plea in abatement, Fletcher averred
that Reynolds had not requested a correction, clarification, or retraction of the
allegedly defamatory statements as required by Section 73.055 of the DMA.
Fletcher also asserted that the automatic abatement provision of Section 73.062
applied. Under Section 73.062(b), “A suit is automatically abated, in its entirety,
without the order of the court, beginning on the 11th day after the date a plea in
abatement is filed” if the plea in abatement is (1) verified and alleges that the
defendant did not receive a written request as required by Section 73.055 and (2) not
timely controverted in an affidavit filed by the plaintiff. CIV. PRAC. & REM.
§ 73.062(b).
      Reynolds filed a timely response to Fletcher’s plea in abatement. Attached to
the response were numerous documents, including an affidavit that was called a
“controverting affidavit” and a letter dated May 12, 2017. Reynolds’s affidavit,
however, did not controvert Fletcher’s plea in abatement as required by the DMA.
The affidavit merely indicated that, on May 12, 2017, one of Reynolds’s attorneys
sent a letter to Fletcher concerning defamatory statements made by Fletcher.
Nowhere in the affidavit did Reynolds aver that he or his attorneys had requested a
correction, clarification, or retraction of those statements. Furthermore, nowhere in
the May 12 letter did Reynolds’s attorney use words that could be construed as a
request for a correction, clarification, or retraction of the statements. Because
Reynolds’s affidavit did not controvert Fletcher’s assertion regarding the lack of a
written request from Reynolds under Section 73.055 to correct, clarify, or retract the
statements, the suit was automatically abated under Section 73.062(b) on the
eleventh day after the September 20, 2017 filing of the verified plea in abatement.
Id.


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      On September 29, 2017, the same day that he filed his response to the plea in
abatement, Reynolds filed a motion to compel related to various discovery requests.
The trial court heard the motion to compel on November 2, 2017, and signed an
order granting the motion to compel on November 14, 2017. Both of these actions
occurred while the case was abated pursuant to the automatic abatement provision
in Section 73.062(b).
      Mandamus relief is appropriate only if the trial court has abused its discretion
and there is no adequate appellate remedy. In re CSX Corp., 124 S.W.3d 149, 151
(Tex. 2003) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding). The burden of establishing these matters is on Fletcher. See
CSX, 124 S.W.3d at 151. A writ of mandamus may be issued when a trial court
“fails to observe a mandatory statutory provision conferring a right or forbidding a
particular action. In these instances the trial court’s discretion is not invoked, and
its failure to comply with the mandatory provision renders its order or judgment
void” or voidable. State Bar of Tex. v. Heard, 603 S.W.2d 829, 834 (Tex. 1980)
(orig. proceeding); see In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)
(holding that, if the challenged order is void, the relator need not show inadequate
appellate remedy); Dunn v. Street, 938 S.W.2d 33, 35 (Tex. 1997) (holding that a
writ of mandamus will issue to compel a trial court to set aside a void order because
signing a void order is necessarily an abuse of discretion for which the ordinary
appellate remedy is inadequate).
      Under facts similar to those in the present case, our sister courts have held that
mandamus is appropriate. See In re Anderson Constr. Co., 338 S.W.3d 190, 197
(Tex. App.—Beaumont 2011, orig. proceeding) (holding that trial court had no
discretion to compel discovery while the case was abated under a statutory
automatic-abatement provision and that the relator had no adequate remedy on
appeal); In re Classic Openings, Inc., 318 S.W.3d 428, 429 (Tex. App.—Dallas
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2010, orig. proceeding); In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522, 526–
27 (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding). We agree.
        Accordingly, we conditionally grant Fletcher’s petition for writ of mandamus.
The Honorable Judge Robin Darr is directed to vacate the order that she signed on
November 14, 2017, during the period of automatic abatement. A writ of mandamus
will issue only if Judge Darr fails to act by January 31, 2018. Nothing in this opinion
is to be read to prohibit Judge Darr from reconsidering Reynolds’s motion to compel
after the period of abatement has terminated1 and the case is reinstated.


                                                           PER CURIAM


January 19, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




        1
          In this regard, we note that, on October 23, 2017, Reynolds’s attorney sent a letter to Fletcher via
his attorneys to “supplement[]” the May 12 letter. In the October 23 letter, Reynolds specifically requested
a “correction, clarification, and or retraction” of the “injurious defamatory statements.” We also note that
an automatic abatement under Section 73.062(b) “continues until the 60th day after the date that the written
request is served or a later date agreed to by the parties.” CIV. PRAC. & REM. § 73.062(c).
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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