After a court ordered mediation, I reached a settlement agreement with two defendants. The agreement require that defendants pay a sum of money within a certain number of days after the effective date of the agreement or me non suiting my claims with prejudice (whichever is later). One defendant paid, the other has not. I know I have to file a separate breach of contract suit against the non paying defendant. However, I was wondering if I could file a motion under Tex. Rule 329 and ask the judge to modify the voluntary dismissal order with prejudice against the nonpaying defendant to a order of dismissal without prejudice. The case is still within the court 30-day plenary power?
Rule 329 pertains to default judgments where Defendant was not personally served. Rule 320 is likely the more appropriate basis for such a motion. You have to show good cause and will need to research whether the facts in your case constitute such good cause. I suspect that they do not.
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