TEX. CASE LAW --> Nonsuit Rule in Texas (TRCP 162)

law nonsuit cases and caselaw | dismissal without prejudice | unilateral motion to dismiss by plaintiff |
TRCP 162 | Texas Rule of Civil Procedure 162 | mandamus relief to enforce right to nonsuit claim

TEXAS NONSUIT RULE - Unilateral dropping of lawsuit possible

A plaintiff has an absolute right to take a nonsuit so long as the defendant has not made a
claim for affirmative relief. TEX. R. CIV. P. 162; BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d
838, 840-41 (Tex. 1990). A plaintiff's nonsuit is effective immediately upon filing. See
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862-63 (Tex. 2010). A trial court abuses its
discretion if it refuses to dismiss when a plaintiff files a nonsuit. Id.; see also In re Greater
Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324-25 (Tex. 2009) (stating that "[g]
ranting a nonsuit is a ministerial act")..

A plaintiff generally has an absolute right to nonsuit his case, and thus obtain a dismissal
without prejudice, at any time before he has introduced all of his evidence other than rebuttal
evidence. Tex. R. Civ. P. 162; Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex.
1995) (per curiam). In Hyundai, the supreme court held that a plaintiff's right to nonsuit is subject
to a further limitation: "Once a judge announces a decision that adjudicates a claim, that claim
is no longer subject to the plaintiff's right to nonsuit." Hyundai Motor Co., 892 S.W.2d at 855.
Thus, if a plaintiff nonsuits after an adverse partial summary judgment, that interlocutory order
becomes "a dismissal with prejudice as to the issues pronounced in favor of the defendant." Id.;
see also Reynolds v. Murphy, 266 S.W.3d 141, 146 (Tex. App.-Fort Worth 2008, pet. denied)
(holding that nonsuit does not vitiate prior dismissal of claim with prejudice).

A nonsuit does not affect a motion for sanctions “pending at the time of dismissal.”
Tex. R. Civ. P. 162

Rule 162 of the Texas Rules of Civil Procedure expressly provides that a dismissal under the
rule does not affect pending motions for attorney's fees. Tex. R. Civ. P. 162; see Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 864 (Tex. 2010) (court retains power to address collateral
matters listed in Rule 162); In re Christus Spohn Hosp. Kelberg, 222 S.W.3d at 437 (when rule
is unambiguous, we construe it according to its plain meaning).

RECENT TEXAS SUPREME COURT DECISIONS: NONSUIT

Epps v. Fowler, No. 10-0283 (Tex. Aug. 26, 2011)(Opinion by Justice Debra Lehrmann)(who is
prevailing party when plaintiff nonsuits?)
Two years ago, we held that a plaintiff who obtained favorable jury findings but no damages was not
entitled to attorney's fees under contractual language entitling a prevailing party to such fees. Intercont'l
Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex. 2009). Today, we consider
whether a defendant is a prevailing party entitled to attorney's fees when the plaintiff nonsuits a claim
without prejudice. We hold that such a defendant is not a prevailing party unless the court determines,
on the defendant's motion, that the plaintiff took the nonsuit in order to avoid an unfavorable judgment.
We also hold that, because a nonsuit with prejudice immediately alters the legal relationship between
the parties by its res judicata effect, a defendant prevails when the plaintiff nonsuits with prejudice.
Because the trial court has not had the opportunity to determine whether the plaintiff nonsuited in order
to avoid an unfavorable judgment, we reverse the court of appeals' judgment and remand the
defendant's claim for attorney's fees under the contract to the trial court. Finally, we hold that the court
of appeals erred by not remanding the case to allow the trial court to dispose of the Eppses' pending
claim for sanctions under chapter 10 of the Civil Practice and Remedies Code, and accordingly remand
for the trial court to dispose of that alternative claim if it determines that fees are not available under the
contract.
CHRISTOPHER N. EPPS AND LAURA L. EPPS v. BRUCE FOWLER, JR. AND STEPHANIE L. FOWLER;
from Williamson County; 3rd district (03-08-00055-CV, ___ SW3d ___, 02-10-10)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Jefferson, Justice
Wainwright, Justice Green, Justice Willett, and Justice Guzman joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Johnson joined. [pdf]
Link to e-briefs: EPPS v. FOWLER

Travelers Ins. Co. v. Joachim, No. 08-0941 (Tex. May 14, 2010) (Green)
(erroneous order dismissing suit after nonsuit with prejudice held to have res judicata effect in the
absence of direct attack by appeal or bill of review)
THE TRAVELERS INSURANCE COMPANY (THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD
CONNECTICUT) v. BARRY JOACHIM; from Lubbock County; 7th district (07-06-00322-CV, 279 SW3d
812, 09-25-08)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court. [pdf]
See Electronic Briefs in Cause No. 08-0941 THE TRAVELERS INS. CO. v. JOACHIM

In Re Greater Houston Orthopaedic Specialists, Inc. No. 08-0820 (Tex. Aug. 28, 2009)(per curiam)
(effect of misnomer, nonsuit and counterclaim)
IN RE GREATER HOUSTON ORTHOPAEDIC SPECIALISTS, INC.; from Cameron County;
3th district (13-08-00366-CV, ___ SW3d ___, 09-11-08)
stay order issued October 17, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion

Crites, MD v. Collins, No. 07-0315 (Tex. May 1, 2009)(per curiam)
(defendant's counterclaim for sanctions in the form of attorney's fees may proceed following med-mal
plaintiff's nonsuit)(finality of judgment, effect of nonsuit)
Our holding and rationale in Villafani makes clear, however, that a motion for sanctions under either
Article 4590i or Chapter 74 survives a nonsuit, regardless of whether the movant brings the motion
before or after the nonsuit, provided the motion is filed within the trial court’s plenary jurisdiction. In
Villafani, we reaffirmed that “‘[r]ule 162 merely acknowledges that a nonsuit does not affect . . . a
pending sanctions motion; it does not purport to limit the trial court’s power to act.’” 251 S.W.3d at 469
(quoting Schexnider, 940 S.W.2d at 596).
For these reasons, we hold that the court of appeals erroneously determined that the Collinses’ notice
of nonsuit prevented Dr. Crites from seeking sanctions under Chapter 74.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008)
(Phil Johnson) (16- page opinion in pdf) (condemnation, reduction of amount of land to be taken, partial
nonsuit by amendment of pleadings, amendment deleting claim as motion to dismiss, attorneys fees and
costs for property owner, statutory construction) (condemnation, implications of reduction of amount of
land to be taken on land owner's recovery of fees, partial nonsuit)
The Court affirms the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered an opinion concurring in part and dissenting in part.

In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Paul Green)(mandamus
granted) (mandamus granted to enforce first transfer of venue, nonsuit and refiling in third county
disapproved)
The Court conditionally grants the petition for writ of mandamus.
Justice Green delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Chief Justice Jefferson and Justice O'Neill
joined.

Villafani v s . Trejo , M.D., No. 06-0501 (Tex. Apr. 18, 2008)(Wainwright) (HCLC, ILA, denial of sanctions,
effect of nonsuit on defendant's right to appeal denial of motion for sanctions)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered the opinion of the Court.

Barrera, MD v s . Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam)(appealability of order denying
doctor's motion for sanctions after plaintiff nonsuited HCLC suit and court dismissed without prejudice)
respondent's motion to supplement response brief on the merits granted
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that
court.

Regent Care Center of San Antonio II, LP v s . Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam)
(HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order
denying sanctions)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that
court.

Barrera, MD v s . Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam)(appealability of order denying
doctor's motion for sanctions after plaintiff nonsuited HCLC suit and court dismissed without prejudice)
respondent's motion to supplement response brief on the merits granted
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that
court.

Texas Mutual Ins. Co. v. Ledbetter, No. 06-0814 (Tex. Apr. 4, 2008)(Brister)(workers comp, subrogation
claim)
motion for emergency relief from declaratory judgment action dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to
the trial court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Willett joined, and in which Justice
Johnson joined as to Parts I through III and Part V.

COURT OF APPEALS DECISIONS (petition denied by Supreme Court)

08-0312
PRUDENCE DIVINCENZO v. SEARS, ROEBUCK AND CO.; from Dallas County; 5th district
(05-07-00525-CV, ___ SW3d ___, 03-10-08, pet. denied Jun 2008)(motion for new trial, nonsuit)
Divincenzo's voluntary non-suit vitiated all interlocutory orders. See In re Bennett, 960 S.W.2d 35, 38
(Tex. 1997). Indeed, Divincenzo's non- suit extinguished the pending case or controversy. See Univ. of
Tex. Med. Branch at Galveston v. Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). Divincenzo's own action
in dismissing her claims has rendered her appeal moot. Accordingly, we dismiss this appeal.

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