NONSUIT CASELAW

law nonsuit cases and caselaw | dismissal without prejudice | unilateral motion to dismiss by plaintiff

RECENT TEXAS SUPREME COURT DECISIONS: NONSUIT

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

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.