law-nonsuit | TRCP 163 | Tex. R. Civ. P. 162. | dismissal without prejudice versus with prejudice | res judicata |
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”).
DECLARATORY JUDGMENT COUNTERCLAIM ONLY RECAST DEFENSIVE ARGUMENTS,
DID NOT PRECLUDE NONSUIT
The granting of a nonsuit is a ministerial act by the court. See Shadowbrook Apartments v. Abu-Ahmad, 783
S.W.2d 210, 211 (Tex. 1990). Accordingly, a party is entitled to mandamus relief if the trial court erroneously
refuses to grant a nonsuit and dismiss the case. See BHP Petroleum Co,. Inc. v. Millard, 800 S.W.2d 838,
840, n.7 (Tex. 1990).
“The plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a
claim for affirmative relief.” Id. at 841 (original emphasis). A defensive pleading must allege the defendant
has an independent cause of action on which he could recover to qualify as a claim for affirmative relief. Id.
at 841. Restating defenses as a claim for declaratory judgment does not deprive the plaintiff as his right to
the nonsuit. Id. Denials of the plaintiff’s cause of action do not suffice. Id. The allegations pleaded in the
defendant’s counterclaim must aver facts upon which affirmative relief could be granted. Id.
Weatherford contends that its counterclaims exceed the scope of Hanby’s suit by seeking declarations that
(1) Weatherford had no obligation to exercise the license option or negotiate a license; (2) Weatherford
owned all intellectual property at issue; and (3) Hanby failed to cooperate with preparation of a patent
application. Weatherford does not argue that any of its other claims for declaratory relief are independent of
the relief sought by Hanby.
We conclude that the declaratory relief sought by Weatherford does not exceed the scope of Hanby’s suit.
In Re John D. Hanby (Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(per curiam)
(declaratory judgment counterclaims that mirrored plaintiff's causes of action were not independent claims
that could survive nonsuit by plaintiff) (mandamus granted to vindicate plaintiff's right to nonsuit)
MOTION OR WRIT GRANTED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00896-CV In Re John D. Hanby
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble
UNILATERAL RIGHT TO NONSUIT IN TEXAS - When is it absolute?
In Texas, a plaintiff generally has a right to take a nonsuit at any time until he introduces all evidence other
than rebuttal evidence. Tex. R. Civ. P. 162. Such a nonsuit may have the effect of vitiating earlier
interlocutory orders. Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854–55 (Tex. 1995) (per curiam); Le v.
Kilpatrick, 112 S.W.3d 631, 634 (Tex. App.—Tyler 2003, no pet.). Although a nonsuit may have the effect of
vitiating a trial court’s earlier interlocutory orders, a nonsuit does not vitiate a trial court’s previously made
decision on the merits that is final for purposes of appeal. Kilpatrick, 112 S.W.3d at 634. Furthermore, any
dismissal pursuant to rule 162 shall not prejudice the right of an adverse party to be heard on a pending
claim for affirmative relief. Tex. R. Civ. P. 162. Thus, a plaintiff has an absolute right to a nonsuit as long as
the defendant has not made a claim for affirmative relief. Cook v. Nacogdoches Anesthesia Group, L.L.P.,
167 S.W.3d 476, 482 (Tex. App.—Tyler 2005, no pet.). If the defendant has a pending claim for affirmative
relief, the plaintiff’s nonsuit is effective for its own claims, but not for those of the defendant. See Tex. R. Civ.
P. 96, 162. A defendant does not seek affirmative relief by claims that merely resist the plaintiff’s right to
recover. Kilpatrick, 112 S.W.3d at 634.
Johnson v. Evans (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Hedges)
(suit for partition of land, two-stage proceedings with two final judgments, effect of nonsuit)
(amount of ad litem fee affirmed, ad litem attorney for defendants served by publication)
AFFIRMED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00610-CV Gerald K. Johnson v. Christine Evans and Frederick M. Evans
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Bascom W. Bentley
Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008)(Opinion by Justice Dale Wainwright)
(medical malpractice suits, HCLC, ILA, denial of sanctions, effect of nonsuit on defendant's right to pursue
appeal of trial court's order denying motion for sanctions)
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