Opinion issued August 4, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00400-CV
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IN RE DAVID W. WARREN, BENEFICIARY OF THE DAVID ABRAHAM
WEINER 1994 TRUST, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, David W. Warren, has filed a petition for writ of mandamus
challenging (1) the trial court’s jurisdiction to hear and rule on motions regarding a
Counter and Cross-Petition filed by the real party in interest after relator’s nonsuit
and (2) the potential disclosure of certain educational records sought in discovery
and reviewed by the trial court in camera. 1 We deny the petition.
Trial Court’s Jurisdiction Following Relator’s Nonsuit. A plaintiff’s
nonsuit does not affect a defendant’s pending claims for affirmative relief. See
TEX. R. CIV. P. 162 (“Any dismissal pursuant to this rule shall not prejudice the
right of an adverse party to be heard on a pending claim for affirmative relief or
excuse the payment of all costs taxed by the clerk.”); Epps v. Fowler, 351 S.W.3d
862, 868 (Tex. 2011) (“[A] nonsuit does not affect any pending claim for
affirmative relief or motion for attorney's fees or sanctions.”). Prior to relator’s
nonsuit, the real party in interest filed his Second Amended Cross-Claims against
the co-trustee. Real party in interest’s Second Amended Cross-Claims asserted at
least one independent claim for affirmative relief that was pending at the time of
relator’s nonsuit. Because the nonsuit did not resolve the pending affirmative
claim, the nonsuit was not a final order and the trial court’s plenary power did not
expire thirty days after the order was issued. See TEX. R. CIV. P. 329b(d),
(e); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95–97 (Tex. 2009) (holding
that trial court’s plenary power had not expired where order granting nonsuit was
not final because it did not dispose of all pending matters).
1
The underlying case is In re David Abraham Weiner 1994 Trust, cause number
425,577, pending in the Probate Court No. 4 of Harris County, Texas, the
Honorable Christine Butts presiding.
2
Production of Relator’s Educational Records. The record contains neither a
written nor an oral order in the record requiring relator’s educational records to be
produced. See TEX. R. APP. P. 52.3(k)(l)(A) (appendix to petition for a writ of
mandamus must contain “a certified or sworn copy of any order complained of, or
any other document showing the matter complained of”). Although relator asserts
that the associate trial judge mentioned that the court determined that the records
should be produced, the record demonstrates that the trial court has not ruled on the
issue. Rather, the trial court issued an order providing that, after the court’s in
camera review of the documents, relator would be entitled to raise further written
objections regarding production of the educational records and that such objections
would be heard at a subsequent hearing. To the extent that there was an indication
of the trial court’s intent to rule, an indication of a future intent by the trial court to
rule is insufficient to grant mandamus relief. See S&A Rest. Corp. v. Leal, 892
S.W.2d 855, 858 (Tex. 1995) (rendition of judgment is a present act and words
used by trial court must clearly indicate intent to render judgment at the time the
words are expressed, as opposed to future intent to render judgment).
Accordingly, we deny the petition for writ of mandamus and lift the stay
imposed in our April 29, 2015 order.
PER CURIAM
Panel consists of Justices Jennings, Bland, and Brown.
3