Opinion issued August 4, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00471-CV
———————————
IN RE DANIEL W. WARREN, BENEFICIARY OF THE
DANIEL STEVEN WEINER 1996 TRUST, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Daniel W. Warren, has filed a petition for writ of mandamus
challenging 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.1
We deny the petition.
1
The underlying case is In re Daniel Steven Weiner 1996 Trust, cause number
425,576-401, pending in the Probate Court No. 4 of Harris County, Texas, the
Honorable Christine Butts presiding.
Background
Daniel and his two brothers are each beneficiaries of separate trusts for
which their parents, Andy Weiner and Katherine Warren, serve as co-trustees.
After Daniel’s brother, David, filed suit against Weiner regarding his trust, Daniel
intervened in David’s case to assert similar claims against Weiner regarding his
own trust. Weiner subsequently filed his Second Amended Cross-Claims against
Katherine Warren, as co-trustee, regarding both trusts. The trial court later issued
an order (1) severing Daniel’s case into its own cause number, (2) ordering that
“all prior discovery, orders, motions, responses and answers pertaining to Daniel
W. Warren in [David’s case] shall apply in the same manner as if such had
occurred in [Daniel’s new case]” and (3) directing the clerk to transfer twenty-four
listed items filed in David’s case to Daniel’s new case. Weiner’s Second Amended
Cross-Claims were not included in the severance order’s list of items to be
transferred to Daniel’s new case. Daniel subsequently nonsuited his claims against
Weiner. After the nonsuit, Weiner filed a Counter and Cross-Petition in the case
and the trial court held hearings and ruled on motions regarding the Counter and
Cross-Petition.
Analysis
In this mandamus proceeding, Daniel asserts that he had an “absolute right
to nonsuit his case and be dismissed” and challenges the trial court’s jurisdiction to
2
hear and rule on matters following the nonsuit. However, 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.”). Acknowledging this, Daniel argues that “no claims
of any kind” were pending at the time of his nonsuit because Weiner’s Second
Amended Cross-Claims were not included in the severance order’s list of items to
be transferred to his case. We disagree.
Although Weiner’s Second Amended Cross-Claims were not included in the
list of items to be transferred to Daniel’s case, the trial court’s severance order
indicates a clear intent to transfer all matters relating to Daniel to his new case. The
Second Amended Cross-Claims are included in the record in this original
proceeding and demonstrates that Weiner asserted claims against the co-trustee
regarding both David and Daniel’s trusts. No reasonable explanation has been
presented as to why the severance order would sever all matters relating to Daniel
into a new case, but leave Weiner’s cross-claims regarding Daniel’s trust to remain
pending in David’s case. Accordingly, we hold that the claims in the Second
Amended Cross-Claims were asserted in Daniel’s case prior to his nonsuit.
3
Furthermore, the Second Amended Cross-Claims asserted at least one independent
claim for affirmative relief. 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).
Conclusion
For the foregoing reasons, we deny the petition for writ of mandamus and
lift the stay imposed in our May 27, 2015 order.
PER CURIAM
Panel consists of Justices Jennings, Bland, and Brown.
4