NO. 07-10-0107-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 8, 2010
JIM JONES TRIGG, JR., Attorney in Fact For
MARY JANE TRIGG,
Appellant
v.
PATTI T. MOORE,
Appellee
___________________________
FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY;
NO. 423-500; HONORABLE CHRISTOPHER D. DUGGAN, PRESIDING
Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jim Jones Trigg, Jr., attorney in fact for Mary Jane Trigg (Trigg), appeals the
dismissal without prejudice of his lawsuit against Patti T. Moore (Moore), his sister. The
order of dismissal was issued in response to a motion for nonsuit filed by Trigg. Before
us, he contends that the judgment should be reversed because 1) he never served
notice on his opponent, 2) he had an unfettered right to withdraw his nonsuit before the
trial court issued a written order dismissing the cause, and 3) the trial court should have
granted his request to reinstate the suit. We affirm.
Background
Trigg filed suit on March 24, 2009, seeking to invalidate a deed from his mother
to his sister. Allegedly believing that the dispute was settled, he filed, on May 22, 2009,
a motion to nonsuit the cause. However, Trigg attempted to move, on July 30, 2009, to
withdraw the nonsuit. The trial court convened a hearing on that motion, orally denied
it, and orally dismissed the proceeding. The trial court then executed, on December 17,
2009, a written order memorializing the dismissal without prejudice. Thereafter, Trigg
timely moved for a new trial and sought reinstatement of the suit. Upon convening a
hearing on that motion, the trial court learned that a second action involving the same
parties and claims had been initiated by Trigg. It then denied the motion for new trial.
Issues
Regarding Trigg’s contentions that the cause could not be dismissed because he
never served the notice on opposing counsel and he attempted to withdraw it before a
written dismissal order was executed, we say the following. It has long been the law
that a motion for nonsuit is effective the moment it is filed. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010); University of Tex. Med. Branch at
Galveston v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). At that instant, the
action is extinguished. Travelers Ins. Co. v. Joachim, 315 S.W.3d at 862. Only
collateral matters or claims for affirmative relief previously initiated by the opposing
party and independent of the plaintiff’s cause of action remain pending. University of
Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d at 100-01 (stating
2
that plaintiff's right to nonsuit shall not prejudice the right of an adverse party to be
heard on pending claims for affirmative relief, that the dismissal shall have no effect on
any motion for sanctions, attorney's fees, or other costs pending at the time of
dismissal, and that the claims for affirmative relief must allege a cause of action,
independent of the plaintiff's claim, on which the claimant could recover compensation
or relief); 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, and a plaintiff's
right to a nonsuit exists from the moment a written motion is filed or an oral motion is
made in open court, unless the defendant has, prior to that time, sought affirmative
relief”). More importantly, the sole requirement for the case to be extinguished is filing
the motion with the court clerk. Traveler’s Ins. Co. v. Joachim, supra; University of Tex.
Med. Branch at Galveston v. Estate of Blackmon, supra.
If the foregoing authority is to remain the law, then we cannot but hold that it did
not matter whether Trigg served notice of his motion on his opponent or withdrew the
notice before a formal dismissal order was signed. Again, the sole requirement is filing
the notice or motion with the clerk. There were no pending claims for affirmative relief
initiated by Moore or collateral issues before the court when Trigg filed his motion with
the clerk. Thus, all that remained to be done was for the trial court to perform the
ministerial act of memorializing the dismissal via written order.1
1
To the extent Trigg suggests that a formal written order of dismissal is a condition to the
extinguishment of the action, he is mistaken. That contention contradicts what the Supreme Court has
said throughout the years. Rather, a written order of dismissal is a mere formality memorializing what
already occurred and serves the purpose of triggering appellate deadlines and the time period within
which the trial court’s plenary jurisdiction begins to end. See University of Tex. Med. Branch at Galveston
v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (recognizing that without a written order of
nonsuit, the period of the court’s plenary power and the appellate deadlines do not begin to run). And,
3
As for Trigg’s contention that “[i]n fact, the [dismissal] Order of the Court was
never based on any pleading submitted by Defendant or Plaintiff to dismiss . . . but
rather it was based on [the court’s] own motion and action . . . ,” we view the utterance
as disingenuous. While a motion may not be a pleading, it nonetheless was Trigg’s own
motion to nonsuit that caused the proceeding to end. The record contains no motion of
the trial court to dismiss or otherwise terminate litigation. It simply acted upon that of
Trigg. To suggest otherwise is rather deceitful, not good faith argument. Nor does his
allegation that nonsuit was taken due to an erroneous ruling of the trial court comport
with the factual record. Interestingly, neither Trigg nor his attorney cited us to the
supposed trial court ruling that forced them to take a nonsuit. Nor did our review of the
record disclose any such decision. While there sometimes may be a place for
aggressive advocacy, there is never a place for false accusation or contention, and it
seems that both appellant and his attorney crossed that border here.
As for Trigg’s supposition that he had a “right to withdraw his motion for nonsuit”
before the trial court issued a written dismissal order, we note his failure to cite any
supporting authority. Nor did our search uncover any. This may be because
recognizing such a right could render legal proceedings farcical. See Chester v. Texas
Employers Ins. Ass’n, 265 S.W.2d 648, 650 (Tex. Civ. App.–Texarkana 1954, writ ref’d
n.r.e), quoting Sanchez v. Atchison T. & S.F.R. Co., 90 S.W. 689 (Tex. Civ. App. 1905,
no writ) (stating that “[i]f a plaintiff can, as seemingly contended . . . enter a nonsuit
while it is true that the trial court retains jurisdiction over the action for certain matters, it cannot simply
refuse to dismiss the cause and treat it like any other on its docket.
4
whenever he may doubt his ability to obtain a verdict, and then on the mere asking,
without any further showing, have the cause reinstated, cases might be tried an
indefinite number of times, and the proceedings of courts rendered farcical”). It does
not take much imagination to see how a litigant could use an unfettered ability to
dismiss and reinstate to utterly disrupt discovery, a trial, or the orderly proceeding of the
cause in general. Nor need one think hard to envision how such power could vitiate the
trial court’s authority to manage its docket. So, if any such right is to be created, we will
leave that for either the Supreme Court or state legislature.
This is not to say that a plaintiff lacks options upon realizing the impropriety of
nonsuiting his action. For instance, he has the ability to move the court to reinstate the
cause or for a new trial. See Harris County Appraisal Dist. v. Wittig, 881 S.W.2d 193,
194 (Tex. App.–Houston [1st Dist.] 1994, no writ) (wherein the motion to reinstate was
filed before the trial court signed the dismissal order). More importantly, obligating the
litigant to so move conforms with the procedure normally invoked when a cause has
ended and a litigant does not like what happened. See TEX. R. CIV. P. 320 (motion for
new trial). It also protects the trial court’s authority to control the proceeding. This is so
because the court has the discretion to permit reinstatement when appropriate. See
Griffin v. Miles, 553 S.W.2d 933, 935 (Tex. Civ. App.–Houston [14th Dist.] 1977, writ
dism’d) (stating that whether to reinstate lies within the trial court’s sound discretion);
Chester v. Texas Employers Ins. Ass’n, 265 S.W.2d at 651 (stating the same). And,
this leads us to the remaining issues raised by Trigg.
Reinstatement at bar was sought because Trigg’s opponent allegedly breached a
settlement agreement derived after suit was filed. Apparently, he dismissed his
5
complaint before completing settlement. While the record before us does mention
something about an amicable resolution of the dispute having been attempted, Trigg
again failed to cite us to an agreement that comports with Rule 11 of the Texas Rules of
Civil Procedure. Nor did we uncover a written agreement expressing the terms of a
settlement, signed by counsel or the litigants and filed of record or made in open court
purporting to dispose of the suit. This is of import since a trial court does not abuse its
discretion by refusing to reinstate under the circumstances before us. See Watson v.
Reserve Nat’l Ins. Co., 654 S.W.2d 569, 570 (Tex. App.–Waco 1983, no writ) (holding
that the refusal to reinstate was not an abuse of discretion because the alleged
settlement agreement failed to comply with Rule 11); Griffin v. Miles, supra (holding the
same).
Finally, the trial court noted that it did not want to waste time and resources trying
a case where the nonsuit might be upheld on appeal. Moreover, by the time Trigg’s
motion for new trial was heard, he had already begun another suit free of the potential
complications of a prior nonsuit. These circumstances touch upon matters of judicial
economy which in turn is a factor that the trial court legitimately could have considered
in refusing to grant reinstatement.
In sum, we overrule each issue and affirm the dismissal order of the trial court.
Brian Quinn
Chief Justice
6