COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-075-CV
IN RE COLBY GLENN RIGGS RELATOR
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ORIGINAL PROCEEDING
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OPINION
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Relator Colby Glenn Riggs filed a petition for writ of mandamus asking this
court to order the Respondent, Steve M. King, Judge of Probate Court No. 1 of
Tarrant County to dismiss, upon his notice of nonsuit, Relator’s claims against two
of the Real Parties in Interest, Edward D. Jones & Co., L.P. and financial advisor
W illiam B. Atkins, III, which the trial court has ordered to arbitration. Relator also
requested that this court lift the stay of his remaining claims against Real Parties in
Interest Dennis Lee Bailey (“D. Bailey”)—Individually and as Independent Executor
of the Estate of Dorothy Alice Riggs, Deceased, and as Co-Trustee of the DAR
Revocable Trust, and Pamela Bailey (“P. Bailey”)—Individually, and as Co-Trustee
of the DAR Revocable Trust (collectively the “Baileys”). For the reasons that follow,
we conditionally grant relief.
On April 21, 2008, Relator filed his original petition in the trial court seeking
damages against the Real Parties in Interest primarily arising from the Real Parties’
alleged mismanagement and/or misuse of funds of which Relator is a beneficiary.
After answering Relator’s petition, on July 29, 2008, Edward D. Jones and Atkins
filed a motion to compel arbitration and a motion to stay proceedings as to the
Baileys during the pendency of the arbitration. Relator filed a response to the motion
to compel arbitration on January 16, 2009. On February 29, 2009, the trial court
signed an order compelling arbitration as to the claims against Edward D. Jones and
Atkins and staying the underlying proceedings against the Baileys.
On July 31, 2009, Relator filed a notice of nonsuit, a motion to dismiss without
prejudice as to Edward D. Jones and Atkins, and a motion to lift the stay of his
claims against the Baileys. The trial court denied Relator’s motions and he filed this
original proceeding.
Relator contends that the trial court abused its discretion by denying his
motion to dismiss and motion to lift the stay. The trial court’s order does not contain
its reasons for denying Relator’s motions.
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Under Texas law, a plaintiff has an absolute right to take a nonsuit if the
defendant has not made a claim for affirmative relief. Tex. R. Civ. P. 162 1 ; see also
Travelers Ins. Co. v. Joachim, No. 08-0941, 2010 W L 1933022, at *1, *2 (Tex. May
14, 2010); Villafani v. Trejo, 251 S.W .3d 466, 468–69 (Tex. 2008); BHP Petroleum
Co. v. Millard, 800 S.W .2d 838, 840–41 (Tex. 1990); Greenberg v. Brookshire, 640
S.W .2d 870, 871 (Tex. 1982); Moseley v. Behringer, 184 S.W .3d 829, 833–34 (Tex.
App.—Fort W orth 2006, no pet). To assert a claim for affirmative relief, a defendant
must assert a cause of action, independent of the plaintiff’s claim, on which he could
recover benefits, compensation, or relief. See Gen. Land Office of State of Tex. v.
OXY, U.S.A., Inc., 789 S.W .2d 569, 570 (Tex. 1990). A request for arbitration of
claims—like that made by Edward D. Jones and Atkins here—is not a cause of
action independent of the plaintiff’s claim, nor one in which the defendant could
recover benefits if the plaintiff abandons his or her cause of action; thus, it is not a
claim for affirmative relief. See id. 2 If a defendant does nothing more than resist a
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Such a dismissal shall not prejudice an adverse party’s right to recover on
a claim for affirmative relief or a motion for sanctions, attorney’s fees, or costs. Id.
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In their response to Relator’s motion, Edward D. Jones and Atkins rely on
opinions from two of our sister courts which hold that a claim for arbitration survives
the filing of a nonsuit because a claim for arbitration is a claim for relief independent
of the plaintiff’s causes of action. See Quanto Int’l Co. v. Lloyd, 897 S.W .2d 482,
487 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding); see also Joe
Williamson Constr. Co. v. Ramondville ISD, 251 S.W .3d 800, 805–06 (Tex.
App.—Corpus Christi 2008, no pet.) (citing Quanto, 897 S.W .2d at 487.). W e
respectfully disagree with the reasoning expressed by our sister courts in Quanto
and Joe Williamson. See Gen. Land Office, 789 S.W .2d at 570 (holding that to
qualify as a claim for affirmative relief, a defensive pleading must allege that the
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plaintiff’s right to recover, the plaintiff has an absolute right to the nonsuit. Id.;
Newman Oil Co. v. Alkek, 614 S.W .2d 653, 655 (Tex. App.—Corpus Christi 1981,
writ ref’d n.r.e.).
If a defendant has no pending claim for affirmative relief, a trial court’s refusal
to grant a nonsuit violates a ministerial duty. Hooks v. Fourth Court of Appeals, 808
S.W .2d 56, 59 (Tex. 1991). A nonsuit extinguishes a case or controversy from the
moment the motion is filed or when an oral motion is made in open court. See FKM
P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W .3d 619, 632–33
(Tex. 2008); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.
Shultz, 195 S.W .3d 98, 100 (Tex. 2006); Shadowbrook Apartments v. Abu-Ahmad,
783 S.W .2d 210, 211 (Tex. 1990); see also Greenberg, 640 S.W .2d at 872.
W e hold that the trial court abused its discretion by denying Relator’s motion
to dismiss without prejudice the claims against Edward D. Jones and Atkins and
Relator’s motion to lift the stay of the Bailey claims. Under the facts of this case,
Relator has no adequate remedy at law. See In re Prudential Ins. Co. of Am., 148
S.W .3d 124, 135–38 (Tex. 2004) (orig. proceeding). Accordingly, we conditionally
defendant has a cause of action, independent of the plaintiff’s claim, on which he
could recover benefits, compensation or relief, even though the plaintiff may
abandon his cause of action or fail to establish it); Moseley, 184 S.W .2d at 833–34;
Gillman v. Davidson, 934 S.W .2d 803, 804–05 (Tex. App.—Houston [1st Dist.] 1996,
orig. proceeding) (Hedges, J., dissenting); Quanto, 897 S.W .2d at 488 (Hutson-
Dunn, J., dissenting). Neither Quanto nor Joe Williamson were reviewed by our
higher court and, thus, they are persuasive but not binding on the other intermediate
appellate courts of our state. See Aguilar v. Anderson, 855 S.W .2d 799, 810–11
(Tex. App.—El Paso 1993, writ denied).
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grant Relator’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). W e are
confident that the trial court will vacate its January 26, 2010 order and render an
order granting (1) Relator’s motion to dismiss without prejudice his claims against
Edward D. Jones & Co., L.P. and W illiam B. Atkins, III and (2) Relator’s motion to
lift the stay now in effect against Real Parties in Interest, the Baileys, in accordance
with this opinion. W e instruct our clerk to issue the writ only if the trial court fails to
do so.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: May 19, 2010
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