Edward Cox and Theresa Cox v. Franklin Micah May Vanderburg, Premier Land, LLC, and Cecilia Gutierrez De Cruz

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-20-00078-CV

EDWARD COX AND THERESA COX, Appellants

V.

FRANKLIN MICAH MAY VANDERBURG, PREMIER LAND, LLC,
AND CECILIA GUTIERREZ DE CRUZ, Appellees

On Appeal from the 62nd District Court
Hopkins County, Texas
Trial Court No. CV43881

Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
 MEMORANDUM OPINION

Edward and Theresa Cox filed a voluntary nonsuit of their claims against two defendants,

Premier Land Liquidators, LLC (Premier), and Cedar Creek Preservation, LLC (Cedar Creek).

On appeal, they argue that the trial court abused its discretion by dismissing their claims with

prejudice after it found that the nonsuit was taken for an improper purpose. Because we find no

abuse of discretion in the trial court’s ruling, we affirm the trial court’s dismissal of the Coxes’

claims with prejudice.1

I. Introduction and Summary of the Trial Court Proceedings

A. General Overview of the Litigation

On October 27, 2018, Cedar Creek held a real estate sales event marketed by Premier.

Premier arranged for a sixty-car caravan to carry prospective real estate purchasers to view

several of Cedar Creek’s properties in and around Sulphur Springs, Texas. Premier contacted the

Hopkins County Sheriff’s Office (HCSO) to provide a police escort for the caravan. The HCSO

instructed Premier’s corporate representative, Jim Deal, to have the caravan drivers stay close to

the car in front of them and drive through red lights in order to maintain the caravan. Deal

radioed those instructions to the drivers.

Franklin Vanderburg was an independent contractor hired by Premier to drive one of the

caravan vehicles. The Coxes were passengers in Vanderburg’s vehicle. Their vehicle was hit by

another car driven by Cecilia Gutierrez De Cruz when Vanderburg drove through a red light.

Vanderburg admitted that De Cruz had the green light but asserted that he proceeded through the

1
After the nonsuit, the Coxes re-filed their claims in a new lawsuit. In companion cause number 06-21-00015-CV,
the Coxes argued that the trial court erred in finding that the newly filed suit was barred by res judicata.
2
intersection anyway at the instruction of the HCSO. The Coxes sued De Cruz, Vanderburg,

Premier, and Cedar Creek to recover damages for their personal injuries sustained in the

accident. They eventually settled with Vanderburg and De Cruz and proceeded with their claims

against Premier and Cedar Creek.

During the course of the continuing litigation with Premier and Cedar Creek, the Coxes

nonsuited Cedar Creek. Afterward, the Coxes took Deal’s deposition, and the trial court’s

deadlines to amend pleadings and move for summary judgment expired. Then, without

obtaining leave of court, the Coxes filed their tenth and eleventh amended petitions bringing

Cedar Creek back into the lawsuit. After being brought back into the litigation a second time,

Cedar Creek (and Premier) moved to strike the Coxes’ tenth and eleventh amended petitions

because they were untimely filed, moved to strike the opinions of Sulphur Springs Police Officer

Terry Miller, who investigated the accident, because he was not qualified to give those opinions,

and moved for summary judgment. The trial court granted Cedar Creek’s and Premier’s motions

to strike Miller’s opinions and set a hearing on the defendants’ summary judgment motions.

During the summary judgment hearing, the trial court indicated its intent to grant Premier’s and

Cedar Creek’s motions to strike the Coxes’ tenth and eleventh amended petitions. At that point,

the Coxes nonsuited Cedar Creek a second time—which was less than forty-five days before

trial—and filed a new lawsuit naming the same parties via a petition that was worded the same

way as the stricken eleventh amended petition, with the exception of one footnote. 2

2
The footnote read,
Plaintiffs originally filed suit on December 3, 2018. The case was assigned to Judge Biard. See
Edward Cox and Theresa Cox v. Franklin Micah May Vanderburg, Cause No. CV43881; In the
62nd Judicial District Court of Hopkins County, Texas. Plaintiffs subsequently non-suited that
3
 B. Premier and Cedar Creek Moved for Sanctions

After the Coxes nonsuited Cedar Creek the second time, both Premier and Cedar Creek

filed motions to be adjudicated prevailing parties and motions for sanctions. Premier and Cedar

Creek argued that the nonsuit and the new lawsuit were filed to circumvent the trial court’s

ruling striking the tenth and eleventh amended petitions. They also alleged that the nonsuit was

taken to avoid the discovery deadline in the first lawsuit and because it would allow the Coxes to

serve additional interrogatories, obtain more discovery, and designate a witness to replace Miller

in the newly filed suit. The motions pointed out that the nonsuit was filed less than forty-five

days before trial after close to two years of litigation and would cause unnecessary delay and

increased litigation costs.

At the hearing on the motion for sanctions, Cedar Creek argued that the Coxes knew

about their involvement well before Deal’s deposition and that the argument that Deal’s

testimony “surprised them or changed [something] that required new direct claims or [a] new

basis for claims [wa]s at the very least disingenuous, but in this case [they] believe[d] bad faith.”

The Coxes’ attorney filed an affidavit to their opposition to the sanctions motions admitting that

his purpose in taking the second nonsuit was to overcome the trial court’s order striking the

Coxes’ eleventh amended petition. The trial court found that the Coxes’ counsel acted in bad

faith and deemed the nonsuit to be with prejudice. The trial court found that Premier and Cedar

case without prejudice, and within the statute of limitations. No counterclaims were pending at
the time of the non-suit. If this lawsuit is assigned to the 8th Judicial District Court, Plaintiffs
agree to an intra-county transfer, in order to have this case heard by Judge Biard. Further,
Plaintiffs agree to have Cedar Creek’s motion for summary judgment, which was previously and
fully briefed, re-noticed for an oral hearing at a time convenient for the Court and counsel.
4
Creek were prevailing parties and ordered the Coxes to pay costs. Because this case involves a

“death penalty” sanction, we will recite the procedural facts leading to that decision in detail.

II. Factual and Procedural Background

A. The Parties’ Pleadings

1. Claims and Defenses

The Coxes alleged that Vanderburg was “operating a vehicle in the furtherance of a

mission for the benefit of Premier and/or Cedar Creek” and was subject to their control or, in the

alternative, held himself out as an employee or agent of Premier or Cedar Creek. The Coxes also

alleged that Vanderburg’s negligence was imputed to Premier and Cedar Creek “under the

doctrine of respondeat superior and/or agency law.” Premier and Cedar Creek answered and

asserted that the Coxes’ injuries were caused by third parties, that there were intervening

superseding causes for the injuries, and that Theresa failed to mitigate her injuries by wearing a

seat belt. Premier denied that Vanderburg was its agent or employee, that he was working on its

behalf, or that it owned the vehicle being driven by Vanderburg. Premier also argued that it

could not be held liable in the capacity in which it was sued because it was acting only as Cedar

Creek’s marketing member.

2. The Coxes’ Motions for Summary Judgment and Partial Summary
Judgment and Premier’s Response

The Coxes moved for summary judgment against Premier and for partial summary

judgment on the issue of respondeat superior. Their motion was countered by Vanderburg’s

deposition testimony, discovery responses, an affidavit by Deal, and the limited-liability

company agreement of Cedar Creek showing that Premier was its marketing member. Because
5
the timing of the Coxes’ knowledge of Cedar Creek’s involvement is at issue, we discuss the

evidence attached to Premier’s summary judgment response below.

a. Vanderburg’s Deposition

In his November 21, 2019, deposition, Vanderburg testified that Premier sent him a check

for the job and paid for the rental car he used to drive the Coxes. He also said that, while the

other caravan drivers signed acknowledgement forms stating that they were courtesy shuttle

drivers for Cedar Creek, he never signed the acknowledgement form for this event, even though

he had done so in the past for other events. The form Vanderburg was supposed to sign stated,

I have agreed to serve for one day as a Courtesy Shuttle Driver for Cedar Creek
Preservation, LLC, in connection with its one day only offering to sell portions of
its land . . . . scheduled for Saturday, October 27, 2018. . . . I will be furnished a
radio as a means of communication . . . . I will use this radio to maintain contact
with officials of Cedar Creek Preservation, LLC.

b. Cedar Creek’s Responses to Requests for Admissions and
Deal’s Affidavit

In its January 3, 2020, responses to requests for admissions, Cedar Creek denied that

Vanderburg was an independent contractor for Premier and admitted that he was Cedar Creek’s

independent contractor. Cedar Creek also denied that Vanderburg was on a mission for the

benefit of Premier or was subject to their control but admitted that he was “independently

contracted to transport perspective purchasers to view real estate offered for sale by Cedar

Creek.” On January 13, Deal executed an affidavit stating that Premier was a marketing member

of Cedar Creek and owned no interest in the land Cedar Creek was offering for sale and that all

expenses fronted by Premier for the land sales event, including payment to Vanderburg, were

reimbursed by Cedar Creek. Deal also swore that Premier had no contract with Vanderburg. As
6
for the instructions to the caravan drivers, Deal affirmed, “[W]hen I met with the [HCSO]

officers I was told to relate to the [caravan drivers] that they should turn on their hazard lights,

keep close to the caravan vehicle in front of them, and follow the caravan vehicles in front of

them if there were traffic lights.”

c. The Trial Court Denied the Coxes’ Summary Judgment
Motions and the Coxes Filed Their Eighth Amended Petition

On January 27, 2020, the trial court heard and denied the Coxes’ motion for summary

judgment against Premier, their motion for partial summary judgment on the issue of respondeat

superior, and their motion to strike Premier and Cedar Creek’s retained expert. On the next day,

the Coxes filed their eighth amended petition. The petition again sought to impute Vanderburg’s

negligence to Premiere and Cedar Creek, contained a complaint of negligent entrustment of a

vehicle to an incompetent or reckless driver, and claimed that Premier and/or Cedar Creek were

liable for Deal’s “irresponsible and incorrect” advice to Vanderburg to drive through red lights

because they had a police escort.3

B. The Trial Court Set Critical Deadlines

The trial court’s original docket control order set February 17, 2020, as the deadline to

amend or supplement pleadings. The Coxes filed a motion for continuance on February 21, and

after a hearing in which Premier’s counsel said she “would rather not extend . . . pleadings dates

. . . since [they had] been pending for over a year,” the trial court granted the motion for

continuance but did not change the February 17 pleading deadline. Instead, it altered the

3
On April 21, 2020, after the deadline for filing pleadings, the Coxes filed a ninth amended petition that dropped
Vanderburg and De Cruz as defendants and included the same claims against Premier and Cedar Creek that were
filed in the eighth amended petition.
7
deadline for discovery to May 27, 2020, altered the summary judgment motion deadline to June

12, and set the case for trial on October 19.

C. On the Day Before the Discovery Deadline, the Coxes Nonsuited Cedar
Creek and then Deposed Deal

The depositions of several members of the HCSO were favorable to Premier and Cedar

Creek. Lieutenant Amanda Suzanne Weatherford explained the HCSO’s procedure for clearing

an intersection for a caravan, stated that deputies dictate how the caravan will proceed, and

testified that deputies can instruct drivers to go through intersections even if there is a red light

and that it is appropriate for drivers of a caravan to do so. Sergeant Scott Jeffrey Davis, William

Kelley Wise, and Alvin Joel Jordan provided similar testimony and said it would be lawful for a

driver to go through a red light if instructed by a police escort during a caravan.

On May 6, 2020, the Coxes noticed their intent to take the deposition of Premier’s

corporate representative, Deal, on June 3. Then, on May 26, 2020, the day before the discovery

deadline, the Coxes filed a notice of nonsuit without prejudice as to Cedar Creek, which the trial

court granted. In his deposition, during which Cedar Creek was no longer a participating party,

Deal testified to similar facts that were included in his affidavit, including that Premier paid the

caravan drivers and that Cedar Creek later reimbursed them for those expenses. Deal also

testified that he met with HCSO officers before the caravan started to go over the details, that it

was the HCSO that made the decision to move forward with the caravan, that the drivers were

instructed to follow the car in front of them closely, and that the HCSO said they would guide

them through the intersections. Deal also testified that Vanderburg was operating the vehicle on

behalf of and for the benefit of Cedar Creek and that he was subject to Cedar Creek’s control.
8
 D. The Coxes Brought Cedar Creek Back into the Lawsuit Through Late-Filed
Petitions

Citing to the portion of Deal’s testimony speaking to Cedar Creek’s benefit and control—

and without obtaining leave of court—the Coxes filed a tenth amended petition on June 26 and

an eleventh amended petition on July 16, bringing Cedar Creek back into the lawsuit. Those

petitions included new claims, including that Deal failed to check to see how many officers

would be escorting the caravan and that the defendants failed to provide a safe escort or enough

manpower for the caravan.

E. Defendants’ Responses to the Coxes’ Tenth and Eleventh Amended Petitions

1. Motions to Strike

Both Premier and Cedar Creek filed motions to strike the tenth and eleventh amended

petitions. The motions to strike noted that those petitions were filed well after the trial court’s

deadline, contained new allegations, and alleged facts the Coxes knew were false—including that

it was the HCSO, not Premier and Cedar Creek, that instructed the caravan drivers to drive

through the red lights. When the Coxes replied that Deal’s deposition testimony provided new

evidence of Cedar Creek involvement sufficient for the trial court to grant leave to amend,

Premier and Cedar Creek responded that the Coxes had known of Cedar Creek’s involvement

well before it had nonsuited them, as shown by the summary judgment evidence Premier had

attached in response to the Coxes’ motion for summary judgment.

2. Motions to Exclude the Investigating Officer’s Opinions

Premier and Cedar Creek also moved to exclude certain opinions of the Coxes’ key

witness, Miller, contained in his accident report. In his report, Miller said that he placed
9
Vanderburg at fault for the accident because he had admitted to going through a red light based

on Section 544.004 of the Texas Transportation Code, which says, “The operator of a vehicle or

streetcar shall comply with an applicable official traffic-control device placed as provided by this

subtitle unless the person is: . . . otherwise directed by a traffic officer, police officer, or escort

flagger.” TEX. TRANSP. CODE ANN. § 544.004(a)(1) (Supp.). However, Miller testified that he

did not see police escorts and was wholly unaware that Vanderburg was part of a caravan that

was escorted by the HCSO. Miller also opined that an officer had to ensure that traffic was

stopped and that the caravan driver was visible before proceeding through the intersection.

Defendants argued that Miller’s accident report contained hearsay, that Miller was not

qualified as an accident reconstructionist, and that his opinions were unreliable because he did

not consider all the relevant factors surrounding the collision at the time of his investigation.

They also argued that Miller could not testify about the legal effect of Section 544.004 on the

facts of this case.

3. Motion to Quash Cedar Creek’s Corporate Representative’s
Deposition

Cedar Creek also moved to quash the deposition of its corporate representative because

the discovery deadline had expired. It also requested leave to file its own traditional and no-

evidence motions for summary judgment against the Coxes. In its motion for leave, Cedar Creek

alleged, “As a result of Plaintiffs’ strategic non-suit without prejudice, counsel for Cedar Creek

lost standing to participate” in a hearing, “in the critical deposition of” Deal, “a corporate

representative and in the critical deposition of Defendants’ jointly designated expert.” Cedar

Creek argued that its counsel “was also strategically barred from filing a motion for summary
10
judgment in accordance with the Court’s dispositive motion deadline.” As a result, Cedar Creek

argued that it should be permitted to file a summary judgment motion arguing that the Coxes had

no evidence that Cedar Creek was vicariously liable for Vanderburg, no evidence that

Vanderburg was negligent, no evidence of negligent entrustment because there was nothing to

show that Cedar Creek owned the vehicle, and no evidence of negligence per se under Section

544.004 of the Texas Transportation Code. Cedar Creek also argued that De Cruz’s negligence

was the cause of the accident. The trial court granted Cedar Creek leave to file its traditional and

no-evidence motions for summary judgment, and Premier joined in and adopted those motions.

F. The Trial Court Granted Cedar Creek’s Motion to Quash Its Corporate
Representative’s Deposition, and the Trial Court Reserved Ruling on
Defendants’ Motions to Strike the Tenth and Eleventh Amended Petitions

On August 11, the trial court heard Premier’s and Cedar Creek’s motions to strike the

tenth and eleventh amended petitions. Premier and Cedar Creek argued that they were surprised

by the late-filed petitions because they alleged new theories of negligence and argued that they

were prejudiced by those pleadings because they did not have the ability to designate expert

witnesses to address the new allegations since the discovery deadline had expired. Even though

the trial court reserved its ruling on the motion to strike the petitions, it granted Cedar Creek’s

motion to quash the deposition of its corporate representative and the motion to exclude Miller’s

opinions in the police report and his testimony about Section 544.044 of the Texas

Transportation Code.

11
 G. At the Subsequent Hearing on Defendants’ Summary Judgment Motions, the
Coxes Nonsuited Cedar Creek for the Second Time

On September 15, the trial court heard Cedar Creek and Premier’s joined summary

judgment motions and sustained several objections to the evidence the Coxes had attached to

their response to the summary judgment motions. When defense counsel mentioned the pending

motions to strike the tenth and eleventh amended petitions, the trial court said, “I thought I

granted that at the hearing, but maybe I didn’t. . . . I think I had struck those, but there was a

piece of the testimony that I was going to go back and look, but I’ll go back and look at my

notes.” Cedar Creek argued that, if the trial court was going to strike the late-filed petitions,

there would be no claims against it since it was previously nonsuited and the petitions filed

before the pleadings deadline did not include Cedar Creek as a party. Then, the following

transpired:

[BY THE COXES]: Okay. Well, Your Honor -- if that’s going to be the
case, Your Honor, then Plaintiffs would consider non-suiting all parties at this
time and all claims, and I will replead it. We will refile it before the statute of
limitations.

[BY CEDAR CREEK]: Your Honor --

THE COURT: I understand --

[BY THE COXES]: Plaintiffs are allowed to take a non-suit at any given
time.

THE COURT: . . . but not much I can do.

[BY CEDAR CREEK]: Actually, if it’s --

(Simultaneously speaking)

12
 [BY THE COXES]: -- the law -- I’m sorry. On the record right now,
Your Honor, as a -- with respect to the Edward and Theresa Cox, they non-suit.
They will take a non-suit without prejudice against all parties in the case.

[BY CEDAR CREEK]: And, Your Honor, actually, the Court does have
the authority under Texas law if a party -- if a party is non-suiting on the pending
of -- during a pending Motion for Summary Judgment has authority to consider it
and issue a ruling. And then we could address that issue of non-suit later on.
Because acting like this is subject to sanctions and we can file --

THE COURT: I had this come up when I was second year as a judge and
it -- I threw a fit over it because I thought it was gameless, and I went to a
conference, and I asked every senior judge I could, and everybody said you don’t
have an option, so I’m going to go with that.

[BY THE COXES]: Thank you. . . .

As a result, less than forty-five days before trial, the Coxes nonsuited all claims against Premier

and Cedar Creek, without prejudice.4

H. The Coxes Filed a New Lawsuit Via a Petition that Was Worded Like Their
Previous Eleventh Amended Petition, and Premier and Cedar Creek Moved
for Sanctions

On September 18, the Coxes filed a new lawsuit in the same court via a petition that was

worded like the late-filed eleventh amended petition. Premier and Cedar Creek filed motions to

be adjudicated prevailing parties in the original suit and for sanctions. Premier and Cedar Creek

argued that the new lawsuit was filed to avoid the trial court’s ruling striking the tenth and

eleventh amended petitions and to avoid the discovery deadline because it would allow the

Coxes to serve additional interrogatories, obtain more discovery, and designate a witness to

replace Miller. The motions pointed out that the nonsuit was filed less than forty-five days

4
After the nonsuit, the trial court signed an order on October 26 granting the motions to strike the tenth and eleventh
amended petitions.
13
before trial after almost two years of litigation and would cause unnecessary delay and increased

litigation costs.

1. Defendants’ Arguments

Premier and Cedar Creek argued that the nonsuit was taken after the trial court entered

unfavorable rulings, including sustaining several objections to the Coxes’ summary judgment

evidence. In light of the trial court rulings, Premier and Cedar Creek asserted that the Coxes’

nonsuit was taken to avoid an unfavorable decision on the merits and was filed for an improper

purpose. As a result, they argued that the nonsuit should be declared with prejudice and that they

should be found to be prevailing parties. Premier and Cedar Creek moved the trial court to grant

sanctions under its inherent authority and under Chapter 10 of the Texas Civil Practice and

Remedies Code. The motions listed several sanctions, including monetary sanctions, as an

alternative to dismissal of the Coxes’ claims with prejudice.

2. The Coxes’ Reply Argument: Plaintiffs’ Counsel Admitted to
Nonsuiting Cedar Creek to Overcome the Trial Court’s Order
Striking the Coxes’ Tenth and Eleventh Amended Petitions

In response, the Coxes argued that there was a presumption that their nonsuit was filed in

good faith and that they were not trying to avoid the motion for summary judgment but agreed to

have that motion reheard. The Coxes attached an affidavit from their counsel that admitted that

he had made a strategic decision to nonsuit the claims after the trial court’s ruling on the motion

to strike the tenth and eleventh amended petitions. Counsel wrote, “Shortly after the Court

informed the parties that it had granted the motion to strike and that the case would be continued,

14
I announced to the Court that Plaintiffs were non-suiting all claims against Premier and Cedar

Creek without prejudice.” Counsel continued,

I did so because the deposition of Jim Deal, Premiere’s corporate representative,
and the Hopkins County Sheriff’s officials revealed additional evidence
supporting Plaintiffs’ negligence and negligence per se claims against Premier
and Cedar Creek. I determined that making Plaintiffs’ pleadings and negligence
and negligence per se claims track the evidence uncovered was important enough
that if the Court was not going to permit the amendment, I would nonsuit the
claims so that I could make the allegations in a new lawsuit.

3. The Trial Court Granted Defendants’ Sanctions Motions

At the hearing on the motions for sanctions, Cedar Creek argued that the Coxes knew

about their involvement well before Deal’s deposition and that the argument that Deal’s

testimony “surprised them or changed [something] that required new direct claims or [a] new

basis for claims [wa]s at the very least disingenuous, but in this case [they] believe[d] bad faith.”

The trial court agreed, found that the Coxes’ counsel acted in bad faith, and deemed the nonsuit

to be with prejudice. The trial court found that Premier and Cedar Creek were prevailing parties

and ordered the Coxes to pay costs.

I. The Trial Court Entered Findings of Fact and Conclusions of Law

On October 28, the trial court entered the following findings of fact and conclusions of

law:

1. The Court entered a Docket Control Order on July 10, 2019 which
established a deadline for amendment or supplementation of pleadings of
February 17, 2020.

2. Plaintiffs nonsuited Defendant Cedar Creek Preservation, LLC without
prejudice on May 26, 2020.

15
3. While Defendant Cedar Creek Preservation, LLC was non-suited from the
case, the depositions of Defendant Premier Land Liquidators, LLC’s
Corporate Representative and Defendants’ jointly designated expert, Dr.
Stephen Ozanne took place. The Court-ordered dispositive motion
deadline also passed during this period.

4. On June 26, 2020, Plaintiffs filed their Tenth Amended Petition against
Defendants, re-adding Defendant Cedar Creek Preservation, LLC. On
July 16, 2020, Plaintiffs filed their Eleventh Amended Petition against
Defendants. Both of these Petitions added claims against Defendants.
Plaintiffs did not obtain leave of court to amend pleadings after the
deadline.

5. Defendant Cedar Creek Preservation, LLC filed Traditional and No
Evidence Motions for Summary Judgment on all claims filed by Plaintiffs.

6. Defendant Premier Land Liquidators filed a Joinder in Defendant Cedar
Creek Preservation, LLC’s Motions for Summary Judgment. Plaintiffs
filed no objection to this Joinder.

7. Defendants filed a Joint Motion to Strike Plaintiffs’ Tenth and Eleventh
Amended Petitions. The Court granted this Motion and struck Plaintiffs’
Tenth and Eleventh Amended Petitions on the basis that said pleadings
were untimely per the Court’s Docket Control Order.

....

9. Defendant Cedar Creek Preservation, LLC filed objections to Plaintiffs’
summary judgment evidence.

....

11. A hearing on Defendant Cedar Creek Preservation, LLC’s Motions for
Summary Judgment was held on September 15, 2020. Prior to hearing the
Motions, the Court ruled on Defendant Cedar Creek Preservation, LLC’s
Objections to Plaintiffs’ summary judgment evidence, sustaining
objections to portions of the testimony of James Deal, portions of the
testimony of Corporal Terry Miller, the narrative and causation opinions
contained in the accident report prepared by Corporal Miller, and
Plaintiffs’ submission of their pleadings as evidence. . . . During this
hearing, the Court also announced that it had granted Defendants’ Motion
to Strike Plaintiffs’ Tenth and Eleventh Amended Petitions. Following the
Court’s rulings on Defendant Cedar Creek Preservation, LLC’s Objections
16
 to Summary Judgment Evidence, the Court began to hear argument on the
summary judgment motions. During counsel for Cedar Creek
Preservation, LLC’s argument, counsel for Plaintiffs, Mr. Jason Webster,
announced to the Court that Plaintiffs nonsuited without prejudice all
claims against both Cedar Creek Preservation, LLC and Premier Land
Liquidators, LLC.

12. Following the verbal nonsuit, Plaintiffs filed a written Notice of Nonsuit
on September 15, 2020.

13. On September 18, 2020, Plaintiffs re-filed suit against Defendants, also in
the 62nd Judicial District of Hopkins County, Texas under Cause No.
CV44453. The Original Petition filed against Defendants in Cause No.
CV44453 contains the same claims and allegations against Defendants as
the Plaintiffs’ Eleventh Amended Petition, which had been struck as
untimely in this suit.

14. On September 29, 2020, Defendants filed their Joint Motion to Adjudicate
Defendants as Prevailing Parties and for Sanctions against Plaintiffs and
their counsel, Jason Webster.

15. On October 8, 2020 Plaintiffs and their counsel filed a Response to
Defendants’ Joint Motion. In support of this Response, Plaintiffs’
Counsel, Jason Webster, submitted an affidavit in which he states under
oath that he nonsuited so that he could make Plaintiffs’ pleadings track the
evidence uncovered in the case, which he had been prohibited from doing
by the Court’s Order striking Plaintiffs’ Tenth and Eleventh Amended
Petitions.

16. Plaintiffs’ counsel’s claim that the need to file their Tenth and Eleventh
Amended Petitions arose from newly uncovered evidence from the
depositions of Defendant Premier Land Liquidators, LLC’s corporate
representative and the officers of the Hopkins County Sheriff’s department
was not substantiated and was, in fact, refuted by . . . the corporate
representative[s] . . . affidavit in response to Plaintiffs’ No Evidence
Motion for Summary Judgment on Defendants’ Affirmative Defenses on
January 13, 2020, before the pleading deadline, which contained the same
testimony later provided in his deposition, and Defendant Premier Land
Liquidators, LLC had responded to written discovery before the pleading
deadline with the same evidence as later testified to by the corporate
representative in his deposition. There was further no evidence that
Plaintiffs ever attempted to depose the officers of the Hopkins County
Sheriff’s Department prior to the pleading deadline, although Defendants
17
 had identified the deputies as responsible third parties in response to
Request for Disclosure and Defendant Premier Land Liquidators, LLC had
filed a Motion to Designate the officers as responsible third parties on
December 10, 2019, over two months prior to the pleading deadline.

17. Both direct and circumstantial evidence establish that Plaintiffs’ counsel,
Jason Webster, acted in bad faith when he nonsuited Plaintiffs’ claims.
Counsel acknowledged that his purpose for nonsuiting and re-filing was to
plead claims which had been struck by this Court for his non-compliance
with the Court’s Docket Control Order.

The trial court’s conclusions of law include the following:

1. Plaintiffs nonsuited in order to avoid an unfavorable decision on the merits
on Defendant Cedar Creek Preservation, LLC’s Motions for Summary
Judgment.

2. Plaintiffs nonsuited in order to avoid the Court’s evidentiary rulings
regarding evidence from Corporal Terry Miller and Plaintiffs’ other cited
summary judgment evidence.

3. Defendant Cedar Creek Preservation, LLC’s Motions for Summary
Judgment were also dispositive of Plaintiffs’ claims against Defendant
Premier Land Liquidators, LLC because the motions sought judgment on
elements common to Plaintiffs’ causes of action against Defendant
Premier Land Liquidators.

4. Premier Land Liquidators, LLC’s Joinder in Defendant Cedar Creek
Preservation, LLC’s Motions for Summary Judgment was timely and
proper. Further, the Court concludes that Plaintiffs waived any objection
to this joinder.

5. The Court was likely to grant Defendant Cedar Creek Preservation, LLC’s
Motions for Summary Judgment.

6. Plaintiffs nonsuited in order to avoid this Court’s ruling striking Plaintiffs’
Tenth and Eleventh Amended Petitions.

....

8. Plaintiffs nonsuit was filed for an improper purpose, specifically to
interfere with the Court’s ability to decide questions of fact, questions of
law, and control the management of its docket, and sanctions pursuant to
18
 Chapter 10 of the Texas Civil Practice & Remedies Code for filing a
pleading for an improper purpose are warranted.

9. The Court finds that Plaintiffs’ nonsuit and refiling against Defendants
will cause unnecessary delay and will needlessly increase the cost of
litigation as Defendants will be required to file responsive pleadings in the
new litigation.

10. The Court finds that the totality of circumstances demonstrate that
Plaintiffs’ counsel acted with willful ignorance of the law and facts
applicable to the case.

11. Plaintiffs’ counsel, Jason Webster, acted in bad faith when he nonsuited
Plaintiffs’ claims. Counsel acknowledged that his purpose for nonsuiting
and refiling was to plead claims which had been struck by this Court for
his noncompliance with the Court’s Docket Control Order. The Court
finds this to be intentional conduct to deliberately circumvent this Court’s
Orders.

12. The Court further took judicial notice of the Court’s file in this matter.
The Court finds that this case had been pending for over twenty-one
months at the time of Plaintiffs’ nonsuit on September 15, 2020. At the
time of the nonsuit, Plaintiffs most recent pleadings had been struck,
evidentiary rulings unfavorable to the Plaintiffs had been entered, and
dispositive motions were being heard which would potentially produce an
unfavorable ruling on the merits. Considering the timing of the nonsuit
and the course of conduct in this case, including eleven amended
pleadings, pleadings filed without leave and without compliance with the
docket control order, a previous nonsuit without prejudice of Defendant
Cedar Creek Preservation, LLC only to sue them again approximately one
month later and a claimed basis for the need to file the tenth and eleventh
amended petitions which is unsupported by the evidence, the Court finds
that the actions of Plaintiffs’ counsel give rise to an inference that the
nonsuit and re-filing were done willfully and in bad faith.

13. Although lesser sanctions were considered, including awarding attorney’s
fees or other monetary sanctions and/or imposing conditions on the
prosecution of the re-filed lawsuit in Cause No. CV44453, Plaintiffs’
counsel argued against the imposition of any conditions on the second suit
and the Court finds that there is no lesser sanction which would both
address the specific conduct in this case, avoiding a decision on the merits
and circumventing a prior Order, and which would be effective.

19
 14. The Court finds that dismissal with prejudice is further warranted as
Plaintiffs’ nonsuit was to avoid a dispositive motion which, when granted,
would have resulted in dismissal on the merits of this case.[5]

The Coxes filed this appeal.

III. Standard of Review

“Dismissal with prejudice, rather than without prejudice, is one form of sanctions because

it precludes any hearing of the claims on the merits.” Messina v. Messina, No. 01-07-00277-CV,

2008 WL 2854191, at *2 (Tex. App.—Houston [1st Dist.] July 24, 2008, pet. denied) (mem.

op.). Here, Premier and Cedar Creek moved for the trial court to declare the nonsuit with

prejudice as a sanction under Chapter 10 of the Texas Civil Practice and Remedies Code or its

inherent authority. The trial court cited Chapter 10 as the basis for the sanction in its findings of

fact and conclusions of law.

“We review the imposition of sanctions under Chapter 10 of the Texas Civil Practice and

Remedies Code . . . for an abuse of discretion.” Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179,

183 (Tex. App.—Texarkana 2011, no pet.) (citing Low v. Henry, 221 S.W.3d 609, 614 (Tex.

2007); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)). Here, the trial court concluded

that the Coxes nonsuited their claims to avoid an unfavorable ruling, which is a question of fact

that we also review for abuse of discretion. See Northside Pharmacy, LLC v. AMJ Inv., LLC,

No. 14-19-00094-CV, 2021 WL 330067, at *1 (Tex. App.—Houston [14th Dist.] Feb. 2, 2021,

no pet.) (mem. op.); Lusk v. Osorio, Nos. 14-17-01011-CV, 14-18-00522-CV, 2019 WL

3943195, at *6 (Tex. App.—Houston [14th Dist.] Aug. 20, 2019, no pet.) (mem. op.). “Under

5
The Coxes challenged findings of fact seven, eleven, and fifteen through seventeen and conclusions of law one
through seven, eleven, and twelve.
20
this standard, courts view the evidence in the light most favorable to, and indulge every

presumption in favor of, the trial court’s action.” Dike, 343 S.W.3d at 183 (citing In re Liu, 290

S.W.3d 515, 519 (Tex. App.—Texarkana 2009, orig. proceeding)). “An appellate court may

reverse the trial court’s ruling only if the trial court acted without reference to any guiding rules

and principles, such that its ruling was arbitrary or unreasonable.” Id. (quoting Low, 221 S.W.3d

at 614). “A trial court abuses its discretion in awarding sanctions only if the order is based on an

erroneous assessment of the evidence or the law.” Id.

“Chapter 10 provides for an award of sanctions when a party shows . . . that the pleading

or motion was brought for an improper purpose.” Mobley v. Mobley, 506 S.W.3d 87, 95 (Tex.

App.—Texarkana 2016, no pet.) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 10.001; Low, 221

S.W.3d at 614–15). An improper purpose includes “to harass or to cause unnecessary delay or

needless increase in the cost of litigation.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(1).

“Chapter 10 specifies that one of the aims for imposition of sanctions for the filing of frivolous

or groundless pleadings is to ‘deter repetition of the conduct or comparable conduct by others

similarly situated.’” Mobley, 506 S.W.3d at 95 (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 10.004(b)). “We construe the phrase ‘improper purpose’ as the equivalent of ‘bad faith’ under

Rule 13.” Id. (quoting Dike, 343 S.W.3d at 183–84).

“[I]mposition of sanctions is just” when (1) there is a “direct relationship . . . between the

offensive conduct and the sanction imposed” and (2) the sanctions are not excessive, i.e., “[t]he

punishment . . . fit[s] the crime.” TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913,

917 (Tex. 1991). “In determining whether sanctions are appropriate, the trial court must

21
examine the facts available to the litigant and the circumstances existing when the litigant filed

the pleading.” Dike, 343 S.W.3d at 184. “Courts should presume parties and their counsel file

all papers in good faith, and the party seeking sanctions must overcome that presumption.” Id.

(citing TEX. R. CIV. P. 13; GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex.

1993)). “The party seeking sanctions has the burden of showing its right to relief.” Id.

IV. Dismissing the Coxes’ Claims with Prejudice Was Not an Abuse of Discretion

A. The Trial Court Did Not Abuse Its Discretion by Finding that the Nonsuit
Was Taken for An Improper Purpose

The Coxes argue that the trial court erred in determining that the nonsuit was filed for an

improper purpose because they had an absolute and unqualified right to nonsuit their claims.

Pursuant to Rule 162 of the Texas Rules of Civil Procedure, a plaintiff may take a nonsuit “[a]t

any time before the plaintiff has introduced all of his evidence other than rebuttal evidence.”

TEX. R. CIV. P. 162. Courts “have described this right as unqualified and absolute.” Liles v.

Contreras, 547 S.W.3d 280, 295 (Tex. App.—San Antonio 2018, pets. denied) (citing Villafani

v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008); Vick v. Floresville Indep. Sch. Dist., 505 S.W.3d 24,

31 (Tex. App.—San Antonio 2016, pet. denied); Genesis Producing Co., L.P. v. Smith Big Oil

Corp., 454 S.W.3d 655, 659 (Tex. App.—Houston [14th Dist.] 2014, no pet.)). “This right is

important and firmly rooted in Texas jurisprudence.” Id. at 295–96 (citing Aetna Cas. & Sur.

Co. v. Specia, 849 S.W.2d 805, 806 (Tex. 1993) (orig. proceeding)). “However, even the filing

of a nonsuit is subject to sanctions.” Id. at 296; see Travelers Ins. Co. v. Joachim, 315 S.W.3d

860, 863 (Tex. 2010) (“After a nonsuit, a trial court retains jurisdiction to address collateral

matters, such as motions for sanctions.”).
22
 Next, the Coxes argue that the trial court abused its discretion in considering Premier and

Cedar Creek to be prevailing parties under Epps v. Fowler because that case determined whether

a party was the prevailing party under a contract for the purpose of awarding attorney fees,

whereas this case involves a trial court’s imposition of sanctions dismissing a case with

prejudice. Epps v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011). In Epps, the plaintiff homeowners

sued the previous owners for violations of the Deceptive Trade Practices Act, alleging they failed

to disclose foundation issues with the home. Id. at 864–65. The defendants “denied having

knowledge of any defects in the foundation,” “sought their attorney’s fees as sanctions under

Chapter 10 of the Civil Practice and Remedies Code,” and “[a]lternatively . . . sought attorney’s

fees under section 17 of the earnest money contract signed by the parties” that provided for

“[t]he prevailing party in any legal proceeding related to the contract . . . to recover reasonable

attorney’s fees” and court costs. Id. at 865. After failing “to respond to discovery, including . . .

requests for admissions,” and after being served with a motion for partial summary judgment, the

plaintiffs nonsuited their case without prejudice. Id.

The Texas Supreme Court noted that it had previously “held that a plaintiff who obtained

favorable jury findings but no damages was not entitled to attorney’s fees under contractual

language entitling a prevailing party to such fees” and then noted, “Today, we consider whether

a defendant is a prevailing party entitled to attorney’s fees when the plaintiff nonsuits a claim

without prejudice.” Id. at 864 (citing Intercontinental Grp. P’ship v. KB Home Lone Star LP,

295 S.W.3d 650, 652 (Tex. 2009)). The Texas Supreme Court concluded that “such a defendant

is not a prevailing party unless the court determines, on the defendant’s motion, that the plaintiff

23
took the nonsuit in order to avoid an unfavorable judgment.” Id. The Texas Supreme Court then

addressed certain factors relevant to making that determination:

A number of factors may support an inference that a plaintiff has nonsuited in
order to avoid an unfavorable ruling. For example, . . . if a plaintiff nonsuits only
after a motion for summary judgment is filed, it may suggest that the plaintiff
elected to do so in order to escape summary judgment. . . . Similarly, a failure to
timely identify experts or other critical witnesses could suggest that a nonsuit is
neither tactical nor voluntary. And the existence of other procedural obstacles,
such as the plaintiff’s inability to join necessary parties, may also signal that the
defendant has prevailed over the plaintiff. On the other hand, as we have noted, it
is reasonable to presume that the parties did not intend to encourage continued
litigation when discovery reveals previously unknown flaws in the plaintiff’s
claims.

Id. at 870–71 (citations omitted).6

We agree with the Coxes that Epps involved the issue of attorney fees, whereas this case

involves dismissal of a case with prejudice as a sanction under Chapter 10. Even so, in both

instances, the trial court’s order turns on whether the nonsuit was taken to avoid an unfavorable

ruling. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(1); Liles, 547 S.W.3d at 296.

Accordingly, the Supreme Court’s reasoning in Epps comports with the conclusion that a nonsuit

taken to avoid an unfavorable ruling on the merits can be considered filed for an improper

purpose under Chapter 10, and several courts have looked to this language in determining the

propriety of Chapter 10 sanctions following a nonsuit. See Sanchez v. Fiedler, No. 03-14-00182-

CV, 2016 WL 4272111, at *6 (Tex. App.—Austin Aug. 11, 2016, pet. denied) (mem. op.); Liles,

547 S.W.3d at 296.

6
This language was based on prior Texas Supreme Court opinions concluding that a plaintiff cannot use the
procedural vehicle of nonsuiting a case to avoid unfavorable rulings. In re Team Rocket, 256 S.W.3d 257, 259–60
(Tex. 2008) (orig. proceeding) (finding that a nonsuit after an unfavorable venue ruling is improper).
24
 “Texas cases have recognized that a trial court may rely on circumstantial evidence and

may take judicial notice of its case file in determining that pleadings were filed with an improper

motive.” Sanchez, 2016 WL 4272111, at *5. Here, after considering its file, the trial court

determined that the nonsuit was taken for an improper purpose. The trial court carefully

considered the procedural history, the arguments of counsel, and the applicable law in reaching

its decision. Specifically, the trial court noted that (1) Cedar Creek had previously been

nonsuited, and was later added as a party after the Coxes filed untimely petitions without leave

of court; (2) the Coxes nonsuited Premier and Cedar Creek during the hearing on their joint

motion for summary judgment after the trial court granted their motions to strike the opinions in

Corporal Miller’s accident report, sustained objections to the Coxes’ summary judgment

evidence, and announced that it thought it had granted the motion to strike the late-filed

petitions; (3) the Coxes re-filed the lawsuit by filing a new petition that had the same claims as

the eleventh amended petition that was struck as untimely; (4) the Coxes’ counsel filed an

affidavit based on the unsubstantiated claim that Deal’s testimony about Cedar Creek’s

involvement contained new information justifying bringing Cedar Creek back into the lawsuit

after it had been nonsuited; and (5) the trial court was likely to grant Cedar Creek’s motion for

summary judgment. As a result, the trial court concluded that the nonsuit was filed in bad faith

to avoid unfavorable rulings on the merits.

Most significantly, the Coxes’ counsel admitted that the case was nonsuited to

specifically avoid the trial court’s decision to strike the tenth and eleventh amended petitions,

25
which were the only petitions that would have brought Cedar Creek back into the lawsuit.7 Thus,

the trial court’s conclusion that the Coxes nonsuited their case because it was likely to grant

summary judgment in favor of Cedar Creek was firmly supported by the evidence. See In re

Team Rocket, 256 S.W.3d at 260 (“a decision on the merits cannot be circumvented by

nonsuiting and refiling the case”).

The struck petitions also added new theories of negligence against Premier. The timing

of the nonsuit, which occurred (1) in the middle of argument on Premier’s and Cedar Creek’s

jointly filed, no-evidence and traditional motions for summary judgment, (2) after the trial court

granted their motions to exclude opinions from Corporal Miller’s accident report, (3) after the

trial court sustained defendants’ objections to the Coxes’ summary judgment evidence, and

(4) after it had quashed the Coxes’ attempt to depose Cedar Creek’s corporate representative,

also supports the finding of a decision to avoid the merits. Even though the Coxes had

conducted extensive discovery and were less than forty-five days before trial, they nonsuited

their case and refiled it in the same court so that they could raise new claims of negligence that,

unlike prior claims, were not based on holding Premier and Cedar Creek responsible for

Vanderburg’s actions. Those new claims against both parties were filed well after the pleading

and discovery deadlines in the original case had expired. Contrary to the Coxes’ argument, the

evidence supported the trial court’s conclusion that the additions in the struck pleadings were not

7
The Coxes complain that there was no written order striking the petitions at the time of the nonsuit. However, the
affidavit of their counsel states, “Shortly after the Court informed the parties that it had granted the motion to strike
and that the case would be continued, I announced to the Court that Plaintiffs were non-suiting all claims . . . .”
Because the record shows that counsel believed that the trial court would strike the late-filed petitions before the
nonsuit, we find that a written order striking the petitions was not a prerequisite to the finding that the nonsuit was
taken for an improper purpose.
26
based on any newly discovered evidence because the Coxes were aware of all relevant facts of

the case, including Premier’s and Cedar Creek’s involvement, before the discovery deadline.

Because the new lawsuit would restart the clock and would provide for additional discovery on

new claims even though several continuances had been granted in this case, the trial court could

also find that the new lawsuit was filed to harass or to cause unnecessary delay or needless

increase in the cost of litigation.

As a result, we find no abuse of discretion in the trial court’s finding that Premier and

Cedar Creek met their burden of showing that the nonsuit was taken for an improper purpose.

Thus, the decision to award sanctions was proper.

B. Justness of the Sanctions

Next, we determine whether the sanction of dismissal with prejudice was just.

“[I]mposition of sanctions is just” when (1) there is a “direct relationship . . . between the

offensive conduct and the sanction imposed” and (2) the sanctions are not excessive, i.e., “[t]he

punishment . . . fit[s] the crime.” TransAmerican Nat. Gas Corp., 811 S.W.2d at 917.

The Coxes do not assert the lack of a direct relationship between the improper conduct

and the sanctions imposed. The offensive conduct was the taking of a nonsuit to avoid

unfavorable rulings, including the trial court’s pleading deadline and the impending summary

judgment ruling against the Coxes. Since the sanction of deeming the nonsuit to be with

prejudice bore a direct relationship to the offensive conduct, and the Coxes fail to argue

otherwise, we find that the first factor in determining if the sanction was just has been met.

27
 Moreover, Premier’s and Cedar Creek’s motions for sanctions provided alternatives to a

dismissal of the lawsuit with prejudice, including monetary sanctions. The trial court’s order

recited that it considered lesser sanctions but rejected them after “Plaintiffs’ counsel argued

against the imposition of any conditions on the second suit.” As a result, based on the record, the

trial court determined that dismissal with prejudice was the only means to prevent the Coxes

from “avoiding a decision on the merits and circumventing a prior Order.” Those findings were

not specifically challenged below.

For the first time on appeal, the Coxes argue that the trial court should have considered

and imposed lesser sanctions. Because the Coxes did not raise their complaint to the trial court,

this issue is unpreserved. See TEX. R. APP. P. 33.1; Sanchez, 2016 WL 4272111, at *9 (citing

Werley v. Cannon, 344 S.W.3d 527, 535 (Tex. App.—El Paso 2011, no pet.)) (finding that

preservation of error in the trial court is a prerequisite for presenting a complaint about the

consideration of lesser sanctions on appeal); see also Akhtar v. Leawood HOA, Inc., 525 S.W.3d

814, 820–21 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Approximately $5,602.00 v.

State, No. 14-08-00359-CV, 2009 WL 1886127, at *1 (Tex. App.—Houston [14th Dist.] July 2,

2009, no pet.) (mem. op.)) (“holding complaint that trial court abused its discretion by imposing

death penalty sanctions was not preserved for appellate review where issue on appeal did not

comport with those presented in motion for new trial”).8

8
The Coxes argued in their response to the motions for sanctions that the record did not show egregious enough
conduct to warrant entry of death penalty sanctions because no sanctions of any kind were warranted. The motion
did not argue that death penalty sanctions would be excessive if the trial court found sanctionable conduct, and none
of the Coxes’ filings with the trial court discussed the imposition of lesser sanctions. As previously discussed, the
trial court’s findings of bad faith and the conclusion that the nonsuit was taken to circumvent unfavorable rulings
were not abuses of discretion.
28
 We find that the Coxes waived their complaint that lesser sanctions were available. In

light of our other conclusions, we find that the trial court did not abuse its discretion by

dismissing the Coxes’ claims with prejudice. As a result, we overrule the Coxes’ point of error

relating to the sanction of dismissal with prejudice.

V. The Trial Court Did Not Err by Declaring Premier and Cedar Creek Prevailing
Parties

Because we have found the sanction of dismissal with prejudice was proper under

Chapter 10, we next discuss whether the trial court properly found that Premier and Cedar Creek

were prevailing parties. The Texas Supreme Court held “that a defendant may be a prevailing

party when a plaintiff nonsuits without prejudice if the trial court determines, on the defendant’s

motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.” Epps, 351

S.W.3d at 870.

Because this case did not involve the question of who prevailed under a contract, the

Coxes argue that the Epps rule does not apply. Yet, the parties’ contract in Epps did not define

the term “prevailing party,” leading to the analysis of the term based on its plain, generally

accepted meaning. Id. at 866. Here, Premier and Cedar Creek were declared prevailing parties

under Chapter 10, which states, “The court may award to a prevailing party on a motion under

this section . . . all costs for inconvenience, harassment, and out of pocket expenses incurred or

caused by the subject litigation.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.002(c). Because

both Epps and Chapter 10 involve the issue of identifying a prevailing party after a nonsuit, we

find Epps applicable to our analysis here.

29
 In Epps, the Texas Supreme Court wrote, “[W]e have no doubt that a defendant who is

the beneficiary of a nonsuit with prejudice would be a prevailing party.” Epps, 351 S.W.3d at

868. “The res judicata effect of a nonsuit with prejudice works a permanent, inalterable change

in the parties’ legal relationship to the defendant’s benefit: the defendant can never again be

sued by the plaintiff or its privies for claims arising out of the same subject matter. Id. at 868–

69. Here, because the trial court granted Premier’s and Cedar Creek’s sanctions motion after

finding that the Coxes’ nonsuit was taken to avoid an unfavorable ruling on the merits, the

determination that Premier and Cedar Creek were prevailing parties was proper.9

VI. Conclusion

We affirm the trial court’s dismissal of the Coxes’ claims with prejudice.

Ralph K. Burgess
Justice

Date Submitted: July 28, 2021
Date Decided: September 7, 2021

9
In companion cause number 06-21-00015-CV, we discuss the res judicata effect of the ruling on the Coxes’ new
lawsuit.
30