Affirmed and Majority and Concurring Opinions filed July 25, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00766-CV

F. DON LACY AND HOMES AND MORE, Appellants 

V.

LUIS A. CASTILLO, Appellee 

On Appeal from the 410th District Court 

Montgomery County, Texas 

Trial Court Cause No. 16-05-06328-CV

C O N C U R R I N G O P I N I O N 

 A plaintiff took a nonsuit without prejudice three days before the defendants’ 

summary-judgment motion was to be submitted to the trial court for ruling. This 

appeal presents a straightforward question of law: 

If a plaintiff takes a nonsuit without prejudice to avoid an unfavorable ruling 

on the merits, may the trial court rule that the nonsuit was with prejudice even 

though denominated as a nonsuit without prejudice? 

The answer is “no.” So, the trial court did not err in declining to rule that the 
2

plaintiff’s nonsuit was with prejudice. 

The Lawsuit 

 Appellee/plaintiff Luis A. Castillo filed suit against appellants/defendants F. 

Don Lacy and Homes and More (the “Lacy Parties”) asserting various claims. The 

Lacy Parties did not assert a counterclaim, although they alleged in their answer that 

Castillo’s suit was groundless, brought in bad faith, and brought to harass the Lacy 

Parties. The Lacy Parties sought to recover reasonable and necessary attorney’s fees 

under Texas Business and Commerce Code section 17.50(c).1

 The Lacy Parties did 

not seek attorney’s fees under any contract clause providing that a prevailing party 

has a right to recover its attorney’s fees. 

The Nonsuit 

 The Lacy Parties moved for summary judgment as to all of Castillo’s claims. 

Three days before the submission date, Castillo took a nonsuit without prejudice. 

The trial court signed an order granting the nonsuit without prejudice. The Lacy 

Parties then filed a motion in which they asked the trial court for a ruling that (1) 

Castillo took a nonsuit without prejudice to avoid an unfavorable ruling on the 

merits, and (2) because of this action by Castillo, the nonsuit was with prejudice 

even though Castilllo had dubbed it a nonsuit without prejudice. The trial court 

denied the motion without specifying its reasons. 

The Analysis on Appeal 

In a single appellate issue, the Lacy Parties ask whether the trial court erred 

in denying their motion to declare Castillo’s notice of nonsuit without prejudice to 

be a notice of nonsuit with prejudice. This court should overrule the issue because, 

as a matter of law, even if a plaintiff takes a nonsuit without prejudice to avoid an 

 

1

See Tex. Bus. & Com. Code § 17.50(c). 
3

unfavorable ruling on the merits, the trial court may not declare that the nonsuit was 

with prejudice.2

 

The parties have not cited and research has not revealed any case in which a 

court holds or states that if a plaintiff takes a nonsuit without prejudice to avoid an 

unfavorable ruling on the merits, the trial court may declare that the nonsuit was with 

prejudice even though the plaintiff denominated it as a nonsuit without prejudice. 

The case the Lacy Parties cite for this proposition, Epps v. Fowler,

3

 does not support 

it.

4

 

In Epps, the defendants sought attorney’s fees from the plaintiffs based on a 

contractual provision entitling the prevailing party in any legal proceeding relating 

to the contract to recover its reasonable attorney’s fees.5 The defendants filed a 

motion for summary judgment.6

 The day after the plaintiffs filed their response, they 

filed a notice of nonsuit without prejudice.7 The parties proceeded to trial on the 

defendants’ requests for attorney’s fees.8 After trial, rather than sign an order 

granting the plaintiffs’ nonsuit without prejudice, the trial court rendered judgment 

that the plaintiffs take nothing and ordered the plaintiffs to pay the defendants’ 

 

2

See Epps v. Fowler, 351 S.W.3d 862, 865–70 (Tex. 2011); Klein v. Dooley, 949 S.W.2d 307, 308 

(Tex. 1997) (per curiam); Solum Engineering, Inc. v. Starich, No. 14-13-00428-CV, 2014 WL 

4262175, at *3-4 (Tex. App.—Houston [14th Dist.] Aug. 28, 2014, pet. denied)(mem. op.); In re 

Strachan, No. 14-08-00299-CV, 2008 WL 4394734, at *1 & n.1 (Tex. App.—Houston [14th Dist.] 

Sep. 11, 2008, orig. proceeding)(mem. op.).

3 Epps, 351 S.W.3d at 865–70.

4

See id. 

5

See id. at 865. 

6

See id.

7

See id. 

8

See id. 
4

reasonable attorney’s fees under the prevailing-party provision of the contract.9 The 

court of appeals held that the plaintiffs had the right to take a nonsuit without 

prejudice and that the trial court erred in rendering judgment on the merits. 10 The 

court of appeals modified the trial court’s judgment to reflect that the plaintiffs’ 

claims were dismissed without prejudice.11

 The court of appeals reversed the award 

of attorney’s fees, concluding that the defendants could not be prevailing parties if 

the claims against them were dismissed without prejudice, without an adjudication 

on the merits.12

The Supreme Court of Texas granted review in Epps to decide whether a 

defendant may be a prevailing party when the plaintiff takes a nonsuit without 

prejudice.13 The high court held that a defendant may be a prevailing party for the 

purposes of a prevailing-party attorney’s-fees provision if the plaintiff takes a 

nonsuit without prejudice and if the trial court determines, on the defendant’s 

motion, that the defendant took the nonsuit without prejudice to avoid an 

unfavorable ruling on the merits.14 The high court did not say that if the trial court 

makes this determination, the nonsuit without prejudice would be transformed into 

a nonsuit with prejudice.15 Indeed, the premise of the Epps court’s inquiry was that 

the plaintiffs had taken a nonsuit without prejudice. 16 

 

9

See id.

10 See id.; Fowler v. Epps, 352 S.W.3d 1, 3 (Tex. App.—Austin 2010), vacated, 351 S.W.3d 862, 

872 (Tex. 2011). 

11 See id. at 865. 

12 See id. 

13 See id. 

14 See id. at 870. 

15 See id. at 865–70. 

16 See id. 
5

In Epps, the supreme court addressed the circumstances under which a 

defendant may recover attorney’s fees as a prevailing party in a lawsuit even though 

the plaintiff took a nonsuit without prejudice.17 In today’s case, the Lacy Parties did 

not seek to recover attorney’s fees under a contract providing that a prevailing party 

may recover attorney’s fees; rather, they sought to have the trial court declare that 

Castillo’s nonsuit without prejudice was with prejudice even though Castillo 

denominated it as a nonsuit without prejudice. Neither Epps nor any other case the 

Lacy Parties have cited supports this notion.18 

In Texas, a plaintiff may take a nonsuit without prejudice as a matter of right 

at any time before the plaintiff has introduced all of plaintiff’s evidence at trial, other 

than rebuttal evidence.19 If a plaintiff takes a nonsuit after the trial court has 

adjudicated the merits of some of the plaintiff’s claims, for example by granting a 

partial summary judgment, a nonsuit without prejudice results in a dismissal with 

prejudice of the already-adjudicated claims and a dismissal without prejudice of the 

plaintiff’s other claims.20 

In today’s case, when Castillo took a nonsuit without prejudice, the trial court 

had not ruled on the merits of any claims; so, this exception does not apply, and 

Castillo had the right to take a nonsuit without prejudice, resulting in the dismissal 

without prejudice of all of Castillo’s claims.21 To the extent the statute of limitations 

 

17 See id. 

18 See id. 

19 See Tex. R. Civ. P. 162; Klein v. Dooley, 949 S.W.2d 307, 308 (Tex. 1997) (stating that plaintiffs 

have a “right to nonsuit without prejudice under Rule 162”). 

20 See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995)(per curiam); see also 

Harris County v. Sykes, 136 S.W.3d 635, 642 n.13 (Tex. 2004) (Brister, J., concurring) (stating 

that Hyundai Motor Co. court held “that nonsuit without prejudice nevertheless operates as a 

dismissal with prejudice as to issues decided in earlier partial summary judgment”). 

21 See Epps, 351 S.W.3d at 868–70; Klein, 949 S.W.2d at 308; In re Strachan, 2008 WL 4394734, 

at *1 & n.1. A plaintiff who takes a nonsuit without prejudice is also subject to the preclusive 
6

might bar Castillo’s claims if he re-filed them in a second lawsuit, statute of 

limitations is an affirmative defense that the Lacy Parties would have to raise in the 

second suit.22 The possibility that limitations might bar these claims does not 

convert the nonsuit without prejudice in this case into a nonsuit with prejudice.23 If 

Castillo had no plans to re-file his claims, Castillo had the option to take a nonsuit 

with prejudice, which amounts to an adverse judgment on the merits.24

 But Castillo 

did not make this election, and, under the facts of today’s case, Castillo had an 

absolute right to take a nonsuit without prejudice.25

Presuming for the sake of argument that Castillo took a nonsuit without 

prejudice to avoid an unfavorable ruling on the merits, that action would not allow 

the trial court to declare Castillo’s notice of nonsuit without prejudice to be a notice 

of nonsuit with prejudice.26

 The majority does not state that the trial court properly 

could make this declaration if Castillo took a nonsuit without prejudice to avoid an 

unfavorable ruling on the merits. Instead, the majority determines that the trial court 

did not err in implicitly finding that Castillo did not take a nonsuit without prejudice 

to avoid an unfavorable ruling on the merits. Thus, the majority appears to conclude 

 

effect of any prior venue determination by the trial court. See In re Team Rocket, L.P., 256 S.W.3d 

257, 260 (Tex. 2008). But, this preclusive effect does not result in a dismissal with prejudice; 

rather, it means that the plaintiff must file any later suit in the venue determined by the trial court 

in the first case, and if the plaintiff does not do so, the case will be transferred to that venue. See 

id. at 259–61. In today’s case, the trial court did not make any venue determination.

22 See Epps, 351 S.W.3d at 869, n.8.

23 See id. 

24 See id. at 868–69.

25 See In re Marriage of Montgomery, No. 14-15-00203-CV, 2016 WL 1533930, at *1 (Tex. 

App.—Houston [14th Dist.] Apr. 14, 2016, no pet.) (mem. op.) (holding plaintiff had absolute 

right to take nonsuit before the hearing on the defendants’ summary-judgment motion and thus to 

avoid an adjudication of her claims on the merits by summary judgment).

26 See Epps, 351 S.W.3d at 868–70; Klein, 949 S.W.2d at 308; In re Marriage of Montgomery, 

2016 WL 1533930, at *1; In re Strachan, 2008 WL 4394734, at *1 & n.1. 
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that, even if the law were as the Lacy Parties assert, the trial court did not err based 

on the facts. I respectfully disagree with the majority’s analysis as to how the trial 

court properly could have found that Castillo did not take a nonsuit without prejudice 

to avoid an unfavorable ruling on the merits. The better course would be to affirm 

the trial court’s ruling on the legal basis set forth above. For this reason, I join the 

court’s judgment but respectfully decline to join the majority opinion. 

/s/ Kem Thompson Frost 

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan (Hassan, J., 

majority).