NO. 07-11-00082-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL E AUGUST 31, 2011

VISTA POINTE, APPELLANT

v. JANICE WILSON AND ALL OTHER OCCUPANTS, APPELLEES

FROM THE COUNTY COURT AT LAW NO. 1 OF DALLAS COUNTY;

NO. CC-10-05443-A; HONORABLE DEMETRICA BENSON, JUDGE

Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J. 1

MEMORANDUM OPINION Appellant Vista Pointe appeals from the trial court’ s judgment in favor of appellee, Janice Wilson. Thro ugh one issue, Vista Pointe argues the trial court erred by, after receiving Vista Pointe’s motion to dismiss, conducting a trial and entering a judgment in favor of Wilson. We agree and reverse the trial court’s judgment and remand for proceedings consis tent with our opinion.

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.2 Background On July 9, 2010, Vista Pointe filed a complaint for eviction against Wilson with the justice of the peace, seeking possession of the subject premises and unpaid rents. On July 29, 2010, the justice of the peace entered j udgment in favor of Vista Pointe. Wilson appealed the judgment to t he county court by filing a paup er’s affidavit for a trial de novo. See Tex. R. Civ. P. 751 (under rule 751, t he parties were entitled to a trial de

novo in the county court).
On August 24, 2010, Wilson filed a docum ent entitled “answer” in the county court. She did not request any affirmative relie f. The trial court set the matter for trial on September 9. On Septembe r 3, Vista Pointe filed a mo tion to dismiss the matter without prejudice. The record indicates the trial court received and filed the motion to dismiss on September 8. The trial court he ld a trial on the merits the following day. Vista Pointe did not appear an d a final judgment in favor of Wilson was entered on September 9. On September 23, Vista Po inte filed a motion to vacate the final judgment. The trial court did not act on the motion and this appeal followed.

Analysis Through its sole issue on appea l, Vista Pointe argues t he final judgment entered by the trial court is erroneous because the court had no discretion to take any action other than enter an order of dism issal after Vista Pointe filed its motion to dismiss. We agree and reverse the judgment of the trial court.3 Vista Pointe’s motion to dismiss without prejudice was a pleading indicating it was filing a non-suit. Tex. R. Civ. P. 162 (providing for dism issal or a non-suit). In Texas, parties have an absolute right to no n-suit their own pending claims so long as the opposing party has not made a claim for affi rmative relief. Tex. R. Civ. P. 162; 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) . A non-suit is a terminati on of the pleaded causes of action and asserted defenses without an adjudication of t he merits that returns the parties to their pre-lawsuit positions. Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex.App.—Amarillo 1997, no writ ). The purpose of a non-suit is to dismiss a party's claims, thereby extinguishing the mov ant's case against the non-movants. See University of Texas Med. Branch at Galveston v. Estate of Blackmon , 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).

A non-suit is effective from the moment the motion is fil ed, or an oral motion is made in open court. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Estate of Blackmon, 195 S.W.3d at 100. The gr anting of the motion is a ministerial act, and does not alter the effectiveness of the motion at that moment. Greenberg v. Brookshire , 640 S.W.2d 870, 872 (Tex. 1982) (per cu riam). Only pleadings filed by the non-movant prior to the non-suit su rvive the effect of the motion. See Trejo , 251 S.W.3d at 468-69; Progressive Ins. Co. v. Hartman , 788 S.W.2d 424, 426 (Tex.App.--Dallas 1990, no pet.). The time the non-suit bec omes effective does not depend on whether, or when, the other parties rece ive notice pursuant to rule 1 62. Tex. R. Civ. P. 162;4 Orion Inv., Inc. v. Dunaway and Assoc., Inc., 760 S.W.2d 371, 374 (Tex.App.—Fort Worth 1988, writ denied).
Here, the only pleading filed by Wilson was the document entitled “answer” that provided, “I Janice Wilson defendant in the above case answering the court to notify of my appeal for eviction.” Her pleading does not request any type of affirmative relief.

As noted, a non-suit is effectiv e from the moment it is fil ed. Vista Pointe’s motion to dismiss without prejudice is file -marked September 8, 2010 at 2:47 p.m. 2 Therefore, Vista Pointe’s eviction complaint against Wilson ceased to exist on that day, a day before trial was set. Vargas v. Chavez, 327 S.W.3d 338, 341 (Tex.App.—El Paso 2010, no pet.) Whether the trial co urt complied with its ministeria l duty to enter an order dismissing the claim did not chan ge the effect of the non-suit. Brookshire, 640 S.W.2d at 872; Vargas, 327 S.W.3d at 341. Therefore, at the time the trial court held trial on the merits of this matter, Vista Pointe’s claim against Wilson had ceased to exist. The trial court did not have discretion to hold a trial on September 9 or enter judgment in favor of Wilson. Zimmerman v. Ottis, 941 S.W.2d 259, 263 (Tex.A pp.—Corpus Christi 1996) (orig. proceeding).

2 As Vista Pointe notes, Dallas Local Ru le 2.07(e) provides no conference with Wilson was necessary prior to filing its motion. See Dallas Local Rule 2.07(e) providing “Sections (a) and (b) of this Rule do not per tain to dispositive motions, motions for summary judgment, default judgments, motions for voluntary dismissal or nonsuit, postverdict motions and motions involving services of a citation.” Available at http://www.dallascourts.com/rules/locrulnw.htm.5 We sustain Vista Pointe’s sole issue on appeal and reverse and remand the matter to the trial court for proceedings consistent with the opinion herein.

James T. Campbell Justice