### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00340- CV

DHJB Developm ent, LLC, Appellan t

v. P atric ia Lu x Gr aham and T err ell Gr aham , Appellees

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 274 TH JUDICI AL DISTRICT NO. C2015 -02 12C, H ONO RAB LE GARY L. STEELE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant DHJB Deve lopment, L L C, challeng es the t ri al court’s order dismiss ing without prejudice claims broug ht b y ap p ellees Patricia L ux Gra ham and Terr ell Gra

ham afte r the Gra hams filed an amende d notice of n o n suit. See Tex. R. Civ. P. 162 (“D ismiss al or Non-suit”). We conclude that beca

use the Gra

hams had pre v iously filed a notice of nonsuit with prejudice that had not been withdrawn, the Gra hams’ am en d ed n onsuit without prejudice was of no eff ect. Consequently , we will reve rse the judgme nt of the trial court and rema nd the cause to the trial court for f urther pr ocee dings c onsistent with thi s opinion.

BACK GR OUND The rele vant proce dural fac ts in this appea l are undisputed. The underly ing suit was fi l ed in Fe bruar

y 2015 by DHJB and soug ht to enjoin opera tion of a dam built by t h e Gr ah am s downstream from DHJB’s proper ty

. Acc ording to DHJB, it decide d to nonsuit its claims afte r a localmunicipal ut i l i ty district broug ht a condemna tion action ag ainst the Gra hams, which in DHJB’s view would eff

ectively preve nt the Gra

hams from repa iring or rebuilding the dam. Consequently , DHJB filed a notice of nonsuit of its claims in J uly 2015. Soon after, the Gra hams amende d their

answe r and a sserted c ounterc laims ag ainst DHJB.

More than a y ear later, on September 23, 2016, the parties filed a Rule 11 settlement
ag ree ment that require d DHJB to pay fee s and costs claimed by the Gr ah am s and, conver sely , require d the Gra

hams to dismiss without prejudice all of their claims. On September 26, 2016, the Gra hams filed “counte rcla imants’ notice of non-suit” of their claims ag ainst DHJB with prejudice

. Although no other claims or matters rema ined pending at the time, no order of dismiss al was signe d by the trial court. I nstead, the suit re mained pending for six teen months with no additional filings

or actio n s t ak en b y ei ther party

. On Fe bruar y 9, 2018, the Gra

hams filed an amende d notice of nonsuit of their claims without prejudice

. The trial court signe d an order in acc o rd an ce with the amende d nonsuit, dism issing the Gr ahams’ c laims without prejudice.

DHJB timely filed a motion to modify , corr ect, or ref orm the trial court’s dismiss al order , asser

ting that the trial court should not have considere d the Gra hams’ Fe bruar

y 2018 amende d notice of nonsuit and that the trial court was instead re quired to dismiss the Graha ms’ claims with prejudice , in acc ordanc e with their September 2016 nonsuit. At the hear ing on DHJB’s motion, the Gra hams’ attorney explained that the Gra hams h ad fi l ed t h e amende d notice of nonsuit in Fe bruar y 2018 for the sole purpose of corr ecting an err or discovere d in their September 2016 notice of nonsui t. More specifica lly , the Gr ahams’ attorney informed the court that the S eptember 2016 nonsuit wa s filed pursuant to the Rule 11 settlement ag ree ment, filed with the district c lerk, which expressly require d the Gra hams to dismiss their suit without preju d i ce , and the September 2016

2notice of nonsuit was in err or to the extent it stated that the Gra hams intended to non s u i t t h eir claims with prejudice

.

I n response , DHJB did not disput e that the parties’ Rule 11 ag ree ment require d the Gra hams to voluntarily

dismiss their cla ims without prejudice . I nstead, DH J B a sserted, a s it does

now on appea l, that the t rial court lacke d any authority to nonsuit the case wit hout prejudice once the September 2016 nonsuit with prejudice was filed, notwithstanding the fac t that it was filed in

err or. The tr ial court de nied DHJB’s motion.

DISCUSSIO N The proce du ral issue prese nted in this case is whether a litigant may modify his previously filed nonsuit befor e a final order has been signe d by the trial court. As explained below, neither pa rty ’s position on thi s issue is entirely corr ect. Under Rule 162 of the Texas Rules of Civil Procedur e, “[a]t any time befor e the
p la in ti f f h a s in tr o d u c e d a ll o f h is e v id e n c e o th e r th a n r e b u tt a l e v id e n c e , th e p la in ti f f may . . . ta

k e a non-suit, which shall be enter ed in the minutes.” Tex. R. Civ. P. 162. A party has an absolute rig ht to f ile a nonsuit, a

nd a trial court is without discretion to ref use an order dismiss ing a case beca use of a nonsuit unless collater al matters rema in. Travelers Ins. Co. v

. Joachim , 315 S.W .3d 860, 862 (Tex. 2010) (“A fter a nonsuit, a trial court reta ins jurisdiction to addre ss collater al matters, such as motions for sanctions, eve n when suc h motions are filed a fter nonsuit, as we ll as jurisdiction over
any rema ining counter claims.”); see Tex. R. Civ. P. 162 (“A ny dismiss al pursuant to this rule shall
not prejudice the rig ht of an a dverse party to be hea rd on a pe nding c laim . . . . A di smissal under this rule shall have no eff ect on any motion for sanctions, attorney ’s fee s or other costs, pending at

3the time of dismiss al, as deter mined by the court.” ). A nonsuit “extinguishes a case or controve rsy from the ‘moment the motion is filed’ or an oral motion is made in open court; the only require ment is ‘the mere filing of the motion with the cler k of the court.’” Joachim , 315 S.W .3d at 862 (quoting University of Tex. Med. Branch at G alveston v. Estate of B lackmon e x rel. Shultz , 195 S.W .3d 98, 100 (Tex. 2006) (per curia m)). Although a nonsuit is eff ective immediately on filing, it is the trial court’s sig ning of an order dismiss ing a case , and not the party ’s filing of the nonsuit, that trigg ers appellate deadlines and the running of the trial court’s plenar y jurisdiction. Blackm on , 195 S.W .3d
at 100 (citing In re Benne tt , 960 S.W .2d 35, 38 (Tex. 1997) (orig

. proce eding ) (per curia m); see Tex. R. C iv. P. 329b.

I n on e i s s u e on appea l, DHJB contends that the trial court err ed in dismiss ing the Gra hams’ claims without prejudice

. As previously discussed, althoug h the Gra hams had filed a noti ce o f n o n s u i t in September 2016, no order of dismiss al had been signe d by the trial court when the Gra

hams fi l ed t h ei r amende d notice of nonsuit in Fe bruar y 2018. As a result, there can be no disp ute that the trial court had plenar y jurisdiction over the dispute when it signe d the order dismiss ing th e Gra

hams’ claims without prejudice , and DHJB does not contend otherwise. See Bla ck mo n , 1 95 S.W .3d at 100; see also Tex. R. Civ. P. 329b. I nstead, DHJB asser ts that the trial court was without any authority to act on the Gra hams’ amende d nonsuit in Fe bruar y 2018,
reg ardle ss of the rea son fo r the amendment, beca use the Gra

hams’ claims had been exti ng uished by the September 2016 nonsuit with prejudice

. Be cause the Gra hams’ nonsuited claims wer e never reinstated, w e ag ree .

A nonsuit is eff

ective when filed, and conseque ntly , a litigant may not unilaterally

w it h d r a w it s n o n s u it , e v e n b e f

o r e a d is mi s s a l o r d e r h a s b e e n s ig n e d

. Tr ig g v . M o o r e , 3 3 5 S. W. 3 d 2 4 3 , 4246 (Tex. App.—Amar illo 2010, pet. denied) (explaining that rec og nition of un q u alified rig ht of

party to withdraw its nonsuit “could render leg al proceeding s far cica l”). “This is not to say that a plaintiff lacks options upon rea liz ing the impropriety of nonsuiting his action.” Id

. There are sever al
proce dural devices available to a litiga nt seeking to set aside his nonsuit, so long as the t rial court has plenar

y jurisdiction over the case . Id. ; T r i mb l e v. Financial Freedom Senior Funding Co r p . , N o . 0 1

- 1 5

- 0 0 8 5 1

- CV , 2 0 1 6 WL 7 3 6 8 0 5 9 , a

t * 2 ( T e x. A

p p . — H o u s to n [1 s t D is t. ] De c . 2 0 , 2 0 1 6 , no pet.). For example, a plaintiff may revive his nonsuited claims by filing a motion for new trial, by filing a motion to reinstate or a motion to withdraw t h e n o n s u i t , or by ag ree ment of the parties. Braglia v. Middleton , No. 13-10-00101- CV, 2012 WL 664947, at *2 (Tex. App.—Corpus Christi M a r . 1 , 2 0 1 2 , n o p e t. ) ( me m. o p . ) ; s e e G o n za l e z v . G o n z a le

z , N o . 0 5

- 1 4

- 0 1 3 6 1

- CV , 2 0 1 5 WL 9 4 8 1 2 3 9 , at *2 (Tex. App.—Dallas Dec

. 29, 2015, pet. denied) (mem. op.) (noting that orally nonsuited claims

wer e reinstated when nonsuit was result of misstatement by counsel and opposing party stated it did
not oppos e reinstateme nt); Hoskins v. Gulf Stream Coach, Inc., No. 14-11-00703- CV, 2012 WL 2394055, at *4 (Tex. App.—Houston [14t h Dist.] J une 26, 2012, no pet.) (mem. o p.) (“U pon

rea liz ing the impropriety of a nonsuit, howeve r, a plaintiff may move to reinstate the cause or for a new tria l.”); Brown v. Linnen , No. 05-94-01298- CV, 1995 WL 447577, at *1 (Te x . App.—Dallas J uly 26,1995, no writ) (op., not de signa ted for publication) (“The plaintiff may seek reinstateme nt of the c ause [afte r nonsuit] by filing a motion to reinstate within the thirty -day plenar y period.” ). The Gra hams wer e require d to take some action to revive their previously nonsuited claims befor e the trial court could act on their amende d notice of nonsuit. Otherw ise, t here was 1
Requiring a litigant to move for reinstateme n t “c o n forms with the proce dure normally 1 invoked when a cause of act ion has ended” and “prote cts the trial court’s authority to control the 5no cla i m or controve rsy pending for the Gra hams to nonsuit in Fe bruar y 2018. See Joachim , 3 1 5 S. W. 3 d a

t 8 6 2

. N o th in g in th e r e c o r d in d ic a te s th a t D H JB a g r e e d to a w it

h d r a w a l o f th e G r a

h a ms ’ September 2016 nonsuit or that the Gra hams ever filed a motion to reinstate their claims or to withdraw their nonsuit. The Fe bruar y 2018 amende d notice of no n s uit, in eff ect, constitutes an impermissible a ttempt by the Gra hams to unilaterally

withdraw the ir September 2016 nonsuit and simult aneously

substitut e a r evised nonsuit. See Trigg , 335 S.W .3d at 246. Be cause the Gra

hams’ claims had alre ady been exti ng uished and r e ma ined unrevive d
at the time the Gra

hams filed their amende d notice of nonsuit, the trial court err ed in considering the Gra hams’ ame nded nonsuit and in dismissi ng their cla ims without prejudice

. 2

CONCLUSION Having conclude d that t h e trial court err ed in signing an order dismiss ing the appellee s’ claims without prejudice , we reve rse the trial court’s dismiss al ord e r a n d r e ma nd the cause to the trial court f

or fur ther proc eeding s. 3

proce eding .” Trigg v. Moore , 335 S.W .3d 243, 246 (Tex. App.—Amar illo 2010, pet. denied) (citing Tex. R. Civ. P. 320 (motion for new t rial))

. Whether to g rant a motion to reinstate lies within the sound discretion of the trial court. Id. ; see Davis v. State Farm Lloyds Tex. , No. 03-16-00091- CV, 2016 WL 6833103, at *3 (Tex. A pp.—Austin N ov. 17, 2016, pet. denied) (mem. op.) (conc luding that trial court did not abuse discretion in deny ing plaintiff’s motion to reinstate nonsuited claims). DHJB also arg ues t hat t he order of dismiss al wit hout prejudi ce was im proper beca use i t 2 was signe d by the trial court four day s befor e the Gra hams filed their amende d notice of nonsuit with the district cler

k. Be cause we conclude that the order was improper for another rea son, we will not consider the parties’ arg

uments on this ti ming issue. See Tex. R. App. P . 47.1. I n its appellate bri ef

, DH J B re q uests that we reve rse the district court’s judgme nt and 3 rende r judgme nt dismiss ing the Gra hams’ counter claims with prejudice

. Be cause it would deprive the Gra hams of any opportunity to corr ect what all parties acknow ledg e was an err or, we decline to render judgme nt and will instead rema nd the case to the trial court. See Tex. R. App. P

. 4 3

. 3 (b ). 6__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices F ield and Toth Reverse d and Remande d Filed: Nove mber 7, 2018

On rema nd, the Gra

hams may file a motion to reinstate or a motion to withdraw their September 2016 nonsuit and file a c orre cted notice of nonsuit. 7