Affirmed in Part; Dismissed in Part; and Memorandum Opinion filed 

September 10, 2019.

In the

Fourteenth Court of Appeals 

NO. 14-18-00665-CV

JADA ETIENNE, Appellant 

V.

STATE FARM LLOYDS, Appellee 

On Appeal from the County Civil Court at Law No. 2 

Harris County, Texas 

Trial Court Cause No. 1109021 

M E M O R A N D U M O P I N I O N 

This is an appeal from a case in which an insured sued to force her property

insurer to participate in the appraisal process set forth in the policy. In fact, the 

parties already were participating in the appraisal process, and because the appraisers 

selected by each side could not agree on the value of the loss or on the choice of an 

umpire to decide which appraiser was correct, the insurer moved the trial court to 

appoint an umpire. On consecutive days, (a) the insured filed a notice of non-suit,
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(b) the trial court appointed an umpire, and (c) the trial court dismissed the insured’s 

claims. The insured then successfully moved to sanction the insured’s trial counsel 

for signing and filing a pleading with no basis in fact. The insured appeals the trial 

court’s order appointing an umpire and the sanctions order. 

 We conclude that the trial court acted within its jurisdiction and discretion in 

appointing an umpire; thus, we affirm the appointment order, which was merged into 

the final judgment. Because the insured lacks standing to appeal the order 

sanctioning her trial counsel and his law firm, and neither the attorney nor the firm 

have appealed the order, we dismiss that portion of the appeal for lack of jurisdiction. 

I. BACKGROUND

 Appellee State Farm Lloyds insures property owned by appellant Jada 

Etienne. After Etienne made a claim under the policy, she invoked the appraisal 

provision. The policy provides that if either party demands appraisal, each party will 

select an appraiser and the two appraisers will jointly determine the amount of the 

loss. If they are unable to agree, the two appraisers will select an umpire to resolve 

their differences. If they are unable to agree upon an umpire within 15 days, then the 

insurer or the insured “may make a written application for a judge of a court of record 

in the same state and county . . . where the residence premises is located to select an 

umpire.” 

 State Farm Lloyds agreed to Etienne’s invocation of the appraisal process, and 

both sides appointed appraisers. Etienne nevertheless sued State Farm weeks later in 

Harris County Civil Court at Law No. 2, where she alleged that State Farm refused 

to participate in the appraisal process and she stated her intent to ask the court to 

appoint an umpire. State Farm answered and filed its own motion for appointment 

of an umpire. Etienne did not respond to State Farm’s motion but instead filed a 

similar application on the ancillary docket of the Harris County Civil District Courts. 
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 Approximately twelve hours before the hearing on State Farm’s motion, 

Etienne filed a notice of non-suit. Neither she nor her counsel appeared at the 

hearing, and the trial court appointed an umpire as State Farm had requested. The 

next day, the trial court signed an order dismissing Etienne’s claims. 

 Etienne filed a motion to vacate the order appointing an umpire, arguing that 

the trial court lost jurisdiction the moment that Etienne filed her notice of non-suit. 

She also argued that the trial court abused its discretion in proceeding with the 

hearing and the appointment because State Farm failed to give ten days’ notice 

before applying for appointment of an umpire, as the policy requires. State Farm 

responded and moved for sanctions against Etienne’s counsel Eric Dick and the Dick 

Law Firm under Texas Rule of Civil Procedure 13 and Texas Civil Practice and 

Remedies Code Chapter 10 for signing and filing a pleading with no basis in fact. 

The trial court denied Etienne’s motion to vacate the umpire appointment and 

ordered Dick and the Dick Law Firm to pay attorney’s fees of $4,000 to State Farm 

as sanctions. Etienne appeals both orders. 

II. THE LAW CONCERNING NON-SUITS

 Because much of Etienne’s arguments are premised on the idea that a notice 

of non-suit deprives a trial court of jurisdiction, we begin by clarifying this 

jurisdictional point. 

 A plaintiff may voluntarily dismiss or “non-suit” its case at any time before it 

has introduced all of its evidence other than rebuttal evidence. TEX. R. CIV. P. 162. 

A non-suit does not prejudice an adverse party’s right to a hearing and a ruling upon 

its pending claims for affirmative relief. Id. 

 To assert a claim for affirmative relief, the defendant must do “more than 

resist plaintiff’s right to recover.” BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 
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838, 841 (Tex. 1990) (orig. proceeding) (quoting Gen’l Land Office v. Oxy U.S.A., 

Inc., 789 S.W.2d 569, 570 (Tex. 1990)). A defendant makes a claim for affirmative 

relief if it “allege[s] a cause of action, independent of the plaintiff’s claim, on which 

the claimant could recover compensation or relief, even if the plaintiff abandons or 

is unable to establish his cause of action. Univ. of Tex. Med. Branch at Galveston v. 

Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam) 

(citing BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. 

proceeding)). A trial court can defer signing an order dismissing the case for a 

reasonable time so it can rule on such pending matters. See In re Bennett, 960 S.W.2d 

35, 38 (Tex. 1997) (orig. proceeding).

 Even after it signs a dismissal order, the trial court retains jurisdiction over 

the case until its plenary power expires. See id. “[T]he signing of an order dismissing 

a case, not the filing of a notice of nonsuit, is the starting point for determining when 

a trial court’s plenary power expires.” Id. 

III. CHALLENGE TO THE ORDER APPOINTING AN UMPIRE

 Etienne’s notice of non-suit had no effect on State Farm’s pending motion for 

appointment of an umpire. Indeed, as Etienne implicitly acknowledged in the trial 

court, an application for appointment of an umpire need not be part of a lawsuit at 

all. For example, Local Rule 3.5.1(e) of the Civil Trial Division of the Harris County 

District Courts provides that the district courts’ ancillary docket includes “[r]equests 

before any suit has been filed to appoint umpires or arbitrators.” HARRIS CTY. (TEX.)

CIV. DIST. CT. LOC. R. 3.5.1(e) (emphasis added).1

 After this suit was filed in the 

Harris County Civil Court at Law No. 2, however, either party could move for 

 

1 When Etienne attempted to take advantage of this provision by placing an application for 

appointment of an umpire on the Harris County Civil District Courts’ ancillary docket, she already 

had a pending suit on the same subject in Harris County Civil Court at Law No. 2. 
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appointment of an umpire as part of that suit. State Farm did so, and Etienne filed 

no opposition. 

 On appeal, Etienne asserts that because she non-suited her own claims the 

night before the hearing on State Farm’s motion, the trial court both lacked 

jurisdiction to proceed with the scheduled hearing and to rule on State Farm’s 

pending motion, and that the trial court abused its discretion in doing so. But as 

discussed above, a trial court does not lose jurisdiction upon the plaintiff’s filing of 

a notice of non-suit. The policy gave both Etienne and State Farm the contractual 

right to seek court appointment of an umpire, regardless of whether Etienne or State 

Farm ever pleaded a cause of action for damages or for declaratory or equitable 

relief. Because a request for appointment of an umpire is a “stand-alone” request, it 

was unaffected by Etienne’s notice of non-suit. 

 Etienne argues in the alternative that the trial court abused its discretion in 

granting State Farm’s motion because the insurance policy required State Farm to 

give her ten days’ written notice before moving for appointment of an umpire, and 

she contends that State Farm failed to do so. But, Etienne neither responded to State 

Farm’s motion for appointment of an umpire nor appeared at the hearing on the 

motion. Having failed to timely raise this complaint, it is waived. See TEX. R. APP.

P. 33.1(a)(1). Moreover, and as State Farm points out, the trial court’s local rules 

provide that “[f]ailure to file a response may be considered a representation of no 

opposition.” HARRIS CTY. (TEX.) CO. CT. AT LAW LOC. R. 3.3.3. Given Etienne’s 

failure to respond to State Farm’s motion or to appear at the hearing, the trial court 

did not abuse its discretion in granting the motion. 

 We overrule Etienne’s first issue, and we affirm the portion of the trial court’s 

judgment appointing an umpire. 
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IV. CHALLENGE TO THE SANCTIONS ORDER

 In Etienne’s second issue, she argues that the trial court abused its discretion 

in imposing monetary sanctions against her trial counsel Eric Dick and the Dick Law 

Firm for signing and filing a petition groundlessly asserting that State Farm had 

refused to participate in the appraisal process. Because Etienne lacks standing to 

appeal the sanctions order, we lack jurisdiction to review it. 

 Standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n 

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Thus, an appellate 

court lacks jurisdiction to review a ruling appealed by a person without standing. See 

id. at 444. A person generally has standing to appeal a ruling only if the person is 

personally aggrieved by it. Cf. Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845, 848 

(Tex. 2005). An appealing party may not complain of errors that do not injuriously 

affect that party or that merely affect the rights of others. See Torrington Co. v. 

Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). 

 Here, the trial court sanctioned Dick and the Dick Law Firm, not Etienne. 

Because the sanctions order did not injure Etienne and instead affected only the 

rights of others, she lacks standing to appeal it. 

 Further, neither Dick nor the Dick Law Firm have attempted to appeal the 

sanctions order. Neither filed a separate notice of appeal, and in Etienne’s original 

and amended notice of appeal both identify Etienne as the sole appellant. Her brief 

in this appeal was filed by her appellate counsel Rogelio Garcia solely on behalf of 

Etienne, who is the only person identified as Garcia’s client. 

 Because no one personally aggrieved by the sanctions order has appealed it, 

we lack jurisdiction to review the order. We accordingly dismiss Etienne’s second 

issue without addressing the merits. 
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V. CONCLUSION

 When the respective appraisers for the insured and the insurer are unable to 

agree on an umpire to resolve the deadlock, the policy may permit either party to 

apply to a court for appointment of an umpire, as was done here. The parties do not 

have to bring claims against one another to take advantage of such a policy provision 

but can apply for appointment of an umpire even if neither party asks the court for 

any other relief. Here, State Farm applied for appointment of an umpire as part of 

the suit in which the trial court already had acquired jurisdiction over both of the 

parties, and Etienne failed to timely oppose the motion. We therefore conclude that 

the trial court had both the jurisdiction and the discretion to appoint an umpire before 

dismissing Etienne’s claims, and we affirm the portion of the judgment appointing 

an umpire. 

 Because Etienne lacks standing to appeal the order sanctioning her trial 

counsel and his firm, and because neither the attorney nor the firm have appealed 

the order, we dismiss the remainder of the appeal for want of jurisdiction. 

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Spain, and Poissant.