Motion for Rehearing Granted, Memorandum Opinion of June 14, 2016 

Withdrawn, Motion for Damages Denied, Dismissed, and Memorandum 

Opinion on Rehearing filed November 17, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00197-CV

DAVID E. JOHNSON, Appellant

V.

NATIONAL INDEMNITY COMPANY, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. CV28790A

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

We grant National Indemnity Company’s motion for rehearing, withdraw 

our memorandum opinion of June 14, 2016, and issue this substitute memorandum 

opinion on rehearing.

This appeal is from an order dismissing appellee National Indemnity 

Company from the case below. Our record reflects that appellant David E. 
2

Johnson filed a notice of nonsuit with prejudice of “all of his claims and causes of 

action against Defendant, National Indemnity,” seeking to have his claims against 

National Indemnity dismissed with prejudice in the underlying case.1 The trial 

court signed an order of dismissal with prejudice of all of Johnson’s claims and 

causes of action against National Indemnity. 

Rule 162 of the Texas Rules of Civil Procedure provides that a plaintiff may 

nonsuit his claims at any time before he has introduced all of his evidence, other

than rebuttal evidence. See Tex. R. Civ. P. 162. Johnson nonsuited his claims 

against National Indemnity;2thus there is no justiciable controversy between the 

parties in this case. See, e.g., Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). 

Johnson’s nonsuit with prejudice of his claims against National Indemnity 

rendered any appellate issues he may have had based on his nonsuited claims 

 

1

The trial court signed an order dismissing National Indemnity without prejudice from 

the main cause number, CV28790, on March 2, 2015. Johnson filed a notice of appeal of that 

dismissal order on March 5, 2015. At that time, the trial court’s dismissal order was 

interlocutory because there were other parties and claims remaining in the main cause number. 

The trial court granted National Indemnity’s motion to sever on June 15, 2015, severing all of 

Johnson’s claims against National Indemnity and, apparently, National Indemnity’s motion for 

award of costs and fees into a separate cause number, CV28790A. The prematurely filed notice 

of appeal is effective as deemed filed on June 15, 2015. See Tex. R. App. P. 27.1(a) (“In a civil 

case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, 

the event that begins the period for perfecting the appeal.”). This court also recognizes 

premature notices of appeal, filed in a cause pre-severance, as effective to appeal an interlocutory 

order made final by a severance. Cf. Brooks v. Goodyear Tire & Rubber Co., No. 14-12-01048-

CV, 2013 WL 3477288, at *2 n.1 (Tex. App.—Houston [14th Dist.] July 9, 2013, no pet.) (mem. 

op.) (noting that a premature notice of appeal filed in a main cause is effective to appeal an 

interlocutory summary judgment made final by a severance order). 

2 A nonsuit terminates the case from the moment the nonsuit is filed, but does not affect 

any pending claim for affirmative relief or motion for attorney’s fees or sanctions. Epps v. 

Fowler, 351 S.W.3d 862, 868 (Tex. 2011). At the time Johnson nonsuited his claims against 

National Indemnity, National Indemnity had a pending claim for attorney’s fees and costs. 

However, National Indemnity subsequently non-suited its claim for attorney’s fees and costs. 
3

moot. See, e.g., Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) (“An appeal is 

moot when a court’s action on the merits cannot affect the rights of the parties.”). 

Accordingly, we dismiss Johnson’s appeal for want of jurisdiction because 

we may not decide moot controversies and render advisory opinions. See Nat’l 

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).

On appeal, National Indemnity filed a motion for damages against Johnson 

under Texas Rule of Appellate Procedure 45, entitled “Damages for Frivolous 

Appeals in Civil Cases.” See Tex. R. App. P. 45. This court may award just 

damages under Rule 45 if, after considering everything in its file, we make an 

objective determination that the appeal is frivolous. Glassman v. Goodfriend, 347 

S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc). 

To determine wither an appeal is objectively frivolous, we review the record from 

the viewpoint of Johnson and determine whether Johnson had reasonable grounds 

to believe the case could be reversed. Id. But Rule 45 does not mandate that this 

court award just damages in every case in which an appeal is frivolous; the 

decision to award such damages is a matter within this court’s discretion, which we 

exercise with prudence and caution after careful consideration. Id. We conclude 

that damages under Rule 45 are not warranted in today’s case, and we deny 

National Indemnity’s motion.

Accordingly, for the foregoing reasons, this appeal is ordered DISMISSED

for want of jurisdiction. Further, National Indemnity’s motion for damages under 

Rule of Appellate Procedure 45 is DENIED.

PER CURIAM

Panel consists of Justices Christopher, McCally, and Busby.