# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

- 22

- 00400

- CV
B & V LANDSCAPING , Appellant

v. Roscoe Robert HARVEY , Nancy Joyce Harvey and Harvey R & N Trust, Appellees From the 198th Judicial District Court , Bandera County, Texas Trial Court No. CVCD

- 21

- 0000066 Honorable M. Rex Emerson , Judge Presiding Opinion by: Liza A. Rodriguez , Justice Sitting: Luz Elena D. Chapa, Justice Beth Watkins , Ju stice Liza A. Rodriguez , Justice Delivered and Filed: July 12 , 2023
REVERSED AND RENDERED In one issue on appeal, Appellant B & V Landscaping argues the trial court erred in dismissing the underlying c ause for want of prosecution because B & V Landscaping (the plaintiff below ) had already nonsuited its claims without prejudice. We reverse.
B ACKGROUND On March 24, 202 1, B & V Landscaping sued Appellees Roscoe Robert Harvey, Nancy Joyce Harvey, and Harvey R & N Trust (collectively “the Harvey Defendants”) for breach of contract, alleging an unpaid balance of $66,118.68. In response to the lawsuit, the Harvey04

- 22

- 00400

- CV

- 2

- Defendants filed a pro se answer. On December 14, 2021, the trial court sent the parties notice of its intent to dismiss the c ause for want of prosecution and set a dismissal hearing for April 14, 2022. Less than a mo nth after receiving this notice, B & V Landscaping filed a motion to retain the ca use , stating that the cause had been active for less than nine months , and discovery was still necessary. On April 11, 2022, B & V Landscaping filed a notice of nonsuit witho ut prejudice. At th e time the nonsuit was filed , the Harvey Defendants had no pending motions or counterclaims. Three days later, on April 14, 2022, the trial court signed an “ Order of Dismissal for Want of Prosecutio n

– TRC 165a.” On April 26, 2022, B & V Landscaping filed a motion for reconsideration on the basis that it had already filed a notice of nonsuit at the time the trial court dismissed the cause for want of prosecution. B & V Landscaping then appealed.
D ISCUSSION B & V Landscaping argues the t rial court erred in dismissing the underlying c ause for want of prosecution because B & V Landscaping had already filed a notice of nonsuit without prejudice. Texas Rule of Civil Procedure 162 allows a plaintiff to dismiss a case, or take a nonsuit, “[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence.” T EX
. R.
C IV
. P. 162. A “plaintiff’s right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief.” M orath v. Lewis , 601 S.W.3d 785, 787 (Tex. 2020) (quoting BHP Petroleum Co. v. Millard , 800 S.W.2d 838, 840 (Tex. 1990)); see also Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010) (same). A “nonsuit extinguishes a case or controversy from the moment [it] is filed.” Morath , 601 S.W.3d at 787 (quoting Univ. of Tex. Med. Branch v. E state of Blackmon , 195 S.W.3d 98, 100 (Tex. 2006)). “It renders the merits of the nonsuited case moot.” Travelers , 315 S.W.3d at 862. Accordingly, a “trial court is wit hout discretion to refuse an order dismissing a case because of a nonsuit unless collateral matters remain.” Id

.04

- 22

- 00400

- CV

- 3

- The record reflects that at the time B & V Landscaping filed its notice of nonsuit without prejudice, no collateral matters were pending. See id. at 86 3 ( “After a nonsuit, a trial court retains jurisdiction to address collateral matters, such as motions for sanctions, even when such motions are filed after the nonsuit, as well as jurisdiction over any remaining counterclaims.” ). Thus, the trial court had “no discretion to refuse to dismiss the suit.” Estate of Blackmon , 195 S.W.3d at 100. Here, however, t he trial court’s order did not merely dismiss the cause ; the order dismissed the cause for “want of prosecution ” and made findings that B & V Landscaping had “wholly failed to respond to” the court’s notice. We therefore conclude that the trial court erred in dismissing the cause for want of prosecution. See Travelers , 315 S.W.3d a t 862.
C ONCLUSION The trial court’s order dismissing the underlying cause for want of prosecution is reversed, and judgment is rendered granting B & V Landscaping’s notice of nonsuit and dismissing the underlying cause without prejudice. See Galvan v. Unkn own Heirs of Longoria , No. 04

- 10

- 00057

- CV, 2010 WL 2298904, at *2 (Tex. App.

— San Antonio June 9, 2010 , no pet. )

. Liza A. Rodriguez , Justice