### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 19 - 00301 - CV
Alice Lawson, Appellant

v. Scott Morrison and Oaks, Hartline & Daly, LLP, Appellee s

FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D - 1 - GN - 17 - 005806, THE HONORABLE DUSTIN M. H O WELL, JUDGE PRESIDING

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

Alice L awson appeals the trial court ’ s order denying her motion to withdraw her nonsuit

. For the following reasons, we affirm.

BACKGROUND In 2017 , Lawson , acting pro se, sued Scot t Morrison and Oaks, Hartline & Daly, LLP ( collectively, the Law Firm) for legal mal practice in both federal and state court , which Lawson later described as “ duplicitous litigation

. ” This appeal concerns procedural actions taken in the state court suit

.

In th at s uit , t he Law Firm answered , raised a counterclaim for breach of contract , and reque sted attorney ’s fees. Lawson later retained counsel , w ho fi led a notice of appearance in October 2018. F ollowing a hearing that same mon th , t he trial court signed a sche d u ling order setting an April 22, 2019 trial date with a discovery deadline o f March 3 , 2019

.2 I n Jan uary 2019 , Lawson moved to abate the case f or six m onths , alleging that the claims were not ripe due to a pending prob ate m atter , and resisted discovery

— in c luding interrogator ie s and a notice of deposition

— based on her motion to abat e . On January 2 5, the trial court denied La wson ’s motion f or abatement and ordered Lawson to appear for deposition

o n February 18 or 19

. Before the deposition, Lawson fil ed a m o tion to dismiss without prej udice on February 11 , stat ing that “ she does no t want to pu rsue these claims in this forum at this time. ” R espon ding the same day , the Law Firm sent Lawson a letter thanking he r for nonsuiting t h e

case but explaining , “ T o t he e xtent yo ur client hope d for some procedu ral advantage

— like avoiding Judge Sulak ’ s order t o appear for her deposition in Austin on Monday, February 18

— please note that [the Law Firm ’ s] counter

- claim remains on file, and Judg e Sulak ’ s order likewise rema ins inta ct. ” T he next day , La wson filed a motion to cons olidate and transfer the
proc eedings t o federal cour t
. Sh e explained in the motion that she had n onsuited her claims “ to avoid duplicito us litigation

. . . with the full b elief that this totally t ook ca re of this matter notwithstanding an apparent count erclaim for attorney ’ s fees ” but “ in a spir it of caution files this motion to transfer and/or consolidate said counterclaim

. . . to the ongoing federal action ” and that sh e “ believes and/ or has conc lud ed that t he deposition as scheduled by Defendants of her on February 18, 2018 in Austin, TX, has been cancelled

. . . pending a hearing before t his court

. ” Lawson then moved to qu a sh her scheduled depositio n . Without a rulin g from the trial court, Law son di d not appear for the scheduled February 18 de position , as noted by the deposition transcript included in the record

. O n March 19

— after the discover y deadline

— L awson served request s for disclosure , requests for prod u c tion, and interrogatories , and fi l e d a motion for continuance t hat stat ed that Lawson ’ s counsel was unaware of and had just fou nd out about the April 22 trial setting

.3 On March 25, a new counsel for Lawson filed a notice of appearance as co counsel and attorne y i n charge

. O n Ma rch 2 8 , Law son ’ s n ew co - counsel filed on La wson ’ s behalf a mo tion to withdraw her nonsuit and to continue the April 22 trial setting. The motion stated that Lawson ’ s original co unsel “ expected to be able to t ry the legal malpractice claims in federal cour t

— a mi sappr ehe n sio n w hich has since been proven untrue ” due to an “ apparent mis application of Texas and/or federal law

. ” The motion explained that Lawson ’ s original counsel never received notice of the t rial setting and attach ed an affidavit by Lawson ’ s origina l

cou n s e l averring that he did not attend the hearing setting the Apr il 2 2 trial date

. T h e nex t day, however, Lawson ’ s new co - coun sel filed a motion to withdraw as Lawson ’ s counsel , stating that he “ h as good cause to withdraw from representing Plaintiff d ue to th e inability to obta in accura t e information from [ original counse l ] to effectively represent Plainti ff. ”

On April 1, Lawson filed another motion to withdraw her nonsuit a nd a n amended motion for a co ntinuance , signed by her original counsel. Th e ame nd ed mot ion and its attached

a ff idavit delet ed reference s to original counsel ’ s not receiving notice of the trial setting or not attending the hearing; instead , the motion stat ed that “ it is clea r the parties recognize that thi s state court case requi res m or e t ime for disc overy (whi c h is substantially incomple te ) to adequately prepare it for trial. ” The Law Firm responded , claiming that Lawson ’ s claims are

now “ ti me - barred because they are d uplic ations of her malpractice claim which was subject to a
t wo - ye ar st atute of lim itations

. ” A dditionally, the Law Firm argue d, there is “ no c a u se for reviving her extinguishe d claims now, 19 days before trial , ” because “ Lawson ’ s motion to dismiss was part of her scheme to avoid her depositi on and the upcoming Apr il tr ia l s etting after having he r mo tions to abat e and quash denied ” and because “ Defendants would be severely prejudiced if, having prepared for an imminent trial on their claims, they were faced with4

additio nal mont hs of expensive discover y and trial pre parat io n o n a new set of claim s that wer e

ex tinguished through the Plaintiff ’ s own wrongful tactics, and by limitations, months ago. ” T he presiding judge Judge Sulak den ied Lawson ’ s motion for continuance and t he motion to

w ithdraw her nonsuit bu t granted the ne w c o - counsel ’ s motion to wit hdraw as counse l

.

Before trial , Lawson moved to recuse J udge Sulak

. At trial, neither Lawson nor her counsel appeared

. T he trial court contacted Lawson ’ s counsel by p hone, stating that “ it
appears, based at least on t he la st pa ge of your motion [to rec u s e], t hat you ’ re under the impression that this results in an automatic stay of the proceedings ” but explaining th at the
pres iding trial judge Judge Howell ha d not yet t ouched the case because of Travis County ’ s central docke t sys tem and had not been the subject of the motion to r e c use . In response, Lawson ’ s counsel stated that his “ client feels that this is such an injustice that

. . . go ahea d and default her an d we ’ ll take it up with the court of appeals ” and “ let wha t hap pe n s happen []

. ” After trial and in a f

inal judgment , the trial court award ed damages in the Law Firm ’ s favor. Lawson filed a motion to m odify the judgment or for new trial, whic h the trial court denied. Lawson now appeals.

DISCUSSI ON

In a single issue o n a ppeal , Lawson claims that the trial court abused its dis cre t ion in failing to reinstate her claims after she filed her motion to withdraw her nonsuit

. At any time before introducing all evidence other than re buttal evidence, r ule 162 provid es a plainti ff with an absolute right to file a nonsuit , s ee Tex. R. Civ . P. 162 , which extinguishes a case or c on troversy the moment the motio n is filed and renders the merits of the nonsuited case moot , s ee Travelers Ins. v. Joachim , 315 S.W.3d 860, 862 (Tex

. 2010) ; Vi llafani v. Trejo , 25 1 S.W.3d 466, 468

– 695

(Tex. 200 8); Uni versity of Tex. Med. Branch at Galvesto n v. Estate of Blackmon , 195 S.W.3d 98, 100 (Tex. 2006) (per curiam)

. But a party may not use a nonsuit to avoid so meone else ’ s claims because “ [ r ] u l e 162 g ove rning nonsuits provides that ‘ [a ]ny dismiss al pur suant to [ r ule 162] shall not prejudice the right of an adverse party to be heard on a pe nding claim for affirmative rel ief

. ’ ” Texas Mut. Ins. v. Ledbetter , 251 S.W.3d 31, 37

– 38 (Tex. 2008) (quot i ng Tex. R. Civ. P. 162) ; see, e.g. , Mo r in v. Law Off

. of Kleinhans Gruber, PLLC , No. 03

- 15

- 00174

- CV, 2015 WL 4999045, at *2 (Tex. App.

— Aus tin Aug. 21, 2015, no pet.) (mem. op.) ( “ O ne party ’ s nonsuit does not affect the opposing party ’ s pendi ng claims for a tto rney ’ s fees

. ” (citing Tex. R. Ci v . P . 162; Blac kmon , 195 S.W.3d at 100) )

.

A nonsuited claim may be revi ved by filing a motion for new trial , by filing a motion to reinstate or a motion to withdraw the nonsuit, or by ag reement of the parties

. See D HJB Dev. , LL C v. Graham , No. 03

- 18

- 00340

- CV, 2018 WL 5814119, at *3 (Tex. App.

— Austin Nov. 7, 2018, no pet.) (mem. op.) (collecting authorities)

. Bu t w hether to grant or deny
t he motion to revive a nonsuited claim lies w i t h in the sound discreti on of the t rial co ur t
. See i d. at *3 n.1 (citing Trigg v. Moore , 335 S.W.3d 243, 246 (Tex. App.

— Amarillo 2010, pet. denied ); Davis v. State Farm Ll oyds Tex. , No. 03

- 16

- 00091

- CV, 2016 WL 68331 0 3 , a t *3 (Tex. App.

— Austin Nov. 17, 2016, pet . denied) (mem. op.))

. “ A t r ial court ab uses its discr etion when it acts in an unreasonable or ar bitrary manner or, stated differently, when it acts without any ref erence
t o guiding rules or p rinciples. ” In r e The tford , 574 S.W.3d 362, 374 (Tex. 2019) (orig. proceeding) (quoting In re Meador , 9 68 S.W.2d 346, 353 (Tex. 1998) (orig. proceeding)).

Lawson argues that “[a] trial court abuses its discretion in denying a motion to reinstate a pl aintiff’s claims whe r e th e plaintif f has a reasonable explanation for the non

- suit,” citing au t hority fr om ou r sister court. See Trimble v. Financial Freedom Senior Funding Corp. ,6

No. 01

- 15

- 00851

- CV, 2016 WL 7368059, at *3 (Tex. App.

— Hou ston [1 s t Dist.] Dec. 20, 2016, no pet
. ) (m em. op.)

. In Tri mble , the court held that the trial court abuse d its discretio n i n denying a motion to reinst ate , noting that the plaintiffs “ provided reasonable grounds to reinstate their case

. ” Id. ( citing Smith v. Babcock & Wilcox C on str. Co. , 913 S.W.2d 467, 468 (Tex. 1 9 95) (per curi am) ; Dalmex, Ltd. v. Apparel Enters

. , 455 S.W .3d 241, 244 (Tex. App.

— El Pa so 2015, no pet.) ; Seigle v. Hollech , 892 S.W.2d 2 01, 203 (Tex. App.

— Houston [14th Dist.] 1994, no writ) ) . But the cases cited in Trimble

— Smith , Dalmex , a nd Seig le

— concerned dismissal s for

wan t of prosecutio n and mo t ions for re in statement under rule 165a

. See Smith , 913 S.W.2d at 46 8; Dalmex , 455 S.W.3d at 244 ; Seigle , 892 S.W.2d at 203. In contrast to rule 162, see Tex. R. Civ. P. 16 2, ru le 165a requires that “[t]he court shall reinstate th e c ase upon finding afte r a hearin g th a t th e fail ure of the party or his attorney [to appear] was not intentional or the re sult of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained , ” th ere by imposing a duty on t he trial cou r t to reinstate the case , Tex. R. Civ. P. 165a(3) (emphasis added) ; see Tex. Gov ’ t Code § 311.016(2) ( “ ‘ Shall ’ imposes a duty. ” ); Perry man v. Spartan Tex. Six Cap

. Partners, Ltd. , 546 S.W .3d 110, 131 (Tex. 2018) ( “ By its pl a in a nd common mea n ing, ‘ sha ll ’ deno tes mandatory action. ” )

. Thus, to the extent Tr imble applies the standard fou nd in rule 165 a to review the t rial court ’ s d ecision to deny reinstatement of a voluntary dismissal or no nsuit under rule 16 2 , we f ind Trimbl e un p ersua sive. 1

1 M oreover, relying on f a cts not present here, o ur s ister court also rested its decision on the fact that the plaintiffs ’ motion to re in st ate “ explained that the ir former counsel had filed the
‘ Notice of Non

- Suit Witho ut Prejudice ’ without t heir permissio n or k n owl edge ” a nd that the opposing side “ did not re spond or object to the [ p l a intiffs ’ ] request for reinstateme nt. ” Trimble v. Financial Freedom Senior Funding Corp. , No. 01

- 15

- 00851

- CV, 2016 WL 7368059, at * 4 (Tex. App.

— Houston [1st Dist .] Dec. 20, 20 1 6, no pet.) (mem. op.)

.7

W e therefor e as k not w h ether reasonable grounds for reinstatement existed aft er the rule 162 nonsuit but whether the trial court ’s de nial of reinstatement was unreasonable or arbitrar y. We

con c l ud e that on these facts th e trial court ’ s deni al was not unrea s onable or arb itrary.

T he parties do not di spute that the two

- year statute of limitations applies to Lawson ’ s claims , and Lawson do es not dispute tha t her cla ims would b e u n timely if the reinstate d claims do not relate back to the d ate of the original ple ading. T he T exas Supreme Court has held that “ a voluntary nonsuit does not interrupt the running of the statute of limitations. ” C

HCA Woman ’ s Hosp., L.P. v. Lidji , 403 S.W

. 3d 228, 233 (Tex. 2013) (citing B ailey v. Gardner , 154 S.W. 3d 917, 920 (Tex. App.

— Dallas 20 05, no pet.)). 2 As explained in Bailey , the “ voluntary nonsuit is treated as though the first lawsuit had n ever been filed

. ” 154 S.W.3d at 920. Thu s, in cons i der i ng whether to grant Law son ’ s motion to withdraw her nonsuit , it was not unreasonab le for th e tr ial court to conclude that reinstat ing the claim s would allow Law son to bring a law suit outside th e statute of limitations

. Cf. Clary C or p. v. Smith , 949 S.W.2d 452, 459 (Tex. App.

— Fort Worth 199 7, pet. denied) ( “ When a cause of action is dis missed an d la ter refiled, limitations are calculated to run from the time the cause of action accrued until the date that the claim is refiled. Th i s i s because a d ismissal is equivalent to a suit

2 Lawson cites American Petrofina, Inc. v. Allen , 887 S.W.2d 829, 830

– 31 (Tex. 1994) , A ntonov v. Walters , 168 S.W.3d 901, 90 7 (Tex. App.

— Fort Worth 2005, pet. denied) , and Milestone Properties , Inc. v. Federated Met als Corp. , 8 67 S.W .2d 113, 116

– 17 (Tex. App.

— Aust in 1993, no wri t) , to assert that her claims would not be barred by limitat ions. But these cases are inapposite here ; they did not concern a voluntary nonsuit and motion to withdraw t he voluntary non suit. See All e n , 887 S.W .2d at 831 ( concern ing inad vertent omissio n of party ) ; Antonov , 168 S.W.3d at 90 6

– 0 7 ( con cern ing party ’ s i ntervention in to suit outside limitations period ) ; Milestone Prop s . , 867 S.W.2d at 11 6

– 1 7 ( concern ing added t ort claims that rela ted ba c k t o indem nity claim due to reference s to alleged misre presentations in earlier petition )

.8

never having been filed; thus, the s tatute of limitations i s not tol led for a ny new pleading filed. ” (internal citations omitted)).

Neverth eless, in her briefing befo re this Court, Lawson asserts two gr o u nd s that she ar gues j ustif

y re insta t ing the claims and allowing the claims to relat e back to the original
p etition

. Firs t, Lawson argues th at she and her counsel were not aware of the existence of the counterclaim and therefore the “intent was to di s mis s the entire su it pending in stat e court, and have all the claims decided in the feder al suit. ” Lawson, howe ver, does not dispute that she receive d the counterclaim , and the record and certificate of ser vice reflect that she was served wi t h t he counterclaim . I nstead , she asser ts that “ as a pro se litigant ” she “ did not understand that [th e Law Firm] had asserte d an indep ende nt counterclaim against her through its original

answer. ” But “ [ w]e hold pro se litigants to the same procedural st a nda rds as we do li tigants
repres ented b y counsel to avoid giving pro se litigants an unfair advantage. ” Veigel v. Texas Boll Weevil Er

adic ation Found., Inc. , 549 S.W.3d 193, 195 n.1 (Tex. Ap p.

— Austin 2018, no pet.). L awson also claims that her original counsel w a s n ot a ware of the cou nterclaim because he

“ appeared in the case after the counterclaim was f iled. ” But this does n ot explain why duri ng the four months between his appearance and the nonsuit he did not become f amiliar with the Law Fi rm ’ s live pleading , which asse rt ed a counterc laim again st his client. Accordingly, Lawson ’ s assertion that she an d her counsel were un aw are of the Law Fi rm ’ s counterclaim did not ma ke the trial court ’ s denial of her motion to withdraw her nonsuit unr easonable or arbi t rar y. Second, Laws on argues for reinstat ement on the equitable g round that “the mistaken dismissa l would likely prevent her from bei ng a ble to litigate the merit of her claims in any court ” because Law son ’s legal ma lpractice claims and the Law Firm ’s “ bre ach of leg al fee9

ag reement co unterclaim cannot be tried separately , and an attempt to do so will r aise a res judi cata def

ense. ” But a s o ur sister court has noted :
It does not take much imaginati on to see how a litig ant could use an unfettered ability t o d ismi ss and reinstat e to ut ter ly disrupt discovery, a trial, or the orderly proceeding of the cause in general. Nor need on e think ha rd t o envision how such power could vi tiate the trial cou rt ’ s authority to manage i ts docket.

T rigg , 33 5 S.W.3d at 246

. Given th e record her e, it was not unreasonable for the trial court to

conc lude that Lawson ’ s nonsui t ma y have bee n employe d for the pu rpos e of disrupting disco very and that the equ i tie s therefore did not supp ort gra nting Lawson ’ s motion to wit hdraw her nonsuit

. Accordingly, w e canno t conclude that the trial court abused its discretion based on Lawson ’ s stated e quitable groun d. Cf. Davi s , 2 016 WL 6833103, at *3 ( rej ecting arg ument that trial court ’ s denial of unv erified motion f or con tinuance “ force d ” voluntary nonsuit and hold ing that there was no abuse of discretion because “ [t]he record does not refl ect that the trial cour t

wa s in any way responsible for [ the plaintiff s ’ ] la ck of prepar ation for a trial setting ” ).

W e therefore overrul e La wson ’ s sole issue on appeal.

CONCLU SION For these reasons, w e affirm the trial court ’ s order denying La wson ’ s motion to withdraw her nonsuit

.10 ____________________________ ______________ Melissa Goodwin , Justice Before J ustices Go odwin, Baker, a nd Ke lly Affirmed Filed: May 14, 2021