COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-358-CV

ERNEST REYNOLDS III APPELLANT

V.

MICHAEL MURPHY A/K/A APPELLEE

AND F/K/A JOHN MICHAEL MURPHY

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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This case involves a summary judgment that was affirmed by this court

on all but one of the plaintiff’s claims upon which the defendants had failed to

move for summary judgment; this court reversed and remanded the summary

judgment as to that claim. Reynolds v. Murphy, 188 S.W.3d 252, 275 (Tex.

App.—Fort Worth 2006, pet. denied), cert. denied, 127 S. Ct. 1839 (2007).

Upon remand, appellee and defendant below, Michael Murphy a/k/a and f/k/a
1... See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972) (stating rule

that amended petition omitting a defendant operates as a voluntary dismissal

as to that party).

2

John Michael Murphy, filed for summary judgment as to that claim—that he and

his publisher, Phillips Investment Resources, L.L.C., had engaged in fraud and

misrepresentation by failing to disclose appellee’s past performance as a fund

manager. Appellant Ernest Reynolds III, the plaintiff below, then amended his

petition—omitting Phillips as a party

1

 and adding additional causes of action

against appellee, sought a continuance, and moved to compel further discovery

as to the additional claims. In response to appellee’s requests, the trial court

struck the amended pleading and refused to allow further discovery. Appellant

filed a mandamus, which this court denied. Appellant then nonsuited his claims

against appellee for the purpose of rendering final and appealable the trial

court’s rulings striking his amended pleading and freezing discovery.

On appeal, appellant brings two issues: that the trial court erred by

holding that this court’s opinion and mandate in the prior appeal deprived him

of his right to freely amend his pleadings under rule 63 of the Texas Rules of

Civil Procedure and the trial court erred in freezing discovery, thus preventing

appellant from deposing appellee. Because this court’s prior opinion and

mandate did not expressly preclude appellant from including additional claims
2... The discovery that has taken place so far consists of numerous

requests for admissions and interrogatories. Although some of these were

answered, appellee and Phillips filed a motion for a protective order as to others

on the ground that the volume of requests was unduly burdensome and

harassing. Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort Worth

2006, pet. denied), cert. denied, 127 S. Ct. 1839 (2007). The trial court never

ruled on that motion, however, because it granted a final summary judgment

in appellee’s and Phillips’s favor before determining the discovery dispute. Id.

at 260.

3

in the suit, we reverse the trial court’s judgment and remand for further

proceedings on appellant’s amended petition.

Background Facts

Appellant originally sued appellee and Phillips in June 2002 for

negligence, fraud, and DTPA violations in connection with stock market losses

that appellant allegedly suffered after investing in accordance with

recommendations made by appellee in a newsletter published by Phillips. Id.

at 257–58. The trial court granted a final summary judgment for appellee and

Phillips. On appeal, this court affirmed most of the summary judgment but

reversed and remanded as to one claim upon which appellee and Phillips had

failed to specifically move for summary judgment. Id. at 275.

After this court’s mandate issued, on March 21, 2007, appellant notified

appellee that he wished to take appellee’s deposition and the deposition of

Phillips’s principal.2 Thereafter, on March 29, 2007, appellee and Phillips filed
4

a second motion for summary judgment as to the surviving claim. They also

filed a Motion to Stay Discovery, Motion to Quash, and Motion For a Protective

Order, in which they moved to quash the deposition notices and stay all

discovery until the trial court could rule on the second motion for summary

judgment. 

On May 7, 2007, appellant filed a Third Amended Petition, omitting

Phillips as a party, adding two new causes of action—violation of Texas

securities laws and the business and commerce code and breach of fiduciary

duty, while retaining his claims for fraud and misrepresentation against

appellee—and seeking discovery from appellee as to those two claims. That

same day, appellant also filed a motion for continuance on the summary

judgment hearing, asking that the hearing on the motion be delayed until he

could obtain full discovery on his claims and asking the court to compel

appellee’s deposition. 

On May 9, 2007, appellee filed “Special Exceptions, Motion to Strike

Plaintiff’s Third Amended Petition, and Response to Plaintiff’s Motions to

Compel and For Continuance,” in which he argued that the claims asserted in

appellant’s Third Amended Petition exceeded the scope of the remand in this

court’s mandate from the prior appeal, that the additional claims are barred by

the law of the case doctrine, and that appellant had failed to “demonstrate the
5

utility of any further discovery on his claims, thereby thwarting the need for any

continuance of the summary judgment hearing.” Appellee specifically

contended, among other things, that this court’s mandate contained only a

limited remand, with specific instructions to retry only one particular issue,

precluding appellant from trying any additional issues. 

After a hearing on appellee’s special exceptions and motion to strike, the

trial court issued a fax ruling, stating that appellee’s “motion to strike additional

causes of action is granted, as are the exceptions. The Court believes

the . . . single issue left to determine under the direction of the Court of

Appeals is a question of Duty which is a question of law, [and] the [d]iscovery

is ordered frozen.” On May 10, 2007, appellant nonsuited Phillips, but

“specifically [did] not request” a nonsuit as to appellee. 

Appellant filed a mandamus petition in this court on July 20, 2007

challenging the trial court’s order striking appellant’s new pleading and freezing

discovery. This court ultimately denied appellant’s mandamus petition.

Appellant then filed a “Non-suit, Without Prejudice, of Claim Against Murphy”

in the trial court, purporting to nonsuit appellant’s “single active, remaining

claim” against appellee, but also specifically stating that appellant was not

“abandon[ing] or waiv[ing] any of his legal rights (such rights include, but are

not limited to, right to due process, rights to discovery, and rights to appeal
6

from trial court rulings made in a letter order on or about May 21, 2007).” The

nonsuit filing also states that it was “filed for the purpose, procedurally, of

perfecting a right to an appeal” and that it was to have the effect of a final

judgment. 

After nonsuiting appellee, appellant timely filed a notice of appeal.

Issues Presented

Appellant brings two issues complaining about the trial court’s ruling

striking his Third Amended Petition and freezing discovery in the case. In his

first issue, appellant contends that the trial court erred by holding that this

court’s opinion and mandate in the prior appeal deprives appellant of his right

to freely amend his pleadings under rule 63 of the rules of civil procedure. In

his second issue, appellant contends that the trial court erred by freezing

discovery and preventing appellant from taking appellee’s deposition. In

response, appellee contends that, regardless of the merits of appellant’s issues,

the nonsuit rendered the case moot, depriving this court of subject matter

jurisdiction over the appeal. Because appellee’s argument involves this court’s

subject matter jurisdiction, we address it first. See Bd. of Adjustment of City

of San Antonio v. Wende, 92 S.W.3d 424, 426 (Tex. 2002); McClure v.

JPMorgan Chase Bank, 147 S.W.3d 648, 651 (Tex. App.—Fort Worth 2004,

pet. denied).
3... The parties argued these issues in the context of appellee’s

presubmission motion to dismiss, which we opted to carry to submission and

address in this opinion.

7

Whether Nonsuit Renders This Appeal Moot

Appellee claims that appellant’s nonsuiting his remaining claim against

appellee after the trial court struck his Third Amended Petition vitiated the trial

court’s rulings striking his amended petition and freezing discovery. According

to appellee, this mooted the case, and we therefore have no subject matter

jurisdiction over the appeal.3

Under the classic mootness doctrine, a justiciable controversy is definite

and concrete and must impact the legal relations of parties having adverse legal

interests. Aetna Life Ins. Co. of Hartford Conn. v. Haworth, 300 U.S. 227,

240–41, 57 S. Ct. 461, 464 (1937); McClure, 147 S.W.3d at 651. Our

jurisdiction is restricted to such actual controversies. Camarena v. Tex.

Employment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988); McClure, 147

S.W.3d at 651. A controversy must exist between the parties at every stage

of the legal proceeding, including the appeal. Wende, 92 S.W.3d at 427;

McClure, 147 S.W.3d at 651. Thus, when an appeal is moot, we must set

aside the judgment and dismiss the cause. McClure, 147 S.W.3d at 651; City
8

of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex. App.—Fort

Worth 2001, no pet.).

Texas Rule of Civil Procedure 162 permits a plaintiff to voluntarily dismiss

or nonsuit a case “[a]t any time before the plaintiff has introduced all of his

evidence other than rebuttal evidence.” TEX. R. CIV. P. 162; Univ. of Tex. Med.

Branch at Galveston v. Estate of Blackmon ex. rel. Shultz, 195 S.W.3d 98, 100

(Tex. 2006); Yaquinto v. Britt, 188 S.W.3d 819, 824 (Tex. App.—Fort Worth

2006, pet. denied). Courts in Texas have held that “a plaintiff has a right to

take a nonsuit after the defendant files a motion for summary judgment, up to

the time the court announces a summary judgment.” McClure, 147 S.W.3d at

652. Although a nonsuit may have the effect of vitiating a trial court’s earlier

interlocutory orders, a nonsuit does not vitiate a trial court’s previously-made

decisions on the merits, such as a summary judgment, or even a partial

summary judgment, which becomes final upon disposition of the other issues

in the case. Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854–55 (Tex.

1995); McClure, 147 S.W.3d at 652; see also Newco Drilling Co. v. Weyand,

960 S.W.2d 654, 656 (Tex. 1998) (holding that court of appeals erred by

failing to review merits of partial summary judgment after plaintiffs allowed

their case to be dismissed for want of prosecution).
9

The parties disagree as to whether the trial court’s rulings striking

appellant’s amended petition are equivalent to a decision on the merits as to the

new claims in the amended petition. Appellee contends that the rulings were

merely incidental interlocutory rulings because they did not involve any

judgments on the merits of those claims, citing Le v. Kilpatrick, 112 S.W.3d

631, 633–34 (Tex. App.—Tyler 2003, no pet.), a case involving an

interlocutory denial of a special appearance.

Here, appellee’s motion to strike and special exceptions complained of

substantive issues as to appellant’s Third Amended Petition; specifically, they

contended that appellant was not entitled to maintain the new causes of action

and that he was not entitled to discovery on those causes of action. A motion

to strike that attacks the substance of an amended pleading, even if based on

special exceptions, is an improper procedural mechanism. Gallien v. Wash.

Mut. Home Loans, Inc., 209 S.W.3d 856, 861–62 (Tex. App.—Texarkana

2006, no pet.). Here, by striking not appellant’s Third Amended Petition, but,

specifically, his new causes of action in that petition, and by refusing to allow

discovery on those causes of action, the trial court effected a dismissal of those

causes of action with prejudice without affording appellant an opportunity to

replead. See id. at 861–62. Such a dismissal is improper. Id. at 865; see

Rodriguez v. U.S. Sec. Assocs., 162 S.W.3d 868, 872–75 (Tex.
10

App.—Houston [14th Dist.] 2005, no pet.); Humphreys v. Meadows, 938

S.W.2d 750, 753 (Tex. App.—Fort Worth 1996, writ denied). In essence, by

precluding appellant from pursuing those claims in the suit, the trial court

effected the same type of disposition as a dismissal or a partial summary

judgment precluding consideration of those claims. See Scherff v. Mo. Pac.

Ry. Co., 81 Tex. 471, 17 S.W. 39, 40 (1891); Gallien, 209 S.W.3d at 865.

Accordingly, we conclude and hold that appellant’s nonsuit of its sole remaining

claim did not vitiate the trial court’s rulings effectively barring him from

pursuing his new claims and that we have subject matter jurisdiction to

consider this appeal. See Hyundai, 892 S.W.2d at 854–55; McClure, 147

S.W.3d at 652. We deny appellee’s motion to dismiss the appeal.

Whether This Court’s Remand in Prior Appeal Limited Appellant’s

Ability to Plead New Causes of Action

In the trial court, appellee contended that appellant was not entitled to

bring any new causes of action because this court’s mandate limited remand

to appellant’s sole surviving claim after summary judgment—that appellee and

Phillips had engaged in fraud and misrepresentation by failing to disclose

appellee’s past performance as a fund manager. Appellant contended, and

contends on appeal, that such an interpretation of this court’s mandate is in

conflict with rule 63 of the rules of civil procedure, which allows parties to file
11

amended pleadings without leave of court up to seven days before trial unless

the amendment works as a surprise to the opposing party or unless the trial

court has set a different date in a scheduling order under rule 166. TEX. R. CIV.

P. 63, 166; In re Estate of Henry, 250 S.W.3d 518, 526 (Tex. App.—Dallas

2008, no pet.); see also TEX. R. CIV. P. 66 (providing for pleadings to be

amended during trial). Here, appellee did not claim surprise as a result of the

new claims in the Third Amended Petition, nor is there evidence that any

scheduling order supplanted the general rule. Accordingly, we look to the

language of our mandate and case law governing the scope of remand.

Generally, “[w]hen a case has been remanded, the cause is pending and

amended pleadings may be filed in pending cases pursuant to [rule] 63.” U.S.

Fid. and Guar. Co. v. Beuhler, 597 S.W.2d 523, 524–25 (Tex. Civ.

App.—Beaumont 1980, no writ); see Sepulveda v. Krishnan, 839 S.W.2d 132,

137 n.2 (Tex. App.—Corpus Christi 1992), aff’d, 916 S.W.2d 478 (Tex.

1995). However, when an appellate court remands a case and limits a

subsequent trial to a particular issue, the trial court is restricted to a

determination of that particular issue. See Hudson v. Wakefield, 711 S.W.2d

628, 630 (Tex. 1986). In interpreting the mandate of the appellate court, the

courts should look not only to the mandate itself but also to the opinion of the

court. Id.
12

Here, this court’s mandate read as follows: “We reverse that portion of

the trial court’s judgment regarding the claim that appellees engaged in fraud

and misrepresentation by representing [appellee’s] talents and skills in an untrue

light and remand that portion for further proceedings consistent with this

opinion.” The following excerpts from this court’s prior opinion relate to the

remanded claim:

[B]ecause appellees did not move for summary judgment as

to whether appellees misrepresented Murphy’s “talents and skills”

by failing to disclose his past performance as a fund manager, they

were not entitled to either a traditional or no-evidence summary

judgment on that particular claim.

. . . .

We sustain [appellant’s] sixth issue as to his fraud and

misrepresentation claims based on the allegation that appellees

represented Murphy's talents and skills in an untrue light by failing

to disclose his past performance as a fund manager.

. . . .

Having determined that appellees were entitled to summary

judgment on all of [appellant’s] claims except his claim that

appellees engaged in fraud and misrepresentation by failing to

disclose Murphy's past performance as a fund manager, we affirm

the trial court’s judgment except as to that claim. We reverse and

remand the claim that appellees engaged in fraud and

misrepresentation by failing to disclose Murphy’s past performance

as a fund manager for further proceedings consistent with this

opinion.

Reynolds, 188 S.W.3d at 272, 275.
13

Based on the foregoing, we conclude and hold that this court’s mandate

did not limit remand to the sole issue upon which appellee and Phillips failed to

move for summary judgment. Instead, the language simply reflects this court’s

opinion that, of the claims pending at the time of the motion for summary

judgment, summary judgment was improperly granted as to the claim that

appellee and Phillips engaged in fraud and misrepresentation by failing to

disclose appellee’s past performance as a fund manager; therefore, that claim

should first be reconsidered in the trial court before review by this court. There

is no language limiting the trial court’s consideration to only that claim, and

there is no language specifically prohibiting appellant from adding new claims.

Nothing in this court’s prior opinion speaks to such an argument, nor did this

court consider whether any other types of causes of action would be viable

upon this set of facts.

In the cases relied upon by appellee, the appellate courts’ remands either

included language specifically indicating that the trial court was precluded from

considering additional claims or were issued in appeals in which trial had already

occurred. See Kahn v. Seely, 37 S.W.3d 86, 87–88 (Tex. App.—San Antonio

2000, no pet.) (holding that remand was limited when, in prior appeal from jury

verdict, appellate court mandate reversed and remanded “for further

proceedings on the post-dissolution compensation issue”); Seale v. Click, 556
4... See also Lifshutz v. Lifshutz, 199 S.W.3d 9, 20–21 (Tex. App.—San

Antonio 2006, pets. denied) (holding that remand was limited in scope when

remanding only some issues after bench trial).

14

S.W.2d 95, 96 (Tex. Civ. App.—Eastland 1977, writ ref’d n.r.e.) (noting that

remand in original appeal from summary judgment in which appeals court

affirmed summary judgment disposing of all of plaintiff’s claims was for “trial

only of the issue of [Click’s] damages pleaded by her cross-action” (emphasis

added)); Owens v. Lubbock ISD, 237 S.W.2d 711, 712 (Tex. Civ.

App.—Amarillo 1950, writ ref’d n.r.e.) (holding that trial court properly

sustained special exceptions to additional pleadings after remand from appeal

taken from trial court’s denial of counterclaim in bench trial).4 Thus, in these

cases, the parties had had the opportunity to fully litigate all issues to a

resolution.

In contrast, this case was still in the pretrial stage, with discovery

ongoing (although the parties disputed whether an adequate time for discovery

had occurred), and if the trial court had denied summary judgment initially, or

if this court had reversed the entire summary judgment, appellant would have

been free to amend his pleadings to add new claims, subject to any scheduling

orders entered by the trial court. See TEX. R. CIV. P. 63, 166; Beuhler, 597

S.W.2d at 524–25. Appellee has not shown why appellant should not be
15

afforded the same right here, when, in effect, this court’s mandate left a claim

pending in the trial court, and this court did not make any explicit instructions

as to how that claim should have been disposed. For instance, if appellee had

opted to go to trial on that claim, rather than move for summary judgment, this

court’s mandate and opinion would not have precluded that choice. Likewise,

this court’s mandate did not preclude appellee from filing a motion for summary

judgment as to that claim.

This case is more similar to Creative Thinking Sources, Inc. v. Creative

Thinking, Inc., in which the court of appeals initially affirmed a summary

judgment in part and reversed and remanded it in part. 74 S.W.3d 504,

508–09 (Tex. App.—Corpus Christi 2002, no pet.). In the first appeal, the

court’s disposition was as follows: 

We REVERSE the judgment of the trial court on CTS’s claims for

declaratory judgment, and breach of duty arising from a confidential

or informal fiduciary relationship, and REMAND for trial on those

claims. We affirm the remainder of the judgment against CTS on

its claims based on the existence of a partnership with CT.

Id. at 509. Upon remand, as in this case, the defendant moved the trial court

to limit the plaintiff’s causes of action to those remanded by the court of

appeals; the trial court granted the motion and struck a subsequent amended

pleading asserting new causes of action. Id. The trial court then granted a
5... Appellee claims that appellant did not brief an alternative ground upon

which the trial court struck appellant’s pleadings: that the new claims are

precluded by the law of the case doctrine. However, the trial court’s ruling was

clearly based upon this court’s conclusion that the single issue left to determine

“under the direction of the Court of Appeals” was the sole remanded issue.

See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003) (holding that trial

court judgments should be construed as a whole, harmonizing and giving effect

to all parts). Moreover, neither the trial court nor this court has yet passed on

the merits of appellant’s new claims; thus, the law of the case does not apply.

See Truck Ins. Exch. v. Robertson, 89 S.W.3d 261, 264 (Tex. App.—Fort

Worth 2002, no pet.).

16

second summary judgment against the plaintiff, and the Corpus Christi Court

of Appeals reversed the trial court’s ruling. Id. at 515.

This case, too, involves a summary judgment that was affirmed in part

and reversed and remanded in part, with instructions that the trial court should

conduct further proceedings on the remanded claim. The mandate did not

specifically limit the trial court’s consideration to that one claim, however, nor

did it preclude the addition of new claims by amendment. We sustain

appellant’s first issue.5

In his second issue, appellant contends that the trial court erred by

freezing discovery. Having held that this court’s mandate did not preclude

appellant from bringing additional claims in the trial court, and discerning no

other reason in the record for the trial court’s ruling disallowing further

discovery, we sustain appellant’s second issue. See TEX. R. CIV. P. 192.4
17

(allowing trial court to limit discovery if unreasonably cumulative, duplicative,

obtainable from other sources, or unduly burdensome or expensive), 192 cmt.

7 (stating that courts should limit discovery under rule 192.4 “based on the

needs and circumstances of the case . . . only to prevent unwarranted delay

and expense as stated more fully in the rule. . . . [and that a] court abuses its

discretion in unreasonably restricting a party’s access to information through

discovery”); Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (holding that purpose of

discovery is to seek truth so that disputes may be decided by what facts reveal,

not by what facts are concealed).
18

Conclusion

Having sustained both of appellant’s issues, we reverse the trial court’s

rulings freezing discovery and striking the new claims in appellant’s Third

Amended Petition—based on the Texas securities laws, the business and

commerce code, and breach of fiduciary duty. We remand this case to the trial

court for trial or other appropriate proceedings consistent with this opinion.

TERRIE LIVINGSTON

JUSTICE

PANEL: LIVINGSTON, GARDNER, and McCOY, JJ.

DELIVERED: August 29, 2008