Opinion issued August 4, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-15-00471-CV

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IN RE DANIEL W. WARREN, BENEFICIARY OF THE 

DANIEL STEVEN WEINER 1996 TRUST, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Daniel W. Warren, has filed a petition for writ of mandamus 

challenging the trial court’s jurisdiction to hear and rule on motions regarding a 

Counter and Cross-Petition filed by the real party in interest after relator’s nonsuit.

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We deny the petition.

 

1

The underlying case is In re Daniel Steven Weiner 1996 Trust, cause number 

425,576-401, pending in the Probate Court No. 4 of Harris County, Texas, the 

Honorable Christine Butts presiding.
2

Background

Daniel and his two brothers are each beneficiaries of separate trusts for 

which their parents, Andy Weiner and Katherine Warren, serve as co-trustees. 

After Daniel’s brother, David, filed suit against Weiner regarding his trust, Daniel 

intervened in David’s case to assert similar claims against Weiner regarding his 

own trust. Weiner subsequently filed his Second Amended Cross-Claims against 

Katherine Warren, as co-trustee, regarding both trusts. The trial court later issued 

an order (1) severing Daniel’s case into its own cause number, (2) ordering that

“all prior discovery, orders, motions, responses and answers pertaining to Daniel

W. Warren in [David’s case] shall apply in the same manner as if such had 

occurred in [Daniel’s new case]” and (3) directing the clerk to transfer twenty-four 

listed items filed in David’s case to Daniel’s new case. Weiner’s Second Amended 

Cross-Claims were not included in the severance order’s list of items to be 

transferred to Daniel’s new case. Daniel subsequently nonsuited his claims against 

Weiner. After the nonsuit, Weiner filed a Counter and Cross-Petition in the case 

and the trial court held hearings and ruled on motions regarding the Counter and 

Cross-Petition.

Analysis

In this mandamus proceeding, Daniel asserts that he had an “absolute right 

to nonsuit his case and be dismissed” and challenges the trial court’s jurisdiction to 
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hear and rule on matters following the nonsuit. However, a plaintiff’s nonsuit does 

not affect a defendant’s pending claims for affirmative relief. See TEX. R. CIV. P.

162 (“Any dismissal pursuant to this rule shall not prejudice the right of an adverse 

party to be heard on a pending claim for affirmative relief or excuse the payment of 

all costs taxed by the clerk.”); Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011) 

(“[A] nonsuit does not affect any pending claim for affirmative relief or motion for 

attorney’s fees or sanctions.”). Acknowledging this, Daniel argues that “no claims 

of any kind” were pending at the time of his nonsuit because Weiner’s Second 

Amended Cross-Claims were not included in the severance order’s list of items to 

be transferred to his case. We disagree.

Although Weiner’s Second Amended Cross-Claims were not included in the 

list of items to be transferred to Daniel’s case, the trial court’s severance order 

indicates a clear intent to transfer all matters relating to Daniel to his new case. The 

Second Amended Cross-Claims are included in the record in this original 

proceeding and demonstrates that Weiner asserted claims against the co-trustee 

regarding both David and Daniel’s trusts. No reasonable explanation has been 

presented as to why the severance order would sever all matters relating to Daniel 

into a new case, but leave Weiner’s cross-claims regarding Daniel’s trust to remain 

pending in David’s case. Accordingly, we hold that the claims in the Second 

Amended Cross-Claims were asserted in Daniel’s case prior to his nonsuit.
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Furthermore, the Second Amended Cross-Claims asserted at least one independent 

claim for affirmative relief. Because the nonsuit did not resolve the pending 

affirmative claim, the nonsuit was not a final order and the trial court’s plenary 

power did not expire thirty days after the order was issued. See TEX. R. CIV.

P. 329b(d), (e); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95–97 (Tex. 2009)

(holding that trial court’s plenary power had not expired where order granting 

nonsuit was not final because it did not dispose of all pending matters).

Conclusion

For the foregoing reasons, we deny the petition for writ of mandamus and 

lift the stay imposed in our May 27, 2015 order.

PER CURIAM

Panel consists of Justices Jennings, Bland, and Brown.