Opinions, April 14, 2016: Absolute Nonsuit & Moot: Found Poetry in the Court of Appeals

This morning, the Fourteenth Court of Appeals released its Memorandum Opinion in In re Montgomery, No. 14-15-00203-CV, which includes a couple of instances of what appear to be inadvertent rhymes but which also happen to encapsulate the case’s holding.

In a divorce proceeding, Melba Jo Montgomery asserted tort claims against several individual and corporate defendants, alleging they conspired to defraud her of community property. These defendants go unnamed in the opinion and are given the vaguely ominous moniker the “Tort Defendants.” The Tort Defendants filed a motion for summary judgment on Melba’s claims. Before the trial court held a hearing on the motion for summary judgment, Melba filed a notice of nonsuit which stated she no longer wished to prosecute her claims against her husband, the Tort Defendants, or any of the remaining parties. Nonetheless, about two weeks after the notice of nonsuit was filed, the trial court signed an order granting the Tort Defendant’s MSJ. The same day the trial court signed the summary judgment order, it also signed an order granting the nonsuit.

If you’re like me (heaven forfend), you thought, “Wait a second. If Melba filed a Notice of Nonsuit, why was there an order granting the nonsuit?” Out of curiosity, I looked up the pleadings on the Harris County District Clerk website. It appears that Melba took the belt-and-suspenders approach of filing both a Notice of Nonsuit (not a motion for nonsuit), which affirmatively states that she no longer wishes to prosecute her claims and that the nonsuit is effective immediately upon filing, and a proposed order granting the nonsuit. Perhaps the trial court determined that by filing a proposed order, the notice of nonsuit was not immediately effective.

The Court of Appeals did not address this issue, though. Instead, it ruled that the notice of nonsuit complied with Rule 162 which provides that a plaintiff may nonsuit her claims at any time before she has introduced all of her evidence, other than rebuttal evidence. Which brings us to our first and clearest found poem in this opinion:

This right to nonsuit is absolute.

It’s not in iambic pentameter, but it’ll do.

The second example is not as precise, but it elaborates on the first:

The nonsuit was effective the moment Melba filed her notice, meaning her case was rendered moot immediately by the notice of nonsuit.

(Emphasis added for poetic effect) In other words, a notice of nonsuit renders the case moot.

Melba sought to set aside the MSJ ruling, which the trial court denied. On appeal, the Tort Defendants asserted several arguments in an attempt to defend the MSJ ruling. First, they argued that Melba had not served them with the notice of nonsuit in compliance with Rule 21a. The Court of Appeals held that Texas Supreme Court precedent does not require proper service for the notice of nonsuit to be effective.

Secondly, the Tort Defendants relied upon the electronic docket sheet which reflected that the trial court rendered summary judgment on the same day as Melba filed her notice of nonsuit but did not specifically state which came first. The Court of Appeals did not find this to be a persuasive argument, noting that a docket sheet does not carry more weight than the actual documents or the fact that the notice of nonsuit was time-stamped almost two weeks before the summary judgment order.

Finally, the Tort Defendants argued that the summary judgment should be upheld as a sanction under Rule 21b. After a notice of nonsuit has been filed, the non-filing party can still move for sanctions. The Tort Defendant moved for sanctions several hours after the notice of nonsuit was filed, along with the Tort Defendants’ reply to Melba’s response to their MSJ.  They alleged that Melba had violated the rules of service because she filed her response with the trial court but did not serve it on the Tort Defendants. They requested that the trial court strike her response from the record. On appeal, the Tort Defendants asserted that the trial court could have dismissed Melba’s suit with prejudice because that was available under the rules. The Court of Appeals disagreed because such sanctions can only be imposed only after notice and hearing and the record did not indicate a sanctions hearing was ever held. Also, the summary judgment order indicated it was granted on the merits of the MSJ.

In conclusion, once Melba filed her notice of nonsuit, the case was over and any rulings thereafter were moot.




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