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Texas Supreme Court: Non-Suit Deprives Appeals Court of Jurisdiction
The Supreme Court of Texas held that a plaintiff?s filing non-suit while an appeal was pending deprived the court of appeals of jurisdiction and any authority to enter an order, holding or opinion.
Darla Blackmon, a Texas state prisoner, died of pneumonia while being held at a substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Her daughter, Sheila Shultz, filed suit against UTMB for wrongful death, alleging UTMB failed to diagnose and treat Blackmon?s illness. Shultz claimed that the Texas Tort Claims Act waived the state?s sovereign immunity because the case involved personal injury caused by a condition or use of tangible personal property. See: § 101.021(2), Texas Civil Practice and Remedies Code. UTMB filed a plea to the jurisdiction. The trial court denied the plea, and UTMB filed an interlocutory appeal in the court of appeals.
The court of appeals reversed the denial and rendered judgment in UTMB?s favor. Shultz filed a motion for rehearing, which the court of appeals granted. Three weeks later Shultz filed non-suit (a voluntary dismissal of the underlying lawsuit), and moved to dismiss the appeal for want of jurisdiction. The court of appeals denied the motion and later issued a new opinion denying UTMB?s plea to the jurisdiction.
UTMB filed a petition for review in the Texas Supreme Court. In response to the petition for review, Shultz maintained that the court of appeals was without jurisdiction to enter the opinion on rehearing as there was no longer a case or controversy following her filing of the non-suit.
The Texas Supreme Court held that, under the circumstances of the case, Texas Rule of Civil Procedure 162 applied to the suit while it was pending on appeal, and gave Shultz the right to file non-suit. Non-suit extinguishes the case or controversy from the moment it is filed or an oral motion is made in open court. The only exceptions are an adverse party?s claim for affirmative relief, costs taxed by the clerk, and motions for sanctions, attorney?s fees or other costs pending at the time of the dismissal. ?A claim for affirmative relief must allege a viable cause of action, independent of the plaintiff?s claim. ...? UTMB did not raise such a claim for affirmative relief but did request costs, attorney?s fees and sanctions; thus, the trial court could still hold hearings on those issues even after non-suit was filed. However, the non-suit still rendered the merits of the suit moot.
UTMB argued that a plaintiff cannot file non-suit after a court has entered a judgment on the merits. But this was an interlocutory appeal and the court of appeals had withdrawn its judgment when it granted Shultz?s motion for rehearing before the non-suit was filed. Thus, the only ruling in question was the trial court?s order denying UTMB?s plea to the jurisdiction. That ruling was in Shultz?s favor; therefore, the court of appeals lacked jurisdiction to issue an order and opinion on rehearing. The Texas Supreme Court vacated the order of the court of appeals and dismissed the appeal for want of jurisdiction. See: University of Texas Medical at Galveston v. Estate of Blackmon, 195 S.W.3d 98 (Tex., 2006).
Darla Blackmon, a Texas state prisoner, died of pneumonia while being held at a substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Her daughter, Sheila Shultz, filed suit against UTMB for wrongful death, alleging UTMB failed to diagnose and treat Blackmon?s illness. Shultz claimed that the Texas Tort Claims Act waived the state?s sovereign immunity because the case involved personal injury caused by a condition or use of tangible personal property. See: § 101.021(2), Texas Civil Practice and Remedies Code. UTMB filed a plea to the jurisdiction. The trial court denied the plea, and UTMB filed an interlocutory appeal in the court of appeals.
The court of appeals reversed the denial and rendered judgment in UTMB?s favor. Shultz filed a motion for rehearing, which the court of appeals granted. Three weeks later Shultz filed non-suit (a voluntary dismissal of the underlying lawsuit), and moved to dismiss the appeal for want of jurisdiction. The court of appeals denied the motion and later issued a new opinion denying UTMB?s plea to the jurisdiction.
UTMB filed a petition for review in the Texas Supreme Court. In response to the petition for review, Shultz maintained that the court of appeals was without jurisdiction to enter the opinion on rehearing as there was no longer a case or controversy following her filing of the non-suit.
The Texas Supreme Court held that, under the circumstances of the case, Texas Rule of Civil Procedure 162 applied to the suit while it was pending on appeal, and gave Shultz the right to file non-suit. Non-suit extinguishes the case or controversy from the moment it is filed or an oral motion is made in open court. The only exceptions are an adverse party?s claim for affirmative relief, costs taxed by the clerk, and motions for sanctions, attorney?s fees or other costs pending at the time of the dismissal. ?A claim for affirmative relief must allege a viable cause of action, independent of the plaintiff?s claim. ...? UTMB did not raise such a claim for affirmative relief but did request costs, attorney?s fees and sanctions; thus, the trial court could still hold hearings on those issues even after non-suit was filed. However, the non-suit still rendered the merits of the suit moot.
UTMB argued that a plaintiff cannot file non-suit after a court has entered a judgment on the merits. But this was an interlocutory appeal and the court of appeals had withdrawn its judgment when it granted Shultz?s motion for rehearing before the non-suit was filed. Thus, the only ruling in question was the trial court?s order denying UTMB?s plea to the jurisdiction. That ruling was in Shultz?s favor; therefore, the court of appeals lacked jurisdiction to issue an order and opinion on rehearing. The Texas Supreme Court vacated the order of the court of appeals and dismissed the appeal for want of jurisdiction. See: University of Texas Medical at Galveston v. Estate of Blackmon, 195 S.W.3d 98 (Tex., 2006).
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Related legal case
University of Texas Medical at Galveston v. Estate of Blackmon
| Year | 2006 |
|---|---|
| Cite | 195 S.W.3d 98 (Tex., 2006) |
| Level | State Supreme Court |
| Injunction Status | N/A |
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, PETITIONER, v. THE ESTATE OF DARLA BLACKMON, BY ITS BENEFICIARY SHEILA SHULTZ, AND SHEILA SHULTZ, INDIVIDUALLY, RESPONDENTS
NO. 05-0594
SUPREME COURT OF TEXAS
195 S.W.3d 98
June 9, 2006, Delivered
SUBSEQUENT HISTORY: [**1] Released for Publication July 28, 2006.
COUNSEL: For Petitioner: Honorable Greg Abbott, Attorney General of Texas, Austin, TX; Mr. Barry Ross McBee, Mr. Edward D. Burbach, Mr. Rafael Edward Cruz, Mr. Ryan D. Clinton, Office of the Attorney General, Austin, TX; Ms. Nichelle A. Cobb, Tort Litigation Division, Austin, TX.
For Respondent: Mr. Stephen A. Khoury, Kelsoe Anderson Khoury & Clark, Dallas, TX.
OPINION
[*100] PER CURIAM
While the petitioner's interlocutory appeal from its plea to the jurisdiction was pending in the court of appeals, the respondent filed a nonsuit. We conclude that the nonsuit deprived the court of appeals of jurisdiction, and we vacate its order and dismiss this interlocutory appeal for want of jurisdiction.
Darla Blackmon died of pneumonia while incarcerated at a Texas Department of Criminal Justice substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Blackmon's daughter, Sheila Shultz, brought suit for wrongful death and survival damages, claiming that UTMB negligently failed to diagnose and [**2] treat her mother's illness. Shultz alleged a waiver of sovereign immunity under the Tort Claims Act's exception for personal injury or death caused by a condition or use of tangible personal property. See TEX. CIV. PRAC. & REM. CODE § 101.021(2). UTMB filed a plea to the jurisdiction, which the trial court denied, and then brought an interlocutory appeal. See id. § 51.014(a)(8).
The court of appeals initially reversed the trial court's order and rendered judgment for UTMB, but then withdrew its judgment upon granting Shultz's motion for rehearing. Three weeks later, Shultz filed a nonsuit and moved to dismiss the appeal for want of jurisdiction. The court of appeals denied Shultz's motion, and eventually issued a new opinion denying UTMB's plea to the jurisdiction. 169 S.W.3d 712. Responding to UTMB's appeal in this Court, Shultz contends that there is no longer a case or controversy, and that her nonsuit deprived the court of appeals of jurisdiction over UTMB's appeal. We agree.
Under the Texas Rules of Civil Procedure, "[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, [**3] the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes." TEX. R. CIV. P. 162. Rule 162 applies in this case because Shultz filed the nonsuit while this matter was pending on interlocutory appeal from UTMB's pretrial plea to the jurisdiction. Under these circumstances, the nonsuit extinguishes a case or controversy from "the moment the motion is filed" or an oral motion is made in open court; the only requirement is "the mere filing of the motion with the clerk of the court." Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211, 33 Tex. Sup. Ct. J. 194 (Tex. 1990); see also Greenberg v. Brookshire, 640 S.W.2d 870, 872, 26 Tex. Sup. Ct. J. 19 (Tex. 1982). While the date on which the trial court signs an order dismissing the suit is the "starting point for determining when a trial court's plenary power expires," a nonsuit is effective when it is filed. In re Bennett, 960 S.W.2d 35, 38, 41 Tex. Sup. Ct. J. 134 (Tex. 1997); TEX. R. CIV. P. 329b. The trial court generally has no discretion to refuse to dismiss the suit, and its order doing so is ministerial. In re Bennett, 960 S.W.2d at 38; Shadowbrook, 783 S.W.2d at 211. [**4]
Of course, the trial court need not immediately dismiss the suit when notice of nonsuit is filed. Rule 162 states that the plaintiff's right to nonsuit "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," and a dismissal "shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal." TEX. R. CIV. P. 162. [*101] A claim for affirmative relief must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action. BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841, 34 Tex. Sup. Ct. J. 117 (Tex. 1990). UTMB has not raised a claim for affirmative relief, but it did request costs in its plea to the jurisdiction. Rule 162 permits the trial court to hold hearings and enter orders affecting costs, attorney's fees, and sanctions, even after notice of nonsuit is filed, while the court retains plenary power. In re Bennett, 960 S.W.2d at 38. Thus, the trial court has discretion [**5] to defer signing an order of dismissal so that it can "allow a reasonable amount of time" for holding hearings on these matters which are "collateral to the merits of the underlying case." Id. at 38-39. Although the Rule permits motions for costs, attorney's fees, and sanctions to remain viable in the trial court, it does not forestall the nonsuit's effect of rendering the merits of the case moot.
Finally, UTMB argues that a plaintiff cannot nonsuit a claim once a court has rendered a judgment on the merits. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995) (holding that a nonsuit results in a dismissal with prejudice as to claims already adjudicated on partial summary judgment). In this case, however, the court of appeals withdrew its judgment for UTMB before the nonsuit was filed. As a result, the nonsuit vitiated only the trial court's interlocutory order denying UTMB's plea to the jurisdiction. That ruling favored Shultz and, consequently, its nullification did not prejudice UTMB.
The court of appeals lacked jurisdiction to issue an order and opinion on rehearing. Accordingly, without hearing oral argument, we grant the petition [**6] for review, vacate the court of appeals' order, and dismiss the appeal for want of jurisdiction. TEX. R. APP. P. 59.1, 60.2(e).
OPINION DELIVERED: June 9, 2006
NO. 05-0594
SUPREME COURT OF TEXAS
195 S.W.3d 98
June 9, 2006, Delivered
SUBSEQUENT HISTORY: [**1] Released for Publication July 28, 2006.
COUNSEL: For Petitioner: Honorable Greg Abbott, Attorney General of Texas, Austin, TX; Mr. Barry Ross McBee, Mr. Edward D. Burbach, Mr. Rafael Edward Cruz, Mr. Ryan D. Clinton, Office of the Attorney General, Austin, TX; Ms. Nichelle A. Cobb, Tort Litigation Division, Austin, TX.
For Respondent: Mr. Stephen A. Khoury, Kelsoe Anderson Khoury & Clark, Dallas, TX.
OPINION
[*100] PER CURIAM
While the petitioner's interlocutory appeal from its plea to the jurisdiction was pending in the court of appeals, the respondent filed a nonsuit. We conclude that the nonsuit deprived the court of appeals of jurisdiction, and we vacate its order and dismiss this interlocutory appeal for want of jurisdiction.
Darla Blackmon died of pneumonia while incarcerated at a Texas Department of Criminal Justice substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Blackmon's daughter, Sheila Shultz, brought suit for wrongful death and survival damages, claiming that UTMB negligently failed to diagnose and [**2] treat her mother's illness. Shultz alleged a waiver of sovereign immunity under the Tort Claims Act's exception for personal injury or death caused by a condition or use of tangible personal property. See TEX. CIV. PRAC. & REM. CODE § 101.021(2). UTMB filed a plea to the jurisdiction, which the trial court denied, and then brought an interlocutory appeal. See id. § 51.014(a)(8).
The court of appeals initially reversed the trial court's order and rendered judgment for UTMB, but then withdrew its judgment upon granting Shultz's motion for rehearing. Three weeks later, Shultz filed a nonsuit and moved to dismiss the appeal for want of jurisdiction. The court of appeals denied Shultz's motion, and eventually issued a new opinion denying UTMB's plea to the jurisdiction. 169 S.W.3d 712. Responding to UTMB's appeal in this Court, Shultz contends that there is no longer a case or controversy, and that her nonsuit deprived the court of appeals of jurisdiction over UTMB's appeal. We agree.
Under the Texas Rules of Civil Procedure, "[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, [**3] the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes." TEX. R. CIV. P. 162. Rule 162 applies in this case because Shultz filed the nonsuit while this matter was pending on interlocutory appeal from UTMB's pretrial plea to the jurisdiction. Under these circumstances, the nonsuit extinguishes a case or controversy from "the moment the motion is filed" or an oral motion is made in open court; the only requirement is "the mere filing of the motion with the clerk of the court." Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211, 33 Tex. Sup. Ct. J. 194 (Tex. 1990); see also Greenberg v. Brookshire, 640 S.W.2d 870, 872, 26 Tex. Sup. Ct. J. 19 (Tex. 1982). While the date on which the trial court signs an order dismissing the suit is the "starting point for determining when a trial court's plenary power expires," a nonsuit is effective when it is filed. In re Bennett, 960 S.W.2d 35, 38, 41 Tex. Sup. Ct. J. 134 (Tex. 1997); TEX. R. CIV. P. 329b. The trial court generally has no discretion to refuse to dismiss the suit, and its order doing so is ministerial. In re Bennett, 960 S.W.2d at 38; Shadowbrook, 783 S.W.2d at 211. [**4]
Of course, the trial court need not immediately dismiss the suit when notice of nonsuit is filed. Rule 162 states that the plaintiff's right to nonsuit "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," and a dismissal "shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal." TEX. R. CIV. P. 162. [*101] A claim for affirmative relief must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action. BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841, 34 Tex. Sup. Ct. J. 117 (Tex. 1990). UTMB has not raised a claim for affirmative relief, but it did request costs in its plea to the jurisdiction. Rule 162 permits the trial court to hold hearings and enter orders affecting costs, attorney's fees, and sanctions, even after notice of nonsuit is filed, while the court retains plenary power. In re Bennett, 960 S.W.2d at 38. Thus, the trial court has discretion [**5] to defer signing an order of dismissal so that it can "allow a reasonable amount of time" for holding hearings on these matters which are "collateral to the merits of the underlying case." Id. at 38-39. Although the Rule permits motions for costs, attorney's fees, and sanctions to remain viable in the trial court, it does not forestall the nonsuit's effect of rendering the merits of the case moot.
Finally, UTMB argues that a plaintiff cannot nonsuit a claim once a court has rendered a judgment on the merits. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995) (holding that a nonsuit results in a dismissal with prejudice as to claims already adjudicated on partial summary judgment). In this case, however, the court of appeals withdrew its judgment for UTMB before the nonsuit was filed. As a result, the nonsuit vitiated only the trial court's interlocutory order denying UTMB's plea to the jurisdiction. That ruling favored Shultz and, consequently, its nullification did not prejudice UTMB.
The court of appeals lacked jurisdiction to issue an order and opinion on rehearing. Accordingly, without hearing oral argument, we grant the petition [**6] for review, vacate the court of appeals' order, and dismiss the appeal for want of jurisdiction. TEX. R. APP. P. 59.1, 60.2(e).
OPINION DELIVERED: June 9, 2006