Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Phillips has filed this original proceeding in which he
complains of the trial court's order denying his notice
of nonsuit. We deny the writ.
sued Sharon Carver, trustee of the Victor Shawn Phillips
Irrevocable Trust, for partition or sale of real property in
the county court at law of Van Zandt County. Phillips and
Carver co-own the disputed property. Carver filed a
cross-petition for transfer and partition of real and
personal property on grounds that a suit for partition must
be brought in a district court. The county court at law judge
subsequently transferred the case to the 294th District Court
in Van Zandt County.
parties agreed to an appointment of commissioners to
determine whether the real property could be partitioned. On
September 12, 2017, the commissioners determined that the
property could not be partitioned in kind. On October 10,
Phillips filed a notice of nonsuit. The notice explained that
he conveyed his interest in the disputed property to his son
and daughter-in-law on October 5 and that the property could
now be divided because his son owned property, and maintained
an easement, next to the disputed tract. On October 11, the
trial court signed an order denying the motion for nonsuit,
concluding that the nonsuit was untimely and appointing a
broker to sell the disputed property. This original
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). A writ of mandamus will issue only when the
relator has no adequate remedy by appeal and the trial court
committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding). The relator has the burden of
establishing both of these prerequisites. In re
Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014,
orig. proceeding.). "Mandamus will not issue when the
law provides another plain, adequate, and complete
remedy." In re Tex. Dep't of Family and
Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)
(orig. proceeding). Absent a claim by a defendant for
affirmative relief, a trial court's refusal to grant a
nonsuit violates a ministerial duty and should be corrected
by mandamus. Hooks v. Fourth Court of Appeals, 808
S.W.2d 56, 59 (Tex. 1991) (orig. proceeding); In re
Riggs, 315 S.W.3d 613, 616 (Tex. App.-Fort Worth 2010,
sole issue, Phillips contends that the trial court abused its
discretion by signing an order denying the notice of nonsuit.
According to Carver, the trial court did not abuse its
discretion by denying the nonsuit because her counterclaim
for affirmative relief was pending and the nonsuit was
trial court abuses its discretion if 'it reaches a
decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law' or if it clearly
fails to correctly analyze or apply the law." In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d at 382 (quoting
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).
A "nonsuit" is a termination of the pleaded causes
of action and asserted defenses without an adjudication of
their merits that returns the litigants to the positions they
occupied before the plaintiff invoked the court's
jurisdiction. In re C.T., No. 12-11-00384-CV, 2012
WL 4502427, at *2 (Tex. App.-Tyler Sept. 28, 2012, pet.
denied) (mem. op.). "At any time before the plaintiff
has introduced all of his evidence other than rebuttal
evidence, the plaintiff may dismiss a case, or take a
non-suit, which shall be entered in the minutes."
Tex.R.Civ.P. 162. "Ordinarily, a party has an absolute
right to a nonsuit the moment it makes a timely oral or
written request for the nonsuit, and a trial court is without
discretion to refuse an order dismissing a case." In
re C.T., 2012 WL 4502427, at *2. "A nonsuit
extinguishes a case or controversy from the moment the motion
is filed or when an oral motion is made in open court."
Riggs, 315 S.W.3d at 615. When the defendant has no
pending claim for affirmative relief, the trial court's
refusal to grant a nonsuit violates a ministerial duty.
Id.; see Hooks, 808 S.W.2d at 59.
any dismissal pursuant to Rule 162 "shall not prejudice
the right of an adverse party to be heard on a pending claim
for affirmative relief[.]" Tex.R.Civ.P. 162. "To
qualify as a claim for affirmative relief, a party must
allege a cause of action, independent of the plaintiff's
claim, on which the party could recover compensation or
relief even if the plaintiff abandons, or is unable to
establish, his cause of action." Digital Imaging
Assoc., Inc. v. State, 176 S.W.3d 851, 854 (Tex.
App.-Houston [1st Dist.] 2005, no pet.). "A claim ...