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In re Phillips

Court of Appeals of Texas, Twelfth District, Tyler

December 21, 2017

IN RE: HUBERT PHILLIPS, RELATOR

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          PER CURIAM.

         Hubert 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.[1]

         Background

         Phillips 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.

         The 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 proceeding followed.

         Prerequisites to Mandamus

         Mandamus 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, orig. proceeding).

         Abuse of Discretion

         In his 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 untimely.

         Applicable Law

         "A 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.

         However, 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 ...


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