Court of Appeals of Texas, Second District, Fort Worth
Appeal from County Court at Law No. 1 Tarrant County, Texas
Trial Court No. 2015-001211-1
T. PITTMAN, JUSTICE
considered "Appellees Motion for Reconsideration En
the opinion of the court that the motion for reconsideration
en banc should be and is hereby denied and that the opinion
and judgment of January 17, 2019 stand unchanged.
clerk of this court is directed to transmit a copy of the
order to the attorneys of record.
Womack, J., would grant.
MEMORANDUM OPINION ON DENIAL OF EN BANC
Justice Sudderth Gabriel, J.; and Ruben Gonzalez, Visiting
Justice, Sitting by Assignment, join.
with the premise that our jurisprudence disfavors nonsuits
that are filed to circumvent unfavorable legal restrictions
or rulings. Epps v. Fowler, 351 S.W.3d 862, 870
(Tex. 2011). In Epps, the supreme court vacated the
appellate court's judgment and remanded the case to the
trial court to consider whether a party had dismissed its
lawsuit to avoid an unfavorable judgment. Id. at
871-72. If so, the court reasoned, the trial court could
declare the opposing party the "prevailing party,"
thus triggering the recovery of attorney's fees pursuant
to the contractual provision in the case that awarded
attorney's fees to the "prevailing party."
Id. at 864, 869-71. But because no such claim for
attorney's fees is present here, and because there is no
contractual provision using the term or otherwise referencing
a "prevailing party," Epps is not squarely
Epps can be distinguished on its facts-especially
with regard to the judicial act of pronouncing a
"prevailing party" in the case-Epps
admittedly goes further by suggesting that the policy
disfavoring nonsuits filed to circumvent unfavorable rulings
might apply in the circumstances present in this case.
Id. at 864. In Epps, the court postulated,
[I]f a plaintiff nonsuits only after a motion for summary
judgment is filed, it may suggest that the plaintiff elected
to do so in order to escape summary judgment. Further, a
plaintiff's unexcused failure to respond to requests for
admissions or other discovery that could support entry of an
adverse judgment may also indicate that a nonsuit was taken
to foreclose that possibility. Similarly, a failure to timely
identify experts or other critical witnesses could suggest
Id. at 871 (citations omitted).
despite the language in Epps suggesting that
Dunn's causes of action against Walters might not survive
the nonsuit, as lower courts we are bound by the supreme
court precedent to the contrary in Aetna Casualty &
Surety Co. v. Specia, 849
S.W.2d 805 (Tex. 1993) (orig. proceeding). See
Mustang Special Util. Dist. v. Providence Vill., 392
S.W.3d 311, 317 (Tex. App.-Fort Worth 2012, no pet.) (op. on
reh'g) ("[I]t is well established that as an
intermediate appellate court, we are bound by the
pronouncements of the supreme court."). In
Aetna, two weeks before trial, the trial court
granted the defendant's motion to exclude testimony by
the plaintiff's expert and fact witnesses due to untimely
discovery supplementation. 849 S.W.2d at 806. In the face of
this ruling, the plaintiff nonsuited, only to file a new
lawsuit on the same cause of action shortly thereafter.
Id. When Aetna sought mandamus relief from the trial
court's order carrying forward the exclusion sanctions
from the prior lawsuit to the newly-filed suit, the supreme
court reversed the trial court's action, holding that a
sanction excluding evidence based on failure to supplement a
proper discovery request does not survive a nonsuit.
Id. at 806-07.