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Dunn Law Group, P.C. v. Walters

Court of Appeals of Texas, Second District, Fort Worth

April 4, 2019

Dunn Law Group, P.C., Appellant
v.
M. Monique Walters, Appellee

          On Appeal from County Court at Law No. 1 Tarrant County, Texas Trial Court No. 2015-001211-1

         En Banc [1]

          ORDER

          MARK T. PITTMAN, JUSTICE

         We have considered "Appellees Motion for Reconsideration En Banc."

         It is 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.

         The clerk of this court is directed to transmit a copy of the order to the attorneys of record.

          Womack, J., would grant.

         CONCURRING MEMORANDUM OPINION ON DENIAL OF EN BANC RECONSIDERATION

          Chief Justice Sudderth Gabriel, J.; and Ruben Gonzalez, Visiting Justice, Sitting by Assignment, join.

         I start 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 on point.[1]

         While 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 [the same].

Id. at 871 (citations omitted).

         But 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.[2] Id. at 806-07.


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