Appeal from the County Civil Court at Law No. 2 Harris
County, Texas Trial Court Cause No. 1109021
consists of Justices Christopher, Spain, and Poissant.
an appeal from a case in which an insured sued to force her
property insurer to participate in the appraisal process set
forth in the policy. In fact, the parties already were
participating in the appraisal process, and because the
appraisers selected by each side could not agree on the value
of the loss or on the choice of an umpire to decide which
appraiser was correct, the insurer moved the trial court to
appoint an umpire. On consecutive days, (a) the insured filed
a notice of non-suit, (b) the trial court appointed an
umpire, and (c) the trial court dismissed the insured's
claims. The insured then successfully moved to sanction the
insured's trial counsel for signing and filing a pleading
with no basis in fact. The insured appeals the trial
court's order appointing an umpire and the sanctions
conclude that the trial court acted within its jurisdiction
and discretion in appointing an umpire; thus, we affirm the
appointment order, which was merged into the final judgment.
Because the insured lacks standing to appeal the order
sanctioning her trial counsel and his law firm, and neither
the attorney nor the firm have appealed the order, we dismiss
that portion of the appeal for lack of jurisdiction.
State Farm Lloyds insures property owned by appellant Jada
Etienne. After Etienne made a claim under the policy, she
invoked the appraisal provision. The policy provides that if
either party demands appraisal, each party will select an
appraiser and the two appraisers will jointly determine the
amount of the loss. If they are unable to agree, the two
appraisers will select an umpire to resolve their
differences. If they are unable to agree upon an umpire
within 15 days, then the insurer or the insured "may
make a written application for a judge of a court of record
in the same state and county . . . where the residence
premises is located to select an umpire."
Farm Lloyds agreed to Etienne's invocation of the
appraisal process, and both sides appointed appraisers.
Etienne nevertheless sued State Farm weeks later in Harris
County Civil Court at Law No. 2, where she alleged that State
Farm refused to participate in the appraisal process and she
stated her intent to ask the court to appoint an umpire.
State Farm answered and filed its own motion for appointment
of an umpire. Etienne did not respond to State Farm's
motion but instead filed a similar application on the
ancillary docket of the Harris County Civil District Courts.
twelve hours before the hearing on State Farm's motion,
Etienne filed a notice of non-suit. Neither she nor her
counsel appeared at the hearing, and the trial court
appointed an umpire as State Farm had requested. The next
day, the trial court signed an order dismissing Etienne's
filed a motion to vacate the order appointing an umpire,
arguing that the trial court lost jurisdiction the moment
that Etienne filed her notice of non-suit. She also argued
that the trial court abused its discretion in proceeding with
the hearing and the appointment because State Farm failed to
give ten days' notice before applying for appointment of
an umpire, as the policy requires. State Farm responded and
moved for sanctions against Etienne's counsel Eric Dick
and the Dick Law Firm under Texas Rule of Civil Procedure 13
and Texas Civil Practice and Remedies Code Chapter 10 for
signing and filing a pleading with no basis in fact. The
trial court denied Etienne's motion to vacate the umpire
appointment and ordered Dick and the Dick Law Firm to pay
attorney's fees of $4, 000 to State Farm as sanctions.
Etienne appeals both orders.
The Law Concerning Non-suits
much of Etienne's arguments are premised on the idea that
a notice of non-suit deprives a trial court of jurisdiction,
we begin by clarifying this jurisdictional point.
plaintiff may voluntarily dismiss or "non-suit" its
case at any time before it has introduced all of its evidence
other than rebuttal evidence. Tex.R.Civ.P. 162. A non-suit
does not prejudice an adverse party's right to a hearing
and a ruling upon its pending claims for affirmative relief.
assert a claim for affirmative relief, the defendant must do
"more than resist plaintiff's right to
recover." BHP Petroleum Co., Inc. v. Millard,
800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding) (quoting
Gen'l Land Office v. Oxy U.S.A., Inc., 789
S.W.2d 569, 570 (Tex. 1990)). A defendant makes a claim for
affirmative relief if it "allege[s] 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. Univ. of Tex. Med. Branch at Galveston v. Estate
of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex.
2006) (per curiam) (citing BHP Petroleum Co., Inc. v.
Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig.