Q:
Can a plaintiff voluntarily nonsuit its case and thereby prevent an
appeal?
A: It
depends.
A plaintiff has an absolute right to nonsuit a claim before
resting its case in chief, but a nonsuit cannot prejudice the right
of an adverse party to be heard on a pending claim for affirmative
relief. A motion for sanctions is a claim for affirmative
relief that survives a nonsuit if a nonsuit would defeat the
purpose of sanctions. So, for example, a sanction excluding
witnesses for failure to supplement discovery does not survive
nonsuit because its purpose is fully served by protecting the
fairness of trial. But a sanction for filing a frivolous
lawsuit does survive nonsuit.
The issue was recently considered by the Texas Supreme Court in
CTL/Thompson Texas, LLC v. Starwood Homeowner's
Ass'n, 56 Tex, S.Ct.J. 244 (Jan. 25, 2013). A
malpractice claim against an engineer must be accompanied by an
affidavit attesting to the claim's merit. Starwood sued
CTL and attached such an affidavit to its petition. CTL moved
to dismiss because the affidavit was deficient. The trial
court denied CTL's motion. CTL took an interlocutory
appeal. But before the appeal could be decided, Starwood
nonsuited. The Court of Appeals held that the nonsuit mooted
the appeal. CTL sought review in the Supreme Court.
The Court began by discussing Villafani v.
Trejo, 251 S.W.3d 466, 467 (Tex. 2008), which held that under
the Healthcare Liability Act, dismissal with prejudice and
attorneys' fees were sanctions, the purpose of which was to
deter claimants from filing meritless suits, and, therefore, a
motion to dismiss survived nonsuit. Consequently, its denial could
be appealed.
The Court concluded that the requirement that a certificate of
merit accompany a suit against an engineering firm under penalty of
dismissal — possibly with prejudice — served the same
purpose — to deter meritless claims and bring them quickly to
an end.
Starwood argued that a motion to dismiss under the statute could
not survive a nonsuit because a nonsuit gives the movant all the
relief the statute mandates — dismissal without
prejudice. But because the statute permitted further
relief —dismissal with prejudice — Starwood's
nonsuit did not moot the appeal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.