Opinion
No. 04-02-00194-CV.
Delivered and Filed: March 31, 2004.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-04624, Honorable Janet Littlejohn, Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
The issue to be decided in this appeal is whether a trial court is divested of jurisdiction when a plaintiff has filed a notice of nonsuit but no dismissal order is ever signed. Because the signing of an order of nonsuit is the starting point for determining when a trial court's plenary power expires, the filing of a notice of nonsuit does not divest a trial court of jurisdiction. We sustain appellants' first issue, reverse the trial court's judgment, and remand the cause to the trial court for further proceedings consistent with this opinion.
We do not address appellants' second issue because its resolution is not necessary to the final disposition of this appeal. See Tex.R.App.P. 47.1.
Background
On March 27, 2000, appellants filed the underlying lawsuit against Accord Medical Management, Inc. d/b/a Nix Health Care System, Rolando Xavier Rodriguez, M.D., and Abel Hipolito, M.D. Appellants filed a notice of nonsuit as to Hipolito on May 2, 2000, and as to Nix and Rodriguez on May 22, 2000. No order of nonsuit was entered.
On October 12, 2001, appellants filed their first amended original petition, adding numerous additional defendants, and served all of the named defendants with citation. On December 19, 2001, the "Nix Defendants" filed a motion entitled "Motion to Dismiss for Lack of Subject Matter Jurisdiction." The motion asserted, "It is well settled that once a case is voluntarily dismissed, no further action may be had in that cause." On December 31, 2001, Rodriguez also filed a motion to dismiss for lack of subject matter jurisdiction making an identical assertion. After a hearing, the trial court signed orders granting the motions. Subsequently, the trial court also signed orders denying appellants' motion to reinstate and motion for new trial, motion to withdraw nonsuit, or alternative motion for reinstatement.
Discussion
Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). "[T]he signing of an order dismissing a case, not the filing of a notice of nonsuit, is the starting point for determining when a trial court's plenary power expires." In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997); see also Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995); In re Bro Bro Properties, Inc., 50 S.W.3d 528, 530 (Tex. App.-San Antonio 2000, orig. proceeding [leave denied]). Because no dismissal order was entered in the instant case, the trial court erred in dismissing the lawsuit for lack of subject matter jurisdiction.
Appellees contend that the instant case is distinguishable from Bennett. Appellees read Bennett as recognizing a narrow exception to the divestiture of a trial court's jurisdiction after a notice of nonsuit is filed that permits a trial court to order sanctions. We do not read Bennett so narrowly.
In In re Bro Bro Properties, Inc., the plaintiff obtained a no-answer default judgment against Bro Bro Properties and nonsuited the remaining defendants. 50 S.W.3d at 529. No dismissal order was entered with regard to the notices of nonsuit. Id. Bro Bro Properties moved for a new trial. Id. In response to the motion, the plaintiff argued that the trial court's plenary power to grant a new trial had expired before the motion for new trial was filed. Id. The trial court denied the motion for new trial. Id. Bro Bro Properties filed a petition in our court seeking a writ of mandamus to compel the trial court to consider and rule on the merits of its motion. Id. Because no dismissal order had been entered with regard to the nonsuit, we held that the trial court retained jurisdiction to consider Bro Bro Properties' motion for new trial and conditionally granted the writ of mandamus. Id. Our holding in Bro Bro Properties with regard to the trial court's continuing jurisdiction after a notice of nonsuit is filed is contrary to the appellees' narrow reading of Bennett.
Appellees next contend that "the record is far from clear that the trial court dismissed the claims against Nix for lack of subject matter jurisdiction and/or plenary power." This contention ignores the very request appellees made in their motion and the focus of the trial court at the hearing. Counsel for the Nix Defendants argued at the hearing, "The case law is fairly clear, Your Honor, and I have copies of the case law for you, as well as Plaintiffs [sic] counsel, if you would like to review it, which states that when you file a nonsuit, the effect of the nonsuit is to wipe the court of its jurisdiction." Counsel for the Nix Defendants later responded to the arguments of appellants' counsel, asserting, "The first is, it certainly is a matter of subject matter jurisdiction. It's not a personal jurisdiction issue. And so when the notice of nonsuit is entered, you're dealing with subject matter jurisdiction, which cannot be waived." Finally, counsel for the Nix Defendants sought to distinguish other cases "where the courts have held, well, an order was not entered under the nonsuit so the time table for the plenary jurisdiction did not start clicking." Given the title of the motions and the arguments raised at the hearing, the trial court's ruling was clearly based on its determination that it lacked subject matter jurisdiction.
Finally, appellees contend that because the signing of a dismissal order was a ministerial act, the trial court could not have refused to sign the dismissal order. Whether the trial court had a ministerial duty to sign an order of dismissal is a different issue than whether the trial court had subject matter jurisdiction. In Bennett, the Texas Supreme Court stated, "While we have recognized that generally, a trial court has no discretion to refuse to sign an order of dismissal once notice of nonsuit has been filed, this broad principle necessarily has exceptions." 960 S.W.2d at 38. In this case, it is unclear whether the trial court would have dismissed the underlying lawsuit and denied appellants' other motions absent its determination that it did not have subject matter jurisdiction. We refuse to speculate regarding the possible orders the trial court might enter after this opinion clarifies its continuing jurisdiction to act.
Because the trial court based its dismissal on its determination that it lacked subject matter jurisdiction, the trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.