Opinion
NUMBER 13-18-00487-CV
10-15-2018
IN RE LONE STAR NATIONAL BANK
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
See TEX. R. APP. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in any other case," but when "denying relief, the court may hand down an opinion but is not required to do so."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relator Lone Star National Bank (Lone Star) filed a petition for writ of mandamus in the above cause on September 6, 2018. Through this original proceeding, Lone Star seeks to compel the trial court to: (1) vacate an August 31, 2018 order requiring International Bank of Commerce (IBC) to deposit funds into the registry of the trial court and allowing Armando Gomez to withdraw the funds; and (2) issue an order dismissing the underlying lawsuit in accordance with the motions for nonsuit filed by Lone Star and IBC We conditionally grant the petition for writ of mandamus.
This original proceeding arises from trial court cause number CL-18-2811-A in the County Court at Law No. 1 of Hidalgo County, Texas, and the respondent is the Honorable Rodolfo Gonzalez. See TEX. R. APP. P. 52.2.
I. BACKGROUND
On June 26, 2018, Lone Star filed an "Application for Writ of Garnishment After Judgment" against garnishee IBC to collect on a judgment Lone Star had against Gomez and A.G. Imports, Inc. The application was filed in cause number CL-18-2811-A in the County Court at Law No. 1 of Hidalgo County, Texas. The Hidalgo County Clerk issued and served a "Writ of Garnishment After Judgment" on IBC. The writ was served on IBC on July 5, 2018 and on Gomez on July 23, 2018. On July 24, 2018, IBC filed its answer to Lone Star's writ of garnishment stating that it was indebted to Gomez in the amount of $1,933.69, "representing the funds on deposit in a checking account," but was not indebted to A.G. Imports, Inc. IBC sought attorneys' fees related to its representation in the lawsuit.
Thereafter, on July 25, 2018, Gomez filed a "Sworn Motion to Dissolve Writ of Garnishment." Gomez asserted that Lone Star had sued him for a debt in the amount of $162,282.55. Gomez argued that Lone Star delayed in serving the writ of garnishment, that the writ failed to comply with the statutory grounds for garnishment, and that the writ was fatally defective. On August 6, 2018, Lone Star filed a response to Gomez's motion asserting, inter alia, that Gomez was properly served with the writ of garnishment and the writ complied with the applicable rules of civil procedure. That same day, the trial court held a hearing on the motion to dissolve. At the hearing, Lone Star argued that even if service of the writ on Gomez was "delayed," Lone Star could simply refile its application for writ of garnishment. Gomez's counsel agreed that Lone Star "can refile it if [it] would like." The court recessed the hearing and allowed the parties to file additional briefing on the writ of garnishment.
In a separate cause of action, on August 9, 2018, Lone Star filed a second "Application for Writ of Garnishment after Judgment" against IBC, again attempting to collect on the judgment Lone Star had against Gomez and A.G. Imports, Inc. This application was filed in cause number CL-18-3871-A in County Court at Law No. 1 of Hidalgo County, Texas. On August 10, 2018, the Hidalgo County Clerk issued the second writ of garnishment, and IBC was served with the second writ on August 13, 2018.
Back in the original garnishment case, on August 13, 2018, Lone Star filed a "Notice of Non-Suit Without Prejudice." The next day Gomez filed an "Unopposed Motion for [the] Court to Sign Defendant's Motion to Dissolve Writ of Garnishment Order." This pleading stated in relevant part:
On August 14, 2018, [Gomez] went to IBC bank to pick up his funds and IBC told him [it] could not release the funds, since [it] had not received an order of release. My office subsequently contacted [IBC] and we were informed that [IBC] had not received the order of release and that [it] had received a second writ of garnishment issued by the Hidalgo County Clerk. This was the first time [Gomez] was made aware of the second writ of garnishment that had been filed since [Lone Star's] attorney did not serve us or communicate to us that he had indeed filed a second writ of garnishment.Gomez further argued that Lone Star's nonsuit did not preclude his right to be heard on a pending affirmative claim for relief. Gomez asserted that he had an affirmative claim for relief by virtue of his motion to dissolve the writ of garnishment. Gomez further requested the trial court to release the funds held by IBC to Gomez.
As a result of [Lone Star] filing [its] motion for non-suit and [IBC] not having any affirmative pleadings on file, [Gomez] files this Unopposed Motion for the Court to sign Defendant's Motion to Dissolve Writ of Garnishment.
On August 15, 2018, Lone Star filed a "Response and Objection to Defendant's Unopposed Motion for Court to Sign Defendant's Motion to Dissolve Writ of Garnishment," stating unequivocally that Gomez's motion was "NOT unopposed," and contending that Gomez's motion to dissolve the writ of garnishment did not constitute a claim for affirmative relief. That same day, IBC also filed a response to Gomez's motion. In its response, IBC pointed out that it had been served with the second writ of garnishment and the second writ ordered IBC not to pay any funds to Gomez until further order of the court in that case. IBC argued that it would be subject to irreconcilable and conflicting orders if the trial court were to grant Gomez's motion to dissolve the first writ. IBC asked the court to reform the order proposed by Gomez and to instead enter an order dissolving the writ, with no provision ordering it to pay the garnished funds to Gomez.
On August 21, 2018, IBC filed a "Notice of Non-Suit Without Prejudice" in the first garnishment case and nonsuited its claim for attorney's fees and costs.
On August 31, 2018, the trial court signed a "First Amended Order Granting Unopposed Defendant's Motion to Sign Defendant's Motion to Dissolve Writ of Garnishment" in the first case. This order required IBC to deposit all of the funds that it held for Gomez into the registry of the trial court and allowed Gomez to pick up the funds by presenting proper identification. This order provided that the case was dismissed without prejudice.
This original proceeding ensued. By one issue, Lone Star asserts that the trial court abused its discretion by issuing an order outside of its jurisdiction after the nonsuits. This Court granted emergency relief, staying the trial court's order, and requested IBC and Gomez, or any others whose interest would be directly affected by the relief sought, to file a response to the petition for writ of mandamus. After requesting and receiving an extension of time to file his response to the petition for writ of mandamus, Gomez has informed us that he "elect[ed] not to file a response" to the petition for writ of mandamus. IBC likewise did not file a response or other pleading in this original proceeding.
II. STANDARD OF REVIEW
Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). Similarly, a trial court abuses its discretion when it fails to analyze or apply the law correctly. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712. We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
The granting of a non-suit is "merely a ministerial act." Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (orig. proceeding); see Klein v. Hernandez, 315 S.W.3d 1, 4 (Tex. 2010) ("When a plaintiff is entitled to a non-suit, the trial court's dismissal order is ministerial."). Accordingly, mandamus relief is available when a trial judge refuses to grant a nonsuit when there is no pending claim for affirmative relief. In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding); Hooks v. Fourth Ct. of Apps., 808 S.W.2d 56, 59 (Tex. 1991) (orig. proceeding); In re Midland Funding, LLC, 527 S.W.3d 296, 299 (Tex. App.—El Paso 2016, orig. proceeding); see also In re Amaro, No. 13-17-00185-CV, 2017 WL 2979903, at *3 (Tex. App.—Corpus Christi July 11, 2017, orig. proceeding [mand. denied]) (mem. op.).
III. RIGHT TO A NONSUIT
Rule 162 provides that "[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes." TEX. R. CIV. P. 162; see Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011). "A party has an absolute right to file a nonsuit, and a trial court is without discretion to refuse an order dismissing a case because of a nonsuit unless collateral matters remain." Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); see Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex. 2008); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam); In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). A nonsuit "extinguishes a case or controversy from 'the moment the motion is filed' or an oral motion is made in open court; the only requirement is 'the mere filing of the motion with the clerk of the court.'" Univ. of Tex. Med. Branch at Galveston, 195 S.W.3d at 100 (quoting Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (per curiam)). It renders the merits of the nonsuited case moot. Travelers Ins. Co., 315 S.W.3d at 862-63; Villafani, 251 S.W.3d at 469.
While the right to a nonsuit is generally unqualified and absolute, Rule 162 provides that a nonsuit or dismissal "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief." TEX. R. CIV. P. 162, see CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d 299, 300 (Tex. 2013); In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d at 324-25; BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990) (orig. proceeding). In order to constitute a claim for affirmative relief, "a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiff's claim, on which the defendant could recover benefits, compensation, or relief, even where the plaintiff may abandon its cause of action or otherwise fail to establish it." Gen. Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990); see BHP Petroleum Co., 800 S.W.2d at 841. Thus, under Rule 162, "[i]f a defendant does nothing more than resist plaintiff's right to recover, the plaintiff has an absolute right to the nonsuit." Gen. Land Office, 789 S.W.2d at 570; see BHP Petroleum Co., 800 S.W.2d at 841; Polansky v. Berenji, 393 S.W.3d 362, 371 (Tex. App.—Austin 2012, no pet.). Pending claims for affirmative relief may include, for instance, counterclaims, cross-claims, or motions for sanctions. CTL/Thompson Tex., LLC, 390 S.W.3d at 300.
Rule 162 prohibits the granting of a nonsuit where there are affirmative claims against the party seeking nonsuit and where "the effect would be to prejudice any pending claim for affirmative relief, period." Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 38 (Tex. 2008). However, "[t]he use of a creative pleading that merely restates defenses in the form of a declaratory judgment action cannot deprive the plaintiff of this right." BHP Petroleum Co., 800 S.W.2d at 841; see Dig. Imaging Assocs., Inc. v. State, 176 S.W.3d 851, 854 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ("A claim that simply mirrors the controlling issues of the plaintiff's suit is not a claim for affirmative relief."). Thus, where a request for declaratory relief is "framed as a counterclaim," but does not include any "averments of fact upon which affirmative relief could be granted" and instead consists of "mere denial[s]" of the plaintiff's cause of action, the plaintiff has an absolute right to a nonsuit. BHP Petroleum Co., 800 S.W.2d at 841 (quoting and discussing Newman Oil Co. v. Alkek, 614 S.W.2d 653, 655 (Tex. App.—Corpus Christi 1981, writ ref'd n.r.e.)).
IV. ANALYSIS
Lone Star argues that the trial court abused its discretion in refusing to acknowledge Lone Star and IBC's notices of nonsuit and by failing to comply with its ministerial duty to nonsuit the case. Lone Star argues that Gomez did not allege a cause of action independent of Lone Star's application for writ of garnishment, but instead "merely sought to dissolve the writ of garnishment which, for all intents and purposes, occurred when [Lone Star] nonsuited on August 13, 2018." Lone Star thus contends that once it filed its notice of nonsuit, the merits of its application for writ of garnishment were rendered moot. Lone Star further argues that Gomez is not entitled to the funds held by IBC, even if the first writ was dissolved, because a second writ of garnishment has been issued. Finally, Lone Star asserts that because no justiciable claim existed after Lone Star and IBC filed their notices of nonsuit, the trial court had no jurisdiction to grant relief or continue the lawsuit in a way to suggest that any claims remained for determination.
To determine the propriety of the trial court's action in this case, we must determine whether Gomez's "Sworn Motion to Dissolve Writ of Garnishment" stated a claim for affirmative relief which would impact Lone Star and IBC's "absolute right" to a nonsuit. See Travelers Ins. Co., 315 S.W.3d at 862. Gomez's motion asked that the writ of garnishment be dissolved, costs be taxed to Lone Star, and that the court order IBC to return the funds currently held to Gomez.
Gomez has not stated a cause of action on which he could recover benefits, compensation, or relief if Lone Star abandoned its cause of action or failed to establish it. See BHP Petroleum Co., 800 S.W.2d at 841; Dig. Imaging Assocs., Inc., 176 S.W.3d at 854. Here, Lone Star sought garnishment and Gomez's motion to dissolve sought to avoid it. Gomez did not file a counterclaim or allege any causes of action against Lone Star or IBC in tort or contract. In short, Gomez's motion to dissolve presents nothing more than the mere denial of Lone Star's cause of action. See BHP Petroleum Co., 800 S.W.2d at 841. Therefore, Gomez's motion to dissolve does not qualify as a "claim for affirmative relief" under Rule 162. See id. And, although Gomez's motion to dissolve the writ requests that the "costs herein be taxed to [Lone Star]," his request for costs does not constitute an independent cause of action. See TEX. R. CIV. P. 162; BHP Petroleum Co., 800 S.W.2d at 841; see also Body Shop Auto Storage v. Santander Consumer USA, Inc., No. 01-17-00693-CV, 2018 WL 3580938, at *2 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op.).
Gomez's request to assess costs to Lone Star remains viable, however, under the express terms of Rule 162. A dismissal under Rule 162 will not "excuse the payment of all costs taxed by the clerk" and "shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court." TEX. R. CIV. P. 162. "Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against [the] dismissing party unless otherwise ordered by the court." Id.; see Travelers Ins. Co., 315 S.W.3d at 863; Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996). Rule 162 permits the trial court to hold hearings and enter orders affecting costs, attorney's fees, and sanctions, even after a notice of nonsuit is filed, while the court retains plenary power. In re Bennett, 960 S.W.2d at 38; In re Midland Funding, LLC, 527 S.W.3d at 299. Further, the trial court has discretion to defer signing an order of dismissal to allow a reasonable amount of time for hearing matters which are collateral to the merits of the underlying case. Univ. of Tex. Med. Branch at Galveston, 195 S.W.3d at 101. Although Rule 162 permits motions for costs, attorney's fees, and sanctions to remain viable in the trial court, it does not forestall the nonsuit's effect of rendering the merits of the case moot. Travelers Ins. Co., 315 S.W.3d at 862-63; In re Midland Funding, LLC, 527 S.W.3d at 299.
"When the plaintiff nonsuits his entire case, leaving no remaining claims for affirmative relief in the lawsuit, there is no longer any real controversy between the parties, and the trial court has no jurisdiction to grant affirmative relief or continue the lawsuit in such a way as to suggest that any justiciable claims remain for determination." Zimmerman v. Ottis, 941 S.W.2d 259, 263 (Tex. App.—Corpus Christi 1996, orig. proceeding). "The lawsuit remains on the docket merely as an empty shell awaiting the final ministerial act of dismissal." Id. Accordingly, we sustain the sole issue presented by Lone Star in this original proceeding.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus, the record, the applicable law, and Gomez's decision not to file a response, is of the opinion that Lone Star has established its right to mandamus relief. Since Gomez's motion to dissolve the writ of garnishment did not state a claim for affirmative relief, Lone Star and IBC's right to take a nonsuit and dismiss the entire proceeding is absolute. See Travelers Ins. Co., 315 S.W.3d at 862. Further, Lone Star has no adequate remedy by appeal. See In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d at 325. Therefore, we hold that the trial court abused its discretion in refusing to grant Lone Star and IBC's motions for nonsuit and dismiss the proceeding. Accordingly, we lift the stay previously imposed in this cause. See TEX. R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). We conditionally grant the writ of mandamus and direct the trial court to vacate its first amended order of August 31, 2018 and to grant the nonsuits. We note that our ruling herein may not be construed so as to disturb the trial court's ability to allow a reasonable period of time to hold any hearings necessary on matters collateral to the merits of the case, such as the assessment of costs. See Univ. of Tex. Med. Branch at Galveston, 195 S.W.3d at 100.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 15th day of October, 2018.