Opinion
No. 05-10-00741-CV
Opinion Filed July 12, 2011.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-09-09924-A.
Before Justices O'NEILL, FitzGERALD, and LANG.
MEMORANDUM OPINION
Appellant Ivan Ivanov sued appellee Phyllis Hughes in justice court to evict her from a rental property and recover damages. Hughes appealed the resulting judgment for trial de novo in the county court at law. The trial judge dismissed the case with prejudice. Ivanov argues that the judge erred by dismissing the case with prejudice because he had previously filed a notice of nonsuit. We conclude the dismissal with prejudice was erroneous and modify the judgment to reflect that the dismissal is without prejudice.
Although Ivanov also sued "all occupants," the record does not reflect that any defendant other than Hughes was ever served with process or ever appeared in the case. Accordingly, we will refer only to Hughes in this opinion.
I. Background
The record shows the following sequence of events. In November 2009, Ivanov sued Hughes in justice court, alleging that Hughes was his tenant under an oral lease and that she had failed to pay rents due. He sought possession of the premises and damages. At the end of December 2009, Hughes appealed the justice-court judgment (which does not appear in the appellate record) to the county court at law. Hughes then filed an answer that included a special exception in which she contended that the verification of Ivanov's petition was invalid.
A hearing was conducted on January 28, 2010, but we have no reporter's record from that hearing. According to Ivanov, the case was called for trial on that date, but the trial judge determined that the verification of his petition was defective and decided not to proceed with trial. Hughes asserts that a nonjury trial was in fact held on January 28. She further asserts that the trial judge orally sustained her special exception and ordered Ivanov to replead; otherwise, the court ruled, judgment would be rendered for Hughes. The trial judge sent the parties a letter dated February 1, 2010, in which she stated, "The above case is set for dismissal hearing. Pursuant to the trial on January 28, 2010, Plaintiff must amend [his] petition if permissible. If not, the Court will render judgment for the Defendant and Defendant will present the order. The deadline for each side is: February 12, 2010 at 9:00 a.m."
The trial judge then sent the parties a letter dated February 10, 2010. In that letter, the judge stated:
The above cause reflects a docket entry of final disposition; however, no judgment has been furnished for entry. This case is now set for final disposition hearing on:
March 12, 2010 @ 9:00 A.M.
Per LR 2.03, unless final judgment is furnished to the court prior to such date, an order of dismissal with prejudice will be entered with costs taxed against the party incurring the same.
Ivanov then filed a "motion for nonsuit"; the motion's certificate of service recites that Hughes was served by fax on March 11, but the motion is filemarked March 15. On March 17, the judge signed a dismissal order containing the following language:
Came on to be heard March 12, 2010:
Pursuant to the Texas Rules of Civil Procedure and Dallas [c]ivil court rules, this case is hereby dismissed for the following reason(s):
(X)
Plaintiff failed to appear for a hearing or trial of which notice was had.
. . .
(X)
Requested by Defendant.
. . .
Pursuant to Local Rule 2.03, this dismissal is with prejudice and with costs taxed against the party incurring same.
We have no reporter's record from the March 12 hearing.
Ivanov timely filed a motion to modify the judgment in which he asked the trial judge to change the dismissal to a dismissal without prejudice. The trial judge denied the motion to modify. Ivanov appealed.
II. Analysis
In a single issue, Ivanov argues that the trial judge erred by dismissing his suit with prejudice rather than without prejudice for two reasons. First, he argues that the trial judge erred because she could not properly dismiss the case with prejudice absent an actual adjudication of the case, and there was no actual adjudication of his case to support a dismissal with prejudice. Second, Ivanov argues that in any event he nonsuited the case before the trial judge dismissed it, thus requiring the trial judge to dismiss the case without prejudice. Hughes argues in her appellee's brief that the trial judge dismissed the case with prejudice before Ivanov nonsuited it.
We conclude that Ivanov nonsuited his case before the trial judge rendered judgment, and thus that the trial judge erred by dismissing the case with prejudice. Accordingly, we need not decide if adequate grounds supported the dismissal with prejudice in the absence of Ivanov's motion for nonsuit.
A plaintiff generally has an absolute right to nonsuit his case, and thus obtain a dismissal without prejudice, at any time before he has introduced all of his evidence other than rebuttal evidence. Tex. R. Civ. P. 162; Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995) (per curiam). In Hyundai, the supreme court held that a plaintiff's right to nonsuit is subject to a further limitation: "Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiff's right to nonsuit." Hyundai Motor Co., 892 S.W.2d at 855. Thus, if a plaintiff nonsuits after an adverse partial summary judgment, that interlocutory order becomes "a dismissal with prejudice as to the issues pronounced in favor of the defendant." Id.; see also Reynolds v. Murphy, 266 S.W.3d 141, 146 (Tex. App.-Fort Worth 2008, pet. denied) (holding that nonsuit does not vitiate prior dismissal of claim with prejudice).
Thus, the question is whether Ivanov nonsuited his claims before he introduced all of his evidence other than rebuttal evidence and before the trial judge adjudicated Ivanov's case. First, we determine when Ivanov's nonsuit was effective. A nonsuit is effective when filed or when announced orally in open court. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Schultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam). Generally, an instrument is deemed "filed" when it is left with or placed in the custody and control of the court clerk. Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004) (per curiam). Ivanov's motion for nonsuit nonsuit was filemarked March 15, 2010. Although he asserts on appeal that he mailed it to the trial court on March 11, the record contains no postmarked envelope proving that fact, and the certificate of service on the motion for nonsuit recites only that the motion for nonsuit was served on opposing counsel by fax-not that it was filed with the court by mail or any other method. We conclude that the record establishes a filing date of March 15 and does not support an earlier filing date.
Next we determine whether Ivanov "introduced all of his evidence other than rebuttal evidence" before he filed his motion for nonsuit on March 15. See Tex. R. Civ. P. 162. We do not have reporter's records from the hearings of January 28 and March 12, but Hughes does not contend that Ivanov introduced any evidence at either of those hearings. According to the trial judge's letter of February 1, there was a "trial" on January 28, but the only ruling noted by the judge in her letter was that Ivanov was required to replead in order to avoid judgment in favor of Hughes. Under these circumstances, when it appears that the January 28 hearing was limited to Hughes's special exception, we will not presume that Ivanov introduced all of his evidence other than rebuttal evidence at that hearing. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 783-84 (Tex. 2005) (refusing to presume that unrecorded hearing was evidentiary in the absence of a specific allegation to the contrary). Ivanov did not appear at the March 12 hearing, so plainly he did not introduce any evidence at that time. We conclude Ivanov did not introduce all of his evidence other than rebuttal evidence before he filed his motion for nonsuit.
Finally, we determine whether the trial judge adjudicated the case before Ivanov filed his nonsuit on March 15. The judge signed the written order dismissing the case with prejudice on March 17. The order recites: "Came on to be heard March 12, 2010: Pursuant to the Texas Rules of Civil Procedure and Dallas [c]ivil court rules, this case is hereby dismissed[.]" This language does not indicate that the judge had previously rendered judgment, on March 12 or any other occasion. Nevertheless, Hughes asserts in her appellate brief that the trial judge "dismissed the case on March 12, 2010." We have no reporter's record from the March 12 hearing, and the only record support for Hughes's contention is a notation in the computer-generated docket sheet that reads, " PLTF NO SHOW, DEFT SHOW; DWOP PER DEFT." But "[t]he general rule is that a docket entry forms no part of the record which may be considered; it is a memorandum made for the clerk's and the trial court's convenience." Bryan v. Watumull, 230 S.W.3d 503, 507 n. 2 (Tex. App.-Dallas 2007, pet. denied). "It cannot be used to show the existence of an order or judgment." Id. Thus, there is no competent record support for the proposition that the trial judge adjudicated Ivanov's case before Ivanov nonsuited it on March 15, 2010.
"Granting a nonsuit is a ministerial act, and a plaintiff's right to a nonsuit exists from the moment a written motion is filed. . . ." In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (per curiam); see also Extended Servs. Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469, 471 (Tex. Civ. App.-Dallas 1980, writ ref'd n.r.e.) (holding that plaintiff was entitled to take nonsuit after summary-judgment hearing but before judge ruled on summary-judgment motion). Thus, the trial court erred by dismissing the case with prejudice after Ivanov had filed his motion for nonsuit.
III. Conclusion
For the foregoing reasons, we modify the order of dismissal to reflect that the dismissal is without prejudice. As modified, the order is affirmed.