Opinion
No. 05-17-00338-CV
06-15-2017
VERDELL MARSH, Appellant v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee
On Appeal from the 192nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-16-04832
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
By letter dated March 28, 2017, the Court questioned its jurisdiction over this appeal as it appeared there was no final judgment. We instructed the parties to file letter briefs addressing the jurisdictional issue. The parties complied.
Appellant filed suit against appellee. In its amended answer, appellee asserted counterclaims under the Insurance Code and Deceptive Trade Practices Act seeking attorney's fees for allegedly filing frivolous claims. See TEX. INS. CODE ANN. § 541.153 (West 2009); TEX. BUS. & COM. CODE ANN. § 17.50(c) (West 2011). Appellee also filed a motion to file a third-party petition. Appellant then filed a notice of nonsuit of all her claims. On February 23, 2017, the trial court signed an order nonsuiting "this case." Appellee filed objections to the notice of nonsuit on March 1, 2017 because it had pending claims for affirmative relief pending at the time the nonsuit order was signed. On March 14, 2017, the trial court signed an amended order of nonsuit stating that appellee's "affirmative claims for relief are not affected by this Order and it may proceed forward on same." On April 4, 2017, appellant filed a "Notice of Interlocutory Appeal" complaining of the trial court's March 14, 2017 amended order of nonsuit clarifying that appellee's affirmative claims for relief against appellant remained pending. Appellant amended her notice of appeal ten days later asserting that the appeal was not accelerated because appellee did not have any claims pending at the time the trial court signed the March 14th order.
Generally, this Court has jurisdiction only over appeals from final judgments and certain interlocutory orders as permitted by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final judgment is one that disposes of all pending parties and claims. See id.
In her jurisdictional brief, appellant asserts that appellee's statutory claims for attorney's fees are requests for sanctions and that appellee waived its right to proceed with those claims by failing to secure an evidentiary hearing prior to her nonsuit. Appellant relies on Trussell Ins. Servs., Inc. v. Image Solutions, Inc., No. 12-09-00390-CV, 2010 WL 5031100 (Tex. App.-Tyler Dec. 8, 2010, no pet.) (mem. op.) to support her position. The court in Trussell Ins. held that sanctions for alleged violations of chapter 10 of the civil practice and remedies code that were known to the movants before trial are waived if a hearing and ruling are not secured pretrial. See id. at *4. Trussell Ins. is not on point.
Both section 17.50(c) and section 541.153 of the insurance code contain similar wording and have the same purpose of discouraging the filing of frivolous lawsuits and both are independent claims for affirmative relief. See Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 46-47 (Tex. App.—Texarkana 2017, pet. filed). Although a plaintiff has an absolute right to take a nonsuit at any time before he has introduced all of his evidence, a nonsuit does not prejudice the right of an adverse party to be heard on any claim for affirmative relief. See TEX. R. CIV. P. 162; Klein v. Dooley, 949 S.W.2d 307, 307 (Tex. 1997) (voluntary nonsuit by a plaintiff does not affect defendant's counterclaim for relief pursuant to section 17.50(c) of the DTPA); Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (plaintiff's nonsuit cannot extinguish defendant's counterclaim for attorney's fees).
The appealed order does not dispose of appellee's counterclaims and third-party petition and is not otherwise reviewable by interlocutory appeal. For these reasons, this Court lacks jurisdiction and we dismiss the appeal. See TEX. R. APP. P. 42.3(a).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 170338F.P05
JUDGMENT
On Appeal from the 192nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-16-04832.
Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee UNITED SERVICES AUTOMOBILE ASSOCIATION recover its costs of this appeal from appellant VERDELL MARSH. Judgment entered June 15, 2017.