Baldwin v. Klanke

877 S.W.2d 879, 1994 Tex. App. LEXIS 1347, 1994 WL 245485

• Court: Court of Appeals of Texas
• Decided: June 9, 1994
• Docket: No. 01-93-00180-CV
• Status: Published

Opinions

OPINION

O’CONNOR, Justice.

The issue in this case is whether the plaintiff has a right to file a non-suit before announcing that he has rested. We hold he does, and reverse.

The plaintiff, William A. Baldwin, filed a suit to contest the will of Charles W. Klanke, his uncle. The attorney for the plaintiff presented evidence from two witnesses and then announced he wanted to file a non-suit. Instead of permitting the filing of the non-suit, the trial court granted a directed verdict made by the widow and independent executrix of Klanke’s estate. Later, in another hearing, the trial court assessed sanctions of $2,500 against the plaintiff under Tex. R.Civ.P. 18, for filing a frivolous lawsuit.²

The case involving the non-suit went to trial on October 21,1992. After the jury was chosen and after some pretrial proceedings outside the jury’s presence, the plaintiffs attorney called the plaintiff to testify, and then called Blake Hawk, the attorney who drafted Charles Klanke’s will and notarized the self-proving affidavit to the will. After the plaintiff had been recalled by his attorney and examined by him, the following exchange occurred outside the presence of the jury:

The Court: Are you going to rest, Counsel?

Plaintiff: No, not yet. We are filing our non-suit right now.

The Court: Are you going to call any more witnesses in the case?

Plaintiff: Well, we can call Jessie. I guess we will call more witnesses. Yes. We want to file the non-suit.

Defendant: She’s not in the courtroom. I thought he rested twice, Your Honor.³

Plaintiff: One way or another, the thing is over. We are filing a non-suit.

Defendant: I have a Motion for Instructed Verdict I would like to present to the Court....

The Court: Wait. Do you have any more witnesses you want to call? Is she here? Is she under subpoena?

Defendant: She’s not under subpoena. I was going to call her under my case, if necessary. He can call her but she’s not here.

The Court: You are going to have to make up your mind.

Plaintiff: We have made up our mind. We want not to go forward. We want to file this non-suit under Rule 162.

The Court: Well, I am not going to authorize you to do that. I’m just not going to accept it. You can appeal or do whatever you want to on that, but I am not going to let you stop in a middle of a trial when we are here, with another diversionary tactic. If you have witnesses to call, call them. If you don’t, then you rest. If you want to take a non-suit, that’s fíne, but it will be with prejudice against your case, and I will hear a directed verdict motion. If you have another witness to call, call them. Don’t put in there that you’re non-suiting before you finish your case, because we are all here. I don’t know of any witnesses you have subpoenaed or any problem you have with the case.

Plaintiff: Well, we have made our Motion for Non-suit. The motion has been denied, so now we go forward with Motion for Instructed Verdict, I suppose.

(Emphasis added.) The court then ruled as follows:

Well, I am going to find on the record that at the conclusion of the contestant’s case and with the exception of calling rebuttal witnesses that might have been offered, that the case in chief has been presented, and that the non-suit has been filed. It’s too late, I think, after you’ve put on your case, to file for non-suit.

I am going to grant the instructed verdict and I find the contest to be denied and find all costs are against the contestant.

The plaintiff filed a handwritten motion for non-suit at 4:22 p.m. on October 21,1992,.the day of trial.

Rule 162 of the Texas Rules of Civil Procedure provides in part:

At 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.

The granting of a non-suit is merely ministerial; a plaintiffs right to a non-suit of its own action exists at the moment a motion is filed or an oral motion is made in open court. Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex.1990); Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.1982). A plaintiff may take a non-suit any time during the trial until it introduces all of its evidence, other than rebuttal evidence. O’Brien v. Stanzel, 603 S.W.2d 826, 828 (Tex.1980); Tex.R.Civ.P. 162. A plaintiffs right to take a non-suit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990); Strawder v. Thomas, 846 S.W.2d 51, 59 (Tex.App.—Corpus Christi 1992, no writ); Baca v. Hoover, Bax & Shearer, 823 S.W.2d 734, 737 (Tex.App.—Houston [14th Dist.] 1992, writ denied).

The first question is whether the trial court had the authority to refuse the plaintiffs request for a non-suit. The answer is no. Once the plaintiff announced he wanted to file a non-suit, the trial court could not refuse to accept it for filing. We consider the motion for non-suit filed when the plaintiff tendered it to the trial court, even though the trial court refused to accept it. See Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993) (when the clerk erroneously refused to accept a motion for filing that was tendered without the fee, the document was considered filed on the date it was presented); see also Strawder, 846 S.W.2d at 58-59 (notice of non-suit filed by facsimile machine was deemed filed even though clerk of court did not have authority to receive documents for filing by facsimile machine). When a court refuses to accept a document tendered for filing, the document will be considered filed when it was presented for filing. Jamar, 868 S.W.2d at 319. Thus, the motion for non-suit was filed before the trial court granted the motion for directed verdict.

The second question is whether the plaintiff presented the motion for non-suit before it rested. In the dialogue reproduced above, the trial court put the direct question to the plaintiff — are you going to rest? The plaintiff replied no. When the trial court rephrased it — are you going to call any more witness — the plaintiff stated he would, but that he wanted a non-suit. We hold the plaintiff presented his non-suit before he rested his case.⁴

We sustain the plaintiffs first point of error, reverse the judgment of November 5, 1992, remand the cause to the trial court, and instruct the trial court to enter an order granting the plaintiffs motion for non-suit and dismissing his claims without prejudice. We sustain the plaintiffs second point of error, as agreed by the defendants, reverse the judgment of November 11, 1992, awarding sanctions against the plaintiff, and render judgment that the defendants recover no sanctions from the plaintiff.

2 . On appeal, the defendants concede the trial court did not make findings as required by Tex. R.Civ.P. 13, and concede the judgment relating to sanctions must be reversed.

3 . Nothing in the record supports the defendants’ statement that the plaintiff had already rested.

4 . In fact, the court seemed to grant the non-suit when he said: “If you want to take a non-suit, that’s fine, but it will be with prejudice against your case, and I will hear a directed verdict motion.” (Emphasis added.)