Jose G. Escobedo v. Attorney General of Texas--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00832-CV
IN THE INTEREST OF T.N.E. AND J.W.E., CHILDREN
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-EM5-05777
Honorable Juan Antonio Chavira, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: October 3, 2007

 

AFFIRMED

The Attorney General petitioned to establish child support for one child and paternity and child support for another child alleged to be Jose Escobedo's. Before any hearing on the merits occurred, the Attorney General filed a motion for nonsuit. The trial court signed an order granting the nonsuit, and Escobedo filed this appeal challenging the court's nonsuit order. (1) Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Texas Rule of Appellate Procedure 47.4 for the following reasons:

1. Escobedo argues the trial court erred in granting the nonsuit because the court effectively denied him his day in court. Rule 162 of the Texas Rules of Civil Procedure gives a plaintiff the right to take a nonsuit at any time before it has rested its case. Tex. R. Civ. Proc. 162. The plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991); BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990). At the time the Attorney General filed its motion for nonsuit, Escobedo had not asserted any claims for affirmative relief against it. Thus, the Attorney General had an absolute right to nonsuit in this case.

2. Escobedo further argues the trial court erred in granting the nonsuit because the Attorney General did not furnish him with notice of its intent to seek a nonsuit. The certificate of service for the motion for nonsuit, however, reflects that the Attorney General served notice of the nonsuit on Escobedo. The record therefore does not support Escobedo's contention. See generally Wembley Inc. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (recognizing that a certificate of service in a nonsuit motion creates a presumption that the nonsuit was received).

The trial court's order granting the nonsuit is affirmed.

 

Catherine Stone, Justice

 

1. The Attorney General asserts Escobedo has no right to appeal the court's nonsuit, arguing "[o]nce a case is voluntarily dismissed, no further action may be taken in that cause." The Attorney General thus contends we must dismiss Escobedo's appeal for lack of jurisdiction, citing University of Texas Medical Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98 (Tex. 2006). Estate of Blackmon, however, is procedurally distinguishable from the case at bar. In that case, while UTMB's interlocutory appeal from its plea to the jurisdiction was pending in the court of appeals, the plaintiffs filed a nonsuit and moved to dismiss UTMB's appeal for want of jurisdiction. Id. at 100. The court of appeals denied the plaintiffs' motion and issued its opinion. Id. The Texas Supreme Court, applying Texas Rule of Civil Procedure 162, concluded that the nonsuit deprived the court of appeals of jurisdiction because the nonsuit vitiated the trial court's interlocutory order denying the plea to the jurisdiction. Id. at 101. Because we are not faced with a procedural situation like the one presented in Estate of Blackmon, we do not believe Estate of Blackmon controls the disposition of this appeal. Therefore, we shall address the merits of Escobedo's appeal. See In re C.A.S., 128 S.W.3d 681, 683 (Tex. App.--Dallas 2003, no pet.) (recognizing nonsuits may be considered final and appealable orders).