Baldwin v. Klanke , 1994 Tex. App. LEXIS 1347 ( 1994 )

WILSON, Justice,

dissenting.

The majority states that the issue in the case is whether the plaintiff has a right to file a non-suit before announcing that he has rested. The announcement of “plaintiff rests” is not a criterion contained in the language of the rule. I dissent because the issue presented is whether this plaintiff sought a non-suit before he had introduced all of his evidence. See Tex.R.Civ.P. 162. The difference could be termed “hair-splitting,” but in this case, the difference is not only real, but determinativa

The trial judge is obligated to accept a motion for non-suit at any time before the plaintiff introduces all of his evidence. Tex. R.Civ.P. 162. Did the plaintiff in this case conclude his evidence and therefore lose his right to file a non-suit? At best, the answer is ambiguous.

First, before the trial started and outside the jury’s presence, there was confusion about which of three attorneys represented the plaintiff. Initially, the plaintiff had retained Attorney A. Then the plaintiff arranged to have Attorney B represent him. Attorney B was not present at trial and asked Attorney C to stand in for him. However, Attorney B had failed to file an appearance with the court. In response to the court’s question about who was going to be the lawyer for the plaintiff, the plaintiff responded that he expected Attorney B to be representing him, but if that were not the case, then Attorney A. After an unrecorded conference, the plaintiff announced that Attorney A would represent him with Attorney C as co-counsel.

After the plaintiff had been recalled by Attorney A and examined by Attorney A, the following transpired:

Attorney A: Pass the witness.

Defendant’s attorney: I don’t have any questions.

The court: You can step down.

Attorney A: That includes our pre — ¹

Attorney C: No.

Faced with conflicting responses from the two co-counsel, the trial court reasonably inquired: “Are you going to rest, Counsel?” The court received the following answer from Attorney A: “No, not yet. We are filing our nonsuit right now.” Attorney A did not in fact ask for a non-suit or file a non-suit at that time. Therefore, the trial court reasonably inquired: “Are you going to call any more witnesses in the case.” Attorney A replied “yes” to the question, stating he wished to call Jessie,² but added, “We want to file the nonsuit.” The trial judge determined that the plaintiff had completed his evidence, and I believe the lack of clarity in the record about the plaintiffs present intentions justifies the trial judge’s conclusion.

The majority seems to say that mentioning the words “non-suit” in virtually any fashion is sufficient to substitute for a written motion filed timely (or at least tendered timely), or a clear oral motion of a present intent to take a non-suit. In the suit before us, no written motion was filed or tendered for filing in a timely fashion. The oral statements made by plaintiffs counsel consist of what he wanted to do rather than a clear indication of what he was in fact doing.

A statement to the court such as, ‘Your Honor, before the conclusion of presenting his evidence, the plaintiff takes a non-suit under rule 162,” would be a simple, clear and direct way of orally asserting the plaintiffs rights under rule 162. Although the standards for obtaining a non-suit are certainly minimal, as the cases cited by the majority indicate, this trial judge, or any other, should not be put in the position of guessing whether the plaintiff has concluded his evidence.

Because I believe the plaintiff below did not minimally establish his entitlement to a non-suit, I would affirm the trial court’s judgment. I join the majority’s disposition of the remaining point of error.

1 . It can be reasonably inferred that Attorney A was saying he concluded his presentation.

2 . The defendant, Jessie Klanke, was not in the courtroom, and the plaintiff had not subpoenaed her.