Mohammad Assadi v. TAM Residential D/B/A Auro Crossing ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00373-CV
Mohammad Assadi, Appellant
v.
TAM Residential d/b/a Auro Crossing, Appellee
FROM THE COUNTY COURT AT LAW NO. 5 OF WILLIAMSON COUNTY
NO. 23-1062-CC5, THE HONORABLE WILL WARD, JUDGE PRESIDING
MEMORANDUM OPINION
Mohammad Assadi appeals from the trial court’s grant of appellee TAM
Residential d/b/a Auro Crossing’s nonsuit without prejudice. Assadi contends that the trial court
instead should have dismissed for want of prosecution with prejudice. We affirm.
BACKGROUND
TAM sued Assadi in justice court seeking a writ of possession of an apartment
TAM had rented to Assadi. The justice court granted judgment awarding TAM possession of the
apartment. Assadi vacated the apartment and sought de novo review in the county court-at-law.
After months passed without action by TAM, the county court-at-law set the case for hearing on
its dismissal docket. Assadi argued that the trial court should dismiss the case with prejudice.
TAM then filed a Notice of Nonsuit Without Prejudice and the county court-at-law signed an
Order Granting Nonsuit Without Prejudice.
ANALYSIS
Assadi contends by his sole issue that the county court-at-law erred by granting
TAM’s motion for nonsuit without prejudice rather than dismissing the case for want
of prosecution.
A nonsuit is a procedural device by which a plaintiff dismisses its case and
renders the merits of that case moot. See Tex. R. Civ. P. 162; Travelers Ins. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). Plaintiffs may take a nonsuit at any time before introducing
all of their evidence other than rebuttal evidence. Tex. R. Civ. P. 162. A party has an absolute
right to file a nonsuit, and a trial court is without discretion to refuse an order dismissing a case
because of a nonsuit unless collateral matters remain. Joachim, 315 S.W.3d at 862. A trial
court's granting of a nonsuit is a ministerial act. In re Greater Houston Orthopaedic Specialists,
Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding). The nonsuit extinguishes a claim
from the moment the motion is filed or an oral motion is made in open court. Id.; University of
Texas Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006).
Assadi’s perfection of his appeal to county court vacated and annulled the judgment of the
justice court, TAM had to prosecute its claims anew, and the county court could either try the
case de novo or dismiss it if it is not prosecuted but could not “affirm” or “reverse and remand”
the cause to the justice court. See Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied).
2
TAM nonsuited its claims before presenting all its evidence to the county
court-at-law. Though a nonsuit has no effect on claims pending against the plaintiff, 1 Assadi
does not assert that he had any claims pending against TAM when the nonsuit was filed. The
county court-at-law had no choice but to acknowledge that TAM had dismissed all claims
against Assadi when TAM filed its Notice of Nonsuit without Prejudice. See Tex. R. Civ. P.
162; Joachim, 315 S.W.3d at 862. Because the nonsuit rendered the case moot immediately, the
trial court could not thereafter further dismiss the moot cause for want of prosecution. See
Polansky v. Berenji, 393 S.W.3d 362, 371 (Tex. App.—Austin 2012, no pet.) (“[T]he Polanskys
were entitled to a dismissal without prejudice of their breach-of-contract claim against the
Builders immediately upon filing the nonsuit” and the “trial court erred by granting summary
judgment and dismissing the Polanskys’ breach-of-contract claim with prejudice”). The trial
court did not err in its Order on Nonsuit Without Prejudice. We overrule Assadi’s issue.
CONCLUSION
We affirm the Order on Nonsuit Without Prejudice.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Affirmed
Filed: November 7, 2024
1 See University of Texas Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz,
195 S.W.3d 98, 100-01 (Tex. 2006) (noting nonsuit has no effect on any motion for sanctions,
attorney’s fees or other costs, pending at the time of dismissal).
3