in Re Leticia Guerrero Garza, Administrator of the Estate of Jorge Luis Garza

NUMBER 13-22-00483-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE LETICIA GUERRERO GARZA, ADMINISTRATOR OF THE
ESTATE OF JORGE LUIS GARZA, DECEASED
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Hinojosa1
By petition for writ of mandamus, relator Leticia Guerrero Garza, administrator of
the estate of Jorge Luis Garza, deceased, contends that the trial court abused its
discretion: (1) when it refused to sign the parties’ proposed order granting nonsuit or
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (explaining the
differences between opinions and memorandum opinions).
otherwise refused to issue an order granting nonsuit, and (2) by refusing to dismiss the
underlying cause because the Hidalgo County Probate Court possesses exclusive
jurisdiction over the relief requested in the underlying proceeding. 2 We conditionally grant
the petition for writ of mandamus.
I. BACKGROUND
The underlying proceeding is a suit affecting the parent-child relationship. On
January 21, 2020, Jorge Luis Garza, the father of minor child, J.D.G., filed an “Original
Petition in Suit Affecting the Parent-Child Relationship” against the real party in interest,
Maria Guadalupe Montes a/k/a Daniela Montes, the child’s mother. Garza requested that
the parents of the child be named joint managing conservators and requested the entry
of orders pertaining to child support and possession. According to the petition, Garza was
“already married,” thus the couple had cohabitated but had never married.
Montes filed an answer, an “Original Counterpetition in Suit Affecting the Parent-
Child Relationship,” and an application for a protective order. Montes sought to be named
the child’s sole managing conservator and requested that Garza be ordered to pay child
support and medical and dental support. Montes’s application for protective order stated
that her “former [fiancé]” Garza had committed multiple acts of family violence. Montes
alleged, among other things, that Garza, “while under the influence of illegal narcotics
and alcohol,” threatened to kill her and her children.
Subsequently, on March 31, 2020, Garza and Montes filed a “Joint Notice of
2 This original proceeding arises from trial court cause number 2020-DCL-00318 in the 444th
District Court of Cameron County, Texas, and the respondent is the Honorable Leonel Alejandro, sitting by
assignment. See TEX. R. APP. P. 52.2.
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Nonsuit.” The joint notice was signed by both parties’ attorneys and Garza and Montes
individually. The joint notice stated, in its entirety, that, “This Joint Notice of Nonsuit is
brought by both parties, [Garza and Montes], who show in support: The parties no longer
desire to prosecute this suit against each other specifically, as to all pending motions.”
That same day, the parties filed a proposed “Order Granting Nonsuit” which provides in
relevant part that the parties “are released from all claims brought in this case” by either
party and “the case is DISMISSED without prejudice against [Garza] or [Montes] to bring
the claim again.” The trial court did not sign the proposed order granting the nonsuit.
Thereafter, on November 19, 2020, Montes filed a “Motion to Enter Temporary
Orders.” The motion addressed the history of the case as follows:
This case originated with [Garza] bringing suit to establish visitation and
child support of his minor child subject of this suit. [Montes] filed an answer
and counterpetition including a request for a protective order and drug
screening. The parties appeared at a hearing and agreed to temporary
orders. The protective order was not heard at the time. Although the
temporary orders were agreed to and ordered by the court on the record,
this Honorable Court never actually signed them. The parties later agreed
to nonsuit the “pending motions” which included the protective order and
drug screening as they had reconciled.
Since the date of the nonsuit of pending motions, the temporary orders
although drafted were never actually entered. [Garza] has died and the child
is not receiving any child support at this time from the estate of [Garza].
[Montes] now comes and requests that the temporary orders as to child
support be entered in order to make the claim to the estate of [Garza] to pay
during the pendency of the administration and final claim be paid by the
estate.
The motion recited that Montes’s counsel had served the motion on a representative of
the estate. 3 That same day, Montes filed a suggestion of death for Garza stating that he
3In the pleadings below, Montes asserts that she had filed a motion requesting drug screening;
however, that request is not apparent in the record before us. Further, the record lacks a reporter’s record
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passed away on August 18, 2020.
On December 17, 2020, the trial court signed temporary orders which appear to
have been based on a hearing held on February 10, 2020. The signed order states, inter
alia, that the parties appeared in person and by counsel, and that the parties had agreed
to the terms of the order “as evidenced by the signatures below.” However, the order is
not signed by either party and its terms do not acknowledge Garza’s intervening death.
On January 15, 2021, relator filed a motion to vacate the December 17, 2020
temporary orders. Relator asserted that: (1) the trial court lacked jurisdiction because
Garza and Montes had filed the joint motion for nonsuit, which nonsuited the matters at
issue; (2) the temporary orders should be vacated because they were issued without
supporting evidence or party agreement; and (3) the temporary orders should be vacated
because they were issued without proper notice to the estate and the estate had not been
served when “any hearing” on the temporary orders was held.
Subsequently, on June 23, 2021, the trial court signed an agreed order vacating
the temporary orders.
On or about August 30, 2021, Montes filed a “First Amended Suit Affecting Parent[-
]Child Relationship and to [Accelerate] Child/Medical Support and to Confirm Child
Support Arrearages” against relator. On December 8, 2021, relator filed her original
answer to Montes’s first amended petition. On December 10, 2021, relator further filed a
regarding the alleged hearing on temporary orders. We note that the docket sheet indicates that a hearing
was held on February 10, 2020, attended by counsel and parties, and an “agreement [was] put on record
as specified.” The docket sheet entry states that: “Visitation 1st, 3rd & 5th Sat - Sun 4 hours & to be
supervised from noon to 4:00 p.m. Mutual Protective Order, Joint hair follicle each to pay their own. Atty’s
fees to be carried over. No phone calls to each other or family members. Temporary Order due w/21 days.
Final set for 5/18/20.”
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plea to the jurisdiction. Relator asserted that the Hidalgo County Probate Court, which
was currently probating Garza’s estate, had exclusive jurisdiction over Montes’s claims.
According to relator, the trial court lacked jurisdiction because the trial court had not
rendered a final order under family code § 155.001(a) which would have provided the trial
court with “continuing, exclusive jurisdiction,” and because there was no judicially
imposed child support obligation, § 154.015, concerning proceedings following the death
of a child support obligor, was inapplicable. See TEX. FAM. CODE ANN. § 155.001(a)
(“Except as otherwise provided by this section, a court acquires continuing, exclusive
jurisdiction over the matters provided for by this title in connection with a child on the
rendition of a final order.”); id. § 154.015 (governing the acceleration of an unpaid child
support obligation owed by a decedent). On September 30, 2022, the trial court denied
relator’s plea to the jurisdiction.
This original proceeding ensued on October 12, 2022. This Court granted relator’s
motion for emergency temporary relief and ordered the trial court proceedings to be
stayed pending further order of this Court, or until this case is finally decided. See TEX. R.
APP. P. 52.10(b). The Court requested that Montes, or any others whose interest would
be directly affected by the relief sought, file a response to the petition for writ of mandamus
on or before the expiration of ten days from the date of the order. See id. R. 52.2, 52.4,
52.8. Nevertheless, Montes did not file a response to the petition for writ of mandamus.
II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
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840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two
requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam); Walker, 827 S.W.2d at 840.
III. NONSUIT
In her first issue, relator alleges that the trial court erred by continuing to exercise
jurisdiction over the case after the parties had filed a nonsuit. Rule 162 of the Texas Rules
of Civil Procedure provides that “[a]t 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.” TEX. R. CIV. P. 162; see Morath v. Lewis, 601
S.W.3d 785, 787 (Tex. 2020) (per curiam). A nonsuit does “not prejudice the right of an
adverse party to be heard on a pending claim for affirmative relief,” “excuse the payment
of all costs taxed by the clerk,” and has “no effect on any motion for sanctions, attorney’s
fees or other costs, pending at the time of dismissal, as determined by the court.” TEX. R.
CIV. P. 162; see Rogers v. Bagley, 623 S.W.3d 343, 357 (Tex. 2021), cert. denied, 142
S. Ct. 774 (2022).
“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
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remain.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); see Villafani v.
Trejo, 251 S.W.3d 466, 468–69 (Tex. 2008); Univ. of Tex. Med. Branch at Galveston v.
Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam); In re
Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). A “nonsuit
extinguishes a case or controversy from the moment the motion is filed.” Morath, 601
S.W.3d at 788 (quoting Estate of Blackmon, 195 S.W.3d at 100 (emphasis added)). “An
order signed by the trial court is not required.” Aaron v. Fisher, 645 S.W.3d 299, 310 (Tex.
App.—Eastland 2022, no pet.); see Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011);
Travelers Ins. Co., 315 S.W.3d at 862. A nonsuit renders the merits of the nonsuited case
moot. Morath, 601 S.W.3d at 788; Travelers Ins. Co., 315 S.W.3d at 862–63; Villafani,
251 S.W.3d at 469. A party may resurrect a claim that has been dismissed by nonsuit, as
long as the trial court has plenary power, through various means such as filing a motion
for new trial, filing a motion to reinstate or withdraw the nonsuit, by agreement of the
parties, or by commencing another action de novo. See Trigg ex rel. Trigg v. Moore, 335
S.W.3d 243, 246 (Tex. App.—Amarillo 2010, pet. denied) (explaining that recognition of
unqualified right of party to withdraw its nonsuit “could render legal proceedings farcical”);
see also Lawson v. Morrison, No. 03-19-00301-CV, 2021 WL 1933958, at *2 (Tex. App.—
Austin May 14, 2021, no pet.) (mem. op.). The determination whether to grant
reinstatement following a nonsuit rests within the discretion of the trial court. Trigg, 335
S.W.3d at 246.
Here, the parties filed their joint notice of nonsuit on March 31, 2020. The joint
notice recites that “the parties no longer desire to prosecute this suit against each other
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specifically, as to all pending motions.” In the trial court, in her “Motion to Enter Temporary
Orders,” Montes took the position that the foregoing language indicated an intent to
nonsuit her motion for protective order and motion regarding drug testing, but not the
entirety of the case. At this point in the litigation, because Montes failed to file a response
to the petition, we do not have the benefit of argument or authority in support of that
construction.
Viewing the language of the nonsuit in conjunction with the parties’ proposed order
granting nonsuit, which releases Garza and Montes “from all claims brought in this case”
and orders that “the case is DISMISSED without prejudice,” we conclude that the nonsuit
encompassed the entirety of the case. See Rieder v. Woods, 603 S.W.3d 86, 94 (Tex.
2020) (discussing the construction of multiple documents as part of a unified transaction).
Further, we have previously rejected the proposition that a nonsuit may be used as a
means for dismissing claims in a piecemeal fashion. Messmer v. State Farm Cnty. Mut.
Ins. Co. of Tex., 972 S.W.2d 774, 779 (Tex. App.—Corpus Christi–Edinburg 1998, no
pet.). In Messmer, a plaintiff sued her insurance provider for breach of the insurance
policy and for bad faith. Id. at 776. She later attempted to nonsuit her breach of contract
claim alone, but the trial court dismissed the entire case. Id. On appeal, we concluded
that a nonsuit “is not an appropriate means of discontinuing proceedings only on certain
issues.” Id. at 779. Instead, “[a] party wishing to exclude certain issues in his suit from
trial without terminating the entire suit should abandon those claims.” Id.; see TEX. R. CIV.
P. 165 (“A party who abandons any part of his claim or defense, as contained in the
pleadings, may have that fact entered of record, so as to show that the matters therein
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were not tried.”); see also C/S Sols., Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d
299, 307 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (concluding that the abandonment
of a claim is not governed by Rule 162 pertaining to nonsuits). After considering that the
trial court had “properly” warned the plaintiff that a nonsuit could not be used to dismiss
her claims in a piecemeal fashion “and that the consequences of a nonsuit would be
dismissal of the entire suit,” we affirmed the trial court’s order nonsuiting the case. See
Messmer, 972 S.W.2d at 779.
Based on the foregoing, the underlying lawsuit was extinguished when Garza and
Montes filed the notice of nonsuit. See Morath, 601 S.W.3d at 788; Estate of Blackmon,
195 S.W.3d at 100. Montes was required to take some action to revive her previously
nonsuited claims before the trial court could act on her motion to enter temporary orders
or her first amended petition against relator. In this regard, Montes could have filed a
motion for reinstatement or for a new trial. See, e.g., Trigg, 335 S.W.3d at 246; see also
DHJB Dev., LLC v. Graham, No. 03-18-00340-CV, 2018 WL 5814119, at *3 (Tex. App.—
Austin Nov. 7, 2018, no pet.) (mem. op.) (collecting authorities). She did not, and
accordingly, the trial court lacked discretion to refuse to enter an order of nonsuit. See
Travelers Ins. Co., 315 S.W.3d at 862; Villafani, 251 S.W.3d at 468–69. And, under the
facts of this case, relator has no adequate remedy at law. See In re Prudential Ins. Co. of
Am., 148 S.W.3d at 138; In re Riggs, 315 S.W.3d 613, 616 (Tex. App.—Fort Worth 2010,
orig. proceeding). We sustain relator’s first issue.
Relator suggests that the Court has discretion to address its second issue
pertaining to jurisdiction “irrespective of whether or not it would independently provide a
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basis for mandamus relief,” and doing so would be “in the interest of judicial economy.”
We disagree. A jurisdictional analysis would offer no different or greater relief and would
bely our analysis regarding the nonsuit. Thus, having sustained relator’s first issue, we
need not address relator’s second issue. See TEX. R. APP. P. 47.4.
IV. CONCLUSION
This Court, having examined and fully considered the petition for writ of
mandamus, the record, and the applicable law, is of the opinion that relator has met her
burden to obtain mandamus relief. Accordingly, we lift the stay previously imposed in this
case. We conditionally grant the petition for writ of mandamus and direct the trial court to
vacate any and all orders issued after the parties filed the notice of nonsuit and to enter
an order of nonsuit. See id. R. 52.8(a), (d). In so ruling, we caution the parties that we
express no opinion as to the merits of the claims made in the underlying lawsuit.
LETICIA HINOJOSA
Justice
Delivered and filed on the
18th day of November, 2022.
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