Schein v. American Restaurant Group, Inc.

794 S.W.2d 78 (1990)

Clifford SCHEIN d/b/a J & B Cash Express, Appellant,
v.
AMERICAN RESTAURANT GROUP, INC., Appellee.

No. 2-89-237-CV.

Court of Appeals of Texas, Fort Worth.

July 10, 1990. Rehearing Denied September 4, 1990.

Shawn M. Frazin, Dallas, for appellant.

Stagner & Stagner, and Cynthia L. Stagner, Sherman, for appellee.

Before FARRIS and DAY, JJ., and CLYDE R. ASHWORTH (Retired) Sitting by Assignment.

OPINION

FARRIS, Justice.

Clifford Schein d/b/a J & B Cash Express (Cash Express) sued American Restaurant Group, Inc. (American) alleging holder in due course status on a check issued to one of American's former employees. After the trial court sanctioned Cash Express for discovery abuse, Cash Express nonsuited its case, and now appeals the sanction order.

We hold that a plaintiff who has taken a non-suit cannot complain on appeal of any sanctions granted by the trial court before the non-suit. See Cornish v. Houston Terminal Land Co., 257 S.W. 575, 578 (Tex.Civ.App.-Galveston 1923, no writ); Levinski v. Williamson, 15 Tex. Civ. App. 67, 38 S.W. 376 (1896, no writ); TEX.R. CIV.P. 162.

Accordingly, we hold that Cash Express is not entitled to be heard in this court upon the points of error it urges concerning the sanction order, and we dismiss this appeal.