“Nonsuit” means “goes away.”

Originally published by David Coale.

A feature of Texas procedure is a litgant’s right to nonsuit: “The right to nonsuit is absolute, and a plaintiff’s right to a nonsuit exists from the moment a written motion is filed or an oral motion is made in open court, unless the defendant has, prior to that time, sought affirmative relief.” Central Refining LLC v. Calderon, No. 05-17-01372-CV (Nov. 5, 2018) (mem. op.) That case offers a classical illustration of what that principle can mean in practice:

• Appellees filed a no-evidence motion for summary judgment. The motion was set for hearing on August 18, 2017.
• On August 17, 2017, appellant filed a motion to nonsuit its claims without prejudice.
• The trial court did not rule on the motion prior to the hearing. Instead, the trial court granted appellees’ no-evidence motion for summary judgment on August 17, 2017 without a hearing.

The summary judgment order was an error: “Because the case was moot at that time, the trial court could not subsequently render a summary judgment.”

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