Opinion issued August 4, 2015




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-15-00471-CV
                             ———————————
           IN RE DANIEL W. WARREN, BENEFICIARY OF THE
              DANIEL STEVEN WEINER 1996 TRUST, Relator



             Original Proceeding on Petition for Writ of Mandamus


                           MEMORANDUM OPINION

      Relator, Daniel W. Warren, has filed a petition for writ of mandamus

challenging the trial court’s jurisdiction to hear and rule on motions regarding a

Counter and Cross-Petition filed by the real party in interest after relator’s nonsuit.1

We deny the petition.

1
      The underlying case is In re Daniel Steven Weiner 1996 Trust, cause number
      425,576-401, pending in the Probate Court No. 4 of Harris County, Texas, the
      Honorable Christine Butts presiding.
                                    Background

      Daniel and his two brothers are each beneficiaries of separate trusts for

which their parents, Andy Weiner and Katherine Warren, serve as co-trustees.

After Daniel’s brother, David, filed suit against Weiner regarding his trust, Daniel

intervened in David’s case to assert similar claims against Weiner regarding his

own trust. Weiner subsequently filed his Second Amended Cross-Claims against

Katherine Warren, as co-trustee, regarding both trusts. The trial court later issued

an order (1) severing Daniel’s case into its own cause number, (2) ordering that

“all prior discovery, orders, motions, responses and answers pertaining to Daniel

W. Warren in [David’s case] shall apply in the same manner as if such had

occurred in [Daniel’s new case]” and (3) directing the clerk to transfer twenty-four

listed items filed in David’s case to Daniel’s new case. Weiner’s Second Amended

Cross-Claims were not included in the severance order’s list of items to be

transferred to Daniel’s new case. Daniel subsequently nonsuited his claims against

Weiner. After the nonsuit, Weiner filed a Counter and Cross-Petition in the case

and the trial court held hearings and ruled on motions regarding the Counter and

Cross-Petition.

                                      Analysis

      In this mandamus proceeding, Daniel asserts that he had an “absolute right

to nonsuit his case and be dismissed” and challenges the trial court’s jurisdiction to


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hear and rule on matters following the nonsuit. However, a plaintiff’s nonsuit does

not affect a defendant’s pending claims for affirmative relief. See TEX. R. CIV. P.

162 (“Any dismissal pursuant to this rule shall not prejudice the right of an adverse

party to be heard on a pending claim for affirmative relief or excuse the payment of

all costs taxed by the clerk.”); Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011)

(“[A] nonsuit does not affect any pending claim for affirmative relief or motion for

attorney’s fees or sanctions.”). Acknowledging this, Daniel argues that “no claims

of any kind” were pending at the time of his nonsuit because Weiner’s Second

Amended Cross-Claims were not included in the severance order’s list of items to

be transferred to his case. We disagree.

      Although Weiner’s Second Amended Cross-Claims were not included in the

list of items to be transferred to Daniel’s case, the trial court’s severance order

indicates a clear intent to transfer all matters relating to Daniel to his new case. The

Second Amended Cross-Claims are included in the record in this original

proceeding and demonstrates that Weiner asserted claims against the co-trustee

regarding both David and Daniel’s trusts. No reasonable explanation has been

presented as to why the severance order would sever all matters relating to Daniel

into a new case, but leave Weiner’s cross-claims regarding Daniel’s trust to remain

pending in David’s case. Accordingly, we hold that the claims in the Second

Amended Cross-Claims were asserted in Daniel’s case prior to his nonsuit.


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Furthermore, the Second Amended Cross-Claims asserted at least one independent

claim for affirmative relief. Because the nonsuit did not resolve the pending

affirmative claim, the nonsuit was not a final order and the trial court’s plenary

power did not expire thirty days after the order was issued. See TEX. R. CIV.

P. 329b(d), (e); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95–97 (Tex. 2009)

(holding that trial court’s plenary power had not expired where order granting

nonsuit was not final because it did not dispose of all pending matters).

                                    Conclusion

      For the foregoing reasons, we deny the petition for writ of mandamus and

lift the stay imposed in our May 27, 2015 order.

                                  PER CURIAM

Panel consists of Justices Jennings, Bland, and Brown.




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