Affirmed as Modified and Memorandum Opinion filed April 14, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00203-CV

IN THE MATTER OF THE MARRIAGE OF MELBA JO MONTGOMERY
              AND LEO BRIAN MONTGOMERY


                   On Appeal from the 310th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-34055

                      MEMORANDUM OPINION

      In a suit for divorce, Melba Jo Montgomery asserted tort claims against
several individual and corporate defendants, alleging, among other things, that
these defendants conspired to defraud her of her community property. Three of the
defendants, excluding Melba’s husband, moved for summary judgment on
traditional and no-evidence grounds. For ease of reference, we identify these three
defendants as the “Tort Defendants.” The Tort Defendants had no pending
counterclaims or affirmative claims for relief. In their motion, they simply asked
for a take-nothing judgment against Melba.
      On October 31, 2014, before the hearing on the Tort Defendants’ motion for
summary judgment, Melba filed a notice of nonsuit. Melba asserted that she no
longer desired to prosecute her suit against her husband, the Tort Defendants, or
any of the remaining parties. Despite Melba’s nonsuit, the trial court signed an
order on November 12, 2014, granting a summary judgment in favor of the Tort
Defendants. That judgment was rendered final and appealable by another order,
signed the same day, granting Melba’s nonsuit.

      Melba subsequently moved to set aside the summary judgment, but the trial
court denied her motion. Melba now appeals, arguing that trial court should not
have granted the summary judgment after she filed her notice of nonsuit.

      Rule 162 of the Texas Rules of Civil Procedure provides that a plaintiff may
nonsuit her claims at any time before she has introduced all of her evidence, other
than rebuttal evidence. See Tex. R. Civ. P. 162. This right to nonsuit is absolute.
See Villafani v. Trejo, 251 S.W.3d 466, 468–69 (Tex. 2008). A nonsuit has
immediate effect, extinguishing the case or controversy from “the moment the
motion is filed.” See Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon
ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).

      Although a plaintiff can render her claims moot with the filing of a nonsuit,
a nonsuit cannot vitiate a prior decision on the merits, such as a partial summary
judgment in favor of an adverse party. See Hyundai Motor Co. v. Alvarado, 892
S.W.2d 853, 855 (Tex. 1995) (per curiam). Similarly, a nonsuit cannot prejudice
the right of an adverse party to be heard on a pending claim for affirmative relief.
See Tex. R. Civ. P. 162. An adverse party may even move for sanctions after the
notice of nonsuit has been filed, provided that the trial court still has plenary
power. See Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.
1996) (per curiam).

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      Melba filed her notice of nonsuit twelve days before the trial court signed an
order granting the Tort Defendants’ motion for summary judgment. The nonsuit
was effective the moment Melba filed her notice, meaning her case was rendered
moot immediately by the notice of nonsuit. See Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). Because the case was moot, the trial court could not
then render a summary judgment on the merits. See Polansky v. Berenji, 393
S.W.3d 362, 371 (Tex. App.—Austin 2012, no pet.). Thus, the trial court’s
summary judgment is erroneous and voidable. See Joachim, 315 S.W.3d at 864.

      The Tort Defendants respond with several arguments for upholding the
summary judgment. One of their arguments is that Melba did not serve them with
notice of her nonsuit “in accordance with Rule 21a,” as Rule 162 requires. The
Tort Defendants appear to assert that Melba’s allegedly deficient service deprived
her nonsuit of its immediate effect. In support of this argument, the Tort
Defendants rely on evidence attached to an affidavit, which they filed with their
brief. Because the Tort Defendants have not demonstrated that this evidence is part
of the appellate record, we cannot consider it. See Tex. R. App. P. 38.2 (the
appellee’s brief must conform with the requirements of Rule 38.1, which requires a
clear and concise argument “with appropriate citations . . . to the record”).

      Even if we could consider evidence that Melba did not properly serve the
Tort Defendants, we are bound by precedent that, to make the nonsuit effective,
“the only requirement is the mere filing of the motion with the clerk of the court.”
See Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990)
(per curiam). There is no dispute that Melba filed her notice of nonsuit with the
trial court on October 31, 2014, before the trial court signed its order granting the
summary judgment.



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      The Tort Defendants’ next point focuses on an entry in an electronic docket
sheet, which reflects that the trial court rendered its summary judgment on the
same day that Melba filed her notice of nonsuit. The docket sheet does not indicate
an exact time of rendition. The Tort Defendants seize on this omission, pointing
out in their brief that Melba has not demonstrated that the trial court granted its
summary judgment after she filed her notice of nonsuit.

      The Tort Defendants seem to suggest, by implication, that the trial court may
have rendered its summary judgment before Melba filed her notice of nonsuit. But
to even indulge this point, we would have to assign more weight to the docket
sheet than the signed judgment that was entered into the record. The Texas
Supreme Court has stated very clearly that we cannot do that: “A docket entry may
supply facts in certain situations . . . but it cannot be used to contradict or prevail
over a final judicial order.” N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex.
1977) (orig. proceeding) (holding that the date of rendition as reflected in a docket
sheet entry did not control over the date reflected in the written order); see also
Garza v. Tex. Alcoholic Beverage Comm’n, 89 S.W.3d 1, 7 (Tex. 2002)
(“Ordinarily, when there is a question concerning the date judgment was rendered,
the date the judgment was signed prevails over a conflicting docket sheet entry.”).

      We also note that the file stamp on Melba’s notice of nonsuit reflects an
electronic filing at 3:56 a.m. on the morning of October 31, 2014. There is no
indication that the trial court orally pronounced a decision in open court in the
early hours of that day, before Melba filed her notice of nonsuit. Nor, during the
same time period, is there any indication that the trial court issued a decision by
memorandum filed with the clerk or otherwise publicly announced that it was
granting a summary judgment in favor of the Tort Defendants. In fact, the motion
for summary judgment was set for hearing on November 3, 2014. It would have

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been error for the trial court to grant the motion before the hearing date. Therefore,
the trial court’s docket sheet is insufficient to effectuate a rendition on a date
earlier than November 12, 2014, the date the trial court actually signed the
summary judgment. See Garza, 89 S.W.3d at 6–7 (discussing the various ways that
a trial court may render a judgment).

      The Tort Defendants finally argue that the summary judgment should be
upheld as a sanction under Rule 21b of the Texas Rules of Civil Procedure. The
record reflects that the Tort Defendants moved for sanctions around noon on
October 31, 2014, several hours after Melba filed her notice of nonsuit. The motion
for sanctions was filed with the Tort Defendants’ reply to Melba’s response to the
motion for summary judgment. The Tort Defendants complained that Melba had
violated the rules of service because she electronically filed her response with the
trial court, but she delivered a copy of the response to the Tort Defendants by
certified mail. See Tex. R. Civ. P. 21a(a)(1) (documents filed electronically must
be served electronically). As a sanction for this improper service, the Tort
Defendants asked the trial court to strike Melba’s response from the record.

      On appeal, the Tort Defendants assert that the trial court could have
dismissed Melba’s suit with prejudice because that relief, though unsolicited, was
also available to them under the rules. See Tex. R. Civ. P. 21b (authorizing the trial
court to impose an appropriate sanction under Rule 215.2(b) when a party fails to
properly serve another party with a copy of a pleading); Tex. R. Civ. P. 215.2(b)(5)
(authorizing the trial court to strike a pleading or dismiss a suit with prejudice as a
sanction). We disagree for at least two reasons. First, a trial court can only impose
sanctions under Rule 21b “after notice and hearing,” and in this case, the record
does not reveal that a sanctions hearing was ever held. Second, the recitals in the
summary judgment reflect that the trial court granted the summary judgment on the

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merits for the reasons stated in the Tort Defendants’ motion for summary
judgment. The Tort Defendants did not request sanctions in their motion for
summary judgment, and there is no mention in the judgment itself that the
judgment was granted as a sanction.

      We sustain Melba’s first issue. There is no need for us to address Melba’s
remaining points challenging the merits of the summary judgment, which were
waived in any event because they were raised for the first time in a reply brief. See
Zurita v. Lombana, 322 S.W.3d 463, 477 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied).

      We vacate the trial court’s summary judgment, which was rendered final by
the order granting Melba’s nonsuit. We affirm the order of nonsuit as so modified
and dismiss the claims against the Tort Defendants without prejudice.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, McCally, and Busby.




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