                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-10-075-CV


IN RE COLBY GLENN RIGGS                                                    RELATOR

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                             ORIGINAL PROCEEDING

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                                     OPINION

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      Relator Colby Glenn Riggs filed a petition for writ of mandamus asking this

court to order the Respondent, Steve M. King, Judge of Probate Court No. 1 of

Tarrant County to dismiss, upon his notice of nonsuit, Relator’s claims against two

of the Real Parties in Interest, Edward D. Jones & Co., L.P. and financial advisor

W illiam B. Atkins, III, which the trial court has ordered to arbitration. Relator also

requested that this court lift the stay of his remaining claims against Real Parties in

Interest Dennis Lee Bailey (“D. Bailey”)—Individually and as Independent Executor

of the Estate of Dorothy Alice Riggs, Deceased, and as Co-Trustee of the DAR

Revocable Trust, and Pamela Bailey (“P. Bailey”)—Individually, and as Co-Trustee
of the DAR Revocable Trust (collectively the “Baileys”). For the reasons that follow,

we conditionally grant relief.

      On April 21, 2008, Relator filed his original petition in the trial court seeking

damages against the Real Parties in Interest primarily arising from the Real Parties’

alleged mismanagement and/or misuse of funds of which Relator is a beneficiary.

After answering Relator’s petition, on July 29, 2008, Edward D. Jones and Atkins

filed a motion to compel arbitration and a motion to stay proceedings as to the

Baileys during the pendency of the arbitration. Relator filed a response to the motion

to compel arbitration on January 16, 2009. On February 29, 2009, the trial court

signed an order compelling arbitration as to the claims against Edward D. Jones and

Atkins and staying the underlying proceedings against the Baileys.

      On July 31, 2009, Relator filed a notice of nonsuit, a motion to dismiss without

prejudice as to Edward D. Jones and Atkins, and a motion to lift the stay of his

claims against the Baileys. The trial court denied Relator’s motions and he filed this

original proceeding.

      Relator contends that the trial court abused its discretion by denying his

motion to dismiss and motion to lift the stay. The trial court’s order does not contain

its reasons for denying Relator’s motions.




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      Under Texas law, a plaintiff has an absolute right to take a nonsuit if the

defendant has not made a claim for affirmative relief. Tex. R. Civ. P. 162 1 ; see also

Travelers Ins. Co. v. Joachim, No. 08-0941, 2010 W L 1933022, at *1, *2 (Tex. May

14, 2010); Villafani v. Trejo, 251 S.W .3d 466, 468–69 (Tex. 2008); BHP Petroleum

Co. v. Millard, 800 S.W .2d 838, 840–41 (Tex. 1990); Greenberg v. Brookshire, 640

S.W .2d 870, 871 (Tex. 1982); Moseley v. Behringer, 184 S.W .3d 829, 833–34 (Tex.

App.—Fort W orth 2006, no pet). To assert a claim for affirmative relief, a defendant

must assert a cause of action, independent of the plaintiff’s claim, on which he could

recover benefits, compensation, or relief. See Gen. Land Office of State of Tex. v.

OXY, U.S.A., Inc., 789 S.W .2d 569, 570 (Tex. 1990). A request for arbitration of

claims—like that made by Edward D. Jones and Atkins here—is not a cause of

action independent of the plaintiff’s claim, nor one in which the defendant could

recover benefits if the plaintiff abandons his or her cause of action; thus, it is not a

claim for affirmative relief. See id. 2 If a defendant does nothing more than resist a


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        Such a dismissal shall not prejudice an adverse party’s right to recover on
a claim for affirmative relief or a motion for sanctions, attorney’s fees, or costs. Id.
      2
          In their response to Relator’s motion, Edward D. Jones and Atkins rely on
opinions from two of our sister courts which hold that a claim for arbitration survives
the filing of a nonsuit because a claim for arbitration is a claim for relief independent
of the plaintiff’s causes of action. See Quanto Int’l Co. v. Lloyd, 897 S.W .2d 482,
487 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding); see also Joe
Williamson Constr. Co. v. Ramondville ISD, 251 S.W .3d 800, 805–06 (Tex.
App.—Corpus Christi 2008, no pet.) (citing Quanto, 897 S.W .2d at 487.). W e
respectfully disagree with the reasoning expressed by our sister courts in Quanto
and Joe Williamson. See Gen. Land Office, 789 S.W .2d at 570 (holding that to
qualify as a claim for affirmative relief, a defensive pleading must allege that the

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plaintiff’s right to recover, the plaintiff has an absolute right to the nonsuit. Id.;

Newman Oil Co. v. Alkek, 614 S.W .2d 653, 655 (Tex. App.—Corpus Christi 1981,

writ ref’d n.r.e.).

       If a defendant has no pending claim for affirmative relief, a trial court’s refusal

to grant a nonsuit violates a ministerial duty. Hooks v. Fourth Court of Appeals, 808

S.W .2d 56, 59 (Tex. 1991). A nonsuit extinguishes a case or controversy from the

moment the motion is filed or when an oral motion is made in open court. See FKM

P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W .3d 619, 632–33

(Tex. 2008); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.

Shultz, 195 S.W .3d 98, 100 (Tex. 2006); Shadowbrook Apartments v. Abu-Ahmad,

783 S.W .2d 210, 211 (Tex. 1990); see also Greenberg, 640 S.W .2d at 872.

       W e hold that the trial court abused its discretion by denying Relator’s motion

to dismiss without prejudice the claims against Edward D. Jones and Atkins and

Relator’s motion to lift the stay of the Bailey claims. 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 124, 135–38 (Tex. 2004) (orig. proceeding). Accordingly, we conditionally


defendant has a cause of action, independent of the plaintiff’s claim, on which he
could recover benefits, compensation or relief, even though the plaintiff may
abandon his cause of action or fail to establish it); Moseley, 184 S.W .2d at 833–34;
Gillman v. Davidson, 934 S.W .2d 803, 804–05 (Tex. App.—Houston [1st Dist.] 1996,
orig. proceeding) (Hedges, J., dissenting); Quanto, 897 S.W .2d at 488 (Hutson-
Dunn, J., dissenting). Neither Quanto nor Joe Williamson were reviewed by our
higher court and, thus, they are persuasive but not binding on the other intermediate
appellate courts of our state. See Aguilar v. Anderson, 855 S.W .2d 799, 810–11
(Tex. App.—El Paso 1993, writ denied).

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grant Relator’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). W e are

confident that the trial court will vacate its January 26, 2010 order and render an

order granting (1) Relator’s motion to dismiss without prejudice his claims against

Edward D. Jones & Co., L.P. and W illiam B. Atkins, III and (2) Relator’s motion to

lift the stay now in effect against Real Parties in Interest, the Baileys, in accordance

with this opinion. W e instruct our clerk to issue the writ only if the trial court fails to

do so.



                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: May 19, 2010




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