Affirm in part; Reverse in part and Remand; Opinion Filed July 22, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01728-CV

    FP ASSET GROUP, LP F/K/A FUNDING PARTNERS, LP, Appellant
                                                 V.
       PROVIDENCE BANK D/B/A PREMIER BANK TEXAS, Appellee

                        On Appeal from the 162nd Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. DC-11-13700

                               MEMORANDUM OPINION
                           Before Justices Moseley, Francis, and Lang
                                  Opinion by Justice Moseley

       This case presents a procedural issue about when a notice of nonsuit that is mailed to the

clerk of court is filed. In a single issue, appellant argues that the trial court erred by dismissing

its counterclaim that was filed electronically on the same day that appellee mailed its notice of

nonsuit to the trial court. The background of the case and the evidence adduced below are well

known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We conclude

the trial court erred by entering its order of dismissal with prejudice, which had the effect of

dismissing appellant’s counterclaim. We affirm the trial court’s order of dismissal in part and

reverse in part. We remand the case for further proceedings.
        Appellee sued appellant for the deficiency/balanced owed after appellee foreclosed on a

property owned by appellant. The parties settled that dispute: appellant agreed to pay a sum of

money and appellee agreed to nonsuit its case with prejudice. At the time of the settlement,

appellant did not have any pending counterclaim.

        On September 5, 2012, appellant electronically filed with the court clerk a counterclaim

against appellee for damages relating to other properties that were not part of the parties’

settlement agreement. On the same day, appellee mailed a notice of nonsuit/voluntary dismissal

with prejudice to the court clerk. 1 The notice of nonsuit was filed by the clerk on September 7,

2012.

        One week later, on September 14, 2012, the trial court entered an order of dismissal with

prejudice as to all parties and claims. The trial court’s order stated: “The Court has before it

Plaintiff’s Notice of Non-Suit/Voluntary Dismissal With Prejudice. Being informed by the

parties that this matter has been settled and that the parties desire to dismiss this cause, the Court

finds that this case should be dismissed as to all parties and claims.” Appellant then filed a

motion to clarify or modify the order of dismissal, requesting the trial court modify its order to

reflect the dismissal of appellee’s claims only. At the hearing on appellant’s motion, the trial

court stated: “The Court is unable to determine who got to the courthouse first. Therefore, the

Court is maintaining the present dismissed status of this case.”

        The parties agree that the trial court must have applied rule 5 to reach the conclusion that

the case could be properly dismissed with prejudice. See TEX. R. CIV. P. 5. Rule 5 is titled

“Enlargement of Time.” It applies “[w]hen by [the rules of civil procedure] or by a notice given




        1
           Counsel for appellee represented to the trial court that the notice of nonsuit was filed on September 5,
2012, in the afternoon. For purposes of this appeal, we will accept that representation as correct.


                                                       –2–
thereunder or by order of court an act is required or allowed to be done at or within a specified

time.” Id. It further states:

                If any document is sent to the proper clerk by first-class United States mail
       . . . properly addressed and stamped and is deposited in the mail on or before the
       last day for filing same, the same, if received by the clerk not more than ten days
       tardily, shall be filed by the clerk and deemed filed in time. A legible postmark
       affixed by the United States Postal Service shall be prima facie evidence of the
       date of mailing.

       Id.

       By its terms, rule 5 allows a party to meet a filing deadline by mailing a document for

filing “on or before the last day for filing same.” Id. The plain wording of the rule shows that it

is applicable only to filings for which there is a time limitation or a deadline. Rule 5 does not

enlarge the time for filing a document unless a deadline has been imposed. See Alvarez v.

Thomas, 172 S.W.3d 298, 302 (Tex. App.—Texarkana 2005, no pet.) (citing TEX. R. CIV. P. 5;

Smith v. Tex. Dep’t of Criminal Justice—Inst. Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana

2000, pet. denied)). Instead, rule 5 allows a litigant to meet the timeliness requirement by

mailing a pleading in a timely manner rather than delivering it to the appropriate clerk’s office.

See Pediatrix Med. Servs., Inc. v. De L O, 368 S.W.3d 34, 39 (Tex. App.—El Paso 2012, no pet.)

(Rule 5 “applies to filings that contemplate a filing deadline”); Alvarez, 172 S.W.3d at 302 (Rule

5 does not apply if there is no preset deadline for filing a document).

       However, rule 162 governing dismissals and nonsuits does not impose the type of

deadline contemplated by rule 5. Rule 162 states that a plaintiff may dismiss his case, or take a

non-suit, “[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal

evidence.” TEX. R. CIV. P. 162. Further, a dismissal of the plaintiff’s claims “shall not prejudice

the right of an adverse party to be heard on a pending claim for affirmative relief.” Id.

       Because rule 162 does not have a preset deadline for filing a document, we conclude that

appellee cannot take advantage of rule 5 as a way to have its notice of nonsuit deemed filed
                                                –3–
before appellant filed its counterclaim. Appellant actually filed its counterclaim before appellee

filed its notice of nonsuit, and the trial court erred by dismissing appellant’s counterclaim when it

entered its order of dismissal. We sustain appellant’s sole issue.

       We reverse that portion of the trial court’s order dismissing appellant’s counterclaim. In

all other respects, we affirm the trial court’s order. We remand this case for further proceedings.




121728F.P05

                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE




                                                –4–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

FP ASSET GROUP, LP (F/K/A FUNDING                     On Appeal from the 162nd Judicial District
PARTNERS, LP), Appellant                              Court, Dallas County, Texas
                                                      Trial Court Cause No. DC-11-13700.
No. 05-12-01728-CV          V.                        Opinion delivered by Justice Moseley.
                                                      Justices Francis and Lang participating.
PROVIDENCE BANK D/B/A PREMIER
BANK TEXAS, Appellee

         In accordance with this Court’s opinion of this date, the trial court’s order of dismissal
with prejudice is AFFIRMED in part and REVERSED in part. We REVERSE that portion of
the trial court’s order dismissing the counterclaim asserted by appellant FP ASSET GROUP, LP
(F/K/A FUNDING PARTNERS, LP). In all other respects, the trial court’s order is
AFFIRMED. We REMAND this cause to the trial court for further proceedings.

       It is ORDERED that appellant FP ASSET GROUP, LP (F/K/A FUNDING PARTNERS,
LP) recover its costs of this appeal from appellee PROVIDENCE BANK D/B/A PREMIER
BANK TEXAS.


Judgment entered this 22nd day of July, 2014.




                                                –5–
