i          i       i                                                                     i        i      i




                                   MEMORANDUM OPINION

                                           No. 04-10-00057-CV

                                  Levan Adriel Aguilar GALVAN, et al.,
                                               Appellants

                                                      v.

                       UNKNOWN HEIRS OF PEDRO LONGORIA, Deceased,
                                       Appellee

                       From the 49th Judicial District Court, Zapata County, Texas
                                          Trial Court No. 7037
                               Honorable Fred Shannon, Judge Presiding

Opinion by:        Catherine Stone, Chief Justice

Sitting:           Catherine Stone, Chief Justice
                   Karen Angelini, Justice
                   Rebecca Simmons, Justice

Delivered and Filed: June 9, 2010

REVERSED AND RENDERED

           After the trial court sua sponte granted a new trial, the trial court signed an order denying the

plaintiffs’ notice of nonsuit and dismissing the underlying cause with prejudice. We reverse the trial

court’s order and grant the nonsuit.
                                                                                                    04-10-00057-CV



                                                 BACKGROUND

         The appellants, who were the plaintiffs in the underlying lawsuit, sought a declaratory

judgment that they were heirs of Pedro Longoria who died around 1772. The defendants were

Longoria’s unknown heirs who were served by publication and posting.

         On November 20, 2009, the trial court signed a default declaratory judgment, declaring that

the appellants are direct descendants of Longoria. No attorney ad litem was appointed to represent

the unknown heirs prior to or at the default judgment hearing.

         On November 23, 2009, the trial court sua sponte decided to vacate and set aside the

judgment and to grant a new trial and signed an order to that effect. The trial court subsequently

issued orders directing the appellants to show cause why the underlying cause should not be

dismissed with prejudice for numerous reasons.

         On December 14, 2009, the appellants filed a written response to the trial court’s sua sponte

show cause orders. The appellants also filed a notice of nonsuit. On December 21, 2009, the trial

court signed an order denying the notice of nonsuit and dismissing the underlying cause with

prejudice on the following bases: (1) the petition did not present a justiciable controversy; and (2)

an order in a Starr County lawsuit, which was pending on appeal in this court, was res judicata of

the claims asserted in the petition.1

                                                   DISCUSSION

         Under Texas law, parties have an absolute right to nonsuit their own claims for relief at any

time during the litigation until they have introduced all evidence other than rebuttal evidence at trial.


         1
         … W e note that this court subsequently reversed the Starr County court’s order. See Basquez v. Unknown Heirs
of Pedro Longoria, No. 04-09-00196-CV, 2010 W L 724682 (Tex. App.— San Antonio Mar. 3, 2010, no pet.) (mem.
op).

                                                         -2-
                                                                                        04-10-00057-CV



Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex. 2008); TEX . R. CIV . P. 162. A nonsuit extinguishes

a case or controversy from the moment it is filed. Univ. of Tex. Medical Branch at Galveston v.

Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006). “The trial court generally has

no discretion to refuse to dismiss the suit, and its order doing so is ministerial.” Id. A nonsuit does

not, however, prejudice the rights of an adverse party to be heard on a pending claim for affirmative

relief or excuse the payment of costs. TEX . R. CIV . P. 162. In addition, a nonsuit has no effect on

any motion for sanctions, attorney’s fees, or other costs, pending at the time of the dismissal. Id.

        The trial court denied the appellants’ notice of nonsuit on the basis that they had introduced

all of their evidence at the default declaratory judgment hearing. Prior to the filing of the nonsuit,

however, the trial court granted a new trial and set aside the judgment. When a new trial is granted,

the case stands on the trial court’s docket the same as if no trial had occurred. In re Baylor Med. Ctr.

at Garland, 280 S.W.3d 227, 230-31 (Tex. 2008); Long John Silver’s Inc. v. Martinez, 850 S.W.2d

773, 777 (Tex. App.—San Antonio 1993, writ dism’d w.o.j.). “Thus, when the trial court grants a

motion for new trial, the court essentially wipes the slate clean and starts over.” Wilkins v. Methodist

Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). In granting the new trial in the underlying

cause, the trial court in effect nullified the prior hearing, including the presentation of evidence by

the appellants at that hearing. Accordingly, when the appellants filed their notice of nonsuit, they

had not introduced all of their evidence; therefore, the trial court had no discretion to deny their

nonsuit or to dismiss the underlying cause with prejudice. See Univ. of Tex. Med. Branch at

Galveston, 195 S.W.3d at 100 (trial court does not have discretion to dismiss suit); Fowler v. Epps,

No. 03-08-00055-CV, 2010 WL 521109, at *4 (Tex. App.—Austin Feb. 10, 2010, no pet.) (noting




                                                  -3-
                                                                                       04-10-00057-CV



dismissal with prejudice, which functions as a final determination on the merits, would be an

improper response to the filing of a nonsuit) (mem. op.).

                                          CONCLUSION

       The trial court’s order is reversed, and judgment is rendered granting appellants’ notice of

nonsuit and dismissing the underlying cause without prejudice.

                                                      Catherine Stone, Chief Justice




                                                -4-
