Affirmed and Majority and Concurring Opinions filed July 25, 2019.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-17-00766-CV

              F. DON LACY AND HOMES AND MORE, Appellants
                                               V.
                             LUIS A. CASTILLO, Appellee

                       On Appeal from the 410th District Court
                             Montgomery County, Texas
                       Trial Court Cause No. 16-05-06328-CV

                         MAJORITY OPINION


       Appellants, F. Don Lacy and Homes and More, appeal the trial court’s order
denying their Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice. We
affirm.1


       1
          This appeal was transferred to the Fourteenth Court of Appeals from the Ninth Court of
Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to another,
the transferee court must decide the case in accordance with the precedent of the transferor court
under the principles of stare decisis if the transferee court’s decision otherwise would have been
                                        BACKGROUND

       Appellee Luis A. Castillo bought a mobile home from Homes and More in
November 2014. Appellee filed suit against Appellants, Homes and More, and its
general partner and representative, F. Don Lacy, in May 2016.

       Appellee asserted claims against Appellants for breach of contract, Deceptive
Trade Practices Act violations, common law fraud, fraud in a real estate transaction,
and negligent misrepresentation. Appellee alleged that, at the time of the sale, the
mobile home “had purportedly had a renovation, including a roof repair, replacement
of significant portions of the floors, painting of the home’s interior and exterior,
ceiling repair, replacement of a water heater and appliances, and the replacement of
the septic system.” Appellee also alleged that (1) within a month of moving in, “a
rain storm caused further roof leaks which have been ongoing since”; (2) “[i]n some
portions of the home, prior to [Appellee]’s occupancy, the particle board flooring
had been wet and in part fallen through exposing the interior of the home to the
outdoors”; (3) “[a] hole in the master bedroom floor which had been concealed by
wall cabinets that had been removed by [Appellee] had not been repaired”; (4) to
induce Appellee to buy the home, Lacy “made promises to make the extensive
repairs necessary to make the home habitable in a good and workmanlike manner
prior to [Appellee] moving into the home”; and (5) “[a]lthough [Lacy] has made
some effort on two occasions to make promised repairs, the repairs that were made
have been totally inadequate and . . . [t]he roof continues to leak on virtually the
entire perimeter, ceilings have collapsed into the home, floors have collapsed leaving
gaping openings onto the ground below.”

       Appellants filed an original and amended answer, generally denying


inconsistent with the precedent of the transferor court. See Tex. R. App. P. 41.3.

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Appellee’s allegations and asserting a claim for attorney’s fees under Texas Business
and Commerce Code section 17.50(c). Appellants filed a summary judgment motion
on May 24, 2017, and Appellee filed a response to Appellants’ summary judgment
motion on June 23, 2017. Appellee also filed “Plaintiff’s Motion for Special
Exceptions to Defendants’ Motion for Summary Judgment, Plaintiff’s Objections to
Defendants’ Summary Judgment Evidence & Motion to Strike; and Plaintiff’s
Motion for Leave to Amend Pleadings” on June 28, 2017.

      Appellee filed a notice of nonsuit on June 30, 2017. The trial court signed an
order granting the nonsuit and dismissing the case without prejudice on July 3, 2017.
Appellants filed a Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice
on July 21, 2017. Appellee filed a response a few days later. The trial court held a
hearing on Appellants’ motion and signed an order denying the motion on September
5, 2017. Appellants filed a notice of appeal on September 11, 2017.

      This Court subsequently issued a letter informing the parties the order being
appealed is not a final, appealable order and that dismissal for want of jurisdiction
was being considered. Appellants filed a response acknowledging they had an
outstanding claim for attorney’s fees against Appellee. Appellants stated: “On April
28, 2019, in an effort to make the order appealed from final, Appellants filed a notice
of non-suit regarding their request for attorney’s fees.” They further stated they filed
a request for a supplemental clerk’s record to include their notice for nonsuit, and
that “[t]hese filings should resolve the issue of finality.”

      The supplemental clerk’s record was filed in this Court; it shows Appellants
nonsuited their claim for attorney’s fees without prejudice on April 29, 2019, and
the trial court signed an order granting the nonsuit on May 8, 2019. Following the
nonsuit of Appellants’ claim for attorney’s fees and there being no other outstanding
claims before the court, the trial court’s order denying Appellants’ Motion to Declare

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Plaintiff’s Nonsuit a Dismissal with Prejudice is a final, appealable order.

                                          ANALYSIS

I.     Standing

       Before we analyze Appellants’ arguments, we address Appellee’s contention
that Appellants “lack standing to file an appeal.” Appellee argues Appellants lack
standing to appeal the trial court’s July 3, 2017 order granting his nonsuit because
(1) Appellants had “no outstanding claim for affirmative relief . . . on file with the
court at the time of the nonsuit” and the nonsuit “render[ed] the merits of the
nonsuited case moot” so there is nothing for an appellate court to review; and (2)
Appellants’ Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice was
filed eighteen days after Appellee’s nonsuit was granted and was “too late to be
considered by the trial court.”

       Appellee’s contentions fail for several reasons. First, Appellants do not
challenge the trial court’s July 3, 2017 order granting Appellee’s nonsuit; instead,
Appellants appeal the trial court’s September 5, 2017 order denying their Motion to
Declare Plaintiff’s Nonsuit a Dismissal with Prejudice. Appellee does not argue
Appellants lack standing to challenge the order denying their Motion to Declare
Plaintiff’s Nonsuit a Dismissal with Prejudice.

       Second, Appellants’ claim for attorney’s fees under Texas Business and
Commerce Code section 17.50(c) was “an outstanding claim for affirmative relief”2
and it was “on file with the court at the time of the nonsuit.” In fact, Appellants


       2
         A claim for attorney’s fees under Texas Business and Commerce Code section 17.50(c)
is an independent claim for affirmative relief. See Marsh v. United Servs. Auto. Assoc., No. 05-
17-00338-CV, 2017 WL 2590742, at *1 (Tex. App.—Dallas June 15, 2017, no pet.) (mem. op.);
Yuen v. Gerson, 342 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see
also Klein v. Dooley, 949 S.W.2d 307, 307 (Tex. 1997) (per curiam).

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nonsuited their attorney’s fees claim only recently on April 29, 2019.

      Third, there is no authority to support Appellee’s assertion that Appellants’
Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice was filed “too late
to be considered by the trial court.” To the contrary, with Appellants’ claim for
attorney’s fees still before the trial court, the trial court’s July 3, 2017 order granting
Appellee’s nonsuit was not a final order and the trial court had plenary power to
consider Appellants’ motion. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84
(Tex. 1993) (per curiam) (“A trial court has plenary power over its judgment until it
becomes final. The trial court also retains continuing control over interlocutory
orders and has the power to set those orders aside any time before a final judgment
is entered.”); Callaway v. Martin, No. 02-16-00181-CV, 2017 WL 2290160, at *3
n.3 (Tex. App.—Fort Worth May 25, 2017, no pet.) (mem. op.) (“A trial court has
plenary power — power that is full, entire, complete, absolute, perfect, and
unqualified — over, and therefore the jurisdiction and authority to reconsider, not
only its judgment but also its interlocutory orders until thirty days after the date a
final judgment is signed or, if a motion for new trial or its equivalent is filed, until
thirty days after the motion is overruled by signed, written order or operation of law,
whichever first occurs.”); Flagstar Bank, FSB v. Walker, 451 S.W.3d 490, 504 (Tex.
App.—Dallas 2014, no pet.) (“[A] trial court has the inherent right to change or
modify any interlocutory order or judgment until the judgment on the merits of the
case becomes final.”).

      Accordingly, we reject Appellee’s contention that Appellants “lack standing
to file an appeal.”

II.   Unfavorable Ruling

      We now turn to Appellants’ argument that the trial court erroneously denied
their “motion to declare [Appellee]’s notice of nonsuit without prejudice to be a
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notice of nonsuit with prejudice” because “the record shows [Appellee] filed the
nonsuit without prejudice to avoid an unfavorable ruling on the merits.”3

       Whether a party nonsuited his claims to avoid an unfavorable ruling is a
question of fact we review for an abuse of discretion. N. Star Water Logic, LLC v.
Ecolotron, Inc., 486 S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.] 2016, no
pet.); Referente v. City View Courtyard, L.P., 477 S.W.3d 882, 885-86 (Tex. App.—
Houston [1st Dist.] 2015, no pet.). Several factors may support an inference that a
plaintiff has nonsuited in order to avoid an unfavorable ruling: (1) a plaintiff’s
nonsuit after a defendant files a motion for summary judgment; (2) a plaintiff’s
unexcused failure to respond to requests for admission or other discovery that could
support an adverse judgment; (3) a plaintiff’s failure to timely identify experts or
other critical witnesses; and (4) the existence of other procedural obstacles that could
defeat the plaintiff’s claim, such as an inability to join necessary parties. Epps v.
Fowler, 351 S.W.3d 862, 870-71 (Tex. 2011); N. Star Water Logic, LLC, 486

       3
          As a preliminary matter, Appellants argue in their brief that the trial court had plenary
power to rule on their Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice because
their motion “seeks a substantive change in the existing final order thereby qualifying the motion
to re-designate as a jurisdiction-extending motion to modify under 329b(g).” Although not for the
reasons Appellants state, we agree that the trial court had plenary power to rule on Appellants’
motion. As we already discussed, Appellants’ attorney’s fees claim was still before the trial court,
and the trial court’s order granting Appellee’s nonsuit without prejudice was an interlocutory
order. There was no final order until Appellants’ attorney’s fees claim was nonsuited. The trial
court had plenary power to sign the order denying Appellants’ Motion to Declare Plaintiff’s
Nonsuit a Dismissal with Prejudice. See Fruehauf Corp., 848 S.W.2d at 84 (“A trial court has
plenary power over its judgment until it becomes final. The trial court also retains continuing
control over interlocutory orders and has the power to set those orders aside any time before a final
judgment is entered.”); Callaway, 2017 WL 2290160, at *3 n.3 (“A trial court has plenary power
— power that is full, entire, complete, absolute, perfect, and unqualified — over, and therefore the
jurisdiction and authority to reconsider, not only its judgment but also its interlocutory orders until
thirty days after the date a final judgment is signed or, if a motion for new trial or its equivalent is
filed, until thirty days after the motion is overruled by signed, written order or operation of law,
whichever first occurs.”); Flagstar Bank, FSB, 451 S.W.3d at 504 (“[A] trial court has the inherent
right to change or modify any interlocutory order or judgment until the judgment on the merits of
the case becomes final.”).

                                                   6
S.W.3d at 108; Referente, 477 S.W.3d at 886.

      Appellants contend the record before us shows Appellee nonsuited his claims
without prejudice to avoid an unfavorable ruling because (1) Appellee timely filed a
response to Appellants’ summary judgment motion but failed to include
controverting evidence; (2) “Lacy’s affidavit refutes the elements of all of the causes
of action alleged, and therefore, the only way for [Appellee] to overcome summary
judgment would have been to file sworn testimony controverting Lacy’s affidavit”;
(3) Appellee “untimely filed a combined special exception to the motion for
summary judgment, an objection to the evidence supporting the motion for summary
judgment, and a request for leave to amend his petition to overcome the motion for
summary judgment” but only requested a hearing on Appellants’ summary judgment
motion and not on his combined motion; (4) Appellee failed to designate experts
“for the type of damages alleged in his pleadings” so he “could not have proven the
damages at trial”; and (5) Appellee intended to refile the case at a later time.

      In the trial court, Appellants argued their Motion to Declare Plaintiff’s
Nonsuit a Dismissal with Prejudice should be granted because Appellee failed to
submit any summary judgment evidence and failed to timely designate an expert to
testify as to the reasonable and necessary cost to repair his mobile home. In his
response, Appellee countered he did not nonsuit his claims to avoid an unfavorable
ruling. He stated Appellants incorrectly asserted he failed to provide evidence in
support of his summary judgment response and claimed Appellants’ evidence would
not have “substantiated a summary judgment.” Appellee asserted that Appellants
“even resorted to filing evidence that was tampered with in order to continue to
mislead this Court;” Appellee asserted that Appellants’ summary judgment exhibit
E was tampered with and attached a “true and correct copy” of exhibit E to his
response. Appellee also contended Lacy’s affidavit provided false information in

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that Lacy claimed not having any knowledge of Appellee’s “complaints about the
mobile home” or any defects affecting habitability when a February 23, 2015 letter
from Lacy to Appellee showed that Lacy and Appellee had several conversations
and meetings “within the sixty-day (60) warranty period at issue in the underlying
suit” about what repairs needed to be made to the mobile home. Appellee attached
the letter as an exhibit to his response.

      Additionally, the trial court heard the parties’ arguments at the hearing on
Appellants’ Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice.
Appellants’ repeated their contention that the trial court should grant their motion
because Appellee filed his nonsuit immediately after Appellants filed their summary
judgment motion, he failed to submit any summary judgment evidence, and he failed
to timely designate an expert on damages. Appellee responded, among others, as
follows:

            “We certainly did not — we were not concerned with an adverse
              judgment coming out of the, you know, summary judgment motion.
              Again, in fact, especially when defendant himself has introduced
              tampered evidence within his summary judgment evidence . . . . There
              were many bad acts that were discovered during the investigation of
              this case.”

            “In fact, I believe that many other causes of action were discovered
              during the investigation, and that was one of the reasons why we
              needed to take a step back.”

            “The parties didn’t even mediate.”

            “We did file a full response to her motion for summary judgment and,
              also, filed a response to this motion today.”

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      Appellee also insisted he attached “a lot of exhibits” to his summary judgment
response. The trial court told the parties it would not consider or “evaluat[e] the
merits” of the summary judgment motion or response in ruling on Appellants’
Motion to Declare Plaintiff’s Nonsuit a Dismissal with Prejudice. Nonetheless, the
trial court asked Appellee: “out of curiosity, . . . do you stand on your response to
summary judgment as is?” Appellee responded: “I would like the opportunity — if
there is an issue with exhibits, my copy actually has everything attached to it. I
would want the opportunity to ensure that if there was some sort of technical problem
with the exhibits, you know, available — being available to see. Assuming that I
could get all of exhibits in, I would certainly stand on my response to the motion for
summary judgment.” In closing, Appellee assured the trial court “there were
certainly solid, you know legal strategic reasons” to file a nonsuit a week after filing
his summary judgment response.

      Considering the different factors outlined above and the record before us, we
conclude the trial court did not abuse its discretion in denying their motion and
concluding Appellee did not nonsuit his claims to avoid an unfavorable ruling.

      Here, Appellee timely responded to Appellants’ requests for admissions and
other discovery. See Epps, 351 S.W.3d at 871. The record does not reveal, and
Appellants have not pointed to, any procedural obstacles that could defeat
Appellee’s claims, such as an inability to join necessary parties. See id.

      Although Appellee nonsuited his claims after Appellants filed a summary
judgment motion, “the timing of a plaintiff’s nonsuit, following a defendant’s
dispositive motion, does not in itself support an inference that the nonsuit was taken
to avoid an unfavorable ruling.” Miramar Dev. Corp. v. Sisk, No. 04-13-00777-CV,
2014 WL 1614290, at *6 (Tex. App.—San Antonio Apr. 23, 2014, pet. denied)
(mem. op.). Further, Appellee did not just nonsuit his claims shortly after Appellants

                                           9
filed their summary judgment motion; instead, he filed a substantive response.
Appellee insisted he attached evidence to his summary judgment response and
questioned whether “there was some sort of technical problem with the exhibits.”
Appellee also attached evidence to his response to Appellants’ Motion to Declare
Plaintiff’s Nonsuit a Dismissal with Prejudice for the trial court to consider; the
evidence controverted at least some of Appellants’ summary judgment evidence
(spec. the assertions in Lacy’s affidavit).

      We disagree with Appellants that Appellee “untimely filed a combined special
exception to the motion for summary judgment, an objection to the evidence
supporting the motion for summary judgment, and a request for leave to amend his
petition to overcome the motion for summary judgment.”            To support their
contention, Appellants argue Appellee’s combined motion was untimely because
Texas Rule of Civil Procedure 63 requires pleadings to be amended seven days
before a summary judgment motion is heard. However, Appellee did not amend his
pleadings; rather, he requested leave to amend in the combined motion, and Rule 63
does not contain a requirement that a request for leave be filed seven days before a
summary judgment motion is heard. See Tex. R. Civ. P. 63.

      Moreover, Appellee also asked the trial court to grant him leave to amend his
pleadings in his summary judgment response, which he filed more than seven days
before the summary judgment hearing. Further, Appellee’s arguments relating to
special exceptions and objections to Appellants’ summary judgment evidence in his
combined motion are similar to the arguments Appellee made in his summary
judgment response. Therefore, any failure by Appellee to “not set his combined
motion for submission or hearing” and to only request a hearing on the summary
judgment motion seems insignificant.

      Appellants claim Appellee’s failure to designate experts “for the type of

                                              10
damages alleged in his pleadings” would have prevented Appellee from proving
damages at trial and thus shows he nonsuited his claims to avoid an unfavorable
ruling. However, in the trial court, Appellants only argued Appellee failed to
designate an expert to testify as to the reasonable and necessary cost of roof and
other mobile home repairs. Appellants did not provide the trial court with any
argument or authority that expert testimony was required for Appellee to prove other
pleaded damages besides the costs of repairs damages, such as damages for out-of-
pocket expenses, cost of replacement, diminished or reduced market value, and loss
of use.

         Finally, we reject Appellants’ contention that Appellee’s stated intent to refile
his case at a later time shows he filed a nonsuit to avoid an unfavorable ruling.
Appellants cite no authority for their contention; and there can be legitimate and
strategic reasons for why a plaintiff might nonsuit and then refile his case that are
unrelated to wanting to avoid an unfavorable result. See Miramar Dev. Corp., 2014
WL 1614290, at *4 (“For instance, a plaintiff who nonsuits only after ‘discovery
reveals previously unknown flaws in the plaintiff’s claims’ likely has not done so to
avoid an unfavorable ruling on the merits. Rather, the decision ‘may well reflect a
legitimate litigation strategy that ‘reveals nothing about the merits of a plaintiff’s
case . . . .’’”) (quoting Epps, 351 S.W.3d at 868) (quoting Dean v. Riser, 240 F.3d
505, 510 (5th Cir. 2001)).

         Based on the record before us and considering the trial court was free to
believe Appellee’s testimony, we cannot conclude the trial court abused its
discretion in determining Appellee did not nonsuit his claims to avoid an unfavorable
ruling and denying Appellants’ motion. See N. Star Water Logic, LLC, 486 S.W.3d
at 108-09; Referente, 477 S.W.3d at 887-88. Accordingly, we overrule Appellants’
issue.

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                                   CONCLUSION

      We affirm the trial court’s order denying Appellants’ Motion to Declare
Plaintiff’s Nonsuit a Dismissal with Prejudice.




                                      /s/     Meagan Hassan
                                              Justice



Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan (Frost, C.J.,
concurring).




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