Edward Cox and Theresa Cox v. Franklin Micah May Vanderburg, Premier Land, LLC, and Cecilia Gutierrez De Cruz

Summary

The Texas Sixth Court of Appeals considers whether the trial court abused its discretion by dismissing the Coxes’ claims with prejudice after finding that their voluntary nonsuit was taken in bad faith. The Coxes had nonsuited and later re-added a defendant through untimely amended pleadings, then nonsuited all remaining claims shortly before trial and refiled substantially identical claims in a new action. The court affirmed the trial court’s dismissal with prejudice and its determination that the defendants were prevailing parties.

Holdings

1. A plaintiff's otherwise absolute right to nonsuit under Texas Rule of Civil Procedure 162 remains subject to sanctions, and the trial court did not abuse its discretion by finding that the Coxes nonsuited to avoid unfavorable rulings and to circumvent the court's pleading and docket-control orders.
2. Dismissal of the Coxes' claims with prejudice was a just sanction because it bore a direct relationship to the improper nonsuit and was not shown to be excessive.
3. The trial court properly declared Premier and Cedar Creek prevailing parties because the Coxes' nonsuit was found to have been taken to avoid an unfavorable ruling on the merits and was ultimately deemed to be with prejudice.
4. The Coxes waived their appellate complaint that the trial court should have imposed lesser sanctions because they did not present that complaint to the trial court.

Questions Presented

1. Whether the trial court abused its discretion by finding that the Coxes' nonsuit was taken for an improper purpose to avoid unfavorable rulings and by imposing sanctions under Chapter 10.
2. Whether dismissal of the Coxes' claims with prejudice was a just and proportionate sanction.
3. Whether Premier and Cedar Creek were prevailing parties after the Coxes nonsuited their claims.
4. Whether the Coxes preserved a complaint that the trial court should have imposed lesser sanctions.

Disposition

affirmed