David E. Johnson v. National Indemnity Company
14-15-00197-CV
| Tex. App. | Nov 17, 2016Background
- David E. Johnson filed suit including claims against National Indemnity Company; the trial court initially dismissed National Indemnity without prejudice and later severed Johnson’s claims against National Indemnity into a separate cause (CV28790A).
- Johnson filed a notice of appeal; the prematurely filed notice was deemed effective when the severance made the interlocutory order final.
- Johnson then filed a notice of nonsuit with prejudice as to all claims and causes of action against National Indemnity; the trial court signed an order dismissing those claims with prejudice.
- Because Johnson nonsuited his claims, no justiciable controversy remained between the parties on those claims.
- National Indemnity moved for appellate damages under Texas Rule of Appellate Procedure 45 for a frivolous appeal.
- The Fourteenth Court of Appeals granted rehearing, withdrew its prior opinion, dismissed the appeal for lack of jurisdiction as moot, and denied National Indemnity’s Rule 45 motion for damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal remains justiciable after plaintiff nonsuits claims with prejudice | Johnson implicitly argued appeal should proceed (by filing notice of appeal) | National Indemnity argued nonsuit eliminated live controversy, rendering appeal moot | Appeal dismissed for want of jurisdiction because nonsuit with prejudice removed a justiciable controversy |
| Effect of prematurely filed notice of appeal before severance | Johnson relied on the premature notice to perfect appeal | National Indemnity relied on severance timing to argue procedural posture | Court treated premature notice as effective when severance occurred (Tex. R. App. P. 27.1(a)), but nonsuit later made the appeal moot |
| Whether nonsuit terminates case and preserves pending claims for fees | Johnson relied on nonsuit to terminate his claims | National Indemnity noted its pending claim for attorney’s fees survived initial nonsuit but later nonsuited that claim too | Nonsuit terminates the case as to plaintiff’s claims; pending fee claims survive unless also nonsuited (here National Indemnity later nonsuited fees) |
| Whether appellate damages under Tex. R. App. P. 45 are warranted | Johnson’s position: appeal not frivolous | National Indemnity: appeal frivolous; seek damages | Court exercised discretion and denied Rule 45 damages; did not find awarding damages warranted despite dismissal for lack of jurisdiction |
Key Cases Cited
- Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) (justiciability and mootness principles)
- Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (appeal is moot when court cannot affect parties’ rights)
- Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83 (Tex. 1999) (courts may not decide moot controversies or render advisory opinions)
- Glassman v. Goodfriend, 347 S.W.3d 772 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (standard for Rule 45 frivolous-appeal damages)
- Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) (nonsuit terminates case but does not affect pending affirmative claims such as attorney’s fees)