Thursday, February 11, 2010

Right to Nonsuit Vindicated by Mandamus: Defendant's DJA counterclaims weren't independent claims for affirmative relief

One way to deprive a
Plaintiff of the ability to obtain a quick dismissal (without prejudice to refiling) by exercising the unilateral right to non-suit is to file a counterclaim. It's routinely done in divorce actions. But it does not always work, as seen in a civil case decided by the 14th Court of Appeals today. Defensive arguments cannot be dressed up as counterclaims under the Declaratory Judgments Act because they do not qualify as independent claims for affirmative relief. Finding that the trial court judge abused his discretion in denying the Plaintiff's attempted nonsuit under such circumstances, the appellate panel grants mandamus relief and orders the trial court to dismiss the suit, including the defendant's phoney counterclaims for declaratory relief.

In Re John D. Hanby (Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(per curiam) (declaratory judgment counterclaims that mirrored plaintiff's causes of action were not independent claims that could survive nonsuit by plaintiff) (mandamus granted to vindicate plaintiff's right to nonsuit)


Hanby filed a notice of nonsuit dismissing the entire lawsuit. See Tex. R. Civ. P. 162. Weatherford filed an objection and motion to strike the notice of nonsuit, claiming it has sought relief that is independent of the relief sought by Hanby. The trial court granted Weatherford’s objection and motion to strike. The trial court found that “Weathford has sought relief that is independent of the relief sought by Plaintiff Hanby,” but did not specify the independent relief.

The granting of a nonsuit is a ministerial act by the court. See Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990). Accordingly, a party is entitled to mandamus relief if the trial court erroneously refuses to grant a nonsuit and dismiss the case. See BHP Petroleum Co,. Inc. v. Millard, 800 S.W.2d 838, 840, n.7 (Tex. 1990).

“The plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief.” Id. at 841 (original emphasis). A defensive pleading must allege the defendant has an independent cause of action on which he could recover to qualify as a claim for affirmative relief. Id. at 841. Restating defenses as a claim for declaratory judgment does not deprive the plaintiff as his right to the nonsuit. Id. Denials of the plaintiff’s cause of action do not suffice. Id. The allegations pleaded in the defendant’s counterclaim must aver facts upon which affirmative relief could be granted. Id.

Weatherford contends that its counterclaims exceed the scope of Hanby’s suit by seeking declarations that (1) Weatherford had no obligation to exercise the license option or negotiate a license; (2) Weatherford owned all intellectual property at issue; and (3) Hanby failed to cooperate with preparation of a patent application. Weatherford does not argue that any of its other claims for declaratory relief are independent of the relief sought by Hanby.

We conclude that the declaratory relief sought by Weatherford does not exceed the scope of Hanby’s suit. A declaration that Weatherford had no obligation to exercise the option for or negotiate a license with Hanby would establish that Weatherford did not breach the contract as alleged by Hanby. Accordingly, the counterclaims for license-related declarations are merely defenses to Hanby’s breach of contract claim. “Restating a defense in the form of a request for a declaratory judgment does not defeat a plaintiff’s claim to a nonsuit.” Digital Imaging Assoc., Inc. v. State, 176 S.W.3d 851, 854 (Tex. App. – Houston [1st Dist.] 2005, no pet.). Therefore, Weatherford’s second and third counterclaims are not independent claims for affirmative relief.

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A declaratory judgment action is not available to settle disputes already pending before a court. See BHP Petroleum Co., 800 S.W.2d at 841-42. Weatherford’s counterclaims do not aver any facts upon which affirmative relief could be granted. See Digital Imaging Assoc., 176 S.W.3d at 855. Because the counterclaims asserted by Weatherford already are encompassed by Hanby’s original suit, the trial court abused its discretion in refusing to nonsuit the entire case.

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For these reasons, we conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its order of October 9, 2009 granting Weatherford’s objection and motion to strike Hanby’s notice of nonsuit. We direct the trial court to sign an order dismissing the underlying lawsuit. The writ will issue only if the trial court fails to act in accordance with this opinion.

Before Justices Brock Yates, Anderson and Boyce
14-09-00896-CV In Re John D. Hanby
Appeal from 270th District Court of Harris County
Trial Court Judge:
Brent Gamble

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