Nonsuit as Loss on Merits in 19-Opinion Day for Texas Supreme Court

Talk about clearing a backlog. The Supreme Court of Texas issued rulings in 19 cases a day ago, setting a record for this year if not for all time. The oldest case, City of Dallas v. Albert, No. 07-0824 (Tex. Aug. 26, 2011), started its Supreme Court journey in April 2007 — four years and four months ago. The one that most caught Blawgletter's eye dealt with a quirk of Texas procedure — the nonsuit. The Court construed a contract that entitled the "prevailing party" in a lawsuit to "reasonable attorney's fees". It held that "a defendant may be a prevailing party when a plaintiff nonsuits without prejudice if the trial court determines, on the defendant's motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits." Epps v. Fowler, No. 10-0283, slip op. at 11-12 (Tex. Aug. 26, 2011). The theory? That barring a fee award in all instances of nonsuits without prejudice "would enhance the possibility that plaintiffs who pursue frivolous claims suffer no consequences and fail to reward defendants whose efforts cause their opponents to yield the playing field." Id. at 12. The dissent urges that the rule reflects the majority's policy judgment instead of the parties' intent. Blawgletter concurs. Failing to get a good ruling on the merits because the other side nonsuits at the last moment doesn't feel like "prevailing" to us. And even if it did we think the Court should change the nonsuit rule by, well, changing it instead of saying it reads "prevailing" to mean something that few Texas lawyers would have thought it means in light of the long-standing tradition of viewing the right to nonsuit as well-nigh absolute.

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