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Date: 08-17-2022
Case Style:
Victoria Barrientez v. Raymond A. Contreras
Case Number: 03-20-00570-CV
Judge:
PER CURIAM
Before Justices Goodwin, Baker, and Smith
Court:
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
On appeal from the 419TH DISTRICT COURT OF TRAVIS COUNTY
Plaintiff's Attorney:
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Defendant's Attorney: Ms. Jessica M. Warren
Mr. Eric Nelson
Description:
Austin, Texas – Real Estate lawyer represented Appellant with suing for partition of property jointly owned.
On August 17, 2020, Victoria Barrientez sued Raymond A. Contreras for partition
of property jointly owned with Contreras and for contribution. Contreras responded with a Rule
91a motion to dismiss Barrientez’s claims as having no basis in law, see Tex. R. Civ. P. 91a,
requested attorney’s fees, see id. R. 91a.7 (providing that court may award “prevailing party on
the motion” incurred attorney fees), and set a hearing on the Rule 91a motion for October 13.
On October 8, Barrientez filed a notice of nonsuit of her claims and a proposed
order granting notice of nonsuit. See id. R. 91a.5(a) (“The court may not rule on a motion to
dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the
challenged cause of action, or the movant files a withdrawal of the motion.”). However, the
appellate record does not include a signed order granting Barrientez’s notice of nonsuit.
2
Instead, on October 14, the trial court signed an order stating, “After considering
the Defendant’s Motion to Dismiss Baseless Causes of Action under Rule 91, filed by [Contreras]
under Texas Rules of Civil Procedure 91a, and arguments of counsel, the Court orders that
[Contreras] is awarded $2,500.00 (Two Thousand Five Hundred Dollars) as reasonable and
necessary attorney’s fees and costs to be paid by [Barrientez].” Barrientez moved to set aside the
order based on her nonsuit and Rule 91a.5, but the appellate record does not include a ruling on
the motion to set aside. Barrientez then filed a notice of appeal of the October 14 order.
A plaintiff has the right to take a nonsuit before introducing all evidence other
than rebuttal evidence, see id. R. 162, and “the trial court’s dismissal order is ministerial,” Klein
v. Hernandez, 315 S.W.3d 1, 4 (Tex. 2010). However, “Appellate timetables do not run from the
date a nonsuit is filed, but rather from the date the trial court signs an order of dismissal.” In re
Bennett, 960 S.W.2d 35, 38 (Tex. 1997). Because the trial court did not sign an order granting
the nonsuit, the October 14 order is interlocutory as it did not dispose of Barrientez’s claims.
Nevertheless, we “may allow an appealed order that is not final to be modified so
as to be made final and may allow the modified order and all proceedings relating to it to be
included in a supplemental record.” Tex. R. App. P. 27.2. We therefore abate the appeal to give
Barrientez thirty days after the date of this order to take action to cure the jurisdictional defect
and to file a supplemental clerk’s record containing either a signed order granting the nonsuit or
a signed final judgment. See Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex. App.—Houston [1st
Dist.] 1999, no pet.).
Outcome: If within thirty days Barrientez does not file such supplemental clerk’s
record or a status report explaining why no such supplemental record was filed, the appeal may be dismissed for want of jurisdiction.
Plaintiff's Experts:
Defendant's Experts:
Comments: