Notice of Nonsuit – An Order is Necessary

Although a Motion for Nonsuit or a Notice of Nonsuit is effective immediately upon filing, there must still be an order formally dismissing the case.  Texas Rule of Civil Procedure 162 reads as follows:

At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21 a on any party who has answered or has been served with process without necessity of court order. Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk.  A dismissal under this rule shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.

The phrase “without necessity of court order” does not mean that an order formally dismissing the case is not necessary.  The Supreme Court of Texas sets forth a particularly good reason why an order is necessary:

The nonsuit extinguishes a case or controversy from the moment the motion is filed or an oral motion is made in open court; the only requirement is the mere filing of the motion with the clerk of the court.[1]

However, the signing of an order dismissing a case, not the filing of a notice of nonsuit, is the starting point for determining when a trial court’s plenary power expires. 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.[2]

An order is necessary in order to establish appellate deadlines.  In addition, a deadline needs to be established for the court’s plenary powers in light of the balance of Rule 162, which specifically allows the trial court to assess sanctions, attorneys’ fees, and costs after the nonsuit is taken.

The necessity of an order is further reinforced when taking into consideration bogus counterclaims for declaratory relief.  In some cases, a defendant may have good reason to dispute a nonsuit, especially if res judicata may prevent future lawsuits.  In such instances, although a nonsuit has been filed, the trial court will need to determine whether a counterclaim exists that prevents the dismissal of the case as a whole.[3]

If you have anything to add to the topic, please leave a comment in the section below.

[1] Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006).

[2] In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997).

[3] See BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990).

Decoding Chapter 140 of the CPRC


Chapter 140 of the Texas Civil Practice & Remedies Code is intended to limit the subrogation rights of an injured person’s health insurance provider.  When this statute was first enacted in 2014, an esteemed personal injury attorney told me that the new law was simple, “Everyone gets a third of the gross settlement.  The insurance company gets a third, the attorney gets a third, and the client gets a third.”  That certainly sounded simple enough.  It was a couple of months later, when applying the new statute to one of my cases, that I realized it was not that simple.  In fact, the “simple” explanation only caused me to question my own analysis of the law.

            After reading Chapter 140 a dozen times and reading a handful of blogs, articles, and CLE papers, I finally realized that all of the commentators were assuming that the plaintiff’s attorney took the case on a 30% contingency.  While that is a safe assumption, Chapter 140 does not actually limit an attorney’s contingency fee to 30%.

You can review the actual wording of Chapter 140 HERE, but allow me to restate the basics in plain language:

Applicability of Chapter:

  1. Plaintiff is injured by Defendant.
  2. Plaintiff is insured by an insurance company described in the statute (there are exceptions).
  3. Insurance pays for healthcare resulting from injury.
  4. Insurance company has subrogation rights.
  5. Plaintiff obtains a recovery from Defendant (i.e., the case settles).

Calculating Insurance Company’s Portion:

  1. When Plaintiff is not represented by an attorney:
    1. Insurance company gets lesser of:
      1. 1/2 gross recovery; or
      2. Total cost of benefits paid
    2. When Plaintiff is represented by an attorney:
      1. Insurance company gets lesser of:
        1. 1/2 gross recovery, minus 1/3 of Insurance Company’s share for the attorney and minus legal expenses; or
        2. Total cost of benefits paid, minus 1/3 of Insurance Company’s share for the attorney and minus legal expenses

As stated previously, these are just the basics; there is a lot more in the statute.  However, this explanation is intended to get past the overly simplistic 1/3, 1/3, 1/3 explanation that was previously given to me.

Let’s apply this explanation to an example:

Paul Plaintiff is injured by Dan Defendant.  Paul’s insurance company pays $50,000 for his healthcare resulting from the injury and asserts its right to subrogation under Paul’s policy.  Paul hires an attorney.  Paul agrees to pay his attorney 40% of his gross recovery plus expenses.  Paul’s attorney settles Paul’s claim against Dan for $90,000.

If my friend were correct, everyone would get $30,000.  The insurance company would have to eat $20,000, and Paul’s attorney would eat $6,000 plus his expenses (let’s say $1,000).  That is incorrect.

According to the statute, the math should look like this:

Insurance company’s portion starts at 1/2 the gross recovery ($45,000).  It is then reduced by a 1/3 ($15,000), and is further reduced by Paul’s legal expenses ($1,000):  $45,000 – $15,000 – $1,000 = $29,000.  The insurance company gets $29,000 and is going to write of $21,000.

Paul’s attorney is going to get 40% of the gross recovery ($36,000), plus his expenses ($1,000), for a total of $37,000.

Paul gets $24,000.

While Paul gets less than everyone else, he is still better off than he would have been under common law, which required the insurance company be made whole.  Under the common law, Paul would have received $3,000 ($90,000 – $50,000 – $37,000 = $3,000).

What does this mean for the practicing attorney?  I think it makes smaller personal injury cases more attractive and easier to settle.  If Paul would have been forced to pay his insurance company $50,000 of the proceeds, Paul’s attorney could never have settled his case for $90,000.  As a result of Chapter 140, Paul and his attorney are happy campers and Dan Defendant’s insurance carrier is also quite pleased.

If you see a flaw in my reasoning or my math, or if you would simply like to share your thoughts, please leave a comment below.