Can You Moot An Appeal By Nonsuit?

Q: Can a plaintiff voluntarily nonsuit its case and thereby prevent an appeal? A: It depends. A plaintiff has an absolute right to nonsuit a claim before resting its case in chief, but a nonsuit cannot prejudice the right of an adverse party to be heard on a pending claim for affirmative relief. A motion for sanctions is a claim for affirmative relief that survives a nonsuit if a nonsuit would defeat the purpose of sanctions. So, for example, a sanction excluding witnesses for failure to supplement discovery does not survive nonsuit because its purpose is fully served by protecting the fairness of trial. But a sanction for filing a frivolous lawsuit does survive nonsuit. The issue was recently considered by the Texas Supreme Court in CTL/Thompson Texas, LLC v. Starwood Homeowner's Ass'n, 56 Tex, S.Ct.J. 244 (Jan. 25, 2013). A malpractice claim against an engineer must be accompanied by an affidavit attesting to the claim's merit. Starwood sued CTL and attached such an affidavit to its petition. CTL moved to dismiss because the affidavit was deficient. The trial court denied CTL's motion. CTL took an interlocutory appeal. But before the appeal could be decided, Starwood nonsuited. The Court of Appeals held that the nonsuit mooted the appeal. CTL sought review in the Supreme Court. The Court began...