Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex.

, 2010)

315 S.W.3d 860 trial, Joachim filed a "Notice of Non-Suit"

stating that he "no longer wishes to pursue his
The TRAVELERS INSURANCE claims against Defendants,"2 and therefore
COMPANY (The Automobile Insurance "gives notice to all parties that his claims
Company of Hartford Connecticut), against the same are hereby dismissed
Petitioner, without prejudice." No motions or
v. counterclaims were pending at that time.
Barry JOACHIM, Respondent. Several months later, the

No. 08-0941. [315 S.W.3d 862]

Supreme Court of Texas. trial court sent notice that if a final order was
not filed within 10 days of the notice, the
Argued February 17, 2010. court would dismiss the case for want of
prosecution. Joachim asserts he did not
Decided May 14, 2010. receive this notice. The trial court then
entered an order that the case "is hereby
Rehearing Denied August 27, 2010.
dismissed in full with prejudice for want of
prosecution." Joachim claims he did not
[315 S.W.3d 861]
receive a copy of that order either. Unaware
of the dismissal order, Joachim neither
Jeffrey B. Jones, Christopher Bradley
contested it while the court retained plenary
Slayton, Jones Flygare Brown & Wharton,
power, see TEX.R. CIV. P. 329b, nor perfected
Lubbock, for Petitioner.
an appeal.
Stace Lawrence Williams, The Stace
Joachim later refiled the same cause of
Williams Law Firm, P.C., Lubbock, for
action, and the case was assigned to a
Respondent.
different trial court. Travelers filed a motion
Justice GREEN delivered the opinion of for summary judgment based on res judicata.
the Court. The second trial court granted Travelers'
motion and ordered that Joachim take
In this procedural dispute, we must nothing by his suit. Joachim appealed that
decide whether a trial court's erroneous judgment. The court of appeals reversed,
dismissal of a suit with prejudice, following holding that a nonsuit removes a trial court's
the plaintiff's filing of a nonsuit, operates to jurisdiction to enter a dismissal with
bar a later suit because of res judicata. We prejudice. 279 S.W.3d 812, 817 (Tex.App.-
conclude that it does. Therefore, we reverse Amarillo 2008). The court of appeals
the court of appeals' judgment and order the therefore determined that the first trial
case dismissed. court's order was void, not merely voidable.
Id. at 818. Thus, it concluded that Travelers
failed to establish the defense of res judicata.
Id.
I

Barry Joachim sued his insurer, The

Travelers Insurance Company,1 alleging he II
was entitled to benefits from Travelers for
damages caused by Joachim's accident with We review a trial court's summary
an underinsured driver. On the day before judgment de novo. Provident Life & Accident
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 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex., 2010)

Ins. Co. v. Knott, 128 S.W.3d 211, 215 moot. See Villafani, 251 S.W.3d at 469 ("One
(Tex.2003). The party relying on the unique effect of a nonsuit is that it can vitiate
affirmative defense of res judicata must prove certain interlocutory orders, rendering them
(1) a prior final determination on the merits moot and unappealable."); Shultz, 195 S.W.3d
by a court of competent jurisdiction; (2) at 101 ("Although Rule 162 permits motions
identity of parties or those in privity with for costs, attorney's fees, and sanctions to
them; and (3) a second action based on the remain viable in the trial court, it does not
same claims as were or could have been
raised in the first action. Amstadt v. U.S. [315 S.W.3d 863]
Brass Corp., 919 S.W.2d 644, 652 (Tex.1996);
see TEX.R. CIV. P. 94 (identifying res judicata forestall the nonsuit's effect of rendering the
as an affirmative defense). "The judgment in merits of the case moot."); Gen. Land Office
the first suit precludes a second action by the v. OXY U.S.A., Inc., 789 S.W.2d 569, 571
parties and their privies on matters actually (Tex.1990) ("As a consequence of the trial
litigated and on causes of action or defenses court's granting the nonsuit, the temporary
arising out of the same subject matter that injunction ceased to exist and the appeal
might have been litigated in the first suit." became moot.... It was not necessary for the
Gracia v. RC Cola-7-Up Bottling Co., 667 trial court to enter such a separate order
S.W.2d 517, 519 (Tex.1984). Only the first because when the underlying action was
elementprior final determination on the dismissed, the temporary injunction
meritsis contested in this appeal. dissolved automatically.") (citation omitted).

"At any time before the plaintiff has The parties agree that the first trial
introduced all of his evidence other than court's order, which dismissed the case with
rebuttal evidence, the plaintiff may... take a prejudice, was erroneous because Joachim's
non-suit, which shall be entered in the nonsuit was without prejudice to refiling. See
minutes. Notice of the ... non-suit shall be generally TEX.R. CIV. P. 301 ("The judgment
served ... on any party who has answered or of the court shall conform to the pleadings,
who has been served with process without the nature of the case proved and the verdict,
necessity of court order." TEX.R. CIV. P. 162. if any, and shall be so framed as to give the
A party has an absolute right to file a nonsuit, party all the relief to which he may be entitled
and a trial court is without discretion to either in law or equity."). The question of
refuse an order dismissing a case because of a whether Travelers established its res judicata
nonsuit unless collateral matters remain. See defense turns on the issue of whether the trial
Villafani v. Trejo, 251 S.W.3d 466, 468-69 court's erroneous order was void, or merely
(Tex.2008); In re Bennett, 960 S.W.2d 35, 38 voidable. "A judgment is void only when it is
(Tex.1997) (per curiam); Hooks v. Fourth apparent that the court rendering judgment
Court of Appeals, 808 S.W.2d 56, 59 had no jurisdiction of the parties or property,
(Tex.1991). A nonsuit "extinguishes a case or no jurisdiction of the subject matter, no
controversy from `the moment the motion is jurisdiction to enter the particular judgment,
filed' or an oral motion is made in open court; or no capacity to act." Browning v. Prostok,
the only requirement is `the mere filing of the 165 S.W.3d 336, 346 (Tex.2005) (internal
motion with the clerk of the court.'" Univ. of quotation omitted). A void order is subject to
Tex. Med. Branch at Galveston v. Estate of collateral attack in a new lawsuit, while a
Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 voidable order must be corrected by direct
(Tex.2006) (per curiam) (quoting attack; unless successfully attacked, a
Shadowbrook Apts. v. Abu-Ahmad, 783 voidable judgment becomes final. See
S.W.2d 210, 211 (Tex. 1990) (per curiam)). It Browning v. Placke, 698 S.W.2d 362, 363
renders the merits of the nonsuited case (Tex.1985). After a nonsuit, a trial court
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 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex., 2010)

retains jurisdiction to address collateral (Tex.1990) (per curiam) ("Although a final

matters, such as motions for sanctions, even judgment
when such motions are filed after the nonsuit,
as well as jurisdiction over any remaining [315 S.W.3d 864]
counter-claims. See Scott & White Mem'l
Hosp. v. Schexnider, 940 S.W.2d 594, 596 may be erroneous or voidable, it is not void
(Tex. 1996) (per curiam) (holding that a trial and thus subject to collateral attack if the
court has authority to decide a motion for court had jurisdiction of the parties and the
sanctions while it retains plenary power, even subject matter."). Accordingly, we conclude
after a nonsuit is taken); TEX.R. CIV. P. 162 that the trial court's order in this case was
("Any dismissal pursuant to this rule shall not voidable, not void. Therefore, the order was
prejudice the right of an adverse party to be subject only to direct attack to avoid
heard on a pending claim for affirmative relief becoming a final judgment. See Placke, 698
or excuse the payment of all costs taxed by the S.W.2d at 363.
clerk."). We must determine, then, whether
filing a nonsuit strips a trial court of The court of appeals held that because a
jurisdiction to dismiss a case with prejudice. nonsuit renders the merits of the case moot,
the second trial court lacked jurisdiction to
We have held that an order dismissing a render judgment for lack of justiciability. 279
case with prejudice for want of prosecution, S.W.3d at 816-17. The court stated that a
though mistaken, is merely voidable and must nonsuit "returns the litigants to the positions
be attacked directly in order to prevent the they occupied before the plaintiff invoked the
order from becoming final for purposes of court's jurisdiction." Id. at 816.3 This
establishing res judicata. See El Paso Pipe & conclusion is in tension with the trial court's
Supply Co. v. Mountain States Leasing, Inc., authority to address proper matters after a
617 S.W.2d 189, 190 (Tex.1981) (per curiam). nonsuit is entered, as the court of appeals
That the order happens to follow a nonsuit recognized. See id. at 818 (observing that the
does not make it void. Many litigants use a trial court "retained the power to address the
nonsuit as a procedural device to effectuate a `collateral' matters listed in Rule 162");
settlement agreement, intentionally TEX.R. Civ. P. 162 (allowing the trial court to
dismissing claims with prejudice. Indeed, in consider motions for sanctions, attorney's
this case Joachim had taken a nonsuit with fees, or other costs "pending at the time of
the first trial court "dismissing with prejudice dismissal"). In Scott & White, we explored
all of Plaintiff's claims" against another this tension further, considering
defendant with whom Joachim had settled, circumstances beyond those contemplated by
before he filed the nonsuit as to Travelers. Rule 162. See 940 S.W.2d at 596. We held
Just as the trial court has jurisdiction to enter that in the case of collateral motions, such as
a dismissal with prejudice upon the filing of a a motion for sanctions, a trial court may
nonsuit to effectuate a settlement agreement, consider them even if they are filed after a
it must also have jurisdiction to enter a nonsuit. See id.4 In Scott & White, a medical
dismissal with prejudice in other nonsuit malpractice case, only some defendants were
situations. See Wilmer-Hutchins Indep. Sch. dismissed by nonsuit. See id. at 595. After the
Dist. v. Sullivan, 51 S.W.3d 293, 294-95 trial court granted summary judgment for the
(Tex.2001) (per curiam) ("A party cannot by remaining defendants, all of the defendants
his own conduct confer jurisdiction on a court including the nonsuited defendantsfiled a
when none exists otherwise."). Such an order, motion for sanctions under Texas Rule of
even if erroneous, is not necessarily void. See Civil Procedure 13, alleging that the suit
Berry v. Berry, 786 S.W.2d 672, 673 against them was groundless and brought in
bad faith. See id. The trial court's authority to
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 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex., 2010)

consider such a motion was proper in part In Gomez, we said: "Subject matter
because it advanced well-recognized policy jurisdiction requires that the party bringing
goals. See id. at 596-97 ("Courts impose the suit have standing, that there be a live
sanctions against parties filing frivolous controversy between the parties, and that the
claims to deter similar conduct in the future case be justiciable." 891 S.W.2d at 245.
and to compensate the aggrieved party by Similarly, in Patterson, we observed that "the
reimbursing the costs incurred in responding constitutional roots of justiciability doctrines
to baseless pleadings. Rule 162 would such as ripeness, as well as standing and
frustrate these purposes if it allowed a party mootness, lie in the prohibition on advisory
to escape sanctions by simply nonsuiting opinions, which in turn stems from the
separation of powers doctrine." 971 S.W.2d at
[315 S.W.3d 865] 442. However, neither case addressed
mootness in general, or a nonsuit in
the aggrieved party."). Here, too, the power to particular. Gomez addressed a case that
dismiss a case with prejudice after a nonsuit lacked justiciability from the outset, as certain
advances an express policy, as given by the plaintiffs sought to compel free legal services
Legislature: to hold a dismissal with prejudice from the State Bar of Texas, "an entity that is
void because it was entered after a nonsuit powerless, acting alone, to implement" a
would undercut the finality of many cases mandatory pro bono program for Texas
that were dismissed with prejudice after a lawyers. 891 S.W.2d at 245 ("For a
nonsuit was filed because the parties settled. controversy to be justiciable, there must be a
See TEX. CIV. PRAC. & REM.CODE real controversy between the parties that will
154.002 ("It is the policy of this state to be actually resolved by the judicial relief
encourage the peaceable resolution of sought."). Likewise, Patterson addressed a
disputes ... and the early settlement of matter that was unripe, as it was still unclear
pending litigation through voluntary whether Planned Parenthood would be
settlement procedures."). deprived of federal funds if the Texas
Department of Health implemented a state
In addition, the court of appeals' law that required parental consent to
conclusion that the dismissal order was void dispense prescription drugs to minors. 971
confuses the subtle differences between S.W.2d at 444 ("Without knowing what the
mootness and related justiciability concepts, federal government will do, Planned
such as ripeness and standing. The court of Parenthood cannot show a conflict between
appeals cited State Bar of Texas v. Gomez, federal and state demands or that the state's
891 S.W.2d 243, 245 (Tex.1994), for the proposed action will cause it any injury.").
proposition that jurisdiction depends on Unlike those cases, which lacked justiciability
justiciability. 279 S.W.3d at 816. It cited from the moment of pleading, here the
Patterson v. Planned Parenthood of Houston, nonsuit extinguished what was initially a live
971 S.W.2d 439, 442 (Tex.1998), for the controversy, a justiciable case between proper
proposition that a moot case lacks parties. See Shultz, 195 S.W.3d at 100; accord
justiciability. 279 S.W.3d at 816. Thus, it Williams v. Lara, 52 S.W.3d 171, 184 (Tex.
concluded that a court lacks jurisdiction over 2000) ("If a case becomes moot, the parties
a nonsuited case, since the merits of such a lose standing to maintain their claims.").
case are moot. 279 S.W.3d at 816-17. When a court initially has jurisdiction to
However, by concluding that a nonsuit grant relief to resolve a live controversy
deprives the court of jurisdiction to dismiss a between parties with proper standing, a
case with prejudice, the court of appeals party's filing a nonsuitwhile rendering the
applied these cases too broadly. merits of the case mootcannot deprive the
court of its entire jurisdiction. Rather, the
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 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex., 2010)

court must retain certain limited authority to dismissed for want of prosecution). Had the
dispose of the case following a nonsuit, and trial court set aside the judgment, either by
today we hold that this includes the necessary timely motion for new trial or by bill of
authority to enter a dismissal with prejudice. review, Joachim's underlying claim would no
longer be barred by res judicata, as there
The question remains whether the trial would no longer be a final determination on
court's voidable order of dismissal is the merits.7 Yet, because the first trial court's
sufficient order stands, Joachim's claim is barred.
Accordingly, we reverse the court of appeals'
[315 S.W.3d 866] judgment and render judgment dismissing
Joachim's cause of action with prejudice
to establish Travelers' affirmative defense of based on Travelers' defense of res judicata.
res judicata. We conclude it is. Because
Joachim failed to attack the trial court's order
directly, it became a final judgment for
purposes of res judicata.5 Joachim alleges that III
he never received notice of the judgment
dismissing his cause of action with prejudice. We hold that because a trial court has
Certainly, if this is true, the lack of notice jurisdiction to enter orders dismissing a case
would not bind him to the effects of the first with prejudice upon filing of a nonsuit, the
trial court's erroneous judgment without trial court's order here was voidable, not void,
some potential remedy.6 However, there is a and subject only to direct attack. Because
remedy: an equitable bill of review is a direct Joachim failed to attack the trial court's order
attack on a judgment. See TEX.R. CIV. P. directly, it became a final determination on
329b(f) (providing that a judgment may be the merits for purposes of res judicata.
set aside by the trial court by bill of review for Therefore, we reverse the court of appeals'
sufficient cause); McEwen v. Harrison, 162 judgment and render judgment dismissing
Tex. 125, 345 S.W.2d 706, 709 (1961) ("A bill the case with prejudice.
of review filed in the proper court and against
proper parties is one authorized method of
making a direct attack on a judgment.");
Baker v. Goldsmith, 582 S.W.2d 404, 406 --------
(Tex.1979) ("A bill of review is an
independent equitable action brought by a Notes:
party to a former action seeking to set aside a
1 The parties agree that The Automobile
judgment, which is no longer appealable or
Insurance Company of Hartford, Connecticut
subject to motion for new trial."); see also
issued Joachim's policy. For convenience,
Levit v. Adams, 850 S.W.2d 469, 470
however, we refer to the respondent in this
(Tex.1993) (per curiam) (allowing a bill of
case as Travelers because The Travelers
review to proceed because when a party first
Insurance Company is the entity Joachim
receives notice of a final judgment more than
named first in his trial court petitions.
90 days after the order is signed, the time
limit under Texas Rule of Civil Procedure 2 Joachim's first petition included several
306a(4), a bill of review is a proper method of insurance companies as defendants.
seeking relief); Wolfe v. Grant Prideco, Inc.,
53 S.W.3d 771, 775 (Tex.App.-Houston 1st 3 We have used similar language in
Dist. 2001, pet. denied) (reversing summary discussing a dismissal. See Crofts v. Court of
judgment dismissing a bill of review claim Civil Appeals, 362 S.W.2d 101, 104 (Tex.1962)
filed after the plaintiff's earlier case was ("It is elementary that a dismissal is in no way
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 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex., 2010)

an adjudication of the rights of parties; it comparable relief under Federal Rule of Civil
merely places the parties in the position that Procedure 60(b)(4) (relief from a final
they were in before the court's jurisdiction judgment that is void) "applies only in the
was invoked just as if the suit had never been rare instance where a judgment is premised
brought."). However, Crofts did not involve a either on a certain type of jurisdictional error
nonsuit. The court in Crofts dismissed a or on a violation of due process that deprives
divorce petition, while a related suit was a party of notice or the opportunity to be
pending in Maryland. See id. at 103. Crofts heard." United Student Aid Funds, Inc. v.
held that a trial court could not be ordered by Espinosa, 559 U.S. ___, ___, 130 S.Ct. 1367,
writ of mandamus to give possession of 1377, 176 L.Ed.2d 158 (2010). Here, however,
children to a mother after the trial court had although Joachim mentions his lack of notice,
dismissed the case. See id. at 104-05. Even if Joachim asserted only jurisdictional error as
the circumstances of that dismissal could be a legal argument.
considered analogous to a nonsuit, however,
we do not read the Crofts language so strictly 7 We offer no opinion as to whether
as to deprive the trial court of all authority Joachim might have succeeded in having the
after it dismisses a caseor after it should trial court set aside its judgment by pursuing
dismiss a case, as in a typical nonsuit an equitable bill of review or any other
scenario. remedy in the trial court.

4 In Scott & White, our holding was --------

limited to the situation where the trial court
granted a collateral motion for sanctions
during the period when it retained plenary
power. See 940 S.W.2d at 596. In this case,
however, the trial court's plenary power is not
at issue because after Joachim filed his
nonsuit, the record shows that the trial court
never entered a judgment until it entered its
dismissal with prejudice. See TEX.R. CIV. P.
329b(d) ("The trial court, regardless of
whether an appeal has been perfected, has
plenary power to grant a new trial or to
vacate, modify, correct, or reform the
judgment within thirty days after the
judgment is signed."); Shultz, 195 S.W.3d at
100 (observing that although a nonsuit is
effective upon its filing, expiration of plenary
power is determined from the date on which a
trial court signs an order dismissing the suit).

5 We note that none of Joachim's

allegations in the trial court, even when
construed liberally, can plausibly be
considered as being in the nature of a claim
for bill of review or similar relief.

6 The United States Supreme Court

recently observed, for instance, that

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