Alvarado v. Hyundai Motor Co.

• Decision Date: 14 March 1994
• Docket Number: No. 04-91-00208-CV,04-91-00208-CV
• Citation: 885 S.W.2d 167
• Parties: Mario ALVARADO, et al., Appellants, v. HYUNDAI MOTOR COMPANY, et al., Appellees.
• Court: Texas Court of Appeals

Page 167

885 S.W.2d 167

Mario ALVARADO, et al., Appellants, v. HYUNDAI MOTOR COMPANY, et al., Appellees.

No. 04-91-00208-CV.

Court of Appeals of Texas,

San Antonio.

March 14, 1994.

Rehearing Denied July 25, 1994.

Steve T. Hastings, Allison & Huerta, Corpus Christi, Christa Brown, Austin, for appellants.

Eduardo Roberto Rodriguez, Rodriguez, Colvin & Chaney, Brownsville, Ruth Greenfield Malinas, Frank Montalvo, David M. Prichard, Ball & Weed, P.C., San Antonio, David M. Heilbron, Leslie G. Landau, McCutchen, Doyle, Brown & Enersen, San Francisco, CA, David E. Keltner, Haynes and Boone, L.L.P., Fort Worth, Thomas H. Crofts, Jr., Crofts, Callaway & Jefferson, San Antonio, Armando X. Lopez, Laredo, Lee Casstevens, Wood, Burney, Cohn & Bradley, Corpus Christi, for appellees.

Before GARCIA and REEVES, ¹ JJ.

ON APPELLEES' MOTION FOR REHEARING

GARCIA, Justice.

Appellees' motion for rehearing en banc and motion for rehearing are denied. Our opinion of September 30, 1993, is withdrawn and the following is substituted.

Appellants, Mario Alvarado, Fidel Alvarado, Jr. and Alicia Alvarado, individually and as next friends of Fidel Alvarado, III, a minor, appeal the partial summary judgment entered in favor of appellees, Hyundai Motor Company, Hyundai Motor America, Inc., and Port City Hyundai, Inc. (Hyundai). Appellants also complain that the trial court improperly modified their nonsuit order by dismissing "with prejudice" the part of their case determined by the partial summary judgment. Hyundai contends that appellants' motion for nonsuit was untimely and therefore, the trial court properly dismissed the claims decided by the partial summary judgment with prejudice. In addition, Hyundai maintains that the effect of the nonsuit was to make the partial summary judgment final, and the trial court properly granted its partial summary judgment. We reverse and render.

In 1989, appellants filed a products liability suit against Hyundai following an automobile rollover accident in which one of the appellants was ejected from the car and sustained serious injuries. In their petition, appellants alleged that the 1988 Hyundai Excel was defectively designed and unreasonably dangerous because: 1) the front seats were not equipped with seat belts (manual lap belts); 2) Hyundai failed to give adequate warnings of increased dangers to which front seat passengers were exposed; and 3) Hyundai failed to give adequate instructions for the use of the front seat restraint system in the vehicle. Appellants also alleged that Hyundai was negligent in failing to equip the vehicle with a seat belt, failing to adequately test the restraint system, failing to warn of the increased risk of harm, and failing to instruct on the use of the restraint system.

Hyundai filed a motion for partial summary judgment asserting that the following allegations were preempted by federal law:

(1) the Hyundai vehicle was defective and unreasonably dangerous in that the front seats of the vehicle were not equipped with seat belts;

(2) defendant failed to give adequate warnings of increased danger to which passengers were exposed;

(3) each defendant was negligent in failing to equip the vehicle in question with a seat belt;

(4) each defendant was negligent in failing to adequately design and test a safer alternative; and

(5) each defendant was negligent in failing to warn of the increased risk of harm posed by the vehicle.

On December 17, 1990, the trial judge announced in open court that defendants' motion was granted. Thereafter, on January 8, 1991, the trial judge signed an order granting defendants'/appellees' motion for partial summary judgment. On January 30, 1991, the appellants filed their motion for nonsuit. The trial court entered the order granting the nonsuit the same day and dismissed the cause "without prejudice to Plaintiffs' refiling." On February 25, 1991, appellees filed a motion to modify the order granting the nonsuit, and after a hearing, the court modified its previous nonsuit order to provide that "the claims adjudicated in the summary judgment are dismissed with prejudice to refiling." Appellants bring forth five points of error contending the trial court erred in modifying the nonsuit order and in granting the partial summary judgment.

In point of error one, appellants claim the trial court erred in modifying the nonsuit order to state "with prejudice." Appellants maintain that the plaintiffs' right to take a nonsuit is absolute and unqualified as long as the defendant has not made a claim for affirmative relief. Appellants acknowledge that a plaintiff no longer has the right to take a nonsuit after a final summary judgment has been entered, and that a nonsuit may no longer be taken as to a particular party when the summary judgment completely disposes of that party. However, appellants argue that they had a right to take a nonsuit in this case because the partial summary judgment was interlocutory in nature, and the voluntary nonsuit effectively erased all interlocutory orders. Appellants also maintain that the trial court lacked jurisdiction to modify the nonsuit order because once a nonsuit is taken, the trial court loses jurisdiction of the entire case except to render an order of dismissal without prejudice.

Hyundai responds that the plaintiff has a right to a nonsuit only if the motion is timely. ² Hyundai maintains that the nonsuit was untimely as to the issues adjudicated by the summary judgment because the nonsuit came after the motion for summary judgment motion had been filed and granted. Therefore, the trial court was correct in granting the untimely nonsuit motion with prejudice. Hyundai agrees that a partial summary judgment is an interlocutory order, but it is interlocutory only for appeal purposes. Hyundai contends that unless the trial court sets the summary judgment aside or the judgment is reversed on appeal, no further action on the issues determined by the partial summary judgment can be taken. Hyundai maintains that to allow a nonsuit after the rendition of a partial summary judgment would render Rule 166a(e) meaningless unless the successful movant secured a severance.

The rule concerning voluntary dismissal or nonsuit is now contained in rule 162 of the Texas Rules of Civil Procedure. ³ The rule provides:

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 21a 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.

TEX.R.CIV.P. 162. The rule is designed to allow a plaintiff to avoid unexpected emergencies. 5 ROY W. MCDONALD, TEXAS CIVIL PRACTICE § 27:39 (John S. Covell ed., 1992). The importance of the right to nonsuit was discussed by our supreme court in Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427 (1891), as follows:

The right of a plaintiff to take a nonsuit upon his own cause of action was considered of sufficient importance by the legislature to be given express recognition. Owing to unexpected contingencies that may occur during a trial, it is a privilege which it may become necessary for the most careful and diligent litigant to exercise, and it is important that the substance, and not the shadow alone, of the right shall be preserved.

Id. 16 S.W. at 428. The current supreme court has recently reconfirmed the importance of the rule by stating that the plaintiff's right to a nonsuit is "important and firmly rooted in the jurisprudence of our state," and rule 162 is to be liberally construed in favor of that right. Aetna Casualty & Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex.1993, orig. proceeding). The plaintiff's right to take a nonsuit, at any time before he has introduced all of his evidence other than rebuttal evidence, has been described as unqualified and absolute unless the defendant has filed pleadings seeking affirmative relief prior to the filing of the nonsuit. BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840 (Tex.1990, orig. proceeding); Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.1982); KT Bolt Mfg. Co. v. Texas Electric Coops., Inc., 837 S.W.2d 273, 275 (Tex.App.--Beaumont 1992, writ denied). In the case before us, Hyundai had not filed any pleadings seeking affirmative relief prior to the appellants' filing of the nonsuit. Hyundai did file and had been granted a partial summary judgment.

In the context of summary judgment proceedings, courts have held that the plaintiff has a right to a nonsuit at any time prior to the announcement by the trial court of its decision to grant the summary judgment. Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex.App.--Houston [14th Dist.] 1991, no writ); Extended Servs. Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469 471 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.); Collins v. Waldo, 291 S.W.2d 360, 362 (Tex.Civ.App.--Eastland 1956, no writ). This "judicial announcement" rule was contained in the original version of rule 164 which set different deadlines for taking a nonsuit based on whether a jury or bench trial was held. The rule allowed a nonsuit at any time before the jury retired or at any time before the decision was announced when the case was tried to the judge. Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (1947). Although rule 162 no longer contains the judicial pronouncement language, it is still being applied in the context of summary judgment proceedings. See Taliaferro, 804...