Med-Mal: Effect of nonsuit on doctor's pending appeal of trial court's denial of doctor's motion for
Villafani, M.D. vs. Trejo, No. 06-0501 (Tex. Apr. 18, 2008)(Wainwright) (health care liability litigation,
ILA, denial of sanctions, effect of plaintiff's nonsuit on defendant's right to appeal denial of motion for
sanctions) (opinion in pdf)
We hold that Villafani was entitled to appeal the trial court’s denial of his motion for
sanctions under the MLIIA following Trejo’s nonsuit. The court of appeals erred in
dismissing Villafani’s appeal for lack of jurisdiction. Accordingly, we reverse and
remand to the court of appeals for further proceedings consistent with this opinion.
Full case style and details:
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV,
___ S.W.3d ___, 10-06-05)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered the opinion of the Court.
Briefing: Links to eBriefs filed in the Supreme Court
Citation: Villafani v. Trejo, 251 S.W.3d 466, 468 (Tex. 2008) (holding that “the trial court’s denial of Villafani’s
motion for sanctions and dismissal and Trejo’s nonsuit collectively disposed of all the claims between the two
Majority opinion below: Villafani v. Trejo, No. (13-04-00449-CV (Tex.App. - Corpus Christi [13th Dist.] Oct.
6, 2005, pet. filed)("We conclude that this Court lacks subject matter jurisdiction to review the interlocutory
order because it was rendered moot by the trial court's subsequent dismissal of the case. See FDIC v.
Nueces County, 886 S.W.2d 766, 767 (Tex. 1994). The non-suit vitiated the order and rendered any
controversy moot. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). The
motion for sanctions and dismissal was not a pending claim at the time the non-suit was granted. Accordingly,
rule 162 cannot be a basis for jurisdiction. See Tex. R. Civ. P. 162. This appeal is therefore dismissed for
lack of jurisdiction.")
Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam)(appealability of order denying doctor's
motion for sanctions after plaintiff nonsuited HCLC suit with prejudice)
Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC,
medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
Case note by Don Cruse as part of blog entry on 04-18-2008 order list (the Supreme Court of Texas blog)
TJCB comment: Texas Supreme Court gets tough with medical malpractice plaintiffs and their lawyers
Texas Supreme Court Tightens Screws on Malpractice Plaintiffs (and their lawyers) (Jefferson Court Blog)
Terms: Health care liability claims HCLC | medical malpractice suits MedMal | frivolous suit | expert report
requirement | motion to dismiss for failure to file adequate or timely expert report | non-suit | interlocutory
Villafani v. Trejo 251 S.W.3d 466 (Tex. 2008)
OPINION BY JUSTICE DALE WAINWRIGHT
Argued April 10, 2007
Justice Wainwright delivered the opinion of the Court.
After the plaintiff in this medical malpractice action nonsuited her claims, the defendant appealed the
trial court’s denial of his motion for sanctions pursuant to the Medical Liability Insurance
Improvement Act (MLIIA). A divided court of appeals dismissed the appeal for lack of
jurisdiction. __ S.W.3d __, __. We consider whether the trial court’s denial of the sanctions motion
was appealable after the plaintiff’s nonsuit. We conclude that it was, and therefore the appeal was
within the court of appeals’ jurisdiction. We reverse and remand to the court of appeals for further
proceedings consistent with this opinion.
I. Facts and Procedural Background
On June 24, 2002, Adela Trejo filed a medical malpractice suit against two physicians, Dr. Juan
Mario Villafani and Dr. Ruben Lopez, the medical center, and others involved in an abdominal
surgery. Trejo filed timely expert reports as required by section 13.01(d) of the MLIIA. See Tex. Rev.
Civ. Stat. art. 4590i § 13.01(d). On February 10, 2004, Villafani filed a motion for sanctions and
dismissal, claiming that the expert report did not satisfy statutory requirements. See id. § 13.01(e).
The trial court denied Villafani’s motion. On April 30, 2004, Trejo filed a notice of nonsuit without
prejudice as to Villafani. The trial court severed Trejo’s claims against Villafani and dismissed the
claims without prejudice, rendering a final judgment as to Villafani. Villafani appealed the trial court’s
denial of his motion for sanctions and dismissal. The court of appeals dismissed Villafani’s appeal
for lack of jurisdiction. __ S.W.3d __, __. Villafani petitioned this Court for review. We review the
court of appeals’ determination of its jurisdiction de novo. McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.
3d 227, 231 (Tex. 2001).
II. Law and Analysis
A. The Medical Liability Insurance Improvement Act
In the MLIIA, the Legislature modified the liability laws for health care claims to address what the
Legislature described as a medical “crisis [that] has had a material adverse effect on the delivery of
medical and health care in Texas.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(a)(6), 1977
Tex. Gen. Laws 2039, 2040 (former Tex. Rev. Civ. Stat. art. 4590i, § 1.02(a)(6)); see also Act of
June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884 (reiterating the
Legislature’s concern about the gravity of an ongoing “medical malpractice insurance crisis” caused
in part by an increased number of health care liability claims since 1995); Diversicare Gen. Partner,
Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
Part of the modifications requires plaintiffs to timely file an expert report that includes a fair summary
of the expert’s opinions on the applicable standards of care, the manner in which the care rendered
by the defendant physician or health care provider failed to meet those standards, and the causal
relationship between that failure and the injury, harm, or damages claimed. Tex. Rev. Civ. Stat. art.
4590i § 13.01(d), (r)(6); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 877 (Tex. 2001). The statute requires a plaintiff to provide this expert report within 180 days of
filing a claim or, if not provided, to voluntarily nonsuit the claim against the defendant. Tex. Rev. Civ.
Stat. art. 4590i § 13.01(d). If the plaintiff fails to provide an adequate expert report or to voluntarily
nonsuit the claim, the statute allows a defendant to move for sanctions against the plaintiff, including:
(1) an award of attorney’s fees against the plaintiff; (2) forfeiture of any applicable cost bond
necessary to pay that award; and (3) dismissal of the case with prejudice. Id. § 13.01(e).
B. Appeal of the Interlocutory Order
Before the trial court dismissed Trejo’s claims against Villafani, the order denying Villafani’s motion
for sanctions and dismissal was interlocutory. Under the current version of the MLIIA and the Civil
Practice and Remedies Code, a claimant may take an interlocutory appeal of a trial court’s grant or
denial of these sanctions. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9), (10), 74.351(b). Such
an interlocutory appeal was not available under the version of the MLIIA applicable to this case. See
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849 (adding
interlocutory appeal of grants and denials of motions for sanctions under section 74.351 of the Texas
Civil Practice and Remedies Code).
Here, the trial court’s denial of Villafani’s motion for sanctions and dismissal and Trejo’s nonsuit
collectively disposed of all the claims between the two parties. See Univ. of Tex. Med. Branch at
Galveston v. Blackmon, 195 S.W.3d 98, 101 (Tex. 2006) (filing of nonsuit has the effect of “rendering
the merits of the case moot”). Thus, the trial court’s severance and dismissal order on the nonsuit
became a final judgment for purposes of appeal. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997)
(“[T]he 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.”); see also Davidoff v. GX Tech. Corp.,
134 S.W.3d 514, 515 (Tex. App.—Waco 2004, pet. denied) (holding absence of signed order
dismissing counterclaims prevented appeal, as there was no final order, despite filing of nonsuit).
The trial court’s denial of Villafani’s motion for sanctions and dismissal was no longer an interlocutory
order and was therefore appealable at that point. See McEwen v. Harrison, 345 S.W.2d 706, 707
(Tex. 1961) (hearing an appeal of an interlocutory default judgment, which became final after nonsuit
of other parties).
C. Effect of the Nonsuit
Trejo argues and the court of appeals concluded that the nonsuit of Trejo’s claims against Villafani
rendered moot the interlocutory order denying Villafani’s motion and deprived the court of appeals of
jurisdiction. Under Texas law, parties have an absolute right to nonsuit their own claims for relief at
any time during the litigation until they have introduced all evidence other than rebuttal evidence at
trial. Tex. R. Civ. P. 162; In re Bennett, 960 S.W.2d at 38. One unique effect of a nonsuit is that it can
vitiate certain interlocutory orders, rendering them moot and unappealable. See Blackmon, 195 S.W.
3d at 101 (pending appeal of trial court’s denial of plea to the jurisdiction required to be dismissed
after nonsuit in trial court); In re Bennett, 960 S.W.2d at 38; see also Gen. Land Office of State of
Tex. v. Oxy U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (holding temporary injunction extinguished
by nonsuit and dismissing appeal as moot).
There is, however, a notable exception to this rule. Although a plaintiff decides which of its claims to
pursue or abandon, that decision does not control the fate of a non-moving party’s independent
claims for affirmative relief. See N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897 (Tex. 1966)
(“It will not be presumed that a judgment dismissing a plaintiff’s suit on nonsuit . . . also disposed of
the issues in an independent cross-action.”). For example, a plaintiff’s nonsuit cannot extinguish a
defendant’s counterclaim for costs and attorney’s fees. Klein v. Dooley, 949 S.W.2d 307, 307 (Tex.
1997); see also BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840–41 (Tex. 1990) (holding
nonsuit cannot affect nonmovant’s independent counterclaim for affirmative relief). In addition, a party’
s right to nonsuit cannot be used to disturb a court’s judgment on the merits of a claim, such as a
partial summary judgment against the nonsuiting party. Hyundai Motor Co. v. Alvarado, 892 S.W.2d
853, 855 (Tex. 1995) (“Once a judge announces a decision that adjudicates a claim, that claim is no
longer subject to the plaintiff's right to nonsuit.”).
Trejo contends that Villafani’s motion did not survive the nonsuit because of rule 162 of the Texas
Rules of Civil Procedure. Rule 162 states that a nonsuit “shall not prejudice the right of an adverse
party to be heard on a pending claim for affirmative relief.” Tex. R. Civ. P. 162. A nonsuit under Rule
162 also has “no effect on any motion for sanctions, attorney’s fees or other costs, pending at the
time of dismissal.” Id. Trejo argues that since the trial court denied Villafani’s motion before Trejo
filed the nonsuit, the motion was not a pending claim for affirmative relief. Thus, Trejo argues, Rule
162 does not protect Villafani’s motion from the nullifying effect of the nonsuit.
We disagree with Trejo’s conclusion that Rule 162 prohibits Villafani from appealing the trial court’s
ruling on the sanctions motion. Rule 162 protects a party’s “pending claim for affirmative relief” from
the general rule that a party is required to get a ruling (or a refusal to rule) from a trial court to
preserve a right to appeal. Id.; see also Tex. R. App. P. 33.1. We have previously held that “Rule 162
merely acknowledges that a nonsuit does not affect . . . a pending sanctions motion; it does not
purport to limit the trial court’s power to act.” Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d
594, 596 (Tex. 1996). Rule 162’s protection of pending claims for affirmative relief does not by
negative implication permit a nonsuiting party to control another party’s already decided or not yet
made claims for affirmative relief.
In Scott & White Memorial Hospital, we recognized that a trial court continues to have authority to
decide a motion for sanctions relating to pre-judgment conduct during its plenary jurisdiction, even
following a nonsuit by a party. Id. at 595–96; see also In re Bennett, 960 S.W.2d at 38. In that case,
multiple defendants moved for sanctions against the plaintiff after the plaintiff had nonsuited the
parties but within the time period the trial court retained plenary jurisdiction. Scott & White Mem.
Hosp., 940 S.W.2d at 595. We noted that “Rule 162 speaks only to the effects of a nonsuit on a
motion for sanctions pending at the time of dismissal” and held that Rule 162 did not affect a trial
court’s authority to hear motions for sanctions during its plenary jurisdiction. Id. at 596 (emphasis
Similarly, we do not read Rule 162 to mean that a nonsuit prevents a non-moving party from
appealing a trial court’s ruling on claims for affirmative relief merely because the ruling occurred prior
to the nonsuit. It would be odd to suggest that parties who follow the instruction of rule 33.1 of the
Texas Rules of Appellate Procedure and obtain a ruling to preserve an appeal are then precluded
from an appeal by a nonsuit because they obtained that ruling. Texas cases demonstrate this
principle. This Court has in the past heard appeals from a trial court’s grant of summary judgment
against a plaintiff, even where a defendant has nonsuited counterclaims after that summary judgment
ruling. See, e.g., Mackie v. McKenzie, 890 S.W.2d 807, 808 (Tex. 1994). Texas courts of appeals
are also no strangers to hearing appeals from plaintiffs who have received an adverse rulings on
claims, even though those rulings were followed by a nonsuit of counterclaims by defendants. See, e.
g., Davidoff, 134 S.W.3d at 515 (abatement order); Atchison v. Weingarten Realty Mgmt. Co., 916 S.
W.2d 74, 75 (Tex. App.—Houston [1st Dist.] 1996, no writ). Just as a defendant’s nonsuit of claims
against a plaintiff does not nullify the plaintiff’s claims against the defendant (or the ability to appeal
those claims), neither can a plaintiff’s nonsuit of claims against a defendant nullify the defendant’s
claims against the plaintiff. See Tex. Mut. Ins. Co. v. Ledbetter, __ S.W.3d __, __ (Tex. 2008).
Whether a particular sanction is considered a claim for affirmative relief that survives a nonsuit for
later enforcement or appeal depends on the purpose of the sanction. Scott & White Mem’l Hosp.,
940 S.W.2d at 596; see also Oxy U.S.A., Inc., 789 S.W.2d at 570 (A party makes a claim for
affirmative relief by alleging grounds “on which he could recover benefits, compensation or relief” and
does more than resist a plaintiff’s right to recover.). If, for example, a trial court imposes a discovery
sanction excluding witnesses to insure a party is afforded a fair trial, a nonsuit obviates the reason
for the sanction—to protect the integrity of the proceeding—and thus the sanction does not survive
the nonsuit. Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806–07 (Tex. 1993). Monetary
sanctions, on the other hand, may serve compensatory and punitive purposes beyond the specific
proceeding and, therefore, survive a nonsuit and can be the subject of an appeal. Felderhoff v. Knauf,
819 S.W.2d 110, 111 (Tex. 1991); see also Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex. App.—
Austin 2007, no pet.) (defendant appealed a denial of motion for sanctions based on frivolous
pleadings after plaintiff nonsuited child custody dispute); Leon Springs Gas Co. v. Rest. Equip.
Leasing Co., 961 S.W.2d 574, 578 (Tex. App.—San Antonio 1997, no pet.) (A claim for attorney’s
fees is not an affirmative claim where it is based solely on the defense against the other party’s
claims but is an affirmative claim where it is based on an independent ground or as a sanction.).
Allowing defendants to seek sanctions under the MLIIA for attorney’s fees and dismissal with
prejudice deters claimants from filing meritless suits. Palacios, 46 S.W.3d at 878. Removing a
defendant’s ability to appeal a denial of a motion for sanctions after a nonsuit frustrates this purpose;
a claimant could simply nonsuit a meritless claim and later re-file the claim with impunity. See Scott &
White Mem’l Hosp., 940 S.W.2d at 597 (“If a litigant could purge his violation of Rule 11 merely by
taking a dismissal, he would lose all incentive to ‘stop, think and investigate more carefully before
serving and filing papers.’”) (citation omitted). Therefore, because the purpose of the sanctions under
the MLIIA survived Trejo’s nonsuit of her claims, we hold that Villafani’s motion was for sanctions that
survive a nonsuit and could be the subject of an appeal. Cf. Camarena v. Tex. Employment Comm’
n, 754 S.W.2d 149, 151 (Tex. 1988) (holding dispute over attorney’s fees is a live controversy and
thus the case was not moot). Thus, Villafani had the right to seek appellate review of the trial court’s
denial of his motion for sanctions and dismissal of Trejo’s claims.
We hold that Villafani was entitled to appeal the trial court’s denial of his motion for sanctions under
the MLIIA following Trejo’s nonsuit. The court of appeals erred in dismissing Villafani’s appeal for
lack of jurisdiction. Accordingly, we reverse and remand to the court of appeals for further
proceedings consistent with this opinion.
J. Dale Wainwright
OPINION DELIVERED: April 18, 2008
 While this case was pending on appeal, the Legislature repealed, codified, and amended parts of the
MLIIA. Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847 (current version at Tex. Civ.
Prac. & Rem. Code §§ 74.001–.507). Because Texas Revised Civil Statutes article 4590i continues to govern
this case, we apply that version. Acts of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039,
amended by Act of May 18, 1979, 66th Leg., R.S., ch. 596, 1979 Tex. Gen. Laws 1259, amended by Act of
May 26, 1989, 71st Leg., R.S., ch. 1027, §§ 27, 28, 1989 Tex. Gen. Laws 4128, 4145, amended by Act of
March 21, 1991, 72d Leg., R.S., ch. 14, § 284, 1991 Tex. Gen. Laws 42, 222, amended by Act of May 25,
1993, 73d Leg., R.S., ch. 625, 1993 Tex. Gen. Laws 2347, amended by Act of May 5, 1995, 74th Leg., R.S.,
ch. 140, 1995 Tex. Gen. Laws 985, amended by Act of June 1, 1997, 75th Leg., R.S., ch. 1228, 1997 Tex.
Gen. Laws 4693, amended by Act of June 2, 1997, 75th Leg., R.S., ch. 1396, §§ 44, 45, 1997 Tex. Gen. Laws
5202, 5249, amended by Act of May 13, 1999, 76th Leg., R.S., ch. 242, 1999 Tex. Gen. Laws 1104, repealed
by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
 This is not to suggest, however, that a motion for sanctions under the MLIIA will always be reviewable on
appeal after a final judgment. We need not address that issue in this case.