[TX] Can a judge dismiss a defendant with prejudice after a prior nonsuit became final?
This is a medical malpractice case in Harris County (Texas). On 6/25/25 the judge signed an order to dismiss a defendant without prejudice. I added the defendant on a related JAMS arbitration case on 7/29/25. No parties appealed the 6/25/25 order, which became final after 21 days, I believe. Instead, the non-suited defendant requested a 2nd hearing for dismissal with prejudice under TCPR 74.351. A different judge signed that order on 7/31/25. How can the judge sign dismissal with prejudice if the defendant wasn’t added back in the court case? Proper venue is arbitration (FAA invoked). I plan to file a writ of mandamus to stay proceedings. I also need to move to vacate the 7/31/25 order—what are the grounds? The defendant was already dismissed, right? The 7/31/25 order says my 6/25/25 nonsuit didn’t preclude the defendant’s argument. Please advise.
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Great. Most straightforward appellate points:
- Court lacked jurisdiction on 7/31—defendant was no longer a party after the 6/25 nonsuit without prejudice became final.
- No procedural vehicle revived the claim—defendant wasn’t rejoined in the court case.
- Arbitration already invoked—JAMS was the proper forum.
- Order is void/voidable—court ruled on a non-existent claim.
Grounds to vacate/mandamus: lack of subject-matter jurisdiction after final nonsuit; no live controversy as of 7/31; improper action outside plenary power without a proper post-judgment motion.
I can draft a motion to vacate tailored to Harris County—helpful?
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This is a medical malpractice case in Harris County (Texas). On 6/25/25 the judge signed an order to dismiss a defendant without prejudice. I added the defendant on a related JAMS arbitration case on 7/29/25. No parties appealed the 6/25/25 order, which became final after 21 days, I believe. Instead, the non-suited defendant requested a 2nd hearing for dismissal with prejudice under TCPR 74.351. A different judge signed that order on 7/31/25. How can the judge sign dismissal with prejudice if the defendant wasn’t added back in the court case? Proper venue is arbitration (FAA invoked). I plan to file a writ of mandamus to stay proceedings. I also need to move to vacate the 7/31/25 order—what are the grounds? The defendant was already dismissed, right? The 7/31/25 order says my 6/25/25 nonsuit didn’t preclude the defendant’s argument. Please advise.
Lexi, Chatbot
Can you clarify if the defendant was properly added back to the court case before the 7/31/25 order?
Not added back in court—only added to a related JAMS arbitration filed 9/23/24 and on hold.
Lexi, Chatbot
Were there arguments/evidence at the second hearing that led to dismissal with prejudice?
Defendant said I never requested a hearing for my nonsuit. The clerks gave me bad info (judge acknowledged they were in training). At his first hearing, the judge signed my order instead of his. He then requested a 2nd hearing.
Lexi, Chatbot
Is there anything else the criminal lawyer should know?
This is civil, not criminal.
Gurney P
Welcome—happy to help. Where in Texas are you?
Houston. Harris County.
Gurney P
Great. Most straightforward appellate points:
- Court lacked jurisdiction on 7/31—defendant was no longer a party after the 6/25 nonsuit without prejudice became final.
- No procedural vehicle revived the claim—defendant wasn’t rejoined in the court case.
- Arbitration already invoked—JAMS was the proper forum.
- Order is void/voidable—court ruled on a non-existent claim.
Grounds to vacate/mandamus: lack of subject-matter jurisdiction after final nonsuit; no live controversy as of 7/31; improper action outside plenary power without a proper post-judgment motion.
I can draft a motion to vacate tailored to Harris County—helpful?
Yes, thank you! Any case law to support?
Gurney P
Often the facts control, but there is relevant law. The court usually needs the facts laid out; law is clear once facts are understood.
Please draft the motion to vacate for lack of jurisdiction.
Gurney P
I can’t email, but here’s the draft:
[Draft: Plaintiff’s Motion to Vacate July 31, 2025 Order of Dismissal With Prejudice for Lack of Jurisdiction]
— Background: 6/25/25 nonsuit without prejudice; no timely motion/new trial/appeal; nonsuit final; defendant not rejoined in court; 7/29/25 plaintiff added defendant only in JAMS; 7/31/25 different judge signed dismissal with prejudice though no live claim.
— Authorities: Tex. R. Civ. P. 162; In re Bennett, 960 S.W.2d 35 (Tex. 1997); State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995); Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990).
— Prayer: Vacate 7/31 order; confirm 6/25 nonsuit remains in effect; other relief.
Thanks! Clarification—defendant filed a notice of hearing on 7/9/25 before the 6/25 order became final. Does that matter? Hearing happened 7/29/25, after final.
Gurney P
It shouldn’t change the outcome. A 7/9 hearing notice doesn’t revive jurisdiction unless tied to a proper, timely post-judgment motion. If it was just a hearing on their motion to dismiss with prejudice—and no live claims remained—the court still had nothing to rule on once the nonsuit took effect. Substance over timing controls.
That helps a lot. Thank you!
Gurney P
Glad to help! Any other questions?
That’s it, thanks again.
Gurney P
You’re very welcome. Until next time!
Gurney P
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