The Austin Court of Appeals recently held that a plaintiff’s notice of non-suit precludes a defendant from recovering attorney’s fees as prevailing party under a written agreement.  In this case, the plaintiffs bought a house from defendants under a standard-form sales contract promulgated by the Texas Real Estate Commission.   Plaintiffs brought suit against defendants for failing to disclose

The simple answer is yes, they do. See Texas Rule of Civil Procedure 162.

But the defendant’s pleading must allege a cause of action independent of the plaintiff’s claims on which the defendant can recover.  If a defendant fails to do so, then the plaintiff has an absolute right to a non-suit of all claims, as the Dallas Court of Appeals demonstrated in In re Metropolitan Lloyds Insurance Company of Texas.Continue Reading Do counterclaims survive when a plaintiff non-suits?