Austin State Hosp. v. Graham
In Austin State Hosp. v. Graham, 347 S.W.3d 298, 299-301 (Tex. 2011), the plaintiff filed health-care-liability claims against a state hospital and two of its doctor employees. 347 S.W.3d at 299.
Pursuant to Tex. Civ. Prac. & Rem. Code section 101.106(e), the hospital filed a motion to dismiss the claims against the doctors, and pursuant to sections 101.106(a) and (e), the doctors filed their own motion. Id.
The plaintiff then non-suited the hospital and argued that this action precluded a ruling on the hospital's motion to dismiss. Id. at 299, 301.
The supreme court disagreed, recognizing that a non-suit does not prejudice the right of an adverse party to be heard on a claim for pending relief, plus the doctors had filed their own motion to dismiss. Id. at 301 (citing Tex. R. Civ. P. 162).
Appellants emphasize the following statement by the court: "The Doctors were therefore entitled to 'immediate' dismissal once the Hospital filed its motion." Id.
Contrary to appellants' suggestion, the court did not state that the dismissal was considered effective when the hospital filed its motion, without further action by the trial court. Id.
Rather, the court merely indicated that the right to immediate dismissal of the employees was perfected when the hospital filed its motion and no subsequent non-suit of the hospital mooted that right. Id.
In fact, the court implicitly acknowledged that action by the trial court was required to effect the right to dismissal because the court referred to the hospital's "pending" motion to dismiss at the time of the non-suit as though the doctors had not yet been dismissed when the hospital was non-suited. See id.