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Docket Number

No. 9251.

Attorney(S)

Brown, Harding, Fargason Brown, (Mike Brown), Lubbock, for appellant. John T. Montford, Criminal Dist. Atty. (Steven M. Sucsy, Asst. Dist. Atty., Lubbock), for appellee.

Judges

REYNOLDS, Chief Justice.

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Smart Summary

Case Summary: In the Matter of J. A. L., No. 9251 (Ct. Civ. App. of Texas, Amarillo, Nov. 19, 1980)

Factual and Procedural Background

On January 15, 1980 the State charged J. A. L., a fifteen year old, with delinquent conduct alleging that on or about November 19, 1979 he intentionally and knowingly operated an automobile without the effective consent of the owner (a felony). That charge was filed as Cause No. 3814 in the 72nd Judicial District Court of Lubbock County. On April 14, 1980 the State moved to dismiss Cause No. 3814 "for the reason that dismissal is in the best interest of the child," and the court signed an order dismissing the cause on that day.

On May 29, 1980 the State filed an amended petition in Cause No. 3874 in the 140th Judicial District Court of Lubbock County alleging three acts of delinquent conduct: two misdemeanor thefts and, as the third allegation, the same felony-grade allegation previously charged and dismissed in Cause No. 3814. J. A. L. specially excepted to the third allegation on grounds the prior dismissal barred further prosecution; the special exception was overruled.

At the adjudication hearing in Cause No. 3874, pursuant to a plea agreement the State dismissed with prejudice the two misdemeanor allegations. J. A. L., joined by counsel, waived jury trial, confrontation, and privilege against self-incrimination, and judicially confessed to the third allegation. Documents from Cause No. 3814 were received in evidence. The trial court adjudicated J. A. L. to have engaged in the delinquent conduct alleged in the third count and set a disposition hearing. J. A. L. appealed the adjudication.

Legal Issues Presented

Whether the prior dismissal of the identical charge in Cause No. 3814 — rendered upon the State's motion "in the best interest of the child" — operated as an adjudication on the merits that bars re-prosecution under the doctrine of res judicata.
Whether the prior dismissal operated to bar disposition by collateral estoppel as to the identical allegation in the later proceeding.
Whether the subsequent prosecution and adjudication violated the appellant's constitutional due process rights on grounds of fundamental fairness given the earlier dismissal.

Arguments of the Parties

Appellant's Arguments

The April 14, 1980 dismissal of Cause No. 3814, entered after the State moved to dismiss "in the best interest of the child," represented an adjudication on the merits and therefore operated as a dismissal with prejudice barring re-prosecution by res judicata.
Because that dismissal allegedly adjudicated the issue, collateral estoppel should prevent adjudication of the same allegation in the later proceeding (Cause No. 3874).
On the premise the prior dismissal adjudicated the prosecution was contrary to the child's best interest, subjecting him to the present prosecution is fundamentally unfair and violates due process (invoking McKeiver v. Pennsylvania by analogy).

The opinion does not contain a detailed account of appellant's adversary's (the State's) separate, formal argumentation beyond the procedural steps the State took (motion to dismiss Cause No. 3814; later filing and plea bargaining in Cause No. 3874).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963)	Defines scope of doctrine of res judicata.	Used to frame appellant's res judicata argument and to state what res judicata bars.
State v. Gary, 163 Tex. 565, 359 S.W.2d 456, 459 (1962)	States the right to a timely nonsuit under Rule 164 is absolute and unqualified.	Relied on to support that the State had a right to timely move for a nonsuit and that right is absolute.
Payne v. Nichols, 176 S.W.2d 961, 963 (Tex.Civ.App.-Galveston 1943, writ ref'd w. o. m.)	A voluntary dismissal is without prejudice to reassertion of the matters asserted in the dismissed suit.	Used to show voluntary dismissal does not bar refiling of the same cause of action.
Scherff v. Missouri Pac. Ry. Co., 81 Tex. 471, 17 S.W. 39, 40 (1891)	A voluntary dismissal with permission of the court does not bar assertion of the same cause of action in a subsequent suit.	Quoted to show dismissal by permission does not constitute an adjudication barring later suit.
Murphy v. Stigall, 352 S.W.2d 918, 919 (Tex.Civ.App.-San Antonio 1961, writ ref'd)	Contrast between dismissal and dismissal with prejudice regarding adjudication of merits.	Cited to indicate a dismissal (not with prejudice) does not signify adjudication of merits.
Schenker v. City of San Antonio, 369 S.W.2d 626, 630 (Tex.Civ.App.-San Antonio 1963, writ ref'd n. r. e.)	Dismissal with prejudice signifies adjudication and denial of claim; dismissal without prejudice does not.	Used to show the April 14 order was a dismissal, not a dismissal with prejudice, and therefore not an adjudication.
Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962)	A judgment of dismissal is not an adjudication of the merits and returns parties to pre-suit position.	Applied to conclude the dismissal of Cause No. 3814 did not adjudicate the merits.
Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600, 602 (1944)	A judgment of dismissal upon taking a nonsuit is not res judicata of the merits; cause may be refiled.	Relied upon to support that the dismissed cause could be refiled and was not res judicata.
City of Houston v. Sam P. Wallace and Co., 585 S.W.2d 669, 673 (Tex. 1979)	Confirms that a cause of action may be reasserted after a dismissal of certain kinds.	Used to support the proposition that the cause could be refiled after dismissal.
Anderson, Clayton Co. v. United States, 562 F.2d 972, 992, rehearing denied, 565 F.2d 1215 (5th Cir. 1977), cert. denied, 436 U.S. 944 (1978)	Collateral estoppel applies only to issues actually litigated and determined in a prior action, not to issues that might have been litigated.	Applied to reject collateral estoppel where no issue was actually litigated and determined in the prior dismissal.
McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971)	Articulates a due process rule of fundamental fairness (referenced analogously).	Cited by appellant by analogy; court found the due process complaint mooted once it held the dismissal was not an adjudication.
Webb v. Jorns, 530 S.W.2d 847, 855 (Tex.Civ.App.-Fort Worth 1975, writ ref'd n. r. e.)	Holds Rule 164 is not per se unconstitutional.	Used to support that Rule 164 (nonsuit rule) is constitutional and its exercise does not, by itself, violate due process.

Court's Reasoning and Analysis

The court first identified the April 14, 1980 dismissal in Cause No. 3814 as a voluntary dismissal (a nonsuit) taken by the State pursuant to the operative civil rules incorporated by Section 51.17 and Rule 164. It observed that, when timely exercised, the right to take a nonsuit under Rule 164 is absolute and unqualified, citing State v. Gary.

The court then explained that a voluntary dismissal taken by the plaintiff (here the State) does not adjudicate the merits and is without prejudice to reassertion of the dismissed matters, citing Payne v. Nichols and Scherff. It emphasized that the district court's order granted a dismissal (not a dismissal with prejudice), citing Murphy and Schenker, and therefore the April 14 judgment did not constitute an adjudication on the merits.

Relying on Crofts and Renfroe, the court concluded the legal effect of the dismissal was to return the parties to the position they occupied before the suit was filed, permitting refiling of the cause. Because no issue had been actually adjudicated in Cause No. 3814, collateral estoppel did not apply; the court cited Anderson, Clayton Co. for the principle that collateral estoppel requires an issue to have been actually litigated and determined.

Having determined the prior dismissal was not an adjudication of the merits, the court held that appellant's due process claim — which rested on the premise that the earlier judgment had adjudicated the prosecution to be contrary to his best interest and thus made further prosecution fundamentally unfair (invoking McKeiver by analogy) — was without foundation and therefore moot. The court also noted that Rule 164 is not per se unconstitutional (citing Webb v. Jorns), further undercutting the due process complaint.

Holding and Implications

Holding: The court affirmed the adjudication judgment. The April 14, 1980 dismissal of Cause No. 3814 was a voluntary nonsuit and did not adjudicate the merits; therefore res judicata and collateral estoppel did not bar the later adjudication in Cause No. 3874, and the due process challenge based on the prior dismissal failed.

Implications: The direct effect is that the trial court's adjudication of J. A. L. on the third allegation in Cause No. 3874 is affirmed. The opinion applies established Texas authority to confirm that a timely nonsuit by the State (a dismissal not specified as with prejudice) does not preclude subsequent prosecution of the same cause of action; the opinion does not announce any new legal rule beyond the application of those precedents.

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In the Matter of J. A. L.

REYNOLDS, Chief Justice.

Adjudged to have engaged in delinquent conduct, J. A. L., a child, contends that the proceedings were barred by the prior dismissal of the same charge of delinquent conduct, requested by the State "in the best interest of the child." Concluding that the dismissal did not foreclose further proceedings, we affirm.

On 15 January 1980, the State of Texas charged that J. A. L., a fifteen year old male child, had engaged in delinquent conduct. The charge, brought by the authority of Texas Family Code Annotated, § 51.01, et seq. (Vernon 1975; Vernon Supp. 1980), was filed as Cause No. 3814 on the docket of the 72nd Judicial District Court of Lubbock County. Specifically, the State charged that on or about 19 November 1979, J. A. L. intentionally and knowingly operated an automobile without the effective consent of the owner, a violation of Texas Penal Code, § 31.07, of the grade of felony. On 14 April 1980, the State moved the court to dismiss the cause "for the reason that dismissal is in the best interest of the child." On the same day, an order granting the motion and dismissing the cause was signed.

References hereafter made to sections are to the sections of the Texas Family Code Annotated (Vernon 1975; Vernon Supp. 1980), unless otherwise indicated.

Subsequently, by an amended petition filed 29 May 1980 in Cause No. 3874 on the docket of the 140th Judicial District Court of Lubbock County, the State alleged that J. A. L. had engaged in three acts of delinquent conduct. The first two allegations were acts of theft of the grade of misdemeanor, and the third allegation was the same delinquent conduct charged and dismissed in Cause No. 3814.

J. A. L. specially excepted to the third allegation. The grounds were that the prior dismissal of the identical allegation in Cause No. 3814 resulted in a dismissal with prejudice on the merits of the allegation, and gave rise to the doctrine of collateral estoppel which would prevent a disposition upon an adjudication of delinquency on this allegation. The special exception was overruled.

Thereafter, an adjudication hearing was conducted in Cause No. 3874, the cause underlying this appeal. Pursuant to a plea bargaining agreement, the State moved the court to, and the court did, dismiss, with prejudice, the first two allegations of misdemeanor theft. Then, J. A. L., joined by his attorney, waived his rights to trial by jury, confrontation of witnesses and against self-incrimination, and judicially confessed to the delinquent conduct charged in the third allegation. Documents recording the proceedings had in Cause No. 3814 were received in evidence.

The court rendered judgment adjudicating J. A. L. to be a child who engaged in the delinquent conduct charged in the third allegation. The court further found a need for a disposition hearing and set a date and time therefor.

Appealing from the adjudication judgment, J. A. L. first contends that the judgment is barred by the doctrine of res judicata. That doctrine bars the litigation of all issues connected with a cause of action which, with the use of diligence, might have been tried, as well as those which were actually tried. Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963). J. A. L.'s theory is that the judgment dismissing Cause No. 3814, rendered upon the granting of the State's motion therefor "in the best interest of the child," was an adjudication of the merits of the delinquent conduct, thereby barring the State's cause of action. This is so, J. A. L. argues, because the question of the best interest of the child goes directly to the merits of a charge of delinquent conduct.

Nevertheless, we have concluded upon the verity of the record before us that the doctrine of res judicata has no application. This conclusion follows because, notwithstanding the granting of the State's motion for dismissal of Cause No. 3814 "in the best interest of the child," the judgment of dismissal was rendered without an adjudication of any issue in that cause.

In Cause No. 3814, the State moved for a voluntary dismissal, otherwise known as a nonsuit. 4 R. McDonald, Texas Civil Practice § 17.14 (rev. 1971). Given the operative effect of the Texas Rules of Civil Procedure by Section 51.17, the State had the right to timely move for a nonsuit under Rule 164; indeed, the right, when timely exercised, is said to be absolute and unqualified. State v. Gary, 163 Tex. 565, 359 S.W.2d 456, 459 (1962). Moreover, the right to voluntarily dismiss a suit is without prejudice to a reassertion of the matters asserted in the dismissed suit, Payne v. Nichols, 176 S.W.2d 961, 963 (Tex.Civ.App.-Galveston 1943, writ ref'd w. o. m.); and a voluntary dismissal with permission of the court does not bar the assertion of the same cause of action in a subsequent suit. Scherff v. Missouri Pac. Ry. Co., 81 Tex. 471, 17 S.W. 39, 40 (1891).

By seeking the court's permission to nonsuit Cause No. 3814, the State, although assigning a reason for its request, neither invited a determination of the merits nor requested a dismissal with prejudice so as to bar it from later asserting the same cause of action. See 4 R. McDonald, supra, § 17.14. Further indicative of nonadjudication of the merits in that cause is that the court, in granting the State's motion, rendered a judgment of dismissal, not a dismissal with prejudice which would signify an adjudication and denial of the State's claim. See, e. g., Murphy v. Stigall, 352 S.W.2d 918, 919 (Tex.Civ.App.-San Antonio 1961, writ ref'd); Schenker v. City of San Antonio, 369 S.W.2d 626, 630 (Tex.Civ.App.-San Antonio 1963, writ ref'd n. r. e.).

Thus, the judgment of dismissal must be accorded its legal effect. A judgment of dismissal is not an adjudication of the merits of the dismissed cause; it merely places the parties in the position they were in before the court's jurisdiction was invoked just as if the suit never had been brought. Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962). It follows that the judgment of dismissal, rendered upon the State's taking a nonsuit, is not res judicata of the merits of Cause No. 3814, Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600, 602 (1944), and the cause of action could be refiled. City of Houston v. Sam P. Wallace and Co., 585 S.W.2d 669, 673 (Tex. 1979).

Our determination that no issue in Cause No. 3814 was adjudicated by the judgment of dismissal defeats J. A. L.'s claim that the disposition order rendered by the trial court was barred by the doctrine of collateral estoppel. "Collateral estoppel applies only to an issue that was actually litigated and determined in a prior action, not to an issue that might have been litigated." Anderson, Clayton Co. v. United States, 562 F.2d 972, 992, rehearing denied, 565 F.2d 1215 (5th Cir. 1977), cert. denied, 436 U.S. 944 (1978).

Although the judgment of disposition to which the claim is directed has not been included in the appellate record, both litigants refer to it in their briefs.

The same determination also invalidates the premises for, and thereby moots, J. A. L.'s complaint that the present prosecution denied him constitutional due process of law. On the premise that the prior judgment of dismissal adjudicated a prosecution to be contrary to his best interest, J. A. L. submits that, analogous to the due process rule of fundamental fairness articulated in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), it is fundamentally unfair to subject him to the present prosecution. The premise is vitiated by our previous holding that the judgment of dismissal was not an adjudication of any issue in the prosecution. Furthermore, Rule 164 is not, per se, unconstitutional, Webb v. Jorns, 530 S.W.2d 847, 855 (Tex.Civ.App.-Fort Worth 1975, writ ref'd n. r. e.); so, we see no constitutional unfairness in exercising, as the State did, the absolute right to take one nonsuit, State v. Gary, supra, 359 S.W. at 459, and the right to prosecute the same cause of action in a subsequent suit. Scherff v. Missouri Pac. Ry. Co., supra, 17 S.W. at 40.

Accordingly, the judgment of adjudication is affirmed.

J. A. L., MATTER OF