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Effect of Dismissal or Discontinuance of Action

An action is not pending for purposes of the abatement of a separate action if it has been effectively dismissed, discontinued, or otherwise terminated. [Trapnell v. Hunter, 785 S.W.2d 426 (Tex. App. Corpus Christi 1990)].  However, the second action will be abated if the first action was still pending when the second was brought, even though the prior action was dismissed or otherwise terminated before the plea in abatement was filed.  In some jurisdictions, if a prior suit is dismissed before the trial of the subsequent action, a plea or answer in abatement based on a pending prior action will be completely disposed of.

An action is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.  An action is deemed to be pending, in the absence of the court order of dismissal, where such order is required.  However, when a plaintiff has the right to an order of dismissal, the court’s failure, on the plaintiff’s proper motion, to order dismissal may not lead to abatement of the subsequent action.   Proper notice of the discontinuance of the first action before commencement of the second may be deemed effective to preclude abatement of a later action.

The improper entry of an order of nonsuit by a clerk of court is void and does not preclude an otherwise proper abatement of a subsequent action.  A plaintiff’s unauthorized dismissal or discontinuance of his or her prior action does not prevent abatement of a second action.  In cases where payment of costs is made a condition precedent to dismissal or discontinuance of the prior action, failure to pay those costs renders the dismissal or discontinuance ineffective to preclude abatement of a subsequent action.

Inside Effect of Dismissal or Discontinuance of Action