Providence Bank sued for a deficiency judgment after the bank foreclosed on one of the borrower’s properties. The parties agreed to settle that claim, and so the bank filed a notice of nonsuit by mail. But on the same day the bank mailed in the nonsuit, the borrower filed brand new counterclaims against the bank on other properties. So the question became whether the bank’s nonsuit terminated the entire case before the filing of the counterclaims. The Court of Appeals answered that question in the negative. Although TCRP 5 deems a document to be filed on the date it is mailed, that rule only applies to documents that have to be filed by a particular deadline. By contrast, a nonsuit under Rule 162 can be filed at any time before the close of the plaintiff’s evidence. Accordingly, the nonsuit was not deemed filed at the time of mailing, and by the time it arrived at the courthouse for filing, the borrower’s counterclaims were already part of the lawsuit and could move forward as part of the case.
FP Asset Group, LP v. Providence Bank, No. 05-12-01728-CV