In In re In the Estate of Wegenhoft, an applicant filed an application to probate a will, which contained a no-contest clause. No. 14-23-00350-CV, 2024 Tex. App. LEXIS 5352 (Tex. App.—Houston [14th Dist.] July 30, 2024, no pet. history). Contestants filed their opposition to the will, asserting that the will was executed under undue influence, but they nonsuited their claims on the eve of trial. The trial court permitted the applicant’s claims concerning suitability and enforcement of the no-contest clause to proceed to trial and ultimately rendered judgment in favor of the applicant after a jury trial. The contestants filed an appeal challenging the trial court’s subject matter jurisdiction to enter judgment against them when they nonsuited their contest prior to trial.

The court of appeals reversed the trial court’s judgment, holding that it did not have jurisdiction after the nonsuit:

Texas Rule of Civil Procedure 162 provides that a plaintiff may take a nonsuit at any time before introducing all of his evidence other than rebuttal evidence… However, rule 162 expressly limits the right to nonsuit an entire cause when the defendant has a claim for affirmative relief pending. A claim for affirmative relief is one “on which the claimant could recover compensation or relief even if the plaintiff abandons his cause of action.” Therefore, while a nonsuit has the effect of terminating a case from the moment the motion is filed, it does not affect the right of an adverse party to be heard on a pending claim for affirmative relief…

As a brief recap, Curtis and Cynthia opposed the admission of the 2013 Will and filed a counterapplication to probate the 1989 Will. Carl filed a motion alleging that his siblings violated the no-contest clause and requested a finding that they were unsuitable to serve as executors. He also re-asserted these claims in an amended answer to his siblings’ counterapplication. Before the case proceeded to trial, Curtis and Cynthia filed their notice of nonsuit, thereby abandoning their will contest and counterapplication. Accordingly, the only live pleading remaining was Carl’s application to probate the 2013 Will.

We cannot agree that Carl’s claims asserted in his motion or amended answer survived the nonsuit because his claims did not constitute an independent claim for affirmative relief. Put another way, the nonsuit rendered Carl’s claims moot because his claims were dependent on his siblings’ will contest and counterapplication. Without the contest or counterapplication, Carl could not possibly seek to enforce his claims… Contrary to Gibbons, Carl’s application only requested probate of the 2013 Will and that he be appointed as executor. Carl has not cited (and research has not revealed) any Texas case in which a court retained jurisdiction after a nonsuit over claims asserted in an answer when the claims did not seek affirmative relief. Accordingly, Carl’s claims were extinguished by the nonsuit because he did not have a pending claim for affirmative relief.

Id.