Ebrahim Khaleghi v. Adebayo Oyekan & Grace Oyekan

• Court: Court of Appeals of Texas
• Decided: January 26, 2012
• Docket: 01-11-00239-CV
• Status: Published

Opinion

Opinion issued January 26, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00239-CV

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Ebrahim Khaleghi, Appellant

V.

Adebayo and Grace Oyekan, Appellee

On Appeal from the County Civil Court at Law Number 2

Harris County, Texas

Trial Court Case No. 981987

MEMORANDUM OPINION

Appellant, Ebrahim Khaleghi, brings this appeal from a voluntary nonsuit.  We dismiss for lack of jurisdiction.

BACKGROUND

Khaleghi sued appellees Adebayo and Grace Oyekan in small claims court, alleging that the Oyekans’ failure to timely repair a water leak in their condominium unit caused water to penetrate and damage Khaleghi’s condominium unit on a lower floor.  Khaleghi secured a judgment for $8,150, and the Oyekans filed a civil appeal bond to perfect an appeal to the county court at law.

Khaleghi requested a trial setting from the County Court, and was given a trial date of March 1, 2011.[1]  There is no reporter’s record from that proceeding.  The trial court signed an order entitled “Nonsuit,” stating:

On Mar[ch] 01, 2011, the Court called the above-styled and numbered case, Plaintiff announced to the Court the desire to non-suit this Cause.  The Court, after considering the pleadings, evidence and arguments of the parties, is of the opinion that the non-suit should be, in all things GRANTED.  It is is therefore

ORDERED, ADJUDGED, and DECREED that the above-styled and numbered cause be, and same is hereby non-suited.

At the bottom of the order, there is a “Plaintiff’s signature” line containing Khaleghi’s signature.

DISCUSSION

Khaleghi’s brief states that he “is seeking to appeal the nonsuit decision due to the county civil court’s error in not considering evidence of lost rental income in its decision.”  From the record before this Court, however, it appears that Khaleghi voluntarily nonsuited his case.

“A plaintiff has an absolute and unqualified right to take a nonsuit, as long as the defendant has not made a claim for affirmative relief.”  Quanto Int’l Co. v. Lloyd, 897 S.W.2d 482, 484–85 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding); see also Tex. R. Civ. P. 162.  A trial court has no discretion to deny a plaintiff’s motion for nonsuit when, as here, the defendant has not made any claim for affirmative relief.  Quanto Int’l Co., 897 S.W.2d at 485. 

A nonsuit “renders the merits of the nonsuited case moot.”  See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).  “Appellate courts are prohibited from deciding moot controversies.” Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).  Mootness deprives this Court of jurisdiction.  Vally Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). 

CONCLUSION

We dismiss this appeal for lack of jurisdiction.  Tex. R. App. P. 42.3(a), 43.2(f).

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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[1]           Trial on appeal to the county court or the county court at law is de novo.  Tex. Gov’t Code Ann. §28.053(b) (West Supp. 2011).