in Re Dianna Bernsen

Opinion

NUMBER 13-18-00507-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DIANNA BERNSEN

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Justice Longoria 1

Relator Dianna Bernsen filed a petition for writ of mandamus in the above cause

seeking to compel the trial court to rule on her motion to dismiss filed on July 27, 2017

and her supplemental motion to dismiss filed on February 20, 2018. See TEX. R. CIV. P.

91a (governing the dismissal of baseless causes of action). This Court requested that

the real parties in interest, Leon R. Bernsen Sr.; guardian ad litem Tony Pletcher; Bernsen

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see id. R. 47.4 (distinguishing opinions and memorandum opinions). Farms, Ltd.; Lea Bernsen Brown as next friend of Leon R. Bernsen Sr.; Lynn Bernsen

Allison; and Sue Bernsen as independent executrix of the estate of Leon R. Bernsen Jr.,

deceased; or any others whose interest would be directly affected by the relief sought,

file a response to the petition for writ of mandamus on or before the expiration of ten days.

See TEX. R. APP. P. 52.2, 52.4, 52.8. Leon R. Bernsen Sr. filed a response to the petition

for writ of mandamus and Sue Bernsen, as independent executrix of the estate of Leon

R. Bernsen Jr., advised the court that she took no position on the petition and would not

be filing a response on the merits. None of the remaining real parties filed a response to

the petition.

On October 3, 2018, Dianna Bernsen and Leon R. Bernsen Sr. filed an “Advisory

and Joint Motion to Dismiss Petition for Writ of Mandamus.” According to their motion,

the trial court signed an order on October 1, 2018, which denied relator’s motion to

dismiss and resolved this controversy. These parties assert that the trial court has cured

the alleged error presented here and this original proceeding has been rendered moot.

They request that we dismiss this original proceeding.

The Court, having examined and fully considered the petition for writ of mandamus,

the record, and the additional filings provided by the parties to this original proceeding, is

of the opinion that this matter has been rendered moot. See City of Krum, Tex. v. Rice,

543 S.W.3d 747, 749 (Tex. 2017) (per curiam) (stating that a case is moot when there is

not a live controversy between the parties or when the parties have no legally cognizable

interest in the outcome of the case); Heckman v. Williamson Cty., 369 S.W.3d 137, 162

(Tex. 2012) (“Put simply, a case is moot when the court’s action on the merits cannot

affect the parties’ rights or interests.”); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732,

2 737 (Tex. 2005) (orig. proceeding) (“A case becomes moot if a controversy ceases to

exist between the parties at any stage of the legal proceedings, including the appeal.”).

Accordingly, we GRANT the joint motion to dismiss this original proceeding and we

DISMISS the petition for writ of mandamus as moot. See TEX. R. APP. P. 52.8(a).

NORA L. LONGORIA Justice

Delivered and filed the 4th day of October, 2018.