Raba-Kistner Consultants, Inc. v. Ocean Tower, L. P. and Antun T. Domit

• Court: Court of Appeals of Texas
• Decided: December 9, 2010
• Docket: 13-10-00578-CV
• Status: Published

Opinion

NUMBER 13-10-00578-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RABA-KISTNER CONSULTANTS, INC., Appellant,

v.

OCEAN TOWER, L.P. AND ANTUN T. DOMIT, Appellees.

On appeal from the 357th District Court of Cameron County, Texas

MEMORANDUM OPINION Before Justices Yañez, Garza, and Benavides Memorandum Opinion Per Curiam In this interlocutory appeal, appellant Raba-Kistner Consultants, Inc. challenges

the trial court’s denial of a motion to dismiss a breach of contract suit brought by

appellees, Ocean Tower, L.P. and Antun T. Domit, based on appellees’ alleged failure to

file a certificate of merit pursuant to section 150.002 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a), (f) (Vernon Supp.

2010). On November 3, 2010, appellee Antun T. Domit nonsuited his claims against

appellant. On November 4, 2010, we ordered a stay of all underlying trial court

proceedings pending consideration of the appeal. See TEX. R. APP. P. 29.3. On

December 1, 2010, we ordered that the stay be lifted to allow Ocean Tower, L.P. to

nonsuit its remaining claim against appellant in the trial court, and to allow the trial court to

render any orders that may be necessary to effectuate the nonsuit. See TEX. R. CIV. P.

162. On December 2, 2010, Ocean Tower, L.P. filed its nonsuit and trial court rendered

an order acknowledging the nonsuit and dismissing without prejudice all claims by Ocean

Tower, L.P. against appellant. See id.

On December 7, 2010, Ocean Tower, L.P. filed an “Emergency Motion to Dismiss

Appeal” with this Court, arguing that we lack jurisdiction over the appeal because no live

case or controversy involving appellant exists in the trial court. See Univ. of Tex. Med.

Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam)

(holding that the court of appeals lacked jurisdiction to issue an order and opinion on

rehearing after appellee nonsuited her claims against appellant in the trial court); see also

Found. Design, Ltd. v. Barzoukas, No. 14-08-00485-CV, 2009 Tex. App. LEXIS 4771, at

*3-9 (Tex. App.–Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (dismissing

appeal as moot after appellee nonsuited his claims against appellant in the trial court).

Having fully considered Ocean Tower, L.P.’s motion, this Court is of the opinion

that the motion is meritorious. Accordingly, the motion is GRANTED and this appeal is

hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a),

2 43.2(f). All other pending motions in this cause are hereby DENIED as moot.

PER CURIAM

Delivered and filed the 9th day of December, 2010.