Tim Schoenbauer v. Deutsche Bank National Trust Company

Opinion

DISMISS and Opinion Filed August 1, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-23-00416-CV

TIM SCHOENBAUER, Appellant V.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST 2004-1, Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas

Trial Court Cause No. DC-22-15993

MEMORANDUM OPINION

Before Justices Nowell, Goldstein, and Breedlove Opinion by Justice Breedlove We questioned our jurisdiction over this appeal of the trial court’s order of

nonsuit dismissing appellee’s claims against appellant because it appeared to be

moot. We directed appellant to file a letter brief addressing our concern.

A plaintiff may take a non-suit at any time before it has introduced all of its

evidence. See TEX. R. CIV. P. 162. When there are no pending counterclaims, the

effect of a nonsuit of all of a plaintiff’s claims is to render the case moot. See

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Appellate courts

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lack jurisdiction to decide moot controversies. See Nat’l Collegiate Athletic Ass’n

v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).

Although appellant’s arguments in his letter brief are difficult to discern, he

argues, in part, that the order of nonsuit was improper because he had counterclaims

pending. Counterclaims are subject to the payment of a mandatory filing fee. No

right to be heard on counterclaims exists until the fee is paid and the filing is

complete. See Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); In re C.A.S.,

128 S.W.3d 681, 686 (Tex. App.—Dallas 2003, no pet.). Because the record before

the Court reflects that appellant did not pay the required mandatory filing fee, the

order of nonsuit of all of appellee’s claims against appellant rendered the case moot.

Because a controversy no longer exists between appellant and appellee, we

dismiss the appeal for want of jurisdiction. See Nat’l Collegiate Athletic Ass’n, 1

S.W.3d at 86; TEX. R. APP. P. 42.3(a).

/Maricela Breedlove/

230416f.p05 MARICELA BREEDLOVE JUSTICE

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Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

TIM SCHOENBAUER, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-23-00416-CV V. Trial Court Cause No. DC-22-15993.

Opinion delivered by Justice DEUTSCHE BANK NATIONAL Breedlove. Justices Nowell and TRUST COMPANY, AS Goldstein participating. INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST 2004-1, Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST 2004-1 recover its costs of this appeal from appellant TIM SCHOENBAUER.

Judgment entered this 1st day of August, 2023.