Wolfgang P. Hirczy De Mino, Ph.D. v. Felipe N. Gomez ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00017-CV
Wolfgang P. Hirczy DE MINO, Ph.D.,
Appellant
v.
Felipe N. GOMEZ,
Appellee
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CI19920
Honorable Cathy Stryker, Judge Presiding
PER CURIAM
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: February 16, 2022
DISMISSED FOR LACK OF JURISDICTION
Appellee moves to dismiss this appeal for lack of jurisdiction. We grant the motion and
dismiss this appeal.
On September 20, 2021, appellee filed a petition against Dr. Alan Braid (1) alleging Dr.
Braid performed an abortion in Texas and (2) seeking to have the trial court declare Section
171.208 of the Texas Civil Practice and Remedies Code (colloquially called “SB8”) declared
unconstitutional and “illegal as written and as applied until Roe v. Wade is reversed or modified.”
By subsequent amendments, appellee added numerous parties—including appellant.
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On October 11, 2021, appellant filed a plea to the jurisdiction in which appellant argued
appellee “has no standing to assert a viable claim” against Dr. Braid or appellant. The plea asserted
additional bases for a lack of jurisdiction, requiring entry of an involuntary dismissal for lack of
subject matter jurisdiction.
On December 8, 2021, appellee filed a “Notice of Nonsuit without Prejudice as to All
Defendants.” On December 20, 2021, appellee filed an “Amended Notice of Nonsuit, Amending
to Dismiss WITH Prejudice as to All Defendants.” The trial court did not enter an order on either
nonsuit. Appellant subsequently filed a “response,” “objections,” and a “motion to alter the
judgment of dismissal and request for additional post-judgment relief.”
On January 6, 2022, appellant filed his notice of appeal. On January 24, 2022, appellee
filed a motion styled “Gomez Motion to Dismiss Appeal, Instanter, for Lack of Standing and Lack
of Order or Judgment Below to Appeal.” In substance, appellee’s motion argues this appeal should
be dismissed because there is no order or judgment entered below and because appellant lacks
standing. On January 26, 2022, we issued an order authorizing appellant to file a response to
appellee’s motion to dismiss no later than February 7, 2022. On February 3, 2022, appellant filed
a response.
“The plaintiff’s right to take a nonsuit is unqualified and absolute as long as the defendant
has not made a claim for affirmative relief.” Morath v. Lewis, 601 S.W.3d 785, 787 (Tex. 2020)
(emphasis in original) (quoting BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990)).
A plaintiff may take a nonsuit at any time before it has introduced all its evidence other than
rebuttal evidence. See TEX. R. CIV. P. 162. “If a claim is timely nonsuited, the controversy as to
that claim is extinguished, the merits become moot, and jurisdiction as to the claim is lost.” City
of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011); see Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010) (noting nonsuit “renders the merits of the nonsuited case moot”). A
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nonsuit is effective when filed and extinguishes a case or controversy from the moment of filing
or an oral motion made in open court. See Univ. of Tex. Med. Branch at Galveston v. Estate of
Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).
Here, appellee nonsuited his claims before any defendant entered a general appearance in
the trial court. Thus, appellee’s timely nonsuit extinguished the only claim brought in the trial
court, the trial court lost jurisdiction over appellee’s entire case from the moment of the nonsuit’s
filing, and we have no jurisdiction over this appeal. See Morath, 601 S.W.3d at 788 (holding
nonsuit mooted entire case, depriving appellate courts of jurisdiction). Accordingly, we grant
appellee’s motion to dismiss and dismiss this appeal for want of jurisdiction.
PER CURIAM
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