Tommy Thomas v. Marcus McGuirt ( 2010 )

Opinion issued April 22, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-01057-CV

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Tommy Thomas, Appellant

V.

Marcus McGuirt, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2007-16132

MEMORANDUM OPINION

          This is a statutory interlocutory appeal from the district court’s denial of a motion for summary judgment that is based on an assertion of qualified immunity by former Harris County Sheriff Tommy Thomas. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon 2008); Univ. of Tex. Sw. Med. Ctr. v. Margulis, 11 S.W.3d 186, 188 (Tex. 2000).

In his live petition at the time of the summary‑judgment hearing, entitled the “Eighth Amended Complaint,” appellee Marcus McGuirt sued appellant Tommy Thomas in his individual capacity and Harris County for (1) violations of his Fourteenth Amendment substantive‑due‑process rights, using provisions of the Civil Rights Act, 42 U.S.C. § 1983 (2006), (2) negligence, and (3) gross negligence.  In his answer, Thomas raised the affirmative defense of qualified immunity. Harris County and Thomas filed a motion for summary judgment directed at McGuirt’s “Seventh Amended Complaint.”  The district court denied the motion for summary judgment, and Thomas filed a notice of appeal.

          On April 8, 2010, McGuirt filed in the district court a “non‑suit without prejudice” as to Thomas, expressly invoking the authority of Tex. R. Civ. P. 162 and expressly stating an intention of “dismissing without prejudice Defendant Tommy Thomas.”  We interpret this as McGuirt dismissing Thomas, as authorized by Tex. R. Civ. P. 163.  See C/S Solutions, Inc. v. Energy Maint. Servs. Group, LLC, 274 S.W.3d 299, 304–07 & n.7 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (discussing non‑suits and dismissals as to parties served).  Compare Tex. R. Civ. P. 162 (non‑suits) with id. 163 (dismissals).

          Thomas has filed an unopposed motion to dismiss the appeal because of mootness.  Because Thomas is represented by the Harris County Attorney, the motion to dismiss the appeal was filed by the Harris County Attorney, and the only other defendant in the “Eighth Amended Complaint” is Harris County, we conclude that no party would be prejudiced by the dismissal of Thomas, and the dismissal is effective under Rule 163.

          We grant the motion and dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  The Clerk of the Court is instructed to issue the mandate immediately.  See id. 18.6.

PER CURIAM

Panel consists of Justices Keyes, Sharp, and Massengale.