in Re: Bryan Adam Bush and Gerald Morgan ( 2014 )

NO. 12-12-00326-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: BRYAN ADAM BUSH §
AND GERALD MORGAN § ORIGINAL PROCEEDING
RELATORS §
MEMORANDUM OPINION
Bryan Adam Bush, Gerald Morgan, and Government Employees Insurance Company
(GEICO) are defendants in a personal injury action filed by the real party in interest, John
Battles. Bush and Morgan, Relators, request a writ of mandamus directing the trial court to sever
Battles’s claim for underinsured motorist (UIM) benefits against GEICO from his negligence
claims against Relators. The respondents are the Honorable Charles R. Mitchell, Judge of the
273rd Judicial District Court, Shelby County, Texas, and the Honorable Guy W. Griffin, former
Judge of the 123rd District Court, Shelby County, Texas.
Judge Griffin signed the order denying severance that forms the basis of this proceeding,
although the case is actually docketed to be tried before Judge Mitchell. Judge Griffin no longer
presides over the 123rd Judicial District Court, and the Honorable Charles “Brick” Dickerson,
the current presiding judge of that court, was automatically substituted as a respondent in this
proceeding. See TEX. R. APP. P. 7.2(a).
We abated the proceeding to allow Judge Dickerson to reconsider Judge Griffin’s
decision. See TEX. R. APP. P. 7.2(b) (requiring abatement if case is original proceeding under
Rule 52 to allow successor to reconsider original party’s decision); In re Baylor Med. Ctr. at
Garland, 280 S.W.3d 227, 227 (Tex. 2008) (orig. proceeding). Subsequently, we received an
order signed by Judge Dickerson granting Relators’ motion to sever the UIM claim from the
negligence claims. In the order, Judge Dickerson also granted Relators’ motion to transfer venue
of the negligence claims to Nacogdoches County, Texas. In this court, Relators filed a motion
for leave to withdraw their mandamus petition and to dismiss the proceeding.
Because Judge Dickerson granted the relief requested by Relators, this mandamus
proceeding is moot. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 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.”); State Bar of Texas v. Gomez, 891
S.W.2d 243, 245 (Tex. 1994) (stating that, for a controversy to be justiciable, there must be a real
controversy between the parties that will be actually resolved by the judicial relief sought).
Accordingly, we reinstate this proceeding, grant Relators’ motion to dismiss, and dismiss
Relators’ petition for writ of mandamus as moot.
BRIAN HOYLE
Justice
Opinion delivered February 19, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 19, 2014
NO. 12-12-00326-CV
BRYAN ADAM BUSH AND GERALD MORGAN,
Relators
V.
HON. CHARLES (BRICK) DICKERSON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed
by BRYAN ADAM BUSH AND GERALD MORGAN, who are the defendants in Cause No.
09CV30,850, pending on the docket of the 123rd Judicial District Court of Shelby County,
Texas. Said petition for writ of mandamus having been filed herein on September 25, 2012, and
the same having been duly considered, because it is the opinion of this Court that a writ of
mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that
the said petition for writ of mandamus be, and the same is, hereby DISMISSED AS MOOT.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.