Raba-Kistner Consultants, Inc. v. Ocean Tower, L. P. and Antun T. Domit ( 2010 )

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.
3