Tim Schoenbauer v. Deutsche Bank National Trust Company ( 2023 )

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
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.
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