Bridgestone Corporation v. Stubrin, Dario Fabrian, et al.--Appeal from 193rd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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BRIDGESTONE CORPORATION, ) No. 08-02-00124-CV

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Appellant, ) Appeal from

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v. ) 193rd District Court

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DARIO FABIAN STUBRIN, ET AL., ) of Dallas County, Texas

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Appellees. ) (TC# 02-02972-L)

O P I N I O N

This is an accelerated interlocutory appeal involving the trial court=s denial of Bridgestone Corporation=s special appearance. Pending before the Court is an agreed motion to vacate the trial court=s order and dismiss the appeal because the underlying suit has been effectively dismissed. We vacate the trial court=s order denying the special appearance and dismiss the appeal as moot.

Following the institution of this appeal, Dario Fabian Stubrin, Appellee, filed an amended petition which seeks no affirmative relief against Bridgestone. This has the effect of dismissing or non-suiting the action against Bridgestone. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); United Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 844 (Tex.App.--Corpus Christi 1999, pet. dism=d). Further, the dismissal of the action against Bridgestone vitiates the earlier interlocutory orders. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997). Accordingly, this appeal is rendered moot. Ordinarily, we are required to set aside the trial court=s interlocutory order that is the subject of this appeal and dismiss the underlying cause of action, not merely the appeal. Olson v. Commission for Lawyer Discipline, 901 S.W.2d 520, 525 (Tex.App. -El Paso 1995, no pet.), citing Speer v. Presbyterian Children=s Home and Service Agency, 847 S.W.2d 227, 229 (Tex. 1993). In this case, however, the underlying action has effectively been dismissed by the filing of the amended petition so it is unnecessary for this Court to dismiss Stubrin=s suit against Bridgestone. Accordingly, we vacate the order denying Bridgestone=s special appearance and dismiss the appeal as moot.

September 19, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

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