The University of Texas Medical Branch at Galveston v. The Estate of Darla Blackmon, By its Beneficiary Sheila Shultz and Sheila Shultz Individually--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00093-CV

The University of Texas

Medical Branch at Galveston,

Appellant

v.

The Estate of Darla Blackmon,

By its Beneficiary Sheila Shultz

and Sheila Shultz Individually,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court No. COT-01-33769

DISSENTING Opinion TO OPINION ON THE MERITS

and

DISSENTING OPINION TO ORDER

DISMISSING A MOTION TO DISMISS AS MOOT

  This interlocutory appeal has become moot because the plaintiff, appellee, has dismissed their claims against the defendant, appellant. U.T. takes the position that the general rule that a dismissal can be taken at any time is superseded by the statute that an interlocutory appeal stays all trial court proceedings. Tex. Civ. Prac. & Rem. Code Ann. 51.014(b) (Vernon Supp. 2004-05). Appellee responds that U.T. is relying on the current statute and this appeal was brought under the former statute that provided that only the commencement of the trial was stayed by an interlocutory appeal. Act of 1985, 69th Leg., ch. 959, 1, amended by Act of 2003, 78th Leg., ch. 204, 1.03 (current version at Tex. Civ. Prac. & Rem. Code Ann. 51.014(b) (Vernon Supp. 2004-05)). If we have to rely on the statute, appellee is correct, and U.T. is wrong.

But the issue here is much broader than whether the interlocutory appeal can stay all proceedings in the trial court or just the commencement of a trial date. It is questionable whether the filing of a notice of non-suit is even a proceeding within the meaning of the statute. A notice of non-suit is just that a notice. Once filed, the plaintiff no longer has a claim pending against U.T. Without an underlying claim against the appellant, there is nothing to appeal. There is no case-in-controversy. We have lost jurisdiction because the merits of the appeal are moot. When a cause becomes moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943); see also Barnett v. Conroe Independent School Dist., 455 S.W.2d 376, 381 (Tex. Civ. App. Beaumont 1970, no writ).

The majority opinion is nothing more than an advisory opinion. We have no jurisdiction to issue advisory opinions. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). Further, the majority has it exactly backwards. The correct ruling is that the motion to dismiss is granted because the appeal is moot, and anything we say on the merits of the issue as originally presented is irrelevant.

Because the majority fails to dismiss the appeal and issues a purely advisory opinion, I dissent. [1]

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed June 22, 2005

[1] In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.

Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the prior opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000).

This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion.

The Court s opinion affirming the trial court s judgment, the judgment, and Justice Vance s dissenting note, all dated October 13, 2004, were withdrawn by a divided court on April 27, 2005 in a written order, from which Chief Justice Gray dissented because a new opinion did not simultaneously replace the earlier one. The Court s opinion, Chief Justice Gray s dissenting opinion, and the judgment of this date are substituted in place of the opinion and judgment issued on October 13, 2004.