Carlos Gutierrez and Joshua Rushing v. Amherst Computer Products Southwest, LP--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CARLOS GUTIERREZ and JOSHUA )

RUSHING, ) No. 08-04-00005-CV

)

Appellants, ) Appeal from the

)

v. ) 346th District Court

)

AMHERST COMPUTER PRODUCTS ) of El Paso County, Texas

SOUTHWEST, L. P., )

) (TC# 2003-5314)

Appellee. )

MEMORANDUM OPINION

This is an accelerated interlocutory appeal from an order granting a temporary injunction against Appellants Carlos Gutierrez and Joshua Rushing. See Tex.Civ.Prac.&Rem.Code Ann. ' 51.014(a)(4)(Vernon Supp. 2004); Tex.R.App.P. 28.1. After this appeal was perfected, Appellee Amherst Computer Products Southwest L.P. (AAmherst@), the plaintiff below, filed notice in the trial court in the underlying case on May 18, 2004, informing the court and all parties that it was taking a nonsuit without prejudice as to all claims against Appellants, but not as to its claims against Defendant Analytical C. S., whom Amherst had joined as a party in the lawsuit while this appeal was pending. In response, Appellants intervened in the lawsuit against Analytical C. S. on May 19, 2004. Amherst has filed a motion requesting this Court to dismiss the appeal as moot. Appellants have filed a response, arguing that the interlocutory appeal is not moot or alternatively, exceptions to the mootness doctrine apply.

Rule 162 of the Texas Rules of Civil Procedure provides that A[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes.@ Tex.R.Civ.P. 162. In Texas, the plaintiff has an absolute right to take a nonsuit upon a timely motion so long as the defendant has not made a claim for affirmative relief prior to that time. Gen. Land Office of State of Tex. v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990)(plaintiff=s voluntary nonsuit filed after entry of temporary injunction, during pendency of accelerated appeal, rendered appeal moot and required dismissal); Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982)(trial court has no discretion to deny nonsuit unless defendant has prior to notice of nonsuit filed pleadings seeking affirmative relief). As a consequence of Amherst taking a nonsuit in the underlying case, the temporary injunction at issue in this appeal dissolved automatically without need for a separate order and the appeal became moot. See Gen. Land Office of State of Tex., 789 S.W.2d at 571, citing International Ass=n of Machinists v. Federated Ass=n of Accessory Workers, 133 Tex. 624, 130 S.W.2d 283 (Tex.Comm=n App. 1939, opinion adopted).

In their response to Amherst=s motion to dismiss the appeal, Appellants argue that they are still parties in Amherst=s suit against Analytical and that they have an interest in the subject matter of the lawsuit. In their respective original answers, Appellants did not pray for affirmative relief, but rather merely resisted Amherst=s right to recover. See In re Shockley, 123 S.W.3d 642, 647 (Tex.App.--El Paso 2003, no pet.)(claim for affirmative relief in the pleading must allege a cause of action on which a party could recover, independent of the plaintiff=s claim). Appellants have attached a copy of their plea in intervention in the trial court to their response. Even if their pleading as intervenors could be construed as seeking affirmative relief independent from Amherst=s cause of action, such relief was not sought prior to the time Amherst filed notice of its nonsuit. Absent any prior cross-action or prayer for affirmative relief by Appellants, Amherst could take a nonsuit in the trial court as to its claims against them as a matter of right.

Alternatively, Appellants argue that this Court may review this appeal because the case falls within two exceptions to the mootness doctrine: (1) the capability of repetition yet evading review; and (2) the collateral consequences doctrine. The repetition exception applies when the issue avoids appellate review because the potentially recurring act is of such short duration that the appellant cannot obtain review before the issue becomes moot. Gen. Land Office of State of Tex., 789 S.W.2d at 571. To invoke the repetition exception, a plaintiff must prove that: (1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). The collateral consequences exception applies when prejudicial effects of an event are not absolved by mere dismissal of the cause as moot. Gen. Land Office of State of Tex., 789 S.W.2d at 571. We find that neither exception is applicable in this case. There is nothing in the record to indicate Amherst has or will continue to Aabuse@ the temporary injunction remedy nor are the collateral consequences of the trial court=s upholding of the Non-Compete Agreements in its now dissolved order so severe as to require appellate review.

When an appeal becomes moot, the appellate court is required to dismiss the cause of action, not merely the appeal. City of Garland v. Louton, 691 S.W.2d 603, 604 05 (Tex. 1985). Accordingly, we dismiss Amherst=s temporary injunctive relief claim against Appellants and dismiss this appeal.

May 27, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.