Johnnie Lee Carter v. Stevens Transport Inc.--Appeal from County Court at Law No 5 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOHNNIE LEE CARTER, )

) No. 08-06-00132-CV

Appellant, )

) Appeal from the

v. )

) County Court at Law #5

STEVENS TRANSPORT, INC., )

) of El Paso County, Texas

Appellee. )

) (TC# 2006-1387)

)

O P I N I O N

This appeal arises from a breach of contract action filed by Appellant Johnnie Lee Carter against Appellee Stevens Transport, Inc. During the pendency of the underlying action, Appellant filed a notice of intent to orally depose Appellee. In response, Appellee moved to quash Appellant=s notice of intent to depose. The trial court granted Appellee=s motion and Appellant appealed the trial court=s ruling. While his appeal was pending, Appellant non suited the underlying case.

Pending before the Court is Appellee=s motion to dismiss this appeal pursuant to Tex.R.App.P. 42.3. When the judgment of this Court can have no effect on an existing controversy, a case becomes moot. Restrepo v. First National Bank of Dona Ana County, New Mexico, 888 S.W.2d 606, 607 (Tex.App.--El Paso 1994, no writ). Because Appellant has taken a non-suit in the trial court, a judgment of this Court can have no effect on an existing controversy, because there is no longer any controversy. See Restrepo, 888 S.W.2d at 607. Thus, Appellant=s case has become moot. See id. Accordingly, we grant Appellee=s motion and dismiss the appeal.

July 6, 2006

DAVID WELLINGTON CHEW, Justice

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