VIJAYRAMA POREDDY, M.D, AND AUSTIN GASTROENTEROLOGY, P.A., v. MA ANGELICA HERNANDEZ DE SOLIS, INDIVIDUALLY, AND AS NEXT FRIEND OF SERAFIN SOLIS RICO, AN INCAPACITATED PERSON, AND AS NEXT FRIEND FOR MARCO SOLIS HERNANDEZ, A MINOR; MOISES SOLIS HERNANDEZ; AND ALEJANDRA SOLIS HERNANDEZ Appeal from 53rd District Court of Travis County (concurring memorandum opinion)
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Affirmed and Memorandum Majority and Concurring Opinions filed August 22, 2023. In The Fourteenth Court of Appeals NO. 14-22-00306-CV VIJAYRAMA POREDDY, M.D. AND AUSTIN GASTROENTEROLOGY, P.A., Appellants V. MA ANGELICA HERNANDEZ DE SOLIS, INDIVIDUALLY AND AS NEXT FRIEND OF SERAFIN SOLIS RICO, AN INCAPACITATED PERSON, AND AS NEXT FRIEND FOR MARCO SOLIS HERNANDEZ, A MINOR; MOISES SOLIS HERNANDEZ; AND ALEJANDRA SOLIS HERNANDEZ, Appellees On Appeal from the 53rd District Court Travis County, Texas Trial Court Cause No. D-1-GN-20-001914 MEMORANDUM CONCURRING OPINION With the understanding that appellants have not brought the question before this courts regarding the application of Lidji when a plaintiff does not dismiss the entire case, I join both this court’s opinion and judgment. CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d 228 (Tex. 2013). Both appellants and appellees treat plaintiffs’ August 18, 2020 dismissal of their claims against some—but not all—plaintiffs named in their original petition as a Rule 162 “non-suit.” Tex. R. Civ. P. 162 (providing in part, “At 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.”). 1 While the absolute right to a non-suit under Rule 162 does not extend to a dismissal of some but not all claims, appellants neither preserve such a complaint for appellate review nor argue it on appeal. See Tex. R. App. P. 33.1(a) (preservation), 38.2(a)(1) (appellee’s brief must conform to Texas Rule of Appellate Procedure 38.1(i) (brief must contain clear and concise argument for contentions made)); see also Brown v. Robinson, No. 14-17-00754-CV, 2019 WL 1339651, at *3, n.4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2019, no pet.) (mem. op.) (“A true nonsuit under Texas Rule of Civil Procedure 162 voluntarily dismisses the entire case.”) (citing C/S Sols, Inc. v. Energy Maint. Servs. Co., 274 S.W.3d 299, 305–07 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding Texas Rule of Civil Procedure 163—not Rule 162 (non-suits)—applies to a dismissal of less than all defendants)).2 1 162. The rule uses the terms “dismissal” and “non-suit” interchangeably. See Tex. R. Civ. P. 2 The appellate record suggests that at the time of the non-suit, appellants were the only defendants that had been served and answered. I am not suggesting that appellants have waived error in the trial court or did not make a viable argument on appeal. 2 I respectfully concur. /s/ Charles A. Spain Justice Panel consists of Justices Zimmerer, Spain, and Hassan (Hassan, J., majority). 3
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