                                Fourth Court of Appeals
                                       San Antonio, Texas
                                     DISSENTING OPINION
                                          No. 04-18-00899-CV

  Jennifer L. ZUNIGA, Individually and as Judgment Creditor and on Behalf of Christopher J.
                                          Medina,
                                         Appellant

                                                    v.

                   FARMERS TEXAS COUNTY MUTUAL INSURANCE CO.,
                                    Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2014CI11445
                          Honorable Cathleen M. Stryker, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: September 25, 2019

           I respectfully dissent. The parties do not agree the entire case is moot. Because the motions

and record before us do not affirmatively establish what aspects of this case are moot, I would

deny the parties’ motions.

                              MOOTNESS OF “THE CASE” IS CONTESTED

           The basis for the majority’s holding is that “it appears uncontested that the case is moot”

(emphasis added). Farmers seeks a dismissal of this appeal only, arguing this appeal is moot

because “the sole issue on appeal . . . is now moot” (emphasis added). In her motion and response,
Dissenting Opinion                                                                    04-18-00899-CV


Zuniga argues “this cause is moot,” and seeks a dismissal of this appeal, vacatur of the appealed

summary judgment, and other relief. In its reply, Farmers argues, “The[r]e were [other] justiciable

issues in the trial court. These issues are not moot,” and the trial court made other “declarations in

the judgment [that] were not appealed, nor were they made moot.”

        “A case is not rendered moot simply because some of the issues become moot during the

appellate process.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig.

proceeding). When an issue becomes moot on appeal, the court lacks jurisdiction to address the

merits of the issue because doing so would be advisory. Matthews v. Kountze Indep. Sch. Dist.,

484 S.W.3d 416, 418 (Tex. 2016); see, e.g., Gamboa v. Gamboa, 383 S.W.3d 263, 273 (Tex.

App.—San Antonio 2012, no pet.). When an entire case becomes moot on appeal, “the court must

vacate all previously issued orders and judgments and dismiss the case for want of jurisdiction.”

See Glassdoor, Inc. v. Andra Grp., LP, 575 S.W.3d 523, 527 (Tex. 2019).

        The majority reasons that because Farmers has argued “the sole issue” is moot, and Zuniga

responds that “the cause” is moot, then both parties have agreed the entire case is moot. Because

“[a] case is not rendered moot simply because some of the issues become moot during the appellate

process,” I respectfully disagree. See Kellogg Brown & Root, 166 S.W.3d at 737. Furthermore, the

majority’s reasoning is also inconsistent with a prior decision by this court’s analyzing mootness

on an issue-by-issue basis. See Medrano v. Hinojosa, No. 04-14-00913-CV, 2016 WL 3085935,

at *3 (Tex. App.—San Antonio June 1, 2016, no pet.) (mem. op.) (holding some issues became

moot, but proceeding to other issues that were not moot).

         NEITHER PARTY HAS ESTABLISHED WHAT ASPECTS OF THIS CASE ARE MOOT

        This appeal involves a declaratory judgment action in which an insurance company and an

insured dispute the scope of an insurance policy. A declaratory judgment action involving a dispute

about the scope of an insurance policy does not automatically become moot when a judgment is


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Dissenting Opinion                                                                    04-18-00899-CV


rendered in favor of the insured in the underlying litigation, if the declaratory judgment action is

related to any other ongoing dispute between the parties. Allstate Ins. Co. v. Hallman, 159 S.W.3d

640, 642–43 (Tex. 2005). In Allstate, the insured was sued by her neighbors for causing property

damage. Id. at 641. The insured requested defense and indemnity from Allstate. Id. Both Allstate

and the insured sought a declaratory judgment resolving their dispute about the scope of the policy

for the purpose of determining coverage. Id. However, while the declaratory judgment action was

on appeal, the jury in the suit filed by the insured’s neighbors found in the insured’s favor. Id. at

642. The supreme court noted the insured “was not found liable at trial” and thus there was

“nothing for Allstate to indemnify,” but ultimately held the appeal was not moot because there was

a related claim between the parties for attorney’s fees. Id. at 642–43.

        The outcome might be different if there were no ongoing dispute between the parties. See

Tesco Corp. (US) v. Steadfast Ins. Co., No. 01-13-00091-CV, 2015 WL 456466 (Tex. App.—

Houston [1st Dist.] Feb. 3, 2015, pet. denied) (mem. op.). In Tesco, the court of appeals held the

entire case between the parties was moot when they disputed whether an insurance policy covered

punitive damages after the punitive damages award was reversed. Id. at *3. The Tesco court

distinguished Allstate on the ground that there was no ongoing dispute between the parties, such

as a dispute over attorney’s fees. Id.

        In this appeal, the declaratory judgment pleadings have not been made part of the clerk’s

record. This court therefore cannot determine whether there are any related claims for attorney’s

fees that would place this case squarely within Allstate. I therefore disagree with the majority that

this court can definitively decide, as a matter of the constitutional authority of this court and the

trial court, that neither court has any jurisdiction over any part of this case.

        Second, the clerk’s record in this appeal affirmatively shows there is an ongoing dispute

between the parties involving claims that have been severed and abated. The parties argued in the


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Dissenting Opinion                                                                     04-18-00899-CV


trial court that the declaratory judgment action in this appeal is “inherently intertwined” with and

“involve[s] common questions of law and fact” in the parties’ ongoing dispute as to those other

claims. However, neither party has explained to this court how either (1) their dispute as to the

scope of the insurance policy is actually irrelevant to the ongoing dispute between the parties; or

(2) the reversal of the punitive damages award necessarily moots all other claims to which the

declaratory judgment action is “inherently intertwined.”

                                           CONCLUSION

        Although I cannot say with certainty this appeal or case is not moot, I disagree that this

court can conclusively decide—on this record and these motions—that both this court and the trial

court have absolutely no jurisdiction over any part of the case. The parties certainly have not agreed

on this point. I would therefore deny both parties’ motions.

                                                       Luz Elena D. Chapa, Justice




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