                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


UNION PACIFIC RAILROAD                            §
COMPANY,                                                            No. 08-15-00329-CV
                                                  §
                               Appellant,                              Appeal from the
                                                  §
v.                                                               County Court at Law No. 5
                                                  §
MERLINDA VIGIL, INDIVIDUALLY                                      of El Paso County, Texas
AND AS ADMINISTRATOR OF THE                       §
ESTATE OF ANDREW PHILLIP                                             (TC#2015DCV2273)
VIGIL,                                            §

                                Appellee.         §

                                 MEMORANDUM OPINION

       Appellant, Union Pacific Railroad Company has filed a motion to vacate the trial court’s

order denying its special appearance and to dismiss the appeal as moot. Appellee, Merlinda

Vigil, Individually and as Administrator of the Estate of Andrew Phillip Vigil, is unopposed to

the motion.

       Vigil filed suit against Union Pacific after her husband was fatally injured in New

Mexico. Union Pacific filed a special appearance, and alternatively, moved to transfer the case

to Harris County. The trial court denied the special appearance, but granted Union Pacific’s

request to transfer venue to Harris County. Union Pacific timely filed notice of appeal from the

denial of its special appearance. Vigil subsequently filed a notice of nonsuit.

       In its motion, Union Pacific asserts that we should vacate the order denying its special
appearance and dismiss the appeal as moot because a nonsuit, as a general rule, vitiates prior

interlocutory orders. See Le v. Kilpatrick, 112 S.W.3d 631, 633 (Tex.App.--Tyler 2003, no pet.)

(citing In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997)). A nonsuit does not vitiate a venue

determination or a decision on the merits such as a partial summary judgment, but an order

denying a special appearance is vitiated when the plaintiff takes a nonsuit. See Le, 112 S.W.3d

at 633-34. Accordingly, we grant the motion, vacate the trial court’s order denying the special

appearance, and dismiss the interlocutory appeal as moot. See Le, 112 S.W.3d at 635.



                                           STEVEN L. HUGHES, Justice
December 18, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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