                                  MEMORANDUM OPINION
                                         No. 04-11-00260-CV

                       Estevan SALINAS and Unitrin County Mutual Ins. Co.,
                                         Appellants

                                                 v.

                                         Gregorio AGUILAR
                                              Appellee

                     From the 111th Judicial District Court, Webb County, Texas
                                Trial Court No. 2009CVE001991D2
                           Honorable Monica Z. Notzon, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: March 14, 2012

AFFIRMED

           Gregorio Aguilar was injured when he was struck by a vehicle driven by Estevan Salinas.

Aguilar sued Estevan Salinas and Salinas’s insurance carrier, Unitrin County Mutual Insurance

Company (collectively, “appellants”); Aguilar also sued Juan R. Salinas, the vehicle’s owner.

Aguilar’s original petition asserted claims of negligence, gross negligence, and negligent

entrustment. Shortly thereafter, the Salinases filed a Rule 13 motion for sanctions, contending

Aguilar should have known that his allegations of gross negligence and negligent entrustment
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were groundless and brought in bad faith or for the purposes of harassment. Unitrin also filed a

motion for sanctions, contending that because Aguilar did not have standing to directly sue a

liability carrier, his claims were groundless and brought in bad faith or for the purposes of

harassment.

         Additionally, Juan Salinas moved for summary judgment, arguing that Aguilar could not

prove his claims of negligent entrustment and gross negligence as a matter of law. Estevan

Salinas also moved for partial summary judgment on the gross negligence claim. After a

hearing, the trial court granted Juan’s motion, and denied Estevan’s.

         On February 7, 2011, the morning of trial, Aguilar moved for nonsuit in open court,

dismissing all of his claims against Estevan and Unitrin. The trial court granted the Motion to

Dismiss Without Prejudice. The same day, the Salinases filed their second Rule 13 motion for

sanctions. Three days later, Aguilar filed a motion to reinstate after non-suit. The next day,

Estevan filed a Motion for Costs Due to Plaintiff’s Failure to Admit Requests for Admission.

Thereafter, the trial court set the appellants’ various motions for hearing on March 29, 2011;

however, the parties then entered into a Rule 11 agreement resetting the hearing to May 31,

2011. The record before us does not reflect whether that hearing was held.

         Appellants timely appealed, arguing that the trial court erred in (1) denying Estevan

Salinas’s motion for partial summary judgment on the gross negligence claim and (2) failing to

set their motions for sanctions for a hearing prior to the expiration of the trial court’s plenary

power.

                                           DISCUSSION

         Appellants first argue that the trial court erred in failing to grant Estevan’s motion for

partial summary judgment. Aguilar responds that the order of dismissal renders appellants’



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complaint moot. 1 We agree. A nonsuit has the effect of “rendering the merits of the case moot.”

Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101

(Tex. 2006). When Aguilar nonsuited his case, the effect of this action was to extinguish his

causes of action against appellants and to return the parties to the positions they were in before

Aguilar invoked the jurisdiction of the trial court. See id. at 100; Waterman Steamship Corp. v.

Ruiz, 355 S.W.3d 387, 399 (Tex. App.—Houston [1st Dist.] 2011, no pet.). As a result of the

nonsuit, it was as if Aguilar had never brought suit in the first place. See Hagberg v. City of

Pasadena, 224 S.W.3d 477, 484 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“When a party

nonsuits a legal action, the parties are put back in the same positions as before the filing of the

suit.”); KT Bolt Mfg. Co. v. Tex. Elec. Coops., Inc., 837 S.W.2d 273, 275 (Tex. App.—Beaumont

1992, writ denied) (“[A nonsuit] merely places [the parties] in the position that they were in

before the court’s jurisdiction was invoked just as if the suit had never been brought.”).

Accordingly, the non-suit extinguished Aguilar’s claim of gross negligence against Estevan from

the moment his notice was filed. See TEX. R. CIV. P. 162; Petras v. Criswell, 248 S.W.3d 471,

478-79 (Tex. App.—Dallas 2008, no pet.). Because there is presently no actual controversy

between the parties with respect to this claim, appellants’ challenge is moot, and we may not

address it. 2 See Camarena v. Tex. Employment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988)

(mootness doctrine dictates that courts avoid rendering advisory opinions by deciding only issues

that present an actual controversy at the time of the decision).




1
  We recognize that the denial of a partial motion for summary judgment is generally not an appealable order. See
Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966) (appellate courts do not generally have jurisdiction to
hear the denial of a motion for summary judgment on appeal); Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex.
App.—Dallas 2005, no pet.) (same).
2
  We further note that Aguilar’s Third Amended Petition—the final pleading filed before the nonsuit—did not assert
a claim of gross negligence.

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       Appellants next argue that the trial court erred in failing to set their motions for sanctions

for a hearing prior to the expiration of its plenary power.         Although a trial court retains

jurisdiction to address collateral matters such as motions for sanctions after a nonsuit, it must do

so within its plenary power period. TEX. R. CIV. P. 162; Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 863 (Tex. 2010). The expiration date for a trial court’s plenary power is calculated

from the date the court enters a final order disposing of all the claims and parties. See Unifund

CCR Partners v. Villa, 299 S.W.3d 92, 95 (Tex. 2009) (citing Crites v. Collins, 284 S.W.3d 839,

840-41 (Tex. 2009)). If a motion for sanctions is pending when a final judgment is signed, the

trial court has until the expiration of its plenary power, 30 to 105 days, to enter an order on the

motion or it loses jurisdiction to do so. See TEX. R. CIV. P. 329b; Mantri v. Bergman, 153

S.W.3d 715, 717 (Tex. App.—Dallas 2005, pet. denied); see also Scott & White Memorial Hosp.

v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996) (per curiam) (trial court cannot issue order of

sanctions after its plenary power expires). Here, the dismissal order disposed of all claims and

parties pursuant to Aguilar’s pleadings. Thus, the trial court’s plenary power ran from the date it

signed the dismissal order on February 7, 2011. See In re Bennett, 960 S.W.2d 35, 38 (Tex.

1997) (orig. proceeding) (recognizing that the signing of an order dismissing a case is the starting

point for determining when a trial court’s plenary power expires). Since post-judgment motions

were filed and not ruled upon, the trial court’s plenary power expired 105 days later on May 23,

2011. See TEX. R. CIV. P. 329b(c), (e), (g); see also State v. Approximately $2,000,000.00 in

U.S. Currency, 822 S.W.2d 721, 724 (Tex. App.—Houston [1st Dist.] 1991, no writ) (filing of

proper and timely motion to reinstate has same effect as motion for new trial in respect to

extending time for perfecting appeal).




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       Because the trial court retained jurisdiction to rule on the motions for sanctions for 105

days from the date the nonsuit was signed, the trial court did not err in setting the motions for

hearing on March 29, 2011. However, appellants agreed to reset the hearing on the pending

motions to May 31, 2011, which was past the date on which the trial court’s plenary power

expired. The record contains no other efforts by appellants to have the motions heard within the

trial court’s plenary power. Because the motions for sanctions were never heard or expressly

ruled upon, there is nothing before us to review. See TEX. R. APP. P. 33.1(a)(2) (requiring a trial

court ruling—or refusal to rule—as a prerequisite to presenting a complaint for appellate

review); In re Estate of Blankenship, No. 04-08-00043-CV, 2009 WL 1232325, at *5 (Tex.

App.—San Antonio May 6, 2009, pet. denied) (mem. op.). We thus conclude that appellants’

failure to have the motions heard, including their voluntary agreement to set the hearing on a

date outside the court’s plenary power, waives their complaint on appeal. Accordingly, we

overrule appellants’ second issue and affirm the judgment of the trial court.




                                                      Phylis J. Speedlin, Justice




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