Dismiss; Opinion Filed March 27, 2020




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00411-CV

                          PNC BANK, N.A., Appellant
                                    V.
                          RPCG-GP I, LLC, Appellee

               On Appeal from the 160th Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. DC-19-01763

                        MEMORANDUM OPINION
                Before Justices Pedersen, III, Reichek, and Carlyle
                         Opinion by Justice Pedersen, III
      This is an interlocutory appeal from an order denying appellant’s special

appearance. Appellee, RPCG-GP-I, LLC, filed a petition pursuant to Rule 202 of the

Texas Rules of Civil Procedure to obtain pre-suit discovery from appellant, PNC

Bank, N.A. Appellant filed a special appearance, asserting that it lacked minimum

contacts with Texas to support specific or general personal jurisdiction. Appellant

also opposed the Rule 202 petition on the merits. After a hearing, the trial court

issued an order denying appellant’s special appearance. The following day, the trial

court issued an order denying appellee’s Rule 202 petition.
      Appellant appeals the order denying its special appearance. It asserts that the

trial court erred in denying its special appearance because appellant is a non-resident

corporation that is neither incorporated nor domiciled in Texas and does not conduct

substantial operations in Texas. In response, appellee asserts that this appeal is moot

because the trial court’s denial of its Rule 202 petition disposed of all claims for

relief among the parties.

      Whether a court has subject matter jurisdiction is a legal question that is

reviewed de novo. See Tex. Nat. Resource Conservation Comm’n v. I.T.-Davy, 74

S.W.3d 849, 855 (Tex. 2002). The mootness doctrine implicates a court’s subject

matter jurisdiction. See Trulock v. City of Duncanville, 277 S.W.3d 920, 924 (Tex.

App.—Dallas 2009, no pet.).

      An appellate court is prohibited from deciding a moot controversy. See Nat’l

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). “This prohibition

is rooted in the separation of powers doctrine in the Texas and United States

Constitutions that prohibits courts from rendering advisory opinions.” Id. An appeal

becomes moot if the controversy between the parties ceases to exist or any decision

rendered by the appellate court would not affect the parties’ rights. Heckman v.

Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012) (court cannot decide case that

has become moot).

      There are two exceptions that allow an appellate court to address issues that

are otherwise moot: (1) issues that are capable of repetition yet evading review; and
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(2) issues implicating the collateral consequences doctrine. See Trulock, 277 S.W.3d

at 924 (citing Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569,

571 (Tex. 1990)). “ʻCapable of repetition yet evading review’ is a rare exception to

the mootness doctrine.” Texas A & M University–Kingsville v. Yarbrough, 347

S.W.3d 289, 290 (Tex. 2011). It is limited to situations where the following

circumstances are simultaneously present: (1) the challenged action was in its

duration too short to be fully litigated prior to its cessation or expiration, or the party

cannot obtain review before the issue becomes moot; and (2) there is a reasonable

expectation that the same complaining party would be subjected to the same action

again. Id. This exception is further limited because it has only been used to challenge

unconstitutional acts performed by the government. OXY U.S.A., 789 S.W.2d at 571;

Trulock, 277 S.W.3d at 924. The “collateral consequences” exception has been

applied when prejudicial events have occurred “whose effects continued to

stigmatize helpless or hated individuals long after the unconstitutional judgment had

ceased to operate.” In re Sierra Club, 420 S.W.3d 153, 158 (Tex. App.—El Paso

2012, orig. proceeding); see also OXY U.S.A., 789 S.W.2d at 571.

       In this case, the only controversy between the parties was appellee’s petition

for pre-litigation discovery under Rule 202 of the Texas Rules of Civil Procedure.

When the trial court denied appellee’s Rule 202 Petition, the controversy between

the parties ceased to exist. Because the controversy no longer exists, this appeal is

moot. See Trulock, 277 S.W.3d at 924. Appellant urges this Court to determine
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whether the trial court’s denial of its special appearance will have a preclusive effect

in any future litigation between the parties. However, appellant makes no allegation

that would bring the appeal of its special appearance within either exception to the

mootness doctrine.

      Having determined that the controversy between the parties is moot and no

exception to the mootness doctrine applies under the facts of this case, we overrule

appellant’s issues. Appellant’s interlocutory appeal is dismissed. TEX. R. APP. P.

42.3(a).




                                            /Bill Pedersen, III//
                                            BILL PEDERSEN, III
                                            JUSTICE
190411f.p05




                                          –4–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

PNC BANK, N.A., Appellant                    On Appeal from the 160th Judicial
                                             District Court, Dallas County, Texas
No. 05-19-00411-CV          v.               Trial Court Cause No. DC-19-01763.
                                             Opinion delivered by Justice
RPCG-GP I, LLC, Appellee                     Pedersen, III. Justices Reichek and
                                             Carlyle participating.

    In accordance with this Court’s opinion of this date, the appeal is
DISMISSED for want of jurisdiction.

      It is ORDERED that appellee RPCG-GP I, LLC recover its costs of this
appeal from appellant PNC BANK, N.A.


Judgment entered this 27th day of March, 2020.




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