                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM 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 COMPANY,
                                  Appellee

                     From the 73rd Judicial District Court, Bexar County, Texas
                          Trial Court Nos. 2014CI11445 & 2016CI05219
                         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

MOTION TO DISMISS GRANTED; JUDGMENT VACATED; CASE DISMISSED

           Christopher J. Medina struck appellant Jennifer L. Zuniga with his truck. Zuniga sued

Medina for negligence and gross negligence, and a jury returned a verdict in Zuniga’s favor. The

trial court rendered a judgment awarding Zuniga $93,244.91 in actual damages and $75,000.00 in

punitive damages. Medina appealed the jury’s finding that he was grossly negligent, and we

determined there was sufficient evidence in the record to support the finding. See Zuniga v.

Medina, 565 S.W.3d 61, 65 (Tex. App.—San Antonio 2017), rev’d, No. 17-0498, 2019 WL
                                                                                     04-18-00899-CV


1868012 (Tex. Apr. 26, 2019). Recently, the Texas Supreme Court reversed and held the evidence

to be legally insufficient to support the gross-negligence finding. See Medina v. Zuniga, No. 17-

0498, 2019 WL 1868012, at *8 (Tex. Apr. 26, 2019). The supreme court reversed our judgment

affirming the award of punitive damages and rendered judgment that Zuniga take nothing on her

gross-negligence claim. See id. On June 11, 2019, the supreme court issued its mandate.

       Medina was insured by appellee Farmers Texas County Mutual Insurance Company

(“Farmers”). Farmers paid Zuniga the entire judgment amount Medina owed Zuniga, except for

the $75,000 in punitive damages. Farmers sued Zuniga seeking a declaration that Farmers’

insurance policy with Medina did not cover punitive damages. Zuniga sued Farmers seeking to

recover the punitive damages and asserting breach of contract and extracontractual claims. The

trial court consolidated Farmers’ lawsuit against Zuniga and Zuniga’s lawsuit against Farmers.

This is the case now on appeal. The parties filed motions for summary judgment, and the trial

court granted Zuniga’s motion insofar as it sought a determination that Farmers’ policy with

Medina covered the punitive damages award. The trial court severed and abated Zuniga’s breach

of contract and extracontractual claims, pending final disposition of the coverage issue. Farmers

appealed, and we determined in Cause No. 04-16-00773-CV that Farmers’ policy with Medina did

not cover punitive damages. See Farmers Tex. Cty. Mut. Ins. Co. v. Zuniga, 548 S.W.3d 646, 648

(Tex. App.—San Antonio 2017, no pet.). We noted in our opinion: “[A]fter all other issues and

claims were severed, the parties narrowed their dispute in this cause to a single issue: whether the

insurance policy that promises to ‘pay damages for bodily injury or property damage’ covers

punitive damages assessed against Farmers’s insured.” Id. We remanded for further proceedings

consistent with the opinion. Id. at 656.

       On remand, Farmers moved for summary judgment on the coverage issue. The trial court

granted Farmers’ motion and rendered a final judgment declaring Farmers’ insurance policy with


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Medina does not cover punitive damages. The trial court further declared that Farmers has fully

satisfied its duty to defend and indemnify Medina for the final judgment in the underlying auto-

pedestrian case between Zuniga and Medina. 1 Zuniga timely appealed.

        On June 20, 2019, Farmers moved to dismiss the instant appeal as moot in light of the

recent supreme court opinion and mandate in the underlying auto-pedestrian case. See Medina,

2019 WL 1868012, at *8. Farmers argues that, because the supreme court reversed and rendered

that Zuniga take nothing on her gross-negligence claim, which was the only basis for punitive

damages, Zuniga’s instant appeal is moot. Zuniga did not respond within ten days, and we issued

an order inviting Zuniga to file a response. See TEX. R. APP. P. 10.3 (providing an appellate court

should not hear or determine a motion until ten days after the motion was filed unless an exception

is met). Zuniga thereafter filed a document entitled “Appellant Response to Motion to Dismiss,”

arguing that, because this cause is moot, we should dismiss the appeal and “vacate all previous

trial court judgments” and “vacate the appellate court’s opinion.” 2 Farmers filed a reply, arguing

we should only dismiss the instant appeal and should not vacate the trial court’s final judgment or

our previous opinion in which we determined that the insurance policy at issue did not include

coverage for punitive damages. See Zuniga, 548 S.W.3d at 648. Neither party asserted or argued

that the severed cause, which contains Zuniga’s additional claims, has any bearing on mootness in

the instant appeal.




1
  The trial court noted all of Zuniga’s other claims had been severed into a separate cause, which made the court’s
order a final, appealable judgment.
2
  Zuniga also filed a “Motion for Extension of Time to File Appellant’s Motion to Dismiss,” but Zuniga did not file
any document entitled “Motion to Dismiss.” We construe Zuniga’s motion as a request for an extension of time for
her to respond to Farmers’ motion to dismiss for want of jurisdiction. Without the extension, Zuniga’s response is a
day late. We GRANT Zuniga’s motion as construed and consider Zuniga’s response timely filed. We do not consider
whether Zuniga’s “Appellant Response to Motion to Dismiss” is a motion to dismiss because, even if it is, it is moot
upon our granting Farmers’ motion to dismiss.


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         In light of the foregoing, it appears uncontested that the case is moot. 3 Accordingly, we

grant Farmers’ motion and dismiss this appeal as moot. See Nat’l Collegiate Athletic Ass’n v.

Jones, 1 S.W.3d 83, 86 (Tex. 1999) (“Appellate courts are prohibited from deciding moot

controversies.”).

         The question remains, however, whether we must vacate the trial court’s judgment and our

judgment and opinion in the prior appeal, Cause No. 04-16-00773-CV. The Texas Supreme Court

has consistently required: “When a cause becomes moot on appeal, all previous orders and

judgments should be set aside and the cause, not merely the appeal, dismissed.” Freeman v.

Burrows, 171 S.W.2d 863, 863 (Tex. 1943). In 1972, the supreme court noted, “This has been the

course of action followed by this Court in a moot case for at least 94 years.” Carrillo v. State, 480

S.W.2d 612, 619 (Tex. 1972) (Calvert, C.J., concurring). In recent years, the supreme court has

affirmed that vacatur remains the proper course of action. See Glassdoor, Inc. v. Andra Grp., LP,

575 S.W.3d 523, 527 (Tex. 2019) (“If a case becomes moot, the court must vacate all previously

issued orders and judgments and dismiss the case for want of jurisdiction.”); City of Krum, Tex. v.

Rice, 543 S.W.3d 747, 750 (Tex. 2017) (per curiam) (vacating the judgments of the court of

appeals and the trial court, and dismissing a moot case for lack of jurisdiction).

         This rule to vacate prior judgments when a cause becomes moot is not universal. In federal

court, vacatur is an “equitable remedy whose availability depends principally on the extent to

which the mootness is attributable to the party seeking relief from the judgment.” Tex. Quarter

Horse Ass’n v. Am. Legion Dep’t of Tex., 496 S.W.3d 175, 182 n.34 (Tex. App.—Austin 2016, no

pet.) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 22–29 (1994)). The


3
  The dissent notes that sometimes one issue in a case can become moot, but not the whole case, if the case has multiple
issues. However, the instant appeal is not a multi-issue case. As we noted in our prior opinion, this case has been
narrowed to a single issue. See Zuniga, 548 S.W.3d at 648. That issue is moot, and, accordingly, the entire cause is
moot. See infra note 4.


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Texas Supreme Court, however, has not adopted the federal approach. See id.; see also Speer v.

Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 227–30 (Tex. 1993) (vacating

lower-court judgments in an appeal held to be mooted by litigants’ voluntary actions). We have

applied the Texas approach, as we must, to vacate judgments but have carved out an exception to

the general rule requiring vacatur “when the parties have bargained for and agreed upon a full and

final settlement, but wish to leave the trial court’s judgment intact as a bar to relitigation or . . . as

a means to redress a breach of the settlement agreement.” Caballero v. Heart of Tex. Pizza, L.L.C.,

70 S.W.3d 180, 181 (Tex. App.—San Antonio 2001, no pet.) (per curiam). This exception,

however, does not apply to the instant case because there is no settlement. The Third Court of

Appeals has found an exception for cases where the precise jurisdictional defect is “a lack of

appellate standing.” Tex. Quarter Horse Ass’n, 496 S.W.3d at 181–85 (dismissing the appeal,

without vacating the trial court judgment, upon determining that the appellants lacked standing to

bring their appeal). Zuniga’s standing to appeal is not at issue here, and Farmers does not assert

that it is.

         Because the Texas Supreme Court has consistently required vacatur for moot cases and

because no exception applies, we must vacate the trial court’s judgment. See Glassdoor, 575

S.W.3d at 527; Carrillo, 480 S.W.2d at 619; Tex. Quarter Horse Ass’n, 496 S.W.3d at 181–85;

Caballero, 70 S.W.3d at 181; see also City of Krum, 543 S.W.3d at 750 (holding claims had been

rendered moot by changes in the law and vacating lower-courts’ judgments). 4



4
  In its final judgment, the trial court declared: (1) the insurance policy does not cover punitive damages, (2) Zuniga
is not entitled to collect any more money from Farmers, and (3) Farmers has fully satisfied its duty to defend and
indemnify Medina. We vacate the entire judgment because, in this appeal, Zuniga sought reversal of the entire
judgment and because Zuniga’s appellate issues, all of which regard whether Farmers was required to pay punitive
damages, necessarily challenge all three declarations. Farmers asserts it is entitled to the preclusive effects of the
latter two declarations, but Farmers has not provided any authority showing that we may vacate a judgment in part in
a case that has become moot. Farmers cites only Rule 42.3(f) of the Texas Rules of Appellate Procedure, which
authorizes us to dismiss an appeal. While Rule 42.3(f) authorizes us to dismiss an appeal, Rule 42.3(e) authorizes us


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        We do not, however, vacate our opinion and judgment in the prior appeal, Cause No. 04-

16-00773-CV, because we lost plenary power over that appeal in 2017, and we have no authority

to alter the opinion and judgment under Rule 19.3 or Rule 43.2 of the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 19.1, 19.3, 43.2.

                                            CONCLUSION

        Because Zuniga’s appeal is moot, we grant Farmers’ motion to dismiss, vacate the trial

court’s judgment, and dismiss this case for want of jurisdiction.

                                                     PER CURIAM




to vacate the trial court’s judgment and dismiss the case, which we must do when a cause becomes moot under
applicable precedent. See TEX. R. APP. P. 42.3(e); Glassdoor, 575 S.W.3d at 527.


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