                          COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-11-00160-CV


CTL/THOMPSON TEXAS, LLC                                                   APPELLANT

                                          V.

STARWOOD HOMEOWNER'S                                                          APPELLEE
ASSOCIATION, INC.


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         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                                     OPINION
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      This is an interlocutory appeal from an order denying Appellant

CTL/Thompson       Texas,    LLC’s    motion        to   dismiss   Appellee    Starwood

Homeowner’s Association, Inc.’s claims based on Starwood’s alleged failure to

comply with the certificate of merit requirements of chapter 150 of the Texas Civil

Practice and Remedies Code.          After the trial court denied CTL’s motion to

dismiss and after CTL filed its notice of appeal perfecting this appeal,

Starwood filed a nonsuit in the trial court, nonsuiting all of its claims against all
defendants, including CTL.       Starwood subsequently filed in this court an

emergency motion to dismiss this appeal, arguing that as a result of its nonsuit,

no justiciable controversy currently exists between the parties, this appeal is now

moot, and this court possesses no jurisdiction over the appeal.

      CTL filed a response to Starwood’s emergency motion to dismiss this

appeal. CTL argues that its motion to dismiss Starwood’s claims for Starwood’s

alleged failure to comply with the statutory certificate of merit requirements is, in

fact, a motion for sanctions (seeking the sanction of dismissal with prejudice) and

that, accordingly, it constitutes an affirmative claim for relief that survives

Starwood’s nonsuit.1

      Pursuant to Texas Rule of Civil Procedure 162, a plaintiff possesses an

absolute right to nonsuit claims, except that any dismissal ―shall not prejudice the

right of an adverse party to be heard on a pending claim for affirmative relief.‖

Tex. R. Civ. P. 162. Generally, the nonsuit of the underlying case renders a


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         CTL also argues that Starwood has already refiled its claims in another
district court and that dominant jurisdiction exists in the 431st Judicial District
Court. Starwood’s actions in other trial courts and in other trial court cause
numbers, however, are not relevant to whether a justiciable controversy currently
exists in this case, whether this appeal is moot, or whether we possess
jurisdiction in this interlocutory appeal. Compare Wyatt v. Shaw Plumbing Co.,
760 S.W.2d 245, 248 (Tex. 1988) (stating that dominant jurisdiction is question of
appropriate venue based on where suit is first filed), and Gordon v. Jones, 196
S.W.3d 376, 382–83 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting that
concept of dominant jurisdiction is not jurisdictional in the sense of subject-matter
jurisdiction), with Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444–47 (Tex. 1993) (stating that lack of a real controversy between parties to a
lawsuit deprives court of subject-matter jurisdiction).


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pending appeal moot, resulting in the dismissal of the appeal. Carter v. Stevens

Transp., Inc., 225 S.W.3d 607, 608 (Tex. App.—El Paso 2006, no pet.); see also

Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) (―An appeal is moot when a

court’s action on the merits cannot affect the rights of the parties.‖).

      As mentioned above, CTL contends that its motion to dismiss Starwood’s

claims based on Starwood’s purported failure to comply with the statutory

certificate of merit requirements is a claim for affirmative relief (akin to a motion

for sanctions) that survives the nonsuit. By way of analogy, CTL points out that

when a trial court is required to dismiss a heath care liability claim under the

Medical Liability Insurance Improvement Act (MLIIA) for a claimant’s failure to

comply with statutory expert report requirements, the motion to dismiss is treated

as in the nature of a motion for sanctions, and a claimant’s nonsuit has no effect

on the pending motion to dismiss. See Villafani v. Trejo, 251 S.W.3d 466, 471

(Tex. 2008); see also Tex. R. Civ. P. 162 (providing that a nonsuit has no effect

on a pending motion for sanctions, attorney’s fees, or other costs, although a

nonsuit authorizes the clerk to tax costs against the dismissing party unless

otherwise ordered by the court).

      The statute governing certificates of merit, however, is substantially

different from the statute governing expert reports. Compare Tex. Civ. Prac. &

Rem. Code Ann. § 150.002(d)–(e) (West 2011), with id. § 74.351(a)–(b) (West

2011). Concerning dismissal of a plaintiff’s claims against a defendant design

professional for failure to comply with the statutory certificate of merit


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requirements, chapter 150 does not permit recovery of attorney’s fees, does not

provide an independent basis for taxing costs against a plaintiff, and provides for

dismissal either without prejudice or with prejudice at the trial court’s discretion; it

does not require dismissal with prejudice. See id. § 150.002(d)–(e). Chapter 74

of the MLIIA, on the other hand, requires a trial court to dismiss a health care

liability claim with prejudice if the claimant does not comply with the chapter’s

statutory expert report requirements, and it mandates an award of costs and

attorney’s fees when properly requested and proved. See id. § 74.351(a)–(b);

Trejo, 251 S.W.3d at 471. Thus, the plain language of chapter 74 concerning the

statutory consequences imposed for a failure to comply with chapter 74’s expert

report requirements makes a chapter 74 motion to dismiss a ―motion [] for

sanctions that survive[s] a nonsuit.‖      Trejo, 251 S.W.3d at 471.         The plain

language of chapter 150 concerning the statutory consequences imposed for a

failure to comply with chapter 150’s certificate of merit requirements––dismissal

without prejudice or discretion to dismiss with prejudice––does not make a

motion to dismiss pursuant to chapter 150 a motion for sanctions. See Found.

Design, Ltd. v. Barzoukas, No. 14-08-00485-CV, 2009 WL 1795130, at *2 (Tex.

App.—Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (holding that a

chapter 150 dismissal motion does not survive a nonsuit, even when the

defendant design professional seeks dismissal with prejudice).

      Because Starwood nonsuited all its claims in the trial court, because CTL’s

chapter 150 motion to dismiss is not a motion for sanctions that survives the


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nonsuit, and because this appeal is now moot, we grant Starwood’s emergency

motion to dismiss this appeal. We order this interlocutory appeal dismissed as

moot.




                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: September 29, 2011




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