

 

 
 
 
 
 
NUMBER 13-10-00578-CV
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI - EDINBURG
                                                        
             
 
RABA-KISTNER
CONSULTANTS, INC.,                                   Appellant,
 
v.
 
OCEAN
TOWER, L.P. AND ANTUN T. DOMIT,                        Appellees.
            
                                                         
 
On appeal from the
357th District Court
of Cameron County,
Texas
                                            
                         
 
MEMORANDUM OPINION
 
Before Justices Yañez,
Garza, and Benavides
Memorandum Opinion
Per Curiam
 
In
this interlocutory appeal, appellant Raba-Kistner Consultants, Inc. challenges
the trial court’s denial of a motion to dismiss a breach of contract suit
brought by appellees, Ocean Tower, L.P. and Antun T. Domit, based on appellees’
alleged failure to file a certificate of merit pursuant to section 150.002 of
the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (f)
(Vernon Supp. 2010).  On November 3, 2010, appellee Antun T. Domit nonsuited
his claims against appellant.  On November 4, 2010, we ordered a stay of all
underlying trial court proceedings pending consideration of the appeal.  See
Tex. R. App. P. 29.3.  On
December 1, 2010, we ordered that the stay be lifted to allow Ocean Tower, L.P.
to nonsuit its remaining claim against appellant in the trial court, and to
allow the trial court to render any orders that may be necessary to effectuate
the nonsuit.  See Tex. R. Civ. P.
162.  On December 2, 2010, Ocean Tower, L.P. filed its nonsuit and trial court
rendered an order acknowledging the nonsuit and dismissing without prejudice
all claims by Ocean Tower, L.P. against appellant.  See id.
On December 7, 2010, Ocean Tower, L.P.
filed an “Emergency Motion to Dismiss Appeal” with this Court, arguing that we lack
jurisdiction over the appeal because no live case or controversy involving
appellant exists in the trial court.  See Univ. of Tex. Med. Branch at
Galveston v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006) (per
curiam) (holding that the court of appeals lacked jurisdiction to issue an
order and opinion on rehearing after appellee nonsuited her claims against
appellant in the trial court); see also Found. Design, Ltd. v. Barzoukas,
No. 14-08-00485-CV, 2009 Tex. App. LEXIS 4771, at *3-9 (Tex. App.–Houston [14th
Dist.] June 25, 2009, no pet.) (mem. op.) (dismissing appeal as moot after
appellee nonsuited his claims against appellant in the trial court).
Having fully considered Ocean Tower,
L.P.’s motion, this Court is of the opinion that the motion is meritorious.  Accordingly,
the motion is GRANTED and this appeal is hereby DISMISSED FOR WANT OF
JURISDICTION.  See Tex. R. App.
P. 42.3(a), 43.2(f).  All other pending motions in this cause are hereby
DENIED as moot.
 
                                                                                                PER
CURIAM
 
Delivered
and filed the
9th
day of December, 2010.

