Jeffery Livesay v. Wellogix, Inc.

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Memorandum opinion issued January 9, 2003















In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01138-CV

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JEFFERY LIVESAY, Appellant



V.



WELLOGIX, INC., Appellee



On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2002-48454



MEMORANDUM OPINION

This is an interlocutory appeal by appellant, Jeffery Livesay, from the trial court's (1) October 3, 2002 temporary injunction order. On December 11, 2002, the clerk of this Court received correspondence signed by the attorneys for all parties advising that the parties were in the process of finalizing a settlement and requesting that this Court take no action in this appeal. On December 20, 2002, the clerk of this Court received from the attorney for appellee a proposed order dismissing this appeal because the parties have settled their disputes. That proposed order was accompanied by a photocopy of a joint motion to dismiss file-stamped by the district clerk on December 20, 2002, and a photocopy an order of dismissal signed by the trial court that same day. More than 10 days have elapsed, and no objection has been filed. No opinion has issued in this interlocutory appeal.

Ordinarily, we will dismiss an appeal upon the filing by appellant of a motion to dismiss with the clerk of this Court. See Tex. R. App. P. 42.1(a). No such motion has been filed with this Court. However, the existence of an actual controversy is essential to the exercise of appellate jurisdiction. See Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 935 (Tex. App.—Houston [1st Dist.] 1978, no writ). If there is no longer a controversy between the parties, we no longer have jurisdiction over the appeal.

In light of the parties' correspondence of December 6, 2002, under the authority of Tex. R. App. P. 2, we accept, and order the clerk of this Court to file, the proposed order dismissing this appeal and the accompanying photocopies of a file-stamped joint motion to dismiss that had been filed in the trial court and a file-stamped copy of an order of dismissal signed by the trial court as appellant's motion for voluntary dismissal under Tex. R. App. P. 42.1(a)(1).

Accordingly, the motion is granted, and this appeal is dismissed, each party to bear their own costs. All other pending motions are denied as moot. The clerk is directed to issue mandate within 10 days of the date of this opinion. Tex. R. App. P. 18.1.

PER CURIAM

Panel consists of Justices Taft, Alcala, and Price. (2)

1. The Honorable Ken Wise, judge of the 152nd District Court of Harris County. The underlying lawsuit is trial court cause no. 2002-48454, styled

Wellogix, Inc. v. Jeffery Livesay.

2. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.