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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