Donna Independent School District v. Maria Miranda, Individually, and as Next Friend of Simitro I. Alvarez, III, a Minor, Maribel Miranda, Individually, and as Next Friend of Lisa Rocha and Victor Aguirre, Minors and Margarita Arciniega, Individually

NUMBER 13-05-620-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG DONNA INDEPENDENT SCHOOL DISTRICT, Appellant, v. MARIA MIRANDA, INDIVIDUALLY, AND AS NEXT FRIEND OF SIMITRO I. ALVAREZ, III, A MINOR, MARIBEL MIRANDA, INDIVIDUALLY, AND AS NEXT FRIEND OF LISA ROCHA AND VICTOR AGUIRRE, MINORS AND MARGARITA ARCINIEGA, INDIVIDUALLY, Appellees. On appeal from the County Court at Law No. 4 of Hidalgo County, Texas. MEMORANDUM OPINION[1] Before Justices Hinojosa, Yañez, and Castillo Memorandum Opinion by Justice Castillo The parties do not dispute that a vehicular accident occurred on January 31, 2003, involving the Mirandas [2] and Lazaro Arevalo, an employee of Donna Independent School District ("Donna ISD"). The parties also do not dispute that two related proceedings existed in Court One (Donna ISD's counterclaims) and Court Four (the Mirandas' second lawsuit after non-suiting in Court One).[3] The trial court denied Donna ISD's motion to dismiss on statutory notice grounds and its plea in abatement. The trial court issued an order consolidating the Court One case with that in Court Four. Donna ISD appeals. Because Court Four granted Donna ISD's requested relief, we dismiss the appeal as moot. I.  ISSUES PRESENTED In three issues, Donna ISD asserts that Court Four erred in (1) denying the motion to dismiss, (2) denying the motion to abate, and (3) granting the consolidation of the two cases into the Court Four case. The Mirandas respond that the decision of Court Four was sound and the appeal is not properly before this Court. II.  PROCEDURAL HISTORY A. Court One Proceedings On April 4, 2003, the Mirandas filed a petition in Hidalgo County Court at Law Number 1 (Court One) for personal injuries alleging that Arevalo failed to stop at a stop sign. On June 12, 2003, Donna ISD and Arevalo filed a joint answer and special exceptions. On February 10, 2004, Donna ISD and Arevalo filed an amended answer asserting, in part, governmental immunity as an affirmative defense. On May 17, 2004, the Mirandas filed an amended petition ostensibly in response to the special exceptions. On August 3, 2004, Donna ISD filed a property-damage counterclaim alleging negligence and negligence per se on grounds, in part, that the driver of the Mirandas' vehicle was unlicensed and traveling in a school zone at an excessive rate of speed. On December 14, 2004, the judge presiding in Court One signed an order of non-suit as to the Mirandas' claims.[4] Donna ISD's counterclaim remained pending. B. Court Four Proceedings On December 9, 2004, the Mirandas filed a virtually identical petition in Hidalgo County Court Number 4 (Court Four), while their first petition was still pending in Court One. On February 15, 2005, Donna ISD filed a motion to dismiss asserting as grounds lack of statutory written notice of the personal injury claim under the Texas Tort Claims Act ("the Act").[5] See Tex. Civ. Prac. Rem. Code _ 101.101(a) (Vernon 2005). In the alternative, Donna ISD sought an order granting its plea in abatement on grounds that Court One acquired and retained dominant jurisdiction. In the same document, Donna ISD filed a motion to consolidate the Court One and Court Four lawsuits. The Mirandas filed a response opposing dismissal on grounds that Donna ISD, through its employee Arevalo, had actual notice that they received some injury. See Tex. Civ. Prac. Rem. Code _ 101.101(c) (Vernon 2005). In this response, the Mirandas asserted that they timely provided written notice of the claim and attached copies of two letters ostensibly reflecting compliance with statutory notice requirements. In their response, the Mirandas stipulated that Court Four should consolidate the lawsuit with that in Court One because "they involve the same questions of fact and law." 3. The Hearing Court Four convened a hearing on Donna ISD's motions. Donna ISD withdrew its motion to abate and the motion to consolidate. The reason espoused for withdrawing the latter was that the motion must be filed in Court One "because [it] has the power since [it] had original primary jurisdiction." Donna ISD sought dismissal based on lack of written and actual statutory notice under the Act. The trial court clarified Donna ISD's position as follows: The Court: So, then, it's either dismiss or abate? [Donna ISD's Counsel]: Or abate. Yes, Your Honor. . . . The abatement in this case is because [Court One] acquired primary jurisdiction. He filed over there first. There's still causes of action pending there, and this Court has an obligation under the rules of economy to just abate these proceedings here and proceed over there in [Court One]. The Mirandas' counsel argued Donna ISD had actual notice by its independent investigation at the scene of the collision and the police report. A police report was not offered in evidence. The Mirandas requested the trial court transfer the case to Court One. The record reads: [The Mirandas' Counsel]: Judge, we filed B we have another case on the same accident pending in Court 1, and we filed a Motion for Summary Judgment on B regarding liability over there, and then we got another file over here, and I'm just wondering if we should consolidate both cases over there since it was filed over there before it was filed over here. By their written and oral motions, the Mirandas requested Court Four to "consolidate" both cases to Court One. Court Four took the matter under advisement. 4. The Complained-Of Orders On August 29, 2005, Court Four signed two orders as follows: a. Order Denying Donna ISD's Motion to Dismiss The order recites as follows: On this 23rd day of March 2005, came to be heard Defendant [sic] Motion to Dismiss. The Court after receiving Plaintiffs' opposition and after reviewing the police report, which indicates, Defendant failed to yield the right of way of a stop sign [sic], denies this Motion to Dismiss. Implicit in Court Four's denial is the rejection of Donna ISD's motion to abate on grounds that Court One had primary jurisdiction by virtue of the pending first-filed counterclaims in that court. We observe that a copy of a police report is in the clerk's record; however, the police report was not in the parties' live pleadings.[6] b. Order Granting the Mirandas' Motion to Consolidate The order recites as follows: On this 23rd day of March, 2005, came to be considered Plaintiffs' Motion to Consolidate. The Court, after considering this motion finds [it] meritorious and grants it. IT IS THEREFORE ORDERED, that Motion to Consolidate Court One Cause of Action CL-42-041-A with Court Four Cause of Action CL-04-2860-D is granted. Court Four granted the sole motion before it to consolidate the case with that in Court One. Donna ISD asserts that the cases were consolidated into the Court Four cause number. However, the order states only that it consolidates the cases. Harmonizing the language of the order and its intended purpose, as more fully discussed below, we conclude that the two cases are consolidated into the Court One cause number. III.  JURISDICTION Our initial inquiry is always whether we have jurisdiction over an appeal. Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). We are obligated to determine, sua sponte, our own jurisdiction. Id. (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)). In determining our jurisdiction, we analyze the claims brought by the parties. Id. Because the question of jurisdiction is a legal question, we follow the de novo standard of review. Id. at 783 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). Jurisdiction of a court is never presumed. Id. (citing El‑Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.BHouston [14th Dist.] 1994, no writ)). If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed. Id. Therefore, we must first determine our jurisdiction to review the issues presented. A. Application to the Facts 1. The Mirandas' Motion to Consolidate Both parties ostensibly invoked Court Four's jurisdiction. The Mirandas filed a new lawsuit in Court Four even before Court One's plenary jurisdiction over the case expired.[7] Donna ISD requested Court Four dismiss the case before it on statutory notice grounds. Court Four denied the motion. Alternatively, Donna ISD requested Court Four abate the case because of the Court One case. On appeal, Donna ISD complains that Court Four must abate the case because of Court One's jurisdiction over the same claims (issue two) or must consolidate the case with the case in Court One (issue three). Importantly, the parties requested affirmative relief that the two cases be consolidated in Court One. The Mirandas expressly requested by written and oral motion that Court Four transfer its jurisdiction over the case before it to Court One. Court Four granted the motion. The order granting the Mirandas' motion to consolidate provides all the relief requested in the sole pleading before it. By its order consolidating its case with that in Court One, Court Four effectively transferred its jurisdiction to Court One.[8] By so doing, Court Four divested itself of jurisdiction over the case before it.[9] Accordingly, Donna ISD's argument that Court Four improperly retained jurisdiction instead of transferring it is not supported by the record. We turn to the question of Court Four's power to consider and deny Donna ISD's motion to dismiss, pertinent to Donna ISD's first issue. 2. Donna ISD's Motion to Dismiss or, Alternatively, Abate Before addressing the merits of this issue, we must first determine whether the controversy has become moot. See Bd. of Adjustment v. Wende, 92 S.W.3d 424, 426 (Tex. 2002); McClure v. JPMorgan Chase Bank, 147 S.W.3d 648, 651 (Tex. App.BFort Worth 2004, pet. denied). Under the classic mootness doctrine, a justiciable controversy is definite and concrete and must impact the legal relations of parties having adverse legal interests. JPMorgan, 147 S.W.3d at 651(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240‑41(1937)). Our jurisdiction is restricted to such actual controversies. Id. (citing Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)). A controversy must exist between the parties at every stage of the legal proceeding, including the appeal. Id. (citing Wende, 92 S.W.3d at at 427). Thus, when an appeal is moot, we dismiss the cause. See id. In this case, by its second issue Donna ISD seeks a determination that Court Four improperly denied its motion to abate because Court One had jurisdiction. However, Court Four granted the parties the relief sought. Thus, the appeal is moot. We pause to observe that, because Court Four transferred the case to Court One, it arguably had no power to deny Donna ISD's motion to dismiss and thus its order doing so would be void.[10] However, even assuming that Court Four had the power to deny the motion to dismiss, the order remains pending before Court One by virtue of Court Four's consolidation order.[11] IV.  CONCLUSION Because Court Four granted Donna ISD the relief it requests on appeal, we dismiss this appeal as moot. ERRLINDA CASTILLO Justice Memorandum Opinion delivered and filed this 27th day of July, 2006. [1] See Tex. R. App. P. 47.1, 47.4. [2] Appellees are Marisa Miranda, individually and as next friend of Simitro I. Alvarez, III (a minor), Maribel Miranda individually and as next friend of Lisa Rocha and Victor Aguirre (minors), and Margarita Arcinaga, individually. For ease of reference we refer to appellees collectively as "the Mirandas." [3] The Mirandas non‑suited their petition in Court One, leaving Donna ISD's counterclaims to be determined by that Court. The Mirandas do not dispute that the counterclaims remained viable after the non-suit. [4] The order recites that the Mirandas filed a motion for non-suit. The motion is not in the appellate record. In their motion to dismiss the appeal, more fully discussed below, the Mirandas assert that they "encountered difficulty in the prosecution of this lawsuit" and moved to non-suit in Court One. We observe that they filed a virtually identical lawsuit in Court Four five days before Court One signed the order of non-suit. [5] Personal injury claimants must give a governmental unit written notice of the occurrence unless the governmental unit has actual notice. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.101(a), (c). (Vernon 2005). A school district is a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(3)(B) (Vernon 2005). [6] Pursuant to Rule 201 of the Texas Rules of Evidence, judicial notice may be taken sua sponte at any stage of the proceedings of any fact which "is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Tex. R. Evid. 201. A court may take judicial notice of matters of public record for the first time on appeal. Besing v. Smith, 843 S.W.2d 20, 21 (Tex. 1992) (Mauzy, J., dissenting). Because of our disposition of this appeal, we do not decide the propriety of the trial court's reliance on the police report. [7] Generally, plaintiffs have the right under rule 162 to take a non-suit at any time until they have introduced all evidence other than rebuttal evidence. See Tex. R. Civ. P. 162; In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (citations omitted). However, the signing of an order dismissing a case, not the filing of a notice of non-suit, is the starting point for determining when a trial court's plenary power expires. Id. In this case, because rule 162 authorized the Mirandas to non-suit their claims, we do not address the reasons espoused for refiling the claim in Court Four during Court One's plenary jurisdiction over the same claim. [8] In order to consolidate the cases, they must first be transferred to the same court. [9] The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2002) (citing State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); Austin & NW. R.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (Tex. 1903)). We conclude that, consistent with the principle of deciding the question of jurisdiction before the merits, Court Four dispensed with the motion to consolidate before the motion to dismiss on grounds of statutory notice. [10] Because we have no jurisdiction over a void order, we would dismiss the appeal on that ground. See Diaz v. Diaz, 126 S.W.3d 705, 708 (Tex. App.BCorpus Christi 2004, no pet.). [11] We observe that the Mirandas' summary-judgment motion is pending in Court One.