Hanson Aggregates, LLC v. John Kowis, Carol Kowis, Gary Maple, Rhonda Maple, John McClellan, Patricia McClellan, Kirk Purdy, Stanley Metelski, and Edward Metelski ( 2020 )

Dismissed as Moot and Memorandum Opinion filed April 21, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00011-CV
HANSON AGGREGATES, LLC; RGI MATERIALS, INC.; TEXAS
CONCRETE SAND & GRAVEL, INC.; LGI LAND, LLC; LGI LAND I,
LLC; LGI GP, LLC; LGI LAND, LTD.; LGI HOLDINGS, LLC;
WILLIAMS BROTHERS CONSTRUCTION CO., INC.; LATTIMORE
MATERIALS CORPORATION; LIBERTY MATERIALS, INC.; SAN
JACINTO RIVER MATERIALS, INC.; TRIPLE P.G. SAND
DEVELOPMENT, LLC; CAMPBELL CONCRETE & MATERIALS, LLC;
GULF COAST STABILIZED MATERIALS, LLC; ALLEYTON
RESOURCE COMPANY, LLC; AND GREAT SOUTHERN STABILIZED,
LLC, Appellants
V.
JOHN KOWIS, CAROL KOWIS, GARY MAPLE, RHONDA MAPLE,
JOHN MCCLELLAN, PATRICIA MCCLELLAN, KIRK PURDY,
STANLEY METELSKI, AND EDWARD METELSKI, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2018-66557
MEMORANDUM OPINION
Appellants Hanson Aggregates, LLC; RGI Materials, Inc.; Texas Concrete
Sand and Gravel, Inc.; LGI Land, LLC; LGI Land I, LLC; LGI GP, LLC; LGI
Land, Ltd.; LGI Holdings, LLC; Williams Brothers Construction Co., Inc.;
Lattimore Materials Corporation; Liberty Materials, Inc.; San Jacinto River
Materials, Inc.; Triple P.G. Sand Development, LLC; Campbell Concrete &
Materials, LLC; Gulf Coast Stabilized Materials, LLC; Alleyton Resource
Company, LLC; and Great Southern Stabilized, LLC (collectively the “Hanson
Parties”) objected to venue in Harris County and moved the trial court to transfer
venue as to the claims filed against them by plaintiffs John Kowis, Carol Kowis,
Gary Maple, Rhonda Maple, John McClellan, Patricia McClellan, Kirk Purdy,
Stanley Metelski, and Edward Metelski (collectively the “Kowis Parties”). The
trial court overruled the Hanson Parties’ venue objections, denied their motions to
transfer venue, and determined that each of the Kowis Parties independently had
established proper venue in Harris County.
The Hanson Parties timely perfected an interlocutory appeal from the trial
court’s order under section 15.003(b) of the Civil Practice and Remedies Code. See
Tex. Civ. Prac. & Rem. Code Ann. § 15.003(b) (West, Westlaw through 2019
R.S.). The Hanson Parties also had objected to venue in Harris County and moved
the trial court to transfer venue as to the claims filed against them by numerous
intervenors. But, the trial court struck the petitions in intervention of these
intervenors and dismissed the intervenors’ claims without prejudice. When the
Hanson Parties perfected this interlocutory appeal, the Kowis Parties were the only
parties with claims still pending in the trial court whose claims had been the
subject of the Hanson Parties’ venue objections and motions to transfer venue.1
1
In each of the appellant’s briefs filed in this appeal, the appellants stated that the Kowis Parties
were the only parties with claims still pending in the trial court whose claims had been the
subject of the Hanson Parties’ venue objections and motions to transfer venue.
2
Thus, we conclude that the Kowis Parties are the appellees in this appeal, and we
denominate them as such in our opinion and judgment. The Kowis Parties are
represented by the same attorneys who represent John Earl Ellisor and other
plaintiffs in the trial court.
The Hanson Parties filed their appellants’ briefs, asserting various arguments
as to why the trial court erred in determining that Harris County is a proper venue
for the Kowis Parties’ claims against the Hanson Parties. About a week before the
appellees’ brief was due, the Kowis Parties’ attorneys filed a suggestion of
mootness, asserting that this appeal is now moot because each of the Kowis Parties
had just nonsuited their claims against the Hanson Parties in the trial court. The
Hanson Parties agree that the Kowis Parties’ nonsuit of their claims renders this
appeal moot, and they ask this court to award the appellate costs in this case to the
Hanson Parties under Texas Rule of Appellate Procedure 43.4, either because the
Hanson Parties are the prevailing parties in this appeal or for good cause. See Tex.
R. App. P. 43.4.
Appellate courts are not to decide moot controversies, a rule rooted in
constitutional prohibitions against rendering advisory opinions. See Valley Baptist
Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam); Nat’l
Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). If a judgment can
have no practical effect on an existing controversy, the case becomes moot and any
opinion issued on the merits in the appeal would constitute an impermissible
advisory opinion. See Thompson v. Ricardo, 269 S.W.3d 100, 103 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
The Kowis Parties have nonsuited their claims against the Hanson Parties.
Thus, a judgment rendered by this court as to whether the trial court erred in
concluding that venue for these claims is proper in Harris County would have no
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practical effect on an existing controversy. See Dolgencorp of Texas, Inc. v.
Espinoza, No. 04-10-00765-CV, 2011 WL 382779, at *1 (Tex. App.—San
Antonio Feb. 2, 2011, no pet.) (mem. op.). Because this appeal has become moot,
we must dismiss it on this basis. See id.
Under Rule 43.4, in this court’s judgment, the court generally should award
to the prevailing party all costs incurred by that party related to the appeal. Tex. R.
App. P. 43.4. Nonetheless, this court may tax costs otherwise as required by law
or for good cause. See id.; Dolgencorp of Texas, Inc., 2011 WL 382779, at *1.
Because this appeal has become moot before this court could reach the
merits, we cannot say that either side is the prevailing party in the appeal. The
Kowis Parties’ attorneys argue that good cause to award the appellate costs to the
Hanson Parties does not exist because the record does not show gamesmanship and
because doing so would punish the Kowis Parties for filing pleadings that the
Multi-District Litigation Panel below2 authorized them to file in October 2019. The
Hanson Parties perfected appeal on January 3, 2020. Thus, the Hanson Parties
incurred all of their appellate costs after October 2019. The Kowis Parties could
have nonsuited their claims against the Hanson Parties after October 2019, and
before the Hanson Parties incurred their appellate costs. Under the circumstances
of this case, we conclude that good cause exists to tax all the appellate costs in this
case against the Kowis Parties. See Tex. R. App. P. 43.4; John Saenz & Assoc.,
P.C. v. RGV Premier Scan LLC, No. 04-18-00366-CV, 2018 WL 4903051, at *1
(Tex. App.—San Antonio Oct. 10, 2018, no pet.) (mem. op.); Dolgencorp of
Texas, Inc., 2011 WL 382779, at *1.
2
According to the parties, the lawsuit below is part of a potential Multi-District Litigation
proceeding.
4
We dismiss the appeal as moot, and for good cause, we order the Kowis
Parties to pay all costs incurred in this appeal.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jewell and Spain.
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