Court of Appeals of Texas, Twelfth District, Tyler
IN RE: PHILADELPHIA INDEMNITY INSURANCE COMPANY, RELATOR
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Buildings has filed a motion for rehearing, which is granted.
We withdraw our June 7, 2017 opinion and judgment and
substitute the following opinion and corresponding judgment
in their place.
Indemnity Insurance Company seeks mandamus relief from the
trial court's order denying its motion to transfer
venue. We dismiss this original proceeding as
2014, Red Dot Buildings and Rigney Construction and
Development, L.L.C. entered into a subcontract related to the
construction of a school in Brooks County, Texas. Red Dot
secured a payment bond from Philadelphia for the project in
accordance with Chapter 2253 of the Texas Government Code.
dispute subsequently arose between Red Dot and Rigney, Red
Dot sued for breach of contract. Rigney moved to transfer
venue to Hidalgo County. The trial court denied the motion.
Red Dot also made a payment bond claim with Philadelphia. In
its first amended petition, Red Dot brought Philadelphia into
the lawsuit under Chapter 2253 of the Texas Government Code.
Philadelphia filed a motion to transfer venue with its
original answer, asserting that the case must be transferred
to Brooks County under section 2253.077 of the government
code. Citing that venue had been determined before
Philadelphia was a party, the trial court denied
Philadelphia's motion to transfer. This original
first address Red Dot's argument that this proceeding is
moot. Following the filing of Philadelphia's mandamus
petition, Red Dot nonsuited its case against Philadelphia.
Nevertheless, Philadelphia argues that its petition is not
moot because the claims against it can be refiled, the case
presents an issue of public importance, and venue is still
mandatory in Brooks County because Brooks County Independent
School District is now a party to the lawsuit.
have an obligation to take into account intervening events
that may render a lawsuit moot." Heckman v.
Williamson Cnty., 369 S.W.3d 137, 166-67 (Tex. 2012).
Appellate courts lack jurisdiction to decide moot
controversies and render advisory opinions. See Nat'l
Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86
(Tex. 1999). A justiciable controversy between the parties
must exist at every stage of the legal proceedings, including
the appeal, or the case is moot. Williams v. Lara,
52 S.W.3d 171, 184 (Tex. 2001). "If a controversy ceases
to exist-the issues presented are no longer 'live' or
the parties lack a legally cognizable interest in the
outcome-the case becomes moot." Id.; see
Tex. Health Care Info. Council v. Seton Health Plan, 94
S.W.3d 841, 846 (Tex. App.-Austin 2002, pet. denied). The
same is true if an appellate court's judgment cannot have
any practical legal effect upon a then existing controversy.
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.").
are two exceptions which will allow an appellate court to
address issues that are otherwise moot: (1) capable of
repetition yet evading review; and (2) collateral
consequences. In re S.J.C., 304 S.W.3d 563, 568
(Tex. App.-El Paso 2010, no pet.) (citing Gen. Land
Office of the State of Tex. v. OXY U.S.A., Inc., 789
S.W.2d 569, 571 (Tex. 1990). The "capable of repetition,
yet evading review" exception applies only in rare
circumstances. Tex. A & M Univ.-Kingsville v.
Yarbrough, 347 S.W.3d 289, 290-91 (Tex. 2011);
Williams, 52 S.W.3d at 184. To invoke the exception,
a plaintiff must prove that: (1) the challenged action was
too short in duration to be litigated fully before the action
ceased or expired; and (2) a reasonable expectation exists
that the same complaining party will be subjected to the same
action again. Yarbrough, 347 S.W.3d at 290;
Williams, 52 S.W.3d at 184-85; Blum v.
Lanier, 997 S.W.2d 259, 264 (Tex. 1999); OXY
U.S.A., 789 S.W.2d at 571 (Tex. 1990); In re Fort
Worth Star Telegram, 441 S.W.3d 847, 852 (Tex. App.-Fort
Worth 2014, orig. proceeding). An issue does not evade
appellate review if appellate courts have addressed the issue
on the merits. Meeker v. Tarrant Cnty. Coll. Dist.,
317 S.W.3d 754, 762 (Tex. App.-Fort Worth 2010, pet. denied).
The mere physical or theoretical possibility that the same
party may be subjected to the same action again is not
sufficient. City of Dallas v. Woodfield, 305 S.W.3d
412, 419 (Tex. App.-Dallas 2010, no pet.); see Coburn v.
Moreland, 433 S.W.3d 809, 826 (Tex. App.-Austin 2014, no
"collateral consequences" exception has been
applied when prejudicial events have occurred "whose
effects continued to stigmatize helpless or hated individuals
long after the unconstitutional judgment had ceased to
operate." In re Salgado, 53 S.W.3d 752, 757
(Tex. App.-El Paso 2001, orig. proceeding) (quoting OXY
U.S.A., 789 S.W.2d at 571). The exception is
"invoked only under narrow circumstances when vacating
the underlying judgment will not cure the adverse
consequences suffered by the party seeking to appeal that
judgment." Marshall v. Housing Auth. of the City of
San Antonio, 198 S.W.3d 782, 789 (Tex. 2006). "Such
narrow circumstances exist when, as a result of the
judgment's entry, (1) concrete disadvantages or
disabilities have in fact occurred, are imminently threatened
to occur, or are imposed as a matter of law; and (2) the
concrete disadvantages and disabilities will persist even
after the judgment is vacated." Id.
case, the trial court's denial of Philadelphia's
motion to transfer venue became irrelevant when Red Dot
nonsuited Philadelphia in the underlying proceeding. As a
result, the controversy underlying this original proceeding
has become moot. See Nat'l Collegiate Athletic
Ass'n, 1 S.W.3d at 86. Further, the capable of
repetition yet evading review exception does not apply
because the record does not indicate that the challenged