NO. 07-10-0107-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JIM JONES TRIGG, JR., Attorney in Fact For

MARY JANE TRIGG,  

                                                                                         Appellant

v.

PATTI T. MOORE, 

                                                                                         Appellee

_____________________________

FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY;

NO. 423,500; HONORABLE CHRISTOPHER DARROW DUGGAN, PRESIDING

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Pending before the court is Pattie T. Moore’s motion to dismiss the appeal of Jim Jones Trigg, Jr., as attorney in fact for Mary Jane Trigg.  We deny it.

            Moore requests dismissal because Trigg moved to non-suit his original petition against Moore, sought to withdraw the non-suit, and filed a second action allegedly involving the same claims and parties.  However, she fails to cite us to any authority, much less authority holding that an appeal can be dismissed simply because it emanates from a non-suit of a claim that has been re-filed.  Nor do we find any want of jurisdiction for the notice of appeal was perfected within 30 days of the date the trial court signed its order of dismissal.  In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (stating that the appellate timetable begins once the formal order of dismissal is signed).

            Finally, it seems as though the eventual issue before us will entail the ability of the trial court to dismiss a proceeding per a motion to non-suit after the movant withdraws his motion.  By seeking dismissal of this appeal, Moore effectively is asking us to address that matter without the benefit of briefing by either party.  We opt not to accept her invitation to circumvent the rules of appellate procedure, especially Rule 38 (the rule applicable to briefing).

            The motion to dismiss this appeal is denied. 

                                                                                    Per Curiam