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Civil Litigation No. 12-03-00109-CV, 6/18/2003. Click here for the full text of this decision FACTS: This is an interlocutory appeal from the trial court’s denial of special appearances filed by Huan Le, M.D. and Tri-State Medical Clinic, A.P.M.C. Tucky Kilpatrick, Jennell Swan, Amanda Eaves and Phonzo Wayne Swan (collectively “Kilpatrick”), plaintiffs in the underlying lawsuit, filed a notice of nonsuit as to Le and also filed a motion to dismiss this appeal as moot. HOLDING: The court vacates the trial court’s order denying the special appearances, lifts the stay of the trial court proceedings and dismisses this interlocutory appeal as moot. As a general rule, a nonsuit vitiates prior interlocutory orders. However, Le points out that a trial court’s venue determination and any decision on the merits, such as a summary judgment or partial summary judgment, are not vitiated by a nonsuit. Consequently, Le suggests that, by analogy, the trial court’s denial of the special appearances in the case at hand may not be vitiated by the non-suit and therefore Le’s appeal is not moot. A venue determination made prior to a nonsuit is conclusive in a subsequent refiling of the same cause of action against the same parties. Hendrick Med. Ctr. v. Howell, 690 S.W.2d 42 (Tex. App. – Dallas 1985, orig. proceeding). This rule is consistent with the Legislature’s intent, as further reflected in Texas Rule of Civil Procedure 87, that there be only one venue determination in a cause of action. No such limitation is included in the rule relating to special appearances. Moreover, summary judgments and partial summary judgments are decisions on the merits. However, an order denying a special appearance is an interlocutory order not reflecting any judgment on the merits of the case. See Texas Rule of Appellate Procedure 120a(2). Therefore, Le’s analogy is inapposite. Le notes that defendant Vera Reed 1. seeks “an offset, credit, or percentage reduction in the event a judgment is rendered against them, because of any settlement received by Plaintiffs”; 2. asserts a “claim for contribution and/or indemnity against any . . . jointly and/or severally liable party”; and 3. “alleges that the joint and several liability provisions of Art. 33.013 of the Texas Civil Practice and Remedies Code are unconstitutional, inappropriate and impermissible.” A claim for offset or credit is not a claim for affirmative relief. Preston v. Williams, 427 S.W.2d 157 (Tex. App. – Eastland 1968, no writ). Likewise, a claim for indemnity or contribution is not a claim for affirmative relief, Pleasants v. Emmons, 871 S.W.296 (Tex. App. – Eastland 1994, no writ), nor is an assertion that an applicable statute is unconstitutional. General Land Office v. OXY U.S.A. Inc., 789 S.W.2d 569 (Tex. 1990). Consequently, a nonsuit vitiates any such claims that are pending as to a defendant against whom a non-suit is taken. Therefore, Le will not be prejudiced by the dismissal of this appeal. OPINION: Worthen, J.; Worthen, C.J., and Griffith, J.

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