Opinion
NO. 01-17-00127-CV
08-24-2017
CITY OF SEALY, TEXAS; MARK STOLARSKI, MAYOR; AND LARRY KUCIEMBA, CITY MANAGER, Appellants v. TOWN PARK CENTER, Appellee
On Appeal from the 155th District Court Austin County, Texas
Trial Court Case No. 2017V-0016
MEMORANDUM OPINION
Town Park Center requests that we dismiss this interlocutory appeal as moot. Because we agree that Town Park's nonsuit mooted this appeal, we dismiss the appeal.
Background
Town Park sued the City of Sealy and the City's mayor, manager, and engineer. The engineer did not make an appearance. All other defendants filed a plea to the jurisdiction. The trial court granted the plea as to the City but denied it as to the mayor and manager. The mayor and manager filed this interlocutory appeal from the trial court's denial of their plea. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(5). The interlocutory appeal stayed the trial and "all other proceedings in the trial court pending resolution" of the appeal. Id. § 51.014(b). On Town Park's motion, we lifted the stay to permit Town Park to nonsuit its claims in the trial court, which it did.
Town Park then filed a second suit against the City of Sealy and its mayor, manager, and finance director. Town Park's second suit arises from the same economic-development agreement that was at issue in the first suit.
Town Park now requests that we dismiss the interlocutory appeal, arguing that the nonsuit has mooted the litigation. The City and its officials oppose dismissal.
The Parties' Requested Dispositions
Town Park contends that its nonsuit, which disposed of all pending claims, mooted this appeal and requests that we dismiss the appeal. The City and its officials concede that Town Park's earlier nonsuit ordinarily would render this appeal moot, but they argue that dismissal is inappropriate given that Town Park has filed a second, similar suit. The City and its officials urge us to deny the motion to dismiss, rescind our earlier order that lifted the stay, declare the nonsuit void, stay the second suit, and consider the merits of the issues raised in this interlocutory appeal.
Plaintiff-Appellees May Seek Nonsuit of Underlying Claims
Section 51.014(b) of the Civil Practice and Remedies Code states that an interlocutory appeal of the denial of a jurisdictional plea, among other orders, "stays the commencement of a trial" and "also stays all other proceedings in the trial court pending resolution of that appeal." TEX. CIV. PRAC. & REM. CODE § 51.014(b). Thus, a trial court cannot take any action on its own after an interlocutory appeal of a denial of a jurisdictional plea is filed.
But an appellate court can lift the stay in the trial court for a limited purpose. Indeed, in some appeals it is necessary for an appellate court to allow some limited trial court action during the appeal pendency, such as supplementing the record or conducting a hearing on a settlement. See Bishop v. City of Austin, No. 03-16-00580-CV, 2016 WL 5349384, at *1 (Tex. App.—Austin Sept. 20, 2016, order) (per curiam) (ordering trial court stay lifted for limited purpose of allowing district court to sign confidentiality order and district clerk to supplement the record).
The Texas Supreme Court has held that a plaintiff-appellee may nonsuit its claims during the pendency of an interlocutory appeal from the denial of a defendant's jurisdictional plea. Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100-01 (Tex. 2006) (per curiam); see Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 157 (Tex. 2007) (plaintiff had absolute right to nonsuit before resting his case in chief and nonsuit mooted case, not just appeal). Such a nonsuit requires dismissal of the defendant's appeal because the case, and not merely the appeal, is then moot. See id. A defendant-appellant's right to interlocutory review based on lack of jurisdiction, therefore, is subject to the plaintiff's right to nonsuit.
Arguments Against Non-Suit and Dismissal are Unavailing
The City and its officials argue that Town Park's right to nonsuit is limited in the procedural context here. They argue, first, that Town Park's failure to appeal the grant of the City's jurisdictional plea resulted in that order becoming final and not subject to being set aside through a nonsuit. On that argument, they urge us to rescind the order lifting the stay and allowing the nonsuit. We disagree with the premise of their argument.
Town Park had the option of filing an interlocutory appeal of the grant of the City's plea to the jurisdiction, but it was not required to do so. See TEX. CIV. PRAC. & REM. CODE § 51.014(a). It instead could choose to wait, allow the order to merge into any final judgment, and appeal all matters together. See Hernandez v. Ebrom, 289 S.W.3d 316, 318-21 (Tex. 2009); DeWolf v. Kohler, 452 S.W.3d 373, 383-84 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Thus, the failure to take an interlocutory appeal did not impair Town Park's ability to nonsuit its claims and is not a basis for prohibiting a nonsuit.
If the trial court's order granting the City's jurisdictional plea has become final, it has done so only by virtue of Town Park's nonsuit. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam) (nonsuit filed after court has ruled on claim results in dismissal of claim with prejudice).
The City and its officials argue next that dismissal of this suit will frustrate the officials' right to interlocutory review of the denial of their plea, relying on Oryx Capital International v. Sage Apartments, 167 S.W.3d 432 (Tex. App.—San Antonio 2005, no pet.). Again, we disagree. Oryx was decided before the Texas Supreme Court's opinion in Blackmon, which affirmed a plaintiff's right to nonsuit its claims regardless if an interlocutory appeal of a ruling on a plea to the jurisdiction is pending, and we are bound to follow the latter Blackmon decision. See 195 S.W.3d at 100. Moreover, Oryx is distinguishable.
In Oryx, the court of appeals entered an order staying proceedings in response to a motion made by an appealing party. 167 S.W.3d at 437. The plaintiff filed a nonsuit of its suit in the trial court and sought dismissal of the appeal. Id. The court of appeals declined to dismiss the defendant's appeal as moot and instead held that the plaintiff's nonsuit was void because it was filed in violation of the appellate court's stay of proceedings. Id. at 438-39; see City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 8-9 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (declining to dismiss defendant's appeal as moot and holding that plaintiff's amended pleading, which dropped claim at issue on appeal, was void because it was filed in violation of stay). The Oryx court noted that if the plaintiff desired to nonsuit its claims, it "should have asked this court to lift our stay so that it could file its non-suit in the trial court" but, instead, it "chose to circumvent our authority." 167 S.W.3d at 438.
This court has held that the statutory stay created by Section 51.014 is analogous to the court-imposed stay in Oryx. City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 9 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Unlike what occurred in Oryx, Town Park asked that we lift the stay to permit nonsuit and was given permission to do so. Town Park did not circumvent our appellate authority. Once its trial court claims were nonsuited, the interlocutory appeal became moot and properly subject to dismissal.
Read together, Blackmon, Oryx, and Swinerton recognize a plaintiff's general right to nonsuit its claims while an interlocutory appeal is pending but require a plaintiff to seek and obtain permission from the court of appeals before taking such action in the trial court while an appellate stay of proceedings in the trial court is in place. See TEX. CIV. PRAC. & REM. CODE § 51.014(b); cf. In re Bates, 429 S.W.3d 47, 53 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (order staying trial-court proceedings "prevents the parties and the respondent trial court from taking action in the case until they receive further orders from the appellate court").
PER CURIAM Panel consists of Justices Higley, Bland, and Brown