Tuesday, October 13, 2009

Nonsuit Moots Pending Interlocutory Appeal, Panel Says

Following Texas Supreme Court precedent, Houston's First Court of Appeals, in a panel opinion written by its Chief Justice, dismisses interlocutory appeal, holding that the controversy was mooted when the underlying proceeding was nonsuited in the trial court. (As an aside, one of the Plaintiffs in the case involving a condominium dispute happens to be a Harris County Family Court Judge).


In this case we consider whether an appeal challenging an interlocutory order is rendered moot after all parties non-suit their claims in the trial court. We grant appellees' motion to dismiss the appeal for lack of a justiciable controversy.


Appellees are homeowners who own units in the Royalton at River Oaks Condominium in Houston, Texas. The appellants are the developers of the condominium complex.

The homeowners sought a declaratory judgment that the developer-controlled board of administrators of the condominium complex was illegitimate and that a new election for the board of administrators must be held. The homeowners also sought an injunction preventing an improper election and ordering a proper election. Both sides agreed to a temporary restraining order so that a temporary-injunction hearing could be held.

The developers then filed a plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction until all of the condominium owners were joined in the suit and served. The trial court denied the developers' plea to the jurisdiction and then ordered an election for the board of the condominium complex to occur. The developers did not file an interlocutory appeal from this ruling. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon 2008).

In compliance with the temporary injunction order, an election was held and a new board was elected. On that same date, the developers filed an amended answer and asserted a claim seeking a declaratory judgment that provisions of the Texas Uniform Condominium Act control over the language of the condominium declarations.

The homeowners nonsuited all of their remaining claims against the developers, and the trial court entered an order dismissing the homeowners' claims against the developers.

The developers then nonsuited their claims against the homeowners. The trial court signed an order dismissing the developers' claims against the homeowners. No live claims remained in the case. The developers filed a notice of appeal indicating that they wished to challenge the trial court's denial of their plea to the jurisdiction.


The homeowners filed a motion to dismiss the appeal as moot, arguing that the nonsuit of all live claims deprives this Court of a justiciable issue. We agree.

In University of Texas Medical Branch at Galveston v. Blackmon, 195, S.W.3d 98, 100 (Tex. 2008) [Tex. 2006], the daughter of an inmate who died at UTMB filed suit against the medical facility. UTMB filed a plea to the jurisdiction, which the trial court denied. Id. UTMB then filed an interlocutory appeal. Id. While the appeal was pending, the plaintiff non-suited her claim against UTMB. The supreme court held that, because the plaintiff non-suited her case in the trial court, the court of appeals lacked jurisdiction to consider trial court's ruling on the plea to the jurisdiction. Id. at 101. The plaintiffs' nonsuit vitiated the trial court's interlocutory order denying UTMB's plea to the jurisdiction, thus there was nothing for the appellate court to review. Id.

The developers argue that Blackmon is distinguishable because they had filed claims for affirmative relief, and Blackmon noted that a nonsuit cannot "prejudice the right of an adverse party to be heard on a pending claim for affirmative relief[.]" See Id. at 100. However, the developers nonsuited their own claims for affirmative relief before filing the notice of appeal. Therefore, the developers do not have any pending claim for affirmative relief in the trial court.

By dismissing their affirmative claims for relief rather than pursuing them to final judgment, the developers have rendered moot the trial court's interlocutory ruling on their plea to the jurisdiction.


Accordingly, we grant the appellees' motion and dismiss the appeal because of the lack of a justiciable controversy.

Sherry Radack

Royalton Condominium, LP v. Albright (Tex.App.- Houston [1st Dist.] Oct. 8, 2009) (Radack) (effect of nonsuit in the trial court on pending appellate proceeding) (pending interlocutory appeal mooted by nonsuit in the trial court)(mootness doctrine)
Chief Justice Radack
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00139-CV Royalton Condominiums, L.P. and The Royalton Management, Inc. v. Gerry Albright, Vivian Leong, Ronald Gensburg, Hal Kuntz, Annette Kuntz, Lucky Chopra and Alvin Thomas
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. Al Bennett

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