Tuesday, February 9, 2010

Texas Courts May Not Issue Advisory Opinions: Temporary Injunction Appeal Dismissed As Moot

Although an order granting temporary injunctive relief may be appealed, a live controversy must remain. If the temporary injunction becomes inoperative and of no effect, the appeal is rendered moot. Dismissal of want of jurisdiction is thus required, as demonstrated in this case.

NW Enterprises, Inc. v. City of Houston (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam) (temporary injunction appeal dismissed as moot, court may not render advisory opinions)


This appeal is from an order signed June 9, 2009, in which the trial court granted a temporary injunction. Appellee filed a motion to dismiss the appeal as moot and appellant responded.

In the order on appeal, the trial court enjoined appellant from operating an adult arcade and ordered appellant to secure that section of the premises. Subsequently, in accordance with a lease termination agreement between appellant and the landlord, appellant vacated the premises. Appellee and the landlord of the premises then entered into an agreed interlocutory declaratory judgment and permanent injunction declaring the premises ineligible for the operation of any sexually-oriented business.

Appellee claims the appeal is moot because appellant no longer occupies or operates an adult arcade at the premises. Appellant argues the appeal is not moot because appellant has an interest in recovering damages, resuming operations at another location, and protecting the operation of a second store that is under threat of similar injunction.

We are prohibited from reviewing a temporary injunction that is moot because such a review would constitute an impermissible advisory opinion. Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). When a temporary injunction becomes inoperative, the issue of its validity is moot. Id. We must dismiss the case once it becomes moot on appeal. Isuani v. Manske-sheffield Radiology Group, P.A.,, 802 S.W.2d 235, 236 (Tex. 1991).

The temporary injunction on appeal has clearly become inoperative. Any opinion regarding whether the trial court erred in granting the temporary injunction would therefore be advisory and without any practical legal effect. Appellee’s motion is granted and the appeal is ordered dismissed.

Before Justices Frost, Boyce and Sullivan
14-09-00561-CV N.W. Enterprises, Inc d/b/a Gaslight News & Video v. City of Houston
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel McFarland

No comments: