Opinion
No. 05-16-01439-CV
03-09-2017
DALLAS POLICE AND FIRE PENSION SYSTEM, SAM FRIAR, KEN HABEN, JOE SCHUTZ, GERALD BROWN, CLINT CONWAY, JENNIFER STAUBACH GATES, SCOTT GRIGGS, BRIAN HASS, THO TANG HO, PHILIP T. KINGSTON, KEN SPRECHER, AND ERIC WILSON, Appellants v. DOUG JONES, JAMES AULBAUGH, MICHAEL AYLWARD, ROMAN KILGORE AND TOM GAMEZ, Appellees
On Appeal from the 95th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-16-14691
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
Appellants appeal from the trial court's order denying the plea to the jurisdiction filed by Dallas Police and Fire Pension System. Soon after this interlocutory appeal was filed, appellees filed a notice of nonsuit of all their claims. On December 14, 2016, the trial judge signed an order granting the nonsuit. Appellees then filed a motion to dismiss the appeal, informing the Court that they were no longer pursuing the underlying litigation. Appellants filed a response opposing the motion.
In a case factually on point with this case, the Supreme Court of Texas held that a nonsuit granted in the trial court while an interlocutory appeal from an order denying a plea to the jurisdiction was pending deprives the court of appeals of jurisdiction over the interlocutory appeal. Univ. of Tex. Med. Branch at Galveston v. Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). The supreme court, focusing on Texas Rule of Civil Procedure 162 and a party's absolute right to take a nonsuit, states:
Rule 162 applies in this case because [appellee] filed the nonsuit while this matter was pending on interlocutory appeal from [appellant's] pretrial plea to the jurisdiction. Under these circumstances, the nonsuit extinguishes a case or controversy from "the moment the motion is filed" or an oral motion is made in open court; the only requirement is "the mere filing of the motion with the clerk of the court."Id. at 100.
Like the appellee in Blackmon, appellees nonsuited their case in the trial court while an interlocutory appeal from an order denying a plea to the jurisdiction was pending. Though not citing to Blackmon, this Court has reached the same conclusion. See In re Tecore, Inc., 371 S.W.3d 603 (Tex. App.—Dallas 2012, no pet.) (party had right to take nonsuit during trial court-imposed stay); Lensing v. Card, 417 S.W.3d 152 (Tex. App.—Dallas 2013, no pet.) (nonsuit effective to moot pending interlocutory appeal).
Accordingly, we grant appellees' motion and dismiss this appeal as moot.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 161439F.P05
JUDGMENT
On Appeal from the 95th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-16-14691.
Opinion delivered by Chief Justice Wright, Justices Lang-Miers and Stoddart participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED. Judgment entered March 9, 2017.