Interlocutory appeal mooted by Plaintiff’s non-suit, even though Plaintiff refiled similar suit directly after dismissal

City of Sealy, et al.  v. Town Park Center, 01-17-00127-CV (Tex. App. – Houston [1st Dist.], August 24, 2017).

This is an opinion where the court held the appeal is moot, but where the City asserted mootness was not applicable due to a refiling.

Town Park Center sued the City of Sealy in the first lawsuit, but such claims ultimately were dismissed, without prejudice. Town Park then filed a second lawsuit against the City and the City’s mayor, manager, and engineer. While the claims are not in this opinion, the appeal records indicate the claims were for breach of contract, declaratory relief, and injunctive relief regarding an economic development agreement (the same agreement in the first lawsuit).  The City defendants filed a plea to the jurisdiction. The trial court granted the plea as to the City, but denied as to the officials. The mayor and city manager filed an interlocutory appeal staying all lower court proceedings, but Town Park requested it be lifted in order to non-suit. After a non-suit, without prejudice, was filed, Town Park filed a third lawsuit against the City, mayor, city manager, and finance director regarding the same agreement. Town Park then filed a motion in this appeal to declare the appeal moot. The City defendants opposed the dismissal arguing the claims were not moot given the live controversy upon which Town Park filed its third suit.

The City asserted the order granting the plea as to the City in the second lawsuit, which Town Park did not appeal, precludes joining the City in the third lawsuit. However, Town Park was not required to appeal the interlocutory order dismissing the City in the second lawsuit (the current appeal) since it had the option to wait until a final judgment was entered. Utilizing this process does not extend the appellant court’s jurisdiction to hear a moot claim.  Plaintiffs have a general right to nonsuit their claims even if interlocutory appeals are pending. As a result, the interlocutory appeal in the second lawsuit has become moot and is dismissed.  [Comment: the court noted in footnote #2, that the final judgment for the second lawsuit may become final due to the non-suit and such is a dismissal with prejudice for claims dismissed prior to the non-suit. However, that argument was not before them and is properly raised in the third lawsuit as to the City.]

If you would like to read this opinion click here.  Panel includes Justice Higley, Justice Bland and Justice Brown. Per curiam. The attorneys listed for the City are Pannal Alan Sanders and William S. Helfand.  The attorneys listed for Town Park Center are Andy Taylor and Gregg Alan Clements,