City of Sealy, Texas, Mark Stolarski, Mayor and Larry Kuciemba, City Manager v. Town Park Center

• Court: Court of Appeals of Texas
• Decided: March 20, 2017
• Docket: 01-17-00127-CV
• Status: Published

Opinion

Order filed March 20, 2017

In The Court of Appeals For The First District of Texas ____________

NO. 01-17-00127-CV

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 2017V-0016

ORDER

This is an accelerated appeal from an interlocutory order granting the appellants’ plea to the jurisdiction. An appeal of an interlocutory order granting a plea to the jurisdiction by a governmental unit stays the commencement of a trial and all other trial court proceedings pending resolution of the appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b). On March 9, 2017, appellee, Town Park Center, filed a motion asking that we lift the stay in the trial court for the limited purpose of allowing Town Park to file a nonsuit of all claims against the defendants in the underlying lawsuit. Town Park also asks that we issue an order ruling that the trial court stay contemplated in Section 51.014(b) does not apply to a new, independent lawsuit, or alternatively, that the filing of the new lawsuit is permitted. Appellants, the City of Sealy, Texas, Mark Stolarski, Mayor, and Larry Kuciemba, City Manager [collectively “Sealy”], filed a response, opposing the motion. Town Park replied to this response. After considering the parties’ arguments and authority, we grant in part Town Park’s motion to lift the stay. Town Park has an absolute right to file a nonsuit as long as defendants have “not made a claim for affirmative relief.” See BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990); Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682, 701 (Tex. App.—Houston [1st Dist.] 2007, no pet.) The clerk’s record reveals no claim for affirmative relief by Sealy. Accordingly, we order the trial court stay lifted for the limited purpose of allowing Town Park to file its nonsuit in the trial court. See Bishop v. City of Austin, No. 03–16–00580–CV, 2016 WL 5349384, at *1 (Tex. App.—Austin Sept. 20, 2016, order) (ordering trial court stay lifted for limited purpose); City of Austin v. Baker, No. 03–16–00607–CV, 2016 WL 5349388, at *1 (Tex. App.—Austin Sept. 20, 2016, order) (same). We decline Town Park’s invitation to rule on the permissibility of the filing of a new and independent lawsuit as we construe that to be a request for an impermissible advisory opinion. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). Therefore, we deny the motion to the extent it requests this ruling. It is so ORDERED. PER CURIAM

Panel consists of Chief Justice Radack, and Justices Brown and Lloyd.