Odessa Tannehill v. Building & Standards Commission and the Department of Planning & Development of the City of Austin

• Court: Court of Appeals of Texas
• Decided: October 25, 1995
• Docket: 03-95-00165-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00165-CV

Odessa Tannehill, Appellant

v.

Building & Standards Commission and the Department of Planning

& Development of the City of Austin, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. 95-02353, HONORABLE MARGARET COOPER, JUDGE PRESIDING

PER CURIAM

Appellant Odessa Tannehill sought judicial review of an order of appellee Building and Standards Commission directing that two buildings she owns be demolished. See Tex. Loc. Gov't Code Ann. § 54.039 (West Supp. 1995). Tannehill also sought a temporary injunction to enjoin demolition of the buildings pending review of the order. See Tex. Loc. Gov't Code Ann. § 54.039(e) (West Supp. 1995). Tannehill now appeals from the trial-court order denying her request for temporary injunctive relief. See Tex. Civ. Prac. & Rem. Code Ann. § 51.14(4) (West Supp. 1995); Tex. R. App. P. 42(a)(1). Because the trial court has issued a final order in the underlying proceeding, we will dismiss the appeal as moot.

The trial court dismissed the cause below based on appellees Building & Standards Commission and the Department of Planning & Development's plea to the jurisdiction. If a trial court renders a final judgment during the appeal of an order denying injunctive relief, the cause on appeal becomes moot. Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex. 1991); PCA Health Plans of Tex., Inc. v. Rapoport, 882 S.W.2d 522, 525 (Tex. App.--Austin 1994, no writ). When a case becomes moot on appeal, the appellate court must set aside all orders relating to the temporary injunction and dismiss the cause. Isuani, 802 S.W.2d at 236; Texas Foundries, Inc. v. International Moulders & Foundry Workers Union, 248 S.W.2d 460, 461 (Tex. 1952); Texas Dep't of Health v. Long, 659 S.W.2d 158, 161 (Tex. App.--Austin 1983, no writ). To decide the appeal under these circumstances would constitute an advisory opinion on an abstract question of law. Texas Parks & Wildlife Dep't v. Texas Ass'n of Bass Clubs, 622 S.W.2d 594, 596 (Tex. App.--Austin 1981, writ ref'd n.r.e.). On the other hand, to dismiss only the appeal would effectively affirm the trial-court judgment without consideration of any assignments of error. Texas Foundries, Inc., 248 S.W.2d at 461.

Accordingly, we set aside the order denying Tannehill's request for temporary injunctive relief and dismiss the portion of the cause pertaining to the request for temporary injunctive relief. Id. We express no opinion as to merits of the order granting the plea to the jurisdiction, which is not before this Court for review in this appeal. See Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978); Public Util. Comm'n v. Coalition of Cities for Affordable Util. Rates, 776 S.W.2d 224, 226 (Tex. App.--Austin 1989, no writ) (in interlocutory appeal, review is confined to validity of order that denies injunctive relief).

On March 30, 1995, this Court issued its order and writ of injunction enjoining appellees from proceeding with enforcement of the demolition order pending disposition of this appeal. See Tex. R. App. P. 43(c); Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S.W.2d 789, 790 (Tex. App.--Houston [1st Dist.] 1990, no writ). Our order and writ remain in effect until this Court issues its order dissolving its order and writ of injunction.

Before Justices Powers, Aboussie and Kidd

Order Set Aside and Cause Dismissed

Filed: October 25, 1995

Do Not Publish

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Building & Standards Commission and the Department of Planning

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

Appellant Odessa Tannehill sought judicial review of an order of appellee Building and Standards Commission directing that two buildings she owns be demolished. See Tex. Loc. Gov't Code Ann. § 54.039 (West Supp. 1995). Tannehill also sought a temporary injunction to enjoin demolition of the buildings pending review of the order. See Tex. Loc. Gov't Code Ann. § 54.039(e) (West Supp. 1995). Tannehill now appeals from the trial-court order denying her request for temporary injunctive relief. See Tex. Civ. Prac. & Rem. Code Ann. § 51.14(4) (West Supp. 1995); Tex. R. App. P. 42(a)(1). Because the trial court has issued a final order in the underlying proceeding, we will dismiss the appeal as moot.

The trial court dismissed the cause below based on appellees Building & Standards Commission and the Department of Planning & Development's plea to the jurisdiction. If a trial court renders a final judgment during the appeal of an order denying injunctive relief, the cause on appeal becomes moot. Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex. 1991); PCA Health Plans of Tex., Inc. v. Rapoport, 882 S.W.2d 522, 525 (Tex. App.--Austin 1994, no writ). When a case becomes moot on appeal, the appellate court must set aside all orders relating to the temporary injunction and dismiss the cause. Isuani, 802 S.W.2d at 236; Texas Foundries, Inc. v. International Moulders & Foundry Workers Union, 248 S.W.2d 460, 461 (Tex. 1952); Texas Dep't of Health v. Long, 659 S.W.2d 158, 161 (Tex. App.--Austin 1983, no writ). To decide the appeal under these circumstances would constitute an advisory opinion on an abstract question of law. Texas Parks & Wildlife Dep't v. Texas Ass'n of Bass Clubs, 622 S.W.2d 594, 596 (Tex. App.--Austin 1981, writ ref'd n.r.e.). On the other hand, to dismiss only the appeal would effectively affirm the trial-court judgment without consideration of any assignments of error. Texas Foundries, Inc., 248 S.W.2d at 461.

Accordingly, we set aside the order denying Tannehill's request for temporary injunctive relief and dismiss the portion of the cause pertaining to the request for temporary injunctive relief. Id. We express no opinion as to merits of the order granting the plea to the jurisdiction, which is not before this Court for review in this appeal. See Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978); Public Util. Comm'n v. Coalition of Cities for Affordable Util. Rates, 776 S.W.2d 224, 226 (Tex. App.--Austin 1989, no writ) (in interlocutory appeal, review is confined to validity of order that denies injunctive relief).

On March 30, 1995, this Court issued its order and writ of injunction enjoining appellees from proceeding with enforcement of the demolition order pending disposition of this appeal. See Tex. R. App. P. 43(c); Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S.W.2d 789, 790 (Tex. App.--Houston [1st Dist.] 1990, no writ). Our order and writ remain in effect until this Court issues its order dissolving its order and writ of injunction.

Order Set As