The City of Arlington v. Airport Properties, Inc.

Opinion

In the

Court of Appeals Second Appellate District of Texas at Fort Worth

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No. 02-26-00024-CV

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THE CITY OF ARLINGTON, Appellant V.

AIRPORT PROPERTIES, INC., Appellee

On Appeal from the 96th District Court Tarrant County, Texas

Trial Court No. 096-372841-25

Before Sudderth, C.J.; Kerr and Walker, JJ.

Memorandum Opinion by Justice Walker

MEMORANDUM OPINION

Airport Properties, Inc. sued the City of Arlington, and the City—asserting governmental immunity—filed a plea to the jurisdiction. The trial court denied the City’s plea to the jurisdiction, and the City filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).

However, shortly after the City filed its notice of appeal, Airport Properties moved to nonsuit all of its claims against the City. See Tex. R. Civ. P. 162. The trial court granted Airport Properties’s motion and dismissed the claims without prejudice.1 See id. Because no claims remain pending in the trial court, Airport Properties moved to dismiss this appeal as moot.2 A plaintiff may voluntarily dismiss a case or take a nonsuit at any time before all the plaintiff’s evidence other than rebuttal evidence has been introduced. Id. A plaintiff has an absolute right to take a nonsuit. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A plaintiff’s nonsuit typically moots the entire case or controversy. See, e.g., Morath v. Lewis, 601 S.W.3d 785, 788 (Tex. 2020); Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010); Univ. of Tex. Med. Branch at Galveston v. Est. of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006).

The order memorializes that it “dispose[d] of all claims and parties in this 1

case.”

Airport Properties’s certificate of conference reflects that the City is 2

unopposed to the motion.

3

Exceptions exist, however, such as when a defendant has asserted an independent claim for affirmative relief. Klein, 315 S.W.3d at 3 (citing Gen. Land Off. of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990)); see, e.g., Villafani v. Trejo, 251 S.W.3d 466, 468–71 (Tex. 2008) (explaining that plaintiff’s nonsuit did not render moot trial court’s order denying defendant’s motion for dismissal with prejudice and attorney’s fees under statute); Felderhoff v. Knauf, 819 S.W.2d 110, 110–11 (Tex. 1991) (holding that plaintiff’s nonsuit did not preclude plaintiff from challenging trial court’s order granting defendants’ monetary-sanctions motion against him). But neither Airport Properties nor the City has responded that such a claim exists here, and the record reflects none.3 We are prohibited from deciding moot controversies because the Texas Constitution’s separation-of-powers provision prohibits advisory opinions. See Tex. Const. art. II, § 1; Klein, 315 S.W.3d at 3; see also Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (“A judicial decision reached without a case or controversy is an advisory opinion, which is barred by the separation[-]of[-]powers provision of the Texas Constitution.”). Here, there is no controversy for us to decide because Airport Properties’s nonsuit ended the entire case. When a case becomes moot, the parties lose standing to maintain their claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex.

3 The trial court’s nonsuit order recites that “[the City] has asserted no counterclaims or claims for affirmative relief that remain pending, and no claims remain pending between [Airport Properties] and [the City] in this cause.”

4

2001); see In re Est. of Garza, No. 13-14-00730-CV, 2015 WL 3799370, at *3 (Tex. App.—Corpus Christi–Edinburg, no pet.) (mem. op.) (explaining that when a plaintiff nonsuits his claims, “there is no longer a case or controversy, and the court of appeals has no jurisdiction over the suit”). Accordingly, we grant Airport Properties’s motion and dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

/s/ Brian Walker

Brian Walker

Justice

Delivered: March 19, 2026