The City of Arlington v. Airport Properties, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-26-00024-CV
___________________________

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
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case.”

Airport Properties’s certificate of conference reflects that the City is
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unopposed to the motion.

2
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.”

3
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

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