Opinion

Opinion issued October 8, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-09-00139-CV

____________

ROYALTON CONDOMINIUMS, L.P. AND THE ROYALTON

MANAGEMENT, INC., Appellants

V.

GERRY ALBRIGHT, VIVIAN LEONG, RONALD GENSBURG, HAL

KUNTZ, LUCKY CHOPRA AND ALVIN THOMAS, Appellees

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2008-68400

MEMORANDUM OPINION

In this case we consider whether an appeal challenging an interlocutory

order is rendered moot after all parties non-suit their claims in the trial court. We

grant appellees' motion to dismiss the appeal for lack of a justiciable controversy.

BACKGROUND

Appellees are homeowners who own units in the Royalton at River Oaks

Condominium in Houston, Texas. The appellants are the developers of the

condominium complex.

The homeowners sought a declaratory judgment that the developer-controlled board of administrators of the condominium complex was illegitimate and

that a new election for the board of administrators must be held. The homeowners

also sought an injunction preventing an improper election and ordering a proper

election. Both sides agreed to a temporary restraining order so that a temporary-injunction hearing could be held.

The developers then filed a plea to the jurisdiction, arguing that the trial

court lacked subject matter jurisdiction until all of the condominium owners were

joined in the suit and served. The trial court denied the developers' plea to the

jurisdiction and then ordered an election for the board of the condominium complex

to occur. The developers did not file an interlocutory appeal from this ruling. See

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(4) (Vernon 2008).

In compliance with the temporary injunction order, an election was held and

a new board was elected. On that same date, the developers filed an amended answer

and asserted a claim seeking a declaratory judgment that provisions of the Texas

Uniform Condominium Act control over the language of the condominium

declarations.

The homeowners nonsuited all of their remaining claims against the

developers, and the trial court entered an order dismissing the homeowners' claims

against the developers.

The developers then nonsuited their claims against the homeowners. The

trial court gned an order dismissing the developers' claims against the homeowners.

No live claims remained in the case. The developers filed a notice of appeal

indicating that they wished to challenge the trial court's denial of their plea to the

jurisdiction.

MOOTNESS

The homeowners filed a motion to dismiss the appeal as moot, arguing that

the nonsuit of all live claims deprives this Court of a justiciable issue. We agree.

In University of Texas Medical Branch at Galveston v. Blackmon , 195,

S.W.3d 98, 100 (Tex. 2008), the daughter of an inmate who died at UTMB filed suit

against the medical facility. UTMB filed a plea to the jurisdiction, which the trial

court denied. Id. UTMB then filed an interlocutory appeal. Id. While the appeal

was pending, the plaintiff non-suited her claim against UTMB. The supreme court

held that, because the plaintiff non-suited her case in the trial court, the court of

appeals lacked jurisdiction to consider trial court's ruling on the plea to the

jurisdiction. Id. at 101 . The plaintiffs' nonsuit vitiated the trial court's interlocutory

order denying UTMB's plea to the jurisdiction, thus there was nothing for the

appellate court to review. Id.

The developers argue that Blackmon is distinguishable because they had

filed claims for affirmative relief, and Blackmon noted that a nonsuit cannot

"prejudice the right of an adverse party to be heard on a pending claim for affirmative

relief[.]" See Id. at 100 . However, the developers nonsuited their own claims for

affirmative relief before filing the notice of appeal. Therefore, the developers do not

have any pending claim for affirmative relief in the trial court.

By dismissing their affirmative claims for relief rather than pursuing them

to final judgment, the developers have rendered moot the trial court's interlocutory

ruling on their plea to the jurisdiction.

CONCLUSION

Accordingly, we grant the appellees' motion and dismiss the appeal because

of the lack of a justiciable controversy.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.