The 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.