The City of Arlington v. Airport Properties, Inc., 02-26-00024-CV, March 19, 2026.
On appeal from the 96th District Court of Tarrant County, Texas.
Synopsis
The Second Court of Appeals confirmed that a plaintiff’s absolute right to nonsuit under Rule 162 remains a potent jurisdictional “kill switch” even during an interlocutory appeal. When a plaintiff voluntarily dismisses all claims and no counterclaims for affirmative relief remain, the appellate controversy is rendered moot, stripping the court of jurisdiction and precluding the issuance of an advisory opinion.
Relevance to Family Law
For the Texas family law practitioner, this holding underscores the strategic utility—and the danger—of Rule 162 in the context of jurisdictional and interim disputes. Whether litigating a special appearance in a high-net-worth divorce or a plea to the jurisdiction in a SAPCR involving a governmental entity, the petitioner retains the power to moot an interlocutory appeal by nonsuiting the underlying case. This maneuver can be weaponized to “reset” a case where an unfavorable appellate ruling appears imminent, provided the respondent has not properly anchored the litigation with an independent claim for affirmative relief, such as a counter-petition or a specific claim for attorney’s fees.
Case Summary
Fact Summary
In the underlying litigation, Airport Properties, Inc. sued the City of Arlington. The City responded with a plea to the jurisdiction, asserting governmental immunity. The 96th District Court denied the City’s plea, prompting the City to exercise its right to an interlocutory appeal under Texas Civil Practice and Remedies Code § 51.014(a)(8).
However, the procedural landscape shifted rapidly when Airport Properties moved to nonsuit all of its claims against the City while the appeal was pending. The trial court granted the motion and dismissed the claims without prejudice, explicitly noting in its order that the dismissal disposed of all claims and parties and that the City had asserted no counterclaims or claims for affirmative relief. Consequently, Airport Properties moved to dismiss the City’s interlocutory appeal, arguing that the nonsuit had extinguished the live controversy.
Issues Decided
- Does a plaintiff’s voluntary nonsuit under Rule 162 moot a pending interlocutory appeal?
- Does the appellate court maintain jurisdiction to decide a plea to the jurisdiction after the underlying claims have been dismissed without prejudice?
Rules Applied
- Tex. R. Civ. P. 162: Grants plaintiffs an “absolute right” to take a nonsuit at any time before all evidence (other than rebuttal) has been introduced.
- Texas Constitution Art. II, § 1: The separation-of-powers provision which prohibits courts from issuing advisory opinions on moot controversies.
- Stare Decisis: The court relied on Travelers Ins. Co. v. Joachim regarding the absolute nature of the nonsuit right and Univ. of Tex. Med. Branch at Galveston v. Est. of Blackmon ex rel. Shultz regarding the effect of a nonsuit on pending appeals.
Application
The court’s analysis began with the foundational principle that a plaintiff is the master of their own suit. Under Rule 162, the right to nonsuit is nearly unfettered in the early stages of litigation. The court noted that while a nonsuit cannot prejudice a defendant’s pending claim for affirmative relief, the record here was devoid of any such claims.
The City’s appeal was based on its assertion of immunity—a challenge to the trial court’s subject matter jurisdiction. However, once Airport Properties dismissed the underlying lawsuit, the “case or controversy” required by the Texas Constitution evaporated. The court reasoned that because the trial court had already memorialized the dismissal of all parties and claims, there was no longer a live dispute for the appellate court to resolve. To proceed with the appeal and rule on the merits of the City’s immunity would be to issue a prohibited advisory opinion.
Holding
The Court held that the nonsuit terminated the entire case and controversy, thereby rendering the City’s interlocutory appeal moot.
The Court further held that when a case becomes moot, the parties lose standing to maintain their claims. Accordingly, the Court granted the motion to dismiss and dismissed the appeal for want of jurisdiction.
Practical Application
- Strategic Mooting: If a petitioner receives an unfavorable vibe during oral argument or appellate briefing in an interlocutory matter, a nonsuit can be used to terminate the appeal and allow for a refiling (if the statute of limitations permits) to “fix” the record.
- Fee-Shifting Traps: To prevent an opponent from mooting an appeal via nonsuit, family law respondents must ensure they have a pending claim for affirmative relief. In the family law context, a general request for attorney’s fees may not always suffice to keep a case alive if it is not deemed an “independent” claim for relief surviving a nonsuit.
- Jurisdictional Resets: In custody cases where a plea to the jurisdiction regarding home-state status is denied and appealed, a nonsuit effectively wipes the slate clean, though it may trigger res judicata concerns if not handled with precision.
Checklists
Preserving the Appeal (For the Respondent/Appellant)
- Anchor the Suit: File a counter-petition or a motion for sanctions/attorney’s fees that specifically seeks affirmative relief independent of the plaintiff’s claims.
- Verify the Order: If the opponent nonsuits, ensure the trial court’s order does not erroneously state that “all claims and parties” are disposed of if your affirmative claims remain.
- Object to Dismissal: If a nonsuit is filed, immediately notify the appellate court if there are collateral issues (like Rule 13 sanctions) that prevent the case from being truly moot.
Executing the “Kill Switch” (For the Petitioner/Appellee)
- Audit the Pleadings: Ensure the respondent has not filed a counter-claim or a request for affirmative relief that would survive a Rule 162 dismissal.
- Obtain a Clean Order: Secure a trial court order that explicitly states no counterclaims or claims for affirmative relief remain pending.
- Immediate Notification: Promptly file a Motion to Dismiss for Want of Jurisdiction in the Court of Appeals to prevent the issuance of a potentially adverse opinion.
Citation
The City of Arlington v. Airport Properties, Inc., No. 02-26-00024-CV, 2026 WL ______ (Tex. App.—Fort Worth Mar. 19, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
The “absolute right” to nonsuit is frequently misunderstood in the Family Code context, where many assume the “best interests of the child” might limit procedural maneuvers. This ruling clarifies that even in high-stakes litigation, Rule 162 is a blunt instrument. In a divorce involving a dispute over the enforceability of a premarital agreement, if a trial court denies a summary judgment (and it is one of the rare instances where an interlocutory appeal is available) or denies a plea to the jurisdiction based on residency, the petitioner can nonsuit to avoid a binding appellate precedent that could ruin their property division strategy. However, the “crossover” warning is clear: if the other spouse has filed a counter-petition for divorce, the nonsuit only kills the petitioner’s claims, leaving the appeal live as to the respondent’s affirmative requests. Litigators must look at the live pleadings before assuming a nonsuit will moot the appeal.
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