Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 417th Judicial District Court Collin County,
Texas Trial Court Cause No. 417-01983-2016
Justices Lang, Brown, and Whitehill.
DOUGLAS S. LANG JUSTICE.
consolidated interlocutory appeal and petition for writ of
mandamus challenge a temporary injunction and the denial of a
motion to strike a petition in intervention. We dismiss both
Enterprises, L.L.C. filed the petition in intervention in a
suit brought by its part-owner, Gearbox Software, L.L.C.,
against Frisco Square Developers, L.L.C. ("FSD").
By its intervention, KPitch sought a declaratory judgment
that a certain provision in a lease agreement with FSD was
unenforceable. KPitch also sought a temporary injunction
enjoining FSD from taking certain action.
moved to strike the petition in intervention asserting KPitch
lacked standing to intervene. Additionally, FSD filed a
counterclaim against KPitch as well as a third-party petition
against KPitch's authorized representative, both
"subject to [FSD's] motion to strike." The
trial court granted KPitch the injunctive relief it requested
and subsequently denied FSD's motion to strike. After FSD
filed the interlocutory appeal from the temporary injunction
and the petition for writ of mandamus from the order denying
the motion to strike, KPitch nonsuited the claims asserted in
its petition in intervention and moved to dismiss the
appellate proceedings as moot.
mootness doctrine implicates a court's subject matter
jurisdiction, which "is essential to a court's power
to decide a case." See State v. Naylor, 466
S.W.3d 783, 791-92 (Tex. 2015); Trulock v. City of
Duncanville, 277 S.W.3d 920, 923 (Tex. App.-Dallas 2009,
no pet.). For a court to have subject matter jurisdiction
over a suit, a live controversy must exist between the
parties. See State Bar v. Gomez, 891 S.W.2d 243, 245
(Tex. 1994). If, at any stage of the suit, the controversy
between the parties ceases to exist, the suit becomes moot,
the court loses jurisdiction over the suit, and the court
must dismiss the suit. See Nat'l Collegiate Athletic
Assoc. v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); City
of El Paso v. Waterblasting Tech., Inc., 491 S.W.3d 890,
904 (Tex. App.-El Paso 2016, no pet.); Wheelbarger v.
City of El Lago, 454 S.W.3d 55, 59 (Tex. App.-Houston
[1st Dist.] 2014, pet. denied).
nonsuit "extinguishes a case or controversy from
'the moment [it] is filed'" and renders the
merits of the nonsuited case moot. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Univ. of
Tex. Med. Branch at Galveston v. Blackmon, 195 S.W.3d
98, 100 (Tex. 2006) (per curiam) (quoting Shadowbrook
Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990)
Application of Law to Facts
KPitch nonsuited its petition in intervention, and the
intervention sought, in part, injunctive relief, the appeal
of the temporary injunction became moot. See
Travelers, 315 S.W.3d at 862; see also Gen. Land
Office v. Oxy USA, Inc., 789 S.W.2d 569, 571 (Tex. 1990)
(granting of nonsuit mooted appeal of temporary injunction).
So, too, did the mandamus proceeding challenging the trial
court's order denying FSD's motion to strike the
intervention as the nonsuit "extinguished" the
basis for the motion. See Travelers, 315 S.W.3d at
862; see also Waterman Steamship Corp. v. Ruiz, 355
S.W.3d 387, 399 (Tex. App.-Houston [1st Dist.]
2011, pet. denied) (effect of nonsuit was to extinguish cause
of action and return parties to position in before suit filed
just as if suit had never been brought).
does not dispute KPitch's nonsuit mooted the appeal of
the temporary injunction. However, FSD disputes the nonsuit
mooted the mandamus. FSD asserts two arguments as to why the
mandamus is not moot. First, FSD contends "the motion to
strike remains live" as FSD's counterclaim and
third-party petition were filed "subject to" the
motion to strike. Second, FSD notes that, before KPitch took
its nonsuit, "KPitch filed a separate lawsuit
re-asserting its allegations" from the petition in
intervention and adding additional claims. FSD further notes
this new lawsuit was filed in the same court where the
intervention was pending because it was a "related
case." Citing In re Union Carbde Corp., 273
S.W.3d 152 (Tex. 2008), FSD argues the filing of the new suit
while the intervention was pending allowed KPitch to
circumvent "the random ...