Omega Protein, Inc. v. Henry Lyons, Jr. ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-153 CV ____________________

OMEGA PROTEIN, INC., Appellant

V.

HENRY LYONS, JR., Appellee

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-168559

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MEMORANDUM OPINION ⁽¹⁾  

This is a permissive accelerated interlocutory appeal of an order denying a motion to dismiss based upon a forum selection clause in a maritime employment contract. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (d) (Vernon Supp. 2003). The United States District Court for the Eastern District of Texas enjoined the prosecution of the suit on July 22, 2003. On October 28, 2003, the federal court entered an order granting Lyons's motion to partially lift the stay for the purpose of non-suiting the state action without prejudice. On November 4, 2003, the appellee, Henry Lyons, filed a motion to non-suit the entire cause. The appellant, Omega Protein, Inc., filed a response in which it acceded to the non-suit without prejudice and expressly reserved its legal rights and arguments on the forum selection clause. We construe the motion and response as an agreement to vacate the trial court's order and to dismiss the entire cause.

It is, therefore, ORDERED that the trial court's order denying the motion to dismiss is VACATED and the entire cause is DISMISSED without prejudice.

PER CURIAM

Opinion Delivered November 20, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.