City of Hous. v. Estate of Jones

• Decision Date: 21 December 2012
• Docket Number: No. 10–0755.,10–0755.
• Parties: The CITY OF HOUSTON, Petitioner, v. The ESTATE OF Kenneth Samuel JONES, Deceased, Respondent.
• Court: Texas Supreme Court

388 S.W.3d 663

56 Tex. Sup. Ct. J. 186

The CITY OF HOUSTON, Petitioner,

v.The ESTATE OF Kenneth Samuel JONES, Deceased, Respondent.

No. 10–0755.

Supreme Court of Texas.

Dec. 21, 2012.

Arturo G. Michel, City Attorney, Bertrand L. Pourteau, II, Sr. Assistant City Attorney, David M. Feldman, Elizabeth L. Stevens, City Attorney, Jaqueline I. Leguizamon, Judith Lee Ramsey, Senior Assistant City Attorney, Lynette Fons, City of Houston Legal Dept., L. Renee Lowe, Harris County Attorney's Office, Houston, TX, for Petitioner The City of Houston.

Christy Lynn Martin, Elizabeth Bolt, J. Blake Hamm, Nicholas Neil Deutsch, Shook Hardy & Bacon LLP, David A. Chaumette, De La Rosa & Chaumette, Robert James Carty, Jr., Seyfarth Shaw LLP, Houston, TX, for Respondent The Estate of Kenneth Samuel Jones.

PER CURIAM.

The City of Houston was sued and filed a plea to the jurisdiction. When its plea was denied, the City did not appeal. Several months later it filed an amended plea to the jurisdiction, then filed this interlocutory appeal from the denial of its amended plea. The court of appeals dismissed part of the appeal, but considered the merits of part of it.

The issue presented is whether the court of appeals properly exercised jurisdiction over part of the appeal. We hold that because the amended plea was substantively the same as the earlier plea, the amended plea was a motion to reconsider the earlier plea and time had expired for interlocutory appeal from it. Accordingly, the court of appeals erred by failing to dismiss the entire appeal for lack of jurisdiction.¹

The City of Houston issued a demolition permit to a neighbor of Kenneth S. Jones. While performing work under the permit the neighbor destroyed part of Jones's home. Jones sued the City and they eventually filed an agreed motion for continuance in which they stated they had resolved Jones's claim, but that implementation of the agreement had been delayed. Seven months later Jones amended his petition, omitted his original claims, and instead asserted that the City breached the settlement agreement.

The City filed a plea to the jurisdiction. The trial court denied the plea and the court of appeals affirmed, holding that the “sue and be sued” language in the City charter waived the City's immunity from suit. City of Houston v. Jones, 2004 WL 1847965 (Tex.App.-Houston [1st Dist.] Aug. 19, 2004). This Court reversed, holding that the City charter language did not waive the City's immunity from suit. City of Houston v. Jones, 197 S.W.3d 391, 392 (Tex.2006) (per curiam). We remanded the case to the trial court to give Jones the opportunity to argue that immunity was waived either under recently enacted sections of the Local Government Code or under the holding of Texas A & M University–Kingsville v. Lawson, 87 S.W.3d 518, 522–23 (Tex.2002), where we addressed waivers of immunity for breach of a settlement agreement. Jones, 197 S.W.3d at 392.

On remand the City filed another plea to the jurisdiction (“2006 plea”). In it the City argued that its immunity for breach of a settlement agreement was not waived under Lawson because its immunity from suit on the underlying claims had not been waived. It also argued that its immunity was not waived by Local Government Code section 271.152 because the settlement agreement was neither an agreement for providing goods or services to the City nor was it properly executed on behalf of the City as required by that section. SeeTex. Loc. Gov't CodeE § 271.152.

Jones maintained that the City's immunity was waived under Lawson, but did not at any time assert it was waived by section 271.152. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex.2004) (“[T]he party suing the governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission.”). To the contrary, Jones affirmatively agreed that section 271.152 did not waive the City's immunity because that section only applies to contracts for providing goods or services. He also requested a ruling on his previously filed motion for partial summary judgment as to the City's liability for breach of contract.

The trial court implicitly denied the City's plea to the jurisdiction by granting partial summary judgment to Jones on the issue of liability and setting the case for trial on the issue of damages. See Thomas v. Long, 207 S.W.3d 334, 339–40 (Tex.2006). The City did not appeal.

Jones died and the case was transferred to probate court. There, the City filed a motion for summary judgment and an amended plea to the jurisdiction. In its amended plea the City relied on the same bases as it did in its 2006 plea, but presented the additional argument that section 271.152 did not waive the City's immunity because the agreement did not state its essential terms, as was required by that section. Jones's estate ² (“Jones” for ease of reference), which still had not asserted that section 271.152 waived the City's immunity, responded and agreed—as Jones had in response to the 2006 plea—that section 271.152 did not waive the City's immunity because it applies only to contracts for providing goods or services. Jones also asserted that the City presented no new facts or law to justify reconsideration of its 2006 plea. The Probate Court denied the City's motion for summary judgment and, construing the City's amended plea as a motion to reconsider the 2006 plea, denied it.

The City filed an interlocutory appeal. Jones sought dismissal of it for lack of jurisdiction. The court of appeals agreed with Jones in part. It determined that the portion of the amended plea that re-urged the arguments asserted in the 2006 plea was a motion to reconsider the ruling on the earlier plea, the City had not appealed the denial of the 2006 plea and it was too late to do so, and the court of appeals did not have jurisdiction over those arguments. 321 S.W.3d 668, 670–71 (citing Tex. Civ. Prac. & Rem.Code § 51.014). But it held that it had jurisdiction over the “new” ground that immunity was not waived under section 271.152 because the contract did not state the essential terms of the agreement. Id. It overruled the issue because the City did not show that the other grounds for waiver could not support the trial court's order. Id.

Here, the City asserts the court of appeals erred by concluding that it could not consider all the issues raised in the amended plea to the jurisdiction. Jones responds that the court of appeals lacked interlocutory jurisdiction over any part of the appeal because the City did not raise a new issue in the amended plea. We agree with Jones.

Appellate courts generally have jurisdiction only over appeals from final judgments. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001). A party may appeal from certain interlocutory orders such as the denial of a governmental entity's plea to the jurisdiction. Tex. Civ. Prac. & Rem.Code § 51.014(a)(8). But to do so, a notice of appeal must be filed within twenty days of the date the challenged order was signed. Tex.R.App. P. 26.1(b), 28.1(a).

Section 51.014(a)(8) permitting interlocutory appeals must be construed so as to give effect to the Legislature's intent. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex.2007). It specifies that “[a] person may appeal from an interlocutory order ... that ... grants or denies a plea to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem.Code § 51.014. We have construed “plea to the jurisdiction” in Section 51.014(a)(8) to refer to a substantive claim of immunity rather than to a particular type of procedural vehicle. Koseoglu, 233 S.W.3d at 845. But we also “strictly construe Section 51.014(a) as ‘a narrow exception to the general rule that only final judgments are appealable.’ ” Id. at 841 (quoting Jackson, 53 S.W.3d at 353 (Tex.2001)).

In Jackson, we considered whether an interlocutory appeal could be taken from a trial court's denial of a motion to decertify a class under the provision permitting an interlocutory appeal from an “order certifying or refusing to certify a class.” 53 S.W.3d at 353 (quoting Tex. Civ. Prac. & Rem.Code § 51.014(a)(3)). We concluded that the court of appeals did not have jurisdiction over the appeal from the ordersoverruling motions to decertify in that case. Id. at 353. We recognized that under De Los Santos v. Occidental Chemical Corp., 933 S.W.2d 493, 495 (Tex.1996), an interlocutory appeal may be taken from an order related to class certification that...