Nuchia v. Woodruff

• Court: Texas Court of Appeals
• Writing for the Court: Before MURPHY
• Citation: Nuchia v. Woodruff, 956 S.W.2d 612 (Tex. App. 1997)
• Decision Date: 02 October 1997
• Docket Number: No. 14-96-01489-CV,14-96-01489-CV
• Petition History: pet. denied
• Parties: Chief of Police Sam NUCHIA and The City of Houston, Appellants, v. J.B. WOODRUFF, Appellee. (14th Dist.)

Page 612

956 S.W.2d 612

Chief of Police Sam NUCHIA and The City of Houston, Appellants, v. J.B. WOODRUFF, Appellee.

No. 14-96-01489-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 2, 1997.

Rehearing Overruled Dec. 18, 1997.

Danita Roy Wiltz, Houston, for appellants.

Fred A. Keys, Jr., Houston, for appellee.

Before MURPHY, C.J., and ANDERSON and O'NEILL, JJ.

OPINION ON REHEARING

O'NEILL, Justcie.

Appellants, Chief of Police Sam Nuchia and the City of Houston (hereinafter collectively "the City"), appeal the trial court's order of dismissal for want of jurisdiction granted on motion of appellee, James B. Woodruff ("Woodruff"). Woodruff filed a motion to dismiss the appeal based upon the City's failure to timely file the transcript, and raised three conditional cross-points. In response to Woodruff's motion to dismiss, the City acknowledged it did not extend the appellate timetable by filing a motion for new trial or motion to modify after the October 5, 1995 judgment, but claimed that due to error in the district clerk's office it did not receive notice of the judgment until October 27, 1995. The City claimed the appellate timetable ran from the date it received notice of the judgment and, therefore, its filing of the transcript was timely. We rejected the City's argument as not properly perfected under TEX.R.APP. P. 5(b)(5), ¹ and dismissed the appeal. For the first time on motion for rehearing the City invokes the provisions of TEX.R. CIV. P. 306c and TEX.R.APP. P. 58(a), and claims that its motion for new trial filed and overruled nearly six months prior to the final judgment operated to extend the appellate timetable. We agree with the City's argument raised on rehearing, deny Woodruff's motion to dismiss, withdraw our previous opinion and substitute this one in its place.

We find the district court had subject matter jurisdiction over the City's declaratory judgment action, therefore, the trial court's dismissal for want of jurisdiction was improper. We further find the district court properly granted the City's motion for summary judgment as to Woodruff's counterclaim. Accordingly, we affirm in part, and reverse and remand in part for further proceedings consistent with this opinion.

Motion to Dismiss

On rehearing the City claims its April 10, 1995 motion for new trial, which was directed at an earlier interlocutory judgment and overruled nearly five months prior to the final judgment, should be considered applicable to the final judgment signed on October 5, 1995. The City invokes TEX.R. CIV. P. 306c, which provides that "no motion for new trial ... shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of the signing of the judgment the motion assails." Similarly, TEX.R.APP. P. 58(a) provides that "[p]roceedings relating to an appeal need not be considered ineffective because of prematurity if a subsequent appealable order has been signed to which the premature proceeding may properly be applied." The "proceedings relating to an appeal" referenced in Rule 58(a) include motions for new trial. Harris County Hosp. Dist. v. Estrada, 831 S.W.2d 876, 878 (Tex.App.--Houston [1st Dist.] 1992, no writ) (citations omitted). Thus, the City's premature April 10, 1995 motion for new trial will be deemed filed on October 5, 1995, as long as it "assails" the final judgment that was signed. TEX.R. CIV. P. 306c.

Woodruff claims the premature motion for new trial does not "assail" the October 5 judgment because it was overruled before the judgment was signed and was therefore not a live pleading. There is some authority for Woodruff's position. For example, in A.G. Solar & Co., Inc. v. Nordyke, 744 S.W.2d 646, 647-48 (Tex.App.--Dallas 1988, no writ), the court held the appellate deadline was not extended by a premature motion for new trial that had been overruled by operation of law before the court signed a second judgment. The court determined that a motion for new trial that has been disposed of "can no longer 'assail' a subsequent judgment under rule 306c ... and can no longer 'be properly applied' to that judgment under rule 58...." Id. at 647-48. However, in Estrada, the court declined to recognize a live pleading distinction for prematurely filed motions. 831 S.W.2d at 880. The court emphasized that neither of the rules limit their application to live pleadings, and reasoned that such a requirement would defeat the purpose of the rules. Id.

The Texas Supreme Court has concluded that, with respect to preservation of error, the better reasoned approach is set forth in Estrada. Fredonia State Bank v. General American Life Ins., 881 S.W.2d 279, 282 (Tex.1994). The court acknowledged that Solar dealt with extension of the appellate timetable rather than preservation of error, and noted that its opinion did not purport to resolve the conflict between Solar and Estrada on extension of the appellate deadline. Id. However, we see no reason to draw such a distinction in the present case. The City's prematurely filed motion for new trial obviously assailed the subsequently signed judgment, and we see no reason why it should not operate to extend the appellate timetable. The complaints made in the City's premature motion applied equally to the subsequent judgment, which simply disposed of Woodruff's counterclaims and made the previous interlocutory judgment, about which the City complained, final.

Considering the policy that "the Rules of Appellate Procedure ... should not be read to defeat the right to appeal except when such a construction is absolutely necessary," we conclude the City's premature motion for new trial "assailed" the subsequent judgment under TEX.R. CIV. P. 306c, and can "be properly applied" to the subsequent judgment under TEX.R.APP. P. 58(a). Id. Consequently, the City's motion was deemed filed on October 5, 1995, after the final judgment was signed, and extended the time for filing the transcript with the appellate court to 120 days thereafter. The City's motion for extension of time to file the transcript was properly filed within this time period, and the transcript was timely filed with the court's permission on February 15, 1997. We therefore have the authority to consider the transcript and rule on the merits of the underlying cause.

Background

On April 5, 1993, Police Chief Nuchia ("Nuchia"), acting under the Fire Fighters' and Police Officers' Civil Service Act (the "Act"), recommended the involuntary demotion of Woodruff from the rank of Police Sergeant to the rank of Police Officer for violation of various rules and regulations. TEX. LOC. GOV'T CODE ANN. § 143.054 (Vernon 1988). Woodruff elected to appeal the recommendation to a third party hearing examiner, as allowed by TEX. LOC. GOV'T.CODE ANN. § 143.1016 (Vernon Supp.1997). The hearing examiner, Thomas Cippolla, conducted a hearing and determined that Woodruff should be demoted for a period of one month, after which he would resume his prior status as Sergeant. Nuchia disputed Cippolla's authority under the statute to do anything other than grant or deny Nuchia's recommended demotion. Because the hearing examiner approved the demotion, albeit only in part, Nuchia considered his recommendation granted and demoted Woodruff on December 1, 1993. However, Woodruff has not been reinstated as Sergeant in either rank or salary.

On November 24, 1993, the City instituted suit in the district court against Woodruff and Cippolla alleging that Cippolla exceeded his jurisdiction when he modified the recommendation of the department head to provide for reinstatement. ² The City brought the suit as an appeal of the hearing examiner's award under § 143.1016(j) of the Act. In the alternative, the City requested a declaratory judgment that Cippolla exceeded his jurisdiction. Woodruff filed a counterclaim against Nuchia, individually, for intentional infliction of emotional distress based upon Nuchia's failure to reinstate him to the position of Sergeant as provided in the hearing examiner's award. The trial court dismissed the City's suit for lack of jurisdiction, and granted Nuchia's motion for summary judgment as to Woodruff's counterclaim.

The Trial Court's Jurisdiction

The trial court found that the City had no statutory authority to appeal an administrative ruling of an independent hearing examiner, and concluded that it "ha[d] no jurisdiction to hear this case." Consequently, the trial court dismissed the entire case, including both the appeal of the hearing examiner's decision and the declaratory judgment action. The City contends the trial court erred in dismissing its petition because § 143.1016(j) confers jurisdiction upon the district court to hear its appeal from the hearing examiner's award. ³ In the alternative, the City claims the district court had jurisdiction under the Declaratory Judgment Act. TEX. CIV. PRAC. & REM.CODE ANN. § 37.001 (Vernon 1986). We will first address the City's claims under the Declaratory Judgment Act.

The City argues that, because it is seeking a declaration that the hearing examiner exceeded his jurisdiction in ordering Woodruff's reinstatement, the district court had subject matter jurisdiction under the Declaratory Judgment Act. TEX. CIV. PRAC. & REM.CODE ANN. § 37.001 (Vernon 1986). Specifically, the City contends the Declaratory Judgment Act gives the trial court jurisdiction to determine whether an administrative agency has exceeded its statutorily conferred powers. See Gulf States Util. Co. v. Coalition of Cities for Affordable Util. Rates, 883 S.W.2d 739, 743 (Tex.App.--Austin 1994), rev'd on other grounds, 947 S.W.2d 887 (Tex.1997) (holding "an action taken by an administrative agency in excess of its statutory powers is the well recognized exception to the general rule that an agency's final order ... is immune from collateral attack."). Woodruff first responds that the City did...