Roccaforte v. Jefferson County

• Decision Date: 29 April 2011
• Docket Number: No. 09–0326.,09–0326.
• Citation: 32 IER Cases 346,341 S.W.3d 919,54 Tex. Sup. Ct. J. 900
• Parties: Larry ROCCAFORTE, Petitioner,v.Jefferson COUNTY, Respondent.
• Court: Texas Supreme Court

341 S.W.3d 919

32 IER Cases 346

54 Tex. Sup. Ct. J. 900

Larry ROCCAFORTE, Petitioner,

v.Jefferson COUNTY, Respondent.

No. 09–0326.

Supreme Court of Texas.

Argued Oct. 14, 2010.Decided April 29, 2011.

Laurence W. Watts, Watts & Associates, P.C., Missouri City, TX, Brandon David Mosley, Cowan & Lemmon, LLP, Houston, TX, for Larry Roccaforte.Thomas F. Rugg, District Attorney's Office, First Assistant—Civil Div., Steven L. Wiggins, Jefferson County District Attorney Office, Thomas E. Maness, Criminal District Attorney, Beaumont, TX, for Jefferson County.Todd K. Sellars, Dallas County Assistant Attorney, Dallas, TX, for Amicus Curiae Dallas County, Texas.Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, Justice JOHNSON, Justice GUZMAN, and Justice LEHRMANN, and joined by Justice WILLETT as to parts I through III.

The Local Government Code requires a person suing a county to give the county judge and the county or district attorney notice of the claim. Tex. Loc. Gov't CodeE § 89.0041. The plaintiff provided that notice here, but did so by personal service of process, rather than registered or certified mail as the statute contemplates. We conclude that when the requisite county officials receive timely notice enabling them to answer and defend the claim, the case should not be dismissed. Because the court of appeals concluded otherwise, we reverse its judgment and remand the case to the trial court for further proceedings.

I. Background

Former Chief Deputy Constable Larry Roccaforte sued Jefferson County and Constable Jeff Greenway, alleging that his wrongful termination deprived him of rights guaranteed by the Texas Constitution. Roccaforte personally served County Judge Carl Griffith with the suit, and fifteen days later, the County (represented by the district attorney) and Constable Greenway answered, denying liability. The County propounded written discovery requests, deposed Roccaforte, and presented County officials for depositions. The County also filed a plea to the jurisdiction, asserting that Roccaforte did not give requisite notice of the suit. See Tex. Loc. Gov't CodeE § 89.0041. Roccaforte disagreed, arguing that the statute applied only to contract claims. Alternatively, he argued that 42 U.S.C. § 1983 preempted the notice requirements and that he substantially complied with them in any event.

Although the trial court indicated that it would sustain the County's plea and sever those claims from the underlying case, it did not immediately sign an order doing so. In the meantime, Roccaforte tried his claims against Greenway. A jury returned a verdict in Roccaforte's favor. Afterwards, the trial court signed an order granting the County's jurisdictional plea. The order did not sever the claims from the underlying case. Roccaforte then pursued this interlocutory appeal. His notice of appeal stated that “[p]ursuant to Civ. P. Rem.Code § 51.014(b), all proceedings are stayed in the trial court pending resolution of the appeal.” But the proceedings were not stayed.

In the underlying case, Greenway moved for judgment notwithstanding the verdict, which the trial court granted as to Roccaforte's property interest and First Amendment retaliation claims but denied as to Roccaforte's claimed violation of his liberty interest. Roccaforte moved for entry of judgment. Notwithstanding the statutory stay referenced in Roccaforte's notice of appeal, the trial court rendered judgment for Roccaforte and awarded damages, attorney's fees, and costs. The judgment was titled “FINAL JUDGMENT”; it “denie[d] all relief no [sic] granted in this judgment”; and it stated “[t]his is a FINAL JUDGMENT.” The County was included in the case caption. No one objected to the continuation of trial court proceedings despite the statutory stay.

Greenway appealed, and Roccaforte cross-appealed, raising as his only issues complaints regarding the trial court's JNOV on his claims against Greenway. The court of appeals affirmed in part and reversed in part, rendering judgment that Roccaforte take nothing. Greenway v. Roccaforte, 2009 WL 3460683, at *6, 2009 Tex.App. LEXIS 8290, at *15 (Tex.App.-Beaumont 2009, pet. denied).¹

In Roccaforte's separate interlocutory appeal, the court of appeals made the following notation:

Roccaforte notes that immediately after the dismissal order, the trial of the case proceeded to judgment without the County as a party. No one disputes that all the claims against all other parties have been resolved. The order of dismissal is therefore appealable whether or not the statute at issue is jurisdictional.

281 S.W.3d 230, 231 n. 1. The court ultimately concluded that Roccaforte's failure to notify the County of the suit by registered or certified mail mandated dismissal of his suit against the County, but not because the trial court lacked jurisdiction. Id. at 236–37. Accordingly, the court modified the dismissal order to reflect that dismissal was without prejudice and affirmed the order as modified. Id.

Roccaforte petitioned this Court for review, which we granted.² 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010).

II. Did the trial court's final judgment moot this interlocutory appeal?

Before turning to the merits, we must decide a procedural matter: What happens when a party perfects an appeal of an interlocutory judgment that has not been severed from the underlying action, and that action proceeds to trial and a final judgment? The trial court did not sever Roccaforte's claims against the County ³ and denied “all relief not granted” in its final judgment. Ordinarily, under these circumstances, Roccaforte would have to complain on appeal that the trial court erroneously dismissed those claims. Roccaforte, however, did not complain about the County's dismissal in his appeal from the final judgment. His separate interlocutory appeal, then, rests on a precipice of mootness.

A. Roccaforte waived any complaint about the trial court's actions during the statutory stay.

Although Roccaforte's interlocutory appeal was supposed to stay all proceedings in the trial court pending resolution of the appeal,⁴ Roccaforte did not object to the trial court's rendition of judgment while the stay was in effect. To the contrary, he affirmatively moved for entry of judgment. Because a final judgment frequently moots an interlocutory appeal, ⁵ we must decide whether the trial court's failure to observe the stay made the final judgment void or merely voidable. If the final judgment is void, it would have no impact on this interlocutory appeal. Lindsay v. Jaffray, 55 Tex. 626 (Tex.1881) (“A void judgment is in legal effect no judgment.”) (quoting Freeman on Judgments, § 117).⁶ If voidable, then we must decide whether it moots this proceeding. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (observing that voidable orders must be corrected by direct attack and, unless successfully attacked, become final). We conclude it is voidable.

Two of our courts of appeals have held that the failure to object when a trial court proceeds despite the automatic stay waives any error the trial court may have committed by failing to impose it. See Escalante v. Rowan, 251 S.W.3d 720, 724–25 (Tex.App.-Houston [14th Dist.] 2008), rev'd on other grounds, 332 S.W.3d 365 (Tex.2011) (per curiam); Henry v. Flintrock Feeders, Ltd., No. 07–04–0224–CV, 2005 WL 1320121, at *1, 2005 Tex.App. LEXIS 4310, at *1 (Tex.App.-Amarillo June 1, 2005, no pet.) (mem.op.). In Escalante, the court of appeals held that a party's failure to object to a trial court's ruling on summary judgment motions during the statutory stay “failed to preserve error as to any objection that the summary judgment is voidable based on the stay.” Escalante, 251 S.W.3d at 725. In Henry, the court held that a party's failure to object to the trial court's action in violation of the stay waived any error resulting from that action. Henry, 2005 WL 1320121, at *1–2, 2005 Tex.App. LEXIS 4310, at *4 (holding that trial court's grant of summary judgment mooted interlocutory appeal challenging denial of special appearance). We find particularly instructive a case involving a trial court's rendition of final judgment while an interlocutory appeal of a class certification order was pending:

[I]f a trial court proceeds to trial during the interlocutory appeal, the class action plaintiff must inform the court of section 51.014(b) and request that the stay be enforced. If a court proceeds to trial over the objection of a class action plaintiff, the class action plaintiff could request a mandamus and this court would grant it. However, if the class action plaintiff fails to inform the trial court of section 51.014(b), and allows the court to proceed to trial, as happened here, the plaintiff waives the right to object or request any relief on appeal. See Tex.R.App. P. 33.1(a). We see this as no different from any other trial court error that is not preserved—it is waived.

Siebenmorgen v. Hertz Corp., No. 14–97–01012–CV, 1999 WL 21299, at *3, 1999 Tex.App. LEXIS 311, at *10–11 (Tex.App.-Houston [14th Dist.] Jan. 21, 1999, no pet.) (dismissing as moot interlocutory appeal of order denying class certification).

A third court of appeals has implicitly concluded that parties can waive the right to insist on a section 51.014(b) stay. See Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 715 (Tex.App.-Dallas 2003, no pet.). In that case, the court observed that the trial court's grant of summary judgment while an interlocutory appeal was pending violated the statutory stay. Noting that “neither party requested a stay from this Court” and “both parties sought to commence the ‘trial’ below by filing and/or arguing motions for summary judgment while this appeal was pending,” the court of appeals did not conclude that the trial court's summary judgment was void. Id. at 715. Instead, the appellate court held that the...