Town of Flower Mound v. Mockingbird Pipeline, LP

• Decision Date: 13 October 2011
• Docket Number: NO. 02-10-00069-CV,02-10-00069-CV
• Parties: TOWN OF FLOWER MOUND, TEXAS APPELLANT v. MOCKINGBIRD PIPELINE, L.P. APPELLEE
• Court: Texas Court of Appeals

TOWN OF FLOWER MOUND, TEXAS APPELLANT

v.MOCKINGBIRD PIPELINE, L.P. APPELLEE

NO. 02-10-00069-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: October 13, 2011

FROM THE PROBATE COURT OF DENTON COUNTY

OPINION

I. Introduction

Appellant Town of Flower Mound, Texas, attempts to bring an interlocutory appeal of the Denton County Probate Court's denial of its plea to the jurisdiction in favor of Appellee Mockingbird Pipeline, L.P. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2008). We dismiss the appeal for want of jurisdiction.

II. Factual and Procedural Background

Mockingbird, a gas corporation, filed a condemnation action under section 181.004 of the utilities code to obtain a pipeline easement on property owned by Flower Mound, a home-rule municipality. The probate court issued an order appointing special commissioners to assess condemnation damages. The special commissioners awarded $69,170 as damages, Mockingbird deposited this amount into the probate court's registry, and both parties filed objections to the award. Flower Mound also filed a plea to the jurisdiction, arguing that it was entitled to governmental immunity from suit and that Mockingbird had not established a waiver of its immunity. Mockingbird responded that Flower Mound's immunity had been waived under section 181.004.

The probate court denied Flower Mound's plea to the jurisdiction, and Flower Mound filed a notice of appeal under civil practice and remedies code section 51.014(a)(8). Mockingbird filed a motion to dismiss the appeal for want of jurisdiction.

III. Jurisdiction

Although Flower Mound brings three issues, we must first address Mockingbird's motion to dismiss the appeal. See, e.g., Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating that before reaching the merits of the parties' issues, the court must inquire into its own jurisdiction).

A. Motion to Dismiss

Mockingbird argues that this appeal should be dismissed for want of jurisdiction because section 51.014 of the civil practice and remedies code does not expressly authorize interlocutory appeals from statutory probate courts. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a). Flower Mound responds with a number of arguments, which we have set out below.

B. Standard of Review

The standard of review—de novo—is the same with regard to jurisdictional issues and their statutory underpinnings. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (stating that subject matter jurisdiction is a question of law); Tarrant County v. McQuary, 310 S.W.3d 170, 172 (Tex. App.—Fort Worth 2010, pet. denied) (same); see also City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (setting out statutory construction standard of review). In construing statutes, we ascertain and give effect to the legislature's intent as expressed by the statutory language. City of Rockwall, 246 S.W.3d at 625. We construe the statutory text according to its plain and common meaning unless a contrary intention is apparent, or unless such a construction leads to absurd results. Id. at 625-26.

The supreme court has stated that "[o]ur sole objective in construing [s]ection 51.014(a)(8) is to give effect to the Legislature's intent. In determining the Legislature's intent, we begin by looking at the plain meaning of the statute's words." Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex.2007) (citations omitted). "We strictly construe [s]ection 51.014(a) as 'a narrow exception to the general rule that only final judgments are appealable.'" Id. at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)). When the statutory text is clear, it is determinative of the legislature's intent, and we give meaning to the language consistent with other provisions in the statute. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010).

C. History of Civil Practice and Remedies Code Section 51.014(a)(8)

Section 51.014 was enacted in 1985. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, Tex. Gen. Laws 3242, 3280 (last amended Act of May 24, 2011, 82nd Leg., R.S., ch. 203, § 3.01, sec. 51.014, 2011 Tex. Sess. Law. Serv. 759, 759 (West)) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 51.014). From its 1985 enactment through numerous amendments,¹ includingthe most recent amendment in the 2011 legislative session, the first sentence in subsection (a) has stated, "A person may appeal from an interlocutory order of a district court, county court at law, or county court that . . . ." See id. § 51.014(a) (emphasis added).

Although the language in section 51.014(a) has not changed, language in the other subsections has. Before the legislature's 2005 amendments,² subsection (d) stated that "a district court" may issue a written order for interlocutory appeal and subsection (e) stated that an appeal was not stayed in the "district court" unless the parties agreed. In 2005, however, the legislature amended subsections (d) and (e) as follows:

(d) A district court, county court at law, or county court may issue a written order for interlocutory appeal in a civil action not otherwise appealable under this section if . . .

. . . .

(e) An appeal under Subsection (d) does not stay proceedings in the trial court unless the parties agree and the trial court, the court of appeals, or a judge of the court of appeals orders a stay of the proceedings.

See Act of May 27, 2005, 79th Leg., R.S., ch. 1051, § 1, 2005 Tex. Gen. Laws 3512, 3512-13 (emphasis added). The bill analysis with regard to the change in subsection (d) states, among other things, that the change was to "authorize[] a court in a civil action, rather than a district court, . . . to permit an appeal from an interlocutory order." Senate Comm. on State Affairs, Bill Analysis, Tex. S.B. 494, 79th Leg., R.S. (2005).

Effective September 1, 2011, subsection (d) now states: "On a party's own motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if . . . ." ³ See Act of May 24, 2011, 82nd Leg., R.S., ch. 203, § 3.01, sec. 51.014, 2011 Tex. Sess. Law. Serv. 759, 759. In short, section 51.014 continues to be a work in progress.

D. Flower Mound's Arguments

We have categorized Flower Mound's argument into five subarguments.

1. Purpose over Form

Flower Mound argues that a focus on the beginning phrase of section 51.014(a) is misplaced because the statute's purpose "is to allow appellate review of the substance of the challenge to the trial court's jurisdiction, not its form." It points out that the supreme court stated in Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006), that section 51.014(a)(8)'s purpose is to allow interlocutoryappellate review when a trial court denies a governmental unit's challenge to subject matter jurisdiction and that under Long, form does not matter.

In Long, the supreme court stated, "The Legislature provided for an interlocutory appeal when a trial court denies a governmental unit's challenge to subject matter jurisdiction, irrespective of the procedural vehicle used . . . . To be entitled to an interlocutory appeal, section 51.014(a)(8) requires the denial of a jurisdictional challenge." 207 S.W.3d at 339. However, although Flower Mound argues that this means that the form of the challenge does not matter and points out that the court "did not state that appellate review of the denial of a jurisdictional challenge could only occur from a district or county court in order to satisfy" section 51.014(a)'s requirements, the interlocutory appeal at issue in Long was from a district court, not from a statutory probate court. Id. at 336. And the form—or "procedural vehicle"—at issue was an implicit denial of a plea to the jurisdiction by the trial court, which the supreme court held was sufficient to satisfy section 51.014(a)(8). Id. at 339-40. The issue of whether an interlocutory appeal from a statutory probate court could be brought under section 51.014(a) was therefore not before the court. Further, while the form of the procedural vehicle—such as an implicit denial of a plea to the jurisdiction—is irrelevant, it is not the form of the procedural vehicle that is at issue before us. Accordingly, Long provides us with no guidance here.

2. Appellate Jurisdiction

Flower Mound also contends that to hold that we lack jurisdiction here "would greatly restrict this Court's own jurisdiction in all appeals that do not come from district or county courts,"—that is, in appeals from probate courts—since the constitution and government code only mention appellate court jurisdiction for district courts and county courts. See Tex. Const. art. V, § 6(a) (stating that the court of appeals shall have appellate jurisdiction extending "to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law"); Tex. Gov't Code Ann. § 22.220(a) (West 2010) (stating that the court of appeals has appellate jurisdiction over all civil cases within its district of which the district courts and county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $250, exclusive of interest and costs). However, the probate code provides that "[a] final order issued by a probate court is appealable to the court of appeals." See Tex. Prob. Code Ann. § 4A(c) (West 2010). And although the probate code does not define "final," the supreme court has adopted a test for determining when an order in a probate proceeding is final for appellate purposes. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (stating that if there is an express statute declaring the phase of the probate proceedings to be final and appealable, that statute controls, and setting out test fordetermining final orders otherwise).⁴ And the...