Glenn Herbert Johnson v. Harris County ( 2017 )

Order issued February 9, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-01064-CV
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GLENN HERBERT JOHNSON, Appellant
V.
HARRIS COUNTY, HARRIS COUNTY DEPARTMENT OF EDUCATION,
PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS
COUNTY FLOOD CONTROL DISTRICT, HARRIS COUNTY HOSPITAL
DISTRICT, CITY OF HOUSTON, HOUSTON INDEPENDENT SCHOOL
DISTRICT, HOUSTON COMMUNITY COLLEGE SYSTEM, AND
HARRIS COUNTY APPRAISAL DISTRICT, Appellees
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1063034
MEMORANDUM ORDER
Appellant, Glenn Herbert Johnson, has filed a notice of appeal of the trial
court’s interlocutory “Order on the Harris County Defendants’ Plea to the
Jurisdiction and First Amended Motion for Summary Judgment.” Appellees,
Harris County, Harris County Department of Education, Port of Houston Authority
of Harris County, Harris County Flood Control District, Harris County Hospital
District, City of Houston, Houston Independent School District, Houston
Community College System (collectively, the “Harris County Defendants”), have
filed a motion to dismiss Johnson’s appeal of that order.
We grant the motion and dismiss the appeal as to the Harris County
Defendants.
Johnson filed suit against the Harris County Defendants and the Harris
County Appraisal District (HCAD), asserting common-law tort claims and an
inverse condemnation claim. HCAD filed its plea or, alternatively, motion for
summary judgment and a supplemental plea to the jurisdiction or, alternatively,
motion for summary judgment, asserting that Johnson’s claims are barred by
limitations and the doctrines of governmental immunity, collateral estoppel, and
res judicata. On November 25, 2015, the trial court signed an order granting
HCAD’s plea and supplemental plea to the jurisdiction or, alternatively, motion for
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summary judgment and dismissing Johnson’s claims against HCAD with
prejudice.
The Harris County Defendants also filed a plea to the jurisdiction and first
amended motion for summary judgment. In their plea to the jurisdiction the Harris
County Defendants contended that the doctrine of governmental immunity barred
Johnson’s tort claims. In their summary judgment motion they contended that
limitations and the doctrines of estoppel and res judicata barred all of Johnson’s
claims and he failed to meet his burden to prove that the Harris County Defendants
had waived their immunity from suit as to his tort claims. On December 9, 2015,
the trial court signed an order granting the Harris County Defendants’ plea to the
jurisdiction and first amended motion for summary judgment as to Johnson’s tort
claims, stating that “[t]he only claim left is inverse condemnation” (the “December
9 Order”).
Generally, appellate courts have jurisdiction only over appeals from final
judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); N.E.
Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). To be final, a
judgment must dispose of all issues and parties in a case. Aldridge, 400 S.W.2d at
895. The December 9 Order indicates that Johnson’s inverse condemnation claim
against the Harris County Defendants remains pending and, thus, the record in this
appeal does not reflect that the trial court has rendered a final judgment.
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However, an appellate court has jurisdiction to consider an appeal from an
interlocutory order if a statute explicitly provides appellate jurisdiction. Stary v.
DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). Section 51.014(a)(8) of the Texas
Civil Practice and Remedies Code provides that a person may appeal an
interlocutory order that “grants or denies a plea to the jurisdiction by a
governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon
Supp. 2016); see id. § 101.001 (defining “governmental unit”). To the extent that
it addresses the Harris County Defendants’ jurisdictional challenges, the December
9 Order is an appealable interlocutory order. See id. § 51.014(a)(8); Thornton v.
Ne. Harris Cty. MUD 1, 447 S.W.3d 23, 30 (Tex. App.—Houston [14th Dist.]
2014, pet. denied) (quoting Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006))
(“An interlocutory appeal may be had when a trial court grants or denies a
governmental unit’s challenge to subject matter jurisdiction, ‘irrespective of the
procedural vehicle used.’”).
An appeal from an interlocutory order is an accelerated appeal. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8); TEX. R APP. P. 28.1(a). In an
accelerated appeal, absent a motion to extend time under Texas Rule of Appellate
Procedure 26.3, “the deadline for filing a notice of appeal is strictly set at twenty
days after the judgment is signed, with no exceptions.” In re K.A.F., 160 S.W.3d
923, 927 (Tex. 2005); see TEX. R. APP. P. 26.1(b). If a motion for extension of
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time to file the notice of appeal is timely filed, the deadline for filing a notice of
appeal is extended by fifteen days to thirty-five days after the order is signed. See
TEX. R. APP. P. 26.3. Further, a motion for an extension of time is implied when an
appellant, acting in good faith, files a notice of appeal within the fifteen-day
extension period of rule 26.3. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997); see Jordan & Assocs. v. Wells, No. 01-14-00992-CV, 2015 WL 4591786, at
*1 (Tex. App.—Houston [1st Dist.] July 30, 2015, no pet.) (mem. op.).
Accordingly, Johnson’s notice of appeal of the December 9 Order was due by
December 29, 2015, or by January 13, 2016, with a fifteen-day extension. Johnson
filed his notice of appeal of the December 9 Order on March 8, 2016.
In his notice of appeal, Johnson states that he “was not made aware” of the
December 9 Order “through failure by the Harris County Clerk of Court to give
Notice of the Order, in a timely fashion, by first class mail, as required by Rule
306a(3) of the Texas Rules of Civil Procedure.” Rule 306a(3) requires a trial court
clerk immediately to notify the parties or their attorneys, by first class mail, of the
signing of a final judgment or other appealable order. TEX. R. CIV. P. 306a(3).
When more than twenty days have passed between the date that the trial court
signs an appealable order and the date that a party receives notice or acquires
actual knowledge of the signing, the period for filing a notice of appeal may be
extended to the earlier of the date the party received notice or acquired actual
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knowledge of the signing. TEX. R. APP. P. 4.2(a)(1); see TEX. R. CIV. P. 306a(4);
Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 176 (Tex. App.—Dallas
2013, no pet.) (citing TEX. R. CIV. P. 306a; John v. Marshall Health Servs., Inc., 58
S.W.3d 738, 740 (Tex. 2001)) (“[I]f applicable, [rule 306a] may operate to extend
the deadline for filing a notice of appeal of an interlocutory order.”). To benefit
from this extended time period, Johnson must have proved in the trial court, on
sworn motion and notice, the date upon which he first received notice or acquired
actual knowledge of the December 9 Order and that this date was more than twenty
days after the date the order was signed. See TEX. R. CIV. P. 306a(5); TEX. R. APP.
P. 4.2(b). And, the trial court must have signed a written order finding the date
when Johnson first received notice or acquired actual knowledge that the order was
signed. See TEX. R. APP. P. 4.2(c); Moore Landrey, L.L.P. v. Hirsch &
Westheimer, P.C., 126 S.W.3d 536, 540 (Tex. App.—Houston [1st Dist.] 2003, no
pet.) (citing TEX. R. APP. P. 4.2(c)); Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.
1994)). The record filed in this Court does not include a trial court order as rule
4.2(c) requires. Without that finding, the appellate timetable was not extended.
See Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 43–44
(Tex. App.—Houston [1st Dist.] 2012, no pet.); Nedd-Johnson v. Wells Fargo
Bank, N.A., 338 S.W.3d 612, 612–13 (Tex. App.—Dallas 2010, no pet.).
Johnson’s notice of appeal of the December 9 order, therefore, was due to be filed
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no later than December 29, 2015, or January 13, 2016, with a fifteen-day
extension.1
Accordingly, we grant the Harris County Defendants’ motion to dismiss and
we dismiss Johnson’s appeal as to the Harris County Defendants. Johnson’s
appeal of the November 25, 2015 order dismissing Johnson’s claims against
HCAD remains pending. Johnson’s brief in that appeal is due no later than twenty
days from the date of this order. See TEX. R. APP. P. 38.6(a), (d).
This interlocutory order will become final when a judgment is issued in this
cause number.
PER CURIAM
Panel consists of Justices Jennings, Bland, and Lloyd.
1
On December 14, 2016, Johnson timely filed a notice of appeal of the trial court’s
November 25, 2015 interlocutory order granting HCAD’s “Plea to the Jurisdiction
or, Alternatively, Motion for Summary Judgment and Supplemental Plea to the
Jurisdiction or, Alternatively, Motion for Summary Judgment.” However, the
March 8, 2016 notice of appeal was not an amended notice of appeal that related
back to the December 14, 2016 notice of appeal to perfect an appeal of the
separate December 9 Order. See Oak Creek Homes, LP v. Moore, No. 11-15-
00291-CV, 2016 WL 6998949, at *2 (Tex. App.—Eastland Nov. 30, 2016, no
pet.) (mem. op.) (citing Rainbow Grp., Ltd. v. Wagoner, 219 S.W.3d 485, 492
(Tex. App.—Austin 2007, no pet.)) (“[R]ule 25 does not allow an appellant to
amend a notice of appeal in which the appellant challenges one particular
interlocutory order to a challenge of an entirely different, separate interlocutory
order.”); Thomas v. Thomas, No. 14-02-01286-CV, 2003 WL 1088220, at *2 (Tex.
App.—Houston [14th Dist.] Mar. 13, 2003, no pet.) (mem. op.) (declining request
to amend notice of appeal to allow appeal of “completely different order . . . not
mentioned in the notice of appeal”).
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