City of Houston, Texas v. Isabel Mejia and Rosa Mejia ( 2023 )

Dismissed and Memorandum Opinion filed February 16, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00447-CV
CITY OF HOUSTON, TEXAS, Appellant
V.
ISABEL MEJIA AND ROSA MEJIA, Appellees
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 18-CV-0756
MEMORANDUM OPINION
The City of Houston attempts to appeal from an order granting partial
summary judgment on the issue of whether its employee was acting within the scope
of her employment at the time she was involved in a motor vehicle collision with
appellees Isabel and Rosa Mejia. Concluding we lack jurisdiction to review this
interlocutory order, we dismiss the appeal.
BACKGROUND
The underlying suit arises from a motor vehicle collision and is governed by
the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.001, et. seq. See
City of Houston v. Mejia, 606 S.W.3d 901, 903 (Tex. App.—Houston [14th Dist.]
2020, pet. denied) (Mejia I). The record reflects that Isabel Mejia was driving, and
Rosa was a passenger when Sergeant Michelle Gallagher (Gallagher) of the Houston
Police Department failed to yield the right of way at an intersection and hit the
Mejias’ car. The Mejias sued Gallagher and the City for personal injuries. The
Mejias’ claims against Gallagher were dismissed pursuant to the City’s exercise of
the Tort Claims Act election-of-remedies provision. See Tex. Civ. Prac. & Rem.
Code § 101.106(e).
Initially, the City moved for summary judgment on immunity grounds,
alleging Gallagher was not in the course and scope of her employment at the time of
the accident. Mejia I, 606 S.W.3d at 904. The trial court denied the City’s motion
and the City appealed. Id.; see also Tex. Civ. Prac. & Rem. Code § 51.014(a)(8)
(permitting interlocutory appeal from order that “grants or denies a plea to the
jurisdiction by a governmental unit”). Concluding the City failed to meet its burden
to conclusively prove that Gallagher was not acting within the scope of her
employment at the time of the accident, this court affirmed the trial court’s denial of
the City’s motion for summary judgment. Mejia I, 606 S.W.3d at 906–07.
After this court’s mandate issued, the Mejias filed a motion for traditional
summary judgment on the issue of Gallagher’s scope of employment. Citing
Ledesma v. City of Houston, 623 S.W.3d 840, 847–48 (Tex. App.—Houston [1st
Dist.] 2020, pet. denied), the Mejias asserted that the City, in dismissing Gallagher
pursuant to section 101.106(e) of the Tort Claims Act, had judicially admitted that
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Gallagher was acting in the scope of employment at the time of the accident.1 The
City responded, asserting, in part, that this court had not yet adopted our sister court’s
authority and arguing that we should not do so. The trial court granted the Mejias’
motion and entered a partial summary judgment finding as a matter of law that
Gallagher was acting within the scope of her employment. The City filed this
interlocutory appeal pursuant to section 51.014(a)(8) of the Civil Practice and
Remedies Code.
ISSUES PRESENTED
On appeal, the City asserts the following issues:
1. Did the trial court err in granting a partial summary judgment on
a single essential element of Plaintiff’s cause of action under the
TTCA?
2. Did Houston’s mere filing of a 101.106(e) motion to dismiss its
employee waive Houston’s governmental immunity under a theory of
waiver of immunity by judicial admission?
3. In the alternative, under the Marshall rule, did Plaintiffs waive the
right to rely on a judicial admission by proffering evidence that
controverted that admission?
4. Should the Court reverse and render judgment dismissing Plaintiffs’
suit for lack of subject-matter jurisdiction because the fact that, in the
moment of the accident, Gallagher was not in Houston’s paid service is
dispositive that she was outside her scope of employment?
ANALYSIS
This court lacks appellate jurisdiction over the City’s appeal.
The Mejias assert that this court lacks jurisdiction over the City’s interlocutory
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In Ledesma, the First Court of Appeals held that, by moving to dismiss the plaintiffs’
claims against the City’s employee under section 101.106(e), the City judicially admitted that its
employee was acting within the scope of her employment and agreed to vicariously defend her,
and the City’s judicial admission barred it from later disputing that its employee was acting within
the scope of her employment. Ledesma, 623 S.W.3d at 850.
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appeal. We agree.
Generally, a Texas appellate court has jurisdiction to hear only an appeal from
a final judgment. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992).
Typically, a judgment is not final for purposes of appeal unless the judgment
disposes of all pending parties and claims in the record. Lehmann v. Har–Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001). The partial summary judgment in this case
addresses only the issue of scope of employment. The judgment does not dispose of
all issues between the parties nor does it purport to be a final judgment. The partial
judgment, therefore, is an interlocutory order. See id.Section 51.014(a) of the Civil Practice and Remedies Code expands the
jurisdiction of courts of appeals. It specifies circumstances in which a litigant may
immediately appeal from an order that would otherwise be unappealable because a
final judgment has not been rendered in the matter. See Tex. Civ. Prac. & Rem. Code
§ 51.014(a); see also Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985)
(orig. proceeding) (per curiam) (“Unless there is a statute specifically authorizing an
interlocutory appeal, the Texas appellate courts have jurisdiction only over final
judgments.”). Because section 51.014(a) is a limited exception to the general rule
that a party may appeal only from final judgments or orders, it is strictly construed.
Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012).
The City asserts we have jurisdiction over the trial court’s interlocutory order
pursuant to section 51.014(a)(8) of the Civil Practice and Remedies Code, which
provides that “A person may appeal from an interlocutory order of a district court
. . . that . . . grants or denies a plea to the jurisdiction by a governmental unit as that
term is defined in Section 101.001[.]” Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
In section 51.014(a)(8), the Legislature intended that interlocutory appeals be
available only to challenge the granting or denial of a plea to the jurisdiction by a
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governmental unit. Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 472 (Tex. App.—
Houston [1st Dist.] 2002, no pet.). The order from which the City attempts to appeal
is a partial summary judgment on scope of employment granted on the Mejias’
motion. The City argues that we have jurisdiction under section 51.014(a)(8)
because, “in granting [the Mejias’] motion, the trial court denied [the City]’s
immunity on scope of employment.” The City cites several cases in which courts
have interpreted the substance of a pleading to determine they had jurisdiction over
an interlocutory appeal. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549
(Tex. 2019); (“And section 51.014(a)(8) allows an interlocutory appeal to be taken
when ‘the trial court denies the governmental entity’s claim of no jurisdiction,
whether it has been asserted by a plea to the jurisdiction, a motion for summary
judgment, or otherwise’”); PHI, Inc. v. Tex. Juvenile Justice Dep’t, 593 S.W.3d 296,
301 n.1 (Tex. 2019); (“For purposes of appellate jurisdiction over interlocutory
orders, the court of appeals had jurisdiction over the denial of the combined plea to
the jurisdiction and motion for summary judgment, regardless of how the trial-court
pleading was styled, because the substance of the pleading was to raise sovereign
immunity, which implicates subject-matter jurisdiction.”); City of Magnolia 4A
Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 299 (Tex. 2017); (“A party may
appeal an interlocutory order that grants or denies a plea to the jurisdiction by a
governmental unit. This Court considers ‘plea to the jurisdiction’ not to refer to a
‘particular procedural vehicle,’ but rather to the substance of the issue raised.”)
(internal citation omitted); Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (“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.”).
In each of the cases relied on by the City the court determined it had
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jurisdiction over a pleading in which a governmental unit challenged subject matter
jurisdiction. That is not the case in today’s case. For jurisdiction to lie based on
section 51.014(a)(8), the City must be appealing from an order of the trial court that
denies its plea to the jurisdiction. See Young v. Villegas, 231 S.W.3d 1, 5 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). The trial court, however, did not rule
on a plea to the jurisdiction or a motion for summary judgment filed by the City, but
it granted the Mejias’ motion for partial summary judgment. The City attempts to
distinguish the holding in Young, arguing that in that case Baylor College of
Medicine had been nonsuited from the case at the time the appeal was taken and that
Baylor “no longer had a rope in the rodeo when it filed its notice of appeal.” In
Young, Baylor attempted to file an interlocutory appeal from the trial court’s order
denying Dr. Young’s motion to dismiss for lack of jurisdiction and motion for
summary judgment. Id. at 4. Baylor had also filed a motion to dismiss and motion
for summary judgment, but the trial court did not rule on those motions because the
plaintiffs had nonsuited their claims against Baylor after Baylor filed its motions. Id.We held that, “[a]mong other things, for jurisdiction to lie based on subsection (8),
Baylor must be appealing from an order of the trial court that denies its plea to the
jurisdiction.” Id. at 5. Similarly, in this case, the City attempts to appeal the grant of
the plaintiffs’ motion for partial summary judgment, which was not a plea to the
jurisdiction filed by the City; we therefore lack jurisdiction over this interlocutory
appeal.
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CONCLUSION
Because we lack jurisdiction over this interlocutory appeal, we dismiss the
appeal for want of jurisdiction.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson.
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