the City of Houston v. the Estate of Kenneth Samuel Jones ( 2010 )

Dismissed in Part, Affirmed in Part, and Majority and Dissenting Opinions filed August 3, 2010.

In The

Fourteenth Court of Appeals

NO. 14-09-00812-CV

The City of Houston, Appellant

v.

The Estate of Kenneth Samuel Jones, Deceased, Appellee

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 378,490-401

MAJORITY OPINION

In June 2000, Kenneth Samuel Jones, now deceased, brought tort claims in county civil court at law against appellant the City of Houston after his neighbor, working pursuant to a City-issued demolition permit, damaged his home, rendering it uninhabitable.  In December 2002, after receiving notice that the case was set for dismissal, the parties filed an agreed motion for continuance.  In the motion, the parties stated that they had “conducted negotiations which lead to an amicable resolution of this case.”  Although an actual settlement agreement is not in the record and the motion for continuance does not contain all the settlement details, the settlement involved an agreement to help include Jones in the City’s federally approved home repair program.  The parties jointly requested a continuance because all the program’s resources were being used to help victims of Tropical Storm Allison and the parties did not know when program resources would be allocated to assist Jones.  The home repair program was discontinued before Jones received any assistance.  Jones then amended his petition to assert a claim for breach of the settlement agreement.  Both sides moved for summary judgment, and the City also filed a plea to the jurisdiction, alleging it was immune from suit for breach of contract.  The trial court denied the plea relative to enforcement of the settlement agreement.  The City appealed, and the First Court of Appeals affirmed, holding that the “sue and be sued” language in the City’s charter waived immunity.  See City of Houston v. Jones, No. 01-03-00831-CV, 2004 WL 1847965, at *3 (Tex. App.—Houston [1st Dist.] Aug. 19, 2004), rev’d, 197 S.W.3d 391 (Tex. 2006).  The Texas Supreme Court reversed, rejecting the claim of immunity waiver based on the City’s charter, and remanded with instructions for the trial court to determine if the City otherwise waived immunity, specifically under Local Government Code section 271.152 (Vernon 2005) (providing waiver of immunity from suit for claims against local governmental entities for certain types of contracts) or Texas A&M University-Kingsville v. Lawson, 87 S.W.3d 518, 522–23 (Tex. 2002) (finding waiver of immunity in that case based on entering into a settlement agreement).  See City of Houston v. Jones, 197 S.W.3d 391, 392 (Tex. 2006).

On remand, the City filed another plea to the jurisdiction in August 2006.  Jones opposed the plea and set his previously filed summary judgment motion for submission.  On May 24, 2007, the trial court granted partial summary judgment on Jones’s contract claim, thus implicitly denying the City’s plea to the jurisdiction.  See Thomas v. Long, 207 S.W.3d 334, 339–40 (Tex. 2006).  The City did not file an interlocutory appeal from the denial of this 2006 plea.  See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008) (authorizing interlocutory appeals from orders granting or denying plea to the jurisdiction of governmental units).

Jones died, and the case was then transferred to probate court.  The City filed a motion for summary judgment and, in the alternative, plea to the jurisdiction, in August 2009.  The trial court construed the 2009 plea as a motion to reconsider the May 24, 2007 ruling in which the trial court implicitly denied the City’s 2006 plea and denied the City’s motion.  The City has now filed an interlocutory appeal of this order.

Jones filed a motion in this court to dismiss the City’s appeal, arguing that the 2009 plea to the jurisdiction is substantially identical to the 2006 plea and that we have no interlocutory jurisdiction over the denial of a motion to reconsider.  We agree in part.  In the 2006 plea, the City discussed the reasons it had not waived its immunity under rule 11 of the Texas Rules of Civil Procedure, by breaching a settlement agreement under Lawson, or under section 271.152.  In the 2009 plea, the City again raised rule 11, Lawson, and section 271.152.  Its arguments regarding rule 11 and Lawson were substantively identical, but the City urged a new ground arguing that section 271.152 does not apply because that the contract does not “stat[e] the essential terms of the agreement for providing goods and services to the local government entity.”  Tex. Loc. Gov’t Code Ann. § 271.151(2) (Vernon 2005).

We do not have interlocutory jurisdiction to consider the issues raised in the 2006 plea that were re-urged in the 2009 plea.  The portion of the 2009 plea repeating the issues in the 2006 plea was in effect a motion to reconsider those issues, and we do not have interlocutory jurisdiction over an order denying a motion to reconsider.  See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon 2008); Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463, 464 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Denton County v. Huther, 43 S.W.3d 665, 666–67 (Tex. App.—Fort Worth 2001, no pet.); see also Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998) (holding we are to strictly construe statutes allowing interlocutory appeals).  The City had an opportunity to bring an interlocutory appeal of the denial of its 2006 plea, but it chose not to, and it is too late to do so now.  See Tex. R. App. P. 26.1(b); Dayco Prods., Inc. v. Ebrahim, 10 S.W.3d 80, 83 (Tex. App.—Tyler 1999, no pet.) (holding that a motion to reconsider does not extend the appellate deadline for perfecting an interlocutory appeal).  Therefore, we do not have jurisdiction to consider those issues in this interlocutory appeal.[1] See Tex. Civ. Prac. & Rem. Code Ann. § 51.014; State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex. App.—Austin 1995, no writ) (holding that “[a]n interlocutory order that is not timely appealed is not reviewable by this court” on appeal of a subsequent interlocutory order).

However, we do have jurisdiction to consider the new ground argued in the 2009 plea because it is a separate and distinct ground.  Therefore, we grant the motion to dismiss in part as to the grounds raised in the 2006 plea and deny it as to the new ground under section 271.152 raised in the 2009 plea.[2] See Tex. Dep’t of Crim. Justice v. Avellaneda, No. 11-05-00414-CV, 2006 WL 1172253, at *2–3 (Tex. App.—Eastland 2006, no pet.) (mem. op.) (dismissing for lack of jurisdiction only the portion of second interlocutory appeal that was identical to first interlocutory order that could have been appealed but was not); Montgomery County v. Fuqua, 22 S.W.3d 662, 668–69 (Tex. App.—Beaumont 2000, pet. denied) (finding no jurisdiction to consider portion of city’s interlocutory appeal concerning limitations); see also Kaplan v. Tiffany Dev. Corp., 69 S.W.3d 212, 217 (Tex. App.—Corpus Christi 2001, no pet.) (“When a party appeals from two interlocutory orders, only one of which is made appealable by statute, the proper course of action is to dismiss that portion which is non-appealable, and to rule on the portion from which an appeal may be taken.”).

In its sole issue on appeal, the City asserts that the trial court erred in denying its plea to the jurisdiction.  Even though we have jurisdiction to consider the new ground under section 271.152 in the City’s 2009 plea, we reject it as a basis for reversing the trial court’s denial of the City’s plea to the jurisdiction.  To prevail on its plea, the City must not have waived its immunity.  We have jurisdiction to consider only one basis for whether the City has waived its immunity, but we do not have jurisdiction to consider the other grounds of immunity waiver argued in the 2006 plea.  Therefore, even if the City is correct that it has not waived immunity under section 271.152, the City has not demonstrated on appeal that it is entitled to have its plea to the jurisdiction granted because the other bases of waiver, which are not properly before us, provide sufficient support for the trial court’s order.  We overrule the City’s issue.

We dismiss for lack of jurisdiction all of the City’s appeal except for the portion regarding the new ground related to immunity waiver under section 271.251 (i.e., the “essential terms of the agreement for providing goods and services to the local government entity” argument).  We overrule the City’s issue and affirm the trial court’s order denying the City’s plea to the jurisdiction.

                                                                        /s/        Leslie B. Yates

                                                                                    Justice

Panel consists of Justices Yates, Seymore, and Brown (Seymore, J., dissenting).

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[1] We note that our decision expresses no opinion on the merits of the City’s arguments and has no impact on its ability to assert these arguments on direct appeal in the appropriate circumstances.

[2] Because this case involves an interlocutory appeal from a trial court’s ruling on the actual issues raised in the appeal, it is distinguishable from other cases holding that new jurisdictional arguments may be made for the first time on appeal of the denial of a plea to the jurisdiction.  See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000); Tex. Dep’t of Transp. v. Olivares, No. 14-09-00211-CV, ___ S.W.3d ___, 2010 WL 2361421, at *1 & n.2 (Tex. App.—Houston [14th Dist.] June 14, 2010, no pet. h.).