Brazos Valley MHMR v. Gena Taylor ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00323-CV
BRAZOS VALLEY MHMR,
Appellant
v.
GENA TAYLOR,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 07-003212-CV-361
MEMORANDUM OPINION
Brazos Valley MHMR filed this interlocutory appeal, contending that the trial
court erred in refusing to grant its plea to the jurisdiction. We will dismiss the appeal
for want of jurisdiction.
Appellate courts have jurisdiction over immediate appeals of interlocutory
orders only if expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53
(Tex. 1998). Because the statute authorizing interlocutory appeals is a narrow exception
to the general rule that only final judgments and orders are appealable, it must be given
a strict construction. Tex. Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex.
App.—Austin 1999, no pet.).
Section 51.014(a)(8) of the Civil Practice and Remedies Code provides for an
interlocutory appeal from an order granting or denying a plea to the jurisdiction by a
governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2008).
Brazos Valley MHMR argues that the order from which it appeals is effectively a denial
of its plea to the jurisdiction and is thus appealable under section 51.014(a)(8).1 Even
assuming that an “effective denial” of a plea to the jurisdiction is appealable under
section 51.014(a)(8), our review of the record reveals that the trial court did not
effectively deny Brazos Valley MHMR’s plea to the jurisdiction. Instead, the trial court
granted a continuance to allow Taylor discovery on the specific issue of jurisdiction
before ruling on the plea.2 Thus, there is no order denying Brazos Valley MHMR’s plea
1
The order provides: (1) Brazos Valley MHMR’s “Plea to the Jurisdiction and Conditional Motion
for Severance is continued until such time as Plaintiff has had an opportunity to conduct discovery with
regards to the issue of whether [Brazos Valley MHMR] had notice of a claim being made against them by
Plaintiff,” (2) “Plaintiff may depose the insurance adjuster(s) and/or defendant company
representative(s) involved in investigating and handling this claim,” (3) a copy of the entire claims file
must be delivered to the court for an in camera inspection to determine what documentation in the file
might be privileged, and (4) the court will provide Plaintiff with a copy of the entire claims file, excluding
any privileged documents, in order for Plaintiff to discover any evidence with regard to whether Brazos
Valley MHMR had notice of a claim being presented to it and for Plaintiff to determine the identity of the
proper individual(s) to depose as to the issue of notice.
2 Brazos Valley MHMR cites the Fifth Circuit’s opinion in Helton v. Clements, 787 F.2d 1016 (5th Cir.
1986), to support its argument that a trial court’s refusal to rule on a plea constitutes a denial of the plea
and is thus appealable. In Helton, the defendants filed a motion to dismiss, asserting the defenses of
absolute and qualified immunity. Subsequently, the district court ordered: “[A]ll parties and attorneys
are here notified that any further motions in this case will not be ruled upon by the court prior to trial but
will be carried along with the trial of the case on the merits. The ruling applies to any pending motions. .
. .” The defendants appealed, challenging the trial court’s refusal to rule on their motion to dismiss until
trial. In addressing the order’s appealability, the Fifth Circuit held that an order that declines or refuses
to rule on a motion to dismiss on the basis of a claim of immunity “is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1017. The order
Brazos Valley MHMR v. Taylor Page 2
to the jurisdiction from which it may appeal. Furthermore, neither a discovery order
nor an order granting a continuance is an interlocutory order subject to immediate
appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a); Pelt v. State Bd. of Ins., 802
S.W.2d 822, 827 (Tex. App.—Austin 1990, no writ).
For these reasons, we dismiss this interlocutory appeal for want of jurisdiction.3
In addition, although requested by Taylor, we decline to assess sanctions against Brazos
Valley MHMR for bringing a frivolous appeal.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Opinion delivered and filed May 13, 2009
[CV06]
in this case is distinguishable, however. In this case, the trial court did not refuse to rule on Brazos Valley
MHMR’s plea until trial; rather, it only continued the plea to allow Taylor discovery on the specific issue
of jurisdiction. Respectfully, federal authority is also not controlling or persuasive in this cause.
3 Brazos Valley MHMR requests in the alternative that we construe its brief as a petition for writ of
mandamus, but no authority on point supports this request.
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