Michelle Herczeg v. City of Dallas, Texas ( 2020 )

Order entered January 15, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01023-CV
MICHELLE HERCZEG, Appellant
V.
CITY OF DALLAS, TEXAS, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. C-16-16429
ORDER
This appeal challenges the trial court’s July 30, 2019 order on the City of Dallas’s plea to
the jurisdiction. The order lists thirty claims asserted by appellant and specifically grants the
plea as to twenty-nine of the claims. As to the thirtieth claim, the order reads as follows:
GRANTED/DENIED as to Plaintiff’s disparate treatment gender
discrimination claim based on Plaintiff’s reassignment from first watch at the
Crime Reduction Team (“CRT”) to third watch at the Fusion Center (“Fusion”)
and the corresponding change in shift differential pay.
The order concludes with the following language:
It is accordingly ORDERED, ADJUDGED, and DECREED that the
preceding claims as to which the City’s Plea has been granted are DISMISSED
WITH PREJUDICE as to their refiling.
The preceding claims as to which the City’s Plea has been denied are
ALLOWED TO GO FORWARD.
The appeal was filed as a regular appeal on August 23, 2019, twenty-four days after the
order was signed, but, in a “suggestion of uncertain appellate jurisdiction,” the City asserts the
appeal is accelerated and requires an extension motion reasonably explaining why the notice of
appeal was not filed within twenty days of the order. See TEX. R. APP. P. 26.1(b) (requiring
accelerated appeals be filed within twenty days of signing of order); 26.3 (allowing fifteen-day
extension to file notice of appeal provided extension motion is filed). The City reasons the order
on the plea, having failed to address one of appellant’s claims, is, on its face, interlocutory. See
Young v. BellaPalma, L.L.C., 566 S.W.3d 829, 833 (Tex. App.—Houston [14th Dist.] 2018, pet.
filed) (“A judgment that does not actually dispose of all parties and claims is interlocutory[.]”);
see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (allowing appeal from interlocutory
order granting governmental unit’s plea to jurisdiction); TEX. R. APP. P. 28.1(a) (providing that
appeals from interlocutory orders are accelerated).
We construed the City’s “suggestion of uncertain appellate jurisdiction” as a motion to
dismiss and directed appellant to file a response. In her response, appellant argues the trial court
intended the order to be final and her notice of appeal was timely filed as a regular appeal.
The order here is conflicting. On the one hand, it appears to be interlocutory because it
fails to rule on the plea as to one of appellant’s claims. On the other hand, it appears final in that
it strikes through the language stating that the “claims as to which the City’s plea has been
denied” may proceed.
When, as here, an order’s finality is not “clear and unequivocal,” a reviewing court must
examine the record to determine whether the trial court intended the order to be final. See In re
R.R.K., No. 18-0273, 2019 WL 6825953, at *3 (Tex. Dec. 13, 2019). The record here reflects
the trial court heard the plea on February 8, 2019 and took the matter under advisement. The
record further reflects a hearing scheduled July 10, 2019 was canceled. An email from the trial
court clerk to the parties, attached as an exhibit to appellant’s response, explains the hearing was
canceled because the City’s plea had been granted. See Jones v. Griege, 803 S.W.2d 486, 488
(Tex. App.—Dallas 1991, no writ) (noting appellate courts may consider matters outside record
to determine its jurisdiction). Further, the docket sheet included in the clerk’s record states the
case is closed and notes the jury trial set October 21, 2019 was canceled because the case was
closed.
On the facts before us, we agree with appellant that the trial court intended the order to be
final. See In re R.R.K., 2019 WL 6825953, *6 (concluding, in part, that trial court did not intend
memorandum ruling to be final where record showed that after trial court issued its
memorandum, parties entered into rule 11 agreement in anticipation of final order being drafted,
parties exchanged draft orders and later moved to enter order conforming with memorandum,
and trial court held hearing on motions for entry). Because the order is final, appellant’s notice
of appeal, filed within twenty-four days of the order, was timely. See TEX. R. APP. P. 26.1.
Accordingly, we DENY the City’s motion.
We ORDER appellant to file her opening brief no later than February 14, 2020.
/s/ KEN MOLBERG
JUSTICE