Summary
In Lancaster, the appellant–defendant filed a notice of interlocutory appeal from the trial court's order denying its special appearance, but while that appeal was pending, the underlying case proceeded to trial and final judgment.
Summary of this case from Chen v. Razberi Techs.Opinion
No. 05-16-00842-CV
07-06-2017
CITY OF LANCASTER, Appellant v. WHITE ROCK COMMERCIAL, LLC, Appellee
On Appeal from the 191st Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-14-06471
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Whitehill
Appellee White Rock Commercial, LLC sued appellant the City of Lancaster for breaching a contract in which the City promised to pay White Rock for building infrastructure incident to a real estate development. The trial court denied the City's plea to the jurisdiction based on governmental immunity, and the City perfected this accelerated interlocutory appeal.
While this appeal was pending, the underlying case went to trial and final judgment. The City perfected an appeal from that judgment.
We sent the parties a letter advising that this interlocutory appeal appeared to be moot given the final judgment. See Tex. Dep't of Pub. Safety v. Alexander, No. 03-04-00439-CV, 2005 WL 8147253 (Tex. App.—Austin Apr. 14, 2005, no pet.) (mem. op.); Lincoln Prop. Co. v. Kondos, 110 S.W.3d 712 (Tex. App.—Dallas 2003, no pet.). We further advised that this interlocutory appeal could be dismissed unless within ten days a party filed a brief showing grounds for continuing the appeal.
The parties filed letter briefs, with both sides urging that the appeal is not moot. We now address whether the final judgment moots the interlocutory appeal. We conclude that it does and dismiss this appeal.
"Appeals of some interlocutory orders become moot because the orders have been rendered moot by subsequent orders." Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex. 2009). We conclude that this appeal from the trial court's denial of the City's plea to the jurisdiction based on governmental immunity is one of them.
We previously held that an interlocutory order certifying a plaintiff's class was rendered moot when the trial court subsequently granted the defendant's summary judgment motion. Kondos, 110 S.W.3d at 715. The supreme court cited Kondos approvingly in Hernandez. See Hernandez, 289 S.W.3d at 319.
This case is on all fours with Alexander, which relied on Kondos, and Texas Department of Transportation v. Flores, 513 S.W.3d 826 (Tex. App.—El Paso 2017, no pet.). In both Alexander and Flores, a governmental entity appealed from the interlocutory denial of a jurisdictional plea based on sovereign immunity, and the case proceeded to final judgment before the interlocutory appeal could be decided. In both cases, the court of appeals held that the interlocutory appeal was moot because the appealed interlocutory order merged into the final judgment and could be challenged in the ensuing appeal. Id. at 827; Alexander, 2005 WL 8147253, at *1. As the Alexander court said, "[a]lthough the issues related to the denial of the plea to the jurisdiction may not be moot, the purpose of an interlocutory appeal has been mooted by the final judgment." Alexander, 2005 WL 8147253, at *1.
Unlike in Alexander, the Flores plaintiff moved to dismiss the interlocutory appeal as moot given the final judgment. TXDOT did not oppose that motion, which the court of appeals granted.
We agree with the logic in Alexander and Flores and follow it here.
Although we dismiss this interlocutory appeal as moot, the issue of the denial of the plea to the jurisdiction is not moot. The City may raise that issue in its appeal from the final judgment. Upon either party's request, any documents and records filed in the interlocutory appeal will be transferred from this appeal to the appeal from the final judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 160842F.P05
JUDGMENT
On Appeal from the 191st Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-14-06471.
Opinion delivered by Justice Whitehill. Justices Lang and Brown participating.
In accordance with this Court's opinion of this date, we DISMISS this appeal. We ORDER that each party bear its own costs of the appeal. Judgment entered July 6, 2017.