Opinion
NO. 01-17-00395-CV
12-21-2017
CITY OF MANVEL, Appellant v. DONALD LEE LAWSON II AND SUZANNE LAWSON, Appellees
On Appeal from the 23rd District Court Brazoria County, Texas
Trial Court Case No. 88177-CV
MEMORANDUM OPINION
Appellant, the City of Manvel, attempts to appeal an interlocutory order of the trial court. The city contends that an order granting a new trial was, in substance, an order denying its plea to the jurisdiction. The appellees, Donald Lee Lawson II and Suzanne Lawson, argue that we lack jurisdiction to hear this appeal.
Because we conclude that we lack jurisdiction, we dismiss this appeal.
Background
The Lawsons own two parcels of land in Brazoria County, within the extraterritorial jurisdiction of the City of Manvel. They brought a declaratory judgment action against the city and a local developer after their property became landlocked and inaccessible due to residential development and the abandonment of certain rights of way or roadways. The Lawsons' petition sought relief relating to four claims: (1) improper abandonment of a dedicated road, (2) inverse condemnation, (3) trespass to real property, and (4) a dispute over whether Brazoria County or the City of Manvel was the governing authority.
The city filed a plea to the jurisdiction in which it raised three arguments. First, the city argued that the Lawsons' claim regarding abandonment of the right-of-way was mooted by Brazoria County's approval of it. Next, the city asserted that the Lawsons' tort claims arose from the city's governmental functions, for which immunity is not waived under the TTCA. Finally, the city contended that the Lawsons' takings claim was barred because the facts conclusively showed that the city did not obstruct the rights-of-way in question.
In an order signed by a visiting judge, the trial court granted the plea and dismissed the claims against the city. This was an interlocutory order because the Lawsons also had sued a developer, and the trial court did not sever those claims. The Lawsons filed a motion for new trial, in which they argued that their claims were not barred by governmental immunity. The trial court granted the motion for new trial in an order setting aside the prior grant of the plea to the jurisdiction "granted by an assigned judge" and stating that a new trial was warranted "because there is a disputed question of fact."
The order granting the motion for new trial referred to the prior order as "the summary judgment granted by an assigned judge." There is no factual dispute that the order granting a new trial was referring to the order granting the plea to the jurisdiction.
The City of Manvel filed an interlocutory appeal.
Analysis
The Lawsons argue that we lack interlocutory appellate jurisdiction. We have the obligation to determine our jurisdiction when either the parties or circumstances of the appeal call it into question. Jack M. Sanders Family Ltd. P'ship v. Roger T. Fridholm Revocable, Living Tr., 434 S.W.3d 236, 240 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
"Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments." CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007). Appeals from certain interlocutory orders are authorized by statute, including an appeal from an order that grants or denies a plea to the jurisdiction by a governmental unit. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). The Supreme Court of Texas has held that the statute authorizing interlocutory appeals is "strictly construed" as a "narrow exception to the general rule that only final judgments are appealable." Koseoglu, 233 S.W.3d at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)). "The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for summary judgment." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also Austin State Hosp. v. Graham, 347 S.W.3d 298, 300 (Tex. 2011); Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
The Lawsons assert that this court lacks jurisdiction because the order granting their motion for new trial was not in substance an order granting or denying a plea to the jurisdiction by a governmental unit under section 51.014(a)(8), and no other statute authorizes an interlocutory appeal from such an order. The city relies on City of Houston v. Marquez, No. 01-11-00493-CV, 2011 WL 6147772, at *2 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, pet. denied) (mem. op.), and Sharyland Independent School District v. Molina, No. 13-12-00625-CV, 2013 WL 5305711, at *1 (Tex. App.—Corpus Christi Sept. 19, 2013, no pet.) (mem. op.), for the proposition that an order setting aside the prior grant of a plea to the jurisdiction and granting a new trial was a denial of a plea to the jurisdiction for purpose of interlocutory appeal.
These cases are distinguishable. In Marquez, "the trial court entered an order that denied the City's plea to the jurisdiction and granted a new trial, in effect superseding its prior order." 2011 WL 6147772, at *2. In that case the order granting the new trial expressly denied the City's plea to the jurisdiction. See id. In Molina, "after a hearing, the trial court granted Molina's motion for new trial, effectively denying SISD's plea to the jurisdiction." 2013 WL 5305711, at *1. The opinion did not quote the language used in the court's order, nor did it mention whether the trial court specifically "set aside" the prior order granting the plea to the jurisdiction.
In contrast to Marquez and Molina, in this case the trial court expressly "set aside" the prior order which granted the plea to the jurisdiction and dismissed the claims against the city. Setting aside the order that had granted relief to the city was not equivalent to denying that same relief; instead, it returned the parties to their positions before the jurisdictional plea was granted. The order also granted a new trial. "Granting a new trial has the legal effect of vacating the original judgment and returning the case to the trial docket as though there had been no previous trial or hearing." Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); see In re Walker, 265 S.W.3d 545, 553 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (same).
The city argues that the trial court's order granting a new trial was necessarily a denial of its plea to the jurisdiction because it had the same effect on the litigation that would have occurred if the court had simply denied the plea. This argument presumes that the court's only options were to grant or deny the plea to the jurisdiction. But the trial court had a third option. "It is well established that a trial court faced with a jurisdictional challenge is not necessarily obligated to decide the issue immediately, but possesses some discretion to defer that determination pending further record development, conceivably even until trial on the merits." Bass v. Waller Cty. Sub-Reg'l Planning Comm'n, 514 S.W.3d 908, 912 (Tex. App.—Austin 2017, no pet.) (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)). "When the consideration of a trial court's subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a further development of the case, mindful that this determination must be made as soon as practicable." Miranda, 133 S.W.3d at 227.
The order granting the motion for new trial expressly "set aside"—i.e., vacated—the prior grant of the plea to the jurisdiction, stating as the reason that there was "a disputed question of fact." In the plea to the jurisdiction, the city had argued that its evidence conclusively negated the Lawsons' takings claim. The trial court did not identify a specific question of fact, and other facts pertaining to other claims may be in dispute as well. In this posture, the trial court's order granting a new trial and vacating the prior grant of the plea to the jurisdiction is consistent with a discretionary determination that resolution of the jurisdictional question should be deferred until further development of the case. See Miranda, 133 S.W.3d at 227. "While Section 51.014(a)(8) of the Civil Practice and Remedies Code provides . . . a means of appealing an interlocutory order that 'grants or denies' . . . jurisdictional challenges, an order deferring or otherwise declining to rule on a jurisdictional challenge falls outside that authorization." Bass, 514 S.W.3d at 913 & n.19; see Waller Cty. v. City of Hempstead, 453 S.W.3d 73, 75-76 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (no jurisdiction over interlocutory appeal when trial court did not expressly or implicitly rule on jurisdictional challenge).
We conclude that the order in this case did not grant or deny a plea to the jurisdiction, and as such we lack jurisdiction over this appeal of an interlocutory order. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8); Bass, 514 S.W.3d at 913.
Conclusion
We dismiss this appeal for want of jurisdiction.
Michael Massengale
Justice Panel consists of Justices Jennings, Massengale, and Caughey.