13th Court of Appeals holds it does not have interlocutory jurisdiction to hear 2nd motion which is nothing more than reconsideration of first plea to the jurisdiction

City of Elsa, Texas v. Jesse Diaz, 13-19-00109-CV, (Tex. App – Corpus Christi – Edinburg, April 2, 2020)

This is an interlocutory appeal (2nd for the case) in a contractual immunity case where the 13th Court of Appeals held the City’s summary judgment was merely a motion to reconsider the already denied plea to the jurisdiction, so the appellate court lacked interlocutory jurisdiction.

Diaz was appointed as interim police chief but emails stated if not selected for the permanent position, he would resume his role as the warrants officer. Later, a new city manager removed Diaz from the chief position but terminated his employment. Diaz sued for breach of contract. The City first filed a plea to the jurisdiction which was granted.  However, the 13th Court of Appeals reversed and remanded. On remand, the City filed separate no-evidence and traditional motions for summary judgment, each reasserting that the trial court lacks subject matter jurisdiction because the city council did not formally approve the contract. The motions were denied and the City took this interlocutory appeal.

Although § 54.014(a) does not expressly limit a party to one interlocutory appeal, the right to successive interlocutory appeals is not without limits. When a second motion/plea constitutes nothing more than a motion to reconsider, without any new or distinct evidence or arguments, the appellate court lacks interlocutory jurisdiction. In making this determination, courts of appeals should compare both the substance and procedural nature of the two challenges.  The court held, in this case, the original plea and the motions for summary judgment, were substantively and procedurally identical. The only change is the  City added an affidavit which implicitly refutes evidence considered in Diaz I regarding the authority to enter into the contract by the City Manager. Since the second set of motions do not contain “new and distinct” challenges to the trial court’s jurisdiction, they are mere reconsiderations. The court of appeals, therefore, dismissed the appeal for lack of interlocutory jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Longoria, and Perkes. Dismissed – Want of Jurisdiction. Memorandum Opinion by Justice Perkes. Docket page with attorney information can be found here.