Tx. Sup. Ct. Holds Cities Can Lose Right to Interlocutory Appeal.
Below is a Texas Supreme Court case of interest to municipal attorneys and litigators.
The City of Houston issued a demolition permit to a neighbor of Kenneth S. Jones. While performing work under the permit the neighbor destroyed part of Jones’s home. Jones sued the City. They entered into a settlement agreement, but Jones argued the City breached the agreement and sued again. City filed PTJ based on contractual immunity which went before the TXSC once before where the court held the “sue and be sued” language in the charter did not waive sovereign immunity. Case was remanded. On remand City filed a PTJ (2006), which was implicitly denied because the court granted partial summary judgment for Jones on liability. The City did not appeal this implicit denial. Jones died and the case was transferred to probate court where the City filed a substantially similar PTJ as the 2006, which was denied. City filed interlocutory appeal.
The Court held that while a lack of jurisdiction cannot procedurally be waived, the appellate court’s jurisdiction to hear an interlocutory appeal under Tex. Civ. Prac. & Rem Code §51.014 can be. That section is a narrow exception to the principal that a COA can only hear appeals from a final judgment. Essentially, what the court is saying is whether this latest PTJ was properly denied is not before the COA because the COA has lost interlocutory jurisdiction to hear anything and cannot until it is an appeal from a final order. This case also stands for the position that you can lose your right to interlocutory appeal for any ruling which could qualify as an implicit denial. This, turned sideways a little, can open up the ability for more interlocutory appeals as (with a few exceptions) any ruling which has the effect of asserting a trial court’s jurisdiction over a city could be appealable if a PTJ has previously been filed.
For the opinion click here.