City of Houston v Aster
This is on a motion to reconsider en banc which the court granted and issued this substitute ruling. Aster alleges the City of Houston beached a contract for a construction project and certain computer and technical services. The City filed summary judgment motions, which the trial court denied and the City took an interlocutory appeal on the jurisdictional issues asserting no waiver of sovereign immunity.
The City hired a former employee of Aster and Aster believed the employee had misappropriated trade secrets for the City’s benefit. Aster brought suit pursuant to Tex Loc. Gov’t Code Chapter271. Aster asserted the City failed to “fairly compensate the City” under the contract for the use of its former employee. The City asserted the appropriation of an employee, while all other conditions of the contract are met, is not a breach for which immunity is waived. The City filed a Plea to the Jurisdiction, which was denied. The City did not take an interlocutory appeal. After discovery, the City field a no-evidence and traditional motion for summary judgment. The motions essentially reiterated the same arguments made in the City’s Plea. The motions were denied and the City then took an interlocutory appeal.
Taking its lead from the Texas Supreme Court’s recent holding in City of Houston v Johns, when a city files a motion asserting the same argument as it did in a plea to the jurisdiction previously denied, the appellate court is without interlocutory jurisdiction (if beyond 20 days from the initial denial) to hear the case and must wait for a final order. The court left open the option that a City could raise a new ground in a second jurisdictional motion and be entitled to an interlocutory appeal.
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