Cecil Adams and Maxine Adams v. Harris County and Christopher A. Prine, Clerk of the First Court of Appeals
Opinion
ACCEPTED 04-15-00287-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/10/2015 2:28:48 PM KEITH HOTTLE CLERK
No. 04-15-00287-CV
FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS SAN ANTONIO, TEXAS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS 07/10/2015 2:28:48 PM AT SAN ANTONIO KEITH E. HOTTLE Clerk
CECIL ADAMS and MAXINE ADAMS, Appellants,
v.
HARRIS COUNTY, REBECCA ROSS, KATHLEEN KEESE, and CHRISTOPHER A. PRINE, Clerk of the Court, Appellees.
On Appeal from the 269th District Court Harris County, Texas District Court Cause No. 2014-35653
APPELLEE HARRIS COUNTY’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
VINCE RYAN Harris County Attorney
/s/ Keith A. Toler KEITH A. TOLER Assistant County Attorney State Bar No. 24088541 1019 Congress, 15th Floor Houston, Texas 77002 Phone: (713) 274-5265 Fax: (713) 755-8924 Email: Keith.Toler@cao.hctx.net
ATTORNEY FOR APPELLEE HARRIS COUNTY
TO THE HONORABLE COURT OF APPEALS:
Appellee Harris County files this Motion to Dismiss Appellants’ Appeal for
Lack of Subject Matter Jurisdiction, respectfully showing this Court the following:
INTRODUCTION Appellants are Cecil and Maxine Adams. Appellees are Harris County,
Kathleen Keese, Rebecca Ross, and Christopher Prine.
The 269th District Court of Harris County, Texas, signed the interlocutory
order denying Appellants’ motion to dismiss Harris County’s interpleader suit
(hereinafter the “Interlocutory Order”) in the underlying case, Harris County v.
Adams et al., cause number 2014-35653, on March 13, 2015.1
Appellants appealed the Interlocutory Order, which is the subject of this
motion.2 Appellants incorrectly rely on Texas Rule of Appellate Procedure 29.6 for
the Court’s jurisdiction to hear a challenge to the Interlocutory Order.3 Neither
Rule 29.6 nor any other law authorizes interlocutory review of the Interlocutory
Order. Therefore, this Court lacks jurisdiction to hear the appeal of the
Interlocutory Order.
1 (C.R. at 231).
2 Appellants also appealed an order granting Appellee Prine’s plea to the jurisdiction. (C.R.
at 259). See generally Adams’ Appellate Brief. This motion does not argue that this Court lacks jurisdiction to review the district court order granting Appellee Prine’s plea to the jurisdiction. 3 See (C.R. at 259); Brief at 11 (praying “in the interest of justice, pursuant to TEX. R.
APP. P. 29.6 Adams pray that this Court will review pending motions for review of interlocutory orders that impairs the effectiveness of the relief sought or that may be granted on appeal.”).
ARGUMENTS AND AUTHORITIES The Court has the authority under Texas Rule of Appellate Procedure
42.3(a) to dismiss an appeal for lack of jurisdiction.
The Court should dismiss this appeal because the Interlocutory Order is a
non-appealable interlocutory order.4 Generally, a party may only appeal a final
judgment.5 “A judgment is final for purposes of appeal ‘if and only if either it
actually disposes of all claims and parties then before the court, regardless of its
language, or it states with unmistakable clarity that it is a final judgment as to all
claims and all parties.’”6 The Interlocutory Order is not a final judgment because it
does not dispose of any claims or parties or state that it is a final judgment.7
A party may appeal an interlocutory order when jurisdiction is authorized by
the Legislature.8 Here, the Interlocutory Order is only appealable if: (1) authorized
by Texas Rule of Appellate Procedure 29.6, which Appellants incorrectly rely
upon; (2) the specific interlocutory order is authorized by statute; or (3) a trial
court issues an order permitting an appeal of an otherwise non-appealable order, as
authorized by statute. None of these exceptions apply. 4 City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993).
5 Id.; De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006).
6 Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001)). 7 (C.R. at 231).
8 Bison Bldg. Materials, Ltd., 422 S.W.3d at 585 (citations omitted).
1. Rule 29.6 does not grant jurisdiction over this appeal.
This interlocutory appeal does not fall within the scope of Texas Rule of
Appellate Procedure 29.6. Rule 29.6 states that:
While an appeal from an interlocutory order is pending . . . the appellate court may review . . . (1) a further appealable interlocutory order concerning the same subject matter; and (2) any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal.”9
By its plain language, Rule 29.6 does not apply when the pending order upon
which other interlocutory orders rely is a final judgment. Rather, the pending order
must be an appealable interlocutory order.
The order Appellants rely upon is a final judgment, not an interlocutory
order. Appellants rely upon their pending appeal of the district court’s order
granting Appellee Prine’s plea to the jurisdiction.10 That order is a final judgment,
not an interlocutory order. The district court stated “with unmistakable clarity” that
the order “operates as a final judgment.”11 Moreover, the order disposes of all
parties and all cross-claims and counterclaims between Appellants and Appellee
Prine.12
9 Tex. R. App. P. 29.6 (emphasis added).
10 (C.R. at 259). Appellants incorrectly claim that the order granting a plea to the jurisdiction is an interlocutory order. 11 (C.R. at 229).
12 Id.
Appellants cannot rely upon a pending appeal of a final judgment to grant
supplemental jurisdiction over the Interlocutory Order. The necessary prerequisite
of an appealable interlocutory order is absent in this appeal.13 Therefore, Rule 29.6
does not grant jurisdiction over the Interlocutory Order.
2. No other law grants jurisdiction over this appeal.
The Legislature has not excepted motions to dismiss interpleader actions
from the general rule that only final judgments are appealable. If no law authorizes
a particular interlocutory appeal, then an appellate court lacks jurisdiction to hear
the interlocutory appeal.14
Section 51.014(a) of the Texas Civil Practice and Remedies Code expressly
authorizes appeals of certain enumerated interlocutory orders.15 Appellants’ motion
to dismiss is not included in the Section 51.014 list of appealable interlocutory
orders.16 Therefore, Appellants’ appeal is not authorized by Section 51.014(a).
13 In addition, the Interlocutory Order does not concern the same subject matter as the plea to the jurisdiction order or interfere with or impair the effectiveness of the relief sought or that may be granted on appeal. Tex. R. App. P. 29.6. 14 See De Ayala, 193 S.W.3d at 578, 579–80.
15 Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (West 2013).
16 Although Section 51.014 authorizes appeals of interlocutory orders denying certain motions to dismiss, Appellants’ motion to dismiss an interpleader action is not included in the enumerated list. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(11), (12) (West 2013) (cross-referencing Tex. Civ. Prac. & Rem. Code Ann. §§ 90.007 (authorizing motions to dismiss for failure to timely serve a report in an asbestos- or silica-related case) and 27.003 (authorizing motions to dismiss actions based on a party’s exercise of rights of free speech, to petition, or of association)).
Section 51.014(d) also authorizes appeals of interlocutory orders when a
district court issues an order permitting an appeal of that court’s interlocutory
order.17 The Clerk’s Record reveals that the district court issued no such order.18
Therefore, Appellants’ appeal is not authorized by Section 51.014(d).
Counsel for Harris County could not find any other law granting jurisdiction
to hear an interlocutory order denying a motion to dismiss an interpleader action.
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Cecil Adams and Maxine Adams v. Harris County and Christopher A. Prine, Clerk of the First Court of Appeals (Cecil Adams and Maxine Adams v. Harris County and Christopher A. Prine, Clerk of the First Court of Appeals) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.