City of Pearsall v. Tobias

533 S.W.3d 516
CourtCourt of Appeals of Texas
DecidedAugust 16, 2017
DocketNo. 04-16-00815-CV
StatusPublished
Cited by9 cases

This text of 533 S.W.3d 516 (City of Pearsall v. Tobias) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Pearsall v. Tobias, 533 S.W.3d 516 (Tex. Ct. App. 2017).

Opinion

OPINION

Opinion by:

Patricia 0. Alvarez, Justice

This appeal stems from the December 5, 2016 trial court order (1) denying Appellant/Cross-Appellee City of Pearsall’s plea to the jurisdiction seeking to dismiss Ap-pellee/Cross-Appellant Robert Tobias’s breach of contract claim and (2) granting the City of Pearsall’s plea to the jurisdiction contending it was immune from Tobi-as’s claim for attorney’s fees.1 On appeal, the City of Pearsall contends it is immune from Tobias’s breach of contract claim because (1) the contract does not contain the essential terms of the agreement; (2) the contract did not provide for goods or services; (3) the contract was not properly executed; and (4) the damages ■ Tobias seéks are not due and owed under the contract. As Cross-Appellant, Tobias contends (1) the City of Pearsall waived its right of appeal by failing to timely file a notice of appeal and (2) the trial court erred in concluding Tobias failed to sufficiently allege the City of Pearsall waived immunity for attorney’s fees.

Because we conclude the Texás Local Government Code waives the City of Pear-sall’s immunity with regard to Tobias’s breach of contract claim, we affirm the portion of the trial court’s order denying the City of Pearsall’s plea to the jurisdiction as to Tobias’s breach of contract suit. See Tex. Loc. Gov’t Code Ann. § 271.152. We also reverse the portion of the trial court’s order granting of the City of Pear-sall immunity for Tobias’s claim for attorney’s fees. See id. § 271.153. We remand this cause to the trial court for further proceedings consistent with this opinion.

Factual and Procedural Background

The live pleadings before the trial court were the City of Pearsall’s Amended Second Plea to the Jurisdiction and Tobias’s Fourth Amended Petition.' All 1 parties agree that, at all times during the pen-dency of this cause, Tobias lived' in San Antonio, Texas, and not within the City of Pearsall’s municipal boundaries. Additionally, the City of Pearsall is a home-rule municipality and political subdivision of the State of Texas. The City of Pearsall’s charter governs the City of Pearsall’s power and outlines official duties.

[520]*520On April 16, 2013, the City of Pearsall entered into a two-year contract with Tobi-as to serve as Pearsall’s City Manager from April 16, 2013 through April 16, 2015. Section 3 of the contract provided, “in the event [Tobias] is ‘involuntarily terminated’ or ‘suspended’ for any reason by action of the [City] Council, ... the City [of Pear-sall] agrees to pay [Tobias] a cash payment, equal to one year’s salary or the balance term of this agreement, whichever is less, plus any accrued leave.”

On September 10, 2013, in an open session, the City Council voted to terminate Tobias’s employment, without severance pay. Although the City Council discussed Tobias’s failure in adequately performing his duties, the stated reason for Tobias’s termination was his failure to live within the municipal boundaries. The contract provided Tobias a six-month grace period to move to the City of Pearsall. At the time of his termination, which was five- and-a-half months after he began his employment, Tobias was not living within the city limits.

Tobias filed suit alleging the City of Pearsall breached the contract by failing to pay him the one-year’s salary, plus interest and attorney’s fees, as severance pay. On October 6, 2016, the trial court heard arguments on the City of Pearsall’s original plea to the jurisdiction and motion to dismiss. The trial court signed an order denying the motion to dismiss on October 31, 2016, but the plea remained pending. On October 19, 2016, Tobias filed his fourth amended petition; the City of Pearsall filed its second amended plea to the jurisdiction on November 7, 2016. On December 5, 2016, prior to proceeding with jury selection, the trial court denied the City of Pearsall’s second plea to the jurisdiction, and this appeal ensued.

On appeal, the City of Pearsall contends it is immune from Tobias breach of contract claim because (1) the contract does not contain the essential terms of the agreement; (2) the contract did not provide for goods or services; (3) the contract was not properly executed; and (4) the damages Tobias seeks are not due and owed under the contract. As Cross-Appellant, Tobias contends (1) the City of Pearsall waived its right of appeal by failing to timely file a notice of appeal and (2) the trial court erred in concluding Tobias failed to sufficiently allege the City of Pearsall waived immunity for attorney’s fees.

We first address Tobias’s allegation that the City of Pearsall waived its right to appeal by failing to timely file its notice of appeal.

Waiver

On appeal, Tobias contends that although the trial court’s October 31, 2016 order only renders a decision regarding the motion to dismiss, all parties agreed that the hearing addressed both the motion to dismiss and the plea to the jurisdiction. The appellate record contains several unsigned orders, including orders denying the motion to dismiss and the City of Pearsall’s original plea to the jurisdiction. In its December 5, 2016 notice of appeal, the City of Pearsall avers the trial court verbally announced that the plea was denied at the hearing on October 6, 2016, but only signed a written order reflecting that ruling on December 5, 2016.- The only signed order regarding a plea to the jurisdiction is the December 5, 2016 order denying in part, and granting in part, the City of Pearsall’s amended second plea to the jurisdiction.

The filing of a notice of appeal invokes the appellate court’s jurisdiction. See Tex. R. App. P. 25.1(b). An interlocutory order granting or denying a governmental [521]*521entity’s plea to the jurisdiction .may be appealed from under Section 51.014(a)(8) of the- Texas Civil Practice and Remedies Code; however, such an appeal must still be properly perfected under Rules 25.1, 26.1, and 28.1 of the Texas Rules of Appellate Procedure. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016) (permitting an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit); see also Tex. R. Apr P. 25.1, 26.1, 28.1. Rule 26.1 requires that, “in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed.” Tex. R. Apr P. 26.1(b) (emphasis added). A court of appeals “lacks jurisdiction over an appeal when the notice of appeal is not timely filed.” Penny v. Shell Oil Prods. Co., 363 S.W.3d 694, 697 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Tex. R. App. P. 25.1); Nedd-Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612, 612-13 (Tex. App.—Dallas 2010, no pet.) (concluding time to perfect appeal runs from the date the trial court signed the judgment).

In the present case, a review of the appellate record supports that the only signed order regarding a plea to the jurisdiction filed by City of Pearsall is the trial court’s order signed on December 5, 2016. As a result, the City of Pearsall’s notice of appeal was due before December 26, 2016. See Tex. R. App. P. 26.1(b). Because the City of Pearsall filed its notice of appeal on December 5, 2016, this court has jurisdiction over the appeal.

We, therefore, turn to whether Tobias’s pleadings support a waiver of immunity.

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Bluebook (online)
533 S.W.3d 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-pearsall-v-tobias-texapp-2017.