RECENT HOUSTON APPEALS COURTS CASES

Comptroller v. Waites (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Nuchia)
[government entity law, sovereign immunity, ILA, UDJA, declaratory judgment claim re: indemnification of public servant]

City of Houston v. City of Webster (Tex.App.-Houston [14th Dist.] Nov. 14, 2006)(Anderson)
[sovereign immunity law, ILA, appeal not authorized, motion for summary judgment vs. plea to the jurisdiction; only
jurisdictional issues subject to interlocutory appeal, appeal DWOJ]

Laboratory Corp. of America v. Ortiz (Tex.App.–Houston [1st Dist.] June 29, 2006)(per curiam)
[ILA, temporary injunction suit moot]
DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00914-CV Laboratory Corporation of America v. Robert Ortiz and St. Raphael Medical Clinic, Inc.
Appeal from 113th District Court of Harris County (Hon. Patricia Hancock)

PENDING AND RECENTLY DECIDED TEXAS SUPREME COURT CASES INVOLVING
INTERLOCUTORY APPEALS

05-0321 Texas A&M Univ. Sys. v. Koseoglu (Tex. 2007)(oral argument heard)
Texas A&M University System, Texas Engineering Experiment Station, and Dr. Mark McLellan v. Dr. Sefa Koseoglu; from Brazos County;
On petition for review from the 10th Court of Appeals (10-03-00375-CV, 167 S.W.3d 375, 03 -09 -05)
Link to briefs:
No. 05-0321 A&M University's Brief in the Supreme Court
No. 05-0321 A&M University's Reply Brief in the Supreme Court   
No. 05-0321 Response to Petition for Review by Dr. Koseoglu
No. 05-0321 Brief of Respondent Dr. Sefa Koseoglu
Opinion below:
Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006, oral hearing held, but opinion yet to
be issued)


06-0034 DALLAS AREA RAPID TRANSIT V. AMALGAMATED TRANSIT UNION LOCAL NO. 1338 (pet. filed)
[collective bargaining; is state sovereign immunity preempted by federal law?]
Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338,
No. 05-05-00241-CV (Tex.App.–Dallas, Oct. 14, 2005, pet filed).
Question presented on petition to the Supreme Court: Where Texas governmental entities are immune from lawsuits for money
damages unless immunity from suit has been clearly and unambiguously waived by the Teas Legislature, does the Urban Mass
Transportation Act of 1964 (now Federal Transit Act) preempt the Texas doctrine of governmental immunity to allow a labor union to
pursue a lawsuit for money damages against a Texas Regional Transportation Authority?
No. 06-0034 Supreme Court Briefs
Opinion below:
Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, No. 05-05-00241-CV (Tex.App.–Dallas, Oct. 14, 2005, pet filed).

UTMB v. Blackmon No. 05-0594 (Tex. June 9, 2006)
[nonsuit while interlocutory appeal ILA is pending terminates appeal, DWOJ]
05-0594 THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON v. THE ESTATE OF DARLA BLACKMON, BY ITS BENEFICIARY
SHEILA SHULTZ AND SHEILA SHULTZ, INDIVIDUALLY; from Coryell County; 10th district (10 03 00093 CV, 169 SW3d 712, 06 22 05)
motion to dismiss, dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court
vacates the court of appeals' judgment and dismisses the appeal for want of jurisdiction. Per Curiam Opinion
(“Darla Blackmon died of pneumonia while incarcerated at a Texas Department of Criminal Justice substance abuse facility operated by
the University of Texas Medical Branch at Galveston (UTMB). Blackmon’s daughter, Sheila Shultz, brought suit for wrongful death and
survival damages, claiming that UTMB negligently failed to diagnose and treat her mother’s illness. Shultz alleged a waiver of sovereign
immunity under the Tort Claims Act’s exception for personal injury or death caused by a condition or use of tangible personal property.
See Tex. Civ. Prac. & Rem. Code § 101.021(2). UTMB filed a plea to the jurisdiction,  which the trial court denied, and then brought an
interlocutory appeal. See id. § 51.014(a)(8).”)
(“While the petitioner's interlocutory appeal from its plea to the jurisdiction was pending in the court of appeals, the respondent filed a
nonsuit. We conclude that the nonsuit deprived the court of appeals of jurisdiction, and we vacate its order and dismiss this interlocutory
appeal for want of jurisdiction.”)
Opinion below: 169 S.W.3d (Tex.App. 10thCoA)

Childers v. Advanced Foundation Repair  No. 05-0831(Tex. May 26, 2006)(per curiam)
[Order appealed from was final, CoA erred in dismissing for want of interlocutory jurisdiction)  
05-0831 STEVE CHILDERS v. ADVANCED FOUNDATION REPAIR, L.P.; from Kleberg County; 13th district (13 04
00193 CV, ___ SW3d ___, 08 18 05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion  
The court of appeals erroneously determined Childers’s appeal to be interlocutory.
(“In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and claims,
based on the record in the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here. AFR requested
that the trial court dismiss the case “in its entirety,” and the trial court did exactly that. The trial court’s Final Judgment
is unequivocal: “This judgment is final, disposes of all parties and all claims in this case, is appealable, and disposes
of this case in the entirety.” Because the trial court’s order was all-encompassing and, as the record confirms,
disposed finally and completely of all claims and parties, the court of appeals erred in deeming the appeal
interlocutory and dismissing it for lack of jurisdiction. We note that the federal approach is identical. See Green Tree
Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000) (holding that an appeal may be taken of an order that
compels arbitration and dismisses all claims before the court). Without hearing oral argument, we grant Childers’s
petition for review, reverse the court of appeals’ judgment dismissing the case for lack of jurisdiction, and remand to
the court of appeals to consider the merits of Childers’s appeal. See Tex. R. App. P. 59.1, 60.2(d).”)

State of Texas v. Shumake, No. 04-0460 (Tex. June 23, 2006)
[explaining conflicts jurisdiction in the Supreme Court as an exception to the rule that interlocutory appeal is final in the court of appeals]
("Before reaching the merits, we must consider the issue of our own jurisdiction. Generally, a court of appeals’ decision in an
interlocutory appeal is final. Tex. Gov’t Code § 22.225(b)(3). When, however, a justice in the court of appeals dissents on a question of
law material to the decision in the interlocutory appeal, or when a prior decision of another court of appeals conflicts with the court’s
decision in the interlocutory appeal, we have jurisdiction to resolve the disagreement or conflict. Tex. Gov’t Code §§ 22.001(a)(1), (2) and
22.225(c). The court of appeals’ decision in this case conflicts with those of four other courts of appeals that have held the recreational
use statute does not permit a premises defect claim against the state. ... We thus have jurisdiction to resolve the conflict in this
interlocutory appeal. Tex. Gov’t Code § 22.001(a)(2).")

Childers v. Advanced Foundation Repair No. 0831 (Tex. May 26, 2006)  
[Order appealed from was final, CoA erred in dismissing for want of interlocutory jurisdiction)  
05-0831 STEVE CHILDERS v. ADVANCED FOUNDATION REPAIR, L.P.; from Kleberg County; 13th district (13 04 00193 CV, ___ SW3d
___, 08 18 05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court
reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion  The court of appeals erroneously
determined Childers’s appeal to be interlocutory.
(“In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and claims, based on the record in
the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here. AFR requested that the trial court dismiss the case “in its
entirety,” and the trial court did exactly that. The trial court’s Final Judgment is unequivocal: “This judgment is final, disposes of all parties
and all claims in this case, is appealable, and disposes of this case in the entirety.” Because the trial court’s order was all-
encompassing and, as the record confirms, disposed finally and completely of all claims and parties, the court of appeals erred in
deeming the appeal interlocutory and dismissing it for lack of jurisdiction. We note that the federal approach is identical. See Green Tree
Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000) (holding that an appeal may be taken of an order that compels arbitration
and dismisses all claims before the court). Without hearing oral argument, we grant Childers’s petition for review, reverse the court of
appeals’ judgment dismissing the case for lack of jurisdiction, and remand to the court of appeals to consider the merits of Childers’s
appeal. See Tex. R. App. P. 59.1, 60.2(d).”)

Thomas v. Long No. 03-0204 (Tex. April 21, 2006)    
[vehicle to raise jurisdictional issue: plea to the jurisdiction v. summary judgment]
The Court reverses the court of appeals' judgment and renders judgment.
Justice Wainwright delivered the opinion of the Court. THOMMY THOMAS, SHERIFF OF HARRIS COUNTY v. JEANNE LONG;
from Harris County; 14th district (14 02 00251 CV)
(“This is an interlocutory appeal of a trial court’s denial of a jurisdictional plea. Although the plea was made as part of a motion for
summary judgment, the court of appeals had jurisdiction to consider the interlocutory appeal under section 51.014(a)(8) of the Texas
Civil Practice and Remedies Code. We conclude that the court erred in determining that it was without jurisdiction to consider the appeal.
However, we dismiss the claims relating to the respondent’s reinstatement to her employment because her failure to exhaust
administrative remedies deprived the trial court of subject matter jurisdiction over those claims.”)(“The trial court was without subject
matter jurisdiction to issue a declaratory judgment in this case and erred in denying Thomas’s jurisdictional challenge.”)
Opinion below: Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003, reversed)  

Brittingham-Sada de Ayala v. Mackie No. 04-0160 (Tex. April 21, 2006)
[interlocutory appeals statute, probate proceeding, permissive interlocutory appeal]
04 0160 MARIA CRISTINA BRITTINGHAM-SADA DE AYALA v. KEVIN MICHAEL MACKIE, ADMINISTRATOR OF THE ANCILLARY ESTATE
OF JUAN ROBERTO BRITTINGHAM-MCLEAN, DECEASED; from Webb County; 4th district (04 01 00204 CV, 131 S.W.3d 3,  07 02 03)
The Court reverses the court of appeals' judgment and dismisses the appeal.
Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill and Justice Green not sitting)

City of Houston v. Jackson No. 04-0465 (Tex. April 7, 2006)    
[fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the court of appeals below, law of case doctrine does
not preclude Texas Supreme Court from reviewing issues raised in first (interlocutory) appeal.]
04-0465 The City of Houston v. Robert Jackson from Harris County; 1st district (01 02 00879 CV, 135 S.W.3d 891, 04 01 04) unopposed
motion for leave to file post submission brief granted
The Court reverses the court of appeals' judgment and dismisses respondent's statutory penalty claim for want of jurisdiction.
Justice O'Neill delivered the opinion of the Court
Opinion below:  

INTERLOCUTORY APPEALS IN THE HOUSTON COURTS OF APPEALS (selected cases)

Comptroller v. Waites (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Nuchia)
[government entity law, sovereign immunity, ILA, UDJA, declaratory judgment claim re: indemnification of public
servant, effort to collect federal court judgment in Section 1983 suit]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Judge Davie L. Wilson, Justices Nuchia and Higley
01-06-00536-CV The Comptroller of Public Accounts of Texas, The Attorney General of Texas, and Prairie View A&M
University v. Adrienne Waites
Appeal from 155th District Court of Waller County (Hon. Dan R. Beck)

Lathrop v. Peronalysis (Tex.App. - Houston [14th Dist.] Oct. 31, 2006)(Guzman)
[interlocutory appeal, ILA, general jurisdiction, personal jurisdiction, special appearance, due process, purposeful availment]
AFFIRMED: Justice Guzman
Before Justices Anderson, Hudson and Guzman)
14-06-00074-CV        Kenneth D. Lathrop v. Personalysis Corp
Appeal from 215th District Court of Harris County

City of Houston v. City of Webster (Tex.App.-Houston [14th Dist.] Nov. 14, 2006)(Anderson)
[sovereign immunity law, ILA, appeal not authorized, motion for summary judgment vs. plea to the jurisdiction; only jurisdictional issues
subject to interlocutory appeal, appeal DWOJ]

Because Houston Filed a Summary Judgment Motion, It May not Take an Interlocutory Appeal

Interlocutory appeals are provided for by statute.  See Tex. Civ. Prac. & Rem. Code ' 51.014.  Houston attempted to give this court
jurisdiction over this interlocutory appeal by utilizing section 51.014(a)(8).[1]  However, Houston did not file a plea to the jurisdiction.  
Instead it filed a summary judgment, though styled a plea to the jurisdiction.[2]  See Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex. App.-
Houston [14th Dist.] 2006, no pet.) (holding that, for purposes of section 51.014(a)(5), we determine if a party is entitled to an interlocutory
appeal by examining the substance and topic of the pleading upon which the appeal is based, not the form or title of the pleading).  The
substance and topic of Houston's pleadings below were merits based and thus represented an attempt at summary judgment.  They
continue to be merits based in this court.  Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if
a statue explicitly provides appellate jurisdiction.  Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998).  Because there is no statutory
basis for this court to review Houston's motions for summary judgment that the trial court denied, we dismiss this appeal.


Baylor College of Medicine v. Hernandez (Tex.App.– Houston [14th Dist.] July 27, 2006)(Guzman)
[Doctors not entitled to interlocutory appeal, plea to the jurisdiction improper]
DISMISSED: Opinion by Justice Eva M. Guzman
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-00976-CV Baylor College of Medicine, Francis Joseph Welsh , M.D., Haleema Latifi, M.D., Fareed Khan, M.D., and Nageeb Abdalla,
M.D. v. Maria Hernandez, Individually as Executrix of the Estate of Francisco Hernandez and as Friend of Ruby Hernandez and Norma
Hernandez and Frank Hernandez
Appeal from 151st District Court of Harris County
Holding: Because section 51.014 of the Civil Practice and Remedies Code does not confer this court with jurisdiction to decide any of the
issues presented on interlocutory appeal, the appeal is dismissed.

Section 51.014(a)(8) permits an appeal from an order that “grants or denies a plea to the jurisdiction by a governmental unit as that term
is defined in Section 101.001.”  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005).  A party cannot take an
interlocutory appeal from the denial of a plea to the jurisdiction unless the plea raises an issue that can deprive the trial court of
jurisdiction.  See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004).  Moreover, an interlocutory appeal is not
available if the plea to the jurisdiction was not made by a “governmental unit.”  See Tex. A & M Univ.  Sys. v. Koseoglu, 167 S.W.3d 374,
377–79 (Tex. App.—Waco 2005, pet. granted); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721  (Tex. App.—Fort Worth 2004, no pet.);
Perry v. Del Rio, 53 S.W.3d 818, 821 (Tex. App.—Austin 2001), pet. dism’d, 66 S.W.3d 239, 264 (Tex. 2001).  

Quebe v. Pope No. 14-05-01054-CV (Tex.App.–Houston [14th Dist.] June 20, 2006)(Hedges)
Panel of Fourteenth Court of Appeals holds that interlocutory appeals statute must be construed strictly, finds no interlocutory jurisdiction
over attempted appeal from trial court order denying motion for summary judgment on
claims of defamation and tortious interference with a contract; defendant not a media defendant entitled to appeal under Tex. Civ. Prac. &
Rem. Code Ann. §51.014(a)(6).
DISMISSED: Opinion by Chief Justice Hedges
Appeal from 405th District Court of Galveston County (Judge Wayne J. Mallia)

Phillips v. Dafonte No. 14-05-00522-CV (Tex.App.--Houston [14th Dist.] Feb. 7, 2006)(Fowler)
Panel finds that its has interlocutory jurisdiction under Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(5); that doctors are not entitled to
dismissal based on immunity pursuant to Tex. Civ. Prac. & Rem. Code 101.106(f); affirms trial court's denial of motion to dismiss.
Defendant doctors failed to establish that suit could have been brought against the entity (UTMB) under the Tort Claims Act. Information
is not tangible personal property; claims of intentional torts against doctors fall outside the scope of the Tort Claims Act.
Appeal from the 56th District Court of Galveston County, Texas

City of Seabrook v. Port of Houston Authority (Tex.App. - Houston [1st Dist.] May 18, 2006)(opinion by Bland)(en banc)
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley and Bland
01-04-00925-CV The City of Seabrook, Texas v. Port of Houston Authority
Appeal from Co Civil Ct at Law No 3 of Harris County
City of Seabrook v. Port of Houston Authority (Tex.App. - Houston [1st Dist.] May 18, 2006)
(dissenting opinion by Justices Hanks and Keyes)

Quebe v. Pope (Tex.App.–Houston [14th Dist.] June 20, 2006)(Hedges)
[sexual assault allegations, denial of sj on defamation and tortious interference with a contract; no interlocutory jurisdiction; no media
defendant; ILA prohibited by common law; ILA statute must be construed strictly)
DISMISSED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-01054-CV Jacqueline Quebe and Charles Quebe v. Curtis Pope
Appeal from 405TH District Court of Galveston County (Judge Wayne J. Mallia)

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338,
No. 05-05-00241-CV (Tex.App.–Dallas, Oct. 14, 2005, pet filed and docketed as No. 06-00034)(ebriefs)
[collective bargaining; is state sovereign immunity preempted by federal law?]
Question presented on petition to the Supreme Court: Where Texas governmental entities are immune from lawsuits for money
damages unless immunity from suit has been clearly and unambiguously waived by the Teas Legislature, does the Urban Mass
Transportation Act of 1964 (now Federal Transit Act) preempt the Texas doctrine of governmental immunity to allow a labor union to
pursue a lawsuit for money damages against a Texas Regional Transportation Authority?

City of Grand Prairie v. Irwin Seating Company, No. 05-04-00560-CV (Tex.App.--Dallas, August 16, 2005)(denial of plea to the jurisdiction
affirmed, following Reata; waiver by counterclaim / third-party claim, entity has choice to contest jurisdiction or seek affirmative relief and
consent to jurisdiction in doing so, issue of waiver by sue and be sued language not reached)