# City of New Braunfels, Texas And YC Partners Ltd., D/B/A Yantis Company v. Carowest Land, Ltd. > Texas Court of Appeals, 3rd District (Austin) · January 4, 2018 URL: https://www.frixlaw.com/law-library/cases/4235479 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 4, 2018 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4235479 ## Opinion text ACCEPTED 03-17-00696-CV 21621145 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/4/2018 5:29 PM JEFFREY D. KYLE CLERK No. 03-17-00696-CV FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 1/4/2018 5:29:20 PM AT AUSTIN JEFFREY D. KYLE Clerk CITY OF NEW BRAUNFELS, TEXAS, and Y.C. PARTNERS, LTD. d/b/a YANTIS COMPANY, Appellants, vs. CAROWEST LAND, LTD., Appellee. On Appeal from the 22nd Judicial District of Comal County, Texas Cause No. C2017-0474A, Hon. Margaret G. Mirabal, Sitting by Appointment CAROWEST LAND, LTD’S MOTION TO DISMISS APPEAL OF APPELLANT YC PARTNERS, LTD. D/B/A YANTIS COMPANY Jason Davis Thomas R. Phillips State Bar No. 00793592 State Bar No. 00000022 Caroline Newman Small Maddy R. Dwertman State Bar No. 24056037 State Bar No. 24092371 DAVIS & SANTOS, P.C. BAKER BOTTS L.L.P. 719 S. Flores St. 98 San Jacinto Blvd., Suite 1500 San Antonio, Texas 78204 Austin, Texas 78701 (210) 853-5882 (512) 322-2500 (210) 200-8395 (Facsimile) (512) 322-2501 (Facsimile) jdavis@dslawpc.com tom.phillips@bakerbotts.com csmall@dslawpc.com maddy.dwertman@bakerbotts.com ATTORNEYS FOR APPELLEE CAROWEST LAND, LTD. 1 Appellee Carowest Land, Ltd. (“Carowest”) hereby moves to dismiss the appeal of Appellant YC Partners, Ltd. d/b/a Yantis Company (“Yantis”) for want of jurisdiction. In support of this motion, Carowest would show the following: I. Yantis has no right to an interlocutory appeal of the order denying its plea to the jurisdiction because it is not a governmental unit. The Texas Civil Practice and Remedies Code permits interlocutory appeals only in certain specified circumstances, including the appeal of an order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.”1 TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). 1 Section 101.001 defines “governmental unit” as: (A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts; (B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority; (C) an emergency service organization; and (D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution. TEX. CIV. PRAC. & REM. CODE § 101.001(3). 2 Because the statute authorizing interlocutory appeals is a narrow exception to the general rule that only final judgments and orders are appealable, Texas courts will “strictly construe” this provision “as ‘a narrow exception to the general rule that only final judgments are appealable.’” Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007) (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)). Pursuant to its plain terms, the statute authorizes only the appeal of an order that grants or denies a plea to the jurisdiction by a governmental unit. Because Yantis is indisputably not a governmental unit, either within the meaning of Section 101.001 or as commonly understood—and does not purport to be one—its attempt to appeal the district court’s denial of its own plea to the jurisdiction is improper. Yantis’s appeal should therefore be dismissed for want of jurisdiction. Yantis suggests that its joinder in this interlocutory appeal is proper “because Yantis is a party whose interests are aligned with co-defendant, the City of New Braunfels.” Yantis Br. at 1 (citing TEX. R. APP. P. 25.1(c)). Although Texas Rule of Civil Procedure 25.1(c) permits “[p]arties whose interests are aligned” to “file a joint notice of appeal,” it does not follow that any party can pursue an interlocutory appeal, either by itself or as a tag-along, absent statutory authorization to do so. Chapter 51 of the Texas Civil Practice and Remedies Code authorizes the interlocutory appeal of a denial of a governmental unit’s plea to the 3 jurisdiction, not the denial of any “plea to the jurisdiction based on governmental immunity,” as Yantis asserts. Yantis Br. at 1. Yantis cites no authority showing that its appeal should be permitted, and Carowest has found none. But even if Yantis’s reading of Rule 25.1(c) were correct, “when a rule of procedure conflicts with a statute, the statute prevails.” Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 61 Tex. S. Ct. J. 174, 180 (Tex. Dec. 15, 2017) (quoting Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)). II. Texas courts have held that Section 51.014(a)(8) does not authorize the interlocutory appeal of an order granting or denying a plea to the jurisdiction by a non-governmental co- defendant of a governmental unit. Texas courts have consistently declined to extend the statutory right of interlocutory appeal to orders granting or denying a plea to the jurisdiction by a co- defendant of a governmental unit that is not itself a governmental unit.2 See, e.g., City of Donna v. Ramirez, No. 13-16-00619-CV, 2017 WL 5184533, at *7 (Tex. App.—Corpus Christi Nov. 9, 2017, no pet. h.) (holding that Section 51.014(a)(8) does not authorize government employees sued in their individual capacities to bring interlocutory appeal); AECOM USA, Inc. v. Mata, No. 04-15-00773-CV, 2016 WL 5112222, at *2–4 (Tex. App.—San Antonio Sept. 21, 2016, pet. filed) (mem. op.) (holding that independent contractor of TxDOT was not a 2 Although courts have held that a state official sued in his official capacity may seek interlocutory appellate review from the denial of a jurisdictional plea, such holding has no application to a private entity like Yantis. 4 governmental unit entitled to bring an interlocutory appeal under Section 51.014(a)(8)); cf. Adams v. Harris Cnty., No. 04-15-00287-CV, 2015 WL 8392426, at *4 (Tex. App.—San Antonio Dec. 9, 2015, pet. denied) (mem. op.) (dismissing interlocutory appeal from order granting plea to the jurisdiction filed by government official sued in his individual capacity); Doty v. Beaumont Indep. Sch. Dist., No. 09-10-00306-CV, 2010 WL 4514139, at *1 (Tex. App.—Beaumont Nov. 10, 2010, no pet.) (mem. op.) (dismissing interlocutory appeals from trial court’s orders granting pleas to the jurisdiction filed by non-governmental co- defendants of governmental unit); Sanders v. City of Grapevine, 218 S.W.3d 772, 776 (Tex. App.—Fort Worth 2007, pet. denied) (holding that order dismissing claims against city officials in their individual capacities was not an appealable interlocutory order under Section 51.014(a)(8)). As the Fourteenth Court of appeals explained in dismissing the appeal of private developers who attempted to join in the interlocutory appeal of an order denying Harris County’s plea to the jurisdiction: We find no authority which allows a party to bootstrap an unappealable interlocutory order to a governmental entity’s statutory interlocutory appeal of a denial of a plea to the jurisdiction. To accept the Developers’ arguments would require a holding which grants the right of interlocutory appeal to any co-defendant of a governmental unit filing a plea to the jurisdiction. Strictly construing the interlocutory appeal statute, we cannot say that it permits such an overly broad 5 interpretation. Accordingly, we overrule the Developers’ issue on appeal and grant appellees’ motion to dismiss the Developers’ appeal as we are without jurisdiction to consider it. City of Houston v. Grudziecke, No. 14-02-00947-CV, 2003 WL 1922671, at *4 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); see generally Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 627 n.24 (Tex. App.—Fort Worth 2007, pet. denied) (“An interlocutory order that is explicitly appealable under section 51.014 may not be used as a vehicle for carrying other nonappealable interlocutory orders to the appellate court.”).3 The circumstances of this case are analogous to those in Grudziecke. Yantis, a private entity, is attempting to bootstrap the nonappealable interloctuory order denying its own plea to the jurisdiction to the City’s statutory interlocutory appeal of the order denying the City’s plea to the jurisdiction. Because no authority grants Yantis the right of interlocutory appeal, this Court must dismiss Yantis’s appeal for lack of jurisdiction. Independent of the Court’s decision concerning jurisdiction over Carowest’s declaratory judgment claims against the City, this Court lacks the power to render a decision regarding jurisdiction over 3 Even if a private party could pursue an interlocutory appeal when its interests were identical to an appealing governmental unit’s, Yantis would have no right to appeal here. Yantis openly concedes that its “position differs from that of the City” as it regards the triggering of Carowest’s alleged obligation to indemnify and hold harmless the City. Yantis Br. at 8. Yantis on the one hand claims a right to interlocutory appeal on the basis that its interests are aligned with those of the City, while on the other it seeks judgment on issues where its interests and the City’s clearly diverge. 6 Carowest’s declaratory judgment claims against Yantis. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam) (holding that in the absence of express statutory authorization, the assumption of appellate jurisdiction over an interlocutory appeal is fundamental error). Prayer For the foregoing reasons, Carowest respectfully requests that the Court dismiss Yantis’s appeal of the district court’s order denying Yantis’s plea to the jurisdiction.4 Carowest further requests that any costs associated solely with Yantis’s attempted appeal be assessed against Yantis. Carowest further requests such other and further relief as the Court deems proper under the circumstances. 4 The mandate need not issue until the conclusion of the appeal. 7 Respectfully submitted, BAKER BOTTS L.L.P. By: /s/ Thomas R. Phillips Thomas R. Phillips State Bar No. 00000022 Maddy R. Dwertman State Bar No. 24092371 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701 (512) 322-2500 (512) 322-2501 (Facsimile) tom.phillips@bakerbotts.com maddy.dwertman@bakerbotts.com DAVIS & SANTOS, P.C. Jason Davis State Bar No. 00793592 Caroline Newman Small State Bar No. 24056037 719 Flores St. San Antonio, Texas 78204 (210) 853-5882 (210) 200-8395 (Facsimile) jdavis@dslawpc.com csmall@dslawpc.com ATTORNEYS FOR APPELLEE CAROWEST LAND, LTD. 8 CERTIFICATE OF CONFERENCE I certify that on January 2, 2018 and January 4, 2018, respectively, counsel for Appellee conferred with Lamont A. Jefferson, counsel for YC Partners, Ltd., and G. Alan Waldrop, counsel for the City of New Braunfels, who confirmed that Appellants are opposed to this motion and the relief requested herein. /s/ Thomas R. Phillips Thomas R. Phillips 9 CERTIFICATE OF SERVICE I certify that on January 4, 2018, a true and correct copy of the foregoing motion was served via the Court’s Electronic Filing System on the following counsel of record: G. Alan Waldrop Lawrence Morales, II Ryan D. V. Greene Chuck Shipman TERRILL & WALDROP THE MORALES FIRM, P.C. 810 West 10th Street 6243 W. IH 10, Suite 132 Austin, Texas 78701 San Antonio, Texas 78201 awaldrop@terrillwaldrop.com lawrence@themoralesfirm.com rgreene@terrillwaldrop.com cshipman@themoralesfirm.com Valeria M. Acevedo Lamont A. Jefferson J. Frank Onion, III Emma Cano CITY OF NEW BRAUNFELS, TEXAS JEFFERSON CANO CITY ATTORNEY’S OFFICE 112 East Pecan St., Suite 1650 424 S. Castell Ave. San Antonio, Texas 78205 New Braunfels, Texas 78130 ljefferson@jeffersoncano.com vacavedo@nbtexas.org ecano@jeffersoncano.com fonion@nbtexas.org Attorneys for Appellant Attorneys for Appellant YC Partners, Ltd., d/b/a Yantis Company City of New Braunfels, Texas /s/ Thomas R. Phillips Thomas R. Phillips 10 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4235479. Public record. Not legal advice.