Bexar Metropolitan Water District v. Humberto Ramos ( 2009 )


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    MEMORANDUM OPINION
    Nos. 04-09-00009-CV, 04-09-00010-CV
    BEXAR METROPOLITAN WATER DISTRICT,
    Appellant
    v.
    Liliana ORANDAY,
    Appellee
    Bexar Metropolitan Water District,
    Appellant
    v.
    Humberto Ramos,
    Appellee
    From the 150th Judicial District Court, Bexar County, Texas
    Trial Court Nos. 2008-CI-15587, 2008-CI-13594
    Honorable David A. Berchelmann, Jr., Judge Presiding
    Opinion by:    Phylis J. Speedlin, Justice
    Sitting:       Karen Angelini, Justice
    Phylis J. Speedlin, Justice
    Steven C. Hilbig, Justice
    Delivered and Filed: May 27, 2009
    DISMISSED FOR LACK OF JURISDICTION
    04-09-00009-CV and 04-09-00010-CV
    In this consolidated interlocutory appeal, Bexar Metropolitan Water District (“Bexar Met”)
    contends the trial court erred in denying its pleas to the jurisdiction to the lawsuits filed by Liliana
    Oranday and Humberto Ramos. Because the orders at issue do not grant or deny Bexar Met’s pleas
    to the jurisdiction, we must dismiss these appeals for lack of jurisdiction. Oranday’s motion to
    dismiss the appeals for want of jurisdiction is granted.
    1. An appellate court has jurisdiction to immediately review an interlocutory order only
    if specifically permitted by statute. Qwest Communications Corp. v. AT & T Corp., 
    24 S.W.3d 334
    ,
    336 (Tex. 2000). In this case, all parties agree that the relevant statute is Texas Civil Practice &
    Remedies Code § 51.014(a), which allows an interlocutory appeal to be considered from an order
    granting or denying a plea to the jurisdiction by a governmental unit. TEX . CIV . PRAC. & REM .
    CODE Ann. § 51.014(a)(8) (Vernon 2008). The parties further agree that Bexar Met qualifies as a
    governmental unit. They disagree, however, that the following order denies Bexar Met’s plea to
    the jurisdiction:
    On this day came on to be heard Defendant Bexar Metropolitan Water
    District’s Pleas to the Jurisdiction. The Court, having considered said Motion, the
    Response, the pleadings on file herein, and the arguments of counsel, is of the
    opinion that the Pleas should be denied, but Plaintiff should amend its petition with
    regard to the claims against Bexar Metropolitan Water District. It is, therefore
    Ordered the Plaintiff shall have thirty (30) days to file an amended petition
    addressing the claims asserted against Bexar Metropolitan Water District.1
    2. The decretal provisions of a judgment or signed order control over conflicting recitals
    contained within the same judgment or order. See Nelson v. Britt, 
    241 S.W.3d 672
    , 676 (Tex.
    1
    …   The identical order was entered in both suits.
    -2-
    04-09-00009-CV and 04-09-00010-CV
    App.—Dallas 2007, no pet.); Alcantar v. Okla. Nat’l Bank, 
    47 S.W.3d 815
    , 823 (Tex. App.—Fort
    Worth 2001, no pet.) (“The factual recitations or reasons preceding the decretal portion of a
    judgment form no part of the judgment itself.”). Applying the rule to the case before us, it is clear
    that based on the decretal provision of the order, Bexar Met’s plea to the jurisdiction was neither
    granted nor denied. The order instead grants Plaintiff thirty days to re-plead as allowed by the
    Texas Supreme Court. Texas A & M Univ. Sys. v. Koseoglu, 
    233 S.W.3d 835
    , 839 (Tex. 2007)
    (plaintiff deserves “a reasonable opportunity to amend” unless the pleadings affirmatively negate
    the existence of jurisdiction); Harris County v. Sykes, 
    136 S.W.3d 635
    , 639 (Tex. 2004); Tex. Dep’t
    of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 226-27 (Tex. 2004). Furthermore, an examination
    of the transcript of the hearing on the plea to the jurisdiction compels the conclusion that the trial
    court did not intend to deny the plea, but to allow the Plaintiff an opportunity to amend his
    pleadings. The court specifically noted that Plaintiff’s pleadings did not affirmatively negate the
    existence of jurisdiction:
    [H]e has made some allegations in here of general negligence in the manner in
    which the equipment was set up or the methodology in which the employees
    operated. I don’t know how you would put it, and I don’t know what the factual
    situation would be. But, you know, you’re asking me at this time, really, to dismiss
    his cause of action without allowing him an opportunity to try to plead it that way.
    You know, I think the law has always been that in cases I’ve been familiar with, that
    you have the opportunity to replead.
    Finally, the trial court noted that Bexar Met could re-urge its plea to the jurisdiction after Plaintiff
    had an opportunity to amend his pleadings. 
    Sykes, 136 S.W.3d at 639
    (after plaintiff is provided
    a reasonable opportunity to amend and amended pleading still fails to allege facts that would
    constitute a waiver of immunity, then the trial court should dismiss the plaintiff's action). Here,
    -3-
    04-09-00009-CV and 04-09-00010-CV
    Bexar Met filed its notice of appeal before the thirty-day period granted by the trial court had run,
    and the automatic stay of section 51.014(b) denied the Plainiff the opportunity to amend his
    pleadings. See TEX . CIV . PRAC. & REM . CODE § 51.014(b) (Vernon 2008). Because the trial
    court’s orders neither granted nor denied the pleas to the jurisdiction, we have no jurisdiction over
    these consolidated appeals; therefore, the appeals are dismissed for lack of jurisdiction.
    Phylis J. Speedlin, Justice
    -4-