the City of El Paso v. Guadalupe Ramirez, Norma Ramirez, Ramirez Pecan Farms, LLC, William H. Boutwell, Jackie Boutwell, Raul Zamorano, Jr., Amy K. Zamorano, Patricia Wynn, Individually and as Trustee of the Wynn Family Living Trust, Larry Webb, Maria L. Webb, James R. Raley, Yariela G. Raley, Russell T. Sturgeon, Kerry L. Sturgeon, Kenneth A. Johnson and Julie R. Johnson ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
The City of El Paso, § No. 08-18-00216-CV
Appellant, § Appeal from the
v. § County Court at Law No. 5
Guadalupe Ramirez, Norma Ramirez, § of El Paso County, Texas
Ramirez Pecan Farms, LLC, William H.
Boutwell, Jackie Boutwell, Raul § (TC# 2017-2568)
Zamorano, Jr., Amy K. Zamorano, Patricia
Wynn, Individually and as Trustee of the §
Wynn Family Living Trust, Larry Webb,
Maria L. Webb, James R. Raley, Yariela §
G. Raley, Russell T. Sturgeon, Kerry L.
Sturgeon, Kenneth A. Johnson and Julie R. §
Johnson,
§
Appellees.
§
ORDER
This appeal is before the Court to determine whether it has jurisdiction of the City’s
attempted appeal from an interlocutory judgment on liability. Additionally, we will consider the
City’s petition for a permissive appeal pursuant to Rules 28.2 and 28.3 of the Texas Rules of
Appellate Procedure.
On November 30, 2018, the City filed notice of appeal from the trial court’s interlocutory
judgment on liability signed on November 15, 2018. The City based its appeal on Section
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51.014(d) of the Civil Practice and Remedies Code. See TEX.CIV.PRAC. & REM.CODE ANN.
§51.014(d). On December 3, 2018, the City filed an amended notice of appeal which requested
that the notice of appeal be considered as an application for an agreed interlocutory appeal pursuant
to Section 51.014(f). See TEX.CIV.PRAC. & REM.CODE ANN. §51.014(f). As required by Rules
28.2 and 28.3, the City attached a copy of the interlocutory judgment to the amended notice of
appeal. See TEX.R.APP.P. 28.2(c)(3), 28.3(e)(2). That same day, the Clerk of the Court notified
the parties that the Court intended to dismiss the appeal because the City had not filed a petition
for permissive appeal as required by Rule 28.3.
The City responded by filing a second amended notice of appeal on December 5, 2018
clarifying that the City was proceeding under Rules 28.2 and 28.3. The City asserted for the first
time that it was also appealing the trial court’s denial of its plea to the jurisdiction as permitted by
Section 51.014(a)(8) of the Civil Practice and Remedies Code. See TEX.CIV.PRAC. & REM.CODE
ANN. §51.014(a)(8). After reviewing the second amended notice of appeal, the Court notified the
parties by letter that if the City intended to proceed under Rule 28.3, it was required to file an
extension motion and petition no later than December 15, 2018. The City timely filed motions
seeking an extension of time to file a petition pursuant to both Rules 28.2 and 28.3. The Court
granted the City’s extension requests and the City timely filed its petition.
We will first address whether we have jurisdiction of this appeal under Section
51.014(a)(8). The trial court denied the City’s plea to the jurisdiction by order signed on March
28, 2018, and the City expressly informed the trial court that it would not appeal that decision, but
would instead proceed to trial on the issue of liability. After the bench trial, but before the court
rendered its decision, the City re-urged its plea to the jurisdiction in a letter to the trial court
regarding the procedural path for a potential appeal of the anticipated ruling on liability. The
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City’s letter requested that if the trial court found that the City was liable that the court deny the
City’s plea to the jurisdiction so that the City could pursue an appeal under Section 51.014(a)(8),
or alternatively, if the court did not believe Section 51.014(a)(8) was applicable, that the court
allow an agreed appeal pursuant to Section 51.014(d). The trial court chose the second path
because it did not explicitly deny the plea to the jurisdiction but it allowed an appeal pursuant to
Section 51.014(d). Even if it could be said that the trial court implicitly denied the City’s renewed
plea to the jurisdiction, the Supreme Court has held that the deadline for an interlocutory appeal
under this statute is not extended by the trial court’s denial of a motion to reconsider the prior
ruling. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (per curiam).
The deadline for filing notice of interlocutory appeal under Section 51.014(a)(8) must be strictly
construed because it is a narrow exception to the general rule that only final judgments are
appealable. Id., 388 S.W.3d at 665. The City’s notice of interlocutory appeal under Section
51.014(a)(8) was due to be filed within twenty days after the trial court denied the plea to the
jurisdiction on March 28, 2018. The City’s notice of appeal filed on November 30, 2018 is
untimely and it does not perfect an appeal from the March 28, 2018 order denying the City’s plea
to the jurisdiction.
The City alternatively relies on both Rules 28.2 and 28.3. The comment to Rule 28.3 states
that: “New Rule 28.3 applies only to appeals in cases that were filed in the trial court on or after
September 1, 2011. Rule 28.2 applies only to appeals in cases that were filed in the trial court
before September 1, 2011.” TEX.R.APP.P. 28.3, comment to 2011 amendment. The City’s petition
states that the suit was originally filed on June 6, 2007. Consequently, Rule 28.3 is inapplicable.
The City’s petition for permissive appeal pursuant to Rule 28.3 is therefore denied.
The Court finds, however, that the City timely filed its notice of appeal from the November
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30, 2018 interlocutory judgment pursuant to Rule 28.2(a). See TEX.R.APP.P. 28.2(a)(notice of
appeal must be filed no later than the 20th day after the trial court signs a written order granting
permission to appeal). Further, the City’s notice and amended notices of appeal and its petition
satisfy the requirements of Rule 28.2(c). See TEX.R.APP.P. 28.2(c). The Court grants the City’s
petition for an agreed interlocutory appeal pursuant to Rule 28.2. The Clerk’s Office is directed
to file the reporter’s record previously received on December 6, 2018. The clerk’s record is due
to be filed on January 6, 2019. Appellant’s brief on the merits will be due twenty days after the
clerk’s record is filed.
IT IS SO ORDERED this 27th day of December, 2018.
PER CURIAM
Before McClure, C.J., Rodriguez and Palafox, JJ.
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