Dismissed and Memorandum Opinion filed November =
15,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00313-CV
____________
GALVESTON=20
INDEPENDENT SCHOOL DISTRICT, =
Appellant
V.
BRENT=20
JACO,=20
Appellee
On Appeal from the =
56th District Court
Galveston County, =
Texas
Trial Court Cause =
No. 06CV1011
M E M O R=20
A N D U M O P I N I O N
Appellant, Galveston=20
Independent School District (the ADistrict@), brings this =
interlocutory=20
appeal contesting the trial court=3Ds denial of its =
motion for=20
summary judgment. We dismiss the appeal for lack of =
jurisdiction.=20
BACKGROUND
The District hired =
Jaco in 1998=20
as a teacher and head athletic trainer. Jaco was =
subsequently=20
promoted, pursuant to a term contract, to the position of Director =
of=20
Athletics and Extracurricular Activities for the 2005-06 school=20
year. During the 2005-06 school year, Jaco learned that a =
student=20
playing high school football was ineligible to participate in =
sports due=20
to a University Interscholastic League (AU.I.L.@) residency =
requirement. =20
Jaco discussed the possible U.I.L. violation with school =
officials,=20
including the District=3Ds =
superintendent. On=20
November 9, 2005, Jaco, with the approval of the District, =
submitted a=20
written report regarding the residency violation to the =
U.I.L. =20
On December 16, 2005, =
the=20
District reassigned Jaco to the position of athletic trainer. On=20
January 6, 2006, Jaco appealed the transfer through the=20
District=3Ds administrative =
grievance=20
process. After a hearing, the District reinstated =
Jaco=3Ds job position as =
Director of=20
Extracurricular Activities, but not Director of Athletics. =20
Thereafter, the District did not offer Jaco his previous position =
of=20
Director of Athletics or Director of Extracurricular Activities =
for the=20
2006-07 school year. Instead, on May 1, 2006, the District =
offered=20
Jaco a term contract as a teacher for the 2006-07 school =
year. =20
On April 4, 2006, =
Jaco filed=20
suit against the District, alleging violations under the Texas=20
Whistleblower=3Ds Act. The =
District filed=20
a no-evidence and traditional summary judgment motion. When =
the=20
trial court denied the motion, the District filed an interlocutory =
appeal=20
involving appellate jurisdiction under section 51.014(a)(8) of the =
Texas=20
Civil Practice and Remedies Code.
JURISDICTION OF =
INTERLOCUTORY=20
APPEALS
Generally, a Texas =
appellate=20
court has jurisdiction to hear only an appeal from a final =
judgment. =20
Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 =
(Tex.=20
1992). Because denial of a motion for summary judgment is =
not a=20
final judgment, it is therefore generally not appealable. =20
Cincinnati Life Ins. Co v. Cates, 927 S.W.2d 623, 625 (Tex. =
1996); Frias v. Atlantic Richfield Co., 999 S.W.2d 97, 101 =
(Tex.=20
App.CHouston [14th Dist.] =
1999, pet.=20
denied). However, appellate courts have jurisdiction =
to=20
consider immediate appeals of interlocutory orders if a statute =
explicitly=20
provides appellate jurisdiction. Qwest Communications Corp. v. =
AT&T=20
Corp., 24 S.W.3d 334, 336 (Tex. 2000); Young v. =
Villegas, 231=20
S.W.3d 1, 5 (Tex. App.CHouston [14th Dist.] =
2007, no=20
pet. h.); Baylor College of Medicine v. Tate, 77 S.W.3d =
467, 469=20
(Tex. App.CHouston [1st Dist.] =
2002, no=20
pet.); see also Tex. Civ.=20
Prac. & Rem. Code Ann. ' 51.0149(a)(8) =
(Vernon 2002)=20
(statutory list of appealable interlocutory orders). We =
construe an=20
interlocutory appeal statute strictly because it Ais a narrow exception =
to the=20
general rule that only final judgments and orders are=20
appealable.@ Bally Total =
Fitness Corp.=20
v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Mills v. =
Corvette of=20
Houston, Inc., 44 S.W.3d 197, 199 (Tex. App.CHouston [14th Dist.] =
2001, no=20
pet.); America Online, Inc. v. Williams, 958 S.W.2d 268, =
271 (Tex.=20
App.CHouston [14th Dist.] =
1997, no=20
pet.).
Section=20
51.014(a)(8)
The District argues =
that we=20
have jurisdiction over this appeal pursuant to section =
51.014(a)(8) of the=20
Texas Civil Practice and Remedies Code, which provides that a =
person may=20
appeal from an interlocutory order that Agrants or denies a =
plea to the=20
jurisdiction by a governmental unit as that term is defined in =
Section=20
101.001.@ Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' 51.014(a)(8). =
School=20
districts are Agovernmental =
units@ under section =
101.001. =20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. ' 101.001(3)(B) =
(Vernon 2005).=20
As a prerequisite in =
deciding=20
whether this Court has jurisdiction to address this interlocutory =
appeal,=20
we must first determine whether the District=3Ds motion for summary =
judgment=20
can be construed as a plea to the jurisdiction. Tate, =
77=20
S.W.3d at 471. We recognize that the nature of a pleading is =
determined by its substance, not by its format or caption. =
Tex. R. Civ. P. 71; =
Surgitek,=20
Briston-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. =
1999);=20
Toubaniaris v. Am. Bureau of Shipping, 916 S.W.2d 21, 23 (Tex. =
App.CHouston [1st Dist.] =
1995, no=20
writ). Its substance is determined by what effect a grant of =
the=20
plea will have on the proceeding. Tate, 77 S.W.3d at =
471;=20
Robert H., Smith, Inc. v. Tennessee Tile, Inc., 719 S.W.2d =
385, 387=20
(Tex. App.CHouston [1st Dist.] =
1986, no=20
writ (citing Austin Neighborhoods Council, Inc. v. Bd. of =
Adjustment of=20
City of Austin, 644 S.W.2d 560, 565 (Tex. App.CAustin 1982, writ=20
ref=3Dd n.r.e.)). =
Therefore, it=20
is necessary to determine the nature of the relief sought and the =
basis=20
thereof in the District=3Ds summary judgment=20
motion.
In its motion for =
summary=20
judgment, the District asserts that it is entitled to summary =
judgment on=20
two bases: (1) Jaco=3Ds Afailure to exhaust =
initial=20
grievance procedures is fatal to his Whistleblower=3Ds claim@; and (2) =
Jaco=3Ds Aclaim fails as a =
matter of=20
law.@ In arguing=20
Jaco=3Ds failure to initiate =
the=20
District=3Ds grievance =
procedures, the=20
District states that A[a]lthough the =
>failure to comply =
with the=20
various deadlines of the Whistleblower Act is not a=20
jurisdictional defect,=3D the failure to =
comply warrants=20
dismissal if raised by a motion for summary judgment.@ This statement =
makes it=20
clear that the District did not seek relief based on the trial=20
court=3Ds lack of subject =
matter=20
jurisdiction. The District=3Ds second argument =
attacks the=20
merits of Jaco=3Ds claim. The =
District=20
also sets forth the proper motion for summary judgment standard of =
review,=20
requesting relief under no-evidence and traditional summary =
judgment=20
standards. See Tate, 77 S.W.3d at 472. Most=20
importantly, in its motion for summary judgment, the District =
never=20
asserts sovereign immunity and never challenges the trial=20
court=3Ds jurisdiction. =
Id. =20
Under section =
51.014(a)(8), an=20
interlocutory appeal is available only to challenge the granting =
or denial=20
of a plea to the jurisdiction by a governmental unit. A =
defendant=20
files such pleading to urge that the trial court lacks subject =
matter=20
jurisdiction. However, the substance of the =
District=3Ds motion for summary =
judgment=20
did not challenge the trial court=3Ds jurisdiction to =
hear=20
Jaco=3Ds claim. =
Instead, the=20
District raised issues on the merits of Jaco=3Ds claim and argued=20
Jaco=3Ds failure to initiate =
grievance=20
procedures was not jurisdictional, but rather constituted a basis =
for=20
relief in a summary judgment setting.
CONCLUSION
After reviewing the=20
District=3Ds motion for summary =
judgment,=20
we conclude that the motion was based on the merits of =
Jaco=3Ds claim and did not =
raise the=20
issue of trial court subject matter jurisdiction. =
Accordingly, we do=20
not have jurisdiction under section 51.014(a)(8) to review by=20
interlocutory appeal the District=3Ds assertions of =
sovereign=20
immunity.
We dismiss the appeal =
for lack=20
of jurisdiction.
/s/ =20
Adele Hedges
=20
Chief Justice
Judgment rendered =
and=20
Memorandum Opinion filed November 15, 2007.
Panel consists of =
Chief=20
Justice Hedges and Justices Anderson and Seymore.
Do Not Publish =
C Tex. R. App. P.=20
47.2(b).
There is a dispute between the =
parties as=20
to whether this employment action constitutes a =
demotion.
Tate addressed the issue =
regarding=20
jurisdiction over 51.014(a)(8) appeals where the governmental =
entity files=20
a motion for summary judgment and not a plea to the =
jurisdiction. In=20
Tate, the plaintiff filed a Texas Tort Claims Act =
(ATTCA@) lawsuit against Baylor, a governmental =
entity,=20
for a personal injury that arouse out of alleged medical=20
malpractice. Baylor brought an accelerated appeal contesting =
the=20
trial court=3Ds denial of its summary judgment=20
motion. Before reaching the merits of =
Baylor=3Ds appeal, the Court was required to =
determine=20
whether it had jurisdiction to review the appeal. Id. =
at=20
472. In making this determination, the Court had to decide =
whether=20
Baylor=3Ds summary judgment motion could be =
construed as a=20
plea to the jurisdiction pursuant to section 51.014(a)(8). =20
Baylor=3Ds motions for summary judgment alleged =
that it was=20
entitled to summary judgment because it was immune from =
liability. =20
Immunity from liability is a summary judgment issue, whereas =
immunity from=20
suit is a jurisdictional issue to be raised in a plea to the=20
jurisdiction. See id. at 472-73. In its =
reply to=20
Tate=3Ds summary judgment response, Baylor =
argued that it=20
was entitled to summary judgment because Tate failed to give =
notice as=20
required under TTCA, a statutory prerequisite. Baylor did =
not allege=20
that it was immune from suit and did not challenge the trial=20
court=3Ds jurisdiction to hear the case. =20
Id. After reviewing Baylor=3Ds answer and the content of the numerous =
motions=20
for summary judgment, the Court concluded that Baylor was =
asserting a=20
motion for summary judgment based on immunity from liability and =
not=20
a plea to the jurisdiction based on immunity from suit. =20
Id. Therefore, because Baylor=3Ds summary judgment motion could not be =
construed=20
as a plea to the jurisdiction, the appeal was dismissed for lack =
of=20
jurisdiction. =
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