Galveston Independent School District v. Brent Jaco--Appeal from 56th District Court of Galveston County

Dismissed and Memorandum Opinion filed November 15, 2007

Dismissed and Memorandum Opinion filed November 15, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00313-CV

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GALVESTON INDEPENDENT SCHOOL DISTRICT, Appellant

V.

BRENT JACO, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 06CV1011

M E M O R A N D U M O P I N I O N

Appellant, Galveston Independent School District (the ADistrict@), brings this interlocutory appeal contesting the trial court=s denial of its motion for summary judgment. We dismiss the appeal for lack of jurisdiction.

BACKGROUND

The District hired Jaco in 1998 as a teacher and head athletic trainer. Jaco was subsequently promoted, pursuant to a term contract, to the position of Director of Athletics and Extracurricular Activities for the 2005-06 school year. During the 2005-06 school year, Jaco learned that a student playing high school football was ineligible to participate in sports due to a University Interscholastic League (AU.I.L.@) residency requirement. Jaco discussed the possible U.I.L. violation with school officials, including the District=s superintendent. On November 9, 2005, Jaco, with the approval of the District, submitted a written report regarding the residency violation to the U.I.L.

On December 16, 2005, the District reassigned Jaco to the position of athletic trainer.[1] On January 6, 2006, Jaco appealed the transfer through the District=s administrative grievance process. After a hearing, the District reinstated Jaco=s job position as Director of Extracurricular Activities, but not Director of Athletics. Thereafter, the District did not offer Jaco his previous position of Director of Athletics or Director of Extracurricular Activities for the 2006-07 school year. Instead, on May 1, 2006, the District offered Jaco a term contract as a teacher for the 2006-07 school year.

On April 4, 2006, Jaco filed suit against the District, alleging violations under the Texas Whistleblower=s Act. The District filed a no-evidence and traditional summary judgment motion. When the trial court denied the motion, the District filed an interlocutory appeal involving appellate jurisdiction under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code.

JURISDICTION OF INTERLOCUTORY APPEALS

Generally, a Texas appellate court has jurisdiction to hear only an appeal from a final judgment. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Because denial of a motion for summary judgment is not a final judgment, it is therefore generally not appealable. 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. App.CHouston [14th Dist.] 1999, pet. denied). However, appellate courts have jurisdiction to consider immediate appeals of interlocutory orders if a statute explicitly provides appellate jurisdiction. Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000); Young v. Villegas, 231 S.W.3d 1, 5 (Tex. App.CHouston [14th Dist.] 2007, no pet. h.); Baylor College of Medicine v. Tate, 77 S.W.3d 467, 469 (Tex. App.CHouston [1st Dist.] 2002, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. ' 51.0149(a)(8) (Vernon 2002) (statutory list of appealable interlocutory orders). We construe an interlocutory appeal statute strictly because it Ais a narrow exception to the general rule that only final judgments and orders are appealable.@ Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Mills v. Corvette of Houston, Inc., 44 S.W.3d 197, 199 (Tex. App.CHouston [14th Dist.] 2001, no pet.);America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App.CHouston [14th Dist.] 1997, no pet.).

Section 51.014(a)(8)

The District argues that we have jurisdiction over this appeal pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, which provides that a person may appeal from an interlocutory order that Agrants 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). School districts are Agovernmental units@ under section 101.001. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(3)(B) (Vernon 2005).

As a prerequisite in deciding whether this Court has jurisdiction to address this interlocutory appeal, we must first determine whether the District=s motion for summary judgment can be construed as a plea to the jurisdiction. Tate, 77 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, Briston-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); Toubaniaris v. Am. Bureau of Shipping, 916 S.W.2d 21, 23 (Tex. App.CHouston [1st Dist.] 1995, no writ). Its substance is determined by what effect a grant of the plea will have on the proceeding. Tate, 77 S.W.3d at 471; Robert H., Smith, Inc. v. Tennessee Tile, Inc., 719 S.W.2d 385, 387 (Tex. App.CHouston [1st Dist.] 1986, no writ (citing Austin Neighborhoods Council, Inc. v. Bd. of Adjustment of City of Austin, 644 S.W.2d 560, 565 (Tex. App.CAustin 1982, writ ref=d n.r.e.)). Therefore, it is necessary to determine the nature of the relief sought and the basis thereof in the District=s summary judgment motion.

In its motion for summary judgment, the District asserts that it is entitled to summary judgment on two bases: (1) Jaco=s Afailure to exhaust initial grievance procedures is fatal to his Whistleblower=s claim@; and (2) Jaco=s Aclaim fails as a matter of law.@ In arguing Jaco=s failure to initiate the District=s grievance procedures, the District states that A[a]lthough the >failure to comply with the various deadlines of the Whistleblower Act is not a jurisdictional defect,= the failure to comply warrants dismissal if raised by a motion for summary judgment.@ This statement makes it clear that the District did not seek relief based on the trial court=s lack of subject matter jurisdiction. The District=s second argument attacks the merits of Jaco=s claim. The District also sets forth the proper motion for summary judgment standard of review, requesting relief under no-evidence and traditional summary judgment standards. See Tate, 77 S.W.3d at 472. Most importantly, in its motion for summary judgment, the District never asserts sovereign immunity and never challenges the trial court=s jurisdiction. Id.[2]

Under section 51.014(a)(8), an interlocutory appeal is available only to challenge the granting or denial of a plea to the jurisdiction by a governmental unit. A defendant files such pleading to urge that the trial court lacks subject matter jurisdiction. However, the substance of the District=s motion for summary judgment did not challenge the trial court=s jurisdiction to hear Jaco=s claim. Instead, the District raised issues on the merits of Jaco=s claim and argued Jaco=s failure to initiate grievance procedures was not jurisdictional, but rather constituted a basis for relief in a summary judgment setting.

CONCLUSION

After reviewing the District=s motion for summary judgment, we conclude that the motion was based on the merits of Jaco=s claim and did not raise the issue of trial court subject matter jurisdiction. Accordingly, we do not have jurisdiction under section 51.014(a)(8) to review by interlocutory appeal the District=s assertions of sovereign immunity.

We dismiss the appeal for lack of jurisdiction.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed November 15, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] There is a dispute between the parties as to whether this employment action constitutes a demotion.

[2] Tate addressed the issue regarding jurisdiction over 51.014(a)(8) appeals where the governmental entity files a motion for summary judgment and not a plea to the jurisdiction. In Tate, the plaintiff filed a Texas Tort Claims Act (ATTCA@) lawsuit against Baylor, a governmental entity, for a personal injury that arouse out of alleged medical malpractice. Baylor brought an accelerated appeal contesting the trial court=s denial of its summary judgment motion. Before reaching the merits of Baylor=s appeal, the Court was required to determine whether it had jurisdiction to review the appeal. Id. at 472. In making this determination, the Court had to decide whether Baylor=s summary judgment motion could be construed as a plea to the jurisdiction pursuant to section 51.014(a)(8). Baylor=s motions for summary judgment alleged that it was entitled to summary judgment because it was immune from liability. Immunity from liability is a summary judgment issue, whereas immunity from suit is a jurisdictional issue to be raised in a plea to the jurisdiction. See id.at 472-73. In its reply to Tate=s summary judgment response, Baylor argued that it was entitled to summary judgment because Tate failed to give notice as required under TTCA, a statutory prerequisite. Baylor did not allege that it was immune from suit and did not challenge the trial court=s jurisdiction to hear the case. Id. After reviewing Baylor=s answer and the content of the numerous motions for summary judgment, the Court concluded that Baylor was asserting a motion for summary judgment based on immunity from liability and not a plea to the jurisdiction based on immunity from suit. Id. Therefore, because Baylor=s summary judgment motion could not be construed as a plea to the jurisdiction, the appeal was dismissed for lack of jurisdiction.