City of Houston v. City of Webster

Dismissed and Memorandum Opinion filed November 14, 2006 Dismissed and Memorandum Opinion filed November 14, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-06-00485-CV ____________ CITY OF HOUSTON, Appellant V. CITY OF WEBSTER, Appellee On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 03-06156 M E M O R A N D U M  O P I N I O N Appellant, City of Houston (AHouston@), filed two motions for summary judgment and a plea to the jurisdiction arguing that appellee, City of Webster (AWebster@), could not maintain its suit. The trial court denied both motions and the plea, and Houston initiated this interlocutory appeal. Webster contended in its first reply issue that we do not have jurisdiction over this interlocutory appeal. We agree with Webster and dismiss. Factual and Procedural Background We have seen this case before. City of Webster v. City of Houston, 14-04-00353-CV, 2005 WL 913813 (Tex. App.CHouston [14th Dist.] April 19, 2005, no pet.) (not designated for publication). Like this appeal, that appeal involved, in part, a plea to the jurisdiction. Webster sued Houston for a declaratory judgment that Houston had breached a contract in which the two cites had apportioned property allegedly lying within both cities= extra-territorial jurisdiction. The trial court granted Houston=s plea to the jurisdiction, and granted Houston partial summary judgment on Webster=s declaratory judgment claim. We reversed in part and remanded, holding that Houston had waived its immunity to suit concerning the breach-of-contract claim, but affirmed the grant of partial summary judgment on the declaratory judgment claim. On remand, Houston asserted various reasons why the contract was not valid or enforceable. As a result, Houston argued the trial court was without jurisdiction to hear the case because to do so would require the trial court to render an advisory opinion. Houston raised these issues fully through two motions for summary judgment, and incorporated those arguments by reference into a plea to the jurisdiction. The trial court denied Houston all relief. Houston then initiated this interlocutory appeal on the basis of the plea to the jurisdiction. We dismiss for want of jurisdiction. Analysis I. Pleas to the Jurisdiction and Standard of Review A plea to the jurisdiction is a dilatory plea, which challenges the trial court=s authority to adjudicate the subject matter of a cause of action. Todaro v. City of Houston, 135 S.W.3d 287, 290 (Tex. App.CHouston [14th Dist.] 2004, no pet.). The purpose of the plea is to defeat the cause of action without regard to the claims= merits. Id. We must decide the plea without delving into the merits of the case. Id. However, if the plea challenges jurisdictional facts, a court should consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues. Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). But, if the evidence creates a fact issue on the jurisdictional question, the trial court cannot grant the plea, and must allow the fact finder to resolve the dispute. Id. at 227B28. When reviewing a plea to the jurisdiction on appeal, we conduct a de novo review. Todaro, 135 S.W.3d at 290. A. Pleas to the Jurisdiction are Not Proper if they Raise Merits Disputes The clear import of the above rules is that the only issues to be resolved in a plea to the jurisdiction are jurisdictional issues. Here, Houston raised merits disputes onlyCdisputes going to the heart of the underlying contract dispute. According to Houston, if it is correct and the contract between the parties is void ab initio, then the trial court will have rendered an advisory opinion. See Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998) (AThe courts of this state are not empowered to give advisory opinions.@). Houston has failed to distinguish the underlying dispute from any other case in which there is a possibility that the asserted claims are not meritorious. Indeed, the entire thrust of Houston=s argument and appeal is simply to argue that the merits of Webster=s case will ultimately prove to be unmeritorious. Perhaps that is true. But, removing a case from litigation on the basis of the merits is properly the focus of a motion for summary judgment, not a plea to the jurisdiction. A plea to the jurisdiction, as discussed above, is to be determined and decided solely on a jurisdictional basis, without regard to the merits. Houston has failed to explain why the trial court does not have subject matter jurisdiction over a contract dispute, and we know of no reason why the trial court would lack jurisdiction over that subject matter. B. Because Houston Filed a Summary Judgment Motion, It May not Take an Interlocutory Appeal Interlocutory appeals are provided for by statute. See Tex. Civ. Prac. & Rem. Code ' 51.014. Houston attempted to give this court jurisdiction over this interlocutory appeal by utilizing section 51.014(a)(8).[1] However, Houston did not file a plea to the jurisdiction. Instead it filed a summary judgment, though styled a plea to the jurisdiction.[2] See Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (holding that, for purposes of section 51.014(a)(5), we determine if a party is entitled to an interlocutory appeal by examining the substance and topic of the pleading upon which the appeal is based, not the form or title of the pleading). The substance and topic of Houston=s pleadings below were merits based and thus represented an attempt at summary judgment. They continue to be merits based in this court. Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statue explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). Because there is no statutory basis for this court to review Houston=s motions for summary judgment that the trial court denied, we dismiss this appeal. Conclusion Having determined that there is no jurisdictional basis for us to consider this interlocutory appeal, we dismiss the appeal for want of jurisdiction. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed November 14, 2006. Panel consists of Justices Anderson, Hudson, and Guzman. [1] Section 51.014(a)(8) permits a person to appeal from an interlocutory order of a district court that Agrants or denies a plea to the jurisdiction by a governmental unit....@ Tex. Civ. Prac. & Rem. Code ' 51.014(a)(6). [2] Interlocutory appeals may be taken from the denial of summary judgment motions in limited circumstances. See Tex. Civ. Prac. & Rem. Code ' 51.014(a)(5), (a)(6). However, neither of those is applicable in this case, and Houston has not pointed to any other relevant basis to grant us jurisdiction.