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Pulliam v. City of Austin

Court of Appeals of Texas, Third District, Austin

April 14, 2017

Mark Pulliam, Jay Wiley, and The State of Texas, Appellants
v.
City of Austin, Texas; Elaine Hart, in her official capacity as City Manager of the City of Austin;[1] and Austin Firefighters Association, Local 975, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-16-004307, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

          Before Justices Pemberton, Field, and Bourland.

          ORDER

          PER CURIAM.

         Appellants Mark Pulliam and Jay Wiley filed a notice of appeal from an order signed by the trial court on February 7, 2017, granting a motion to dismiss filed by appellee Austin Firefighters Association, Local 975 (AFA) pursuant to the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.003, .005. Appellant the State of Texas separately filed a notice of appeal from the same order, challenging the February 7 order to the extent it also operates as a denial of the State's plea to the jurisdiction. Appellee AFA and appellants Pulliam and Wiley have now filed an agreed motion to abate, asking that we abate Pulliam and Wiley's appeal until a final, appealable order is signed by the trial court. We decline to do so and instead dismiss Pulliam and Wiley's appeal without prejudice to refiling.

         Generally, appellate courts have jurisdiction only over appeals from final judgments and orders. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes of all pending parties and claims. Id. This Court has jurisdiction to review interlocutory orders only when explicitly authorized by statute. See Tex. Civ. Prac. & Rem. Code §§ 51.012, .014. Because they present a narrow exception to the general rule that interlocutory orders are not immediately appealable, statutes permitting interlocutory appeals are strictly applied. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011).

         The Texas Civil Practice and Remedies Code provides for an interlocutory appeal of a denial of a plea to the jurisdiction, such as the appeal brought by the State of Texas in this case. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (providing for interlocutory appeal of order granting or denying plea to jurisdiction by governmental unit). Chapter 27 of the Code also provides for an interlocutory appeal of an order that "denies a motion to dismiss filed under Section 27.003 [of the TCPA]." Id. § 51.014(a)(12). In addition, under section 27.008(b) of the Code, appellate courts must expedite an appeal or other writ from a trial court order on a motion to dismiss under the TCPA or from a trial court's failure to rule on that motion within the time allowed under the TCPA, "whether interlocutory or not." Id. § 27.008(b). No statute, however, expressly provides for an interlocutory appeal of an order granting a motion to dismiss under the TCPA. See Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.-Amarillo 2016, no pet.); Fleming & Assocs. v. Kirklin, 479 S.W.3d 458, 460-61 (Tex. App.-Houston [14th Dist.] 2015, pet. denied); Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 887 (Tex. App.-Houston [1st Dist.] 2015, no pet.); see also Flynn v. Gorman, No. 02-16-00131-CV, 2016 WL 4699198, at * 1 (Tex. App.-Fort Worth Sept. 8, 2016, no pet.) (mem. op.).

         According to the movants, no final judgment has been signed by the trial court, and claims currently remain pending in the underlying case.[2] Because we do not have jurisdiction to consider the merits of the trial court's interlocutory decision to grant the AFA's motion to dismiss pursuant to the TCPA, we dismiss Pulliam and Wiley's appeal without prejudice to refiling once the trial court renders a final, appealable judgment.

         It is ordered.

---------

Notes:

[1] This suit was originally brought against Marc A. Ott, the former City Manager for the City of Austin. We automatically substitute the name of the interim successor to this office, Elaine Hart. See Tex. R. App. P. 7.2.

[2] Under the appellate rules, this Court may abate a case to allow "an order that is not final to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record." Tex.R.App.P. 27.2. Because the trial court proceedings are currently stayed pending resolution of the State of Texas's interlocutory appeal, see Tex. Civ. Prac. & Rem. Code § 51.014(b), and because our resolution of the State's appeal would not, in and of itself, result in a final, appealable judgment, we decline to abate this appeal. We deny the motion to abate. Pulliam and Wiley may file a separate notice of appeal when the trial court signs a final judgment or appealable order in the case and, upon proper motion, may request that the Clerk of the Court transfer any or all of the appellate record filed in this case to the new cause number. See Tex. R. App. P. 26.1 (time to perfect civil appeal calculated from date ...


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