                                                                                            ACCEPTED
                                                                                        03-17-00696-CV
                                                                                              21621145
                                                                              THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                       1/4/2018 5:29 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                             No. 03-17-00696-CV
                                                                   FILED IN
                     IN THE COURT OF APPEALS     3rd COURT OF APPEALS
                                                     AUSTIN, TEXAS
                 FOR THE THIRD DISTRICT OF TEXAS 1/4/2018 5:29:20 PM
                             AT AUSTIN             JEFFREY D. KYLE
                                                                    Clerk

    CITY OF NEW BRAUNFELS, TEXAS, and Y.C. PARTNERS, LTD.
                   d/b/a YANTIS COMPANY,

                                                     Appellants,

                                    vs.

                        CAROWEST LAND, LTD.,

                                                       Appellee.


     On Appeal from the 22nd Judicial District of Comal County, Texas
 Cause No. C2017-0474A, Hon. Margaret G. Mirabal, Sitting by Appointment


    CAROWEST LAND, LTD’S MOTION TO DISMISS APPEAL OF
    APPELLANT YC PARTNERS, LTD. D/B/A YANTIS COMPANY


Jason Davis                               Thomas R. Phillips
State Bar No. 00793592                    State Bar No. 00000022
Caroline Newman Small                     Maddy R. Dwertman
State Bar No. 24056037                    State Bar No. 24092371
DAVIS & SANTOS, P.C.                      BAKER BOTTS L.L.P.
719 S. Flores St.                         98 San Jacinto Blvd., Suite 1500
San Antonio, Texas 78204                  Austin, Texas 78701
(210) 853-5882                            (512) 322-2500
(210) 200-8395 (Facsimile)                (512) 322-2501 (Facsimile)
jdavis@dslawpc.com                        tom.phillips@bakerbotts.com
csmall@dslawpc.com                        maddy.dwertman@bakerbotts.com

            ATTORNEYS FOR APPELLEE CAROWEST LAND, LTD.

                                     1
             Appellee Carowest Land, Ltd. (“Carowest”) hereby moves to dismiss

the appeal of Appellant YC Partners, Ltd. d/b/a Yantis Company (“Yantis”) for

want of jurisdiction.      In support of this motion, Carowest would show the

following:

      I.     Yantis has no right to an interlocutory appeal of the order
             denying its plea to the jurisdiction because it is not a
             governmental unit.

             The Texas Civil Practice and Remedies Code permits interlocutory

appeals only in certain specified circumstances, including the appeal of an order

that “grants or denies a plea to the jurisdiction by a governmental unit as that term

is defined in Section 101.001.”1 TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).


1
      Section 101.001 defines “governmental unit” as:

             (A) this state and all the several agencies of government that collectively
             constitute the government of this state, including other agencies bearing different
             designations, and all departments, bureaus, boards, commissions, offices,
             agencies, councils, and courts;

             (B) a political subdivision of this state, including any city, county, school district,
             junior college district, levee improvement district, drainage district, irrigation
             district, water improvement district, water control and improvement district, water
             control and preservation district, freshwater supply district, navigation district,
             conservation and reclamation district, soil conservation district, communication
             district, public health district, and river authority;

             (C) an emergency service organization; and

             (D) any other institution, agency, or organ of government the status and authority
             of which are derived from the Constitution of Texas or from laws passed by the
             legislature under the constitution.

TEX. CIV. PRAC. & REM. CODE § 101.001(3).


                                               2
Because the statute authorizing interlocutory appeals is a narrow exception to the

general rule that only final judgments and orders are appealable, Texas courts will

“strictly construe” this provision “as ‘a narrow exception to the general rule that

only final judgments are appealable.’” Tex. A & M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 841 (Tex. 2007) (quoting Bally Total Fitness Corp. v. Jackson, 53

S.W.3d 352, 355 (Tex. 2001)). Pursuant to its plain terms, the statute authorizes

only the appeal of an order that grants or denies a plea to the jurisdiction by a

governmental unit. Because Yantis is indisputably not a governmental unit, either

within the meaning of Section 101.001 or as commonly understood—and does not

purport to be one—its attempt to appeal the district court’s denial of its own plea to

the jurisdiction is improper. Yantis’s appeal should therefore be dismissed for

want of jurisdiction.

             Yantis suggests that its joinder in this interlocutory appeal is proper

“because Yantis is a party whose interests are aligned with co-defendant, the City

of New Braunfels.” Yantis Br. at 1 (citing TEX. R. APP. P. 25.1(c)). Although

Texas Rule of Civil Procedure 25.1(c) permits “[p]arties whose interests are

aligned” to “file a joint notice of appeal,” it does not follow that any party can

pursue an interlocutory appeal, either by itself or as a tag-along, absent statutory

authorization to do so. Chapter 51 of the Texas Civil Practice and Remedies Code

authorizes the interlocutory appeal of a denial of a governmental unit’s plea to the



                                          3
jurisdiction, not the denial of any “plea to the jurisdiction based on governmental

immunity,” as Yantis asserts. Yantis Br. at 1. Yantis cites no authority showing

that its appeal should be permitted, and Carowest has found none. But even if

Yantis’s reading of Rule 25.1(c) were correct, “when a rule of procedure conflicts

with a statute, the statute prevails.” Univ. of Tex. Health Sci. Ctr. at Houston v.

Rios, 61 Tex. S. Ct. J. 174, 180 (Tex. Dec. 15, 2017) (quoting Johnstone v. State,

22 S.W.3d 408, 409 (Tex. 2000)).

       II.    Texas courts have held that Section 51.014(a)(8) does not
              authorize the interlocutory appeal of an order granting or
              denying a plea to the jurisdiction by a non-governmental co-
              defendant of a governmental unit.

              Texas courts have consistently declined to extend the statutory right of

interlocutory appeal to orders granting or denying a plea to the jurisdiction by a co-

defendant of a governmental unit that is not itself a governmental unit.2 See, e.g.,

City of Donna v. Ramirez, No. 13-16-00619-CV, 2017 WL 5184533, at *7 (Tex.

App.—Corpus Christi Nov. 9, 2017, no pet. h.) (holding that Section 51.014(a)(8)

does not authorize government employees sued in their individual capacities to

bring interlocutory appeal); AECOM USA, Inc. v. Mata, No. 04-15-00773-CV,

2016 WL 5112222, at *2–4 (Tex. App.—San Antonio Sept. 21, 2016, pet. filed)

(mem. op.) (holding that independent contractor of TxDOT was not a
2
        Although courts have held that a state official sued in his official capacity may seek
interlocutory appellate review from the denial of a jurisdictional plea, such holding has no
application to a private entity like Yantis.


                                              4
governmental unit entitled to bring an interlocutory appeal under Section

51.014(a)(8)); cf. Adams v. Harris Cnty., No. 04-15-00287-CV, 2015 WL

8392426, at *4 (Tex. App.—San Antonio Dec. 9, 2015, pet. denied) (mem. op.)

(dismissing interlocutory appeal from order granting plea to the jurisdiction filed

by government official sued in his individual capacity); Doty v. Beaumont Indep.

Sch. Dist., No. 09-10-00306-CV, 2010 WL 4514139, at *1 (Tex. App.—Beaumont

Nov. 10, 2010, no pet.) (mem. op.) (dismissing interlocutory appeals from trial

court’s orders granting pleas to the jurisdiction filed by non-governmental co-

defendants of governmental unit); Sanders v. City of Grapevine, 218 S.W.3d 772,

776 (Tex. App.—Fort Worth 2007, pet. denied) (holding that order dismissing

claims against city officials in their individual capacities was not an appealable

interlocutory order under Section 51.014(a)(8)).        As the Fourteenth Court of

appeals explained in dismissing the appeal of private developers who attempted to

join in the interlocutory appeal of an order denying Harris County’s plea to the

jurisdiction:


                We find no authority which allows a party to bootstrap an
                unappealable interlocutory order to a governmental
                entity’s statutory interlocutory appeal of a denial of a
                plea to the jurisdiction. To accept the Developers’
                arguments would require a holding which grants the right
                of interlocutory appeal to any co-defendant of a
                governmental unit filing a plea to the jurisdiction.
                Strictly construing the interlocutory appeal statute, we
                cannot say that it permits such an overly broad


                                           5
               interpretation. Accordingly, we overrule the Developers’
               issue on appeal and grant appellees’ motion to dismiss
               the Developers’ appeal as we are without jurisdiction to
               consider it.

City of Houston v. Grudziecke, No. 14-02-00947-CV, 2003 WL 1922671, at *4

(Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); see

generally Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 627 n.24 (Tex.

App.—Fort Worth 2007, pet. denied) (“An interlocutory order that is explicitly

appealable under section 51.014 may not be used as a vehicle for carrying other

nonappealable interlocutory orders to the appellate court.”).3

               The circumstances of this case are analogous to those in Grudziecke.

Yantis, a private entity, is attempting to bootstrap the nonappealable interloctuory

order denying its own plea to the jurisdiction to the City’s statutory interlocutory

appeal of the order denying the City’s plea to the jurisdiction.                   Because no

authority grants Yantis the right of interlocutory appeal, this Court must dismiss

Yantis’s appeal for lack of jurisdiction.           Independent of the Court’s decision

concerning jurisdiction over Carowest’s declaratory judgment claims against the

City, this Court lacks the power to render a decision regarding jurisdiction over


3
        Even if a private party could pursue an interlocutory appeal when its interests were
identical to an appealing governmental unit’s, Yantis would have no right to appeal here. Yantis
openly concedes that its “position differs from that of the City” as it regards the triggering of
Carowest’s alleged obligation to indemnify and hold harmless the City. Yantis Br. at 8. Yantis
on the one hand claims a right to interlocutory appeal on the basis that its interests are aligned
with those of the City, while on the other it seeks judgment on issues where its interests and the
City’s clearly diverge.


                                                6
Carowest’s declaratory judgment claims against Yantis. See N.Y. Underwriters

Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam) (holding that in

the absence of express statutory authorization, the assumption of appellate

jurisdiction over an interlocutory appeal is fundamental error).

                                                  Prayer

              For the foregoing reasons, Carowest respectfully requests that the

Court dismiss Yantis’s appeal of the district court’s order denying Yantis’s plea to

the jurisdiction.4 Carowest further requests that any costs associated solely with

Yantis’s attempted appeal be assessed against Yantis. Carowest further requests

such other and further relief as the Court deems proper under the circumstances.




4
      The mandate need not issue until the conclusion of the appeal.


                                                      7
Respectfully submitted,

BAKER BOTTS L.L.P.
By: /s/ Thomas R. Phillips
   Thomas R. Phillips
   State Bar No. 00000022
   Maddy R. Dwertman
   State Bar No. 24092371
   98 San Jacinto Blvd., Suite 1500
   Austin, Texas 78701
   (512) 322-2500
   (512) 322-2501 (Facsimile)
   tom.phillips@bakerbotts.com
   maddy.dwertman@bakerbotts.com

DAVIS & SANTOS, P.C.
      Jason Davis
      State Bar No. 00793592
      Caroline Newman Small
      State Bar No. 24056037
      719 Flores St.
      San Antonio, Texas 78204
      (210) 853-5882
      (210) 200-8395 (Facsimile)
      jdavis@dslawpc.com
      csmall@dslawpc.com

      ATTORNEYS FOR APPELLEE
      CAROWEST LAND, LTD.




  8
                         CERTIFICATE OF CONFERENCE
             I certify that on January 2, 2018 and January 4, 2018, respectively,
counsel for Appellee conferred with Lamont A. Jefferson, counsel for YC Partners,
Ltd., and G. Alan Waldrop, counsel for the City of New Braunfels, who confirmed
that Appellants are opposed to this motion and the relief requested herein.

                                     /s/ Thomas R. Phillips
                                     Thomas R. Phillips




                                       9
                           CERTIFICATE OF SERVICE
            I certify that on January 4, 2018, a true and correct copy of the
foregoing motion was served via the Court’s Electronic Filing System on the
following counsel of record:

G. Alan Waldrop                      Lawrence Morales, II
Ryan D. V. Greene                    Chuck Shipman
TERRILL & WALDROP                    THE MORALES FIRM, P.C.
810 West 10th Street                 6243 W. IH 10, Suite 132
Austin, Texas 78701                  San Antonio, Texas 78201
awaldrop@terrillwaldrop.com          lawrence@themoralesfirm.com
rgreene@terrillwaldrop.com           cshipman@themoralesfirm.com

Valeria M. Acevedo                   Lamont A. Jefferson
J. Frank Onion, III                  Emma Cano
CITY OF NEW BRAUNFELS, TEXAS         JEFFERSON CANO
CITY ATTORNEY’S OFFICE               112 East Pecan St., Suite 1650
424 S. Castell Ave.                  San Antonio, Texas 78205
New Braunfels, Texas 78130           ljefferson@jeffersoncano.com
vacavedo@nbtexas.org                 ecano@jeffersoncano.com
fonion@nbtexas.org
                                     Attorneys for Appellant
Attorneys for Appellant              YC Partners, Ltd., d/b/a Yantis Company
City of New Braunfels, Texas

                                   /s/ Thomas R. Phillips
                                   Thomas R. Phillips




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