Reversed and Dismissed, and Memorandum Opinion filed October 18, 2018.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-17-00738-CV

                          ASHLEY ALLEN, Appellant
                                         v.
  GOODWILL INDUSTRIES OF HOUSTON, INC., AND ROBIN DAVIS,
                        Appellees

               On Appeal from the County Civil Ct. at Law No. 3
                            Harris County, Texas
                       Trial Court Cause No. 1090702

                  MEMORANDUM OPINION


      Appellant Ashley Allen filed Title VII discrimination claims against appellee
Goodwill Industries of Houston, Inc., and its district manager, appellee Robin Davis,
in justice court. After the justice court dismissed her case, Allen appealed to the
county court at law. The county court dismissed Allen’s claim against Davis and
granted Goodwill’s motion for traditional and no-evidence summary judgment. In
three issues, Allen challenges the county court’s final judgment and order granting
Goodwill’s traditional and no-evidence motion for summary judgment.                              We
conclude that the county court lacked subject-matter jurisdiction over Allen’s
claims. Therefore, we reverse the county court’s judgment and order Allen’s causes
of action dismissed for want of jurisdiction.

                                        I.   BACKGROUND

         In October 2015, Allen was hired as a “3rd Key” by Goodwill. In February
2016, Allen was promoted to “Store Assistant Manager.” Davis was employed as
the “East District Manager” at Goodwill. On April 4, 2016, Allen “improperly
discounted (underpriced) a desk and chair that had only been on sale for one week
from $199.99 to $149.99 and sold it to a friend or relative.” On April 8, 2016, Allen
was terminated for cause for violating Goodwill’s anti-theft policy.

         In July 2016, Allen filed a small claims petition against Goodwill and Davis
in justice court, alleging “violation of Title VII of the Civil Rights Act of 1964”—
“[d]iscrimination base[d] on race and gender.” Allen sought $10,000 and court
costs.       Goodwill and Davis answered Allen’s suit.                They filed a plea to the
jurisdiction and motion to dismiss for lack of subject-matter jurisdiction. The justice
court granted the plea and motion and, on February 28, 2017, signed an order
dismissing Allen’s action without prejudice to re-filing.

         Allen timely filed her appeal in county court. See Tex. R. Civ. P. 506.1.
Goodwill and Davis each answered. Davis filed a rule 91a motion to dismiss,
asserting that Davis could not be individually liable for a Title VII violation because
she was not an “employer.” On May 15, 2017, the county court signed an order
granting Davis’s motion to dismiss.

         Goodwill filed a traditional and no-evidence motion for summary judgment.1


         1
             To its motion, Goodwill attached: (1) an affidavit by Davis; (2) Allen’s acknowledgement
                                                    2
Goodwill argued: (1) there was no prima facie evidence of discrimination;
(2) Goodwill “conclusively established” a legitimate, nondiscriminatory reason for
terminating Allen; (3) Allen could not proffer any evidence to disprove that
Goodwill’s basis for terminating her was really a pretext to discriminate; and
(4) Goodwill “conclusively negated” pretext.

       Allen filed her “First Amendment to Original Petition,” amending her petition
“to include retaliation.” Allen also filed a response (first response) to Goodwill’s
motion for summary judgment. Goodwill filed a reply, including objections to all
Allen’s proffered evidence attached to the first response because it was not
authenticated and constituted hearsay. In its reply, Goodwill addressed Allen’s
retaliation claim and argued there was no evidence that she engaged in a protected
activity or that “but for” the alleged complaint she would not have been fired.
Goodwill also asserted that Allen failed to specify the type of discrimination of
which she allegedly complained.

       Allen filed two additional summary-judgment responses (second and third
responses). Goodwill filed objections to and a request to strike Allen’s third
response and exhibits because they were untimely and, except for one affidavit, not
authenticated.

       Allen filed an “Amendment to Original Petition to Include Loss [sic] Wages,
Compensatory, and Punitive Damages.” In this (second) amendment of her original
petition, Allen sought recovery of “the monetary amount” of $92,160 on her claims


of receipt of the employee handbook, signed October 16, 2015; (3) section 2.14 of the employee
handbook, entitled “Anti-Theft Policy”; (4) Allen’s acknowledgement of Goodwill’s “Stores
Procedures” signed October 16, 2015; (5) an excerpt from Goodwill’s “Retail Standard Operating
Procedures” Manual, “Backroom Operations” section, section 300, entitled “Rotation,” with “2017
Weekly Color Code Chart”; (6) a sales receipt dated April 4, 2016; (7) a $199.99 furniture sales
tag dated March 29, 2016, and a “SOLD” tag; and (8) details from Goodwill’s employee system
concerning Allen’s employment history and termination.

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against Goodwill and Davis.

       On July 10, 2017, the county court granted Goodwill’s traditional and no-
evidence motion for summary judgment and signed its final judgment and order
granting Goodwill’s traditional and no-evidence motion for summary judgment.
Within this order, the county court also ordered that the dismissal of Davis was
“made final.” Allen timely appealed.

                        II.    SUBJECT-MATTER JURISDICTION

       As a threshold matter, we consider whether the county court had subject-
matter jurisdiction over Allen’s claims.             Subject-matter jurisdiction is a legal
question that we review de novo. See Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). Subject-matter jurisdiction cannot be waived and may
be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993).

       Goodwill and Davis first argue that the amount in controversy of Allen’s
claims exceeded the justice court’s and therefore the county court’s jurisdictional
limits. We agree.2

A. Color Tile, Inc. v. Ramsey

       Color Tile, Inc. v. Ramsey, 905 S.W.2d 620 (Tex. App.—Houston [14th Dist.]
1995, no writ), governs our analysis. In Color Tile, plaintiff tile installer Color Tile
filed an original petition in justice court seeking about $2,000 for the balance owed
by defendant homeowner Ramsey for tile installation work. Id. at 621. Ramsey


       2
          Because this argument is dispositive, we need not reach Goodwill’s and Davis’s other
jurisdictional argument concerning Allen’s inability to amend her petition to add retaliation claims
in the county court. See Tex. R. App. P. 47.1.

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counterclaimed for breach of warranty and misrepresentation. Id. Color Tile
obtained a judgment for $1,179.50 in justice court. Id.

      Ramsey appealed to county court and amended his counterclaim to assert
breach of contract, DTPA violations, fraud, and breach of warranty. Id. Ramsey,
restyled the plaintiff in county court, pleaded damages of $5,000 for the contract
breach, or alternatively for DTPA damages including triple damages, or alternatively
for fraud damages. Id. at 621–22. The jury awarded Ramsey $7,756.94 in damages
for breach of warranty. Id. at 622. Because the jury found that Color Tile breached
the warranty knowingly, the jury found that Ramsey was entitled to $1,000 in
additional damages. Id. They jury also awarded Ramsey $20,000 in attorney’s fees,
plus attorney’s fees for appeals. Id. The jury awarded Color Tile no damages on its
contract action. Id.

      On appeal, Color Tile argued that the county court lacked subject-matter
jurisdiction over Ramsey’s claims because the amount in controversy exceeded the
jurisdictional limits of the justice court where the suit was originally filed, which at
the time was $2,500. Id. (“As creatures of statute, justice courts are governed by a
legislative grant of jurisdiction.”); Act of May 27, 1987, 70th Leg., R.S., ch. 745,
§ 2, 1987 Tex. Gen. Laws 2672, 2672 (amended 1991, 2007, 2009, 2017) (current
version at Tex. Gov’t Code § 27.031).

      We explained that an appeal from a justice court judgment is tried de novo in
the county court. Color Tile, 905 S.W.2d at 622; see Tex. R. Civ. P. 506.3.
“However, the appellate jurisdiction of the county court is confined to the
jurisdictional limits of the justice court, and the county court has no jurisdiction over
the appeal unless the justice court had jurisdiction.” Color Tile, 905 S.W.2d at 622
(citing Goggins v. Leo, 849 S.W.2d 373, 375 (Tex. App.—Houston [14th Dist.]
1993, no writ)). “[A] trial court has no jurisdiction to hear a claim brought by either

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a plaintiff or a defendant that is not within its subject matter jurisdiction.” Id. at 623.
“If a trial court lacks subject matter jurisdiction, the appellate court must reverse the
judgment of the trial court, and dismiss the cause of action entirely.” Id. at 622
(citing City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985)).

      “The invocation of jurisdiction occurs not as a result of the intent of the
parties, but because of what is contained on the face of the pleadings.” Id. at 623.
Ramsey’s request for $5,000 in damages “showed on its face that it was not within
the subject matter jurisdiction of the justice court.” Id. We therefore concluded that
Ramsey “pleaded himself out of court” when he amended his counterclaim on appeal
in the county court and demanded relief clearly in excess of the jurisdictional limits
of the justice court. Id. Accordingly, we reversed the judgment in favor of Ramsey
and ordered his causes of action dismissed. Id. at 623, 624.

B. Applying Color Tile

      Here, the jurisdictional limit of the justice court at the time Allen filed her suit
was $10,000. See Tex. Gov’t Code Ann. § 27.031(a)(1) (West Supp. 2017) (“[T]he
justice court has original jurisdiction of: . . . civil matters in which exclusive
jurisdiction is not in the district or county court and in which the amount in
controversy is not more than $10,000, exclusive of interest.”). The record reflects
that the amount in controversy in Allen’s original petition filed in justice court was
$10,000.

      However, like Ramsey in Color Tile, Allen subsequently amended her
original petition on appeal in the county court. See 905 S.W.2d at 621–22. In her
(second) amendment to original petition to include lost wages, compensatory, and
punitive damages, Allen requested “monetary recovery” on her claims against
Goodwill and Davis “in the amount of $92,160.” “[A]n amended petition supersedes
and completely replaces all previous pleadings, rendering the previous pleadings
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ineffective.” Wren v. Tex. Emp’t Comm’n, 915 S.W.2d 506, 508 (Tex. App.—
Houston [14th Dist.] 1995, no writ); see Fawcett v. Grosu, 498 S.W.3d 650, 659
(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing Tex. R. Civ. P. 65).
Allen’s (second) amendment was her operative pleading at the time the summary-
judgment motion was submitted to the county court.3 The amount in controversy is
ordinarily determined by looking solely at the allegations in the petition. See Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000). Like Ramsey’s
amended counterclaim in Color Tile, Allen’s (second) amended petition, by
requesting $92,160 in damages, “showed on its face that it was not within the subject
matter jurisdiction of the justice court.”4 See 905 S.W.2d at 623.

       We therefore conclude that Allen “pleaded herself out of court” when she
amended her claims to demand relief clearly in excess of the jurisdictional limits of
the justice court. See id.; see also Adedipe v. Guardian Transfer & Storage, Inc.,
No. 14-10-00752-CV, 2011 WL 61862, at *1 (Tex. App.—Houston [14th Dist.] Jan.
6, 2011, no pet.) (mem. op.) (per curiam) (“When appellant amended his suit and
alleged damages in excess of the jurisdictional limit prescribed for the justice court,
he removed the case from the jurisdiction of the county court at law. . . . The county
court at law lacked subject matter jurisdiction because the justice court did not have
jurisdiction over the allegations in appellant’s amended petition in which he claimed
$25,000 in damages.”).


       3
       Allen filed her (second) amendment to her original petition on June 28, 2017. In its final
judgment and order granting summary judgment, the county court stated that Goodwill’s
summary-judgment motion was submitted on July 7, 2017.
       4
          Goodwill and Davis point out that even if the “formula” for damages as alleged in Allen’s
(second) amendment (amount of lost salary from the time of her termination, multiplied by three
“for compensatory and punitive damages”) were calculated as of at the time she filed her original
petition on July 20, 2016, the amount in controversy still would be more than double the
jurisdictional limits of justice court: 14 weeks of pay at $480/week * 3 = $20,160.

                                                7
       Allen does not address this court’s controlling authority. Rather, she asserts
her understanding that the term “trial de novo” means “new trial.” According to
Allen, because she had a “new case” in the county court, “the matter of jurisdiction
now is bound by” the county court “laws and rules,” which provide for jurisdiction
over higher amounts in controversy.5 As noted above, however, the appellate
jurisdiction of a county court at law is limited to the jurisdiction of the justice court.
See Adedipe, 2011 WL 61862, at *1; Color Tile, 905 S.W.2d at 622. “Therefore, it
is irrelevant that the county court at law has original jurisdiction over cases involving
a greater amount in controversy.” Garza v. Chavarria, 155 S.W.3d 252, 258 (Tex.
App.—El Paso 2004, no pet.). We overrule this argument.

       Allen next takes issue with allegedly conflicting arguments made by Goodwill
and Davis. According to Allen, in the justice court Goodwill and Davis “argued that
[the] case should be dismissed because A[llen] was not asking for enough money”
and now on appeal they “claim that County/District Court did not have subject
matter jurisdiction because A[llen] was asking for too much money.” Texas courts
hold that “a party cannot vest the trial court with subject-matter jurisdiction over the
claims in a lawsuit,” nor can it waive subject-matter jurisdiction. Tex. Ass’n of Bus.,
852 S.W.2d at 445; Sorrow v. Harris Cty., No. 14-15-00571-CV, 2016 WL 4445037,
at *3 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, pet. denied) (mem. op.).
Allen has not cited, nor have we located, any authority to the contrary. We also
overrule this argument.



       5
         See Tex. Gov’t Code Ann. § 25.0003(c)(1) (West Supp. 2017) (“[A] statutory county
court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court
has concurrent jurisdiction with the district court in: (1) civil cases in which the matter in
controversy exceeds $500 but does not exceed $200,000, excluding interest, statutory or punitive
damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition.”).


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                             III.     CONCLUSION

      Accordingly, we reverse the county court’s judgment, and we order Allen’s
causes of action dismissed for want of jurisdiction. See Garcia, 155 S.W.3d at 258;
Color Tile, 905 S.W.2d at 622, 624.



                                       /s/       Marc W. Brown
                                                 Justice


Panel consists of Justices Busby, Brown, and Jewell.




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