Opinion
NO. 14-17-00371-CV
02-13-2018
CITY OF ROSENBERG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Fort Bend County, Texas
Trial Court Cause No. 15-CCV-055144
MEMORANDUM OPINION
This is an attempted appeal from the trial court's order of April 25, 2017, denying appellant City of Rosenberg's Second Plea to the Jurisdiction in this condemnation action filed by the State of Texas, by and through the Texas Transportation Commission. We dismiss the appeal for want of jurisdiction.
The City filed its first plea to the jurisdiction in this case in August 2015. In its first plea, it asked the trial court to dismiss the case on the ground, among others, that the trial court lacked jurisdiction because the State failed to make a pre-suit bona fide offer to acquire the property voluntarily as required by Texas Property Code sections 21.0113 and 21.012. See TEX. PROP. CODE ANN. §§ 21.0113, 21.0112 (West 2014). The trial court denied the City's first plea to the jurisdiction on September 1, 2015, and the City filed an interlocutory appeal pursuant to Texas Civil Practice and Remedies Code section 51.014(a)(8). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2017). We granted the State's motion to dismiss the appeal for want of jurisdiction, explaining that "[b]ecause the City's plea to the jurisdiction did not raise an issue that can be jurisdictional, we do not have jurisdiction under section 51.014 of the Civil Practice and Remedies Code to review the City's interlocutory appeal." City of Rosenberg v. State, 477 S.W.3d 878, 880 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).
On remand, the City filed a second plea to the jurisdiction in which it again sought dismissal on the ground that the trial court lacks jurisdiction because the State failed to make a pre-suit bona fide offer to acquire the property voluntarily as required by Texas Property Code sections 21.0113 and 21.012. This portion of the City's second plea to the jurisdiction repeats verbatim the same argument made in its first plea to the jurisdiction. After the State responded to the City's second plea, the City filed a reply in which it cited additional authority in support of its argument. See TEX. GOV'T CODE ANN. § 311.034 (West 2013); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012).
Because the City's second plea to the jurisdiction merely raises a new argument in support of the same ground asserted in its first plea, the second plea is, in effect, a motion for reconsideration. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (per curiam). In both pleas, the City coupled the factual assertion that the City failed to make a pre-suit bona fide offer with the legal argument that a bona fide offer is a jurisdictional prerequisite to suit. Although the City later cited additional authority in support of its position in the second plea, the ground asserted in both pleas is the same. See id. at 667 (where the City of Houston argued in its first plea to the jurisdiction that its immunity from suit was not waived by Texas Local Government Code section 271.152, its amended plea asserting "a new reason for saying that section 271.152 did not waive its immunity" constituted a motion for reconsideration rather than a new jurisdictional plea). The addition of new arguments and authorities does not transform a document that is substantively a motion for reconsideration into a distinct jurisdictional plea raising a ground different from those previously asserted. See, e.g., County of El Paso v. Napoles, No. 08-12-00005-CV, 2012 WL 400343, *1 (Tex. App.—El Paso Feb. 8, 2012, no pet.) (mem. op.) (order denying second plea to the jurisdiction was not appealable where first and second pleas challenged the same three elements of a whistleblower claim, and second plea merely cited additional authority and evidence that were available during the first plea); Denton County v. Huther, 43 S.W.3d 665, 667 (Tex. App.—Fort Worth 2001, no pet.) ("The mere fact that the motion cites additional authority in support of Appellants' plea to the jurisdiction that was not included in the plea to the jurisdiction when it was first presented to the trial court, did not transform the motion into a second, separate and distinct plea . . . .").
We conclude that we lack jurisdiction over the City's attempted appeal from the trial court's subsequent interlocutory order effectively declining to reconsider the original order that was the subject of the City's first appeal. See CTL/Thompson Tex., LLC v. Morrison Homes, 337 S.W.3d 437, 443 (Tex. App.—Fort Worth 2011, pet. denied). Having given the parties ten days' notice of our intent to involuntarily dismiss this appeal, and having received no response showing grounds for maintaining it, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Brown, and Wise.