Court of Appeals of Texas,

Eastland.

WILLO PRODUCTS COMPANY, INC. and Willo Products, Inc., Appellants

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee.

No. 11–00–00329–CV.

|

Nov. 30, 2000.

Attorneys & Firms

William Powers and Kathryn F. Green, for Willo Products Company, Inc. and Willo Products, Inc.

Burt Lee Burnett, for Elizabeth Moore.

Meredith Kennedy, for Texas Dept. of Criminal Justice.

Gerald Zwernemann, for Phelps–Tointon, Inc. d/b/a Southern Steel Company.

Hollye C. Fisk, for HDR Architecture, Inc.

Richard Francis Jr., for MKK Technologies, Inc.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

OPINION

PER CURIAM.

*1 The issue before this court is whether the trial court’s order granting the no-evidence motion for summary judgment on the grounds of sovereign immunity is subject to an interlocutory appeal. We hold that it is not and dismiss the appeal for want of jurisdiction.

Procedural Background

Elizabeth Moore, individually and as next friend of Amber Wilson and Austin Pieper, minor children; and Mike Moore (Elizabeth’s husband) have sued Phelps–Tointon, Inc. d/b/a Southern Steel Company; Jessie Cortez; Willo Products Company, Inc.; HDR Architecture, Inc; MKK Technologies, Inc.; and Northstar Construction, Inc. The Moores seek damages for the injuries Elizabeth received when Cortez circumvented the locking mechanism on his prison cell and assaulted Elizabeth. Elizabeth was employed as a correctional officer at the time. Numerous third party actions and cross claims have been filed.¹

TDCJ filed two motions for summary judgment: a traditional motion² alleging that the third party and cross actions were barred under the Texas Workers’ Compensation Act³ and a no-evidence motion⁴ alleging that the actions were barred by the doctrine of sovereign immunity. The trial court granted both motions in an order signed October 9, 2000. Appellees have perfected an appeal from the October 9 order.

Upon receipt of the clerk’s record, this court notified the parties that the October 9 order did not appear to be subject to an interlocutory appeal under TEX. CIV. PRAC. & REM. CODE ANN. § 51. 014 (Vernon Supp.2000) and that the October 9 order did not appear to dispose of all the parties and causes of action in the trial court so as to be a final, appealable order. Appellants have responded by filing a motion to continue the appeal.

Applicable Jurisdictional Statute

Section 51.014 states that certain interlocutory trial court orders are subject to appeal. The applicable portions of Section 51 .014 provide:

(a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; or

(8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001. (Emphasis added)

The granting of a motion for summary judgment on the issue of immunity is not listed as being subject to an interlocutory appeal. Section 51.014(a)(5).

Appellants’ Motion on the Issue of Appealability

Appellants contend that this court has jurisdiction to entertain this appeal because “the trial court’s order on TDCJ’s ‘no evidence’ motion⁵ for summary judgment … falls within the purview of [Section 51.014(a)(8) ], as well as Tex.R.App. P. 28.1⁶ because it is a plea to the court’s jurisdiction on the basis of sovereign immunity.” We disagree.

*2 As TDCJ points out in its response, a no-evidence motion for summary judgment filed pursuant to TEX.R.CIV.P. 166a(i) is not the same as a plea to the jurisdiction filed pursuant to TEX.R.CIV.P. 85. Under Rule 166a(i), summary judgment is permitted where “there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” In a plea to the jurisdiction, a party urges that, on the face of the pleadings, the trial court lacks subject jurisdiction and that the trial court should dismiss the action. 2 McDONALD, TEXAS CIVIL PRACTICE § 9:11 (1992 & Supp.2000). It is a dilatory plea that defeats a cause of action without reaching the merits and that, if granted, does not result in a judgment that prevents the refiling the cause of action in a court of proper jurisdiction. See Section 9:11. While the supreme court has held in Texas Department of Transportation v. Jones, 8 S.W.3d 636 (Tex.1999), that sovereign immunity may be raised in a plea to the jurisdiction, the mere assertion of sovereign immunity as grounds for summary judgment in a motion to the trial court will not transform the motion into a plea to the jurisdiction within the meaning of Rule 85 and Section 51.014(a)(8).⁷ Appellants’ motion on the issue of appealability is overruled.

This Court’s Lack of Jurisdiction to Consider the Appeal

The record before this court reflects that, while appellants have secured a default judgment against Cortez, the Moores’ claims as well as the other cross claims and third-party actions have not been severed and are still pending in the trial court. The October 9 order does not dispose of all of the parties and all of the causes of action before the trial court and is not subject to an interlocutory appeal; therefore, the October 9 order is not appealable at this time. Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993); Teer v. Duddlesten, 664 S.W.2d 702 (Tex.1984); Northeast Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966).

The appeal is dismissed for want of jurisdiction.

	Footnotes
1		Willo Products Company, Inc., MKK, and HDR have filed cross actions against TDCJ. Southern Steel has filed third party actions against Willo Products Company, Inc., Willo Products, Inc, and TDCJ. Willo Products Company, Inc., Willo Products, Inc., and HDR have filed cross actions against Cortez. Willo Products Company, Inc. and Willo Products, Inc. have filed a cross action against Southern Steel.
2		TEX.R.CIV.P. 166a(c).
3		TEX. LABOR CODE ANN. § 401.001 et seq (Vernon 1996 & Supp.2000).
4		TEX.R.CIV.P. 166a(i).
5		Appellants concede that the granting of TDCJ’s traditional summary judgment is not subject to an interlocutory appeal.
6		TEX.R.APP.P. 28.1 provides that appeals “when allowed” from interlocutory orders will be accelerated, that the filing of a motion for new trial will not extend the deadline to perfect an appeal, and that the trial court is not required to but may file findings of fact and conclusions of law within 30 days after the date the order is signed.
7		The case appellants rely on City of Houston v. West Capital Financial Services Corp., 961 S.W.2d 687 (Tex.App.-Houston [1st Dist.] 1998, pet’n dism’d w.o.j.), is factually distinguishable. In City of Houston, the trial court denied the motion for summary judgment; therefore, an interlocutory appeal was proper under Section 51.014(a)(5).