In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00301-CV
NANCY WEDGEWORTH, APPELLANT
V.
CITY OF AMARILLO, ET AL., APPELLEES
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 104164-A, Honorable Dan L. Schaap, Presiding
May 17, 2016
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Nancy Wedgeworth, appearing here and in the trial court pro se, sued
the City of Amarillo and several individual defendants alleging the City wrongfully
demolished a structure after declaring it a public nuisance. The trial court sustained the
City’s plea to the jurisdiction and Wedgeworth appealed. We will reverse the decision
and remand the case to the trial court.
Background
When viewed in the light most favorable to Wedgeworth,1 the evidence shows a
residence Wedgeworth owned was damaged by fire in February 2012. The property
was vacated and in June 2014 the City granted Wedgeworth two months to repair the
structure. The City apparently boarded the structure and, during November 2014,
posted the property for condemnation.
On December 22, 2014, the city council conducted a hearing to consider whether
to declare the structure a public nuisance and order its demolition. Wedgeworth
appeared at the hearing. That day, December 22, the council adopted a resolution
finding the structure to be a public nuisance which had not been timely abated.2
On January 2, 2015, Wedgeworth accepted delivery by certified mail of a copy of
the council’s December 22 decision. The structure was demolished by the City on April
1, 2015. Wedgeworth filed her original petition on April 29, 2015, alleging a takings
claim. See U.S. CONST. AMEND. V; Tex. Const. Art. I, § 17.
Section 4-3-3(i) of the Amarillo Municipal Code provides: “Appeal. The findings
and decision of the City Commission may be appealed to district court within thirty (30)
days after rendering of the decision, for a trial in accordance with City of Dallas v.
1
The standard for reviewing a plea to the jurisdiction supported by evidence
generally mirrors that of a traditional summary judgment motion. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We therefore review the
evidence of jurisdictional facts in the light most favorable to the nonmovant, crediting
evidence favorable to that party if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable juror could not. Id.
2
The substance of the resolution’s ordering paragraph appears drawn from
Amarillo Municipal Code section 4-3-3 (“Abatement of substandard structures”),
subsection (f)(7)(iii).
2
Stewart, No. 09-0257 (Tex.) (op. on reh., Jan. 2012).” The City filed a plea to the
jurisdiction asserting the trial court lacked subject-matter jurisdiction because
Wedgeworth had thirty days from December 22 to appeal the city council’s decision and
her failure to act timely deprived the district court of jurisdiction. After a brief hearing on
the motion, the trial court signed an order granting the plea to the jurisdiction and
dismissing Wedgeworth’s case with prejudice.
Analysis
Appellate Jurisdiction
On our own motion, we first consider our jurisdiction over this appeal. See
Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex. App.—Amarillo 1995,
no writ) (noting our obligation to consider jurisdiction sua sponte). Among the individual
defendants named in Wedgeworth’s petition were then-Amarillo city manager Jarrett
Atkinson and “Scott McDaniel.”3 The City’s plea to the jurisdiction was filed also on
behalf of all the individual defendants except Atkinson and McDaniel. The City’s
pleading pointed out no citation had been issued for service on those two defendants
and no return of service appeared. We note the record before us also reflects no
citation issued for those defendants and no answer filed on their behalf. Nothing in the
record indicates either appeared in the case. The appellate jurisdiction of a Texas
intermediate appellate court extends only to final orders or judgments and orders
specifically authorized by statute for interlocutory appeal. In re Roxsane R., 249 S.W.3d
764, 774-75 (Tex. App.—Fort Worth 2008, no pet.). If the present order of dismissal is
3
The City’s pleading indicates it believes Wedgeworth intended to name Scott
McDonald, not McDaniel.
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not final, no statute permits an interlocutory appeal by Wedgeworth as a matter of right.
We conclude, however, we have jurisdiction over the appeal.
“[A] judgment may be final, even though it does not dispose of all parties named
in the petition, if the remaining party was never served with citation and did not file an
answer, and nothing in the record indicates that the plaintiff ever expected to obtain
service upon the remaining party.” Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812
(Tex. App.—Corpus Christi 2009, pet. denied) (citing Youngstown Sheet & Tube Co. v.
Penn, 363 S.W.2d 230, 232 (Tex. 1962); M.O. Dental Lab v. Rape, 139 S.W.3d 671,
674-75 (Tex. 2004) (reaffirming Penn following Lehmann v. Har-Con Corp., 39 S.W.3d
191, 205-06 (Tex. 2001)). The record provides no indication Wedgeworth intended to
proceed against Atkinson and McDaniel. Thus, “the case stands as if there had been a
discontinuance as to [the unserved party], and the judgment is to be regarded as final
for the purposes of appeal.” Rape, 139 S.W.3d at 674 (quoting Penn, 363 S.W.2d at
232).
Trial Court Jurisdiction
We turn now to the sole issue on appeal, whether the trial court properly
dismissed Wedgeworth’s lawsuit for lack of subject-matter jurisdiction. “Whether a trial
court possesses jurisdiction is a question of law we review de novo.” City of Houston v.
Williams, 353 S.W.3d 128, 133 (Tex. 2011).
Under the doctrine of sovereign or governmental immunity, a trial court lacks
subject-matter jurisdiction over lawsuits against the State or other governmental units,
such as the City, unless the Legislature consents to suit. Tex. Dep’t of Parks & Wildlife
4
v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A governmental unit is not immune from
a valid takings claim. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591,
598 (Tex. 2001). Immunity from suit is not waived by a governmental unit, however,
absent a claimant’s compliance with all statutory prerequisites to suit. See TEX. GOV’T
CODE ANN. § 311.034 (West 2013) (providing in part, “[s]tatutory prerequisites to a
suit . . . are jurisdictional requirements in all suits against a governmental entity”). As
used in section 311.034, “the term ‘statutory prerequisite’ refers to statutory provisions
that are mandatory and must be accomplished prior to filing suit.” Prairie View A&M
Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012).4
Here the City asserts Wedgeworth failed to satisfy a statutory prerequisite to
bringing her suit. Specifically, it contends the trial court lacked subject-matter
jurisdiction because Wedgeworth did not file her suit within the thirty-day limitation
period established by Amarillo Municipal Code section 4-3-3(i). But the limitation period
of municipal code section 4-3-3(i) does not arise by statute; thus filing suit within that
period is not a statutory prerequisite to the attachment of the trial court’s jurisdiction.
See City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 827 (Tex. App.—Austin 2014,
no pet.) (“The City’s reliance on section 311.034 is misplaced, however, because the
4
The court in Chatha provided additional insight into the meaning of “statutory
prerequisites to suit,” explaining:
The term “statutory prerequisite” has three components. First, . . . a
prerequisite must be found in the relevant statutory language. Second,
the prerequisite must be a requirement. And finally, the term “pre”
indicates the requirement must be met before the lawsuit is filed. Thus,
according to the plain language of section 311.034, the term “statutory
prerequisite” refers to statutory provisions that are mandatory and must be
accomplished prior to filing suit.
381 S.W.3d at 511-12 (citations and footnote omitted).
5
notice provision at issue in the present case is contained in the Austin City Charter
rather than in a statute and thus is not a statutory prerequisite to suit” (emphasis in
original)).
Conclusion
Wedgeworth’s failure to file her suit in district court within thirty days of the city
council’s decision on December 22, 2014, did not deprive the trial court of subject-
matter jurisdiction. We therefore reverse the trial court’s dismissal order and render an
order denying the City’s plea to the jurisdiction. The case is remanded for further
proceedings consistent with this opinion.
James T. Campbell
Justice
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