in Re Town of Shady Shores

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-15-00351-CV

SARAH SWANSON APPELLANT

V.

TOWN OF SHADY SHORES APPELLEE

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FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-02914-158

AND

NO. 02-15-00356-CV

IN RE TOWN OF SHADY SHORES RELATOR

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ORIGINAL PROCEEDING
TRIAL COURT NO. 14-02914-158

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 MEMORANDUM OPINION1

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On the court’s own motion, we have combined cause numbers 02-15-

00351-CV, an attempted interlocutory appeal filed by Sarah Swanson, and 02-

15-00356-CV, a petition for writ of mandamus filed by the Town of Shady Shores

(the Town), because resolution of the issues contained within both causes is

intertwined.

Background

Swanson is the former secretary for the Town. Swanson filed suit against

the Town claiming she was wrongfully terminated in February 2014. She

asserted a statutory wrongful discharge claim under the Texas Whistleblower

Act, see Tex. Gov’t Code Ann. §§ 554.001–.010 (West 2012), and a common law

claim for wrongful discharge under Sabine Pilot Service, Inc. v. Hauck,

687 S.W.2d 733 (Tex. 1985). The Town filed a plea to the jurisdiction, asserting

that the trial court lacked subject matter jurisdiction over Swanson’s claims

because she could not overcome the Town’s entitlement to governmental

immunity from suit. Shortly thereafter, Swanson amended her petition to add a

claim for declaratory relief based in part on the Town’s alleged violations of the

Texas Open Meetings Act, see Tex. Gov’t Code Ann. §§ 551.001–.146 (West

2012 & Supp. 2016), and her due process rights under the Texas constitution,

1
See Tex. R. App. P. 47.4.

2
see Tex. Const. art. I, § 19, and a claim for alleged violations of her free speech

rights under the Texas constitution, see Tex. Const. art. I, § 8.

The Town then filed traditional and no-evidence motions for summary

judgment, claiming that governmental immunity barred Swanson’s Sabine Pilot,

Texas Whistleblower Act, and declaratory judgment claims. The Town also

argued in its motions that it was entitled to traditional and no-evidence summary

judgment on Swanson’s claims that it violated the Texas Open Meetings Act and

the Texas constitution on grounds other than governmental immunity.

On September 30, 2015, the trial court granted the Town’s plea to the

jurisdiction and dismissed Swanson’s Texas Whistleblower Act and Sabine Pilot

claims for lack of subject matter jurisdiction. Swanson did not file a notice of

interlocutory appeal at that time.

In separate orders, the trial court denied the Town’s traditional and no-

evidence motions for summary judgment on October 21, 2015. On October 27,

2015, the Town filed a notice of accelerated appeal pursuant to civil practice and

remedies code section 51.014(a)(8). Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(8) (West Supp. 2016) (permitting an interlocutory appeal from an

order granting or denying a plea to the jurisdiction by a governmental unit); see

Tex. R. App. P. 26.1(b), 28.1(a). The Town stated in its notice of appeal that it

was invoking the automatic stay of all other proceedings in the trial court pending

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resolution of the appeal.2 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b)

(West Supp. 2016).

At the time the Town perfected its interlocutory appeal, trial was set for

November 16, 2015. On October 27, 2015—the same day the Town filed its

notice of accelerated appeal—Swanson filed a motion in limine and a motion to

exclude evidence. On October 28, 2015, the trial court clerk issued citation for

service on a new defendant, the Town’s mayor; the return on the citation states

that she was served by private process server the following day.3 See Tex. R.

Civ. P. 99, 106–07.

On October 30, 2015, the Town filed a motion requesting the trial court to

enter an order acknowledging that all of the trial court proceedings had been

stayed pursuant to section 51.014(b). The Town also filed objections on

November 3, 2015, in which it asked the trial court to enter an order voiding all

actions it alleged were taken in violation of the automatic stay—Swanson’s filing

of the motion in limine and motion to exclude evidence, the trial court clerk’s

2
The Town’s interlocutory appeal has been assigned cause number 02-15-
00338-CV and is currently pending before this court. Because the issues raised
in the Town’s interlocutory appeal, Swanson’s interlocutory appeal, and the
Town’s mandamus are related, we stayed the Town’s briefing deadline pending
our resolution of Swanson’s appeal and the mandamus. By order dated
concurrently with this opinion, we will set briefing deadlines in the Town’s
interlocutory appeal.
3
The Town contends that the mayor was not personally served.

4
issuance of citation on the Town’s mayor, service on the mayor, and the filing of

the return of service.

The trial court heard the Town’s objections and motion on November 6,

2015, but did not rule on them. According to the Town, during that hearing, the

trial court granted Swanson leave to file a motion for a permissive interlocutory

appeal from the trial court’s September 30, 2015 order granting the Town’s plea

to the jurisdiction. A few days after the hearing, the Town filed with the trial court

proposed orders sustaining its objections and granting its motion.

On November 9, 2015, Swanson filed a notice of accelerated appeal

pursuant to civil practice and remedies code section 51.014(a)(8) appealing the

trial court’s September 30, 2015 order granting the Town’s plea to the

jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8). She also filed

a “Petition for Interlocutory Appeal.”4 This court sent a letter to Swanson

questioning our jurisdiction over her appeal:

The court has received a copy of the notice of appeal filed by
appellant Sarah Swanson. See Tex. R. App. P. 25.1(e). The court
is concerned that it may not have jurisdiction over this appeal
because the notice of appeal was not timely filed. The trial court’s
interlocutory order granting appellee’s plea to the jurisdiction was
signed on September 30, 2015. Therefore, the notice of appeal was
due by October 20, 2015, but was not filed until November 10, 2015.
See Tex. R. App. P. 26.1(b), 28.1(a). Unless appellant or any party

4
Although petitions for permissive appeal are typically assigned a separate
cause number in this court, this petition was erroneously docketed in the same
cause number as Swanson’s interlocutory appeal. See generally Tex. R. App. P.
28.3. Rather than severing it into a new cause number, we will dispose of it with
Swanson’s interlocutory appeal and the Town’s mandamus.

5
 desiring to continue the appeal files with the court, on or before
Monday, November 23, 2015, a response showing grounds for
continuing the appeal, this appeal may be dismissed for want of
jurisdiction. See Tex. R. App. P. 42.3(a), 44.3.

The court has also received “Appellant’s Petition for
Interlocutory Appeal.” The court is concerned that it lacks
jurisdiction over the petition because it does not contain an order
signed by the trial court granting appellant permission to appeal the
September 30, 2015 order granting appellee’s plea to the
jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)
(West 2015); see also Tex. R. App. P. 28.3(a); Colvin v. B. Spencer
& Assocs., No. 01-15-00247-CV, 2015 WL 2228728, at *1‒2 (Tex.
App.—Houston [1st Dist.] May 12, 2015, no pet.) (mem. op.).
Unless appellant, on or before Monday, November 23, 2015, files a
response showing grounds for this court’s jurisdiction over the
petition, including a copy of the trial court’s order granting permission
to appeal, the petition may be dismissed for want of jurisdiction. See
Tex. R. App. P. 42.3(a), 43.2(f).

On November 10, 2015, Swanson filed a motion for permissive

interlocutory appeal in the trial court, and the trial court scheduled a hearing on

the motion for November 20, 2015. See Tex. R. Civ. P. 168. On November 18,

2015, the Town filed a petition for writ of mandamus claiming that the trial court

and Swanson had violated the automatic stay provided by civil practice and

remedies code section 51.014(b)—(1) Swanson by filing motions, requesting

issuance of citation for a new defendant (the Town’s mayor), and serving the

Town’s mayor and (2) the trial court by refusing to enforce the stay, holding

hearings, granting Swanson leave to file a motion for permissive interlocutory

appeal, and scheduling a hearing on Swanson’s motion for permissive

interlocutory appeal. On November 19, we issued an order staying all of the

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underlying proceedings and requesting a response.5 See Tex. R. App. 52.8(b),

52.10(b).

The Town’s Petition for Writ of Mandamus

In its mandamus petition, the Town asks this court to direct the trial court to

stay the underlying proceedings and to enter an order voiding all actions taken in

the trial court since the Town filed its notice of interlocutory appeal, specifically

including the issuance of citation on the Town’s mayor and Swanson’s attempts

to effect service on the mayor.

The civil practice and remedies code provides for an appeal from an

interlocutory order that “grants or denies a plea to the jurisdiction by a

governmental unit as that term is defined by Section 101.001.” See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(a)(8). The Town, which is a governmental

unit under section 101.001, is appealing the trial court’s orders denying its

motions for summary judgment that, in part, sought dismissal of Swanson’s

declaratory judgment claims based on the Town’s entitlement to governmental

immunity. The portions of those orders denying the Town’s motions for summary

judgment on immunity grounds are reviewable by interlocutory appeal under

section 51.014(a)(8). See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d

338, 349 (Tex. 2004) (holding that the term “plea to the jurisdiction” in section

5
Shortly before we issued our stay, the trial court informed the parties in
writing that it was not going to sign the Town’s proposed order granting its motion
to enforce the stay or its proposed order sustaining its objections to violations of
the stay.

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51.014(a)(8) refers to the substance of the immunity argument rather than “to a

particular procedural vehicle”); see also Ware v. Miller, 82 S.W.3d 795, 800 (Tex.

App.—Amarillo 2002, pet. denied) (holding appellate jurisdiction over trial court’s

order denying defendants’ plea to the jurisdiction founded on official immunity but

not on challenges to plaintiff’s standing made in defendants’ individual

capacities); Montgomery Cty. v. Fuqua, 22 S.W.3d 662, 664 (Tex. App.—

Beaumont 2000, pet. denied) (exercising jurisdiction over appeal from the trial

court’s order denying defendant’s motion to dismiss based on a plea to the

jurisdiction but not based on the statute of limitations); City of El Campo v. Rubio,

980 S.W.2d 943, 944, 949 (Tex. App.—Corpus Christi 1998, pet. dism’d w.o.j.)

(exercising jurisdiction over the part of the trial court’s order denying a plea to the

jurisdiction and motion for summary judgment based on official immunity, but not

over the part denying summary judgment on plaintiff’s negligence and intentional

infliction of emotional distress claims).

In addition to staying the commencement of the trial, an interlocutory

appeal under 51.014(a)(8) triggers a stay of “all other proceedings in the trial

court” pending final resolution of the appeal. Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(b). In the case of an appeal from the denial of a plea to the jurisdiction

under 51.014(a)(8), the automatic stay is only available, however, if the plea to

the jurisdiction was filed and a hearing requested within a defined timeframe.

See id. § 51.014(c). To trigger the automatic stay, the plea to the jurisdiction

must have been filed and a hearing requested not later than the later of the date

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set in a scheduling order, if any, or 180 days after the defendant’s original

answer or first other responsive pleading. Id.

The Town argues that the automatic stay was triggered because its

motions were “filed and requested for submission or hearing before the trial court

not later than . . . a date set by the trial court in a scheduling order entered under

the Texas Rules of Civil Procedure.” Id. § 51.014(c)(1). The scheduling order

entered in the case required that all motions for summary judgment and all

dispositive motions be filed and heard by October 1, 2015. The Town filed its

motions for summary judgment and a hearing was set for September 23, 2015.

Even though the motions were not heard until October 21, the motions were filed

and a hearing was requested prior to October 1. Thus, the automatic stay was

triggered when the Town filed its notice of interlocutory appeal on November 9.

See id. § 51.014(b), (c)(1).

Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Olshan Found. Repair Co., 328

S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992) (orig. proceeding). “[T]he stay set forth in section 51.014 is

statutory and allows no room for discretion.” Sheinfeld, Maley & Kay, P.C. v.

Bellush, 61 S.W.3d 437, 439 (Tex. App.—San Antonio 2001, no pet.). The trial

court abuses its discretion in conducting hearings and signing orders in violation

of the automatic stay of “all other proceedings in the trial court.” In re Tex. Educ.

Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, orig. proceeding)

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(holding that entry of severance order in violation of section 51.014 stay was an

abuse of discretion). Mandamus relief is the appropriate remedy when a trial

court refuses to recognize or enforce the automatic stay provided by section

51.014(b). See In re Univ. of the Incarnate Word, 469 S.W.3d 255, 259–60 (Tex.

App.—San Antonio 2015, orig. proceeding).

Here, however, we need not decide whether the trial court’s actions

violated the automatic stay because the trial court did not render any orders after

the automatic stay was in place. The trial court clerk, not the trial court, issued

citation for service on the Town’s mayor, and Swanson, not the trial court, filed

motions and had the Town’s mayor served. See Tex. Gov’t Code Ann. § 22.221

(West 2004) (limiting our mandamus jurisdiction to (1) writs against a district

court judge or county court judge in this court’s district and (2) all writs necessary

to enforce our jurisdiction). There are no rulings in the record before us that were

signed by the trial court after the automatic stay was in place. Thus, the Town

has not shown us that the trial court has made any ruling upon which we can

provide relief.6 See, e.g., Univ. of the Incarnate Word, 469 S.W.3d at 259

6
We recognize that mandamus may be based on an oral ruling. See, e.g.,
In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App.—Fort Worth 2001, orig.
proceeding) (concluding that mandamus relief may be based on oral ruling only if
the ruling is a “clear, specific, and enforceable order that is adequately shown by
the record”). But because we are dismissing Swanson’s petition for permissive
interlocutory appeal for lack of jurisdiction, we need not determine whether the
trial court’s granting Swanson leave to file a motion for a permissive interlocutory
appeal at the November 6, 2015 hearing is subject to mandamus review. See
Tex. R. App. P. 47.1.

10
(holding order compelling discovery responses was signed in violation of

automatic stay and ordering trial court to vacate order); In re I-10 Colony, No. 01-

14-00775-CV, 2014 WL 7914874, at *2–3 (Tex. App.—Houston [1st Dist.] Feb.

24, 2014, orig. proceeding) (mem. op.) (concluding trial court’s written order

denying motion for protection, granting motion to compel third-party discovery,

and awarding sanctions signed in violation of 51.014(b) stay was an abuse of

discretion and directing trial court to vacate order); In re Bliss & Glennon, Inc.,

No. 01-13-00320-CV, 2014 WL 50831, at *3–4 (Tex. App.—Houston [1st Dist.]

Jan. 7, 2014, orig. proceeding) (mem. op.) (concluding trial court abused its

discretion by signing order granting motion to sever claims in violation of section

51.014(b), but ordering trial court to vacate order as only relief); In re Tex. Educ.

Agency, 441 S.W.3d at 751 (holding trial court abused its discretion by holding

hearings and signing orders denying supersedeas after section 51.014(b) stay

was in effect and ordering trial court to vacate order).

Even though the Town’s filing of its interlocutory appeal stayed all

proceedings in the trial court under section 51.014(b), the trial court has not

made any rulings in violation of the stay from which this court can grant relief.

See Tex. R. App. P. 52.3(k)(1)(A). Accordingly, we deny the Town’s petition for

writ of mandamus. We lift our November 19, 2015 stay order, but pursuant to

section 51.014(b), all proceedings in the trial court remain stayed pending

resolution of the Town’s appeal. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(b).

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 Swanson’s Interlocutory Appeal

Swanson attempts to appeal the trial court’s order granting the Town’s plea

to the jurisdiction, which was signed on September 30, 2015. Therefore, her

notice of appeal was due by October 20, 2015. See Tex. R. App. P. 26.1(b)

(stating that in an accelerated appeal, the notice of appeal must be filed within

twenty days after the judgment or order is signed), 28.1(a) (stating that appeals

from interlocutory orders allowed by statute are accelerated appeals). Swanson

did not file her notice of appeal until November 10, 2015.

In response to our jurisdiction letter, Swanson claims that regardless of the

fact that she filed her appeal over forty days after the order granting the Town’s

plea to the jurisdiction was signed, her appeal is timely under rule 26.1(d), which

provides that “if any party timely files a notice of appeal, another party may file a

notice of appeal within the applicable period stated above or 14 days after the

first filed notice of appeal, whichever is later.” Tex. R. App. P. 26.1. Swanson

argues that because she filed her notice of appeal from the trial court’s order

granting the Town’s plea to the jurisdiction within fourteen days of the Town’s

filing its notice of appeal from the trial court’s orders denying its motions for

summary judgment, her appeal is timely as a cross-appeal under rule 26.1(d).

Swanson admits that “[i]t is questionable whether the subject matter

jurisdiction issues that Swanson seeks to raise on appeal may be properly

brought in a cross-point in the Town’s appeal . . . because they . . . arise from a

different ruling—the plea to the jurisdiction, rather than the summary judgment

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orders which are the basis of the Town’s appeal.” She states that “she only

wants an interlocutory appeal if such an appeal is going to be pursued by the

Town” and that “Rule 26.1(d) affords [her] the opportunity to decide if she wants

an interlocutory appeal in response to the Town’s notice.” Swanson cites no

cases nor have we found any cases supporting her contention that she can

utilize rule 26.1(d) in this way. Accordingly, we hold that Swanson’s notice of

appeal was untimely. See Tex. R. App. P. 28.1(b) (“Unless otherwise provided

by statute, an accelerated appeal is perfected by filing a notice of

appeal . . . within the time allowed by Rule 26.1(b) or as extended by Rule

26.3.”); In re K.A.F., 160 S.W.3d 923, 925 (Tex. 2005) (“[T]he language of rule

26.1(b) is clear and contains no exceptions to the twenty-day deadline.”). We

therefore dismiss her appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a),

43.2(f), 44.3.

Swanson also filed a petition for permission to appeal, but it did not contain

an order signed by the trial court granting her permission to appeal the

September 30, 2015 order granting the Town’s plea to the jurisdiction. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(d), (f); Tex. R. App. P. 28.3(a), (c). In

order for a permissive appeal to be properly before this court, (1) the trial court

must issue a written order encompassing both the order to be appealed and the

written permission to appeal that order required by civil practice and remedies

code section 51.014(d), (2) the appellant must timely file a petition for permission

to appeal with this court within fifteen days after the signing of the trial court's

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order and attach a copy of that order; and (3) this court must grant the petition for

permission to appeal. See Tex. R. App. P. 28.3(a)–(c), (e)(2), nn. & cmts.; Tex.

R. Civ. P. 168; Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)–(f). Swanson

failed to comply with the requirements for bringing a permissive appeal from an

interlocutory order because she failed to obtain a written order granting

permission to appeal.7

Without the trial court’s permission to appeal, we lack jurisdiction over

Swanson’s appeal.8 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)–(f);

Colvin, 2015 WL 2228728, at *1–2. Accordingly, we dismiss Swanson’s petition

for permission to appeal for want of jurisdiction.9 See Tex. R. App. P. 42.3(a),

43.2(f), 44.3.

Conclusion

We deny the petition for writ of mandamus in cause number 02-15-00356-

CV. We lift our November 19, 2015 stay order issued in that cause, but all

7
Swanson also failed to obtain from the trial court an amended order
granting her permission to appeal. See Tex. R. App. P. 28.3(c). We issued our
stay of the trial court proceedings before the trial court heard Swanson’s motion
for permissive interlocutory appeal.
8
Swanson has filed a motion asking us to lift our stay so that she could get
the trial court’s permission to appeal. We deny this motion as moot.
9
Swanson can appeal the trial court’s order granting the Town’s plea to the
jurisdiction in an appeal from the final judgment. See Harris Cty. v. Sykes,
136 S.W.3d 635, 638 (Tex. 2004) (“[I]f the court grants the plea to the jurisdiction,
as the trial court did in this case, the plaintiff may take an appeal once that
judgment becomes final.”).

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proceedings in the trial court remain stayed pending resolution of the Town’s

appeal in cause number 02-15-00338-CV. We dismiss for want of jurisdiction

Swanson’s attempted interlocutory appeal and her petition for permission to

appeal in cause number 02-15-00351-CV.

/s/ Anne Gardner
ANNE GARDNER
JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: August 18, 2016

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