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City of Galveston v. Gray11/21/2002
In this wrongful death suit, the City of Galveston and County of Galveston bring an interlocutory appeal complaining of the trial court's "implicit" denial of their respective pleas to the jurisdiction. In the event we determine the trial court did not deny the pleas to the jurisdiction and thus, we do not have jurisdiction over the appeal, the city and county bring an original proceeding requesting this court direct the trial court to rule on the pleas to the jurisdiction. We dismiss the interlocutory appeal and conditionally grant the petition for a writ of mandamus.
I. Background
LaVonda Gray sued the city and the county for the July 9, 2000 drowning death of her nine-year-old son, Labroderick Gray, in the Gulf of Mexico at the east end of the Galveston seawall. Labroderick was playing in the water with two other boys, ages eleven and twelve. The three boys began to drown. Labroderick's uncle was able to save the other two boys, but was unable to save Labroderick.
Gray alleges the city and the county, as owners of the property located at the east end of the seawall, were negligent in the following ways: (1) allowing access to the premises; (2) failing to provide signs warning of dangerous water or current conditions; (3) failing to provide trained life guards; (4) failing to correct problems associated with prior incidents involving other children and adults; and (5) failing to post signs prohibiting swimming in the area.
In March 2002, the city and the county each filed a plea to the jurisdiction based on sovereign immunity from suit and special exceptions. A hearing on the pleas to the jurisdiction was set for April 15, 2002; however, the city and the county agreed to pass on that hearing to allow Gray to amend her original petition. On July 3, 2002, the trial court signed a scheduling order setting deadlines for the parties to: (1) designate experts by January 5 (plaintiff), and February 4, 2003 (defendants); (2) complete mediation by February 5, 2003; (3) attend disposition conference on March 7, 2003; and (4) complete discovery by April 15, 2003.
On June 14, 2002, Gray filed a first amended petition and the city and the county reset the hearing on the pleas to the jurisdiction to July 30, 2002. On July 18, 2002, Gray filed a motion for continuance of the pleas to the jurisdiction, claiming she had not had sufficient time for discovery on issues related to the special exceptions and the pleas to the jurisdiction. At a hearing on July 30, 2002, the trial court granted Gray's motion for continuance of the hearing on the pleas to the jurisdiction until April 15, 2003, refused to rule on the pleas to the jurisdiction, and allowed Gray to conduct discovery on liability.
II. Interlocutory Appeal
Appellate courts have jurisdiction over immediate appeals from interlocutory orders only if expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352B53 (Tex. 1998). Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code provides for an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. ยง 51.014(a)(8) (Vernon Supp. 2002). The city and the county argue the trial court "implicitly" denied their pleas to the jurisdiction and, therefore, are entitled to bring this interlocutory appeal under section 51.014(a)(8). To the contrary, a review of the record does not show the trial court "implicitly" denied the pleas to the jurisdiction; instead, the trial court specifically stated it was not ruling on the pleas to the jurisdiction, but was granting Gray's motion for continuance and allowing discovery. Because there is no
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