author: RICHARD BARAJAS, Chief Justice.

text:
    DICK POE MOTORS, INC., Appellant, v. DAIMLERCHRYSLER CORPORATION f/k/a Chrysler Corporation, Appellee.
    No. 08-04-00182-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.

      Mark C. Walker, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellant.
    Carlos Rincon, Delgado, Acosta, Braden & Jones, P.C., El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s entry of a series of orders purporting to dispose of the matters in controversy among the parties beginning with an agreed order of dismissal signed by the trial court on December 1, 2008 and the denial of a motion for clarification dated February 17, 2004. Appellant filed a notice of appeal of these orders on March 18, 2004 asking this Court to determine whether the orders were appealable as final appealable orders. We filed that notice in cause number 08-04-00080-CV and ultimately held, in a separate opinion, that the two orders referenced were not final, appealable orders; therefore, we dismissed that appeal.

During the pendency of the 08-04-00080-CV appeal, the trial court received and considered several additional motions filed by the parties. Ultimately, the trial court entered two orders which also purported to dispose of the matters in controversy. Appellant filed a notice of appeal on April 30, 2004 from those orders, which was docketed by this Court as cause number 08-04-00182-CV. Appellant complains of the trial court’s decision in nine issues on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

The original lawsuit in this case arose as a result of a tragic automobile accident where the plaintiff, Jennifer Ann Lee, as mother of Alyssa Catlin Lee, deceased, brought suit against various corporate defendants, DaimlerChrysler Corporation, formerly known as Chrysler Corporation (“Chrysler”), TRW, Inc. (“TRW”), and Dick Poe Motors (“Dick Poe”), doing business as Dick Poe Chrysler Plymouth. Dick Poe filed a cross-action against Chrysler and TRW. The underlying personal injury claims against each corporate defendant were ultimately settled and various orders of dismissal were entered disposing of portions of the lawsuit. The trial court signed an agreed order of dismissal on December 1, 2008 which disposed of the claims between the plaintiff and Chrysler. The pertinent part of the order was worded as follows:

On the date hereinafter shown, came on to be heard the Motion by JENNIFER ANN LEE, Individually, as Independent Administratrix of the ESTATE OF ALYSSA CATLIN LEE, a Minor, Deceased, and on Behalf of All Wrongful Death Beneficiaries of ALYSSA CAT-LIN LEE, a Minor, Deceased, Plaintiff, and DAIMLERCHRYSLER CORPORATION, Wa CHRYSLER CORPORATION, Defendants, to dismiss any and all claims by and between them in their entirety with prejudice with each party to bear its own attorneys fees and costs for the reason that all matters in dispute between them have been fully and finally settled.
IT IS, THEREFORE, ORDERED that any and all counter-claims, cross-claims, and any and all other claims of any type whatsoever by and between the parties herein are dismissed in their entirety with prejudice with each party to bear its own attorneys fees and costs. SIGNED this 1 day of Dec [sic], 2003.
/s/ Luis Aguilar
JUDGE LUIS AGUILAR

The order was signed, approved as to form, by Evelina Ortega, attorney for the plaintiff, and Patrick Seyferth, attorney for Chrysler, only.

A dispute among the parties arose over the effect of the December 1 order and Dick Poe filed a “Motion for Clarification Regarding Order of Dismissal Between Plaintiff and Daimlerchrysler Corporation,” specifically questioning the effect of the agreed order of dismissal signed by the court on December 1, 2003. On February 17, 2004, the trial court held a hearing and entered an order that stated the following:

IT IS ORDERED that Dick Poe Motor, [sic] Inc.’s Motion for Clarification is hereby denied on the basis that Dick Poe Motor, [sic] Inc. abandoned or waived its cross-claims against Defendants DaimlerChrysler Corporation and TRW, Inc.
SIGNED on this 17 day of Feb, 2004.
/s/ Luis Aguilar
Judge Presiding

On March 18, 2004, Dick Poe filed its notice of appeal, asking this Court to determine whether the orders of December 1, 2003 and February 17, 2004 provided a final appealable order for purposes of appeal. We filed this notice of appeal under cause number 08-04-00080-CV. After a review of the appellate record, we held that they did not and dismissed that appeal.

On February 17, 2004, before the order denying Dick Poe’s motion for clarification was filed, Dick Poe filed a series of motions attempting to assert its cross-claims against Chrysler. Dick Poe also filed a nonsuit of its claims against TRW. Chrysler filed responsive motions and ultimately filed a motion to dismiss waived and/or abandoned claims and a motion for dismissal of Dick Poe Motors, Inc.’s “Supplemental Cross-Action Against Daimler-chrysler Corporation.” The court signed an order on March 1, 2004 purporting to dispose of the motion for summary judgment and motion for severance filed by Dick Poe by the following language: “The Court entered an order on February 17, 2004 finding that, based on the record, Dick Poe Motors, Inc. had abandoned and/or waived its indemnity claims against DaimlerChrysler Corporation and TRW, Inc. Thus, Dick Poe Motors, Ine.’s Motion for Summary Judgment and Motion for Severance are moot.”

The trial court held a hearing on March 5, 2004 on Dick Poe Motors, Inc.’s motion to modify order on motion for clarification and signed an order denying the requested clarification.

Subsequent to the March 5, 2004 hearing, confusion about the status of the dispute between Dick Poe and Chrysler continued. Despite the trial court’s entry of an order on March 1, 2004 purporting to dispose of the Dick Poe motion for summary judgment as moot, the trial court signed an order setting a hearing on Dick Poe Motors’ motion for summary judgment on March 8, 2004 scheduling an April 15, 2004 hearing. The flurry of motions between the parties continued. A hearing on Chrysler’s motions to dismiss was held on April 7, 2004, and ultimately, the Court entered two orders addressing the claims of Dick Poe against Chrysler. Both orders were signed on April 7, 2004, the first was entitled “Order Dismissing Waived and/or Abandoned Claims” and the second was entitled “Order Dismissing Dick Poe Motors, Inc.’s ‘Supplemental Cross-Action Against DaimlerChrysler Corporation.’ ” Dick Poe filed a notice of appeal and challenges the court’s rulings raising nine issues.

II. ISSUES ON APPEAL

In nine issues, Dick Poe contends that the trial court erred in not allowing it to pursue its cross-actions for indemnity and in dismissing those claims with prejudice on the grounds of waiver or abandonment. Issue Nos. One and Three challenge the trial court’s decisions in dismissing Dick Poe’s cross-action for want of prosecution, with prejudice. We read these issues collectively that the trial court abused its discretion in making certain findings of facts and issuing certain orders as included in the order dismissing waived and/or abandoned claims, and, for the reasons stated below, reverse the trial court’s decision and remand for further action consistent with this opinion.

As stated previously, the procedural quagmire created by the trial court and the parties in this case has presented this Court with a challenge requiring the extensive review of the appellate record. Certain facts are established by the record, but the judicial gamesmanship of the parties has created an obscure series of orders which this Court must now unravel to determine the true status of the underlying cross-claims filed by Dick Poe against Chrysler.

It is clear from the record that this case was set for trial before Judge Luis Aguilar on September 29, 2003 pursuant to a pretrial order signed February 13, 2003. The parties participated in a mediation in early September of 2003, during which the plaintiff and the parties agreed to a settlement of the case. Subsequent to the mediation, counsel for the plaintiff and counsel for Dick Poe contacted the court and spoke with Judge Aguilar’s court coordinator and advised her that the case had settled. At this juncture, the dispute among the parties commences. Dick Poe contends that any discussions that occurred between the court coordinator, plaintiffs counsel, and Dick Poe’s counsel did not address, and were not intended to address, the cross-claims that Dick Poe had asserted against Chrysler. The court coordinator testified that she removed the case from the trial court’s docket because she believed that all the claims among all the parties had settled. Counsel for the plaintiff testified that she participated in a telephone conversation with the court coordinator whereby the court coordinator was informed that the case had settled, but she did not recall any discussion about the fact that only the claims between the plaintiff and Dick Poe had been settled. Neither the pretrial hearing originally scheduled for September 18, 2003 nor the trial originally scheduled for September 29, 2003 were held. Subsequent to the mediation, the parties began circulating various letters and orders among themselves, addressing and disposing of the various claims between the parties. As discussed previously in this opinion, the final dismissal orders between the plaintiff and the defendants were signed on September 16, 2003, September 29, 2003, and December 1, 2003. Thereupon, the dispute about the effect of the December 1, 2003 order commenced, culminating with the trial court’s orders of April 7, 2004.

Both orders purport to dispose of the Dick Poe cross-claims on the grounds of “waiver or abandonment” and dismiss the claims with prejudice. The order dismissing Dick Poe’s supplemental cross-action against Chrysler also finds that the doctrine of res judicata applies as a bar.

The order dismissing waived and/or abandoned claims includes specific findings in addition to the orders entered by the court. Reviewing the language of the order, we hold, as a matter of law, that there is no legal basis for the findings as entered and reverse this matter accordingly.

The order contains the following findings and orders:

1. The December 1, 2003 Order of Dismissal is intended as serving as a final order disposing of this entire case.
2. In the event that the December 1, 2003 Order cannot be construed as a final order dismissing Dick Poe’s cross-claims against DaimlerChrysler Corporation, the Court enters the following findings of fact and Order of Dismissal:
a. Pursuant to an order of February 20, 2003, this entire matter, including Dick Poe’s cross-claims, had been set for trial on September 29, 2003.
b. That the Court had made several admonishments on the record to all counsel at the hearing on DaimlerChrys-ler Corporation’s Motion to Substitute counsel on August 13, 2004. The Court made clear that this entire matter would be settled or would go to trial on September 29, 2003 as had been ordered in the scheduling order of February 20, 2003.
c. That prior to the trial date of September 29, 2003, Dick Poe, through its counsel had communicated to the 120th District Court personnel that the case had settled and had in no way communicated any suggestion that its cross-claims against DaimlerChrysler Corporation were still pending.
d. That Dick Poe failed to appear at the pre-trial hearing of September 18, 2004 to attempt to keep its cross-claims against DaimlerChrysler Corporation pending before the Court.
e. That at no time prior to the September 29, 2003 trial date did Dick Poe attempt to seek official relief from the trial date, despite clear admonishments from the Court that the case would not be continued.
IT IS THEREFORE ORDERED that Dick Poe Motors, Inc.’s cross-claims against Defendants DaimlerChrysler Corporation and TRW, Inc. are dismissed with prejudice.
IT IS FURTHER ORDERED that Dick Poe’s Motion for Summary Judgment on its cross-claim is denied as moot.
SIGNED on this 7 day of April, 2004.
/s/ Luis Aguilar
Honorable Judge Luis Aguilar 120th District Court

We have previously held that the order of December 1, 2003 on its face is not a final appealable order for the reason that it does not dispose of all the claims of all the parties and is clearly limited to the plaintiff and DaimlerChrysler Corporation. Finding number two is equally problematic. We agree that the entire case had been set for trial on September 29, 2003 pursuant to the February 13, 2003 pretrial order of the court. We also agree with the trial court’s finding that the judge admonished the parties on August 13, 2004 [sic] at a hearing held on DaimlerChrysler’s motion to substitute counsel, that the court would “not reset this case on the condition that Counsel came in and hasn’t had time to get up to speed.” We also agree that prior to the trial date of September 29, 2003, Dick Poe, through its counsel, communicated to 120th District Court personnel that the case had settled. We do not agree that the documents filed disposed of the pending cross-claims regardless of whether any verbal communications between the parties’ attorneys and court personnel occured. The orders filed in this case must stand on the language contained therein.

We note that the order of September 16, 2003 dismissing the claims between the plaintiff and Dick Poe is specific on its face and references only the claims between the plaintiff and Dick Poe. The order contains language “that all matters in controversy between the Plaintiff and Dick Poe Motors, Inc., have been settled and that the above case between the Plaintiff and Dick Poe Motors, Inc., only, should be dismissed, and that no other pending claims shall be in any way affected by this settlement.” The order also includes the language “that the dismissal of these claims does not affect any other pending claims in this suit.”

The plain language of the order referenced above informs the court that other claims are pending, though we agree that the scope of those claims is not addressed.

Finding “d” above contends “[t]hat Dick Poe failed to appear at the pre-trial hearing of September 18, 2004[sic] to attempt to keep its cross-claims against Daimler-Chrysler Corporation pending before the Court.” Nothing in the record establishes that the pretrial hearing of September 18, 2003 actually occurred. In fact, the unequivocal evidence establishes that the hearing was cancelled and no pretrial hearing occurred. Dick Poe cannot have “failed to appear” at a hearing which did not occur, as a matter of law. This finding is clearly erroneous.

Finding “e” finds that “at no time prior to the September 29, 2003 trial date did Dick Poe attempt to seek official relief from the trial date, despite clear admonishments from the Court that the case would not be continued.” This finding criticizes Dick Poe for not seeking relief from a trial date which had been cancelled and from a trial which did not occur. Dick Poe cannot be held to have failed to seek relief from a trial date which did not exist, regardless of the reason. Had the court in fact called this case to trial, and had Dick Poe in fact failed to appear or declined to pursue its claims, then the finding would be supported by the evidence in the record. As such, we are presented with the trial court’s attempt to sanction Dick Poe for its failures to appear at non-existent events.

The order continues by dismissing Dick Poe’s cross-claims against defendants Da-imlerChrysler Corporation and TRW, Inc., with prejudice. It also orders that Dick Poe’s motion for summary judgment on its cross-claim is denied as moot. We note for the record, that Dick Poe had taken a nonsuit as to any claims against TRW on February 17, 2004. We also note that this order appears to be duplicative of the order of March 1, 2004 denying Dick Poe’s motion for summary judgment as moot on the grounds of waiver and abandonment. We must read this order with the simultaneous signed order of April 7, 2004 dismissing Dick Poe Motors supplemental cross-action, with prejudice, on the grounds of waiver and abandonment and on the additional grounds of res judicata. Reviewing both orders, we attempt to discern the effect of these orders on the pending claims in order to reach a decision in this case.

We recognize that a trial court’s authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the court’s inherent power. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976). A trial court may dismiss under Rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice,” or when a case is “not disposed of within time standards promulgated by the Supreme Court_” Tex.R. Civ. P. 165a(1)-(2). In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal, 994 S.W.2d at 631; State v. Rotello, 671 S.W.2d 507, 508-09 (Tex.1984).

A party, however, must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent power. See Tex.R. Civ. P. 165a(l) (“[n]otice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney”); Villarreal, 994 S.W.2d at 630. The requirements of notice and a hearing are necessary to ensure the dismissed claimant has received due process. Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex.App.-San Antonio 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex.App.-Dallas 2001, pet. denied). The failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630-31.

III. STANDARD OF REVIEW

We review a dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997); Rotello, 671 S.W.2d at 509. A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Johnson-Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87 (Tex.App.-Fort Worth 2002, pet. dism’d).

We hold, as a matter of law, that despite the flurry of motions and orders entered by the trial court, none of the findings of the trial court are supported by any evidence reflected in the record. The cross-claims filed by Dick Poe against Daimler-Chrysler were not “waived or abandoned” as a matter of law and they should not have been dismissed. Dick Poe cannot have waived any claims related to its cross-action by failing to appear at a hearing that did not occur. Further, in the event that the trial court had called the matter to trial, and after a hearing, determined that the claims should be dismissed for want of prosecution, the claims should have been dismissed without prejudice.

Dismissal of a case with prejudice functions as a final determination on the merits. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex.1999) (per curiam). A dismissal for want of prosecution is not a trial on the merits, and therefore dismissal with prejudice is improper. Maldonado v. Puente, 694 S.W.2d 86, 92 (Tex.App.-San Antonio 1985, no writ). An order of dismissal for want of prosecution is not an adjudication of the rights of the parties; rather, it simply places the parties in the position they were in prior to filing the suit. Melton v. Ryander, 727 S.W.2d 299, 303 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

Reviewing the orders as presented, we hold that the trial court’s findings entered and orders issued constitute an abuse of discretion. We therefore affirm Dick Poe’s Issue Nos. One and Three and reverse and remand this case to the trial court for further action consistent with this opinion. Because our decision on these issues is dispositive of this appeal, we do not reach Dick Poe’s remaining issues.

      . The parties continued to file various documents in the underlying case which resulted in additional orders. Appellant Dick Poe filed a second notice of appeal from these orders which resulted in a companion case before us, filed under cause number 08-04-00182-CV.

      . The reporter’s record reflects that the actual date of the hearing was August 18, 2003.


source: Caselaw Access Project

license: Public Domain

text:
    Margarita MORALES, Individually and as Next Friend of Paulette Morales and Laura Morales, Minor Children of Guadalupe D. Morales, Deceased, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY and Continental Casualty Company, Appellees.
    No. 08-04-00135-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.

      John E. Eeithly, Anthony, NM, for Appellant.
    David L. Brenner, Burns Anderson Jury & Brenner, LLP, David Boyce, Wright & Greenhill, P.C., Austin, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s decision granting a plea to the jurisdiction filed by Appellees contending that the El Paso courts lacked jurisdiction for review of Appellant’s claims filed under the Texas Workers’ Compensation Act. For the reasons stated herein, we affirm the trial court’s order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Margarita Morales, individually and on behalf of her minor children, filed suit seeking judicial review of the decision of the Texas Workers’ Compensation Commission Appeals Panel which made adverse findings regarding her claim for benefits as the result of the death of Guadalupe Morales.

Guadalupe Morales sustained injuries that resulted in his death on April 20, 1995, which, Appellant contended, occurred during the course and scope of his employment with Turnkey Services Inc., State National Bank, and PGD Inc. The Appel-lees in this matter are the workers’ compensation insurance providers for two of the claimed employers. Margarita Morales filed a notice of fatal injury and claim for benefits on February 10, 1997. Appellant contended that the notice was timely filed pursuant to Texas Labor Code Section 409.008 because the employers failed to report the injury and death until after that date. On September 15, 2003, the Texas Workers’ Compensation Commission Appeal Panel provided notice of its decision in Appellant’s claim, appeal number 031950, as filed with the Director of the Division of Hearings on September 8, 2003. That decision did not award death benefits to Appellant and specifically determined that Appellant’s decedent was not an employee injured in the course and scope of his employment entitled to coverage.

Appellant filed her original and first amended original petition complaining of the appeals panel decision. In her petition, she challenges the finding of the appeals panel regarding the status of Guadalupe Morales and asserts that “[w]hether or not Mr. Morales was an employee or an independent contractor and by whom he was employed by are fact issues triable by a jury. They are issues of compensability.”

Appellees filed a plea to the jurisdiction challenging the jurisdiction of the El Paso trial court. After consideration of the issue, the trial court entered an order of dismissal for want of jurisdiction. For the reason stated below, we agree with the trial court’s determination.

II. ISSUES ON APPEAL

Appellant presents five issues on appeal which challenge the trial court’s determination that the question in controversy is a coverage issue related to the status of Guadalupe Morales at the time of his death. Appellant contends that the issue of the decedent’s employment is a question of compensability not coverage. Appellees contend if the issue being appealed is an issue of coverage, then the appropriate forum is the district court in Travis County, Texas.

III. PLEA TO THE JURISDICTION

A. Standard of Review

A plea to the jurisdiction is a dilatory plea by which a party contests the trial court’s authority to determine the subject matter of the cause of action. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.); City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.-Fort Worth 1999, pet. dism’d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Midland, 33 S.W.3d at 6; City of Saginaw, 996 S.W.2d at 2. The question of subject-matter jurisdiction is a legal question which we review de novo. City of Midland, 33 S.W.3d at 6; City of Saginaw, 996 S.W.2d at 2; Texas Dept. of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App.-Austin 1999, pet. dism’d by agr.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) (ripeness, as an element of subject-matter jurisdiction, is a legal question subject to de novo review). In reviewing the trial court’s denial of a plea to the jurisdiction, we look solely to the allegations in the petition and accept them as true. City of Midland, 33 S.W.3d at 6-7; see City of Saginaw, 996 S.W.2d at 2-3; Firemen’s Ins. Co. of Newark, N.J. v. Board of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App.-Austin 1995, writ denied). We do not examine the merits of the case. City of Midland, 33 S.W.3d at 7; see City of Saginaw, 996 S.W.2d at 3. If the petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. City of Midland, 33 S.W.3d at 7; City of Saginaw, 996 S.W.2d at 3; see Texas Ass’n of Bus., 852 S.W.2d at 446; Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.-Austin 1994, writ denied).

In 1989, the Legislature completely revised the Texas workers’ compensation system. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 252 (Tex.1999); see Texas Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504, 510 (Tex.1995). It restructured the administrative process as well as judicial review of commission decisions under that process. See Tex. Lab. Code Ann. §§ 401.001-506.001 (Vernon 1996 & Supp.2004-05) (the Texas Workers’ Compensation Act). Under the former system, courts reviewed final commission decisions under a single de novo standard. Rodriguez, 997 S.W.2d at 252; see Garcia, 893 S.W.2d at 512. The 1989 legislation replaced that standard for judicial review with two different standards, substantial evidence and modified de novo. See Tex. Lab.Code Ann. §§ 410.255, 410.301; Rodriguez, 997 S.W.2d at 252-53; Garcia, 893 S.W.2d at 515. Under the current Act, the nature of the dispute determines the judicial remedy that applies.

If the dispute involves compensability or eligibility for or the amount of income or death benefits, a district court reviews the commission appeals panel decision under a modified de novo standard. See Tex. Lab. Code Ann. § 410.301; Rodriguez, 997 S.W.2d at 253; see also Garcia, 893 S.W.2d at 515. The employee’s county of residence usually determines which district court hears the appeal. See Tex. Lab. Code Ann. § 410.252; Rodriguez, 997 S.W.2d at 253. If the dispute concerns something other than compensability or eligibility for or the amount of income or death benefits, a party must appeal the final decision, if it is appealable at all, to the district court in Travis County under the Administrative Procedure Act for a substantial evidence review. See Tex. Lab.Code Ann. § 410.255; see also Tex. Gov’t Code Ann. §§ 2001.171-.178 (Vernon 2000) (the Administrative Procedure Act); Rodriguez, 997 S.W.2d at 253.

B. Proceedings Below

Appellant’s first amended original petition complains of the decision of the appeals panel and attaches a copy of its decision and incorporates it by reference. It is clear that upon review of the decision, that the basis for the appeals panel’s affir-mance of the hearing officer’s findings is that it agreed that the decedent was not an employee of any of the companies and, therefore, the claimant beneficiary was not entitled to benefits. The appeals panel emphasized “[t]he status of being an employee of an insured for which a carrier is liable is an issue of ‘coverage,’ not com-pensability (citations omitted). ‘Coverage’ is a threshold requirement for establishing liability of a carrier.” We agree that the issue decided by the appeals panel was an issue of coverage and, therefore, the issue appealed by Appellant is an issue of coverage. Jurisdiction is proper in Travis County. The trial court was correct in granting the plea to the jurisdiction. We therefore overrule all Appellant’s issues on appeal and affirm the trial court’s dismissal of the case.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.


text:
    Marta MARTINEZ, Appellant, v. CITY OF EL PASO, Appellee.
    No. 08-04-00011-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.
    Rehearing Overruled Aug. 17, 2005.

      Marta Martinez, El Paso, pro se.
    Michele Little Locke, Asst. City Attorney, El Paso, for Appellee.
    Before BARAJAS, C.J.; PARKS, and ABLES (sitting by assignment), JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of a plea to the jurisdiction filed by Appellee against Appellant filed in connection with a challenge to an order of condemnation issued by Appellee against property owned by Appellant. For the reasons stated herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The substantive facts in this case are not disputed. Appellant, Marta Martinez, is the owner of a residence located at 3718 Wickham Avenue in El Paso, Texas. After a fire on the premises in July of 1999, the property was declared unsafe and the condemnation process was begun. A series of hearings were held before the City Council. Appellant appeared before the City Council and requested additional time to complete repairs, asserting that she intended to rehabilitate the property. Finally, on August 12, 2003, the property was condemned and ordered demolished within 30 days.

Appellant, appearing pro se, filed this lawsuit on June 17, 2003, under the nomenclature of a “Petition for Bill of Review” and asserting various claims ostensibly related to the condemnation proceeding, including negligence, undue influence, civil rights violations, duress, and unconscionable conduct notably before the actual order of condemnation was entered by the El Paso City Council. Appellee filed a plea to the jurisdiction based upon the pleadings. A hearing was held and the trial court granted Appellee’s plea to the jurisdiction. Appellant filed a notice of appeal and a brief asserting three issues.

II. ISSUES ON APPEAL

In three issues on appeal, Appellant challenges the court’s granting of the Ap-pellee’s plea to the jurisdiction. Issue No. One appears to complain of Appellee’s failure to allow Appellant to start construction on her homestead. Issue No. Two appears to complain of the Appellee’s actions as a violation of Appellant’s constitutional rights. Issue No. Three complains of Ap-pellee’s actions by stating, “Defendants, City of El Paso, et al. Employees of Building Services over utilized their power within Color of Authority; Color of Office; and Color of Title on October 1, 2003 whereas Appellant calls ‘Physical Raid’ or Legally Term Search & Seizure with two El Paso Police Officers; one El Paso Detective and several bulldozers with ‘NO EMERGENCY’ status of ‘Condemnation of Property’ was established by the defendants within Article 1107 [1003][548] § 3[sic].” (Emphasis Appellant’s).

A. Waiver

Initially, we note that Appellant’s issues are minimally briefed and do not properly preserve error for review by this Court. Appellant’s issues do not direct this Court’s attention to any specific error on which she bases her complaint. See Tex.R.App. P. 38.1(e). A complaint on appeal must address specific errors and not merely attack the trial court’s order in general terms. McGuire v. McGuire, 4 S.W.3d 382, 385 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.-Austin 1996, no writ). The argument does not cite to any cases which support an appellate argument, though copies of three cases addressing unrelated issues are attached in the appendix. See Tex.R.App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 125-26 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex.R.App. P. 38.1(g). Rule 38 requires Appellant to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such attenuated, unsupported argument, Appellant waives her complaints and we overrule Issue Nos. One, Two, and Three.

Further, having determined that all Appellant’s issues should be overruled, we note, considering the merits, we also affirm the trial court’s decision.

B. Plea to the Jurisdiction

A plea to the jurisdiction is a dilatory plea by which a party contests the trial court’s authority to determine the subject matter of the cause of action. Texas Dept. of Transp. v. Arzate, 159 S.W.3d 188, 190 (Tex.App.-El Paso 2004, no pet.); City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.-Fort Worth 1999, pet dism’d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Arzate, 159 S.W.3d at 190; Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Saginaw, 996 S.W.2d at 2. In the context of suit against a governmental unit, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Arzate, 159 S.W.3d at 190; Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999); Missouri Pac. R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex.1970); Texas Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex.App.-Dallas 1998, no pet.).

C.Standard of Review

Subject matter jurisdiction is a legal question which we review de novo. Arzate, 159 S.W.3d at 190; City of Saginaw, 996 S.W.2d at 2; Texas Dep’t of Health v. Doe, 994 S.W.2d 890, 892 (Tex. App.-Austin 1999, pet. dism’d by agr.). We look solely to the allegations in the petition and accept them as true. Arzate, 159 S.W.3d at 190; see City of Saginaw, 996 S.W.2d at 2-3; Firemen’s Ins. Co. of Newark, N.J. v. Board of Regents of University of Texas System, 909 S.W.2d 540, 541 (Tex.App.-Austin 1995, writ denied). We do not examine the merits of the case. Arzate, 159 S.W.3d at 190; see City of Saginaw, 996 S.W.2d at 3. If the petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. Arzate, 159 S.W.3d at 190; City of Saginaw, 996 S.W.2d at 3; see Texas Ass’n of Bus., 852 S.W.2d at 446; Liberty Mut. Ins. Co.v. Sharp, 874 S.W.2d 736, 739 (Tex.App.-Austin 1994, writ denied).

D.Review of Condemnation Action

Section 214.0012 makes clear that the appeal from an order of a municipality issued under the Local Government Code for condemnation or demolition of substandard and dangerous buildings is by writ of certiorari. Tex. Loc. Gov’t Code Ann. § 214.0012(a), (b) (Vernon Supp. 2004-05); Nussbaum v. City of Dallas, 948 S.W.2d 305, 308 (Tex.App.-Dallas 1996, no writ); J.B. Advertising, Inc. v. Sign Bd. of Appeals, 883 S.W.2d 443, 446 (Tex.App.-Eastland 1994, writ denied) (review under section 216.014 is by writ of certiorari). Section 214.0012(a) provides the requisites of the petition for writ of certiorari, which are that it be verified and that it “[set] forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality.” Tex. Loc. Gov’t Code Ann. § 214.0012(a); Nussbaum, 948 S.W.2d at 308. Section 214.0012(b) states that “[o]n the filing of the petition, the court may issue a writ of certiorari directed to the municipality....” Id. § 214.0012(b); Nussbaum, 948 S.W.2d at 308.

Under section 214.0012, the procedure for obtaining review of an order of condemnation is by filing a verified petition in the district court alleging illegality and requesting the issuance of the writ of certiorari. Thus, the duty to request the issuance of a writ of certiorari is on the party aggrieved by the administrative order. Cf. Tex.R. Civ. P. 577 (application for writ of certiorari to justice court); Nuss-baum, 948 S.W.2d at 308. In this case, Appellant is the party aggrieved by the administrative order. Appellant filed a document entitled a “Petition for Bill of Review,” but she never filed a petition for writ of certiorari or in any way requested issuance of a writ of certiorari. Because Appellant never requested a writ of certio-rari, the trial court never issued one. She has failed to comply with the statutory prerequisite to establish jurisdiction, consequently, jurisdiction cannot lie with this Court as a matter of law.

E.Substantial Evidence Review

The standard of review of the Ap-pellee’s order is the substantial evidence rule. See Tex. Loc. Gov’t Code Ann. § 214.0012(f) (Vernon Supp.2004-05). In reviewing an administrative action under the substantial evidence rule, the decision of the administrative agency is presumed valid and supported by substantial evidence. See Office of Pub. Util. Counsel v. Public Util. Comm’n, 895 S.W.2d 712, 714 (Tex.App.-Austin 1993), rev’d on other grounds, 878 S.W.2d 598 (Tex.1994). The party contesting the order has the burden of presenting sufficient evidence to prove otherwise. See id.

In this case, Appellant failed to file a petition for writ of certiorari or to request the issuance of a writ of certiorari to obtain the administrative record. With no evidence in the record showing the invalidity of the agency’s order, we presume that it is valid and supported by substantial evidence. Nussbaum, 948 S.W.2d at 308. Appellant’s contentions that the Appellee acted improperly in the administrative process leading up to the issuance of an order of condemnation lacks merit.

F. Allegations in Tort

We also conclude that the trial court properly granted the plea to the jurisdiction based on sovereign immunity. Appellant failed to comply with the statutory condition precedent which conferred proper subject matter jurisdiction to bringing suit for torts against a governmental entity. Generally, litigants are permitted to amend to cure pleading defects when the pleadings do not allege sufficient jurisdictional facts. See Texas Ass’n of Bus., 852 S.W.2d at 446; City of Midland v. Sullivan, 33 S.W.3d 1, 7 (Tex. App.-El Paso 2000, pet. dism’d w.o.j.). Here, there is no pleading defect; the pleadings and the evidence affirmatively show that all complaints presented concern the administrative decisions made by the City Council for the City of El Paso, for which the City retains immunity from suit, under Section 101.056 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.056(2) (Vernon 2005). The only complaints related to the condemnation process must have been brought pursuant to a properly filed writ of certiorari in compliance with the requirements of Texas Local Government Code Section 214.0012(a). The failure to do so is jurisdictional. Because it is impossible for Appellant to amend her pleadings to invoke jurisdiction, her suit must be dismissed. See City of Midland, 33 S.W.3d at 7.

Having overruled all of Appellant’s issues on review, we affirm the judgment of the trial court.


author: ANN CRAWFORD McCLURE, Justice.

text:
    Ivonne PADILLA, Appellant, v. Peter MASON and Jaeson Jones, Appellees.
    No. 08-03-00123-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.

      Gina Palafox, El Paso, for appellant.
    Seth Byron Dennis, Asst. Atty. Gen., Austin, for appellees.
    Before Panel No. 4, BARAJAS, C.J., and McCLURE, J.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This case involves Ivonne Padilla’s claim that two Texas Department of Public Safety troopers, Peter Mason and Jaeson Jones, used excessive force against her during a traffic stop, resulting in personal injuries. Padilla brought suit against Mason and Jones asserting both federal and state law claims. The trial court granted summary judgment in favor of Mason and Jones on their affirmative defenses of qualified immunity and official immunity. We affirm.

AFFIRMATIVE DEFENSES

In her first two issues, Padilla contends that Mason and Jones failed to establish that there is no genuine issue of material fact as to one or more essential elements of the affirmative defenses of qualified immunity and official immunity.

Standard of Review

The issue on appeal is whether Mason and Jones, as the movants, met their summary judgment burden by establishing that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. See tex.R.CivP. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); Wallace v. Moberly, 947 S.W.2d 273, 275 (Tex.App.-Fort Worth 1997, no writ). We will resolve all doubts about the existence of a genuine issue of material fact in favor of the non-movant, Padilla. Wallace, 947 S.W.2d at 275, citing Cate, 790 S.W.2d at 562. Therefore, we must view the evidence and its reasonable inferences in the light most favorable to her. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, 47 (Tex. 1965); Wallace, 947 S.W.2d at 275. In deciding whether there is a material fact issue precluding summary judgment, we will disregard conflicts in the evidence and accept evidence favorable to Padilla as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Wallace, 947 S.W.2d at 275. We will not consider evidence that favors the position of Mason and Jones unless it is uncontro-verted. Great Am., 391 S.W.2d at 47; Wallace, 947 S.W.2d at 275.

Facts

Padilla is a United States Border Patrol agent. On the evening of November 17, 2000, Padilla and her fiancé, Rafael Ramirez, who is also a Border Patrol agent, went to a nightclub in El Paso. Ramirez drank three beers and Padilla drank two. They left the club and drove to Horizon City to find a friend, but they were unsuccessful and returned to El Paso. At around 2 a.m., DPS Trooper Peter Mason pulled the car over for speeding. At Mason’s request, Ramirez exited the vehicle and stood outside of his car. When Ramirez produced his driver’s license, Mason saw his Border Patrol badge. Ramirez told Mason that both he and Padilla were Border Patrol agents and that he had been drinking that evening. Mason noted that the vehicle had no front license plate, and that both the registration and inspection stickers had expired. Mason noticed that Ramirez appeared tired and asked whether someone else could drive the car. Ramirez replied that Padilla could drive. When Mason learned that Padilla had also been drinking that evening, he decided to ascertain whether she was capable of driving. He did not tell either Ramirez or Padilla that this was his intention.

Mason approached the passenger side of the vehicle, opened the door, and asked Padilla whether she could drive the car. Padilla had heard none of the exchange between Mason and Ramirez, as they had been standing outside of the car and she had remained inside. Mason, who had seen empty beer bottles in the car when Padilla exited, asked Padilla whether she had been drinking, and she replied that she had. Mason told her that he wanted to perform a field sobriety test but he did not explain why. Padilla became upset and argumentative because she did not understand why he was doing the field sobriety test when she had not been driving the car. Mason explained the instructions for the horizontal gaze nystagmus test (HGN). He became frustrated with Padilla because she did not follow his instructions. Rather than following his finger with just her eyes, Padilla moved her entire head. In an angry, condescending tone, Mason told Padilla not to move her head, but she still did not follow his instructions. Because of Mason’s demeanor and tone of voice, Padilla felt fearful and uneasy, and she did not understand why he was treating her that way.

Due to Padilla’s demeanor, Mason asked whether she had her service weapon with her. When Padilla hesitated, Mason feared for his safety and decided to conduct a pat-down search. Mason placed his flashlight on the hood of the car and asked Padilla to turn around toward the vehicle so that he could perform a pat-down. In his deposition and summary judgment affidavit, Mason explained that as he reached for Padilla’s left elbow with his left hand in order to guide her around, she quickly pulled away and brought her arm up toward his neck and head, stating “You will not arrest me.” Mason quickly turned Padilla around and attempted to secure her arms. He secured her left arm and placed it in an arm bar but Padilla continued to push back against him in what appeared to be an attempt to free herself. Mason pulled Padilla’s left wrist and arm behind her back and pushed her wrist up her back in an effort to stop her from struggling. During the struggle, Mason heard a “pop,” and he told Jones, who arrived on the scene shortly before the struggle, that he thought he had broken Padilla’s arm. He was quite correct, as Padilla suffered a spiral oblique fracture of her humerus bone which required surgical repair and insertion of a metal plate.

Padilla had a different view of the events which led to her injury. Mason did not ask her about her duty weapon when he asked her to turn around nor did he tell her that he was going to do a pat-down. When Mason asked Padilla to turn around, she asked him why he was arresting her because she knew she had not violated the law. Padilla recalled that Mason asked her to turn around after he was already physically turning her, and “it happened very fast and all of a sudden he’s, like, on top of me, practically.” Mason grabbed Padilla’s arms and turned her around, and she felt pain in her left arm when he pulled it behind her back. Although she repeatedly told Mason that he was hurting her arm, he would not stop. Padilla’s next memory was that she slumped to the ground in pain, and was pulled to her feet and handcuffed.

The record includes a videotape of the encounter. Mason and Jones rely heavily on this videotape to support their contention that Padilla resisted Mason’s attempt to perform a pat-down, leading to her restraint and injury. Due to officer error, there is no audio during Mason’s approach, the attempted sobriety test, or the struggle between Mason and Padilla. The video shows Mason and Padilla facing each other beside the passenger door, with Mason shining his flashlight in Padilla’s face, presumably in an attempt to perform the HGN test. Padilla can be seen motioning with open hands just below her waist. Mason reached behind Padilla, slowly set his flashlight on the car, and attempted to turn her around. As he touched Padilla’s arms, she suddenly jerked away and one of her arms flailed towards Mason’s upper body and face. Mason grabbed her arms, twisted her around, and shoved her into the side of the car three times. With each impact, the two moved closer to the rear of the car, until Padilla slumped to her knees. Her left arm hung limply at her side from this time forward. The physical confrontation between Padilla and Mason lasted approximately nine seconds. Jones then appeared in the video and momentarily grasped Padilla by her left arm. The troopers then handcuff Padilla’s good arm to her jeans and Mason conducted a pat-down search.

Audio is first heard on the tape after Mason returned to his patrol car. Mason requested that EMS be dispatched because he thought a “subject’s arm is broken.” Padilla, concerned that she would get in trouble with her employer, told the troopers that she just wanted to go home. Mason explained that he only wanted to determine whether she could drive the vehicle and states, “... you started freaking out on me.” Ramirez, who was standing nearby, reiterated, “... babe, and you freaked out.”

In a separate discussion, Mason told Jones twice that he thought he broke Padilla’s arm and Jones advised him to not say anything. Jones mentioned that both Ramirez and Padilla had been stopped before for speeding, and cautioned Mason, “you need to cover yourself.” Jones also advised Mason that he needed to call a supervisor. But rather than calling a DPS supervisor, Mason called a Border Patrol supervisor.

While the troopers waited for the supervisor, EMS arrived and evaluated Padilla. Mason told the EMS attendant that he placed Padilla under arrest and twisted her arm behind her because she struggled with him. Padilla immediately disputed Mason’s statement that she had struggled. The EMS attendant was unsure whether Padilla’s arm was broken or dislocated and recommended that it be x-rayed. Padilla refused to be transported by EMS to the hospital.

While EMS attended to Padilla, Mason asked Ramirez whether there were any weapons in the car. Ramirez replied that there were none and Mason seemed satisfied with Ramirez’s answer. When Jones asked Mason what happened, he gave his version of events:

When I told her to put her — hold her hands like this, she goes, you know, you’re trying to make me look stupid. ... I said, ma’am, I’m trying to get your head to stop moving. Every time I say, watch my finger, you move your whole head_ She wouldn’t do it. She just — and then I said, ma’am, turn around. Turn around. So she started getting loud and boisterous. And I was like, at this point, you know, federal agent or not, you — fuck that. You know, I don’t know if you’ve got your gun on you or not, but I said, ma’am, turn around. And when I grabbed her hand — you’re arresting me? And just started — you know, I’m like, ah shit. And then I grabbed her. And then when I grabbed her, wham, pop, and I held her right there.

When the Border Patrol supervisor, Captain Ron LeBlanc, arrived, Mason gave the following explanation about what had happened:

[Mason]: Pulled them over for speeding.
[Captain LeBlanc]: Okay.
[Mason]: 70 in a 55. Get them out, talk to them a little bit, find out he’s a little bit intoxicated.
[Captain LeBlanc]: All right.
[Mason]: Then I — and so that I don’t have him drive, I want to see if she can drive the car.
[Captain LeBlanc]: Uh-huh.
[Mason]: And I go to talk to her, she don’t want to follow any instructions I give her. And then when I told her to hold her head straight, she got pissed.
[Captain LeBlanc]: Is he armed? Is he carrying a gun?
[Mason]: No, neither one of them are armed.
[Captain LeBlanc]: Did you pat them down?
[Mason]: No, I didn’t pat them down.
[Captain LeBlanc]: Are both of them agents?
[Mason]: Yes.
[Captain LeBlanc]: They’re both agents?
[Mason]: Yep. She tended to get — she just went ballistic and started getting upset and loud. And I said, Ma’am, if you don’t calm down, you know, I’m going to have to place you in handcuffs. She didn’t want to do it, so I end up— said, Okay. So I grabbed her by her hand. As I turned her around, she said, You ain’t — you ain’t arresting me. And she turned around and started trying to fight, and then that’s when I threw her over the car, and I think that I may have — I don’t know — broke her arm or popped it out of socket or something, but we called EMS. They were already out here. They checked her for her arm, put her in a sling. She refused to go with them—
[Captain LeBlanc]: Okay.

Mason and Jones released Ramirez and Padilla to Captain LeBlanc and left the scene. Mason notified his supervisor about the incident after returning to the DPS office with the videotape, approximately thirty minutes after he left the scene. Mason intended to file resisting arrest and public intoxication charges against Padilla, but his superiors decided not to file any charges against Ramirez or Padilla and ordered Mason not to do so.

Qualified Immunity — Federal Claims

Padilla sued Mason and Jones in their individual capacities for excessive force and false arrest pursuant to 42 U.S.C. § 1983. She alleged that they used unreasonable force in violation of her right to be free from unreasonable seizures under the Fourth Amendment and that they subjected her to an unreasonable restraint of her person without due process in violation of her rights under the Fifth Amendment. In response to these federal claims, Mason and Jones moved for summary judgment on the ground of qualified immunity.

Qualified immunity is an immunity from suit available to government officials sued in their individual capacities under section 1983. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Scott v. Britton, 16 S.W.3d 173, 180 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Government officials performing discretionary functions have qualified immunity from a suit for damages so long as the ofScial’s conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware. See Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 1699, 143 L.Ed.2d 818 (1999); Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Whether an official can be held personally liable for taking an allegedly unlawful action turns on the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the time the action was taken. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Qualified immunity shields an officer if a reasonable officer could have believed the action to be lawful in light of clearly established law and the information the officer possessed. Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991); Anderson, 483 U.S. at 641, 107 S.Ct. at 3040.

In conducting a qualified immunity analysis, we engage in a two-part test: (1) whether the plaintiff has alleged a violation of a clearly established constitutional right; and (2) whether the official’s conduct was objectively reasonable at the time of the incident. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001); Wilson, 526 U.S. at 609, 119 S.Ct. at 1697. The threshold question is whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the officer’s conduct violated a constitutional right. Saucier, 533 U.S. at 201,121 S.Ct. at 2156. If the facts do not show a constitutional violation, the official is entitled to immunity. Id. If, on the other hand, violation of a constitutional right is shown by the facts alleged, the next step is to determine whether that right was clearly established at the time of the alleged violation. Id.

In her amended petition, Padilla alleged that Mason, without provocation, shoved her into the side of the vehicle, twisted her arm behind her and continued to apply force while knowing that he had injured her arm. With respect to Jones, she alleged only that he kept her handcuffed during the duration of the traffic stop. Padilla alleged that the force used by Mason and Jones was unreasonable under the circumstances and violated her Fourth Amendment right to be free from of an unreasonable seizure. The use of force violates the Fourth Amendment if it is excessive under objective standards of reasonableness. Saucier, 533 U.S. at 201-02, 121 S.Ct. at 2156; see Graham, 490 U.S. at 395, 109 S.Ct. at 1871. But the analysis does not end there, because we must still consider whether the right allegedly violated was clearly established in a more particularized sense. See Saucier, 533 U.S. at 202, 121 S.Ct. at 2156; see Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3039. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Saucier, 533 U.S. at 202, 121 S.Ct. at 2156. The relevant, dis-positive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. Placing the issue in the context of this case, the relevant inquiry is whether it would be clear to a reasonable officer that it was unlawful to use force against Padilla under the circumstances.

Three legal concepts come into play in this case: probable cause, temporary detention based on reasonable suspicion, and pat-down search. An officer has probable cause to make an arrest when the facts and circumstances within the officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to warrant a person of reasonable caution to believe that a particular person has committed or is committing an offense. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975); Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991). An officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possibly-criminal behavior where the officer can “point to specific and articu-lable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Further, a state official who detains a person briefly for investigation may conduct a limited pat-down search of that person if the official has a reasonable belief that the person detained poses a threat to the official’s safety or the safety of others. See Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The same standards will apply whether the person detained is a pedestrian or is the occupant of an automobile. See Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App.1978). We also must bear in mind that the right to make an arrest or investigatory stop “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872. During a temporary detention, officers may use such force as is reasonably necessary to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim.App.1997).

The uncontroverted summary judgment evidence established that probable cause existed to stop Ramirez for speeding. During the course of his brief investigation, Mason learned that Ramirez, who appeared noticeably tired, had been drinking. Ramirez also told Mason that Padilla had been drinking. Although Ramirez did not exhibit any signs of intoxication, he admitted to Mason that he was tired. At this point, Mason became concerned about Ramirez’s ability to safely operate the vehicle and he decided to ascertain whether Padilla was capable of driving. When Padilla exited the vehicle, Mason saw empty beer bottles in the passenger side floorboard and Padilla had the odor of alcohol on her breath and exhibited other signs of intoxication. Padilla did not follow Mason’s instructions for the field sobriety test and became increasingly upset and argumentative. According to Jones, Padilla was yelling at Mason in an aggressive manner when Jones arrived on the scene. At this point, a reasonable peace officer had reasonable suspicion to investigate whether Padilla had committed public intoxication.

The evidence is conflicting whether Mason then asked Padilla if she had her weapon with her. But given Padilla’s aggressive demeanor and the possibility that she had her weapon with her, a reasonable peace officer could have concluded that conducting a Terry pat-down search for weapons was both necessary and appropriate. A reasonable officer could have also believed that the circumstances permitted the handcuffing of Padilla during the remainder of the investigative detention in order to maintain the status quo and ensure his safety. When Mason touched Padilla’s elbow in an effort to turn or guide her around to face the vehicle, she pulled her arm away, nearly striking Mason in the upper body, and stated, “You will not arrest me.” At that point, a reasonable law enforcement officer would have believed that he had probable cause to arrest Padilla for resisting arrest and was authorized to use force to secure the arrest.

Jones did not appear on the video until after the injury had occurred. While he initially grasped Padilla by the injured arm to lift her from her knees into a standing position, he let go after a couple of seconds and did not touch the arm again. There was no evidence that Jones knew Padilla’s arm was broken at the time he attempted to lift her to a standing position. In fact, the summary judgment evidence established that Jones did not know until later that Padilla’s arm had been injured. Under these facts, a reasonable officer could have believed that it was appropriate to lift Padilla to her feet. The summary judgment evidence also established that Jones maintained the handcuff on Padilla’s uninjured arm for the duration of the roadside detention. A reasonable peace officer could have believed that it was proper to handcuff Padilla either because probable cause existed to arrest her for resisting arrest or to ensure the officer’s safety and maintain the status quo during the remainder of the detention.

Because there was no clearly established rule which would prohibit Mason from using the force that he did, he is entitled to qualified immunity. Likewise, there was no clearly established rule that would prohibit Jones from briefly grasping Padilla’s injured arm before he knew it was injured or from maintaining a handcuff on Padilla’s uninjured arm during the continuing investigation. The trial court did not err in granting summary judgment in favor of both troopers on the ground of qualified immunity. Issue One is overruled.

Official Immunity — State Claims

Padilla sued Mason and Jones for false arrest, defamation, intentional infliction of emotional distress, and assault and battery. The troopers asserted official immunity as an affirmative defense to these state law claims.

Official immunity is an affirmative defense that shields governmental employees from personal liability so that they are encouraged to vigorously perform their official duties. Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex.2002). It is designed to protect public officials from being forced to defend their decisions that were reasonable when made, but upon which hindsight has cast a negative light. Id. at 463. Official immunity is particularly appropriate and necessary in police work, where officers must be free to make split-second judgments based on their experience and training, without fear of personal liability. Id. A governmental employee is entitled to official immunity for (1) the performance of discretionary duties (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith. Id. at 461. To obtain summary judgment on the basis of official immunity, a governmental employee must conclusively establish each of these elements. Id.

In Telthorster, the Texas Supreme Court enunciated the good-faith standard to be applied when a police officer is sued for injuries inflicted during an arrest. Id. at 459. Noting that its approach to good faith has been shaped by “a desire to avoid overdeterrence of energetic law enforcement,” the court considered the balance to be struck between the competing interests of unflinching law enforcement and the right of citizens to recover for injuries caused by unreasonable conduct. Id. at 468-64. The court found that the inherent risks to the general public previously considered in cases involving high-speed chases are not implicated in cases involving injuries during an arrest. Id. at 464. Official immunity’s underlying purpose to encourage energetic law enforcement is most salient in the context of street-level police work, which frequently requires quick and decisive action in the face of volatile and changing circumstances. Id. During arrest situations, officers routinely are forced to make split-second judgments in circumstances that are tense’ uncertain, and rapidly evolving. Id. Arresting officers often confront at close range suspects whose violent intentions and capabilities may not be readily apparent. Id. A high risk of liability would likely compel arresting officers to act hesitantly when immediate action is required, subjecting themselves and the public to unnecessary risks. Id. Based on these policy considerations, the court held that when an officer is engaged in an arrest that results in injury to the suspect, a particularized need/risk assessment is not compelled in light of official immunity’s overriding purpose to reduce the threat that civil liability may deter arresting officers from acting with the decisiveness and judgment required by the public good. Id.

In cases such as this one, the officer asserting official immunity must still prove good faith but without the need/ risk assessment designed to protect the general public. Id. at 465; City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex.1994). The court formulated the following good faith test: the defendant must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that his or her conduct was justified based on the information he possessed when the conduct occurred. Telthorster, 92 S.W.3d at 465. The defendant need not prove that it would have been unreasonable not to engage in the conduct, or that all reasonably prudent officers would have engaged in the same conduct. Id. Rather, he must prove only that a reasonably prudent officer, under similar circumstances, might have reached the same decision. Id. That the defendant was negligent will not defeat good faith; this test does not inquire into “what a reasonable person would have done,” but into what a “reasonable officer could have believed.” Id.

Once the officer meets that burden, the plaintiff must do more than show that a reasonably prudent officer could have reached a different decision. Id. Instead, the plaintiff must offer evidence that no reasonable officer in that position could have believed that the facts justified the conduct. Id. If officers of reasonable competence could disagree on this issue, the officer acted in good faith as a matter of law. Id.

Padilla does not dispute that Mason and Jones were performing discretionary duties within the scope of each trooper’s employment. Therefore, the only issue is whether the troopers conclusively established the good faith element.

Trooper Mason’s Good Faith Evidence

Mason’s summary judgment evidence included the affidavit of Albert Rodriguez, Commander of the Training Academy for the Texas Department of Public Safety. Rodriguez reviewed the videotape, in slow motion and frame-by-frame; Padilla’s original complaint; the oral depositions of Padilla, Ramirez, Mason, Jones, and Thomas Mandarino (Mason’s supervisor); and DPS Internal Affair’s investigation of the incident. Rodriguez concluded:

(1) the initial stop for speeding was based on probable cause;
(2) Mason acted reasonably in asking whether the passenger could drive given Ramirez’s statements that he had been drinking and was tired;
(3) any reasonable law enforcement officer could have believed that Padilla might also be too tired to drive or intoxicated;
(4) reasonable suspicion existed to investigate whether Padilla was intoxicated;
(5) given that Padilla exhibited signs of intoxication, she became agitated and uncooperative, and Mason knew Padilla was a Border Patrol agent, any reasonable law enforcement officer could have believed that Padilla was armed with an off-duty weapon;
(6) under these circumstances, any reasonable law enforcement officer could have believed that it was necessary to conduct a “pat-down” search to ensure the officer’s safety;
(7) the frame-by-frame view of the incident shows that Padilla physically resisted Mason’s attempt to turn her around;
(8) probable cause existed to arrest Padilla for resisting the pat-down search pursuant to Section 38.03 of the Penal Code;
(9) Mason brought Padilla’s left arm behind her back, a technique known as “joint manipulation,” to gain control of Padilla and handcuff her;
(10) the joint manipulation technique is a type of “weaponless control” and is the lowest level of physical force as outlined in TCLEOSE’s use of force continuum;
(11) Mason’s use of force was justified, necessary, and legal under Section 9.51 of the Penal Code;
(12) any reasonable and prudent law enforcement officer could have taken the same or similar actions when presented with the same or similar circumstances; and
(13) Mason’s actions were objectively reasonable, discretionary, within the course and scope of his authority and conducted in good faith.

The summary judgment evidence, including Rodriguez’s affidavit, conclusively demonstrates that a reasonably prudent officer could have believed that it was necessary to conduct a pat-down search, and a reasonably prudent officer might have decided to use force to gain physical control of Padilla and handcuff her after she resisted the officer’s attempt to search her.

Trooper Jones’ Good Faith Evidence

Padilla did not assert in her petition that Jones used force against her. Instead, she complained that he maintained a handcuff on her uninjured arm during the remainder of the detention. Rodriguez concluded that there was no objective evidence to indicate that Jones used force or falsely arrested Padilla. Given that probable cause existed to arrest Padilla for resisting arrest and she continued to struggle against Jones even while handcuffed, a reasonably prudent officer could have believed that maintaining physical custody of Padilla was appropriate.

Padilla’s Evidence

In response, Padilla offered an expert witness affidavit by Harry Kirk, who holds an instructor’s license from TCLEOSE and has twenty-seven years of law enforcement experience. Based on his review of the videotape, Kirk concluded that Padilla did not pose a threat to the safety of the officers to justify their use of a degree of force sufficient to cause a broken arm or to exacerbate her injury. The affidavit additionally stated that “no objectively reasonable officer under the same or similar circumstances would have continuously applied the level of force as was used against Ivonne Padilla under the circumstances depicted.... ” But the affidavit fails to satisfy Telthorster because it does not establish that no reasonable officer could have believed, under the circumstances, that Padilla posed a potential threat, that it was necessary to conduct a pat-down search, and that Padilla’s resistance to the search justified the use of force. It does not establish that the circumstances were such that no reasonable officer could have believed that the defendants’ conduct was justified. At best, Kirk’s affidavit shows only that reasonably competent officers could disagree as to whether the use of force was objectively reasonable.

The facts here demonstrate the tension between protecting the rights of a citizen and protecting public officials from private liability for zealously performing their official duties. We are troubled by the missing audio, by Jones’ warnings that Mason “cover himself,” and by Mason’s inconsistent stories. We have noticed the not-so-veiled reference to turf struggles between various law enforcement agencies and Mason’s decision to summon Padilla’s supervisor rather than his own. And we are frankly appalled at Padilla’s uncontrovert-ed testimony that one of the troopers told her that she “deserved” the broken arm. That being said, we must conclude that Padilla’s summary judgment evidence falls short of Telthorster’s requirements. For the foregoing reasons, Issue Two is overruled. We affirm the judgment of the trial court.

      . Padilla disputed that Mason asked her about her duty weapon at this point in the stop. She recalled that he did not ask her about her weapon "until the very end of the stop; not the beginning, when I spoke to him....” Padilla did not have her weapon with her.

      . Jones drove by the scene at 2:14 a.m. and saw that Mason had two subjects out of the vehicle and separated. Consequently, he drove up to see if Mason needed assistance.

      . DPS regulations required Mason to immediately notify his supervisor regarding a traffic stop involving another law enforcement agency. Mason was subsequently reprimanded for violating this regulation.

      . Mason subsequently gave a sworn statement to his supervisor that he did not believe Ramirez was intoxicated, only tired. He stated the same conclusion during his deposition.

      . This is another example of the shifting explanations Mason offered concerning his conduct.

      . Padilla’s petition did not allege that Jones used force.

      . The petition additionally alleged that she was deprived of her liberty without due process in violation of the Fifth Amendment. A claim that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure” of a free citizen is properly analyzed under the Fourth Amendment’s "objective reasonableness” standard, rather than under the substantive due process approach. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989).

      . A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. Tex.Penal Code Ann. § 49.02 (Vernon 2003).

      . A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer from effecting an arrest, search, or transportation of the actor by using force against the peace officer. TexPenal Code Ann. § 38.03(a)(Vernon 2003). It is no defense to prosecution under Section 38.03 that the arrest or search was unlawful. TexPenal Code Ann. § 38.03(b)(Vernon 2003).

      . In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the accused. TexCode Crim.Proc. Ann. art. 15.24 (Vernon 2005).

      . In Issue Three, Padilla asserts that Mason and Jones failed to disprove at least one essential element of each of her causes of action. Given our resolution of Issues One and Two, it is unnecessary to address the third issue.


text:
    DICK POE MOTORS, INC., Appellant, v. DAIMLERCHRYSLER CORPORATION f/k/a Chrysler Corporation, Appellee.
    No. 08-04-00080-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.

      Mark C. Walker, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellant.
    Carlos Rincon, Delgado, Acosta, Braden & Jones, P.C., El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s entry of an agreed order of dismissal entered by the trial court on December 1, 2008 and the denial of a motion for clarification dated February 17, 2004. On the court’s own motion, we dismiss this appeal for the reason that the order appealed from is not a final appealable order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The original lawsuit in this case arose as a result of a tragic automobile accident where the plaintiff, Jennifer Ann Lee, as mother of Alyssa Catlin Lee, deceased, brought suit against various corporate defendants, DaimlerChrysler Corporation, formerly known as Chrysler Corporation (“Chrysler”), TRW, Inc. (“TRW”), and Dick Poe Motors (“Dick Poe”), doing business as Dick Poe Chrysler Plymouth. Dick Poe filed a cross-action against Chrysler and TRW. The underlying personal injury claims against each corporate defendant were ultimately settled and various orders of dismissal were entered disposing of portions of the lawsuit. The trial court signed an agreed order of dismissal on December 1, 2008 which disposed of the claims between the plaintiff and Chrysler. The pertinent part of the order was worded as follows:

On the date hereinafter shown, came on to be heard the Motion by JENNIFER ANN LEE, Individually, as Independent Administratrix of the ESTATE OF ALYSSA CATLIN LEE, a Minor, Deceased, and on Behalf of All Wrongful Death Beneficiaries of ALYSSA CAT-LIN LEE, a Minor, Deceased, Plaintiff, and DAIMLERCHRYSLER CORPORATION, f/k/a CHRYSLER CORPORATION, Defendants, to dismiss any and all claims by and between them in their entirety with prejudice with each party to bear its own attorneys fees and costs for the reason that all matters in dispute between them have been fully and finally settled.
IT IS, THEREFORE, ORDERED that any and all counter-claims, cross-claims, and any and all other claims of any type whatsoever by and between the parties herein are dismissed in their entirety with prejudice with each party to bear its own attorneys fees and costs.
SIGNED this 1 day of Dec [sic], 2003.
/s/ Luis Aguilar JUDGE LUIS AGUILAR

The order was signed, approved as to form, by Evelina Ortega, attorney for the plaintiff, and Patrick Seyferth, attorney for Chrysler, only.

A dispute among the parties arose over the effect of the December 1 order and Dick Poe filed a “Motion for Clarification Regarding Order of Dismissal Between Plaintiff and DaimlerChrysler Corporation,” specifically questioning the effect of the agreed order of dismissal signed by the court on December 1, 2003. On February 17, 2004, the trial court held a hearing and entered an order that stated the following:

IT IS ORDERED that Dick Poe Motor, [sic] Inc.’s Motion for Clarification is hereby denied on the basis that Dick Poe Motor, [sic] Inc. abandoned or waived its cross-claims against Defendants DaimlerChrysler Corporation and TRW, Inc.
SIGNED on this 17 day of Feb, 2004.
/s/ Luis Aguilar Judge Presiding

On March 18, 2004, Dick Poe filed its notice of appeal, asking this Court to determine whether the orders of December 1, 2003 and February 17, 2004 provided a final appealable order for purposes of appeal. We filed this notice of appeal under cause number 08-04-00080-CV. After a review of the appellate record, we hold that they do not.

II. ORDER ON APPEAL

Unless otherwise statutorily authorized, an appeal may be taken only from a final judgment or order. Tex. Civ. PitAC. & Rem.Code Ann. §§ 51.012, 51.014 (Vernon 1997 & Supp.2004-05). A judgment or order is final for purposes of appeal if it disposes of all parties and all issues in the record so that no further action is required by the trial court, except as necessary to carry out the decree. Leh-mann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Absent a conventional trial on the merits, a judgment is final “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Id. at 192-93. The law does not require that a final judgment be in any particular form. Id. at 195. The language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. Id. at 200. If the intent to finally dispose of the case is clear, “then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment.” Id. Granting more relief than necessary makes the order reversible but not interlocutory. Id. at 204. However, in Leh-mann, the court conceded that to determine whether an order disposes of all pending claims and parties, an appellate court may also look to the record from the court below. Id. at 205-06. Therefore, whether a decree is a final judgment must be determined from its language and the record in the case. Id. at 195.

The orders at issue here are confusing and imprecise in the wording contained therein. We note that the December 1, 2003 order specifically is limited to the parties identified in the introductory paragraph, the movant, Jennifer Ann Lee, Individually as Independent Administratrix of the Estate of Alyssa Catlin Lee, a Minor, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Alyssa Catlin Lee, a Minor, Deceased, Plaintiff, and DaimlerChrysler Corporation, fik/a Chrysler Corporation, Defendant, only. No other parties to the underlying lawsuit are referenced. The agreed order of dismissal purports to “dismiss any and all claims by and between them [emphasis added] in their entirety with prejudice ... for the reason that all matters in dispute between them [emphasis added] have been fully and finally settled. IT IS, THEREFORE, ORDERED that any and all counter-claims, cross-claims, and any and all other claims of any type whatsoever by and between the parties herein [emphasis added] are dismissed ... with prejudice .... ” As noted previously, the only signatories to the agreement are the attorneys for the parties named above. We hold, as a matter of law, that this order does not dispose of any claims brought by other parties to this litigation. The plain language contained therein cannot be construed to have intended to include any claims between any other parties in the lawsuit.

Similarly, the trial court’s order of February 17, 2004, clarifying the December 1, 2003 order, cannot be a final, ap-pealable order for purposes of appeal. The February 17 order on its face, denies Dick Poe’s motion for clarification for the reason that Dick Poe has abandoned or waived its cross-claims against Chrysler and TRW. Nothing in the order dismisses or adjudicates any claim. On its face, it is not a final appealable order because it did not adjudicate all the claims before the trial court. We hold that the order is interlocutory and does not constitute a final and appealable judgment. See, e.g., Luster v. Atkins, Harris, & Brown, L.L.C., No. 01-03-01108-CV, 2005 WL 267666, at *2 (Tex.App.-Houston [1st Dist.] Feb. 3, 2005, no pet. h.).

Pursuant to Tex.R.App. P. 43.2, on its own motion, this Court dismisses this appeal.

      . The parties continued to file various documents in the underlying case which resulted in additional orders. Appellant Dick Poe filed a second notice of appeal from these orders which resulted in a companion case before us, filed under cause number 08-04-00182-CV.


author: Opinion by Justice CARTER.

text:
    LONGVIEW INDEPENDENT SCHOOL DISTRICT, Appellant, v. VIBRA-WHIRL, LTD., Appellee.
    No. 06-05-00038-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted May 24, 2005.
    Decided Aug. 4, 2005.

      Elizabeth L. DeRieux, S. Calvin Cap-shaw, Longview, for appellant.
    Brad W. Gaswirth, David G. Surratt, Canterbury, Stuber, et al, Dallas, for ap-pellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

Vibra-Whirl, Ltd. (VW) and Longview Independent School District (LISD) executed a written contract for the installation of a synthetic turf football field. A dispute arose, and LISD refused to pay VW. VW sued LISD for breach of contract and violation of the Prompt Pay Act, pursuant to Tex. Gov’t Code Ann. § 2251.001-.055 (Vernon Supp.2004-2005). LISD asserted a general denial and a plea to the jurisdiction based on sovereign immunity. On January 28, 2005, the trial court denied LISD’s plea to the jurisdiction and ordered VW to “amend pleadings concerning defendant’s sovereign immunity.” LISD timely filed its notice of interlocutory appeal pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-2005), and moved to stay further proceedings pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 51.014(b) (Vernon Supp.2004-2005). The trial court stayed the proceeding March 16, 2005.

On appeal, LISD raises two issues: 1) did the trial court err in denying LISD’s plea to the jurisdiction, and 2) did VW fail to state a claim pursuant to Tex. Gov’t Code Ann. § 2251. We affirm the trial court’s order regarding the plea to the jurisdiction and find we have no jurisdiction concerning the Chapter 2251 claim.

Standard of Review

Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 183 S.W.3d 217, 225-26 (Tex.2004). We review de novo a plea to the jurisdiction based on sovereign immunity because the question of whether a court has subject-matter jurisdiction is a matter of law. Id. at 226.

1. Governmental Immunity Does Not Bar this Suit

It is well established in Texas that sovereign or governmental immunity protects governmental entities from lawsuits for damages, unless consent is given. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex.2002); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). LISD is a governmental unit and thus is protected from suit by the doctrine of governmental immunity, unless waived. Governmental immunity encompasses two principles: 1) immunity from liability, and 2) immunity from suit. It-Davy, 74 S.W.3d at 853.

Immunity from liability protects the State from judgments even if the Legislature has expressly given consent to the suit. Fed. Sign, 951 S.W.2d at 405. However, when the State contracts, the State is liable on contracts made for its benefit as if it were a private person. Id. Hence, when the State contracts with private citizens, it waives immunity from liability. Id. at 405-06. Here, LISD entered into a written contract with VW for installation of a synthetic turf football field. VW provided services of earth work, concrete work, installing storm drain pipes, a turf system, and all appurtenant work as specified in the contract. By entering the contract, LISD waived its immunity from liability.

Immunity from suit bars a suit against governmental entities unless it expressly gives its consent to the suit. See City of Texarkana v. Cities of New Boston, et al., 141 S.W.3d 778, 785 (Tex.App.-Texarkana 2004, pet. filed). VW argues that LISD has waived its immunity from suit by virtue of Section 11.151 of the Texas Education Code, which provides: “The trustees of an independent school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands.” Tex. Educ.Code Ann. § 11.151 (Vernon Supp.2004-2005) (emphasis added).

The Texas Supreme Court has held that the phrase “sue and be sued” is quite plain and such language “gives general consent” to be sued in Texas courts. Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 458 S.W.2d 812, 813 (Tex.1970). Some courts have differed on the interpretation of the Texas Supreme Court language. For instance, LISD cites City of Dallas v. Reata Construction Corporation for the proposition that the phrase “sue and be sued” merely speaks to a school district’s capacity to sue and be sued when its immunity has been waived. 83 S.W.3d 392, 394 (Tex.App.-Dallas 2002), rev’d on other grounds, No. 02-1031, — S.W.3d - (Tex. Apr. 2, 2004), 2004 WL 726906, 2004 Tex. LEXIS 303.

Since Missouri Pacific’s holding in 1970, the majority of related cases decided by the courts of appeals have similarly held that the words “sue and be sued” provide a general waiver of governmental immunity from suit and the Texas Supreme Court has continued to reaffirm this position. See City of Texarkana, 141 S.W.3d at 786-89. This Court has previously held that Missouri Pacific is binding precedent that the term “sue and be sued” authorizes general consent to sue. Id. at 786 n. 6.

VW argues that the Texas Supreme Court’s decision in Missouri Pacific must now be read in light of more recent pronouncements. After the Missouri Pacific decision, the Texas Supreme Court in Du-hart v. State, 610 S.W.2d 740 (Tex.1980), held that a waiver of immunity from suit must be expressed by the Legislature in clear and unambiguous language. Further, the Legislature enacted Tex. Gov’t Code Ann. § 311.034 (Vernon 2005), which likewise states that a statute should not be construed as a waiver of sovereign immunity unless it was expressed in clear and unambiguous language. VW argues that, in light of these later developments, the language granting school districts the authority to “sue and be sued” does not clearly and unambiguously effect a waiver of sovereign immunity. VW also argues that a more recent Texas Supreme Court case supports this position.

In 2002, the Texas Supreme Court’s discussion of whether another statute clearly and unambiguously waived the State’s immunity from suit turned on the omission of the “sue and be sued” language. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 249 (Tex.2002). The Court reasoned that the statute in question did not waive immunity because “the only language arguably waiving sovereign immunity” (i.e., the “sue and be sued” language) was deleted from the statute, “suggesting that [the Legislature] intended to preserve counties’ immunity from suit.” Id. at 250. VW argues the Texas Supreme Court has now found that the phrase “sue and be sued” only arguably (rather than clearly and unambiguously) supports a waiver of immunity-

We disagree with this interpretation of Pelzel. The Pelzel court continued tracking the history of the interpretation of the language “sue and be sued” and cited Missouri Pacific as holding that it was “quite plain and gives general consent for [Brownsville Navigation District] to be sued in the courts of Texas.” Id. at 251. We are bound by the decision of the Texas Supreme Court in Missouri Pacific; thus, we affirm the trial court’s order denying LISD’s plea to the jurisdiction.

2. No Jurisdiction of Chapter 2251 Claim

LISD argues that VW failed to state a cause of action under Chapter 2251 of the Texas Government Code by failing to assert that it has completed the construction and that thirty days have elapsed since the completion. The trial court denied LISD’s plea to the jurisdiction and ordered VW to amend the pleading concerning LISD’s sovereign immunity. Also, the trial court stayed the proceeding awaiting the outcome of the interlocutory appeal. The trial court refused to hear arguments concerning the Chapter 2251 claim at the plea to the jurisdiction hearing. The trial court order concerned only the plea to the jurisdiction and did not address the Chapter 2251 allegation.

Generally, a Texas appellate court has jurisdiction to hear an appeal only if it is from a final judgment. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992). Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if authorized by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). We have jurisdiction concerning the denial of the plea to the jurisdiction by a governmental unit as authorized by Tex. Civ. PRAC. & Rem.Code Ann. art. 51.014(a)(8). There is no statute authorizing appellate jurisdiction of an interlocutory order concerning the Chapter 2251 claim. Further, the trial court has not ruled on this issue. This Court may only review final judgments rendered at the trial court level. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1985); Shelby Operating Co. v. City of Waskom, 964 S.W.2d 75, 84 (Tex.App.-Texarkana 1998, pet. denied) (op. on reh’g).

Finding that we have no jurisdiction regarding the Chapter 2251 claim at this juncture, we dismiss that claim for lack of jurisdiction. See Kaplan v. Tiffany Dev. Corp., 69 S.W.3d 212, 217 (Tex.App.-Corpus Christi 2001, no pet.).

We affirm the trial court’s order denying the plea to the jurisdiction and dismiss for lack of jurisdiction the Chapter 2251 claim.

      . The Texas Legislature in 2005 enacted House Bill 2039 and amended Chapter 271 of the Texas Local Government Code to expressly waive the governmental immunity to suit for local government entities, including public school districts, if said entities enter into a contract authorized by statute or the constitution. H.B. 2039, Legislative Session (2005), at http://www.capitol .state.tx.us/tlo/ legislation/bill— status.htm. This bill applies to claims arising under contracts executed after September 1, 2005, "only if sovereign immunity has not been waived with respect to the claim before the effective date of this Act.” A claim that arises under a contract executed before the effective date of this Act and with respect to which sovereign immunity has been waived is governed by the law in effect on the date the contract was executed. H.B. 2039, § 2, Legislative Session (2005), at http ://www. capítol .state.tx.us/tIo/ legislation/bill — • status.htm. Since we End sovereign immunity has been waived, this Act does not apply.

      . We recognize the split of authority by the courts of appeals on this issue. See Serv. Empt. Redevelopment v. Fort Worth Indep. Sch. Dist., 163 S.W.3d 142 (Tex.App.-Fort Worth 2005, pet. filed) (noting that twelve cases on this matter are now pending before the Texas Supreme Court).