this summary below deals with a appeal of a summary judgement denied from this very court
this is an intersting read on one of the appeals courts rulings of a McCally case concerning issues of summary judgement.. Maybe the defendants lawyers made a mistake when they filed for summary judgement based on standing. Maybe they should have avoided summary judgement pleas and just challenged standing as a jurisdictional issue.
Because Houston Filed a Summary Judgment Motion, It May not Take an Interlocutory Appeal
("Interlocutory appeals are provided for by statute. See Tex. Civ. Prac. & Rem. Code ' 51.014.
Houston attempted to give this court jurisdiction over this interlocutory appeal by utilizing section
51.014(a)(8).[1] However, Houston did not file a plea to the jurisdiction. Instead it filed a summary
judgment, though styled a plea to the jurisdiction.[2] See Phillips v. Dafonte, 187 S.W.3d 669, 675
(Tex. App.-Houston [14th Dist.] 2006, no pet.) (holding that, for purposes of section 51.014(a)(5),
we determine if a party is entitled to an interlocutory appeal by examining the substance and topic
of the pleading upon which the appeal is based, not the form or title of the pleading). The
substance and topic of Houston's pleadings below were merits based and thus represented an
attempt at summary judgment. They continue to be merits based in this court. Appellate courts
have jurisdiction to consider immediate appeals of interlocutory orders only if a statue explicitly
provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). Because
there is no statutory basis for this court to review Houston's motions for summary judgment that
the trial court denied, we dismiss this appeal.")
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