Lead Opinion
delivered the opinion of the Court,
The Local Government Code requires a person suing a county to give the county judge and the county or district attorney notice of the claim. Tex. Loc. Gov’t Code § 89.0041. The plaintiff provided that notice here, but did so by personal service of process, rather than registered or certified mail as the statute contemplates. We conclude that when the requisite county officials receive timely notice enabling them to answer and defend the claim, the case should not be dismissed. Because the court of appeals concluded otherwise, we reverse its judgment and remand the case to the trial court fоr further proceedings.
I. Background
Former Chief Deputy Constable Larry Roccaforte sued Jefferson County and Constable Jeff Greenway, alleging that his wrongful termination deprived him of rights guaranteed by the Texas Constitution. Roccaforte personally served County Judge Carl Griffith with the suit, and fifteen days later, the County (represented by the district attorney) and Constable Greenway answered, denying liability. The County propounded written discovery requests, deposed Roccaforte, and presented County officials for depositions. The County also filed a plea to the jurisdiction, asserting that Roccaforte did not give requisite notice of the suit. See Tex. Loc. Gov’t Code § 89.0041. Roccaforte disagreed, arguing that the statute applied only to contract сlaims. Alternatively, he argued that 42 U.S.C. § 1983 preempted the notice requirements and that he substantially complied with them in any event.
Although the trial court indicated that it would sustain the County’s plea and sever those claims from the underlying case, it did not immediately sign an order doing so. In the meantime, Roccaforte tried his claims against Greenway. A jury returned a verdict in Roccaforte’s favor. After-wards, the trial court signed an order granting the County’s jurisdictional plea. The order did not sever the claims from the underlying case. Roccaforte then pursued this interlocutory appeal. His notice of appeal stated that “[pjursuant to Civ. P. Rem.Code § 51.014(b), all proceedings are
In the underlying case, Greenway moved for judgment notwithstanding the verdict, which the trial court granted as to Roccaforte’s property interest and First Amendment retaliation claims but denied as to Roccaforte’s claimed violation of his liberty interest. Roccaforte moved for entry of judgment. Notwithstanding the statutory stay referenced in Roccaforte’s notice of appeal, the trial court rendered judgment for Roccaforte and awarded damages, attorney’s fees, and costs. The judgment was titled “FINAL JUDGMENT”; it “denie[d] all relief no [sic] granted in this judgment”; and it stated “[t]his is a FINAL JUDGMENT.” The County was included in the case caption. No one objected to the continuation of trial court proceedings despite the statutory stay.
Greenway appealed, and Roccaforte cross-appealed, raising as his only issues complaints regarding the trial court’s JNOV on his claims against Greenway. The court of appeals affirmed in part and reversed in part, rendering judgment that Roccaforte take nothing. Greenway v. Roccaforte,
In Roccaforte’s separate interlocutory appeal, the court of appeals made the following notation:
Roccaforte notes that immediately after the dismissal order, the trial of the case proceeded to judgment without the County as a party. No one disputes that all the claims against all other parties have been rеsolved. The order of dismissal is therefore appealable whether or not the statute at issue is jurisdictional.
Roccaforte petitioned this Court for review, which we granted.
II. Did the trial court’s final judgment moot this interlocutory appeal?
Before turning to the merits, we must decide a procedural matter: What happens when a party perfects an appeal of an interlocutory judgment thаt has not been severed from the underlying action, and that action proceeds to trial and a final judgment? The trial court did not sever Roccaforte’s claims against the County
Although Roccaforte’s interlocutory appeal was supposed to stay all proceedings in the trial court pending resolution of the appeal,
Two of our courts of appeals have held that the failure to object when a trial court proceeds despite the automatic stay waives any error the trial court may have committed by failing to impose it. See Escalante v. Rowan,
[I]f a trial court proceeds to trial during the interlocutory appeal, the class action plaintiff must inform the court of section 51.014(b) and request that the stay be enforced. If a court proceeds to trial over the objection of a class action plaintiff, the class action plaintiff could request a mandamus and this court would grant it. However, if the class action plaintiff fails to inform the trial court of section 51.014(b), and allows the court to proceed to trial, as happened here, the*923 plaintiff waives the right to object or request any relief on appeal. See Tex. R.App. P. 33.1(a). We see this as no different from any other trial court error that is not preserved — it is waived.
Siebenmorgen v. Hertz Corp., No. 14-97-01012-CV,
A third court of appeals has implicitly concluded that parties can waive the right to insist on a section 51.014(b) stay. See Lincoln Property Co. v. Kondos,
We agree with those decisions that have held that a party may waive complaints about a trial court’s actions in violation of the stay imposed by section 51.014(b). That stay differs from a situation in which the relevant statute vests “exclusive jurisdiction” in a particular forum. See, e.g., Kalb v. Feuerstein,
But as we have noted, “a court’s action contrary to a statute or statutory equivalent means the action is erroneous or ‘voidable,’ not that the ordinary appellate or other direct procedures to correct it may be circumvented.” Mapco, Inc. v. Forrest,
B. The trial court’s final judgment implicitly modified its interlocutory order, and we treat this appeal as rеlating to that final judgment.
We have repeatedly held that the right of appeal should not be lost due to procedural technicalities.
Our procedural rules provide that: After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another ap-pealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment. The subsequent order or judgment and actions relating to it may be included in the original or supplemental record. Any party may nonetheless appeal from the subsequent order or judgment.
Tex.R.App. P. 27.3. Here, although the trial court’s final judgment did not expressly modify its interlocutory order, it did so implicitly. Because the claims against the County had not been severed, the County remained a party to the underlying proceeding despite the interlocutory appeal. The final judgment necessarily replaced the interlocutory order, which merged into the judgment,
Although not relying on rule 27.3, the court of appeals took a similar approach, treating Roccaforte’s appeal as though it were from the final judgment.
III. The post-suit notice requirements are nоt jurisdictional.
Local Government Code section 89.0041 provides:
(a) A person filing suit against a county or against a county official in the official’s capacity as a county official shall deliver written notice to:
(1) the county judge; and
(2) the county or district attorney having jurisdiction to defend the county in a civil suit.
(b) The written notice must be delivered by certified or registered mail by the 30th business day after suit is filed and contain:
(1) the style and cause number of the suit;
(2) the court in which the suit was filed;
(3) the date on which the suit was filed; and
(4) the name of the person filing suit.
(c) If a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official.
Tex. Loc. Gov’t Code § 89.0041. In 2005, the Legislature amended the Government Code to provide that “[sjtatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t Code § 311.034.
Thе County contends section 311.034 makes Roccaforte’s failure to comply with section 89.0041’s notice requirements jurisdictional — an issue we have never decided. Our courts of appeals, however, have concluded that the notice requirements are not jurisdictional, even in light of section 311.034. See El Paso Cnty. v. Alvarado,
We presume “that the Legislature did not intend to make the [provision] jurisdictional[,] a presumption overcome only by clear legislative intent to the contrary.” City of DeSoto v. White,
IV. Where the appropriate county officials receive timely notice of the suit, the case should not be dismissed if notice was provided by some means other than mail.
Roccaforte provided timely notice of every item required by section 89.0041, and the requisite officials received that notice. Did the Legislature intend to bar Rocea-forte’s claim, merely because that notice was hand-delivered rather than mailed?
Roccaforte argues that the County’s actual notice of the suit and his substantial compliance with section 89.0041 should suffice. A number of courts of appeals (though not the court of appeals in this case) agree with him.
Section 89.0041 ensures that the appropriate county officials are made aware of pending suits, allowing the county to answer and defend the case. See Howlett,
V. Conclusion
Roccaforte’s claims against the County should not have been dismissed for lack of notice.
Justice WILLETT delivered a concurring opinion.
Notes
. Today, we deny that petition for review.
. Dallas County submitted an amicus curiae brief in support of Jefferson County.
.“As a rule, the severance of an interlocutory judgment into a separate cause makes it final.” Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C.,
. Tex. Civ. Prac. & Rem.Code § 51.014(b); see also Tex.R.App. P. 29.5 (providing that "[wjhile an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal”) (emphasis added).
. See, e.g., Hernandez v. Ebrom,
. See also Travelers Ins. Co. v. Joachim,
. But see Sikes v. Global Marine, Inc.,
. See, e.g., Guest v. Dixon,
. See, e.g., Isuani v. Manske-Sheffield Radiology Grp., P.A.,
. See Webb v. Jorns,
. Compare Howlett v. Tarrant Cnty.,
. Because this issue is dispositive, we do not reach Roccaforte’s argument that 42 U.S.C. § 1983 preempts section 89.0041’s notice requirements.
Concurrence Opinion
concurring in part.
I join Parts I — III of the Court’s opinion. As for Part IV, I join the result but not the reasoning. There is a better approach, one more allegiant to the Legislature’s words. Roccaforte’s claim should proceed, but the reason is rooted not in his substantial compliance but rather the County’s substantial dalliance.
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Aristotle would have enjoyed this case, which perfectly illustrates the challenge he recognized of reconciling the “absoluteness” of the written law with equity in the particular case.
I
As the Court persuasively explains in Part III, the post-suit notice requirements in Section 89.0041 are not jurisdictional, meaning а County can waive a plaintiffs noncompliance.
Honoring a statute’s plain words is indispensable, even if enforcing those words as written works an unpalatable result. To be sure, courts deviate from otherwise-clear textual commands to avert “absurd” results or to vindicate constitutional principles.
As for whether Section 89.0041’s use of phrases like “shall deliver,”
First, the Legislature, while omitting an actual-notice exception from Section 89.0041, expressly included one in the Tort Claims Act, stating the Act’s pre-suit notice requirements “do not apply if the governmental unit has actual notice....”
Second, reading “actual notice” into Section 89.0041’s post-suit notice requirement robs it of any real meaning and also makes Section 89.004’s pre-suit notice requirement redundant. Section 89.004 forbids someone from suing a county or county official “unless the person has presented the claim to the commissioners court and the commissioners court neglects or refuses to pay all or part of the claim....”
II
Having said all that, I agree with the Court that Roccaforte ultimately wins his notice dispute, but on different grounds. Instead of asking whether the Legislature meant to bar Roccaforte’s claim,
I would rephrase the question in a manner less assaultive to the statutory text: Did the County effectively waive Rocca-forte’s noncompliance by not timely asserting it? I believe so.
We have held that waiver is decided on a case-by-case basis, meaning courts look to the totality of the circumstances.
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The Court’s understandable desire to work an eminently fair result has led it to revise the statute as desired rather than read it as enacted. I favor a different approach to the same outcome. Rocca-forte should win not because the Court waived the Legislature’s words but because the County did.
. Aristotle, Nicomachean Ethics bk. V, ch. 10.
. Id.
. Id.
.
.
. Presidio Indep. Sch. Dist. v. Scott,
. Id.
. See Tex. Loc. Gov’t Code § 89.0041(c).
. The absurdity doctrine, rightly understood, is a safety valve reserved for truly exceptional cases, not just those where the mandated statutory outcome is thought unwise or inequitable. See generally John F. Manning, The Absurdity Doctrine, 116 Harv. L.Rev. 2387 (2003). As Chief Justice Marshall famously put it, a court’s allegiance to the text ceases when applying the text "would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield,
. The Legislature can, of course, if it wishes, statutorily overturn today’s holding that Section 89.0041 is nonjurisdictional and subject to an actual-notice exception.
. Tex. Loc. Gov’t Code § 89.0041(a).
. Id. § 89.0041(b).
. Id. § 89.0041(c).
. Id.
. Tex. Civ. Prac. & Rem.Code § 101.101(c).
. Tex. Loc. Gov’t Code § 89.004(a).
. Another point: As the Court notes, some courts of appeals have concluded that a sub
Closer analysis reveals Coskey and Balleste-ros offer feeble support, as they misinterpret this Court’s holdings in Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist.,
Cox was about the specificity of notice; Art-co-Bell resulted in the invalidation of notice. In neither case did the Court craft an exception for notice. The lower courts’ treatment of these cases was thus strained, and should not be taken as a correct reading of our jurisprudence on statutory notice requirements.
.
. Had the County "timely asserted” Rocca-fortе’s noncompliance, dismissal would have been mandatory under the statute’s rigid, no-discretion mandate, thus raising the question of whether Section 89.0041’s notice regime is preempted by 42 U.S.C. § 1983. See Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser,
. Waiver may actually be the wrong term; it may be more accurate to call this forfeiture. As the United States Supreme Court explains: "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment of a known right.” United States v. Olano,
"[W]aiver” is the intentional relinquishment of a right actually or constructively known, or intentional conduct inconsistent with claiming that right. The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual or constructive knowledge of its existence; and (3) the party’s actual intent to relinquish the right or intentional conduct inconsistent with the right.
Perry Homes v. Cull,
. In re United Servs. Auto. Ass'n,
. Loutzenhiser,
. Id. at 360. "Moreover, if in a particular case a governmental unit were not prejudiced by lack of notice and chose to waive it, we do not see how the statutory purpose would thereby be impaired.” Id.
. Reading Section 89.0041 in tandem with our settled precedent distinguishing mandatory requirements (waivable) from jurisdictional ones (nonwaivable) is consistent with a textu-alist approach that integrates established interpretive norms. For example, even the most ardent textualist would read a statute of limitations in light of the common-law rules of equitable tolling. See Young v. United States,
.See Perry Homes,
In Jernigan v. Langley, the Court considered whether a defendant physician waived his statutory right to contest the adequacy of the plaintiff's expert reports by waiting too long. Ill S.W.3d 153, 153 (Tex.2003). The Court held that delay does not always result in waiver, but it does when the defendant’s silence or inaction for such a long period shows an intent to yield a known right. Id. at 157. I would hold that the County's actions are inconsistent with the intent to assert its statutory right to up-front dismissal based on defective notice. Moreover, Jemigan predates our 2004 decision in Loutzenhiser, which speaks specifically to statutorily mandated notice re
. It is true that defendants may assert defenses like limitations in the trial court even following extensive discovery and other pretrial activity. See Tex.R. Civ. P. 94 (affirmative defenses including limitations must be pleaded); Tex.R. Civ. P. 63 (pleadings may be amended without leave of court until seven days before trial). Today’s case, though, involves a statutory notice requirement that mandates action within a prescribed time, something Loutzenhiser held should be raised "as soon as possible” since the statutory purpose is to avoid litigation altogether.
Section 89.0041 may not be a prerequisite to bringing suit, but it is a postrequisite to maintaining suit. In my view, Section 89.0041, unlike the Tort Claims Act, does not allow actual notice to forgive defective notice, but that does not mean actual notice may not affect the waiver inquiry of whether a defendant "timely asserted” noncompliance. For reasоns stated above, I believe a county that quickly asserts statutory noncompliance, even if it has actual notice, is entitled to dismissal under Section 89.0041. But a county with actual notice that untimely asserts noncompliance (here only after limitations had run two-plus years later) has waived its objection and is not entitled to dismissal. See City of DeSoto v. White,