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Town of Shady Shores v. Swanson

Court of Appeals of Texas, Second District, Fort Worth

January 18, 2018

TOWN OF SHADY SHORES APPELLANT
v.
SARAH SWANSON APPELLEE

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

          PANEL: SUDDERTH, CJ.; KERR and PITTMAN, JJ.

          OPINION

          MARK T. PITTMAN JUSTICE.

         In this interlocutory appeal, Appellant the Town of Shady Shores (the Town) appeals the trial court's denial of its no-evidence and traditional motions for summary judgment on the claims brought against it by Appellee Sarah Swanson, the Town's former city secretary. In six issues, the Town challenges the trial court's jurisdiction and the trial court's determination of Swanson's objections to the Town's no-evidence summary judgment motion. After careful review, we affirm in part and reverse in part.

         I. Background

         At a special meeting of the Town of Shady Shores City Council (the Council) on February 24, 2014, the Town provided Swanson with an employee performance evaluation. The Council then gave her ten minutes to respond to the evaluation. It further allowed her to respond in writing and to address the Council regarding the evaluation at a special council meeting three days later on February 27, 2014. Both Swanson and her attorney appeared at the February 27th council meeting. At that meeting, the Council voted to terminate Swanson's employment for lack of confidence in her performance as city secretary. See Tex. Loc. Gov't Code Ann. § 22.077(b) (West 2008). Swanson then sued the Town.

         In her original petition, Swanson alleged that the Town fired her because she reported and refused to engage in destroying a tape recording of a meeting of the Town's investment committee, a subcommittee of the Council. She alleged that after she refused, members of the investment committee destroyed the recording; that she told the Council, the mayor, and the Town's attorney that the recording's destruction violated state law; and that this reporting led to her firing. Swanson asserted a statutory wrongful discharge claim under the Texas Whistleblower Act, Tex. Gov't Code Ann. § 554.0035 (West 2012), and a common law claim for wrongful discharge under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).

         In response, the Town filed a plea to the jurisdiction asserting governmental immunity for both claims. Swanson then amended her petition to add a claim for violation of her free speech rights under the Texas Constitution and claims for declaratory relief based on the Town's alleged violations of the Texas Open Meetings Act (TOMA) and of her rights under the "due course" provision of article 1, section 19 of the Texas Constitution. See Tex. Const. art. I, § 19; Tex. Gov't Code Ann. § 551.002 (West 2017). Importantly, Swanson did not allege separate and distinct claims for violations of TOMA or the Texas Constitution, rather she alleges that the Town committed violations of these provisions in support of her standalone claim for a declaratory judgment.

         In support of these claims, Swanson alleged that on February 12, 2014, the Council wrongfully deliberated in executive session about whether to terminate her employment, that the decision to do so was also made during executive session that day, and that no agenda had been posted before the meeting apprising the public of the purpose of the executive session. Swanson also alleged that for the February 27, 2014 special council meeting at which the Council terminated her employment, the Town did not post an agenda before the meeting sufficiently apprising the public that action might be taken to remove her from her job. Swanson further asserted that the Town violated article I, section 19 of the Texas Constitution because she was not afforded the opportunity to confront her accusers or otherwise address the Council before the deliberation in which the decision was made to terminate her employment and because no procedure was adopted or employed for her to protest or appeal the Council's decision. Additionally, Swanson added allegations that the Town fired her in retaliation for reporting not only the destruction of the meeting tape, but also for reporting that the mayor, Cindy Spencer, had taken recordings of town meetings home with her and had at one point intended to call Swanson into a meeting under false pretenses to ask for Swanson's resignation.

         Before the trial court ruled on the Town's plea to the jurisdiction-rather than amend its plea or file another such plea on the claims in Swanson's amended petition-the Town filed a motion for traditional summary judgment and a separate motion for no-evidence summary judgment that challenged the trial court's jurisdiction of Swanson's additional claims. In its no-evidence motion, the Town asserted that it was entitled to governmental immunity on Swanson's declaratory judgment claims because she had no evidence that she was entitled to declaratory relief. In its traditional motion, the Town asserted that it was entitled to summary judgment on Swanson's declaratory judgment claims because the claims did not fall within the scope of permissible declaratory judgment actions against governmental entities.

         In her summary judgment response, Swanson argued that the Town was not entitled to a no-evidence summary judgment because it bore the burden of proof on establishing governmental immunity. She also challenged the Town's traditional grounds, arguing that genuine issues of material fact precluded summary judgment.

         The trial court granted the Town's plea to the jurisdiction as to Swanson's original claims and dismissed Swanson's Whistleblower Act and Sabine Pilot claims. The trial court denied the Town's summary judgment motions. The Town then filed this interlocutory appeal challenging the denial of its motions for summary judgment.

         II. Challenges to the Trial Court's Jurisdiction

         A plaintiff has the burden of alleging facts that affirmatively demonstrate that the trial court has subject-matter jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). Because a governmental unit has immunity from suit, a plaintiff asserting a claim against a governmental unit must allege facts that affirmatively demonstrate that the legislature has waived immunity for the claims brought. Univ. of Tex. at Arlington v. Williams, 455 S.W.3d 640, 643 (Tex. App.-Fort Worth 2013), aff'd, 459 S.W.3d 48 (Tex. 2015).

         The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction or by a motion for summary judgment. Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A motion or plea asserting governmental immunity involves a question of law that we review de novo. Harris County Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).

         When a governmental entity challenges the plaintiff's pleadings for failing to demonstrate jurisdiction, the court construes the pleadings liberally, taking all factual assertions as true and looking to the plaintiff's intent. Heckman, 369 S.W.3d at 150. If the plaintiff's pleadings affirmatively negate the existence of jurisdiction, we must grant the plea to the jurisdiction. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the plaintiffs should be afforded the opportunity to amend. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).

         If a defendant governmental entity challenges the existence of jurisdictional facts, a court must also consider the relevant evidence necessary to resolve the jurisdictional issues raised. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 228. The governmental entity has the burden to assert and support with evidence that the trial court lacks subject matter jurisdiction. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 228. We must grant the jurisdictional challenge if the governmental entity presents undisputed evidence that negates the existence of the court's jurisdiction. Heckman, 369 S.W.3d at 150.

         III. Swanson Did Not Raise Distinct TOMA Claims.

         In its first issue, the Town contends that the trial court had no jurisdiction over Swanson's TOMA claims. However, the record before us is clear that in the trial court, the Town raised traditional summary judgment grounds asserting its entitlement to judgment on the merits of Swanson's claims, rather than on jurisdictional, government immunity grounds. See Cullum v. White, 399 S.W.3d 173, 188 (Tex. App.-San Antonio 2011, pet. denied) (noting appellate courts generally do not have jurisdiction to hear the denial of a motion for summary judgment). Further, while Swanson asserted grounds for declaratory relief based on TOMA violations, she did not assert a separate, standalone claim under TOMA. Without a distinct TOMA claim being alleged by Swanson against the Town, we must overrule the Town's first issue. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) ("[C]ourts have no jurisdiction to issue advisory opinions."); accord Princeton Univ. v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 869 (1982) ("We do not sit to decide hypothetical issues or to give advisory opinions"). However, to the extent the Town's arguments apply to its challenges to Swanson's claim for declaratory relief based on the Town's alleged TOMA violations, we consider them below under our analysis of the Town's third issue.

         IV. Swanson's Declaratory Judgment Claims

         In its third issue, the Town makes several arguments for why the trial court should have dismissed Swanson's declaratory judgment claims. First, the Town contends that Swanson does not qualify for relief under the Uniform Declaratory Judgments Act (UDJA). More specifically, the Town contends that: (a) Swanson is not a person interested under a deed, will, written contract, or other writings constituting a contract; (b) Swanson is not a person whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, and she produced no evidence that she fits in that category in response to its no-evidence and traditional summary judgment motions; and (c) Swanson does not seek a determination on any question of construction or validity of an instrument, statute, ordinance, contract, or franchise. Second, the Town argues that to the extent Swanson seeks a declaration of rights under a statute, the UDJA does not waive the Town's governmental immunity for such a claim.

         In the Town's second issue, it asserts that Swanson presented no viable claim for relief under the "due course" provision in article I, section 19 of the Texas Constitution. It argues that: (a) Swanson has no evidence that she was denied any right to confront her accusers and address the Council before the February 12, 2014 meeting; (b) she had no constitutional right to appeal the Council's termination decision; and (c) she was provided with notice and an opportunity to be heard. However, Swanson raised these constitutional violations only as a basis for relief under the UDJA. As with the Town's alleged TOMA violations, Swanson simply did not allege separate, standalone constitutional claims against the Town in her lawsuit. We therefore overrule the Town's second issue but consider the Town's arguments challenging the viability of her constitutional claims as part of its third issue.

         For the reasons set forth herein, we conclude that the Town has immunity for some but not all of the declaratory relief requested by Swanson.

         A. The Trial Court Did Not Err by Denying the Town's No-Evidence Summary Judgment Motion on Swanson's UDJA claims.

         The Town argues that, because Swanson provided no evidence in response to its no-evidence summary judgment motion, the trial court erred by denying it a no-evidence summary judgment as to Swanson's declaratory judgment claims. This argument, however, severely mistakes Swanson's burden in the trial court. Before Swanson had any burden to produce jurisdictional evidence, the Town first had to produce evidence negating jurisdiction. See Miranda, 133 S.W.3d at 228 (stating that for pleas to the jurisdiction challenging the existence of jurisdictional facts, requiring the state to meet the summary judgment standard of proof protects plaintiffs "from having to 'put on their case simply to establish jurisdiction'" and that a plaintiff must come forward with evidence to raise a fact question regarding the jurisdictional issue only "after the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction" (citation omitted)); see also Mission Consol. I.S.D. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (reiterating that when challenging the existence of jurisdictional facts, the defendant government entity carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction); City of El Paso v. Collins, 483 S.W.3d 742, 755-56 (Tex. App.-El Paso 2016, no pet.) (holding that a defendant government entity "cannot simply deny the existence of jurisdictional facts and force the plaintiffs to raise a fact issue" and that before a plaintiff has any burden to come forward with jurisdictional evidence, the government entity must first come forward with sufficient evidence to negate jurisdiction) (emphasis added); City of Austin v. Rangel, 184 S.W.3d 377, 382 (Tex. App.-Austin 2006, no pet.) (same).

         Because a governmental entity, like the Town, has the burden to negate the existence of jurisdictional facts before a plaintiff has any burden to produce evidence raising a fact question on jurisdiction, no-evidence summary judgment motions may not be used by a governmental entity as a vehicle to defeat jurisdiction or otherwise circumvent its burden to disprove jurisdiction. See Arthur v. Uvalde Cty. Appr. Dist., No. 04-14-00533-CV, 2015 WL 2405343, at *9 (Tex. App.-San Antonio May 20, 2015) (mem. op.) ("Permitting UCAD to challenge subject matter jurisdiction in a no-evidence motion for summary judgment improperly shifts the jurisdictional evidentiary burdens."); Thornton v. Ne. Harris Cty. MUD, 447 S.W.3d 23, 40 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) ("Permitting MUD to challenge subject matter jurisdiction in a no-evidence motion for summary judgment improperly shifts the jurisdictional evidentiary burdens-effectively requiring the Thorntons to fully marshal their evidence simply to establish jurisdiction and eliminating any burden on MUD as a governmental entity to disprove jurisdiction."); cf. Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 793-94 (Tex. App.-Houston [1st Dist.] 2012, no pet.) (holding that the defendant-not a governmental entity-could not challenge standing through a no-evidence motion because such a procedure would "allow defendants an end run around the safeguards established by the Texas Supreme Court").

         In reaching this holding, we recognize that this court has affirmed the granting of no-evidence summary judgment for a governmental entity on immunity grounds. City of Haltom City v. Aurell, 380 S.W.3d 839 (Tex. App.- Fort Worth 2012, no pet.). That opinion is easily distinguishable, however. In that opinion, the plaintiff did not question whether a no-evidence motion is a proper vehicle for raising immunity, and we did not consider the issue. Given the clear language and direction from the Texas Supreme Court provided in Miranda and Mission Consolidated, we agree with our sister courts of appeals that a government entity may not challenge subject matter jurisdiction in a no-evidence summary judgment motion because doing so improperly shifts the initial jurisdictional evidentiary burden to the plaintiff. See Thornton, 447 S.W.3d at 40. We disapprove of our opinion in Aurell to the extent it reads otherwise.

         Elsewhere in its brief, the Town cites State v. Lueck, 290 S.W.3d 876, 881-84 (Tex. 2009), for the proposition that Swanson, not the Town, had the initial burden to come forward with evidence to support jurisdiction. Lueck does not contradict our holding that the Town had the initial burden to produce evidence negating jurisdiction. See Lueck, 290 S.W.3d at 881-84 (addressing pleading requirements with respect to jurisdiction); see also Mission Consol. I.S.D., 372 S.W.3d at 637 (applying Lueck to a claim under the Texas Commission on Human Rights Act and stating that "[w]hile a plaintiff must plead the elements of her statutory cause of action-here the basic facts that make up the prima facie case- . . ., she will only be required to submit evidence if the defendant presents evidence negating one of those basic facts" (emphasis added)). We therefore disagree with the Town that Lueck required Swanson to marshal evidence showing jurisdiction before the Town met its own evidentiary burden. Simply put, a governmental entity cannot file a no-evidence motion for summary judgment on governmental immunity grounds to altogether avoid the jurisdictional burden that it would have to demonstrate when asserting a plea to the jurisdiction. To hold otherwise would effectively turn Texas governmental immunity jurisprudence on its head.

         Therefore, the trial court did not err by denying the Town's no-evidence summary judgment motion challenging the court's subject-matter jurisdiction to Swanson's declaratory judgment claims. We overrule this part of the Town's third issue.

         B. TOMA Waives Immunity for Some of Swanson's UDJA Claims.

         1. TOMA Authorizes Swanson to Seek a Declaration of Rights, ...


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