Amboree v. Bonton, 01-17-00936-CV

• Decision Date: 05 March 2019
• Docket Number: NO. 01-17-00936-CV,01-17-00936-CV
• Citation: 575 S.W.3d 38
• Parties: Anna AMBOREE, Appellant v. Michelle BONTON, Sonia Jordan, Danielle Harrison and Decounder Thompson, Appellees
• Court: Texas Court of Appeals

575 S.W.3d 38

Anna AMBOREE, Appellant

v.Michelle BONTON, Sonia Jordan, Danielle Harrison and Decounder Thompson, Appellees

NO. 01-17-00936-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 5, 2019

Armando Lopez, Houston, for Appellees.

Ellen Sprovach, Houston, for Appellant.

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Julie Countiss, Justice

Appellant Anna Amboree challenges the trial court’s dismissal order and summary judgment in favor of appellees Michelle Bonton, Sonia Jordan, Danielle Harrison, and Decounder Thompson (collectively, "appellees") in her suit against them for violating the Open Meetings Act¹ and for a declaratory judgment. In her sole issue, Amboree contends that the trial court erred in granting summary judgment and dismissing her claims because she sued the proper parties—appellees—and was not required to join the Rhodes School (the "School") in the suit.

We affirm in part and reverse and remand in part.

Background

This suit was appealed to a prior panel of this Court. See generally Amboree v. Bonton , No. 01-14-00846-CV, 2015 WL 4967046 (Tex. App.—Houston [1st Dist.] Aug. 20, 2015, no pet.) (mem. op.). There, we affirmed the trial court’s summary judgment in appellees'² favor on all of Amboree’s claims against them save for the Open Meetings Act and declaratory-judgment claims. Id. at *3–7. We then remanded the suit for further proceedings. Id. at *7.

In her fifth amended petition, Amboree alleges that she was employed as "Chief Financial Officer, Business Manager[,] and Human Resources Manager" for the School, a charter school, and reported directly to Bonton. Bonton, "a founding member, the principal[,] and superintendent" was Amboree’s "supervisor." Amboree advised Bonton "on financial and business matters as they related to the school." Jordan, Harrison, and Thompson are members of the School’s board.

Amboree alleges that she discovered what she believed to be improprieties in the School’s operation. According to her, Bonton "falsified a bid for [a] transportation contract" with Ellis Industries Inc., whose "sole shareholders" are Bonton and her husband. The bid was allegedly false because it "stated that the drivers meet all the state requirements for driving the school bus[,] and the school bus meets all state and local safety requirements, including seat belts[,] and that their drivers have completed or are in the process of completing school bus driver certification," when in fact those requirements were not met. When she raised concerns about this, she alleges that Bonton told her, "I don't mind a slap on the wrist."

Further, allegedly against Amboree’s advice, Bonton approved "construction at the school without obtaining the requisite permits f[ro]m the county."

Amboree also alleges that Bonton asked her "to verify employment for [Bonton]’s daughter to receive financial aid," even though the daughter "was out of state on an internship at the time," and that verifying employment under the circumstances would have been illegal and fraudulent. After Amboree’s refusal, Bonton then asked the School’s board president, Sonia Jordan, "to verify employment for her daughter."

Amboree also alleges that Bonton paid herself "commissions ... as a grant writer on grants," including "grants that did not allow for these types of ‘commissions.’ " The School’s board approved Bonton’s request to be paid commissions, plus "$89,700 per year," and gave the approval "retroactive" effect, despite Bonton earlier having "swor[n] under oath that she would not receive compensation from the Rhodes School in her application for charter."

Amboree also alleges that once, when Jordan "was in need of money," Bonton offered to pay "Jordan for the board meetings (past and present) that were being held at her house (although The Rhodes School was closer and free)." And Bonton allegedly "ordered [Amboree] ... to complete and back[-]date a Texas Real Estate Commercial Lease Agreement between Sonia Jordan’s husband, Marcellus Jordan," and the School. When Amboree refused to do so, Bonton "obtained a Texas Commercial Lease Agreement from the internet and executed it and illegally backdated the contracts between" the School and Marcellus Jordan.

Bonton also allegedly "inflated the school enrollment to obtain more government money for transportation as transportation funds were based on the amount of students enrolled."

Amboree further alleges that, at a July 2010 board meeting held "without sufficient notice" under the Open Meetings Act, Bonton "added her daughter Ashley and her very good friend Mignonne Anderson to the budget as new full[-]time employees," paying "her daughter full[-]time pay for part[-]time work."

Allegedly because Amboree reported to Bonton or to the School’s board that many of these alleged activities were unlawful, Bonton "determined that [Amboree] was an obstacle in" Bonton’s "continuing to use" the School "as a conduit or tool ... for her profit," and appellees fired Amboree in violation of the Open Meetings Act. Specifically, Amboree alleges that

Bonton and [the] board members terminated [Amboree]’s employment in a special meeting that was called in violation of The Open Meetings Act as well as took actions in other meetings also in violation of The Open Meetings Act. Specifically, the September meeting where [Amboree] was terminated ... did not contain [Amboree]’s proposed termination on an agenda published pursuant to the Texas Open Records Act.

The meeting during which Amboree’s employment was terminated was held on September 26, 2010. Amboree seeks to hold appellees "liable in their individual capacity pursuant to the Texas Open Meetings Act ... because they failed to properly notice and hold the September 26, 2010 meeting terminating [Amboree]."

Amboree therefore filed this suit, seeking a declaration "that Defendants' termination of [Amboree] in such meeting is void," along with "reinstatement of [Amboree] to the date of that termination meeting on September 26, 2010." She also seeks a declaration that "the actions taken in any meeting including the board, including but not limited to the meeting terminating [Amboree] were void and unenforceable and invalid." Amboree requests "actual damages," "back pay lost," "front pay," "general damages for the damages to [her] reputation," pre-judgment and post-judgment interest, "[d]amages for mental pain and mental anguish and other compensatory damages," "[p]unitive or [e]xemplary [d]amages," attorneys' fees, and court costs.

After remand from the prior appeal, appellees filed their "Motion to Dismiss Pursuant to CPRC Section 37.006" and a "Motion for Final Summary Judgment."

In their motion to dismiss, appellees contended that the School is "an indispensable party" to this suit and that Amboree’s failure to have the School served with process and joined in the suit "defeats the Court’s subject[-]matter jurisdiction" over the suit under Civil Practice & Remedies Code section 37.006(a). Amboree responded that a dismissal for lack of jurisdiction under Section 37.006(a) "unduly limit[s] the availability of relief between the parties already joined and would be contrary to the dictate that the Declaratory Judgment Act be liberally construed."

In their motion for summary judgment, appellees contended that any Open Meetings Act claim arising out of the July 2010 board meeting was "barred by the four[-]year statute of limitations inasmuch as this claim was first raised in Plaintiff’s Fourth Amended Petition, filed on September 8th 2014" and that the Open Meetings Act claim arising out of the September 2010 board meeting during which Amboree’s employment was terminated, "although raised within four years, is also time[-]barred due to Amboree’s failure to exercise due diligence inasmuch as she has not requested citation for [the School] for the two years and ten months since the filing of Amboree’s Fourth Amended Petition." Amboree responded that she named "the proper entities" in her suit and that she was not "required to name" the School in her suit because she instead "named the Board of Directors and the Chief Executive Officer who took the illegal action against her."³

The trial court granted the motion to dismiss and the motion for summary judgment on the same day. The trial court then entered a "Final Judgment" after Amboree nonsuited her claims against other parties who are not parties to this appeal. The dismissal and summary-judgment orders therefore merged into the Final Judgment. See Webb v. Jorns , 488 S.W.2d 407, 408–09 (Tex. 1972).

Dismissal Order

In a portion of her sole issue, Amboree argues that the trial court erred in granting appellees' motion to dismiss because she "sued (and served) the Board of Trustees (Directors) of" the School "in their official capacities," thereby "suing the entity of which they were officials." In response, appellees argue that, in fact, Amboree never served the School "and she is now barred by limitations from suing" the School and that, because only the School can be responsible for the declaratory and monetary relief that Amboree seeks by her suit, the trial court lacked subject-matter jurisdiction over her suit under both Civil Practice & Remedies Code section 37.006(a) and Rule of Civil Procedure 39. Amboree responds that a dismissal under Section 37.006(a) here "unduly limit[s] the availability of relief between the parties already joined and would be contrary to the dictate that the Declaratory Judgment Act be liberally construed." She also responds that "the proper entities were named" in the suit and that she was not "required to name" the School because she nonetheless "named the Board of Directors and the Chief Executive Officer [of the School,] who took the illegal action against her."

A. Standard of Review

When deciding appeals, the standard of review we must apply often depends on the procedural vehicle that gave rise to the trial-court action being appealed—here, an...