Courtney v. University of Texas System

• Decision Date: 28 February 1991
• Docket Number: No. 2-89-250-CV,2-89-250-CV
• Citation: 806 S.W.2d 277
• Parties: 66 Ed. Law Rep. 1334 . The UNIVERSITY OF TEXAS SYSTEM, the University of Texas at Arlington, and Dr. W.A. Baker, Individually and in his Official Capacity, Appellees. Court of Appeals of Texas, Fort Worth
• Court: Texas Court of Appeals

Page 277

806 S.W.2d 277

66 Ed. Law Rep. 1334

Max COURTNEY, Appellant, v. The UNIVERSITY OF TEXAS SYSTEM, the University of Texas at

Arlington, and Dr. W.A. Baker, Individually and in

his Official Capacity, Appellees.

No. 2-89-250-CV.

Court of Appeals of Texas,

Fort Worth.

Feb. 28, 1991.

Rehearing Overruled May 21, 1991.

Brender & Colosi, and Art Brender, Fort Worth, for appellant.

Jim Mattox, Atty. Gen., and Matthew L. Trevena, Asst. Atty. Gen., for appellees.

Before WEAVER, C.J., and DAY and JOE SPURLOCK, II, JJ.

OPINION

JOE SPURLOCK, II, Justice.

This appeal is from the granting of appellees' Motion for Summary Judgment in a breach of contract suit denying recovery to appellant, Max Courtney. He alleged a breach of contract for termination of his position as a lecturer at the University of Texas at Arlington. The trial court held that appellees were entitled as a matter of law to sovereign immunity from suit and had not waived immunity. Courtney appealed. We find the court committed error. The judgment is reversed.

Courtney grouped his first three points of error together as one. We will consider them the same as they were argued. There are three separate appellees, but they have submitted their argument and taken a position under one brief. Dr. Baker as Vice-President of Academic Affairs at the University was the person responsible to place Courtney's annual appointment before the Board of Regents.

Courtney argues in three points of error that the trial court erred by granting the Motion for Summary Judgment on a theory of sovereign immunity, because: 1) he is entitled by law to enforce a contract against both the state and its agents who wrongfully terminated his employment; and 2) that he is entitled to bring an action for relief under the Declaratory Judgments Act; and 3) he is entitled to trial on his claim that certain unlawful actions were taken against him, notwithstanding the state's sovereign immunity, if any. He complains in point of error four that there are questions of fact concerning his pleadings for negligence, due process, negligent misrepresentation, detrimental reliance, and contract which bar granting of a summary judgment. We sustain his points of error three, four, and five, six, seven, and eight (being relative to the issues in three and four).

The trial judge states in the judgment that he considered appellees' Motion for Summary Judgment with supplement; the Supplemental and Second Supplemental Motion for Summary Judgment; and the pleadings and argument of counsel. The court ordered that all causes of action against all of the appellees be dismissed with prejudice. We have reviewed the motions. Although the judgment declares that the motions are "good and should be granted in all respects," we will not address all of them, but will discuss only those that are improperly granted.

In considering a Motion for Summary Judgment, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166a. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the non-movant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the non-movant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972). Every reasonable inference from the evidence must be indulged in favor of the non movant and any doubts resolved in his favor. Montgomery, 669 S.W.2d at 311. Evidence which favors the movant's position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47.

The substance of the first four points is that the court erred in granting the motions for summary judgment and erred in ruling that no basis at law existed for recovery by contract or otherwise. The key portions of the motions were: 1) that the University of Texas System and the University of Texas at Arlington and Dr. Baker acting in his official capacity are immune from suit without prior consent to be sued because of the doctrine of sovereign immunity, and 2) that appellant held no property interest in his employment, therefore failing to renew his year-to-year contract without a hearing did not violate any due process.

The Supplemental Motion for Summary Judgment included consideration of factual matters such as appellant being charged "with knowledge that all faculty appointments are subject to approval of the Board." The remainder of the Supplemental Motion for Summary Judgment claimed immunity for Dr. Baker's actions in his official capacity under the doctrine of sovereign immunity and further under the doctrine of "quasi-judicial immunity." The Supplemental Motion also contained appellees' argument that they were entitled to summary judgment on appellant's newly added claims of fraud and negligent misrepresentation.

In their Second Supplemental Motion for Summary Judgment, appellees maintained that appellant's additional claim in his Second Amended Original Petition of detrimental reliance should be denied on the same basis as his claims for fraud and negligent misrepresentation. We will not discuss these grounds as we need only address the critical question of sovereign immunity, and the question of whether or not there is a factual issue of the existence of some other actionable matters between appellant and appellees (as raised in points of error three, four, five, six, and seven).

The basis of Courtney's claim is an employment letter written to him in 1980. He was offered an appointment with the University of Texas at Arlington as a lecturer specifically without tenure. The offer was for a year-to-year renewable contract which nevertheless contained a promise that the contract would be renewed each year so long as his performance was satisfactory. The official title bestowed was "Lecturer." The entire letter is set out as an appendix to this opinion. Courtney accepted the offer and taught for several years.

Another provision of the letter provides: "This will be a regular on-going faculty appointment and you will be entitled to all of the vacation, sick leave and other benefits of such a faculty appointment [emphasis added]." It is apparent from the document that there are factual questions concerning Courtney's contractual rights. The letter clearly says the appointment is "non-tenure." The rules of the Board of Regents provide for who may and who may not get tenure and for what might be called "tenure-track" (probationary) appointments. While, the letter to Courtney does not put him into any of the categories of teaching employees covered by tenure or probationary tenure under the Board's rules, he is a faculty member, with benefits, and employment renewable each year upon satisfactory performance.

His contract was not renewed for the fall semester in 1986, nor thereafter. His termination notice (another letter) does not allege his performance was unsatisfactory. Courtney maintains he has a "tenure-like" status, and is entitled to a hearing. We agree.

The most applicable of the Board's rules we have considered in this case are: Rules and Regulations of the Board of Regents of the University of Texas System, Part One, Chapter III, Sections 1.8, 1.81, 1.83, 1.84, 6.1, 6.2, 6.21, 6.23, 6.25, 6.3, and 6.8 (Board of Regents 1979). The two most important rules affecting Courtney's status as a "non-tenured" faculty member are:

6.25 All faculty appointments are subject to the approval of the Board. No nontenured member of the faculty should expect continued employment beyond the period of his or her current appointment as approved by the Board. Any commitment to employ a nontenured member of the faculty beyond the period of his or her current appointment shall have no force and effect until approved by the Board.

6.8 In the event of decision not to reappoint a nontenured faculty member, written notice will be given him or her not later than March 1st of the first academic year of probationary service if the appointment expires at the end of that academic year, or not later than December 15th of the second academic year of probationary service if the appointment expires at the end of that academic year. After two or more academic years written notice shall be given not later than August 31st that the subsequent year will be the terminal academic year of appointment. The notice required by this Section is not applicable where termination of employment is for good cause under Section 6.3 above.

By the Board's rules the only faculty entitled to continuous employment are those with tenure or on probationary status. The question of exactly what type employment Courtney had, and for how long, appears to us to be a mixed question of "fact and law." Clearly Courtney would be entitled to resolution of the facts before a court could hold as a matter of law that he had no enforceable contract. In the matter of the enforcement of a contract, as a matter of law, summary judgment could not be granted on the basis that no contract of "tenure-like" effect was in force. Arguably, the promise to Courtney of continuing faculty appointment created a tenure-like position and, under the provisions of the Board's rules shown above, he was entitled to one year's notice of intent not to renew. His contract had already extended beyond two years having been renewed annually from 1980 to 1986. Additionally there is a question of whether or not...