Killingsworth v. Hous. Auth. of Dall.

• Decision Date: 14 October 2014
• Docket Number: No. 05–12–00524–CV.,05–12–00524–CV.
• Citation: 447 S.W.3d 480
• Parties: Jerry KILLINGSWORTH, Appellant v. The HOUSING AUTHORITY OF the CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

447 S.W.3d 480

Jerry KILLINGSWORTH, Appellant

v.The HOUSING AUTHORITY OF the CITY OF DALLAS, Appellee.

No. 05–12–00524–CV.

Court of Appeals of Texas, Dallas.

Oct. 14, 2014.

Reconsideration En Banc Denied Dec. 8, 2014.

John H. Crouch, for Jerry Killingsworth.

Katherine Elizabeth Anderson, for The Housing Authority of the City of Dallas.

Before Justices BRIDGES, O'NEILL, and BROWN.

OPINION

Opinion by Justice BROWN.

This appeal arises out of Jerry Killingsworth's contention that the Housing Authority of the City of Dallas (DHA) backed out of a deal to hire him as the DHA's President and Chief Executive Officer. Killingsworth claims that despite having a written employment contract offering him the position, the DHA yielded to political pressure to retain then-DHA President Ann Lott and refused to allow him to assume the duties of the position. He sued the DHA for breach of an employment contract and violations of his civil rights.¹

After an interlocutory appeal related to the trial court's denial of the DHA's plea to the jurisdiction² and additional discovery, the DHA moved for summary judgment on Killingsworth's claims. The trial court granted the motion in its entirety and signed a final judgment that Killingsworth take nothing on his claims. Killingsworth appeals. In his first three issues, Killingsworth contends the trial court erred in granting summary judgment for the DHA because he raised fact issues on each of his claims. In two additional issues, he maintains the trial court erred when it entered a no-evidence summary judgment before the completion of discovery and prohibited discovery of statements made by the members of the DHA Board of Commissioners while in executive session. We conclude the trial court properly granted summary judgment on Killingsworth's claims and did not err in granting summary judgment before discovery was completed and limiting discovery related to closed meetings. Accordingly, we affirm the trial court's judgment.

Factual Background

The claims at issue in this appeal (and the dispute in the interlocutory appeal) have their genesis in a letter agreement dated November 21, 2006 from DHA Board Chairman Guy Brignon to Killingsworth. The letter begins by stating that “[t]he Board of Commissioners of the [DHA] is pleased to extend you this contract of employment as the President and Chief Executive Officer and Secretary of the Board of Commissioners of the DHA.” The letter sets forth the employment terms, including a description of the job duties and details related to compensation and benefits. And it concludes by informing Killingsworth that “[t]he terms of this agreement are nonbinding unless signed by the Chairman of the Board of Commissioners of the Dallas Housing Authority and approved by the Board of Commissioners.” The agreed start date was January 3, 2007.

Killingsworth claimed that in the month leading up to the November 21 letter agreement, he met with each member of the Board of Commissioners, who at that time were Brignon, Roderick Washington, and Jose Velazquez,³ and that each Commissioner supported him for the position. Killingsworth also claimed that based on that support, he negotiated the terms under which he would accept the position through a series of meetings and phone calls with Brignon and a lawyer.

A draft of the letter agreement was provided to the Commissioners as part of the hearing packet for a special Board meeting held on November 20. The minutes from the November 20 meeting reflect an announcement by Brignon that after the Commissioners' closed session, they “may hear discussion and consideration of a resolution” to authorize the Chairman “to effectuate a CEO employment contract.” The minutes do not reflect that any discussion or consideration of that resolution occurred after the closed, executive session. But according to Killingsworth, Brignon twice told him that the Commissioners voted to approve the agreement during the executive session of the November 20 special meeting. Brignon presented the letter agreement to Killingsworth on November 21. Killingsworth signed and returned the agreement that same day. Less than two weeks after signing the letter agreement, Killingsworth resigned from his position with the City of Dallas Housing Department even though Brignon advised against it because the agreement still required Board approval.

The Commissioners planned to vote publicly to approve the letter agreement at a special meeting of the Board of Commissioners on December 5. The minutes from the December 5 meeting, however, reflect that instead of conducting a public vote to approve the agreement, the Commissioners heard comments from members of the community, including certain community leaders and former Board Commissioners, who urged the Commissioners to wait to make a decision about replacing Lott until the Board had full representation. In particular, the community leaders expressed concern that a tenant representative had yet to be appointed by the mayor despite the position being open for several years. The community members also expressed support and appreciation for Lott and her leadership. At the conclusion of the December 5 meeting, Brignon informed those in attendance that the Commissioners decided to “think about this a little longer” and postponed the vote on the letter agreement until the next meeting.

Before the next Board of Commissioners meeting on December 19, former mayor Laura Miller appointed Marcella Atkinson as the new tenant representative Commissioner. Atkinson attended the December 19 meeting with Washington and Velazquez; Brignon was absent from the meeting. At the December 19 meeting, the Commissioners announced that although they had previously voted on October 10 not to renew Lott's contract, their goal was to begin the process of negotiating a contract with Lott for the CEO position.

Sometime after the December 19 meeting, Brignon resigned as Chairman, and Miller appointed Betty Culbreath to serve as a Commissioner; Culbreath was elected as Board Chairwoman at the January 18, 2007 Board meeting. The Commissioners also resolved at the January 18 meeting that Lott would retain the position of DHA President and CEO, and they authorized Culbreath, as Chairwoman, to negotiate a new employment contract with Lott. The negotiations were to include an eighteen-month extension of Lott's contract term and the creation of criteria by which to evaluate Lott's performance.

Procedural Background

Killingsworth claims that the Commissioners' resolution to retain Lott as DHA President and CEO constituted a repudiation of his letter agreement and that the DHA has refused to allow him to assume the duties under the agreement. He also believes that the Commissioners' decision to disclaim his agreement was influenced by political pressure instigated by several prominent African–American community leaders. That is, Killingsworth contends that Lott was retained as CEO because she is African–American and that he was not put in the position because he is white. Based on these contentions, Killingsworth alleged claims for breach of contract, violations of his procedural and substantive due process rights under section 1983, see 42 U.S.C.A. § 1983, and race discrimination under section 1981, see 42 U.S.C.A. § 1981.

The DHA responded to Killingsworth's breach-of-contract claim by filing a plea to the jurisdiction.⁴ The DHA argued that its immunity from suit was not waived because there was no evidence of a proper contract with Killingsworth. The DHA also filed a counterclaim, seeking a ruling from the court that if the approval of the agreement occurred as alleged (in a closed, executive session of the Board), then such action was void because the approval did not occur in a properly noticed DHA meeting.⁵ In addition, the DHA filed a motion for protective order in which it sought to preclude Killingsworth from inquiring, through written discovery requests and depositions, about matters that took place during the Board of Commissioners' executive sessions. The DHA argued in its motion for protective order that it should not be required to disclose the substance of such discussions because the discussions are (1) irrelevant to Killingsworth's claims, (2) privileged, and (3) protected from disclosure “as proceedings conducted in a lawfully closed meeting of a governmental entity.” The trial court granted the DHA's motion for protective order and signed an order, sustaining the DHA's objections to certain discovery requests and ordering Killingsworth not to ask deposition questions related to the substance of any discussions or deliberations held in executive session.

The DHA then moved for summary judgment on its counterclaim, arguing, among other things, that the summary-judgment evidence establishes that the approval of the Board as required by the terms of the letter agreement never occurred. The trial court denied both the DHA's motion for summary judgment and plea to the jurisdiction. We affirmed the denial of the plea to the jurisdiction and entered judgment on January 5, 2011. See Killingsworth, 331 S.W.3d at 808. The Texas Supreme Court denied the DHA's petition for review on May 6, 2011, and the case resumed in the trial court.

Between July and December 2011, Killingsworth took the depositions of Velazquez, Washington, Brignon, Lott, Miller, and Culbreath. Killingsworth gave his deposition on January 8, 2010, but the transcript of his deposition was not available until January 18, 2010, one day before the hearing on the DHA's plea to the jurisdiction. No excerpts from Killingsworth's deposition were provided as part of the pleadings or record related to the jurisdictional plea.⁶

On December 16, 2011, the DHA moved for summary judgment on all of Killingsworth's claims. The DHA argued that Killingsworth has developed no evidence to support one or more elements for each claim and the conclusive evidence establishes the DHA's entitlement to summary judgment on...