Leonard v. City of Burkburnett

Docket Number02-22-00266-CV
Decision Date28 December 2023
PartiesZACHARY D. LEONARD, Appellant v. CITY OF BURKBURNETT, TEXAS; LAWRENCE CUTRONE; EDDIE STAHR; MICHAEL GUEVARA; AND FRED TILLMAN, Appellees
CourtTexas Court of Appeals

On Appeal from the 30th District Court Wichita County, Texas Trial Court No. DC30-CV2021-0581

Before Kerr, Bassel, and Womack, JJ.

MEMORANDUM OPINION ON REHEARING

Dana Womack Justice

I. Introduction

After we issued a memorandum opinion and judgment in this appeal Appellant and Appellees filed motions for rehearing challenging different parts of our memorandum opinion, but only Appellees challenged part of the judgment. We asked for responses to both motions. After reviewing both motions for rehearing and the parties' respective responses, we deny both motions. However, to clarify our holding on Appellant's claim based on Section 614.023(c) of the Texas Government Code, we withdraw our November 2, 2023 memorandum opinion, and we substitute the following memorandum opinion in its place. We also withdraw the prior judgment and issue a new one so that its date of issuance corresponds with the date of this substituted memorandum opinion.

Appellant Zachary D. Leonard, formerly employed as a police officer by Appellee City of Burkburnett, Texas (the City), filed a lawsuit against the City and certain individuals either currently or formerly employed by it-Appellees Lawrence Cutrone, Eddie Stahr, Michael Guevara, and Fred Tillman (collectively, the Individual Defendants)[1]-following the 2019 termination of his employment. Appellees filed pleas to the jurisdiction, requesting that the trial court dismiss all of Leonard's claims brought against them for lack of subject matter jurisdiction. Through two separate orders, the trial court granted the pleas to the jurisdiction and dismissed all of Leonard's claims. Leonard raises twelve issues in this appeal; underlying all of his complaints is the general argument that the trial court erred by granting the pleas to the jurisdiction and dismissing all of his claims against Appellees. We will affirm in part and reverse and remand in part.

II. Background

A. Leonard is employed by the City as a police officer, organizes efforts to obtain civil-service protection for the City's police-department employees, injures a teenager during a soccer game, and is fired by the City.

As alleged in his live petition, Leonard began his employment as a police officer for the City in 2005. While employed by the City, Leonard was a founding member of the Burkburnett Police Association (the Association), and he served numerous terms as the Secretary-Treasurer of the Association. In 2018, the Association identified alleged morale issues and leadership deficiencies in the City's police department. That same year, the Association undertook an effort to obtain voter approval for civil-service protection for the City's police-department employees. Leonard "was the primary participant in the effort to obtain approval for civil service." According to Leonard, the City's leadership-including Stahr, the City's police chief at the time-opposed the Association's efforts to obtain voter approval for civil-service protection. As alleged by Leonard, City leaders retaliated against Association members by making "threats of shift changes . . . and demotions."

In December 2018-while public debate concerning the civil-service issue was ongoing-Leonard participated in an alumni soccer game at Burkburnett High School. During that soccer game, Leonard collided with a teenager on the opposing team, causing the teenager to suffer injuries. The teenager's parent filed a complaint with the City's police department concerning the incident. According to Leonard, Stahr told him that he would be subjected to an internal affairs investigation and a criminal investigation[2] due to the incident.

In April 2019, Leonard was fired by Cutrone-the City Manager at the time-allegedly due to the soccer-game incident. According to Leonard, Cutrone conducted no investigation, completed no interviews, and reviewed no evidence prior to firing him. Leonard also received a "General Discharge" on his Texas Commission on Law Enforcement (TCOLE) Form F-5, "Separation of Licensee." See Tex. Occ. Code Ann. § 1701.452. Leonard alleges that Tillman-Stahr's successor as the City's police chief-"did not review any documents, statements, or evidence before designating Leonard's F-5 as a General Discharge" and made that designation based solely on instructions from Cutrone and Guevara-the City's attorney.

Leonard appealed his termination to Cutrone but was dissatisfied with the purported lack of "any hearing on his grievance" and with the City's alleged failure to follow proper procedure regarding the appeal of his termination as outlined in the City's Personnel Policy Handbook.[3] Leonard also challenged the "General Discharge" designation on his F-5, appealing that designation to the State Office of Administrative Hearings (SOAH).

B. Leonard files his original petition against the City, Cutrone, and Stahr.

In March 2021, Leonard filed his original petition against the City, Cutrone, and Stahr, alleging the following claims: (1) denial of his rights without due course of law; (2) denial of equal protection under the law; (3) denial of his right to free speech; (4) denial of his right to freely associate and assemble;[4] (5) wrongful termination; (6) denial of his right to petition; (7) violation of Section 617.005 of the Government Code; and (8) civil conspiracy (collectively, the Eight Claims). Included in his description of the Eight Claims is the allegation that Stahr and Cutrone engaged in official oppression. Leonard's petition also included a claim against the City for an alleged violation of the Texas Open Meetings Act (TOMA). Leonard sought declaratory relief, injunctive relief, mandamus relief, and attorney's fees, but he expressly denied "seeking money damages."

C. The City, Cutrone, and Stahr file an answer, special exceptions, and a plea to the jurisdiction; Leonard responds to the plea to the jurisdiction and files his first amended petition; and the trial court grants the plea to the jurisdiction with respect to the Eight Claims.

The City, Cutrone, and Stahr answered Leonard's lawsuit and filed special exceptions.[5] They also filed a plea to the jurisdiction, arguing that Leonard's request for injunctive relief was unverified in contravention of Rule 682 of the Rules of Civil Procedure, that he had failed to plead a cognizable action in equity and thus had failed to invoke a waiver of immunity, that his claim for the alleged violation of Section 617.005 of the Government Code was not actionable, that he had failed to invoke the trial court's jurisdiction under TOMA, that he had failed to properly plead any declaratory judgment action for which immunity was waived, that his plea of "no damages" was a sham to avoid immunity, and that he had failed to exhaust administrative remedies with the Texas Workforce Commission's Civil Rights Division.

Leonard responded to the plea to the jurisdiction, contending that the trial court had jurisdiction over his claims. Leonard also filed his first amended petition, which asserted the same claims as his original petition but also included his signed affidavit in support of the first amended petition's allegations (the First Affidavit), which he cited in footnotes throughout the facts-alleged section of the pleading.

The trial court later held a hearing on the plea to the jurisdiction and took the plea under advisement. Two weeks after the hearing, the trial court signed an order granting the plea to the jurisdiction with respect to the Eight Claims and dismissing the Eight Claims for want of subject matter jurisdiction. As to Leonard's "remaining claims not dismissed," the trial court "allowed [Leonard] the opportunity to amend his pleadings . . . no later than 5:00 PM on October 8, 2021."

D. Leonard files his second amended petition; the City, Cutrone, and Stahr file their first amended plea to the jurisdiction.

At 4:59 p.m. on October 8, 2021, Leonard filed his second amended petition. Despite the trial court's previous dismissal of the Eight Claims, Leonard included all of them in his second amended petition, including his allegations that Cutrone and Stahr had engaged in official oppression. The second amended petition also included a claim against the City for a TOMA violation, and it included a new claim against the City, Cutrone, and Stahr for the purported violation of subsections (a) through (c) of Section 614.023 of the Government Code.[6] Leonard continued to seek declaratory relief, injunctive relief, mandamus relief, and his attorney's fees. Leonard also attached the First Affidavit to the second amended petition.

Later that month, the City, Cutrone, and Stahr filed their first amended plea to the jurisdiction. They argued that Leonard's second amended petition wrongfully included the Eight Claims that had already been dismissed by the trial court. They also argued that Leonard had again failed to plead any cognizable cause of action for which immunity had been waived and, thus, that he had not invoked the trial court's subject matter jurisdiction. Specifically, they addressed each of the claims brought by Leonard in his second amended petition-including the Eight Claims-arguing that each of his claims was not a viable cause of action over which the trial court had jurisdiction.

Attached to the first amended plea to the jurisdiction as Exhibit A is a copy of a March 18, 2019 memorandum from Stahr to Leonard-informing Leonard that he had been placed on administrative leave and that an investigation had been ordered- and a...

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