Swanson v. Town of Shady Shores

• Decision Date: 18 August 2016
• Docket Number: NO. 02-15-00356-CV,NO. 02-15-00351-CV,02-15-00351-CV,02-15-00356-CV
• Parties: SARAH SWANSON APPELLANT v. TOWN OF SHADY SHORES APPELLEE AND IN RE TOWN OF SHADY SHORES RELATOR
• Court: Texas Court of Appeals

SARAH SWANSON APPELLANT v. TOWN OF SHADY SHORES APPELLEEANDIN RE TOWN OF SHADY SHORES RELATOR

NO. 02-15-00351-CV

NO. 02-15-00356-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

August 18, 2016

FROM THE 442ND DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 14-02914-158

ORIGINAL PROCEEDING

TRIAL COURT NO. 14-02914-158

MEMORANDUM OPINION¹

On the court's own motion, we have combined cause numbers 02-15-00351-CV, an attempted interlocutory appeal filed by Sarah Swanson, and 02-15-00356-CV, a petition for writ of mandamus filed by the Town of Shady Shores (the Town), because resolution of the issues contained within both causes is intertwined.

Background

Swanson is the former secretary for the Town. Swanson filed suit against the Town claiming she was wrongfully terminated in February 2014. She asserted a statutory wrongful discharge claim under the Texas Whistleblower Act, see Tex. Gov't Code Ann. §§ 554.001-.010 (West 2012), and a common law claim for wrongful discharge under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). The Town filed a plea to the jurisdiction, asserting that the trial court lacked subject matter jurisdiction over Swanson's claims because she could not overcome the Town's entitlement to governmental immunity from suit. Shortly thereafter, Swanson amended her petition to add a claim for declaratory relief based in part on the Town's alleged violations of the Texas Open Meetings Act, see Tex. Gov't Code Ann. §§ 551.001-.146 (West 2012 & Supp. 2016), and her due process rights under the Texas constitution,see Tex. Const. art. I, § 19, and a claim for alleged violations of her free speech rights under the Texas constitution, see Tex. Const. art. I, § 8.

The Town then filed traditional and no-evidence motions for summary judgment, claiming that governmental immunity barred Swanson's Sabine Pilot, Texas Whistleblower Act, and declaratory judgment claims. The Town also argued in its motions that it was entitled to traditional and no-evidence summary judgment on Swanson's claims that it violated the Texas Open Meetings Act and the Texas constitution on grounds other than governmental immunity.

On September 30, 2015, the trial court granted the Town's plea to the jurisdiction and dismissed Swanson's Texas Whistleblower Act and Sabine Pilot claims for lack of subject matter jurisdiction. Swanson did not file a notice of interlocutory appeal at that time.

In separate orders, the trial court denied the Town's traditional and no-evidence motions for summary judgment on October 21, 2015. On October 27, 2015, the Town filed a notice of accelerated appeal pursuant to civil practice and remedies code section 51.014(a)(8). Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016) (permitting an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit); see Tex. R. App. P. 26.1(b), 28.1(a). The Town stated in its notice of appeal that it was invoking the automatic stay of all other proceedings in the trial court pendingresolution of the appeal.² See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b) (West Supp. 2016).

At the time the Town perfected its interlocutory appeal, trial was set for November 16, 2015. On October 27, 2015—the same day the Town filed its notice of accelerated appeal—Swanson filed a motion in limine and a motion to exclude evidence. On October 28, 2015, the trial court clerk issued citation for service on a new defendant, the Town's mayor; the return on the citation states that she was served by private process server the following day.³ See Tex. R. Civ. P. 99, 106-07.

On October 30, 2015, the Town filed a motion requesting the trial court to enter an order acknowledging that all of the trial court proceedings had been stayed pursuant to section 51.014(b). The Town also filed objections on November 3, 2015, in which it asked the trial court to enter an order voiding all actions it alleged were taken in violation of the automatic stay—Swanson's filing of the motion in limine and motion to exclude evidence, the trial court clerk'sissuance of citation on the Town's mayor, service on the mayor, and the filing of the return of service.

The trial court heard the Town's objections and motion on November 6, 2015, but did not rule on them. According to the Town, during that hearing, the trial court granted Swanson leave to file a motion for a permissive interlocutory appeal from the trial court's September 30, 2015 order granting the Town's plea to the jurisdiction. A few days after the hearing, the Town filed with the trial court proposed orders sustaining its objections and granting its motion.

On November 9, 2015, Swanson filed a notice of accelerated appeal pursuant to civil practice and remedies code section 51.014(a)(8) appealing the trial court's September 30, 2015 order granting the Town's plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8). She also filed a "Petition for Interlocutory Appeal."⁴ This court sent a letter to Swanson questioning our jurisdiction over her appeal:

The court has received a copy of the notice of appeal filed by appellant Sarah Swanson. See Tex. R. App. P. 25.1(e). The court is concerned that it may not have jurisdiction over this appeal because the notice of appeal was not timely filed. The trial court's interlocutory order granting appellee's plea to the jurisdiction was signed on September 30, 2015. Therefore, the notice of appeal was due by October 20, 2015, but was not filed until November 10, 2015. See Tex. R. App. P. 26.1(b), 28.1(a). Unless appellant or any partydesiring to continue the appeal files with the court, on or before Monday, November 23, 2015, a response showing grounds for continuing the appeal, this appeal may be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3.

The court has also received "Appellant's Petition for Interlocutory Appeal." The court is concerned that it lacks jurisdiction over the petition because it does not contain an order signed by the trial court granting appellant permission to appeal the September 30, 2015 order granting appellee's plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West 2015); see also Tex. R. App. P. 28.3(a); Colvin v. B. Spencer & Assocs., No. 01-15-00247-CV, 2015 WL 2228728, at *1-2 (Tex. App.—Houston [1st Dist.] May 12, 2015, no pet.) (mem. op.). Unless appellant, on or before Monday, November 23, 2015, files a response showing grounds for this court's jurisdiction over the petition, including a copy of the trial court's order granting permission to appeal, the petition may be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

On November 10, 2015, Swanson filed a motion for permissive interlocutory appeal in the trial court, and the trial court scheduled a hearing on the motion for November 20, 2015. See Tex. R. Civ. P. 168. On November 18, 2015, the Town filed a petition for writ of mandamus claiming that the trial court and Swanson had violated the automatic stay provided by civil practice and remedies code section 51.014(b)—(1) Swanson by filing motions, requesting issuance of citation for a new defendant (the Town's mayor), and serving the Town's mayor and (2) the trial court by refusing to enforce the stay, holding hearings, granting Swanson leave to file a motion for permissive interlocutory appeal, and scheduling a hearing on Swanson's motion for permissive interlocutory appeal. On November 19, we issued an order staying all of theunderlying proceedings and requesting a response.⁵ See Tex. R. App. 52.8(b), 52.10(b).

The Town's Petition for Writ of Mandamus

In its mandamus petition, the Town asks this court to direct the trial court to stay the underlying proceedings and to enter an order voiding all actions taken in the trial court since the Town filed its notice of interlocutory appeal, specifically including the issuance of citation on the Town's mayor and Swanson's attempts to effect service on the mayor.

The civil practice and remedies code provides for an appeal from an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined by Section 101.001." See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). The Town, which is a governmental unit under section 101.001, is appealing the trial court's orders denying its motions for summary judgment that, in part, sought dismissal of Swanson's declaratory judgment claims based on the Town's entitlement to governmental immunity. The portions of those orders denying the Town's motions for summary judgment on immunity grounds are reviewable by interlocutory appeal under section 51.014(a)(8). See Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (holding that the term "plea to the jurisdiction" in section51.014(a)(8) refers to the substance of the immunity argument rather than "to a particular procedural vehicle"); see also Ware v. Miller, 82 S.W.3d 795, 800 (Tex. App.—Amarillo 2002, pet. denied) (holding appellate jurisdiction over trial court's order denying defendants' plea to the jurisdiction founded on official immunity but not on challenges to plaintiff's standing made in defendants' individual capacities); Montgomery Cty. v. Fuqua, 22 S.W.3d 662, 664 (Tex. App.—Beaumont 2000, pet. denied) (exercising jurisdiction over appeal from the trial court's order denying defendant's motion to dismiss based on a plea to the jurisdiction but not based on the statute of limitations); City of El Campo v. Rubio, 980 S.W.2d 943, 944, 949 (Tex. App.—Corpus Christi 1998, pet. dism'd w.o.j.) (exercising jurisdiction over the part of the trial court's order denying a plea to the jurisdiction and motion for summary judgment based on official immunity, but not over the part denying summary judgment on plaintiff's negligence and intentional infliction of emotional distress claims).

In addition to staying the commencement of the...