Thomas v. Beaumont Heritage Soc'y

• Decision Date: 05 May 2011
• Docket Number: No. 09–10–00155–CV.,09–10–00155–CV.
• Citation: 268 Ed. Law Rep. 1035,339 S.W.3d 893
• Parties: Carrol THOMAS, Beaumont Independent School District, and Woodrow Reece, Appellants,v.BEAUMONT HERITAGE SOCIETY and Eddie Estilette, Appellees.
• Court: Texas Court of Appeals

339 S.W.3d 893

268 Ed. Law Rep. 1035

Carrol THOMAS, Beaumont Independent School District, and Woodrow Reece, Appellants,

v.BEAUMONT HERITAGE SOCIETY and Eddie Estilette, Appellees.

No. 09–10–00155–CV.

Court of Appeals of Texas, Beaumont.

Submitted Jan. 27, 2011.Decided May 5, 2011.

Melody G. Chappell, Nancy Y. Hart, Wells, Peyton, Greenberg & Hunt, L.L.P., Beaumont, TX, for Appellants.Michael D. Getz, David Vann de Cordova, Jr., Jack Lawrence, Beaumont, TX, for Appellees.Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

This is an appeal from the trial court's judgment that ordered appellant Beaumont Independent School District (“BISD”) to refrain from directly or indirectly using funds from the school bond election of November 6, 2007, “for the demolition, tear-down, destruction, or dismantling” of South Park Middle School (“South Park”) and awarded attorney's fees to appellees Beaumont Heritage Society (“Heritage”) and Eddie Estilette. We affirm the trial court's judgment.

PROCEDURAL BACKGROUND

Appellees Heritage and Estilette filed an application for temporary restraining order, temporary injunction, and permanent injunction against appellants BISD, Carrol Thomas, and Woodrow Reece.¹ Appellees sought to prevent the demolition of South Park. According to appellees, the BISD Board of Trustees “hand-picked” a Community Advisory Bond Committee (“CABC”) “[t]o promote community consensus as well as to assist [the Board] in decisions about numerous projects[.]” Appellees contended that two Beaumont citizens became co-chairmen of the CABC and held various meetings to evaluate the needs of various BISD school buildings, and the possibility of demolishing South Park and building a new school arose.

According to appellees, “thousands of people voiced their objection, giving rise to a petition drive for the purpose of advising BISD that said petitioners did not want to see the school demolished[,]” and the petitions were presented to the BISD Board of Trustees. Appellees asserted that in response to the objections to the possible demolition of South Park, a CABC member promised at various public forums that the South Park main building would not be torn down, and the Beaumont Chamber of Commerce disseminated a publication, with BISD's “full endorsement[,]” which promised that “old South Park” would not be demolished. Appellees maintained that the voters voted for passage of the bond based upon the promises of the BISD Board of Trustees, Thomas, and the CABC, but “once the bond passed, it became apparent that the BISD Board of Trustees and [Thomas] did not plan to keep their promise to not demolish the historic [South Park] building.”

Appellees sought temporary and permanent injunctive relief, declaratory relief, and nominal and exemplary damages for alleged violations of their rights under article 1, section 27 of the Texas Constitution, breach of fiduciary responsibility to the taxpayers of BISD, violation of the Texas Open Meetings Act, and fraud upon the taxpayers of BISD. After conducting a temporary injunction hearing, the trial court signed an order that enjoined appellants from demolishing the South Park main building and ancillary buildings and scheduled the matter for trial on the merits on September 21, 2009. Appellants filed an accelerated interlocutory appeal of the temporary injunction order, and this Court affirmed the trial court's order. Thomas v. Beaumont Heritage Soc'y, 296 S.W.3d 350, 354 (Tex.App.-Beaumont 2009, no pet.); see Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (West 2008).

The case then proceeded to trial on the merits, during which the trial court took judicial notice of the testimony from the previous hearing. ² At the conclusion of the trial, the trial court signed a judgment that did not enjoin BISD from demolishing the building, but did order BISD to “refrain from using any funds, directly or indirectly from the November 6, 2007, school board bond election, for the demolition, tear-down, destruction, or dismantling of ... South Park Middle School.” Heritage and Estilette appealed, and BISD, Thomas, and Reece then filed a notice of appeal concerning the attorney's fees awarded in the judgment. Beaumont Heritage Soc'y v. Thomas, No. 09–10–00155–CV, 2010 WL 2171450, at *1 (Tex.App.-Beaumont May 27, 2010, no pet.) (mem. op.).

Heritage and Estilette subsequently moved to dismiss their appeal on the grounds that the proceeding had “become moot because the building that is the subject of the injunction has been destroyed.” Id. The parties agree that BISD destroyed the building using non-bond funds rather than funds from the school bond election. Accordingly, this Court dismissed the appeal by Heritage and Estilette, but ordered that the appeal by appellants BISD, Thomas, and Reece concerning attorney's fees would continue. Id. The trial court filed findings of fact and conclusions of law, in which it concluded that appellants breached their fiduciary duty to the citizens of BISD, committed fraud, and violated the Open Meetings Act.

ISSUE TWO

In their second issue, which we address first, appellants argue that the trial court erred by permanently enjoining them from using bond funds to demolish South Park. Specifically, appellants argue that the trial court lacked subject matter jurisdiction of the claims for violation of the Open Meetings Act, violation of Article I, section 27 of the Texas Constitution, and that BISD, Thomas, and Reece were immune from suit for fraud on the voters and breach of fiduciary duty.

We turn first to appellants' contention that the trial court lacked subject matter jurisdiction of appellees' claims for violations of the Open Meetings Act and the Texas Constitution. See Tex. Gov't Code Ann. §§ 551.001–551.146 (West 2004 & Supp. 2010); Tex. Const. art. I, § 27. Appellants argue that because appellees failed to exhaust their administrative remedies prior to filing suit, the trial court lacked subject matter jurisdiction of these claims. In their brief, appellants cited to an outdated version of section 7.057 of the Education Code, as well as a case that relied upon that prior version. See Tex. Educ.Code Ann. § 7.057 (West Supp. 2010) (cited by appellants as “Vernon 2006”); Harrison v. Neeley, 229 S.W.3d 745, 746–47 (Tex.App.-San Antonio 2007, pet. denied). At oral argument, appellants conceded that their citation of section 7.057 and Harrison was erroneous and withdrew that argument; however, after oral argument, appellants filed a supplemental brief, in which they re-asserted their arguments concerning the exhaustion of remedies requirement, contending that the prior version of section 7.057 and Harrison governed because the prior version was still in effect when the alleged constitutional and Open Meetings Act violations occurred.

In 2009, the Legislature amended section 7.057 by adding subsection a–1, which provides as follows: “A person is not required to appeal to the commissioner before pursuing a remedy under a law outside of Title 1 or this title to which Title 1 or this title makes reference or with which Title 1 or this title requires compliance.” Tex. Educ.Code Ann. § 7.057. Prior to the 2009 amendment, courts had interpreted section 7.057 to require a plaintiff to exhaust administrative remedies. Harrison, 229 S.W.3d at 746–47 (holding that the 2006 version of section 7.057 required exhaustion of administrative remedies before seeking judicial review of a claim concerning a school district's alleged violation of the Open Meetings Act).

In construing a statute, we must “determine and give effect to the Legislature's intent.” Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). In determining the Legislature's intent, we do not confine our review to isolated words, phrases, or clauses, “but rather we examine the entire act to glean its meaning.” Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001); see also Tex. Gov't Code Ann. § 311.011(a) (West 2005) (instructing courts to construe words and phrases in context). “We look first to the statute's language to determine that intent, as we consider it ‘a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.’ ” Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)). “If the statute's language is unambiguous, its plain meaning will prevail.” Id. The amended version of the statute became effective on June 19, 2009. Tex. Educ.Code Ann. § 7.057.

We presume that statutes are to be applied prospectively unless the Legislature expressly indicates otherwise. Tex. Gov't Code Ann. § 311.022 (West 2005). Therefore, we presume that the 2009 amendment to section 7.057 applies to suits filed on or after the effective date of the amendment. See id.; In re M.W.S.H., No. 07–04–0559–CV, 2006 WL 223753, at *1 (Tex.App.-Amarillo 2006, no pet.) (mem. op.). Had the Legislature intended for the date on which a cause of action accrued to determine whether exhaustion of remedies is required, it could have explicitly said so. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 150.002(f) historical note (West 2011) [Act of May 18, 2005, 79th Leg., R.S., ch. 208, sec. 4, 2005 Tex. Gen. Laws 369, 370] (making that statute applicable to “a cause of action that accrues on or after the effective date of this Act[.]”). Appellees filed their original petition on July 1, 2009. Appellants cite no authority supporting their contention that the date on which appellees' cause of action accrued rather than the date on which appellees filed suit, controls whether section 7.057(a–1) applies. Therefore, appellants' assertion that the trial court lacked subject matter jurisdiction of the claims because appellees failed to exhaust their administrative remedies is without merit.

We turn...