Town of Shady Shores v. Swanson

• Decision Date: 18 January 2018
• Docket Number: NO. 02-15-00338-CV,02-15-00338-CV
• Citation: 544 S.W.3d 426
• Parties: TOWN OF SHADY SHORES, Appellant v. Sarah SWANSON, Appellee
• Court: Texas Court of Appeals

544 S.W.3d 426

TOWN OF SHADY SHORES, Appellant

v.Sarah SWANSON, Appellee

NO. 02-15-00338-CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: January 18, 2018

Rehearing Denied March 1, 2018

Reconsideration En Banc Denied March 29, 2018

ATTORNEYS FOR APPELLANT: THOMAS P. BRANDT, LAURA O’LEARY, FANNING HARPER MARTINSON BRANDT & KUTCHIN, P.C., DALLAS, TEXAS.

ATTORNEYS FOR APPELLEE: GRACE WEATHERLY, R. WILLIAM WOOD, WOOD, THACKER & WEATHERLY, P.C., DENTON, TEXAS.

PANEL: SUDDERTH, CJ.; KERR and PITTMAN, JJ.

OPINION

MARK T. PITTMAN, JUSTICE

In this interlocutory appeal, Appellant the Town of Shady Shores (the Town) appeals the trial court’s denial of its no-evidence and traditional motions for summary judgment on the claims brought against it by Appellee Sarah Swanson, the Town’s former city secretary. In six issues, the Town challenges the trial court’s jurisdiction and the trial court’s determination of Swanson’s objections to the Town’s no-evidence summary judgment motion. After careful review, we affirm in part and reverse in part.

I. Background

At a special meeting of the Town of Shady Shores City Council (the Council) on February 24, 2014, the Town provided Swanson with an employee performance evaluation. The Council then gave her ten minutes to respond to the evaluation. It further allowed her to respond in writing and to address the Council regarding the evaluation at a special council meeting three days later on February 27, 2014. Both Swanson and her attorney appeared at the February 27th council meeting. At that meeting, the Council voted to terminate Swanson’s employment for lack of confidence in her performance as city secretary.

See Tex. Loc. Gov't Code Ann. § 22.077(b) (West 2008). Swanson then sued the Town.

In her original petition, Swanson alleged that the Town fired her because she reported and refused to engage in destroying a tape recording of a meeting of the Town’s investment committee, a subcommittee of the Council. She alleged that after she refused, members of the investment committee destroyed the recording; that she told the Council, the mayor, and the Town’s attorney that the recording’s destruction violated state law; and that this reporting led to her firing. Swanson asserted a statutory wrongful discharge claim under the Texas Whistleblower Act, Tex. Gov't Code Ann. § 554.0035 (West 2012), and a common law claim for wrongful discharge under Sabine Pilot Service, Inc. v. Hauck , 687 S.W.2d 733, 735 (Tex. 1985).

In response, the Town filed a plea to the jurisdiction asserting governmental immunity for both claims. Swanson then amended her petition to add a claim for violation of her free speech rights under the Texas Constitution and claims for declaratory relief based on the Town’s alleged violations of the Texas Open Meetings Act (TOMA) and of her rights under the "due course" provision of article 1, section 19 of the Texas Constitution. See Tex. Const. art. I, § 19 ; Tex. Gov't Code Ann. § 551.002 (West 2017). Importantly, Swanson did not allege separate and distinct claims for violations of TOMA or the Texas Constitution, rather she alleges that the Town committed violations of these provisions in support of her standalone claim for a declaratory judgment.

In support of these claims, Swanson alleged that on February 12, 2014, the Council wrongfully deliberated in executive session about whether to terminate her employment, that the decision to do so was also made during executive session that day, and that no agenda had been posted before the meeting apprising the public of the purpose of the executive session. Swanson also alleged that for the February 27, 2014 special council meeting at which the Council terminated her employment, the Town did not post an agenda before the meeting sufficiently apprising the public that action might be taken to remove her from her job. Swanson further asserted that the Town violated article I, section 19 of the Texas Constitution because she was not afforded the opportunity to confront her accusers or otherwise address the Council before the deliberation in which the decision was made to terminate her employment and because no procedure was adopted or employed for her to protest or appeal the Council’s decision. Additionally, Swanson added allegations that the Town fired her in retaliation for reporting not only the destruction of the meeting tape, but also for reporting that the mayor, Cindy Spencer, had taken recordings of town meetings home with her and had at one point intended to call Swanson into a meeting under false pretenses to ask for Swanson’s resignation.

Before the trial court ruled on the Town’s plea to the jurisdiction—rather than amend its plea or file another such plea on the claims in Swanson’s amended petition—the Town filed a motion for traditional summary judgment and a separate motion for no-evidence summary judgment that challenged the trial court’s jurisdiction of Swanson’s additional claims. In its no-evidence motion, the Town asserted that it was entitled to governmental immunity on Swanson’s declaratory judgment claims because she had no evidence that she was entitled to declaratory relief. In its traditional motion, the Town asserted that it was entitled to summary judgment on Swanson’s declaratory judgment claims because the claims did not fall within the scope of permissible declaratory judgment actions against governmental entities.

In her summary judgment response, Swanson argued that the Town was not entitled to a no-evidence summary judgment because it bore the burden of proof on establishing governmental immunity. She also challenged the Town’s traditional grounds, arguing that genuine issues of material fact precluded summary judgment.

The trial court granted the Town’s plea to the jurisdiction as to Swanson’s original claims and dismissed Swanson’s Whistleblower Act and Sabine Pilot claims. The trial court denied the Town’s summary judgment motions. The Town then filed this interlocutory appeal challenging the denial of its motions for summary judgment.

II. Challenges to the Trial Court’s Jurisdiction

A plaintiff has the burden of alleging facts that affirmatively demonstrate that the trial court has subject-matter jurisdiction. Heckman v. Williamson Cty. , 369 S.W.3d 137, 150 (Tex. 2012). Because a governmental unit has immunity from suit, a plaintiff asserting a claim against a governmental unit must allege facts that affirmatively demonstrate that the legislature has waived immunity for the claims brought. Univ. of Tex. at Arlington v. Williams , 455 S.W.3d 640, 643 (Tex. App.—Fort Worth 2013), aff'd, 459 S.W.3d 48 (Tex. 2015).

The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction or by a motion for summary judgment. Bland I.S.D. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). A motion or plea asserting governmental immunity involves a question of law that we review de novo. Harris County Hosp. Dist. v. Tomball Reg'l Hosp. , 283 S.W.3d 838, 842 (Tex. 2009).

When a governmental entity challenges the plaintiff’s pleadings for failing to demonstrate jurisdiction, the court construes the pleadings liberally, taking all factual assertions as true and looking to the plaintiff’s intent. Heckman , 369 S.W.3d at 150. If the plaintiff’s pleadings affirmatively negate the existence of jurisdiction, we must grant the plea to the jurisdiction. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the plaintiffs should be afforded the opportunity to amend. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226–27 (Tex. 2004).

If a defendant governmental entity challenges the existence of jurisdictional facts, a court must also consider the relevant evidence necessary to resolve the jurisdictional issues raised. Heckman , 369 S.W.3d at 150 ; Miranda , 133 S.W.3d at 228. The governmental entity has the burden to assert and support with evidence that the trial court lacks subject matter jurisdiction. Heckman , 369 S.W.3d at 150 ; Miranda , 133 S.W.3d at 228. We must grant the jurisdictional challenge if the governmental entity presents undisputed evidence that negates the existence of the court’s jurisdiction. Heckman , 369 S.W.3d at 150.

III. Swanson Did Not Raise Distinct TOMA Claims.

In its first issue, the Town contends that the trial court had no jurisdiction over Swanson’s TOMA claims. However, the record before us is clear that in the trial court, the Town raised traditional summary judgment grounds asserting its entitlement to judgment on the merits of Swanson’s claims, rather than on jurisdictional, government immunity grounds. See Cullum v. White , 399 S.W.3d 173, 188 (Tex. App.—San Antonio 2011, pet. denied) (noting appellate courts generally do not have jurisdiction to hear the denial of a motion for summary judgment). Further, while Swanson asserted grounds for declaratory relief based on TOMA violations, she did not assert a separate, standalone claim under TOMA. Without a distinct TOMA claim being alleged by Swanson against the Town, we must overrule the Town’s first issue. See Valley Baptist Med. Ctr. v. Gonzalez , 33 S.W.3d 821, 822 (Tex. 2000) ("[C]ourts have no jurisdiction to issue advisory opinions."); accord Princeton Univ. v. Schmid , 455 U.S. 100, 102, 102 S.Ct. 867, 869, 70 L.Ed.2d 855 (1982) ("We do not sit to decide hypothetical issues or to give advisory opinions"). However, to the extent the Town’s arguments apply to its challenges to Swanson’s claim for declaratory relief based on the Town’s alleged TOMA violations, we consider them below under our analysis of the Town’s third issue.

IV. Swanson’s Declaratory Judgment Claims

In its third issue, the Town makes several arguments for why the trial court should have dismissed Swanson’s declaratory judgment claims. First, the Town contends that Swanson does not qualify for relief under the Uniform...