Ward v. Lamar Univ. & Tex. State Univ. Sys., 14-14-00097-CV

• Decision Date: 12 January 2016
• Docket Number: NO. 14-14-00097-CV,14-14-00097-CV
• Parties: VICKI WARD, Appellant v. LAMAR UNIVERSITY AND TEXAS STATE UNIVERSITY SYSTEM, Appellees
• Court: Court of Appeals of Texas

VICKI WARD, Appellant v. LAMAR UNIVERSITY AND TEXAS STATE UNIVERSITY SYSTEM, Appellees

NO. 14-14-00097-CV

State of Texas in the Fourteenth Court of Appeals

January 12, 2016

On Appeal from the 172nd District Court Jefferson County, Texas

Trial Court Cause No. E-194,323

SUBSTITUTE DISSENTING OPINION

I respectfully dissent.

Appellant Vicki Ward filed various claims relating to her alleged employment at both appellee Lamar University and appellee Texas State University System (collectively the "Lamar Parties"). Shortly after perfecting this appeal, Ward resigned her employment. This resignation renders moot Ward's claims for injunctive and declaratory relief against the Lamar Parties based on alleged workplace retaliation against Ward for exercising her free-speech rights. Therefore, this court should vacate the trial court's judgment and dismiss this appeal as to these free-speech retaliation claims rather than addressing the merits of Ward's appeal as to these claims.

Ward's resignation moots her claims for declaratory and injunctive relief regarding alleged retaliation against her for exercising her free-speech rights.

In her live pleading in the trial court, Ward alleged both Lamar Parties employed her. Ward asserted various claims against the Lamar Parties, including claims under the Texas Whistleblower Act, and claims for declaratory and injunctive relief based on alleged adverse personnel actions by the Lamar Parties against Ward in retaliation for exercising her free-speech rights under the Texas Constitution.¹

Less than two months after Ward perfected this appeal from the trial court's order dismissing all of her claims against the Lamar Parties, Ward resigned her employment. Nonetheless, neither Ward nor the Lamar Parties notified this court of Ward's resignation until seventeen months later, when the Lamar Parties moved for rehearing, after the parties had filed their appellate briefs and this court had issued its opinion on original submission. The Lamar Parties attached to their rehearing motion a copy of Ward's resignation letter. In response, Ward admits that this document is her letter of resignation. Yet, Ward asserts that this letter cannot serve as the basis of this court's decision because the resignation letter was not presented to the trial court and is not part of the clerk's record or reporter's record in this appeal. Ward's complaints lack merit because this court mayconsider matters not submitted to the trial court and not contained in the clerk's record or reporter's record for the purpose of determining whether this court has lost jurisdiction because an issue has become moot.² Though it would have been better for the Lamar Parties to have submitted an affidavit or other evidence establishing Ward's resignation, Ward has admitted that this document is her resignation letter, and based on this admission, this court may conclude that Ward has resigned and is no longer employed by the Lamar Parties.

Because Ward has resigned her employment, there is no longer any threat that Ward will suffer adverse personnel actions in retaliation for her exercise of her free-speech rights under the Texas Constitution. Unlike the remedies Ward seeks for her claims under the Texas Whistleblower Act, which contains a waiver of governmental immunity, Ward does not seek money damages based on the alleged adverse personnel actions in retaliation for Ward's exercising her free-speech rights. Rather, Ward seeks only declaratory and injunctive relief. Ward asserts that these claims are not moot because Ward sought attorney's fees under the Declaratory Judgments Act and this request for fees "breathes life" into her claims for declaratory and injunctive relief under Allstate Insurance Company v. Hallman.³

In Hallman, an insured and her insurer filed claims against each other seeking declaratory relief on the issue of whether the insurer had a duty to defend and indemnify the insured.⁴ Both parties sought attorney's fees under theDeclaratory Judgments Act.⁵ On cross-motions for summary judgment, the trial court granted the insurer's motion, denied the insured's motion, denied each party's attorney's-fee request, and rendered a final judgment.⁶ On appeal, the insured challenged the trial court's denial of her attorney's-fee request, and the court of appeals reversed the summary judgment, concluding that the trial court should have granted the insured's motion regarding the coverage issue and that the case should be remanded for the trial court to determine whether to grant the insured's request for attorney's fees.⁷ While the case was pending in the Supreme Court of Texas, the coverage issues that were the subject of the declaratory relief became moot.⁸ Nonetheless, the high court concluded that the appeal had not become moot because there remained a live controversy as to whether the insurer should be ordered to pay the insured's attorney's fees and because the high court needed to resolve the coverage issue to determine whether the case should be remanded to the trial court for reconsideration of the fee request, as the insured requested on appeal and as the court of appeals ordered.⁹

In Ward's case, the trial court did not rule on summary-judgment motions; instead, it granted the Lamar Parties' jurisdictional plea and dismissed all of Ward's claims. Ward first pleaded her claims for declaratory and injunctive relief two days before the trial court conducted a hearing on the Lamar Parties' plea to the jurisdiction and two days before the trial court rendered a final order dismissing all of Ward's claims. Within three months, Ward had resigned her employment, before any of the appellate briefs were filed in this case. Unlike the Hallmanscenario, when Ward filed her appellate brief, she did not challenge the trial court's dismissal of her request for attorney's fees under the Declaratory Judgments Act. On this record, Hallman is not on point and Ward's request in the trial court for attorney's fees under the Declaratory Judgments Act does not preclude her claims for declaratory and injunctive relief regarding her free-speech rights from becoming moot.¹⁰ Thus, Ward's claims against the Lamar Parties for declaratory and injunctive relief based on alleged free-speech retaliation have become moot.¹¹

The majority should not equate a failure to prove Ward's resignation with a potential remand under the Hallman case.

The majority concludes that it need not decide whether the Lamar Parties have proved that Ward resigned her employment because any resignation by Ward would not moot the claims in question under the Hallman case.¹² Even if the Hallman case did apply, this court still would have to determine whether Ward resigned her employment because the scope of remand would be different as to Ward's claims against Lamar University. If Ward has not resigned or if the Lamar Parties have not sufficiently established this resignation, then, under the majority's analysis, this court should be reversing the trial court's order as to the claims against Lamar University for declaratory and injunctive relief based on alleged free-speech retaliation and remanding generally for further proceedings because neither the requests for declaratory and injunctive relief nor the related attorney's-fee request would be moot.¹³ On the other hand, if this court determines that Wardhas resigned, even if Hallman applies, the only issue to be determined on remand would be whether the trial court would like to exercise its discretion to award attorney's fees under the Declaratory Judgments Act in light of the new circumstance that its dismissal of those claims has been determined on appeal to have been erroneous.¹⁴ Therefore, this court should decide whether Ward has resigned her employment.¹⁵

According to the majority, Ward has not admitted that the document attached to the rehearing motion is her resignation letter.¹⁶ Because the Lamar Parties have not proved up the resignation letter or otherwise submitted evidence of Ward's resignation, without such an admission, this court would have no basis to conclude that Ward resigned her employment.¹⁷ In that event, under the majority's analysis, this court would be reversing the trial court's order as to the claims against Lamar University for declaratory and injunctive relief based on alleged free-speech retaliation and remanding generally for further proceedings on the merits because neither the requests for declaratory and injunctive relief nor the related attorney's-fee request would be moot.¹⁸ According to the majority, eventhough Ward has not admitted that the document is her resignation letter, this court need not address whether the Lamar Parties have proved that Ward resigned because the outcome of the mootness inquiry is the same whether or not Ward is employed by the Lamar Parties.¹⁹ Because the answer to the mootness inquiry differs depending on Ward's employment status, and because the majority concludes Ward has not admitted that the document is her resignation letter, this court must determine whether the Lamar Parties have proved that Ward has resigned her employment.²⁰

The majority should clarify what proceedings the trial court should conduct on remand regarding the free-speech-retaliation claims against Lamar University.

The majority reverses the trial court's dismissal order as to the claims against Lamar University for declaratory and injunctive relief based on alleged free-speech retaliation and remands for further proceedings consistent with the majority opinion. The majority concludes that, under Hallman, "Ward's claim is not moot because she sought attorney's fees under the Declaratory Judgments Act" and because, if the trial court erred in dismissing Ward's free-speech retaliation claim, "then further proceedings may show that an award of attorney's fees is appropriate under the Declaratory Judgments Act."²¹ But, even under Hallman, the only further proceedings regarding this...