Wheeler v. White

• Decision Date: 06 May 2010
• Docket Number: No. 14-08-00490-CV.,14-08-00490-CV.
• Citation: 314 S.W.3d 225
• Parties: Susan WHEELER, Appellant, v. Honorable Mayor William WHITE, Chief Harold Hurtt, and Officers' Civil Service Commission, Appellees.
• Court: Texas Court of Appeals

314 S.W.3d 225

Susan WHEELER, Appellant, v. Honorable Mayor William WHITE, Chief Harold Hurtt, and Officers' Civil Service Commission, Appellees.

No. 14-08-00490-CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 6, 2010.

COPYRIGHT MATERIAL OMITTED

Gregg M. Rosenberg, Houston, for appellant.

Marcus L. Dobbs, Houston, for appellees.

Panel consists of Chief Justice HEDGES and Justices YATES and FROST.

MAJORITY OPINION

ADELE HEDGES, Chief Justice.

Susan Wheeler, an officer with the Houston Police Department ("HPD"), appeals from the trial court's dismissal of her lawsuit against appellees, Houston Mayor William White, Police Chief Harold Hurtt, and the Police Officers' Civil Service Commission. In her lawsuit, Wheeler sought declaratory and injunctive relief regarding the calculation of her promotion-eligibility score, such scores being used to determine promotions within HPD. Appellees filed a motion to dismiss, alleging that Wheeler did not have standing to bring the lawsuit and the trial court did not have jurisdiction to entertain the lawsuit. The trial court granted the motion. In two issues, Wheeler contends that the trial court erred in determining that (1) the court lacked jurisdiction, and (2) she lacked standing. We affirm.

I. Background

Wheeler is an HPD sergeant seeking promotion to the rank of lieutenant. Pursuant to the Meet and Confer Agreement between the Houston Police Officer's Union ("HPOU") and the City of Houston, promotions within HPD are determined based on candidates' comparative scoring on a number of preset elements, including an independent assessment or evaluation, seniority, written testing, and education attainment. In her lawsuit, Wheeler complains that HPD misinterpreted the Meet and Confer Agreement and thereby miscalculated her total score for a certain promotional period. Specifically, she contends that HPD erred in not giving her credit for having earned a master's degree after having completed the written test. Apparently, HPD interprets the scoring rules as freezing the educational attainment criteria as of the time of the written testing. Wheeler further contends that had she received proper credit for her degree, she would have been promoted to lieutenant.

In her pleadings, Wheeler sought a temporary restraining order to prevent the alleged wrongful deprivation of her property rights to promotion. She also sought a declaratory judgment interpreting the Meet and Confer Agreement such that postgraduate degrees awarded prior to completion of assessment scoring would be included in a candidate's total score. Appellees filed a motion to dismiss alleging, as will be explained more fully below, that the trial court did not have jurisdiction and that Wheeler did not have standing. The trial court granted the motion and dismissed Wheeler's lawsuit without specifying the grounds therefor.

II. Standing

In their motion to dismiss, appellees asserted, inter alia, that Wheeler does not have standing to sue under the Meet and Confer Agreement. In her response, Wheeler contended that she does have standing to sue under the agreement. Standing is a constitutional prerequisite for a party to bring a lawsuit. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993). The issue of standing focuses on the question of who may bring a lawsuit. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998). Standing is a prerequisite to subject matter jurisdiction, and a trial court must have subject matter jurisdiction in order to entertain a particular case. Bland I.S.D. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). A court has no jurisdiction over a claim pursued by a plaintiff who lacks standing to assert the claim. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008). When a plaintiff lacks standing, the proper resolution is to dismiss the lawsuit. Id. Generally, the scope of review on appeal from the grant of a motion to dismiss is limited to the grounds raised in the motion. Williams v. Nealon, 199 S.W.3d 462, 464-65 (Tex.App.-Houston 1st Dist. 2006, no pet.).

A. Meet & Confer Agreement

As stated, both sides base their standing arguments on the Meet and Confer Agreement between the City and HPOU. Under provisions of the Texas Local Government Code, if the Meet and Confer Agreement satisfies certain criteria, then it preempts all contrary local ordinances, executive orders, legislation, or rules adopted by the state or a political subdivision or agent of the state. See Tex. Loc Govt Code 143.361. Furthermore, once these criteria are met, the agreement is enforceable and binding on the employer, the bargaining agent (HPOU), and the employee police officers (including Wheeler). See id. § 143.359. The criteria in question are as follows:

(1) HPOU qualifies as a "bargaining agent" under section 143.352(1);

(2) the agreement was made pursuant to Chapter 143, Subchapter J, of the Local Government Code;

(3) the agreement has been ratified by a majority vote of the City of Houston's governing body; and

(4) the agreement has been ratified by a majority vote in an election held by HPOU under section 143.360.

Tex. Loc. Gov't Code §§ 143.352, 143.359.361.

Although neither Wheeler nor appellees offered evidence below to establish that the Meet and Confer Agreement met these criteria, both assert the validity, enforceability, and applicability of the agreement in their standing arguments. Furthermore, Wheeler not only doesn't contest the enforceability and applicability of the agreement, she is specifically suing to enforce its provisions. Her very cause of action is premised on the enforceability of the Meet and Confer Agreement. If the agreement is not controlling, then she has no cause of action. In other words, the applicability of the agreement is an element of proof for Wheeler. Because Wheeler premised her cause of action on the enforceability of the agreement, she has judicially admitted its enforceability for purposes of this lawsuit. See, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000) ("A judicial admission must be a clear, deliberate, and unequivocal statement . . . and occurs when an assertion of fact is conclusively established in live pleadings . . . .") (internal punctuation and citation omitted). Because of Wheeler's judicial admission, appellees were relieved from having to prove the enforceability of the agreement in making their arguments on standing. See id. ("A judicial admission not only relieves an adversary from making proof of the fact admitted but also bars the party himself from disputing it.") (internal punctuation omitted). We premise our opinion on the Meet and Confer Agreement's satisfaction of the Local Government Code criteria and its effective operation as a statute.

A party suing under a statute, or as here an agreement with the force of a statute, must establish standing, or the right to make a claim, under that statute or agreement. See Exxon Corp. v. Emerald Oil & Gas Co., ___ S.W.3d ___, ___ (Tex.2009). In other words, the agreement itself provides the framework for the standing analysis. Cf. id. We will not imply a right of enforcement simply because a party suffered harm from a breach of the agreement; we look to the intent as expressed in the document. Cf. id.

Moreover, what is typically referred to as "standing" in a contractual context, i.e., "standing" to sue on the contract, is not the same as standing in the jurisdictional sense, even though the analyses of the two types of standing contain similar elements. See Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex.App.-Houston 14th Dist. 2007, no pet.). Here, there is no practical distinction, however, because the agreement in question operates as a statute and trumps all conflicting rules and legislation. See Tex. Loc Govt Code 143.361.

B. Evidence

As indicated, the substance of the parties' standing arguments requires reference to the provisions of the Meet and Confer Agreement. Appellees attached portions of the agreement to their motion to dismiss as well as to a supplemental motion. Wheeler quoted a different portion of the agreement in her response to the motion. Neither side provided a complete copy of the agreement. Therefore, a question arises as to whether we can properly analyze the agreement in the absence of a complete copy.

Generally, in interpreting contracts or other documents, we examine the writing as a whole in an effort to harmonize and give effect to all provisions so that none is rendered meaningless. See rePipe, Inc. v. Turpin, 275 S.W.3d 39, 44 (Tex.App.-Houston 14th Dist. 2008, no pet.). However, the Texas Supreme Court has held that this rule does not necessarily apply in the context of analyzing the right to sue under a contract. See Tex. Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879 (Tex.1999); Paragon Sales Co. v. New Hampshire Ins. Co., 774 S.W.2d 659, 661 (Tex.1989). In Murphy and Paragon Sales, the court explained that in order to prove a right to sue under an insurance policy, a plaintiff was required to establish only those provisions of the policy allowing recovery. Murphy, 996 S.W.2d at 879; Paragon Sales, 774 S.W.2d at 661. Upon such proof, it was incumbent upon the defendant to plead and prove any provisions that would bar recovery. Murphy, 996 S.W.2d at 879; Paragon Sales, 774 S.W.2d at 661. Although these cases involved insurance contracts, their method of proof is readily adaptable in disputes concerning other types of contracts.¹ Indeed, in the jurisdictional context, the Texas Supreme Court has not placed the sole burden of producing evidence on either the party urging standing or jurisdiction or the party contesting standing or jurisdiction.

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