Pegasus School of Liberal Arts & Sciences v. Kimberly Ball-Lowder ( 2013 )


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  • AFFIRM; Opinion Filed November 18, 2013.
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-13-00482-CV
    PEGASUS SCHOOL OF LIBERAL ARTS & SCIENCES, Appellant
    V.
    KIMBERLY BALL-LOWDER, Appellee
    On Appeal from the 191st Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. 12-14617
    OPINION
    Before Justices Moseley, Lang, and Brown
    Opinion by Justice Lang
    This interlocutory appeal presents the question whether an open-enrollment charter
    school, which enjoys governmental immunity from suit, is a “local government entity” for which
    governmental immunity is waived respecting claims under the Texas Whistleblower Protection
    Act. See LTTS Charter Sch., Inc. v. C2 Constr., Inc., 
    358 S.W.3d 725
    , 736 (Tex. App.—Dallas
    2011, pet. denied) (C2 Constr. III); TEX. GOV’T CODE ANN. §§ 554.001–.010 (West 2012). In
    Ohnesorge v. Winfree Academy Charter School, 
    328 S.W.3d 654
    , 658 (Tex. App.—Dallas 2010,
    no pet.), we decided the Whistleblower Protection Act did not apply to charter schools.
    Subsequently, the Texas Supreme Court decided LTTS Charter School, Inc. v. C2 Construction,
    Inc., 
    342 S.W.3d 73
    (Tex. 2011) (C2 Constr. II), opinion on remand, C2 Construction III, 
    358 S.W.3d 725
    . Today we conclude that our reasoning in Ohnesorge is not consistent with C2
    Construction II or III, and that the Whistleblower Protection Act applies to an open-enrollment
    charter school. Therefore, we affirm the trial court’s order denying the plea to the jurisdiction of
    appellant Pegasus School of Liberal Arts and Sciences (Pegasus).
    I. FACTUAL AND PROCEDURAL CONTEXT
    Pegasus is a private nonprofit corporation that operates an open-enrollment charter school
    in Dallas under a charter contract with the State of Texas. Appellee Kimberly Ball-Lowder was
    a teacher at Pegasus who complained about allegedly illegal activity there, first to school
    officials, and then to the State Auditor’s Office, the Dallas Fire Department, the Texas Charter
    School Association, the Dallas County District Attorney, and the Texas Education Agency.
    Ball-Lowder was fired in August 2012. She brought suit for wrongful discharge under the Texas
    Whistleblower Protection Act, alleging in her petition that she was “terminated in retaliation for
    reporting a violation of law to an appropriate law enforcement authority.” Pegasus denied Ball-
    Lowder’s allegations. 1
    Pegasus filed a plea to the jurisdiction, asserting that Ball-Lowder’s claims must be
    dismissed because the Whistleblower Protection Act is not applicable to a Texas open-
    enrollment charter school. Ball-Lowder contended in her response to the plea to the jurisdiction
    that Ohnesorge was wrongly decided and was overruled by the supreme court’s decision in C2
    Construction II. She argued that under C2 Construction II, open-enrollment charter schools are
    subject to the Whistleblower Protection Act. The trial court denied Pegasus’s plea. This appeal
    followed.
    1
    As Pegasus states in its appellant’s brief, the facts surrounding Ball-Lowder’s termination are not at issue in this interlocutory appeal. See
    C2 Constr. 
    III, 358 S.W.3d at 732
    (in performing de novo review of trial court’s subject matter jurisdiction, court of appeals does not look to
    merits of case, but considers only pleadings and evidence relevant to jurisdictional inquiry).
    –2–
    II. INTERLOCUTORY APPEAL AND STANDARD OF REVIEW
    Under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, a person may
    appeal an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a
    “governmental unit” as defined in section 101.001 of that code. See TEX. CIV. PRAC. & REM.
    CODE ANN. § 51.014(a)(8) (West Supp. 2013) (appeal from interlocutory order); TEX. CIV. PRAC.
    & REM. CODE ANN. § 101.001(3) (West Supp. 2013) (definitions). An open-enrollment charter
    school is a “governmental unit” that may bring an interlocutory appeal under section
    51.014(a)(8). C2 Constr. 
    II, 342 S.W.3d at 82
    . We review de novo a challenge to the trial
    court’s subject matter jurisdiction. City of Dallas v. Hughes, 
    344 S.W.3d 549
    , 553 (Tex. App.—
    Dallas 2011, no pet.).
    III. APPLICABLE LAW APPLIED TO THE WHISTLEBLOWER PROTECTION ACT
    The Whistleblower Protection Act prohibits a “state or local government entity” from
    taking adverse personnel action against a public employee who in good faith reports a violation
    of law by the employing governmental entity or another public employee to an appropriate law
    enforcement authority. TEX. GOV’T CODE ANN. § 554.002(a); see also 
    Ohnesorge, 328 S.W.3d at 655
    . The Act defines “local government entity” in section 554.001(2):
    (2) “Local governmental entity” means a political subdivision of
    the state, including a:
    (A) county;
    (B) municipality;
    (C) public school district; or
    (D) special-purpose district or authority.
    The Act also contains a waiver of governmental immunity. Section 554.0035 of the Act,
    entitled “Waiver of Immunity,” provides: “A public employee who alleges a violation of this
    chapter may sue the employing state or local government entity for the relief provided by this
    –3–
    chapter. Sovereign immunity2 is waived and abolished to the extent of liability for relief under
    this chapter for a violation of this chapter.” TEX. GOV’T CODE ANN. § 554.0035 (West 2012)
    (footnote added).
    In Ohnesorge, we determined that even though an open-enrollment charter school may be
    a “public school,” it was neither a “public school district” nor a “political subdivision of the
    state,” and therefore was not a “local government entity” for purposes of section 554.001(2).
    
    Ohnesorge, 328 S.W.3d at 657
    . We explained that “the legislature has specified the statutes
    under which an open-enrollment charter school is considered a ‘governmental entity,’ ‘political
    subdivision,’ ‘local government,’ or ‘governmental body.’” 
    Id. at 658.
    3 We noted that none of
    these specific statutory provisions identified an open-enrollment charter school as a “local
    government entity” for purposes of the Whistleblower Protection Act. 
    Id. Pegasus makes
    a
    similar argument here, urging that the legislature has “taken great pains to identify and
    enumerate only those statutes where the Legislature intended for open-enrollment charter schools
    . . . to be treated as public school districts or local governmental entities.” 4
    2
    The terms “sovereign immunity” and “governmental immunity” involve “two distinct concepts.” See Wichita Falls State Hosp. v. Taylor,
    
    106 S.W.3d 692
    , 694 n.3 (Tex. 2003). Sovereign immunity refers to the State’s immunity from suit and liability. 
    Id. Governmental immunity
    protects political subdivisions of the State, including counties, cities, and school districts. 
    Id. The supreme
    court in Taylor observed that despite
    the distinction, courts often use the two terms interchangeably. 
    Id. In this
    case, we interpret section 554.0035, in which the Legislature has
    chosen to use the term “sovereign immunity” as being expressly applicable to a “local government entity.” We need not decide whether in
    section 554.0035 the Legislature used the two concepts interchangeably as suggested in Taylor. Rather, as discussed below, we follow the
    reasoning in C2 Construction III because the statute at issue in that case used similar language to that in section 554.0035 when declaring a
    waiver of “sovereign immunity” for a “local government entity.” See TEX. LOC. GOV’T CODE ANN. § 271.152 (West 2005).
    3
    In our discussion, we examined section 12.105 of the Texas Education Code, providing that “[a]n open-enrollment charter school is part
    of the public school system of this state,” and Texas Education Agency regulations defining a charter school as “[a] Texas public school operated
    by a charter holder under an open-enrollment charter.” TEX. EDUC. CODE ANN. § 12.105 (West 2012); 19 Tex. Admin. Code § 100.1011(3) (Tex.
    Educ. Agency, Definitions); 
    Ohnesorge, 328 S.W.3d at 657
    . We also considered statutory and constitutional provisions as well as case law
    relevant to the meaning of “public school district” and “political subdivision.” See 
    id. (citing TEX.
    CONST. art. VII, § 3; TEX. EDUC. CODE ANN.
    §§ 11.002, .051, .303, .353; and Guar. Petroleum Corp. v. Armstrong, 
    609 S.W.2d 529
    , 531 (Tex. 1980)). Also, we distinguished two opinions of
    the Texas Attorney General applying definitions of “political subdivision” and “independent school district” to charter schools in different
    contexts. See 
    id. (distinguishing Tex.
    Att’y Gen. Op. No. GA-0629 (2008) because it interpreted definition of “political subdivision” from
    government code, not Whistleblower Protection Act, and distinguishing Tex. Att’y Gen. Op. No. GA-0664 (2008) because it addressed unrelated
    issue of “a gratuitous payment of a county’s public money to a charter school”). In light of the many statutory provisions specifically addressing
    their application to charter schools, we declined to apply the provisions of the Whistleblower Protection Act to a charter school in the absence of
    specific legislative direction to do so. See 
    Ohnesorge, 328 S.W.3d at 658
    .
    4
    The dissenting justices in C2 Construction II also make this point, noting that section 12.1053 of the Texas Education Code “demonstrates
    a clear intent to only apply very specific definitions and provisions from the Government Code and the Local Government Code to charter
    schools.” C2 Constr. 
    II, 342 S.W.3d at 85
    (Guzman, J., dissenting).
    –4–
    In Ohnesorge, we also relied on our opinion in LTTS Charter School, Inc. v. C2
    Construction, Inc., 
    288 S.W.3d 31
    (Tex. App.—Dallas 2009) (C2 Constr. I), reversed, C2
    Constr. II, 
    342 S.W.3d 73
    , opinion on remand, C2 Constr. III, 
    358 S.W.3d 725
    . We cited C2
    Construction I for the proposition that section 12.105 of the Texas Education Code “does not
    establish an open-enrollment charter school as being the same as a school district” or a “‘political
    subdivision’ in all situations.” See 
    Ohnesorge, 328 S.W.3d at 656
    –57, 658 (quoting C2 Constr.
    
    I, 288 S.W.3d at 34
    , 35). However, our judgment in C2 Construction I was reversed by the
    supreme court after we decided Ohnesorge. See generally C2 Constr. 
    II, 342 S.W.3d at 73
    –82
    (majority opinion).
    The C2 Construction cases did not arise under the Whistleblower Protection Act.
    Instead, a construction company brought suit against an open-enrollment charter school for sums
    allegedly due for construction work. C2 Constr. 
    I, 288 S.W.3d at 32
    . The supreme court framed
    the “narrow issue” presented, and the answer:          “Is an open-enrollment charter school a
    ‘governmental unit’ as defined in Section 101.001(3)(D) of the Tort Claims Act and thus able to
    take an interlocutory appeal from a trial court’s denial of its plea to the jurisdiction? We answer
    yes.” C2 Constr. 
    II, 342 S.W.3d at 74
    –75 (footnotes omitted).
    The definition of “governmental unit” in the Tort Claims Act at issue in C2 Construction
    II is different from the definition of “local government entity” in the Whistleblower Protection
    Act. Section 101.001(3) of the Tort Claims Act “states a four-part definition of ‘governmental
    unit,’” including a “broad,” “catch-all” provision in subsection (D). C2 Constr. 
    II, 342 S.W.3d at 75
    –76. Subsection (D) provides:
    (D) any other institution, agency, or organ of government the status
    and authority of which are derived from the Constitution of Texas
    or from laws passed by the legislature under the constitution.
    –5–
    TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(D) (West Supp. 2013) (quoted in C2 Constr.
    
    II, 342 S.W.3d at 76
    ). The court in C2 Construction II concluded that both the “status” and the
    “authority” of open-enrollment charter schools were “derived from . . . laws passed by the
    legislature,” so that the charter school in question was a “governmental unit” under subsection
    (D). See C2 Constr. 
    II, 342 S.W.3d at 76
    –78. Therefore, the supreme court determined this
    court had interlocutory appeal jurisdiction of the trial court’s ruling on the charter school’s plea
    to the jurisdiction. 
    Id. 5 After
    the C2 Construction II court determined we had jurisdiction to hear the charter
    school’s interlocutory appeal, on remand we considered the merits of the charter school’s plea to
    the jurisdiction. See C2 Constr. 
    III, 358 S.W.3d at 732
    . The merits included the question
    whether the charter school had immunity from suit. 
    Id. at 735.
    Although the supreme court
    stated that it “reserved judgment” on the question of immunity from suit in C2 Construction II,
    the supreme court’s opinion included a lengthy footnote analyzing an argument made by the
    Solicitor General regarding the immunity of charter schools from suit. C2 Constr. 
    II, 342 S.W.3d at 78
    n. 44. The Solicitor General reasoned that if open-enrollment charter schools were
    not “governmental units” under the Tort Claims Act, they would enjoy “greater tort immunity
    than cities, counties, school districts, and other purely governmental entities.” 
    Id. The court
    noted that it “would seem odd” for lawmakers to “imbue open-enrollment charter schools with
    [such] greater tort immunity . . . . 
    Id. 6 5
            We note that the C2 Construction II court did not decide whether an open-enrollment charter school met the definition of a “governmental
    unit” in subsection (B) of section 101.001(3). See 
    id. at 76
    n.13 (“We need not discuss Subsection (3)(B) since we hold that open-enrollment
    charters fall under Subsection (3)(D).”). Unlike the broad catch-all language in subsection (D), subsection (B) lists specific terms such as
    “political subdivision” and “school district,” similar to the terms used in the Whistleblower Protection Act. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 101.001(3)(B) (West Supp. 2013). The Whistleblower Protection Act does not contain a catch-all provision similar to subsection (D).
    Nonetheless, as explained below, we reasoned in C2 Construction III that a charter school fit within definitions of “local governmental entity,”
    “political subdivision,” and “public school district” in the similarly-worded provisions of section 271.151 of the Local Government Code, see C2
    Constr. 
    II, 358 S.W.3d at 735
    –36, 741–42, and that reasoning is equally applicable here.
    6
    The court’s discussion in its entirety is as follows:
    –6–
    In considering whether the charter school had immunity from suit, we heeded the
    supreme court’s detailed review of the numerous statutes conferring “governmental ‘status and
    authority’” on open-enrollment charter schools as well as the discussion in footnote 44. See C2
    Constr. I
    II, 358 S.W.3d at 735
    (discussing C2 Constr. 
    II, 342 S.W.3d at 77
    –78). A critical
    conclusion of the supreme court that directed our decision was that the status of open-enrollment
    charter schools “as ‘part of the public school system of the state’—and their authority to wield
    ‘the powers granted to [traditional public] schools’ and to receive and spend state tax dollars
    (and in many ways to function as a government entity)—derive wholly from the comprehensive
    statutory regime described above.” C2 Constr. 
    II, 342 S.W.3d at 78
    (citing and quoting TEX.
    EDUC. CODE §§ 12.105, 12.104(a), 12.106, 12.107, and 12.1053). Accordingly, we stated that
    “[t]hose same attributes and circumstances support a conclusion of governmental immunity.” C2
    Constr. 
    III¸ 358 S.W.3d at 735
    . We concluded that “based on the supreme court’s analysis in
    [C2 Construction II] . . . open-enrollment charter schools have governmental immunity from
    suit.” 
    Id. at 736.
    We leave undecided the separate issue of whether Universal Academy is immune from suit. The
    Solicitor General of Texas—responding to our request for briefing from the State—contends that
    denying “governmental unit” status “would make little sense because the Legislature has expressly
    granted open-enrollment charter schools immunity from liability.” It is true that Section 12.1056 of
    the Education Code, while not mentioning immunity from suit, specifies that open-enrollment
    charter schools are “immune from liability to the same extent as a school district.” TEX. EDUC. CODE
    § 12.1056. Our holding today that Universal Academy is a “governmental unit” under the Tort
    Claims Act entitled to take an interlocutory appeal does not turn on Section 12.1056’s mention of
    immunity from liability. While that provision, like several other Education Code provisions, implies
    legislative recognition of “governmental unit” status for open-enrollment charter schools, we reserve
    judgment on: (1) whether Universal Academy, while entitled to take an interlocutory appeal, also has
    immunity from suit; and more fundamentally (2) whether the Legislature in fact has the authority to
    confer (as opposed to waive) immunity, a common-law creature traditionally delimited by the
    judiciary. That said, the Solicitor General pivots on Section 12.1056’s grant of immunity from
    liability to argue that if open-enrollment charter schools are not governmental units under the Tort
    Claims Act, then the Act does not apply. And if the Act does not apply, then an open-enrollment
    charter school’s immunity from tort liability is never waived. And if immunity is never waived, then
    Section 12.1056 would suggest that open-enrollment charter schools are immune from all tort
    liability, unique among all governmental entities in the State. The Solicitor General sees this as an
    illogical and surely unintended outcome—traditional public schools exposed to tort liability but
    charter schools exempt from it. We do not consider today the scope or effect of Section 12.1056, but
    assuming arguendo the Legislature can grant immunity from liability, it would seem odd for
    lawmakers to imbue open-enrollment charter schools with greater tort immunity than cities, counties,
    school districts, and other purely governmental entities. Again, we reserve judgment on Universal's
    immunity from suit, an issue not before us.
    C2 Constr. 
    II, 342 S.W.3d at 78
    n.44 (emphasis in original).
    –7–
    We then proceeded to consider the question whether the charter school’s governmental
    immunity had been waived by the legislature. The statutory provision at issue on remand in C2
    Construction III was neither the Tort Claims Act as in C2 Construction II, nor the Whistleblower
    Protection Act as in Ohnesorge. Instead, the provision at issue was section 271.152 of the Local
    Government Code. See TEX. LOC. GOV’T CODE ANN. § 271.152 (West 2005) (entitled “Waiver
    of Immunity to Suit for Certain Claims”). Section 271.152 provides that a “local governmental
    entity” waives “sovereign immunity to suit” for the purpose of adjudicating a claim for breach of
    contract where the contract meets the requirements of Subchapter I of Chapter 271 of the Local
    Government Code. See TEX. LOC. GOV’T CODE ANN. § 271.152. Subchapter I 7 contains its own
    definition of “local governmental entity” in section 271.151(3):
    (3) “Local governmental entity” means a political subdivision of
    this state . . . including a: . . .
    (B) public school district and junior college district . . . .
    TEX. LOC. GOV’T CODE ANN. § 271.151(3) (West 2005). Accordingly, we were required to
    decide whether an open-enrollment charter school was a “political subdivision” or “public school
    district” for purposes of the definition of “local government entity” under section 271.151(3) in
    order to answer the question whether the legislature had waived the immunity of a charter school
    regarding the breach of contract claim before the court. C2 Constr. 
    III, 358 S.W.3d at 734
    .
    We concluded an open-enrollment charter school is a “local government entity” for
    purposes of the waiver of immunity in section 271.152. 
    Id. at 742;
    see also LTTS Charter Sch.,
    Inc. v. Palasota, 
    362 S.W.3d 202
    , 210 (Tex. App.—Dallas 2012, no pet.) (following C2 Constr.
    7
    The Education Code expressly provides that an open-enrollment charter school is a “governmental entity” for purposes of Subchapter B of
    Chapter 21 of the Local Government Code (regarding competitive bidding on certain public works contracts), but does not mention Subchapter I
    of the same chapter where the waiver of immunity is found. See TEX. EDUC. CODE ANN. § 12.1053(b)(1)(B) (West 2012) (“An open-enrollment
    charter school is considered to be . . . a governmental entity for purposes of . . . Subchapter B, Chapter 271, Local Government Code . . . .”). The
    same section of the Education Code provides that an open-enrollment charter school is considered to be a “political subdivision” for purposes of
    Subchapter A, Chapter 2254 of the Government Code, the Professional Services Procurement Act. See TEX. EDUC. CODE ANN. § 12.1053(b)(2)
    (West 2012).
    –8–
    III). We reasoned that if an open-enrollment charter school was not a “local government entity”
    for purposes of section 271.152, then its immunity would never be waived in breach of contract
    actions, and “that result would seem odd.” 
    Id. at 741
    (citing C2 Constr. 
    II, 342 S.W.3d at 78
    n.44). We stated, “[b]ecause the consequences of concluding open-enrollment charter schools
    are not ‘local governmental entities’ under section 271.152 would be neither just nor reasonable
    under the logic expressed by the supreme court, we decline to do so.” 
    Id. at 742.
    However, we
    concluded there was no waiver of governmental immunity as to C2 Construction’s claim for
    breach of contract because the provisions of the contract at issue did not satisfy the requirements
    of section 271.152 of the Local Government Code. 
    Id. at 744.
    That history brings us to the
    present appeal.
    Although here we interpret the Whistleblower Protection Act rather than the Local
    Government Code, the pertinent statutory provisions in question are almost identical. Compare
    TEX. GOV’T CODE ANN. § 554.002(a) (Whistleblower Protection Act) (“‘Local governmental
    entity’ means a political subdivision of the state, including a . . . public school district”), with
    TEX. LOC. GOV’T CODE ANN. § 271.151(3) (“‘Local governmental entity’ means a political
    subdivision of this state . . . including a . . . public school district”).   The “attributes and
    circumstances” of open-enrollment charter schools we relied on in C2 Construction III to support
    our conclusions regarding immunity and applicability of the waiver of immunity under the Local
    Government Code are equally relevant and applicable here. See C2 Constr. 
    III, 358 S.W.3d at 736
    –37, 741 (open-enrollment charter schools are part of public school system, have
    responsibility for implementing state’s school system of public education, and are subject to state
    laws and rules governing public schools, among other factors). An “odd result” would occur if
    an open-enrollment charter school, which is “immune from liability to the same extent as a
    school district,” see TEX. EDUC. CODE ANN. § 12.1056, and is “part of the public school system
    –9–
    of this state,” 
    id. § 12.105,
    is not a “local governmental entity” subject to the waiver of immunity
    in section 554.0035 of the Whistleblower Protection Act, and would enjoy greater immunity than
    “school districts and other purely governmental entities.”                                         See TEX. GOV’T CODE ANN.
    § 554.0035 (quoted in note 2 above); C2 Constr. 
    II, 342 S.W.3d at 78
    n.44; C2 Constr. 
    III, 358 S.W.3d at 741
    . Accordingly, we conclude that an open-enrollment charter school is a “local
    government entity” for purposes of the applicability of the Whistleblower Protection Act. We
    decide against Pegasus on its sole issue.
    IV. THE PEGASUS “PANDORA’S BOX” CONTENTION
    Pegasus argues that “a decision that charter schools are subject to the [Whistleblower
    Protection] Act will defeat the clear legislative intent that they not be under the Act, and will
    additionally open a Pandora’s Box with respect to what other laws these (and other) private
    corporations may be subject to . . . .” Our holding here is not so broad. We are not presented
    with the question whether an open-enrollment charter school is a “governmental entity” for all
    purposes under every statute and regulation utilizing that term. 8 We conclude only that the
    Whistleblower Protection Act’s definition of “local government entity” must be interpreted to
    include an open-enrollment charter school, consistent with our interpretation of the language in
    section 271.151(3) of the Local Government Code as determined in C2 Construction III.
    8
    In the C2 Construction II dissenting opinion, for example, Justice Guzman noted that in four statutes specifically designated as applicable
    to open-enrollment charter schools, none of the definitions of “governmental entity,” “political subdivision,” or “local government” was the same
    as the definition in the Tort Claims Act at issue. See C2 Constr. 
    II, 342 S.W.3d at 85
    (Guzman, J., dissenting). The majority in turn described the
    “all-encompassing legislative regime that called charter schools into existence and that defines their role in our public-education system.” 
    Id. at 81–82.
    The interpretation of any of these statutory provisions will require, as in any other case, that courts “honor the Legislature’s expressed
    intent” by considering the “words the Legislature chose” and the “surrounding statutory landscape” for the particular statute at issue. 
    Id. at 75.
    –10–
    We affirm the trial court’s order denying the plea to the jurisdiction.
    /Douglas S. Lang/
    DOUGLAS S. LANG
    JUSTICE
    130482F.P05
    –11–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PEGASUS SCHOOL OF LIBERAL ARTS                       On Appeal from the 191st Judicial District
    & SCIENCES, Appellant                                Court, Dallas County, Texas
    Trial Court Cause No. 12-14617.
    No. 05-13-00482-CV         V.                        Opinion delivered by Justice Lang. Justices
    Moseley and Brown participating.
    KIMBERLY BALL-LOWDER, Appellee
    In accordance with this Court’s opinion of this date, the order of the trial court denying
    the plea to the jurisdiction of appellant Pegasus School of Liberal Arts & Sciences is
    AFFIRMED.
    It is ORDERED that appellee Kimberly Ball-Lowder recover her costs of this appeal
    from appellant Pegasus School of Liberal Arts & Sciences.
    Judgment entered this 18th day of November, 2013.
    /Douglas S. Lang/
    DOUGLAS S. LANG
    JUSTICE
    –12–