Marguerite Tamasy v. Lone Star College System ( 2021 )

Reversed and Remanded and Majority and Concurring Opinions filed
October 12, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00883-CV
MARGUERITE TAMASY, Appellant
V.
LONE STAR COLLEGE SYSTEM, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2015-71050
CONCURRING OPINION
Although Tamasy’s contracts with Lone Star covered multiple years, the
agreements containing the most favorable language for her are those from 2011 to
2015. Regarding employee benefits, those agreements provide:
. . . Employee shall be extended those benefits which are set forth in
detail by System policy and laws of the State of Texas as may be
amended. These include . . . retirement program participation in
TRS, ORP, TIAA-CREF and/or TDA, when applicable. . . .
(Emphasis added).
To me, this language means that Tamasy must be allowed to participate in the
specific retirement benefit program under state law applicable to her for the years
2011 to 2015.
This clause mentions TRS and ORP, both state law retirement programs.
TRS is the Teacher Retirement System of Texas. See Tex. Gov’t Code §§ 821.001
et seq., 830.0011. ORP refers to the “optional retirement program” authorized by
Government Code Chapter 830. ORP is an alternative to participation in TRS and
is offered to faculty members employed in state-supported institutions of higher
education. See id. §§ 830.001, 830.002(b), 830.101(a); Gillespie v. Univ. of Tex.
Health Sci. Ctr., No. 14-01-00201-CV, 2002 WL 1163002, at *1 n.2 (Tex. App.—
Houston [14th Dist.] May 30, 2002, no pet.) (not designated for publication).1 For
those employees electing to participate in the ORP, the statute requires a
contribution from the employee and a matching contribution from the State, which
are sent to the company controlling the relevant account or annuity. See Tex.
Gov’t Code §§ 830.201, 830.202. The statute further requires an ORP participant
and her employing institution to execute a contract providing for salary reductions
and employer contributions. See id. § 830.204.
Lone Star says it deducted money from Tamasy’s paychecks each pay period
for the purpose of contributing it to a retirement program. Lone Star further
explains that it sent the funds on Tamasy’s behalf to the TRS and not to the ORP.
1
Section 830.101(a) requires the governing board of each institution of higher education
to provide to all faculty members in the component institutions an opportunity to participate in
the ORP. Tex. Gov’t Code § 830.101(a). A member of the retirement system may elect to
participate in the ORP instead of TRS. Id. § 830.102(a).
2
It is undisputed, however, that ORP, not TRS, is the retirement benefit
program applicable to Tamasy, at least for the contract years from 2011 to 2015.
This is established because Lone Star asserted as much in its summary judgment
motion and attached evidence that, in December 2017, it certified a reporting error
under Government Code section 830.108 to restore benefits to Tamasy’s ORP
account.2 Additionally, according to Lone Star, in August 2018 it made payments
to Tamasy’s designated ORP trustee representing the state contribution portion of
her entitlement, together with the required interest payment, as contemplated by
section 830.108. When Lone Star certified the error and made these payments, it
was acknowledging that the ORP is the retirement benefits program applicable to
Tamasy.3
Discussion
Lone Star filed a traditional summary judgment motion on Tamasy’s breach
of contract claim. Lone Star’s summary judgment arguments are condensed to two
main points. First, it argued that the contracts with Tamasy did not obligate Lone
Star to provide any specific retirement benefits to her. It re-asserts this ground on
appeal in defense of the summary judgment. I agree with the majority that Lone
Star’s motion does not show conclusively that at least the 2011-2015 contracts
made no promise for specific pension benefits. Lone Star was obligated to extend
2
Government Code section 830.108 went into effect on September 1, 2017. See Act of
May 17, 2017, 85th Leg., R.S., ch. 186, § 4. Entitled “Correction of Certain Reporting Errors,” it
created a procedure for restoring an employee’s participation in the correct retirement benefits
program, transferring credit for employer contributions, and paying lost interest at a rate of four
percent per year to make affected employees whole. See Tex. Gov’t Code § 830.108.
3
Tamasy presented evidence with her summary judgment response showing that she
informed Lone Star when she was hired that she had elected to participate in the ORP. While I
focus my analysis on whether Lone Star met its initial summary judgment burden as the
movant—and thus it is unnecessary to consider Tamasy’s responsive evidence in the event I
conclude, as I do, that Lone Star failed in its burden—I note Tamasy’s evidence that she elected
ORP participation merely to observe that the parties’ views on this fact are consistent.
3
to Tamasy participation in a retirement program such as either TRS or ORP, as
applicable. If ORP participation is applicable to her, as it is, then the 2011-2015
agreements include an enforceable promise that she be allowed participation in the
ORP.
Lone Star’s second summary judgment ground, also urged on appeal, is that
Tamasy cannot prevail on her breach of contract claim because she has been “made
whole” by Lone Star’s section 830.108 certification and the payment of the
statutorily required funds to her ORP account. When Lone Star asserts that
Tamasy has been “made whole,” it is unclear whether it means there has been no
contract breach, or Tamasy has no damages, or both. I will assume Lone Star
challenged both elements in its summary judgment motion.
Lone Star’s essential point is that it proved that it reported the issue and
made the necessary contributions to the ORP account in Tamasy’s name. In
support, it presented no affidavit or testimony other than business records
affidavits to prove up the documents showing the payments. Tamasy does not
controvert Lone Star’s evidence of the payments to her ORP trustee.
Based on the relevant text of the 2011-2015 agreements, I agree Lone Star
did not conclusively disprove breach for those years. ORP was the retirement
program applicable to Tamasy, but Lone Star failed to deposit her withholdings
into the ORP account and failed to contribute to that account until 2018. Instead, it
contributed to a TRS account inapplicable to Tamasy and for which she was not
eligible. Lone Star did not prove conclusively that it complied with the agreements
from 2011 to 2015.
I also do not believe Lone Star’s summary judgment motion fully and
conclusively disproved the damages element of Tamasy’s contract claim. As a
junior college district created under Education Code Chapter 130, Lone Star is a
4
political subdivision of the state. See Tex. Civ. Prac. & Rem. Code
§ 101.001(3)(B); Lone Star Coll. Sys. v. Immigration Reform Coal., 418 S.W.3d
263, 270 n.7, 271 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Lone Star is
authorized to enter into contracts and, for those contracts it executes subject to
subchapter 271 of the Local Government Code, the Legislature has waived Lone
Star’s governmental immunity from suit for the purpose of adjudicating a claim for
breach of the contract. See Tex. Loc. Gov’t Code §§ 271.151, 271.152; Clear
Creek Indep. Sch. Dist. v. Cotton Commercial USA, Inc., 529 S.W.3d 569, 585
(Tex. App.—Houston [14th Dist.] 2017, pet. denied). In such proceedings, the
total amount of money awarded in an adjudication brought against a local
governmental entity for breach of a contract subject to subchapter 271 is limited to,
as relevant: (1) the balance due and owed by the local governmental entity under
the contract as it may have been amended; (2) reasonable and necessary attorneys’
fees that are “equitable and just”; and (3) interest. Tex. Loc. Gov’t Code
§ 271.153.
Lone Star proved payments in accordance with Chapter 830 to restore
Tamasy’s ORP account. It is unclear, however, on this record, whether those
payments demonstrate that Tamasy has received the “balance due and owed” under
those agreements that contain enforceable promises to extend ORP retirement
benefits. In its motion, Lone Star did not attempt to prove that Tamasy’s ORP
account balance is now equal to or greater than what it would have been if Lone
Star had been contributing to the ORP account all along. Nor do I see any
agreement among the parties on that point in the record.
Even if Lone Star proved that Tamasy’s ORP account value is today what it
would have been if Lone Star had made contributions to ORP instead of TRS
throughout the relevant years of Tamasy’s employment, this case still is not moot
5
because Tamasy potentially remains entitled to attorneys’ fees, if any, as are
“equitable and just.” Id. Even if the payments to her ORP trustee satisfy the
“balance due and owed” by Lone Star, those payments did not occur until 2018,
after she filed suit. Tamasy’s live petition pleads for attorneys’ fees, and Lone Star
did not disprove attorneys’ fees or mention them in its summary judgment motion.
For these reasons, I concur in this court’s judgment to reverse and remand
the cause for further proceedings.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Poissant, and Wilson. (Poissant, J., majority).
6