Kara King, Mayor Council Members Andrea Willott, Jon Cobb, Andrew Clark, Kevin Hight And the City of Bee Cave v. Bill Goodwin ( 2022 )


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  •        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-21-00293-CV
    Kara King, Mayor; Council Members Andrea Willott, Jon Cobb, Andrew Clark,
    Kevin Hight; and the City of Bee Cave, Appellants
    v.
    Bill Goodwin, Appellee
    FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
    NO. D-1-GN-20-003394, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
    MEMORANDUM OPINION
    This is the second appeal to arise from a dispute over a seat on Bee Cave’s city
    council. See generally Goodwin v. Hohl, No. 03-20-00433-CV, 
    2021 WL 6129001
     (Tex. App.—
    Austin Dec. 29, 2021, no pet.) (mem. op.). Appellee Bill Goodwin was serving a two-year term
    of office as an elected member of city council when, on June 19, 2020, his fellow
    councilmembers unanimously voted to remove him from office for purported violations of
    Bee Cave’s home-rule city charter (City Charter). He sued the City of Bee Cave (the City), its
    mayor, and the councilmembers (city officials) in Travis County district court, arguing that
    (1) when “properly construed,” the City Charter does not authorize his removal; (2) the
    provisions relied upon for his removal are facially unconstitutional and unconstitutional as
    applied; (3) the removal violated his right to due process; and (4) his removal constitutes
    arbitrary and capricious governmental action. Finding Goodwin’s first argument meritorious, the
    district court rendered final judgment in his favor and enjoined the city officials
    “from interfering, based on the unlawful removal of Plaintiff Bill Goodwin from office on
    June 17, 2020, with Plaintiff Bill Goodwin exercising his authority, rights, duties and powers as
    a duly elected member of the City of Bee Cave Council [ ] to which he was elected as of
    May 12, 2020 and for the remainder of his term until May 12, 2022.” Goodwin has filed a
    motion to dismiss for want of jurisdiction on the ground that there is no final judgment and a
    motion to expedite. Appellants have also filed a motion to dismiss, arguing that Goodwin’s
    claims became moot at the expiration of his term. Because we agree, we will vacate the district
    court’s judgment and dismiss the cause.
    BACKGROUND
    Although we set forth the facts underlying this appeal in our earlier discussion of
    the dispute, see generally 
    id.,
     for convenience we will summarize them here. Goodwin, at the
    time a sitting councilmember, was reelected to a two-year term on May 12, 2020. A month later,
    his fellow councilmembers voted unanimously to remove him for having allegedly violated
    provisions of the City Charter during his previous term in office. Specifically, councilmembers
    alleged that Goodwin had violated Section 4.02 of the City Charter, which stipulates that “[n]o
    member of the Council, including the Mayor, shall give orders to any subordinate of the City
    Manager, either public or privately.” See Bee Cave, Tex., City Charter § 4.02 (2016). Goodwin
    had apparently sent certain emails regarding city council’s approach to the nascent pandemic,
    and his fellow councilmembers believed those communications violated this provision. Thus,
    acting pursuant to Section 3.03(C)(2), which provides that a councilmember “shall forfeit office
    if that person . . . violates any express prohibition of this Charter,” the councilmembers voted
    2
    to remove Goodwin from office.        See id.   The City then scheduled a special election for
    November 3, 2020, to find a replacement to serve the remainder of Goodwin’s term. But in
    August, with the registration deadline having passed and Courtney Hohl as the only candidate
    registered to appear on the ballot, the City declared Hohl duly elected to the seat. She was sworn
    in on November 6, 2020.
    Goodwin responded to these developments with two lawsuits. First, Goodwin
    filed this suit against the city officials, alleging that they acted ultra vires in removing him from
    office by failing to comply with the City Charter and by violating his constitutional rights. Then,
    while that case was pending before the trial court but before Hohl had taken her oath of office,
    Goodwin filed a second suit in Travis County district court, this time suing Hohl alone and
    seeking to try title to the contested seat and to “enjoin the City officials from interfering
    in Goodwin’s full and complete exercise of the Council seat to which he was elected on
    May 12, 2020.” In lieu of an answer, Hohl filed a plea to the jurisdiction asserting that a claim to
    try title to the seat must be brought as a quo warranto action by the Attorney General or county
    or district attorney.   The district court sustained the plea the following day, dismissing
    Goodwin’s suit with prejudice and rendering a take-nothing judgment against him, and we
    affirmed, holding that Goodwin had no standing to pursue what is, in substance, a quo warranto
    action. See Hohl, 
    2021 WL 6129001
     at *3–4.
    Meanwhile, the parties continued litigating this suit. The city officials filed a plea
    to the jurisdiction, arguing that Goodwin could not overcome governmental immunity. Goodwin
    supplemented his petition with an additional constitutional theory, namely that the provisions of
    the City Charter allegedly limiting councilmembers’ right to free speech are vague or
    impermissibly overbroad. He also filed a motion for summary judgment, urging the district court
    3
    to rule on what he characterized as pure questions of law predicated on “undisputed facts.”
    Then, after Hohl was sworn into office in November, the city officials filed an amended plea to
    the jurisdiction, reasserting their original defense of governmental immunity but also arguing
    that, because Hohl had been sworn into office, the relief Goodwin sought could only be afforded
    through quo warranto. They also filed a “plea to res judicata,” arguing that the dispute had been
    resolved in the earlier-filed lawsuit, which at that point was still pending before this Court, and a
    motion to dismiss under the Texas Tort Claims Act (TTCA), Tex. Civ. Prac. & Rem. Code
    § 101.106(e) (requiring dismissal of tort claims against government employees where plaintiff
    sues employer over “same subject matter”).
    After a hearing on the plea to the jurisdiction and the motion for summary
    judgment, the district court issued a letter ruling, which the city officials challenged with a
    motion for reconsideration, and then rendered final judgment. As relevant here, the judgment
    granted the motion for summary judgment; overruled the plea to the jurisdiction 1; and denied the
    plea to res judicata, the TTCA motion, and the motion for reconsideration. The district court
    declined to reach the constitutional issues asserted in the motion for summary judgment but
    nevertheless held that the city officials’ actions had been ultra vires in that they “were without
    legal authority under the Bee Cave Charter to remove Plaintiff Bill Goodwin from his office.”
    The court then enjoined the city officials “from interfering, based on the unlawful removal
    of Plaintiff Bill Goodwin from office on June 17, 2020, with Plaintiff Bill Goodwin exercising
    his authority, rights, duties and powers as a duly elected member of the City of Bee Cave
    Council [ ] to which he was elected as of May 12, 2020 and for the remainder of his term until
    1   The district court sustained the plea only “to the extent” Goodwin had attempted to
    raise an ultra vires theory against the City itself, as opposed to the city officials.
    4
    May 12, 2022,” and ordered the city officials “to desist and refrain from committing or
    continuing to commit acts in violation of the injunction.” Appellants timely filed this appeal.
    Also pending before this Court are Goodwin’s motions to dismiss for want of appellate
    jurisdiction and to expedite, and appellants’ motion to dismiss this cause as moot. 2
    APPELLATE JURISDICTION
    We begin with Goodwin’s motion to dismiss for want of appellate jurisdiction.
    Dallas Area Rapid Transit v. Amalgamated Transit Union Loc. No. 1338, 
    273 S.W.3d 659
    , 664
    (Tex. 2008). Goodwin argues that we must dismiss the appeal because, while the challenged
    order is labeled “Final Judgment,” the City and city officials refer to their appeal as interlocutory
    in their live (i.e., their second amended) notice of appeal. Although Goodwin “acknowledges
    that Appellants could file an ordinary appeal of the Final Judgment and thereby, appropriately,
    raise their objections to the trial court’s interlocutory orders that merged with the Final
    Judgment,” he contends “an interlocutory appeal is not the procedural vehicle by which to do
    so.” In response to Goodwin’s motion, the City and city officials insist that this cause is properly
    construed as interlocutory because: (1) they have a right to an interlocutory appeal from the
    district court’s denial of their plea to the jurisdiction, see Tex. Civ. Prac. & Rem. Code
    § 51.014(a)(8); (2) they have a right to interlocutory appeal from the district court’s denial of
    their motion to dismiss under the TTCA, see id. § 101.106(e), (f); (3) the district court never
    2    We must address both motions to dismiss because the remedies for the alleged
    jurisdictional defects are different. If Goodwin is correct that the judgment is not final, we will
    simply dismiss the appeal for want of jurisdiction. See, e.g., Shetewy v. Mediation Inst. of
    N. Tex., LLC, 
    624 S.W.3d 285
    , 288 (Tex. App.—Fort Worth 2021, no pet.) (“Because the order
    is not final, we must dismiss this appeal for want of jurisdiction.”). On the other hand, if the case
    has become moot, we must “vacate any order or judgment previously issued and dismiss the case
    for want of jurisdiction.” Heckman v. Williamson County, 
    369 S.W.3d 137
    , 162 (Tex. 2012).
    5
    ruled on their arguments under Rule 162 once Goodwin waived his remaining claims, see Tex.
    R. Civ. P. 162; (4) the district court never resolved Goodwin’s challenge to the constitutionality
    of the quo warranto statute and never informed the Attorney General of the challenge to that
    statute, see Tex. Gov’t Code § 402.010; and (5) the district court implicitly decided the issue of
    title to the disputed council seat without joining Hohl as a jurisdictionally indispensable party,
    see Tex. R. Civ. P. 39.
    Generally, “an appeal may be taken only from a final judgment.” Bonsmara Nat.
    Beef Co.v. Hart of Tex. Cattle Feeders, LLC, 
    603 S.W.3d 385
    , 387 (Tex. 2020) (citing Lehmann
    v. Har-Con Corp., 
    39 S.W.3d 191
    , 195 (Tex. 2001)). A judgment is final for purposes of appeal
    “if either it actually disposes of all claims and parties then before the court, regardless of its
    language, or it states with unmistakable clarity that it is a final judgment as to all claims and all
    parties.” Lehmann, 39 S.W.3d at 192–93. In this case, the City and city officials appeal from
    judgment rendered June 24, 2021. The judgment is both labeled as “final” and states that it fully
    and finally disposes of all issues and claims before the district court, making it final under
    Lehmann for the purposes of appeal.         Appellants nevertheless characterize their appeal as
    “interlocutory” because they want this Court to address several matters they believe predicate to
    final judgment, which they believe are either explicitly or implicitly resolved in the disputed
    judgment. CMH Homes v. Perez, 
    340 S.W.3d 444
    , 447 (Tex. 2011). But the fact that final
    judgment affords more or less relief than warranted renders it reversible, not necessarily
    interlocutory. See Lehmann, 39 S.W.3d at 204. In this case, the issues appellants seek to present
    are properly before this Court because the district court’s treatment of those issues has merged
    into the final judgment from which the City and its officials have timely appealed.              See
    H.B. Zachry Co. v. Thibodeaux, 
    364 S.W.2d 192
    , 193 (Tex. 1963) (per curiam); cf. Surgitek,
    6
    Bristol-Myers Corp. v. Abel, 
    997 S.W.2d 598
    , 601 (Tex. 1999) (explaining that appellate courts
    look to substance of filing, not its title, to determine relief sought).      We therefore deny
    Goodwin’s motion to dismiss and dismiss as moot his motion to expediate.
    Goodwin also argues in a “cross-point on jurisdiction” that the City has no
    standing to appeal because, as Goodwin characterizes it, the City was not “aggrieved” by a final
    judgment, and that regardless, Goodwin expressly waived all but his ultra vires theory, which
    can only be asserted against the officials. See City of El Paso v. Heinrich, 
    284 S.W.3d 366
    , 373
    (Tex. 2009) (observing that ultra vires suits “cannot be brought against the state, which retains
    immunity, but must be brought against the state actors in their official capacity”). “Texas courts
    have long held that an appealing party may not complain of errors that do not injuriously affect it
    or that merely affect the rights of others.” See Torrington Co. v. Stutzman, 
    46 S.W.3d 829
    , 843
    (Tex. 2000). To have standing, “a plaintiff must be personally aggrieved; his alleged injury must
    be concrete and particularized, actual or imminent, not hypothetical.” Finance Comm’n of Tex.
    v. Norwood, 
    418 S.W.3d 566
    , 580 (Tex. 2013). Additionally, the plaintiff’s injury must be
    “likely to be redressed by the requested relief[.]” Heckman v. Williamson County, 
    369 S.W.3d 137
    ,
    155 (Tex. 2012).     Here, the district court’s final judgment issues a permanent injunction
    expressly prohibiting the City itself from “interfering” with Goodwin’s purported rights.
    Therefore, the judgment directly affects the City and the City’s grievance would be redressed by
    the requested relief—a reversal of the entry of final judgment. Accordingly, the City has
    standing to appeal, and we reject Goodwin’s argument to the contrary.
    7
    MOOTNESS
    Appellants have filed a motion to dismiss arguing that the appeal is moot. Texas
    courts may not decide moot controversies. See State ex rel. Best v. Harper, 
    562 S.W.3d 1
    , 6
    (Tex. 2018). The prohibition against deciding moot cases “is rooted in the separation-of-powers
    doctrine that prohibits courts from rendering advisory opinions.” In re Guardianship of Fairley,
    
    650 S.W.3d 372
    , 379 (Tex. 2022). A case becomes moot when “a justiciable controversy no
    longer exists between the parties,” the “parties no longer have a legally cognizable interest in the
    case’s outcome,” the “court can no longer grant the requested relief or otherwise affect the
    parties’ rights or interests,” or “any decision would constitute an impermissible advisory
    opinion.” Electric Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure
    Fund, LLC, 
    619 S.W.3d 628
    , 634–35 (Tex. 2021) (citing Harper, 562 S.W.3d at 6). “A suit may
    become moot at any time, including on appeal.” Fairley, 650 S.W.3d at 379 (citing Heckman,
    369 S.W.3d at 166).
    Appellants argue that the expiration of Goodwin’s term in office moots this
    appeal because he no longer has a legally cognizable interest in the council seat. We agree with
    appellants that the case is moot because a decision from this Court can no longer restore
    Goodwin to the council seat.         See City of Leon Valley v. Martinez, No. 04-19-00879-CV,
    
    2020 WL 6748723
    , at *1 (Tex. App.—San Antonio Nov. 18, 2020, no pet.) (mem. op.) (holding,
    on similar facts, that claim for reinstatement to city council became moot with expiration of
    contested term in office); Fiske v. City of Dallas, 
    220 S.W.3d 547
    , 550 (Tex. App.—Texarkana
    2007, no pet.) (holding that case is moot because “the term of office to which Fiske seeks
    reinstatement has expired” and “no declaration or judgment we could make that could have the
    effect of restoring to Fiske what she lost . . . .”).
    8
    Goodwin responds that there is still a live controversy because of the possibility
    that the same action could occur again if he were to run for office in the future. He further
    argues that he continues to suffer “collateral consequences” from the publicity surrounding his
    removal from office. In other words, Goodwin is invoking two exceptions to the mootness
    doctrine. See Marshall v. Housing Auth. of City of San Antonio, 
    198 S.W.3d 782
    , 789 (Tex.
    2006) (explaining collateral consequences exception); Williams v. Lara, 
    52 S.W.3d 171
    , 184
    (Tex. 2001) (explaining “capable of repetition yet evading review” exception).
    The “capable of repetition yet evading review” exception “applies only in rare
    circumstances.” Williams, 52 S.W.3d at 184 (citing City of Los Angeles v. Lyons, 
    461 U.S. 95
    ,
    109 (1983)). To invoke the exception, the plaintiff must prove two elements: (1) that “the
    challenged action was too short in duration to be litigated fully before the action ceased or
    expired,” and (2) that “a reasonable expectation exists that the same complaining party will be
    subjected to the same action again.” 
    Id.
     Assuming without deciding that Goodwin can establish
    the first element, he nevertheless would be unable to demonstrate a reasonable expectation that
    he might be subject to the same action again. See State v. City of Austin, No. 03-20-00619-CV,
    
    2021 WL 1313349
    , at *6 (Tex. App.—Austin Apr. 8, 2021, no pet.) (mem. op.) (“The ‘mere
    physical or theoretical possibility’ that the same party may be subjected to the same action again
    is not sufficient to satisfy this element.” (quoting Murphy v. Hunt, 
    455 U.S. 478
    , 482 (1982))).
    Goodwin submitted an affidavit averring that he intends to run for a seat on the Bee Cave City
    Council in the future. He emphasizes that “without a final decision on the authority of the
    Council to remove [him] from a new elected future term” for this—or any other—earlier
    9
    violation of the City Charter, “this whole scenario will play out again.” 3 He further states that he
    “offered, via counsel, to drop this case if the Council will officially admit that the Bee Cave City
    Charter does not give the Council authority to remove a Council member from a current term of
    office for a Charter violation that was committed in a prior term of office” but the city officials
    rejected that offer. Goodwin characterizes this refusal as “evidence that it is likely that the
    Council will remove [him] from office if [he is] elected again.” We disagree.
    Even assuming that Goodwin might be elected to the council in the future, there is
    no evidence that the council would likely vote to remove him based on his conduct in previous
    terms of office. At most, Goodwin’s affidavit establishes that the current members of the
    council—who would not necessarily still be in office—are unwilling to categorically rule out
    removing any councilmember for an alleged earlier violation of the City Charter. The affidavit is
    thus too speculative to show more than a theoretical possibility that appellants would subject him
    to the same action again, which is insufficient to satisfy the second element of the exception. See
    Noteware v. Turner, 
    576 S.W.3d 835
    , 843 (Tex. App.—Houston [1st Dist.] 2019, pet. denied)
    (holding that use of misleading ballot language not “capable of repetition” where challenger
    “presented no evidence that a similar discrepancy between the language of the proposed
    proposition and the ballot language [would] necessarily be present”); Nehls v. Hartman
    Newspapers, LP, 
    522 S.W.3d 23
    , 33 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)
    3    This affidavit is properly before us because we have the power “on affidavit or
    otherwise,” to “ascertain the matters of fact that are necessary to the proper exercise of [our]
    jurisdiction.” Tex. Gov’t Code § 22.220(d); see Chisholm Trail SUD Stakeholders Grp.
    v. Chisholm Trail Special Util. Dist., No. 03-18-00566-CV, 
    2020 WL 1281254
    , at *2 (Tex.
    App.—Austin Mar. 18, 2020, pet. denied) (mem. op.) (explaining that court of appeals “could
    only determine whether appeal was moot by considering evidence of matters occurring
    subsequent to trial court’s order because ‘[m]ootness is a matter that ordinarily arises after the
    rendition of the judgment or order appealed from’” (quoting Meeker v. Tarrant Cnty. Coll. Dist.,
    
    317 S.W.3d 754
    , 759 (Tex. App.—Fort Worth 2010, pet. denied))).
    10
    (“Hartman’s bare contention that there is a possibility of a future violation by appellants does
    not establish that a reasonable expectation exists that Hartman will be subjected to the same
    action again.”).
    We similarly reject Goodwin’s collateral-consequences argument. That exception
    applies only to “narrow circumstances when vacating the underlying judgment will not cure the
    adverse consequences suffered by the party seeking to appeal that judgment.”            Marshall,
    198 S.W.3d at 789. Such circumstances exist when, “as a result of the judgment’s entry,”
    (1) “concrete disadvantages or disabilities have in fact occurred, are imminently threatened to
    occur, or are imposed as a matter of law,” and (2) “the concrete disadvantages and disabilities
    will persist even after the judgment is vacated.” Id. Significantly, the exception applies only
    where prejudicial events have occurred “whose effects continued to stigmatize helpless or hated
    individuals.” General Land Off. of State of Tex. v. OXY U.S.A., Inc., 
    789 S.W.2d 569
    , 571
    (Tex. 1990).
    The exception does not apply here. Goodwin argues that he “is stigmatized and
    bears the scar on his reputation as having been removed from office.” He also avers that without
    judicial intervention “voters may not vote for [him] in the future.” Nevertheless, other than
    self-serving, unsupported statements like these, he has produced no evidence of the “stigma,”
    “helpless[ness],” or “hat[red]” that ordinarily enables a litigant to avail himself of the
    collateral-consequences exception to mootness.       See id.; see also Kitchen v. Lutcavage,
    No. 03-19-00421-CV, 
    2020 WL 3468147
    , at *1 (Tex. App.—Austin June 24, 2020, no pet.)
    (mem. op.) (“The ‘collateral consequences’ exception is applied when prejudicial events have
    occurred and the effects continue ‘to stigmatize individuals long after the judgment has ceased to
    operate.’” (quoting Clements v. Haskovec, 
    251 S.W.3d 79
    , 84 (Tex. App.—Corpus Christi–
    11
    Edinburg 2008, no pet.))); cf. Phillips v. Phillips, 651 S.W.3d. 112, 116 (Tex. App.—Houston
    [14th Dist.] 2021, no pet.) (explaining that courts apply this exception to review expired
    protective order “based on a finding of family violence because the ‘effects of a protective order
    carry significant collateral legal repercussions and a social stigma.’” (quoting State for Prot. of
    Cockerham v. Cockerham, 
    218 S.W.3d 298
    , 303 (Tex. App.—Texarkana 2007, no pet.))).
    We conclude that the expiration of Goodwin’s term in office rendered this case
    moot and that no exception to mootness applies. “If a case is or becomes moot, the court must
    vacate any order or judgment previously issued and dismiss the case for want of jurisdiction.”
    Heckman, 369 S.W.3d at 162. We therefore do not reach appellants’ remaining issues. See Tex.
    R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as
    practicable but that addresses every issue raised and necessary to final disposition of
    the appeal.”).
    CONCLUSION
    We deny Goodwin’s motion to dismiss for want of appellate jurisdiction. We
    grant appellants’ motion to dismiss, vacate the district court’s judgment, and dismiss the case for
    want of jurisdiction. See id. R. 43.2(e); Heckman, 369 S.W.3d at 162.
    __________________________________________
    Edward Smith, Justice
    Before Justices Goodwin, Baker, and Smith
    Dissenting Opinion by Justice Baker
    Vacated and Dismissed
    Filed: October 14, 2022
    12