Ollie, Dorothy v. Plano Independent School District , 2012 Tex. App. LEXIS 8845 ( 2012 )

. [‘Ii I W’4: ( )pinioii issued ( )ctoher 24, 2012.
in The
((turt t( Appra1
,FiitIt k!3trict tif X1!3 &It lZ1LL&13
No. 05-I 2-00077-CV
D( ) R( )TI IY 01111, ppel1iut
I’LN() INDI P1 NIWN I’ Sul IOOL DISTRIC’F, I’A1JRA CRIFH
N,
I)OUCIAS OTTO, ND TAi1MY RICIIARI)S, \ppellees
On \ppcal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219—04411—201 1
OPINION
Before Justices Moseley, [‘ilirnore, and Myers
Opinion By Justice lillmore
I)orothy Ollie brought breach of contract and tort claims against the
Piano Independent
School District ( PISD), Tamira Griffin. individually and as the PISD’s Execut
ive Director ofi-luman
Resources, Douglas Otto, individually and as the PISD’s Superintende
nt of Schools, and Tarnrny
Richards, individually and as President of the PISD’s Board of Trustees,
based on the termination
of Ollie’s employment with the PISD. The trial court granted appellees’
plea to the jurisdiction,
dismissed Ollie’s claims, and assessed attorney’s fees as sanctions agains
t Ollie. In tbur issues, Ollie
argues (I) the trial court abused its discretion by assessing sanctions
against her, (2) the federal
district court presiding over a previous lawsuit filed by Ollie agains
t the PISD did not have
lurisdiction over Ollie’s employment contract, (3) the trial court erred by granting appellees’ plea
to the jurisdiciton, md (4) the l’cxas liducation Agency( lEA) hadjurisdiction to investigate flue’s
coinplaiitts against the l’ISI). We affirm the trial court’s judgment.
Background
(Nile began working as a school teacher for the I’ISD in 1998. In 2006, she tiled a lawsuit
against the PISD in the United States District Court fur the Eastern District of Texas (the district
court) assertingelaims ofracial discrimination, hostile work environment, and retaliation underTitle
VII of The Civil Rights Act of 1964 (ritlc VII)’ and age discrimination under the Age
L)iscrimination in linployment Act (Al)EA)? On March 22,2007. Ollie signed a new employment
contract with the PISD for a three-year period commencing on September 1, 2007 and ending
on
August 31, 2010.
At a March 29, 2007 mediation, Ollie and the PISD entered into a handwritten settlement
agreement ofOllie’s claims in the federal litigation. The terms ofthe agreement provided the PISD
would pay 011k twenty months’ compensation and Ollie would be placed on administrative leave
effective March 30, 2007. Following the mediation, Ollie refused to sign a formal settlement
agreement that required her to resign her employment at the end of the twenty-month period
encompassed by the settlement agreement Ollie claimed the parties intended that she would have
an opportunity to research the amount oftime she needed to quali for full retirement benefits. The
PISD filed a motion to enforce the settlement agreement. On June 25,2007, the district court signed
an order enforcing the settlement agreement as to Ollie’s Title VU claims, but not as to her claims
42 LLS.C.A. 4420Gb •2000o-17 (West 2003).
2
29 U.S.CS. 44621.634 (West 2008). OHio also mated claims for violations of her civil rights under
42 U.S.C.A. 41983 (West 2012).
intentional infliction olemotional distttss. and breach ofcontract based on Ollic’s removal asa’l’eam Leader.” 11w
federal district cowl dismissed
these claims. as well as (Jibe’s claims for punitive damages. These claims do not affect this appeal.
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under the Al )lA.
)n iilv (), 2007. ( )llie o itacted the P1st) ah)iit ieturnnli 1(1 wok in
/\iaetist 2007. ( iitIn
responded that, pursuant to the terms of the settlement agreement, ( )llie was on admin
istrative leave
br twenty months. Un bun subsequently explicitly inbonned Ollie that the
twentymonth paid
administrative leave was a “huyout’ ot Glue’s contract with the P151). UtIle
responded that the
tventymonth period otadm misirative leave contemplated by the settlement agreem
ent was separate
1mm her employment contract. [he l’ISI) then tiled a Request br Clarilication
in the district court
seeking a speca tic tinding that the settlement agreement superceded Gibes emplo
yment contract
with the P151).
)n July 21 , 2008, the district court granted the PISD’s motion hr elan tication
and
determined “the intent ot the parties was fur the 2() months tame tiarne to enable (
)llie to draw limit
retirement benefits, anti, therelure, the parties intended the terms ot the
settlement agreement to
override and replace her teaching contract’ The district court ftnand that
the lact ()ilie later
determined she needed more than twenty months of administrative leave to qualify
for full retirement
benefits “was a unilateral mistake on her part” and Glue had not established
she was entitled to
rescind the agreement due to her mistake. The district court tound the settlement agreement
“supercedes 01 lie’s teaching contract.”
On September 19, 2008, the district court granted the PISD’s motion lbr summa
ry judgment
on Ollie’s age discrimination claim. Thereafter, Ollie tiled a pro se appeal to the
Fifth Circuit Court
of Appeals of tile district court’s rulings on her Title VII and age discrim
ination claims. On
[)ecemher 2, 2008. Glue received a termination notice [roan Griffin stating that,
in accordance with
the settlement agreement, Ollie’s employment with tile PISD was termin
ated effective November
28, 2008.
On April 8, 2009, the Fl fth Circuit issued its opmion affirming, in part, and reversing, in part,
the district court’s judgment. I’he Filth Circuit trfirmcd the dismissal of OlIk’s claims under
the
AL)liA because I) must of the alleged discriminatory conduct occurred more than 300 days before
011k (lIeu stilt and, therelbre, could not support her claims, and (2)011k had not produced eviden
ce
raising an issue of tict as to whether the l’tSD’s legitimate, non-discriminatory reason tbr
the
purported employment dccision was a pretext. The Fifth Circuit reversed the district court’s
judgment as to Ollie’s claims under Title VII. Relying on the district court’s finding that the
intent
of the parties in entering the settlement agreement was for the twenty-month time frame
to allow
011k to draw full retirement benefits. the Fifth Circuit concluded “the mistake as to whether twenty
months was sutficient for this purpose was mutual, not unilateral.” The Fifth Circuit remand
ed the
case to the district court to make the necessary findings to determine whether, under the totality
of
the circumstances, Ollie had established the defense ofmutual mistake. On June22, 2009,
the PISD
tiled a motion in the district court to enforce the settlement agreement.
In October 2009, Ollie tiled a complaint with the TEA asserting the PISD had breached the
employment contract. The PISD requested 01lie’s complaint be dismissed because the TEA did
not
have jurisdiction over the complaint due to Ollie’s Ililure to exhaust her administrative
remedies
with the P1SD.
On March 30, 2010, the district court granted the PISD’s motion to enforce the settlement
agreement. finding Ollie had failed to establish the defense of mutual mistake and, on March
31,
2010, entered final judgment disposing of Ollie’s Title VII claims. On April 14, 2011, the
TEA
dismissed Ollie’s complaint due to lack of jurisdiction. In his decision, Robert Scott, the
Commissioner of Education, determined that section 7.057(aX2) of the education
code was
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phcahle to (. )lhe s cuins. Scott tiniher determmcd the P151) had grievance policies hat
allowed
I inns to hL hi oiieht COflLL I ning s, how s md conditions of work Scott fli )tcd t h it w hi Ic thu c
were some eccphons to the IYXD’s urievance policies, none ot those exceptions applied (
to )llie’s
claims, Scott ktiind that ( )ll me tailed to tile a grievance concerning the PIS[)’s rctiisal to allow
UI lie
to work and tii1ing to pay her after November 28, 2008. Because Ollie failed to exhaust her
administrative remedies by tiling a grievance with the PISD, the lEA concluded it did
not have
nrisdict ion over her complaint.
)n September 8, 2011, Ollie sent a demand letter to appellees. Appellees responded
and
informed ()llie that (1) the district court had rejected 01 lie’s claims that her teaching contrac
t was
still in etict and the settlement agreement was obtained by fraud, and (2) appellees had
immunity
Irorn Ollie’s tort claims tinder the Texas Tort Claims Act (the TTCA). Appellees inform
ed Ollie
that, if she proceeded with a lawsuit, appellees would seek reimbursement of their attorne
y’s fees
aS sanctions for a groundless and/or frivolous pleading. On October 24, 2011 01 lie
tiled this ,
lawsuit.
Appellees tiled an answer, asserting a general denial, a specitic denial that Ollie
had
exhausted her administrative remedies, and a number of affirmative defenses, including
that Ollie’s
claims were barred by immunity and by her fiuilure to exhaust administrative remedi
es and that the
trial court lacked subject matter jurisdiction over Ollie’s claims. Appellees also filed a
plea to the
jurisdiction and a motion tbr sanctions. Appellees contended the trial court did not have
jurisdiction
over Ollie’s breach of contract and employment claims because she failed to
exhaust her
Section 7 057(ah2)of the education code allows a person to appeal to the commissioner
ifthe person is agrieved by actions or decisions of
my school district hoard oltrustees that violate either the school as of Texas or a provision of a
wrttten employment contract between the schooi
district and a school district employee. ifa violatton causes or would cause monetary harm the
to employee. [tx. iZill;c, (‘i DE i\NN. 7057(aM2)
West Supp. 21)12).
administrative remedies with the P151). Appeilces also argued that ( )lIte s tort claims were
barred
by ( ) governmental inmunity, md ( 2) sect ion it) I 0(() of the civil practice and remedi
es code
because ( )l lie ucd both the PIS[) and the individual employees and hoard members, Appell
ees
Ilirther asserted ( )l lie had notice prior to tiling suit of the legal bars to her claims and, thereto
re.
should he sanctioned tinder the education code, the civil practice and remedies code, or the rules of
civil procedure br filing a frivolous or groundless lawsuit,
)Il ic responded to the plea to the jurisdiction, arguing her breach ot contract claim was
a
cause ot action tinder state law over which the tederal district court did not have jurisdi
ction,
appellees had waived their claims by not pleading them in theiroriginal answer, and she had standing
to assert the claims. She further argued appellees did not have immunity ti’om her tort claims
because appellees were not acting in the course and scope of their employment. She finally asserte
d
she was not required to exhaust her administrative remedies under the PISD’s grievance
process
because the PISI) buiiled to provide her with notice prior to her termination as required by chapter
21 of the education code. Ollie also responded to appellees’ motion br sanctions asserting her
claims were not frivolous.
The trial court granted appellees’ plea to the jurisdiction and dismissed Ollie’s claims. The
trial court also Ibund that, prior to filing the lawsuit, Ollie “had specific knowledge of the legal
bars
to her claims in this suit, and this lawsuit is thercfbre frivolous, groundless, andlor brough
t fur an
improper purpose such as to harass or needlessly increase appellees’j litigation costs.”
The trial
court granted appellees’ motion for sanctions and awarded appellees $4,192.50 as reason
able and
necessary attorney’s fees pursuant to section 11. 161 of the education code, sections 9.012 and
10.004
of the civil practice and remedies code, and rule of civil procedure 13. The trial court also
awarded
contingent attorney’s fees of $21,500 for an unsuccessful appeal by Ollie to this court and
$2 1,500
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1kw an unsuccessful appeal by UtIle to the supreme court.
Plea to the Jurisdiction
In her third issue, Utile generally contends the trial Court erred by granting appellees’ plea
to the jurisdiction because (I) appeltees waived their claim to immunity by filing a general denial,
and (2) Uriflin, Otto, and Richards waived immunity by acting outside the course and scope oftheir
employment.
Procedural Waiver 1kv lppellees
Ollie first argues appellees waived their claim to immunity by filing only a general denial.
liowever, subject matter jurisdiction cannot be waived. Ajfonso v. Skadden, 251 S.W.3d 52, 55
(rex. 2008) (per curiam); see 1,130 Rusk Stale Hasp. v. Black, No. 104548,2012 WL 3800218. at
9—6 (Ta. Aug. 31, 2012) (claim of immunity by governmental entity can be raised for first time
on appeal). Further, as noted above, appellees specifically denied that Ollie exhausted her
administrative remedies, and asserted the affirmative defenses of governmental immunity, failure
to exhaust administrative remedies, and that the trial court did not have subject matter jurisdiction
over Ollie’s claims. Appellees also specifically challenged the trial court’s subject matter
jurisdiction in their plato thejurisdiction. We conclude appellees did not waive their claim the trial
court did not have subject matter jurisdiction over Ollie’s claims.
Standard of Review
A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause ofaction without
regard to whether the claims asserted have merit” Bland Indep. 5th. 1)1st v. Blue, 34 S.W.3d 547,
554 (Tex. 2000). A plea challenges the trial court’s authority to decide a case. Heckman v.
Williamson Cnn’.. 369 S.W.3d 137, 149 (Tex. 2012). The existence of subject-matterjurisd
iction
is a question of law; thus, we review de novo the trial court’s ruling on a plea to the jurisdiction.
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/. I)p r oJ Puks LtThIIi/ eIi,incIu, 155 S.W,Sd 2!?, 226, 22 ( [cx. 2(304); Ir. Aatural Rex
ize, uulini ( mIifl ‘ii i 11 I )o ci. / I S \\‘ d X40, X55 ( I cx /0( )2).
I he pLitnU 11 has the burden to affirmatively demonstrate the foal court has subject matter
jiinsdictton. Ii&’ck,nan, 369 SW.3d at 151; ixJss ‘n o/IIuv, v R’x.Air ( ‘ontrol lid., 52 S.W2d
140. 446 ( [cx. I )93). Whale we begin our analysis with the live pleadmgs, we may also consider
evidence relevant to the jurisdictional inquiry and must consider such evidence when it is necessary
to resolve the jurisdictional issue. /ft’cIona,i. 36k) S.W. 3d at I 50. “We construe the plainti irs
pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s intent.’’ Id. We
must urant the plea to the jurisdiction if the plainti ft’s pleadings affirmatively negate the existence
of jurisdiction or if the deftndant presents undisputed evidence I hat tiegates the existence of the
courts jurisdiction, hi. “If a claim is not within a court’s jurisdiction, and the impediment to
jurisdiction cannot be removed, then it must he dismissed.” tm. Motorists Ins. Co. e. Eodit’, 63
S.W.3d 0l, X05 cx. 2001).
01/ic ‘s Tort (Ianns
Reading (illie’s petition liberally, she asserted (I) claims I’or interti.rence with an existing
employment contract, intentional infliction of emotional distress, negligence, and negligent
misrepresentation against the PISD, (2) a claim fbr breach of tiduciary duty against the PISD’s
“Board ofTrustees,” (2) a claim for abuse of process against Otto and the PISD’s “l3oard Members,”
(4) a claim for fraud against the PISD, Griffin. and Richards, and (5) a claim for conspiracy against
the PISD, Richards, Otto, and Griffin. In their plea to the jurisdiction, appellees asserted the trial
court did not have subject matter jurisdiction over Ollie’s tort claims because the PISD retained
governmental immunity under the TTCA from all tort claims other than those arising from the use
of a motor vehicle. Appellees also asserted Ollie’s tort claims should be dismissed because her
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decti()fl to ,;iie hot h the l’ISI) and the individual del.mdanis barred any recovery by ()flie pursuant
10 section 101.060 of the civil practice and remedies code. The trial court did not state the ground
on which it granted appcllccs’ plea to the jurisdiction.
Governmental immunity protects a school district from lawsuits and liability fir money
damages. ?Itvsion (.onxot Indep. .Vch. Dist. v. Garcia, 253 S.W.3d 653, 655 rex. 2008); harris
Cnn’. v. Sykv, 136 S.W.3d 635,638 (l’ex. 2004). Accordingly, a governmental entity, including a
school district, cannot be sued without its consent Garcia, 253 S.W.3d at 655 (quoting Hosner v.
DeYowig, I Tex. 764, 769(1847)); Wilson v. Dallas Indep. 5th. Din., No. 05-I l-00468-CV, 2012
WL. 3264943, at ‘2 (TeL App.— Dallas Aug. 13, 2012, no pet.) (governmental immunity deprives
trial court of subject matter jurisdiction over governmental unit of State unless State consents to
suit). A governmental entity’s employee, acting within the course and scope ofhis employment, has
the same immunity as the governmental entity. City qIN. RidE land ililic v. Friend, 370 S.W.3d 369,
373 (Tex. 2012) (“The doctrine of governmental immunity protects the public flsc by prohibiting
suits against governmental units (or their employees acting within the scope of their employment)
except in narrow circumstances prescribed by statute.”); see also Bales v. L)allas Indep. Seh. DisL,
952 S.W.2d 543, 551 (Tn. App.—Dallas 1997, writ denied) (“Trustees and agents of a school
district while acting in an official capacity, enjoy the same governmental immunity as does the
school district”).
Whether a governmental entity is immune from tort liability for a particular claim depends
entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bosslev, 968 S.W.2d
339, 341 (Tex.. 1998); see Garcia, 253 S.W.3d at 655. The TTCA provides a limited waiver of
immunity for certain suits against governmental entities and caps recoverable damages. See TEx.
Civ. PRAC. & REM. CODE ANN. ft 101.021, 101.023 (West 2011); Garcia, 253 S.W.3d at 655. For
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a school district. he Ut A’s waiver ol immunity encompasses “only tort claims involving the use
or operation of motor vehicles.” GarcIa, 253 S.W.id at 656; see aIxoTEX. (iv. PRsc. & REM. CODE
ANN.* 101.051 (West 2Oll).
Appellees asserted in their plea to the jurisdiction that governmental immunity deprived the
trial court of subject matter jurisdiction over Ollie’s tort claims. Appellees specifically argued the
fl’CA waives governmental immunity for a school district only for tort claims arising from the use
or operation of a motor vehicle and, because Ollie’s claims did not involve the use or operation of
a motor vehicle, governmental immunity had not been waived by the TTCA. On appeal, Ollie does
not challenge the trial court’s dismissal of her tort claims because the claims did not relate to the use
ofa motor vehicle. By failing to challenge one possible ground of the trial court’s ruling, Ollie has
waived any error by the trial court in dismissing Ollie’s tort claims against the PISD. TF.x. R. APP.
P. 38.1(i); (‘li/ion v. Walters, 308 S.W.3d 94, 99 (Tex. App.—-Fort Worth 2010, pet. denied)
(appellants waived argument about having standing, a component ofsubject matterjurisdiction, by
failing to adequately brief argument on appeal); Sass Antonio State Hasp. K (Juerrero, No. 04-04-
00396-CV, 2004 WI.. 2236619, at 1 (Tex. App.—San Antonio Oct. 6. 2004, no pet) (mem. op.)
(trial court’s order denying plea to jurisdiction was affirmed because governmental entity failed to
attack on appeal all possible bases for trial court’s ruling).
On appeal, Ollic contends Griffin, Otto, and Richards waived their immunity by not acting
within the course and scope oftheir employment. The TfCA defines “scope ofemployment” as “the
pertbnnance for a governmental unit of the duties of an employee’s office or employment and
includes being in or about the performance ofa task lawfully assigned Wan employee by competent
authority.” TEx. Civ. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp. 2012). Ollie’s tort
claims are all premised on the individual appellees’ alleged actions, or thilure to act, in connection
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with Quit’s employment contract with the P1W. l’he complained about actions or inactions were
all generally related to the individual appellecs’ service to the VlSI) and (liii within the pertontiance
at’a task IawtIilly assigned to them. See City ofLancaster v. Chambers, 883 S.W.2d 650,658 (Tex.
I’)94) (lbr purposes of fl(’A, an oflicial acts within scope of her authority if she is discharging
duties gcnerallyassigned to her); Anderson v. llessman, 365 S.W.3d 119, 126 (rex. App.—4{ouston
[1st Dist. I 2011, no pet. )(“lfthe purpose of serving the employer’s business motivates the employee,
his acts are within the scope ofemployment”); see also Ballantyne K Champion Builders, Ii,a, 144
S.W.3d 417,425 (Thx. 2004) (members of city’s Board of Adjustment’s action were in discharge
of the duties generally assigned to them even though court had found members were incorrect in
revoking pennit). Because Ollie failed to allege any acts against the individual appellees that fall
outside the general scope of their employment, the individual appellees have not waived immunity.
City ofM Rkhland Kills, 370 S.W.3d at 373; Bates 952 S.W.2d at 551; see also flx. EDUC. CODE
ANN. § 22.0511(a) (West Supp. 2012) (except in circumstances in which professional employee of
school district uses excessive force in discipline of student or negligence resulting in bodily injury
to students, professional employee of school district is not personally liable for any act that is
incident to or within scope of duties of employee’s position of employment and that involves
exercise ofjudgment or discretion on part ofemployee)
4. We conclude the trial court did not err by
granting appellees’ plea to the jurisdiction as to Ollie’s tort claims.
Vile’s Breach of Contract and Wrongful Termination Claim
Appellees’ plea to the jurisdiction also asserted the trial court did not have subject matter
jurisdiction over Ollie’s breach ot’eontraet and wrongllil termination claims because Ollie failed to
Based on our resolition of tide issue, we need net address appeilees’ contention that OtiWs election to sue both the P1SD and the individual
appellecs barred OhIi&s cbims against appellees. See TEL it An. P. 47.1
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cx I inst her administrative remedies. ( )llie admits she did not tile a erievance under the l ISD’s
internal gne ime hut el,ums she did not i eceive notice ot her termination Is required by
chapter 2 1 of’ the education code, Ollie argues that, because she did not receive the required notice,
she was deprived ot iii opportunity to nUt tie the 1>150’s gnevance process.
As noted by Scott in the ItiA’s Commissioner’s Decision, Ollie is not claiming her contract
was tenninated by the settlement areeinent. Rather, she claims her contract is still in etThct and is
complaining the P151) has refused to allow her return to work and refused to pay her atler November
28, 2() I 0.Ac cordingly. the procedures set out in chapter 2 I of the education code (10 not apply to
Ullie’s claims. Other than certain listed exceptions, the P150 grievance policy applies to “all
employee complaints.” None ot the exceptions apply to the claims asserted by Ollie in this lawsuit.
We agree with the l’E\ that Ollie could have availed herself of’ the PISI)’s grievance process “to
bring betbre the board of trustees the claim that her contract was still in effect when the
administration held the contract had been terminated by agreement.”
We, theretbre, must determine whether Ollie was required to exhatist her administrative
remedies prior to tiling suit. Generally, il’an agency has exclusive jurisdiction, a party must exhaust
all administrative remedies before seeking judicial review of the agency’s action. Suborn 0/Am.,
1,ic. v. David kL)avicI Nissan. inc., 84 S.W.3d 2 12, 221 (Tex. 2002); Main I? ehab. & Diagiiostic
Ctr., LLC v. Liberty Mat. Ins. Co., No. 05-1 l-00189-CV, 2012 WL 2890413, at *2 (Tex.
App.-——l)allas July 13, 2012, no pet.). Until the claimant has exhausted applicable administrative
remedies, the trial court lacks subject matter jurisdiction and must dismiss the claims within the
Under the education code, a teacher can, under certain circumstances, resign from an employment contract or the school district can teinate
an employment contract or good cause, Thx. Enuc. CoDF. ANN. t( 21.20. 2 21 l(a)( 1) (West 2006). Ifa teacher receives notice
of a proposed
decision to terminate hc teacher’s continuing contract, the teacher can request a hearing pursuant to subchapter F of the education code,
Id.
21.251(a) West 2006(
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excl lll\ C isdict lOll. itIirii I Inc.. X4 SW id at 2 I 1(1111 /‘Iii’. / )iugnosil:
( ir. /,L 2(1 2 WI, 2S)04 13, at *2 “Requiring exhaustion ot admmistrative remedies is not meant
to deprive ,in ierieved party of any legal rwiits. It is meant, rather, to provide an orderly procedure
by which aggrieved parties may entbree those rights.” Yv/eta Indep Sch L)ist, v. (iriego, 170
S.W. d 7J2, Jo)5 ( Fex App. II Paso 2005, pet. denied).
lexas requires an aggrieved party to exhaust all remedies provided under the applicable
administrative scheme it the claim (1) concerns the administration ol school laws, and (2) involves
qucstons of fact M1S5U)1i ltid(’[). Sc/i. 1)1st. L)iserens. 144 Tex. I 07, 1 II 1 88 S.W2d 56S, 570
,
I 945); fr’arran e Lanutillo Indep Sc/i, DisL, No. OS— I 0’00259’CV, 2012 WL 2127727, at
*9 (Tex,
App.— El Paso June I 3. 2014. pet, tiled). Ihe PISD’s grievance process consists of tur levels. An
employee must tile a compliant with the appropriate administrator within tifteen days ot the date the
employee tirsI knew, or with reasonable diligence should have known, of the decision or action
giving rise to a complaint. It’ the employee does not receive the requested re1ief the employee can
appeal the decision to the executive director of human resources, then to the superintendent, and
tinally to the hoard of trustees. After exhausting the PISI)’s grievance process, the employee must
appeal the decision of the board of trustees to the Commissioner of Education. See Nairn v. Killeen
Inclep. Sc/i. JEst., 366 S.W.3d 229, 241—42 (Tex. App.——E1 Paso 2012. no pet.). The Texas
Commissioner of Education has exclusivejurisdiction over actions or decisions of’any school district
board of trustees that violate a provision of a written employment contract between the school
district and a school district employee if a violation causes or would cause monetary harm to the
employee. Tix, E[)UC. CODE ANN. § 7.057(a)(2)(B)(West Supp. 2012); Larsen v. Santa Fe Indep.
Sc/i. Dist.. 296 SAV.3d uS, 128 (Tex. App.—Houston [14th Dist.j 2009, pet. denied). Until the
employee has exhausted her administrative remedies, she may not bring an independent breach of
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contract action. Vain,, .6 SWd at 241 42.
t is imdispiitcd the 19S1) has an internal gncv;ince process that applies to ;ihI employee
complailits other than certain listed exceptions. Scott, the ( oininissioner ot 1:ducation, determined
the P151 )‘s grievance process applied to ( )l lie’s claims, none ot the exceptions to the grievance
process applied to Ohlie’s claims, and ()hhie titiled to exhaust her administrative remedies.°
It is
undisputed (JIbe Iuled to tile a grievance regarding the alleged violation of her emplo
yment
contract. l3ecausc ( )lhie tiilcd to exhaust the applicable administrative remedies, the trial court
did
not err by granting the plea to the jurisdiction with respect to the breach of contract and wrongful
termination claims.
We resolve Olhie’s third issue against her.
Sanctions
In her tirst issue, Ohlie argues the trial court abused its discretion by granting appelle
es’
motion for sanctions. Appehlees moved for sanctions under rule olcivil procedure I 3,
chapter 9 and
10 of the civil practice and remedies code, and section I I 1 61 of the education code.
We review the trial court’s award of sanctions for an abuse of discretion. Low v. henry,
22 1
S.W.3d 609, 614 (Tex, 2007) (review imposition of sanctions under either chapter 10 of the civil
practice and remedies code or rule of civil procedure 13 for an abuse of discretion); Kessli
ng v.
Friemhvwood indep. Se/i. Dist., 302 S.W.3d 373, 37 (Tex. App.—[louston [14th Dist.j
2009, pet.
denied> (review award of attorney’s fi7es tinder section 11.161 of the education code for abuse
of
discretion). “The test foran abuse of discretion is not whether, in the opinion of the reviewing
court,
the facts present an appropriate case for the trial court’s action, but ‘whether the court acted withou
t
OlIte dtd not appeal the decision of the lEA. Any appeal of the deciston was required to he
0 lcd to a dtstrtct coti m Travis County. texas.
ccc Tox. Entu. (oDr ANN. 7.057(d); N. E. hulcp.Sch 01st. t Kcth’t. 277 S.W.3d 342. 344 4)
hex. ApP. San Antonio 2005. no pet.) (only
Fravis County dtstnct coolS had urisd jet jolt over appeal oh FL\ dcc isioti purstiant
to section 7 057 of the education code).
14—
rct)rence In any guiding rules and principles.’” Cite v. (‘ummings, 134 S.W.3d 835,
838—39 (Tex.
2004) (quoting Downer v. Aquamarine Operator.t tnt, 701 S.W.2d 238,24142
(Tex. l985fl. The
trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Downer, 701 S.W.2d
at 242.
tinder section 11.161 of the education code, a trial court may award costs and reason
able
attorney’s fees in a civil suit brought under state law against an independent school
district or an
officer of an independent school district acting under color of office if the court
Linda the suit is
frivolous, unreasonable, and without foundation and the suit is dismissed or judgm
ent is for the
dekndant fix. Ecuc. CODE ANN. § I 1.161 (West 2006). In this case, the record
shows Ollie was
aware the district court had ruled the settlement agreement supcrceded the employment
contract and
that Ollie had thiled to establish her defense of mutual mistake. Ollie also knew
the TEA had
dismissed her complaint alleging the PISD had breached the employment contrac
t because the
complaint was subject to the PISD’s internal grievance procedure and Ollie failed to
exhaust her
administrative remedies. All arguments made by OWe in this case were asserted in
the district court
and in the complaint tiled with the TEA. Further, the P1SD specifically notified Ollie
in response
to her demand letter that her claims were barred and it would seek to recover its attorne
y’s fees if
Ollie proceeded in filing this suit The trial court found that, prior to filing suit, Ollie
had specific
knowledge ofthe legal bars to her claims and that this lawsuit was, therefore, frivolous,
groundless,
and/or brought for an improper purpose. The trial court also dismissed Ollie’s claims
against
appellees.
We conclude the trial court did not abuse its discretion by awarding the PISD attorne
y’s fees
pursuant to section 11.161 ofthe education code. SeeLoclflerv. Lytleindep. Sch. DisL,2
1l S.W.3d
331, 350 (‘rex. App.—San Antonio 2006, pet. denied) (op. on reh’g). We, therefo
re, need not
—15-
consider whether anctioiis were appropriate under chapters 9 and 10 ol the
civil practice and
remedies code or nile of civil procedure I). ftx. It. API’. I’. 47.1. We resolve
flue’s tirst issue
against her.
Jurisdiction of Federal District Court
In her second issue, flue asserts the district court did not have subject matter
or personal
jurisdiction to detennine whether the settlement agreement supcrccded (Mile’s emplo
yment contract.
Ollie specifically argues her term contract is governed by subchapter B of the
education code and,
therefore, lodged under State law and not under the power, authority nor jurisdi
ction of a U.S.
Federal District Judge.”
The trial court granted appellees’ plea to the jurisdiction as to Ollie’s tort claims
based on
governmental immunity and as to Ollie’s breach of contract claims based on
Ollie’s Ibilure to
exhaust administrative remedies. Whether the district court properly exercised
jurisdiction over a
settlement agreement governing Ollie’s Title VII claims does not impact this
Court’s analysis of
whether the trial court properly determined it did not have subject matter jurisdi
ction over Ollie’s
claims in this case. Consequently, we need not address this issue. See TEx. It.
App. P. 47.1 (“The
court of appeals must hand down a written opinion that. . . addresses every issue raised and
necessary to final disposition of the appeal.”); Williams v. Nexplore Corp., No.
05-09-00621-CV,
2010 WL 4945364, at *2, 3 (Tex. App.—Dallas Dec. 7, 2010, pet. denied) (mem.
op.) (appellate
court need not address whether thai court erred by denying motion for new
trial because
determination trial court lacked personaljurisdiction over defrndant was dispositive
ofappeal); Ta.
Dep ‘t qf Pub. Safety t’. Jenkins, 262 S.W.3d 811, 813 (Tex. App.—Eastland 2008,
no pet.).
Jurisdiction of Texas CommissIoner of Education
In her brief, Ollie lists, as a fourth issue, whether, under Texas law, “the Commissione
r of
-16-
I.duitkui II td pocr and aiitl uitv in I )lliesj (
iiivcsiwaie ninpLiint .n!aiilst I the PlSl.)’I
violations ol lexas School and state laws and under state and 135. t onstitutional law” ( )llie
tailed to uhstantively address this issue in her brief.
:\ fl appellate brief “must contain a clear and concise argument br the contentions made, with
appropriate citations to authorities and to the record” Tix, R. APP. P. 38. 1(1). Appellate courts must
construe the lexas Rules ot i\ppellate Procedure reasonably, yet liberally, so that the right to appeal
s not lost 1w nuposmg requirements not absolutely necessary to effect the purpose of a rule.
Repith/ic Underwriters Ins, C’o. v, MexJx, me,, 150 SW3d 423,427 (Tex. 2004); see l’ux. R. Apr.
P.38,9. I lowever. an issue on appeal that is not supported by argument or citation to legal authority
presents nothing for (lie court to review. See 1redo,iia ,tute Bank v. Ge,,. ilin. Li/i’ Ins. Co.. 881
S.W.2d 279, 284 tFex. 1994); Birnhaum v. Law 0/flees ofG. David IVest/ull, 120 S.W.3d 470,477
([cx. App. - l.)allas 2003, pet. denied). Accordingly, Ollie has waived any argument the lEA had
jurisdiction to investigate her complaint, See FFx. R. APP. P. 38. 1(i); Lundv v. Masson, 260 S.W.3d
482, 503 (Tex. App.—l louston I 1.4th Dist. 2008, pet. denied) (concluding that appellant failed to
provide argument or cite authority br contention on appeal and appellate court was “not required
to do the job of the advocate”). We resolve Ollie’s fourth issue against her.
We affirm the trial court’s judgment.
77
ROBERT M. FILLMORE
JUSTICE
I 20077F.P05
—17—
(!iiirt
.Fift1! Oitrict üí xai at Jat1a
JUDGMENT
I )R( )iI I’i’ 0111 l. Appellant Appeal trom the 2 9th Judicial District
( ourt ot ( ol in County, lexas ( ir.Ct. No.
No. ()5 I 200O77CV 2194)441 l20I I)
)pmioii deliVeie(I by .1 iislice lii linoic,
PLANt) IN DEPl.NDLNT XCI JOOL Justices Moseley and Myers participating.
DISTRICT, lAMIRA ;RIIFIN,
Dot. JOLAS OTTO, AND lAMMY
R ICI IA RDS, í\ppeilees
In accordance with this Court’s opinion ol this date, the judgment of the
trial court is
AFFIIMEI) It s ()RD1I{EI) that appellees Piano Independent Schoo
l District, Tarnira
( ritiin, 1)ouglas ( )tto, and Fammy Richards recover their costs ot this appeal
horn appellant
Dorothy (>11 ic.
Judgment entered October 24, 2012.
RC)F3LRT rvl. F1LLv1ORE
JUSTICE