Mary Stamos v. Houston Independent School District ( 2020 )

Vacated in Part, Affirmed in Part, and Memorandum Opinion filed March
31, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00340-CV
MARY STAMOS, Appellant
V.
HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2017-22981
MEMORANDUM OPINION
A former teacher sued her former school-district employer asserting tort
claims and a breach-of-contract claim. The school district filed a plea to the
jurisdiction arguing that governmental immunity deprived the trial court of
jurisdiction over the tort claims and that the trial court lacked jurisdiction over the
breach-of-contract claim based on several issues as to failure to exhaust
administrative remedies. In the same document the school district moved for
summary judgment as to the merits of the breach-of-contract claim. The trial court
granted both the plea to the jurisdiction and the summary-judgment motion and
dismissed the plaintiff’s claims with prejudice. Concluding that the plaintiff has
not shown that the trial court erred in granting the plea to the jurisdiction, we
affirm the trial court’s dismissal with prejudice based on the granting of the plea to
the jurisdiction. But, because the trial court concluded that it lacked jurisdiction,
the trial court erred in granting summary judgment on the merits. So, we vacate
that part of the trial court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff Mary Stamos worked as a first-grade teacher at Kolter
Elementary School in appellee/defendant Houston Independent School District
from 2013 to 2017. After Stamos stopped working at Kolter Elementary, she filed
suit against the school district in the trial court. Stamos alleged that mold was
present in the classrooms in which she taught at Kolter and that the mold adversely
affected her health. Stamos asserted that the school district knew or should have
known about the mold as well as its effect on her health. Stamos alleged that she
has experienced significant and permanent deterioration of her health, including
permanent loss of her sense of smell. According to Stamos, she requires four
allergy shots per week, a sinus implant, repeated sinus scopes, and nasal shots.
Stamos sought to recover $6,300 in out-of-pocket medical expenses that she
allegedly incurred as a direct result of teaching in the allegedly mold-contaminated
environment at Kolter Elementary. Stamos also sought to recover a $4,125 bonus
that she claims she would have received but for absences necessitated by doctor
appointments. Stamos asserted a breach-of-contract claim as well as purported tort
claims for “gross negligence,” “premises liability,” fraud, and negligence. Stamos
sought to recover medical-care expenses as well as damages for pain and suffering,
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physical impairment, mental anguish, lost wages, attorney’s fees, and punitive
damages.
The school district filed a plea to the jurisdiction asserting that Stamos had
not alleged or shown any waiver of the school district’s governmental immunity as
to Stamos’s tort claims and that governmental immunity deprived the trial court of
subject-matter jurisdiction over the tort claims. The school district also argued that
because Stamos failed to exhaust her administrative remedies, the trial court lacked
subject-matter jurisdiction over the breach-of-contract claim. In the same filing,
the school district also moved for summary judgment on the merits of Stamos’s
breach-of-contract claim.
The trial court granted both the plea to the jurisdiction and the summary-
judgment motion and dismissed Stamos’s claims with prejudice.
II. ISSUES AND ANALYSIS
On appeal, Stamos presents two issues: (1) the trial court erred in granting
the school district’s summary-judgment motion; and (2) the trial court erred in
granting the school district’s plea to the jurisdiction.
Because subject-matter jurisdiction is a question of law, we conduct a de
novo review of the trial court’s granting of the plea. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The school district is a
political subdivision of the state entitled to immunity from suit under the doctrine
of governmental immunity absent a waiver of that immunity. See Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008). Generally,
for there to be a waiver of immunity from suit, the Texas Legislature must have
waived immunity from suit as to the claim in question, and the waiver must be
manifested by clear and unambiguous language. See Tex. Gov’t Code Ann.
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§ 311.034 (West, Westlaw through 2019 R.S.) (providing that a statute shall not be
construed as a waiver of sovereign immunity unless the waiver is effected by clear
and unambiguous language); Tooke v. City of Mexia, 197 S.W.3d 325, 332–33
(Tex. 2006).
A. Did the trial court err in granting the plea to the jurisdiction as to the
tort claims?
Stamos asserts that the trial court erred in granting the plea to the jurisdiction
as to her tort claims. The school district asserted that it enjoyed immunity from suit
as to these claims because Stamos had not alleged or shown any waiver of the
school district’s governmental immunity. In its plea to the jurisdiction the school
district challenged Stamos’s pleadings as to the tort claims. In this situation, the
trial court had to determine if Stamos had alleged facts that affirmatively
demonstrate the court’s jurisdiction. Miranda, 133 S.W.3d at 226. Whether the
plaintiff has met this burden is a question of law that we review de novo. Id. In
making this determination, we construe the pleadings liberally in favor of the
plaintiff, consider the pleader’s intent, and accept as true the factual allegations in
the pleadings. Id.
The Texas Tort Claims Act waives the governmental immunity of school
districts only as to claims for certain types of property damage, personal injury,
and death, all of which must arise from the operation or use of a motor-driven
vehicle or motor-driven equipment. See Tex. Civ. Prac. & Rem. Code Ann.
§§101.021, 101.051 (West, Westlaw through 2019 R.S.); Mission Consol. Indep.
Sch. Dist., 253 S.W.3d at 656; Houston Indep. Sch. Dist. v. Durrell, 547 S.W.3d
299, 306 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The waiver of immunity
as to certain claims for personal injury and death caused by a condition or use of
tangible personal or real property does not apply to claims against school districts.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.051; Mission Consol.
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Indep. Sch. Dist., 253 S.W.3d at 656; Durrell, 547 S.W.3d at 306.
Stamos does not assert any claims that allegedly arise from the operation or
use of a motor-driven vehicle or motor-driven equipment. Stamos has not cited
any statute allegedly waiving governmental immunity other than the Texas Tort
Claims Act. We conclude the trial court did not err in granting the school district’s
plea to the jurisdiction as to Stamos’s tort claims. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 101.021, 101.051; Mission Consol. Indep. Sch. Dist., 253 S.W.3d at
656; Durrell, 547 S.W.3d at 306.
B. Did the trial court err in granting the plea to the jurisdiction as to the
breach-of-contract claim?
Stamos asserts that the trial court erred in granting the plea to the jurisdiction
as to her breach-of-contract claim. The school district attached to its jurisdictional
plea a document setting forth various administrative remedies and asserted that
Stamos failed to exhaust these administrative remedies. In addition, the school
district asserted that Stamos also had to exhaust her administrative remedies before
the Commissioner of Education under Education Code section 7.057(a)(2)(B). See
Tex. Educ. Code Ann. § 7.057(a)(2)(B) (stating that “[e]xcept as provided by
Subsection (e), a person may appeal in writing to the [Commissioner of Education]
if the person is aggrieved by . . . 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”). In its plea, the school district asserted that the
trial court lacked jurisdiction for the additional reason that Stamos had failed to
plead that she timely exhausted her administrative remedies before the
Commissioner of Education. See Brownsville Indep. Sch. Dist. v. Rendon, No. 13-
17-00628-CV, 2018 WL 1755878, at *2–4 (Tex. App.—Corpus Christi Apr. 12,
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2018, no pet.) (concluding that trial court lacked jurisdiction over school-district
employee’s breach-of-contract claim because employee failed to plead that he had
exhausted administrative remedies before the Commissioner of Education under
Education Code section 7.057(a)(2)(B)) (mem. op.).
The trial court did not specify or limit the ground on which it granted the
school district’s jurisdictional plea. To succeed in her appeal from this ruling,
Stamos must challenge all independent grounds asserted in the jurisdictional plea.
See City of Mont Belvieu v. Enter. Prods. Operating, LP, 222 S.W.3d 515, 519
(Tex. App.—Houston [14th Dist.] 2007, no pet.). On appeal, Stamos does not cite
any part of Education Code section 7.057, nor does she mention the Commissioner
of Education. Nor does Stamos mention that the trial court granted the
jurisdictional plea based in part on the school district’s argument that the trial court
lacked jurisdiction because Stamos had failed to plead that she timely exhausted
her administrative remedies before the Commissioner of Education. Stamos does
not assert that this ground was erroneous.
Stamos cites Mission Consolidated Independent School District v. Flores,
but that case did not address Education Code section 7.057 or pleading exhaustion
of administrative remedies before the Commissioner of Education. See 39 S.W.3d
674, 676–78 (Tex. App.—Corpus Christi 2001, no pet.). In addition, after the
Thirteenth Court of Appeals decided Flores, the Supreme Court of Texas
abrogated the main point for which Stamos cites Flores — that a school district
cannot rely on its grievance procedures to defeat jurisdiction unless the employee
had notice of these procedures. See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan,
51 S.W.3d 293, 293–95 (Tex. 2001) (per curiam); Flores, 39 S.W.3d at 676–78.
Stamos cites a document that she claims shows her appeal of the denial of
her bonus for the 2015-16 school year. Presuming for the sake of argument that
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this document does show an appeal of this denial, the document does not show
Stamos pursued her administrative remedies before the Commissioner of
Education, nor does it address the school district’s argument that the trial court
lacked jurisdiction because Stamos had failed to plead that she timely exhausted
her administrative remedies before the Commissioner of Education.
On appeal Stamos has not challenged the school district’s argument in its
jurisdictional plea that the trial court lacked jurisdiction because Stamos had failed
to plead that she timely exhausted her administrative remedies before the
Commissioner of Education. Therefore, Stamos has not shown that the trial court
erred in granting the jurisdictional plea as to her breach-of-contract claim. See
S.W. ex rel. A.W. v. Arlington Indep. Sch. Dist., 435 S.W.3d 414, 418–19 (Tex.
App.—Fort Worth 2014, no pet.); City of Mont Belvieu, 222 S.W.3d at 519.
C. Did Stamos preserve error in the trial court as to her complaints that
the trial court erred in dismissing her claims with prejudice and in not
giving her an opportunity to amend her pleadings?
In the alternative, Stamos complains that the trial court erred in dismissing
her claims without first affording her the opportunity to amend her pleadings to
cure any jurisdictional defect. While the general rule expresses a preference for
allowing a plaintiff the opportunity to amend, a plaintiff can waive this opportunity
through inaction. See City of Houston v. Johnson, 353 S.W.3d 499, 504–06 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied); Smith v. City of League City, 338
S.W.3d 114, 125 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Despite notice
of the school district’s jurisdictional arguments, Stamos did not amend her petition.
Stamos did not ask the trial court for an opportunity to replead or amend her
pleadings at any time after the school district filed its plea to the jurisdiction.
Stamos has waived her right to cure any jurisdictional defects though amending her
pleadings. See City of Houston, 353 S.W.3d at 504–06; Smith, 338 S.W.3d at 125.
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Stamos did not assert in the trial court that dismissal without prejudice rather
than dismissal with prejudice would be the proper ruling. After the trial court
dismissed her claims with prejudice, Stamos did not complain that the trial court
erred in dismissing with prejudice. Thus, Stamos failed to preserve error on this
point; so, she may not obtain a reversal of the trial court’s judgment on this point.
See Martin v. State, No. 14-08-01174-CV, 2009 WL 2146025, at *1, n.1 (Tex.
App.—Houston [14th Dist.] Jul. 21, 2009, no pet.) (mem. op); Andrews v. ABJ
Adjusters, Inc., 800 S.W.2d 567, 569 (Tex. App.—Houston [14th Dist.] 1990, writ
denied).
D. Did the trial court err in granting the summary-judgment motion?
The trial court granted the summary-judgment motion more than a month
before the motion was set for hearing and thus before the deadline for Stamos to
file a response in opposition to the summary-judgment motion. Stamos preserved
error on this point in her motion to reconsider. In addition, in its summary-
judgment motion the school district did not raise any jurisdictional point and
addressed only the merits of Stamos’s breach-of-contract claim. The trial court,
having decided to grant the jurisdictional plea based on a lack of subject-matter
jurisdiction, should not have addressed the merits by granting summary judgment.
See Curry v. Harris Cty. Appraisal Dist., 434 S.W.3d 815, 820 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). The trial court erred in granting the school
district’s summary-judgment motion. We vacate the part of the trial court’s
judgment in which the court grants the summary-judgment motion. See id.
III. CONCLUSION
Stamos has not shown that the trial court erred in granting the jurisdictional
plea as to any of her claims. By failing to ask the trial court for an opportunity to
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amend her pleadings, Stamos waived her right to cure any jurisdictional defects by
amending the pleadings. Stamos failed to preserve error in the trial court on her
argument that dismissal without prejudice rather than dismissal with prejudice
would be the proper remedy for the school district’s jurisdictional plea. So, Stamos
may not obtain a reversal of the trial court’s judgment on this point. We overrule
Stamos’s second issue and affirm the trial court’s order granting the school
district’s plea to the jurisdiction and dismissing Stamos’s claims with prejudice.
The school district’s summary-judgment motion had not even been
submitted to the trial court for ruling when the trial court granted it, and, in any
event, the trial court should not have ruled on a summary-judgment motion
addressing the merits once the trial court concluded that it lacked subject-matter
jurisdiction. We sustain the first issue and vacate the part of the trial court’s
judgment granting the school district’s summary-judgment motion.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.
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