Bruce R. Hotze v. Sylvester Turner, Mayor, and the City of Houston

Affirmed and Majority and Dissenting Opinions filed October 12, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00959-CV
BRUCE R. HOTZE, Appellant
V.
SYLVESTER TURNER, MAYOR, AND THE CITY OF HOUSTON,
Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2014-19507
MAJORITY OPINION
This dispute stems from two amendments to the Houston City Charter, both
of which prescribed certain limitations on the City’s revenue collection. In 2014,
Appellant Bruce R. Hotze sued Sylvester Turner in his official capacity as Mayor
of the City of Houston and the City of Houston (together, “Appellees”) to enforce
one of those amendments.
The parties filed cross-motions for summary judgment; the trial court
granted in part and denied in part Appellees’ summary judgment motion and
denied Hotze’s motion. The case proceeded to a bench trial and the trial court
signed a judgment for Appellees. Hotze appealed and challenges the trial court’s
summary judgment order. Appellees filed a cross-appeal contingent on this court
sustaining any of the issues raised in Hotze’s appeal. For the reasons below, we
affirm the trial court’s summary judgment.
BACKGROUND
Propositions 1 and 2
In 2004, two potential amendments to the Houston City Charter were
proposed to limit increases in sources of City revenue: Propositions 1 and 2. The
text of both Propositions was included in full in “City of Houston Ordinance No.
2004-887” (the “Election Ordinance”). The Election Ordinance ordered a special
election to be held on November 2, 2004, to submit Propositions 1 and 2 to a vote.
Proposition 1 was placed on the ballot pursuant to the City’s own motion.
Addressing “Limits on Annual Increases in City Property Taxes and Utility Rates”,
Proposition 1 imposed a limit on property taxes and water and sewer rates by
requiring that the Houston City Council obtain voter approval before increasing
(1) property tax revenues above a limit measured by the lesser of 4.5% or the
cumulative combined rates of inflation and population growth, or (2) water and
sewer rates above the cumulative combined rates of inflation and population
growth. Aside from these restrictions, Proposition 1 permitted the City to retain
“full authority to assess and collect any and all revenues of the city without
limitation.”
Following the quoted text of Proposition 1, the Election Ordinance included
a primacy clause stating:
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If another proposition for a Charter amendment relating to limitations
on increases in City revenues is approved at the same election at
which this proposition is also approved, and if this proposition
receives the higher number of favorable votes, then this proposition
shall prevail and the other shall not become effective.
In contrast to Proposition 1, Proposition 2 resulted from a citizen-initiated
referendum petition. Addressing “Limits on all Combined City Revenues”,
Proposition 2 required the City to obtain voter approval before it could increase
total revenues from all sources by more than the combined rates of inflation and
population.
In the November 2004 election, Propositions 1 and 2 each passed with a
majority of the votes cast on the particular proposition. Proposition 1 received
more favorable votes than Proposition 2.
The results of the election were declared in “City of Houston Ordinance No.
2005-568 (the “Adoption Ordinance”). The Adoption Ordinance stated that
Propositions 1 and 2 “were approved by a majority of the qualified voters voting in
the Election and are adopted, with Proposition 1 receiving a higher number of
votes than Proposition 2.” The Adoption Ordinance further stated that Proposition
1 was legally binding and that Proposition 2 would not be enforced. This
conclusion rested on two bases: (1) Proposition 1’s primacy clause, and (2) article
IX, section 19 of the Houston City Charter which states, in relevant part:
at any election for the adoption of amendments if the provisions of
two or more proposed amendments approved at said election are
inconsistent the amendment receiving the highest number of votes
shall prevail.
The Underlying Proceeding
In April 2014, Hotze filed an original petition asserting claims against
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Appellees.1 In Hotze’s second amended petition, he requested the following
declaratory judgments regarding the interplay between Propositions 1 and 2:
• Both Propositions 1 and 2 are valid as a matter of law.
• Proposition 1’s primacy clause “was never included in the actual text
of Proposition 1 and was never voted on or passed by the electorate.”
• Alternatively, if the trial court concludes that the primacy clause is a
valid part of Proposition 1, then “Proposition 1 is unconstitutional
because it violates Tex. Const. art. XI § 5 and is illegal because it
violates Section 9.005(a) of the Local Government Code.”
• Propositions 1 and 2 are not inconsistent.
• Alternatively, if the trial court concludes Propositions 1 and 2 are
inconsistent, that either Proposition 1 or article IX, section 19 of the
Houston City Charter is unconstitutional.
• Alternatively, if the trial court concludes that neither Proposition 1 nor
article IX, section 19 of the Houston City Charter is unconstitutional,
the trial court “should reconcile the Propositions so that at the very
least, the portions of both Propositions that the Court finds are not
inconsistent can stand.”
Hotze’s second amended petition also alleged that Appellees have “passed annual
budgets . . . which exceed the permissible caps contained in either Proposition 1 or
Proposition 2 or both.” Hotze requested declaratory and injunctive relief with
respect to these alleged budgetary violations.
Appellees filed a combined plea to the jurisdiction and a motion for
summary judgment, which the trial court denied. Appellees filed an interlocutory
appeal from the denial of their plea to the jurisdiction. See Turner v. Robinson,
534 S.W.3d 115, 118 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).2 In
1
Hotze was one of three plaintiffs that filed the original petition. The other two plaintiffs
are not parties to this appeal.
2
In Turner, this court also provided a detailed overview of other litigation relating to
Propositions 1 and 2. See Turner, 534 S.W.3d at 120-22.
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that appeal, we concluded that (1) Hotze, as a taxpayer, had standing to seek
injunctive and declaratory relief, (2) Hotze pleaded a valid ultra vires claim against
the Mayor, and (3) the City’s sovereign immunity with respect to Hotze’s
declaratory judgment action was waived under the Uniform Declaratory Judgment
Act. See id. at 124, 126, 127. We affirmed the trial court’s denial of Appellees’
plea to the jurisdiction. Id. at 127.
Back in the trial court, Appellees filed a “Supplemental Plea to the
Jurisdiction/Motion for Summary Judgment and Motion for Reconsideration of this
Court’s May 2, 2016 Order Denying Defendants’ Plea to the Jurisdiction and
Motion for Summary Judgment.” Hotze filed a traditional motion for summary
judgment. See Tex. R. Civ. P. 166a(c).
On September 16, 2019, the trial court signed an order that (1) granted in
part and denied in part the City’s “Supplemental Plea to the Jurisdiction/Motion for
Summary Judgment and Motion for Reconsideration”, and (2) denied Hotze’s
traditional motion for summary judgment. The trial court’s order also contains the
following conclusions of law:
1. [Hotze] has taxpayer standing;
2. [Hotze] does not have standing under Proposition 2;
3. Governmental immunity does not bar [Hotze’s] suit;
4. Proposition 2 is not effective because of Proposition 1’s primacy
clause; and
5. Propositions 1 and 2 are not irreconcilably or substantively
inconsistent and do not trigger Art. IX, § 19 of the City Charter.
The parties proceeded to a bench trial in October 2019; the only issue remaining
for the trial court’s determination was whether Appellees had complied with
Proposition 1. The trial court signed a final judgment on October 29, 2019,
concluding that (1) Appellees fully complied with Proposition 1 throughout the
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relevant time period, and (2) Hotze was not entitled to an award of attorney’s fees.
Hotze appealed and Appellees filed a cross-appeal.
ANALYSIS
Asserting error in the trial court’s September 16, 2019 summary judgment
order, Hotze raises three issues challenging the trial court’s conclusion that
“Proposition 2 is not effective because of Proposition 1’s primacy clause[.]”
Specifically, Hotze asserts:
1. The primacy clause “was never included in Proposition 1.”
2. Proposition 2 does not trigger Proposition 1’s primacy clause.
3. Proposition 1’s primacy clause conflicts with the Texas Constitution
and state law.
Hotze also requests that we remand the case to permit the trial court to determine
whether he is entitled to a recovery of attorney’s fees.
In their cross-appeal, Appellees assert that the issues they raise merit
consideration only if this court reverses the trial court’s conclusion that Proposition
1’s primacy clause renders Proposition 2 unenforceable.
For the reasons below, we overrule the issues Hotze raises on appeal.
Because we do not revisit the trial court’s conclusion of law regarding Proposition
1’s primacy clause, we need not address the issues Appellees raise in their cross-
appeal.
I. Standard of Review
The parties’ cross-motions for summary judgment presented a question of
law regarding the effect of Proposition 1’s primacy clause on Proposition 2. We
review the trial court’s conclusion of law on this point de novo. Cook v. Nissimov,
580 S.W.3d 745, 751 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
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“When we review cross-motions for summary judgment, we consider both
motions and render the judgment that the trial court should have rendered.”
Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist., 46 S.W.3d 880, 884
(Tex. 2001). Each party bears the burden of establishing that it is entitled to
judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d
351, 356 (Tex. 2000).
II. Application
A. The Primacy Clause Was Included in Proposition 1.
Referring to the Election Ordinance, Hotze points out that the primacy
clause was “not combined within the quoted portion” of Proposition 1 but instead
was listed afterwards in a separate paragraph. This structure, Hotze argues,
“means that the [primacy clause] was not intended and indeed was not part of the
text of Proposition 1.”
Hotze does not cite, and our research did not find, any case law or other
authority to support his contention that quoted versus unquoted portions of a
proposition as shown in the Election Ordinance determine those provisions’
enforceability. Without any authority to support this construction, we will not
adopt it here.
Moreover, the ultimate determination regarding Propositions 1 and 2 was
reserved to the voters. See Tex. Const. art. XI, § 5 (“Cities having more than five
thousand (5000) inhabitants may, by a majority vote of the qualified voters of said
city, at an election held for that purpose, adopt or amend their charters.”). When
they cast their votes, “voters are presumed to be familiar with every measure on the
ballot.” Dacus v. Parker, 466 S.W.3d 820, 825 (Tex. 2015); see also Dacus v.
Parker, 383 S.W.3d 557, 565 (Tex. App.—Houston [14th Dist.] 2012), rev’d on
other grounds, 466 S.W.3d 820 (Tex. 2015) (“We instead presume that by the time
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voters have entered the polling place, they already are familiar with the measure
[on the ballot].”). This presumption is justified “because publication of the
measures as required by law constitutes notice to the voters of its contents.”
Dacus, 383 S.W.3d at 565.
Included in their response to Hotze’s summary judgment motion, Appellees
filed an exhibit containing four Houston Chronicle newspaper articles published in
the three months preceding the November 2004 election on Propositions 1 and 2.3
These articles consistently described Propositions 1 and 2 as “competing charter
amendments”. The August 26, 2004 article specifically stated that the Proposition
“with the most votes will become law because they propose conflicting policies.”4
The October 30, 2004 article informed readers that “Houston residents will vote
Tuesday on the two competing charter amendments that would limit city revenues
by different means.”5
As this evidence shows, newspaper articles published before the election
stated that Propositions 1 and 2 were alternative proposals to limit city revenues.
3
See Ron Nissimov, Survey Weighs Propositions; Both Limit Revenues, Houston
Chronicle, Oct. 30, 2004, https://www.chron.com/news/politics/article/Survey-weighs-
propositions-both-limit-revenues-1516633.php; Revenue Caps: Vote FOR Prop. No. 1,
AGAINST Prop. No. 2, Houston Chronicle, Oct. 6, 2004,
https://www.chron.com/opinion/editorials/article/Revenue-caps-Vote-FOR-Prop-No-1-
AGAINST-Prop-1961490.php; Ron Nissimov, City’s Revenue Fight Going to the Nov. 2 Ballot,
Houston Chronicle, Aug. 26, 2004, https://www.chron.com/news/politics/article/City-s-revenue-
fight-going-to-the-Nov-2-ballot-1969054.php; Kristen Mack & Ron Nissimov, Debate on City
Revenue Caps Kicks Off, Houston Chronicle, Aug. 24, 2004,
https://www.chron.com/news/houston-texas/article/Debate-on-city-revenue-caps-kicks-off-
1493833.php.
4
Ron Nissimov, City’s Revenue Fight Going to the Nov. 2 Ballot, Houston Chronicle,
Aug. 26, 2004, https://www.chron.com/news/politics/article/City-s-revenue-fight-going-to-the-
Nov-2-ballot-1969054.php.
5
Ron Nissimov, Survey Weighs Propositions; Both Limit Revenues, Houston Chronicle,
Oct. 30, 2004, https://www.chron.com/news/politics/article/Survey-weighs-propositions-both-
limit-revenues-1516633.php
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This representation aligns with the primacy clause which states that, if two
propositions “relating to limitations on increases in City revenues” were approved
at the same election, Proposition 1 alone would prevail if it received more votes
than the competing proposition. We presume the voters were familiar with this
procedural posture when they voted on Propositions 1 and 2 and cast their votes
accordingly. See Dacus, 466 S.W.3d at 825. We will not forgo this presumption
and its application to the issue here merely because the primacy clause was not
included within the quoted portion of Proposition 1 in the Election Ordinance.
We overrule Hotze’s first issue.
B. Proposition 2 Triggers Proposition 1’s Primacy Clause.
In his second issue, Hotze asserts that Proposition 2 does not trigger
Proposition 1’s primacy clause because “Proposition 1 and Proposition 2 impact
different phases of the budgeting process.” Specifically, Hotze contends that
Proposition 1 “solely relates to limitations on the assessment and collection of
property tax revenues” whereas Proposition 2 “relates to the necessity for prior
voter approval before total spending in any given budget year may exceed a
particular mathematical formula.” We reject this contention.
The rules governing the construction of state statutes also govern our
construction of municipal ordinances. See City of Pearland v. Reliant Energy
Entex, 62 S.W.3d 253, 256 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
The proper construction of an ordinance is a question of law we review de novo.
Id.In construing a municipal ordinance, we seek to determine and give effect to
the intent of the governing body of the municipality. MHI P’ship, Ltd. v. City of
League City, 525 S.W.3d 370, 378 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). We ascertain that intent from the language the governing body used in the
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ordinance — if the meaning of the ordinance’s language is unambiguous, we adopt
the interpretation supported by the plain meaning of the provision’s words. Id.“We must not engage in forced or strained construction; instead, we must yield to
the plain sense of the words the governing body chose.” Id. at 378-79.
Here, a plain reading of Propositions 1 and 2 shows that Proposition 2 falls
within the primacy clause’s ambit. The primacy clause states:
If another proposition for a Charter amendment relating to limitations
on increases in City revenues is approved at the same election at
which this proposition is also approved, and if this proposition
receives the higher number of favorable votes, then this proposition
shall prevail and the other shall not become effective.
(emphasis added). As shown in the Election Ordinance, the text of Proposition 2
advances an amendment “relating to limitations on increases in City revenues”:
• Proposition 2 is described as an amendment “Relating to Limits on
All Combined City Revenues.”
• Subsection 1 of Proposition 2 is entitled “Limitation on Growth in
Revenues.”
• Pursuant to Subsection 1, the Houston City Council may not, without
the prior approval of 60% of those voting at a regular election,
increase the City’s “combined revenues” in an amount greater than the
combined rates of inflation and population. Proposition 2 defines
“combined revenues” as “the combined revenues of the City’s
General Fund, Enterprise Funds and Special Revenue Funds” and
excludes “grant monies and other revenues received from other
governmental entities” and “IntraCity (in other words, InterFund)
revenues.”
As these excerpts show, Proposition 2 advances an amendment that limits
increases in City revenue past certain thresholds. Therefore, it falls within the
primacy clause’s purview.
We overrule Hotze’s second issue.
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C. Proposition 1’s Primacy Clause Does Not Conflict With the Texas
Constitution and State Law.
In his third issue, Hotze asserts Proposition 1’s primacy clause “conflicts
with the Texas Constitution and state law and is therefore void and unenforceable.”
Hotze bases this argument on article XI, section 5 of the Texas Constitution and
Texas Local Government Code sections 9.004(e) and 9.005(a).
Article XI, section 5 of the Texas Constitution provides as follows with
respect to the amendment of city charters for cities of 5,000 or more population:
The adoption or amendment of charters is subject to such limitations
as may be prescribed by the Legislature, and no charter or any
ordinance passed under said charter shall contain any provision
inconsistent with the Constitution of the State or of the general laws
enacted by the Legislature of this State.
Tex. Const. art XI, § 5 (emphasis added). Hotze contends the primacy clause runs
afoul of this constitutional provision by violating sections 9.004(e) and 9.005(a).
We examine these arguments below.
1. Texas Local Government Code Section 9.004(e)
Texas Local Government Code section 9.004(e) states:
The ballot shall be prepared so that a voter may approve or disapprove
any one or more amendments without having to approve or
disapprove all of the amendments.
Tex. Loc. Gov’t Code Ann. § 9.004(e). Hotze asserts that, because the primacy
clause required voters approving of Proposition 1 to also disapprove of Proposition
2, the primacy clause violated section 9.004(e). This argument essentially raises a
ballot-preparation challenge; as such, it was required to be raised in an election
contest. Because the underlying proceeding is not an election contest, we conclude
that this argument is waived.
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An election contest is a special proceeding created by the Legislature to
provide a remedy for elections tainted by fraud, illegality, or other irregularity. See
Tex. Elec. Code Ann. §§ 233.001-233.014; Blum v. Lanier, 997 S.W.2d 259, 262
(Tex. 1999). “[A]n election contest includes any type of suit in which the validity
of an election or any part of the elective process is made the subject matter of the
litigation.” Rossano v. Townsend, 9 S.W.3d 357, 362 (Tex. App.—Houston [14th
Dist.] 1999, no pet.). Under the Election Code, an election contest is subject to a
strict timetable: it may not be brought earlier than the day after election day and
must be filed within 30 days after the return date of the election. Tex. Elec. Code
Ann. § 233.006(a)-(b); see also Hotze v. White, No. 01-08-00016-CV, 2010 WL
1493115, at *4 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem.
op.).
A challenge similar to the issue Hotze raises here was addressed in
Arredondo v. City of Dallas, 79 S.W.3d 657 (Tex. App.—Dallas 2002, pet.
denied). There, the City argued an ordinance’s inclusion on the January 1979
election ballot violated Article 1269q, which provided that “no other issue could be
joined on the same ballot as a proposition to increase the salaries of the fire
department and police department.” Id. at 669. Holding that this type of challenge
only could be raised in an election contest, the court stated that the City’s attempt
to “challeng[e] the validity of placing [the ordinance] on the 1979 election ballot”
was “nothing more than a back-door attempt to contest the election more than
twenty years after it was held.” Id. at 670. Accordingly, because this issue was
not raised in a timely-filed election contest, the court concluded that it was waived.
Id.Similarly here, Hotze’s section 9.004(e) argument challenges the propriety
of placing Proposition 1 and its primacy clause on the 2004 ballot. This ballot-
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preparation challenge was required to be raised in an election contest; because
Hotze failed to do so, this argument is waived. See id. at 669-70; see also Hotze,
2010 WL 1493115, at *4 (stating that an election contest is the “only statutory
mechanism” to “challenge the process by which the City presented the propositions
to the electorate”).
We overrule Hotze’s challenge premised on Texas Local Government Code
section 9.004(e).
2. Texas Local Government Code section 9.005(a)
Texas Local Government Code section 9.005(a) states:
A proposed charter for a municipality or a proposed amendment to a
municipality’s charter is adopted if it is approved by a majority of the
qualified voters of the municipality who vote at an election held for
that purpose.
Tex. Loc. Gov’t Code Ann. § 9.005(a). Asserting the primacy clause violates this
provision, Hotze argues that, because “Propositions 1 and 2 were both adopted by a
majority of the voters of the City of Houston on November 2, 2004[,] . . . both
Propositions must be enacted.” We reject this contention.
Section 9.005(a) states that a proposed amendment is “adopted if it is
approved by a majority of the qualified voters”. Id. Here, as discussed above, both
Propositions 1 and 2 were approved by a majority of the qualified voters at the
November 2004 election. The results of this election were declared in the
Adoption Ordinance, which states that Propositions 1 and 2 “were approved by a
majority of the qualified voters voting in the Election and are adopted, with
Proposition 1 receiving a higher number of votes than Proposition 2.” (emphasis
added). Accordingly, because the primacy clause did not prevent adoption of
Proposition 2 as part of the city charter, the primacy clause does not violate section
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9.005(a).
We overrule Hotze’s challenge premised on Texas Local Government Code
section 9.005(a).
III. Attorney’s Fees
In his final issue, Hotze requests that this case be remanded to the trial court
so that he may seek recovery of his attorney’s fees from Appellees. Because we do
not sustain any of Hotze’s issues challenging the trial court’s summary judgment
order, we reject his request regarding attorney’s fees. We overrule Hotze’s final
issue.
RESPONSE TO THE DISSENT
Both Hotze and our dissenting colleague appear to presume the statute’s use
of the term “adopted” means that an ordinance must be given “effectiveness” upon
adoption. Without this presumption, the question cannot be “may a home-rule
municipality nevertheless deny effectiveness.” Dissenting Op. at 1. We share no
such presumption, particularly given the absence of any statutory language, cited
precedent, or known precedent instructing otherwise.
The dissent further appears to imply that if two municipal ordinances were
inconsistent without municipal interference or primacy clauses, this court should
force compliance with both. Again, we are aware of no such precedent. While we
recognize the equitable argument that this particular primacy clause is potentially
unfair to the supporters of Proposition 2, that equitable argument was not briefed
and not addressed by the dissent.
Finally, our dissenting colleague repeatedly cites Texas Local Government
Code section 9.005(a) for the proposition that Proposition 2 became effective upon
adoption. Clearly established rules of statutory construction dictate that, “We must
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give effect to each provision of a statute so that none is rendered meaningless or
mere surplusage.” TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex.
2016). If section 9.005(a) meant that a charter amendment was effective upon
adoption, then section 9.005(b) (identifying when a charter amendment becomes
effective) would be surplusage. See Surplusage, Black’s Law Dictionary (11th ed.
2019) (defining “surplusage” as “[r]edundant words in a statute or legal
instrument; language that does not add meaning”). We cannot presume that the
Legislature drafted 9.005(b) to identify the date an amendment becomes effective
despite already identifying when an amendment becomes effective. See State v.
Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (“In construing a statute, we give
effect to all its words and, if possible, do not treat any statutory language as mere
surplusage.”). We also cannot presume the Legislature intended for section
9.005(a) to control effectiveness when it used the word “adopted” in (a) and
“effect” in (b). Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,
865 (Tex. 1999) (“[I]t is cardinal law in Texas that a court construes a statute,
‘first, by looking to the plain and common meaning of the statute’s words.’ If the
meaning of the statutory language is unambiguous, we adopt, with few exceptions,
the interpretation supported by the plain meaning of the provision’s words and
terms.”); Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex. 1992) (per curiam)
(courts must apply ordinary meanings). We cannot enlarge the meaning and scope
of section 9.005(a) given the reasonable interpretation of the law as it is written.
See Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.
1993) (“When applying the ordinary meaning, courts ‘may not by implication
enlarge the meaning of any word in the statute beyond its ordinary meaning, and
implications from any statutory passage or word are forbidden when the legislative
intent may be gathered from a reasonable interpretation of the statute as it is
written.’”) (quoting Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 138
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(Tex. App.—Austin 1986, writ ref’d n.r.e.) (emphasis in original)); see also Jasek
v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 535 (Tex. App.—
Austin 2011, no pet.) (“A court may not judicially amend a statute and add words
that are not implicitly contained in the language of the statute.”) (citing Lee v. City
of Houston, 807 S.W.2d 290, 295 (Tex. 1991)). Therefore, we reject the dissent’s
interpretation of Texas Local Government Code section 9.005(a) to mean
Proposition 2 became effective upon adoption.
CONCLUSION
We affirm the trial court’s September 16, 2019 summary judgment order.
/s/ Meagan Hassan
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan (Jewell, J., dissenting).
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