Opinion
No. 11-15-00013-CV
04-07-2016
JAMES BOSWELL, Appellant v. ECTOR COUNTY INDEPENDENT SCHOOL DISTRICT; ECISD SCHOOL BOARD TRUSTEES; MIKE ATKINS; TRYON LEWIS; MURRAY A. CRUTCHER, III; AND ATKINS, HOLLMANN, JONES, PEACOCK, LEWIS & LYON, Appellees
On Appeal from the 70th District Court Ector County, Texas
Trial Court Cause No. A-133,485
MEMORANDUM OPINION
James Boswell appeals the trial court's order that granted Appellees' motion to dismiss pursuant to Rule 91a of the Texas Rules of Civil Procedure. We affirm.
Background Facts
This appeal arises out of Appellant's termination and nonrenewal as a teacher with the Ector County Independent School District. Appellant was hired as the ROTC Junior Army Instructor for Odessa High School on a yearly contract. Appellant alleges that he was fired in retaliation for reporting several alleged instances of illegal conduct on the part of officials with the school district.
Appellant filed this pro se suit on May 2, 2012. He originally asserted that ECISD and ECISD School Board Trustees were negligent. Appellees filed multiple special exceptions during the course of litigation. The trial court granted Appellees' special exceptions on two occasions and ordered Appellant to replead his allegations. Appellant then amended his petition three more times and added attorneys Mike Atkins, Tryon Lewis, Murray A. Crutcher, III and the law firm of Atkins, Hollmann, Jones, Peacock, Lewis & Lyon, the attorneys for ECISD, as defendants. In his fourth amended petition, Appellant listed several claims against Appellees, including negligence; negligent hiring, supervision, and management; fraudulent misrepresentation, deceptive trade practices, and unfair business practices; ratification of the misconduct of others; assault and battery; conspiracy to defame Appellant and intentional infliction of emotional distress; professional misconduct and negligent misrepresentation; breach of fiduciary duty, breach of contract, interference with an existing contract, and interference with a prospective contract; wrongful termination under the Texas Whistleblower Act; employment discrimination; deprivation of Article 1, section 19 of the Texas Constitution; invasion of privacy, defamation, and false imprisonment; and fraud.
In October 2012, Appellant filed suit in federal court alleging the same set of facts and similar causes of action against ECISD and ECISD Board of Trustees. The federal district court dismissed all of Appellant's claims, with the exception of his First and Fourth Amendment claims under 42 U.S.C. § 1983. The federal district court later granted summary judgment in favor of ECISD and ECISD Board of Trustees on those two claims.
We note that on April 7, 2014, Appellant filed a pleading entitled "Appeal Rights from Motion for Rehearing Decision." In this pleading, Appellant asserted causes of action against the Texas Workforce Commission and two Texas Workforce Commissioners. It is unclear whether this pleading is an amended petition. The Texas Workforce Commission filed an answer and asserted sovereign immunity as an affirmative defense. The Texas Workforce Commission is not a party to this appeal.
On February 14, 2014, Appellees filed a motion to dismiss asserting that Appellant's alleged causes of action have no basis in law or fact. In their motion to dismiss, Appellees alleged that Appellant "pleads bare assertions that are a mish mash of unrelated State and Federal statutes in an attempt to state causes of action." Appellees asserted that it was impossible to ascertain what causes of action Appellant had brought.
By a Rule 11 agreement, Appellant and Appellees agreed to a continuance for the hearing on the motion to dismiss and to a waiver of the time requirement under Rule 91a. See TEX. R. CIV. P. 11; see also TEX. R. CIV. P. 91a.3(c) ("A motion to dismiss must be . . . granted or denied within 45 days after the motion is filed."). The trial court held a hearing on the motion to dismiss on August 14, 2014. On the day of the hearing, Appellant filed a response to Appellees' motion. At the end of the hearing, the trial court made the following announcement to Appellant: "But after dealing with [your pleadings] time and time, again, asking for clarification of your causes of action, I don't feel like you've set out anything that -- that I can even comprehend or work with and -- and I don't -- and it's just not there." The trial court subsequently granted Appellees' motion to dismiss.
Analysis
As per the comments to the rule, "Rule 91a is a new rule implementing section 22.004(g) of the Texas Government Code, which was added in 2011 and calls for rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence." TEX. R. CIV. P. 91a cmt. Rule 91a allows a party to move to dismiss a baseless cause of action on the grounds that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. The motion must identify each cause of action to which it is addressed and specifically state the reasons the action has no basis in law, no basis in fact, or both. TEX. R. CIV. P. 91a.2. The trial court must decide the motion based solely on the pleading of the cause of action, together with any exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6.
The determinations of whether a cause of action has any basis in law and in fact are legal questions that we review de novo, based on the allegations of the live petition and any attachments thereto. Wooley v. Schaffer, 447 S.W.3d 71, 73-77 (Tex. App—Houston [14th Dist.] 2014, pet. denied). "In conducting our review, . . . we must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact." Id. at 76; accord Dailey v. Thorpe, 445 S.W.3d 785, 787-88 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
We note at the outset that Appellant's live pleading is approximately seventy-seven pages long without counting the documents attached to it as exhibits. Appellant pleaded alleged improprieties on the part of the school district that occurred prior to his employment with the school district. In his pleading and in his brief filed with this court, Appellant has made reference to numerous extraneous matters. For example, he references the investigation of Penn State University by a former FBI director, the "Kennedy assignation," the SMU recruiting scandal, and a matter at TCU in which he was previously involved. See Boswell v. Tex. Christian Univ., No. 4:14-CV-0330-O, 2014 WL 4650023, at *8 (N.D. Tex. Sept. 16, 2014). In addition to seeking several millions of dollars in damages, Appellant sought injunctive relief as follows: "Plaintiff requests the Honorable Judge of this Court initiate a special independent investigation team (similar to PENN State) to examine the alleged misconduct of ECISD employees listed below and the office of the Odessa County prosecutors and ECISD police force for failure to investigate unlawful conduct . . . ." He also sought the assignment of a former principal as "interim Superintendent" for the school district "[t]o avoid further community damage."
Throughout his petition, Appellant asserts several causes of action for which he obviously lacks standing. Appellant asserts statutory claims that belong to the federal government and the state government, and he asserts claims that would belong to individual third parties. For example, he attempted to assert a claim on behalf of a student for an alleged assault. Standing is an element of subject-matter jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Appellant lacks standing in his individual capacity for many of the assertions that he has made because he can establish no injury distinct from that incurred by the general public. Gattis v. Duty 349 S.W.3d 193, 202 (Tex. App.—Austin 2011, no pet.). "Constitutional standing is thus concerned not only with whether a justiciable controversy exists, but whether the particular plaintiff has a sufficient personal stake in the controversy to assure the presence of an actual controversy that the judicial declaration sought would resolve." Id. (quoting Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 925-26 (Tex. App.—Austin 2010, no pet.)). Thus, Appellant lacks standing for the majority of the claims he asserted.
Appellant brings five issues on appeal. He asserts in his first issue that the trial court erred when it granted Appellees' motion to dismiss because he has a viable cause of action under the Texas Whistleblower Act and for breach of contract. As noted previously, a motion to dismiss under Rule 91a must be decided based solely on the challenged pleading. TEX. R. CIV. P. 91a.6. In his argument in support of his first issue, Appellant cites numerous pages in the 2,510-page clerk's record, but none of the pages that he cites are from his challenged pleading.
We have examined Appellant's challenged pleadings regarding his whistleblower and breach of contract claims, and we conclude that those claims have no basis in law to support the relief that Appellant seeks. "A plaintiff must plead facts that affirmatively show the trial court's jurisdiction." O'Neal v. Ector Cty. Indep. Sch. Dist., 221 S.W.3d 286, 289-90 (Tex. App.—Eastland 2006) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)), aff'd, 251 S.W.3d 50 (Tex. 2008). Noticeably absent from his petition are allegations that he pursued a "Chapter 21 hearing" under the Education Code with the Commissioner of Education. See El Paso Indep. Sch. Dist. v. Kell, 465 S.W.3d 383, 387-88 (Tex. App.—El Paso 2015, pet. filed); see also TEX. EDUC. CODE ANN. ch 21 (West 2012). The school board and the Commissioner have exclusive jurisdiction under the Education Code over a breach of contract claim arising from the termination of a teacher's probationary or term contract. O'Neal v. Ector Cty. Indep. Sch. Dist., 251 S.W.3d 50, 51 (Tex. 2008) (noting that "[t]he Legislature has established administrative procedures with short deadlines to encourage prompt resolution of teacher contract disputes"). "If an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before a trial court has subject matter jurisdiction." Id. at 51-52 (noting that the Education Code provides for hearings and appeal to Commissioner if term contract is terminated). "Until exhaustion occurs, a trial court generally must dismiss related litigation without prejudice." Id. at 52. Appellant's failure to allege that he initiated, much less exhausted, his administrative remedies with the Commissioner deprived the trial court of subject-matter jurisdiction over his breach of contract claim.
Before a state employee claiming whistleblower status can sue his employer in district court for retaliation under the Texas Whistleblower Act, he must first invoke his employer's applicable "grievance or appeal procedures" within ninety days. TEX. GOV'T CODE ANN. § 554.006(a) (West 2012). Failure to timely initiate administrative action acts as a jurisdictional bar to relief and cuts off a grievant's right to judicial review. Aguilar v. Socorro Indep. Sch. Dist., 296 S.W.3d 785, 790 (Tex. App.—El Paso 2009, no pet.). The El Paso Court of Appeals recently concluded that a Chapter 21 hearing with the Commissioner is "possibly the only way" under the Education Code for a term contract teacher to challenge a proposed termination. Kell, 465 S.W.3d at 387. The court concluded that a Chapter 21 administrative proceeding before the Commissioner precludes a claim under the Whistleblower act. Id. (citing City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008)) (noting that Texas Commission on Human Rights Act supplanted any remedies offered by Texas Whistleblower Act where public employee alleged retaliation for reporting age and race discrimination as determined in City of Waco). The rationale in Kell is applicable to Appellant's whistleblower claim—his failure to plead the initiation of an administrative proceeding with the Commissioner of Education deprived the trial court of subject-matter jurisdiction to consider his whistleblower claim. We overrule Appellant's first issue.
In his second issue, Appellant addresses the various claims he alleged against the attorneys that represent the school district. He asserted multiple causes of action against Appellees Mike Atkins, Tryon Lewis, and Murray A. Crutcher, III and the law firm of Atkins, Hollmann, Jones, Peacock, Lewis & Lyon based on the attorneys' representation of the school district. "Texas common law is well settled that an attorney does not owe a professional duty of care to third parties who are damaged by the attorney's negligent representation of a client." Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (citing Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996)). As a general rule, attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation. Id. Appellant's pleading fails to allege acts on the part of these Appellees occurring outside of their representation of the school district. Accordingly, the trial court did not err when it granted the motion to dismiss with regard to Appellees Mike Atkins, Tryon Lewis, and Murray A. Crutcher, III and the law firm of Atkins, Hollmann, Jones, Peacock, Lewis & Lyon. We overrule Appellant's second issue.
As was the case with Appellant's first issue, he has not cited any portions of his challenged pleading in briefing his second issue. --------
Appellant asserts in his third issue that various rights provided under the Texas constitution were violated. However, he does not cite any portion of the challenged pleading wherein he contends that these claims were adequately pleaded. After reading Appellant's fourth amended petition, we conclude that Appellant had no arguable basis in law or fact for causes of action under the Texas constitution. We overrule Appellant's third issue.
Appellant states his fourth issue as follows: "As discrimination is reported and investigated by the EEOC, OCR and TWC and remedies are exhausted and tainted by elements of fraud and misrepresentation, is the Petition for Review process the means for judicial review." We are unable to discern from his briefing what Appellant is arguing on appeal other than a complaint under Chapter 21 of the Texas Labor Code. In addition to his whistleblower claim, Appellant's cause of action for employment discrimination under Chapter 21 of the Texas Labor Code was the only ground in Appellant's challenged pleading that contained any citation or reference to the elements of the cause of action pleaded. These were the only two causes of action in which Appellant attempted to link the facts alleged with any viable cause of action.
The Texas Commission on Human Rights Act (TCHRA), under Chapter 21, makes it unlawful for an employer to retaliate "against a person who, under this chapter: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing." TEX. LAB. CODE ANN. § 21.055 (West 2015). Covered "employees" under the Act include public employees. Id. § 21.002(7), (8)(D).
As is the case with the Whistleblower Act, the TCHRA has administrative remedies and requirements before suit may be filed. Under the TCHRA, to exhaust administrative remedies, a plaintiff must (1) file a complaint with the Texas Workforce Commission within 180 days of the alleged discriminatory practice; (2) permit the TWC to dismiss the complaint or resolve it within 180 days before filing suit; and (3) file suit no later than two years after the complaint is filed. LAB. §§ 21.201-.202, .208, .256; see City of Waco, 259 S.W.3d at 154-55. A Chapter 21 claimant must exhaust administrative remedies before filing a civil action. ATI Enters., Inc. v. Din, 413 S.W.3d 247, 251 (Tex. App.—Dallas 2013, no pet.). "Failure to exhaust administrative remedies creates a jurisdictional bar to proceeding with the claim." Id. ("[N]oncompliance [with Chapter 21's administrative procedures] deprives courts of subject-matter jurisdiction." (alteration in original) (quoting City of Waco, 259 S.W.3d at 154)).
By his own admission in his challenged pleading, Appellant did not initiate any processes with either the TWC or EEOC until May 31, 2012. However, he filed the underlying suit prior to that date. Taking the pleadings as true, Appellant did not exhaust his administrative remedies under the TCHRA prior to filing suit. Therefore, Appellant has no arguable basis in law for his cause of action under the TCHRA. TEX. R. CIV. P. 91a.1. We overrule Appellant's fourth issue.
In his fifth issue, Appellant complains of several alleged errors that are not related to the granting of the motion to dismiss under Rule 91a. For example, he complains that the trial court abused its discretion by dismissing the case without compelling discovery. Under the express terms of the rule, a motion to dismiss under Rule 91a is based solely upon an examination of the pleadings. Because the matters raised in Appellant's fifth issue are not germane to the dismissal under Rule 91a, we overrule his fifth issue.
In summary, we have reviewed the entirety of the matters alleged by Appellant in his fourth amended pleading. We agree with the trial court's determination that Appellant's challenged pleading has no basis in law that would entitle Appellant to the relief that he seeks and no basis in fact because no reasonable person could believe the facts pleaded. Although Appellant used headings throughout his challenged pleading, the allegations set out below those headings are garbled, and different causes of action appear to be argued instead of the cause of action listed in the heading. Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We conclude that Appellant's challenged pleading has no arguable basis in law or fact.
This Court's Ruling
We affirm the order of the trial court.
/s/_________
JOHN M. BAILEY
JUSTICE April 7, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.