In an opinion by Justice Ian Patterson, Third Court of Appeals rules that coach's death on the way to basketball practice fell under the coming-and-going rule and was not compensable. Worker Compensation Division of the Texas Department of Insurance had found that the teacher-coach had acted within the course and scope of her employment at the time of her death, but trial court granted summary judgment for the employing school district in its suit for judicial review. The Austin Court of Appeals agreed with the trial court and affirmed.
Newsom v. Ballinger ISD, No. 03-07-00022-CV (Tex.App.-Austin, Jul. 17, 2007) (Opinion by Justice Patterson)(death benefits denied; teacher was not acting in scope of employment when killed en route to work)
Full style: Kevin Newsom, Individually and as Guardian and Next Friend of L.W.N., C.G.N., and C.J.N., Minors v. Ballinger Independent School District
Appeal from 119th District Court of Runnels County
FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT NO. 13,810, HONORABLE BEN WOODWARD, JUDGE PRESIDING
MEMORANDUM OPINION BY JAN P. PATTERSON
In this appeal of a claim for workers' compensation death benefits arising from a fatal automobile accident involving his spouse, Kevin Newsom, individually and on behalf of his children, appeals the district court's summary judgment in favor of appellee Ballinger Independent School District. For the reasons that follow, we affirm the judgment.
BACKGROUND
In the fall of 2003, Cecyle Newsom was employed by the District as a teacher and a junior high school girls' basketball coach. She was the head coach of the eighth grade girls' basketball team. On Saturday, November 22, 2003, Mrs. Newsom was fatally injured in an automobile accident as she was driving to the school complex to conduct a practice.
Her husband, Kevin Newsom ("Newsom"), filed a claim for workers' compensation benefits on behalf of himself and the Newsoms' three sons. The District denied the claim on the basis that Mrs. Newsom's death did not occur in the "course and scope of her employment."
The Texas Department of Insurance, Division of Workers' Compensation (the "Division"), held a contested case hearing in June 2004 to determine whether Mrs. Newsom's death resulted from a compensable injury. The hearings officer found that Mrs. Newsom was acting in the course and scope of her employment at the time of her death and concluded that her family was entitled to death benefits. The District appealed the hearings officer's decision to the Division's appeals panel. The appeals panel affirmed the hearing officer's decision.
In September 2004, the District sought judicial review in district court. In its original petition, the District maintained that Mrs. Newsom was driving to work when the accident took place. The District moved for summary judgment on the ground that labor code section 401.011(12)(A) defined the phrase "course and scope of employment" to exclude travel to and from a person's place of employment. Accordingly, the District argued that Mrs. Newsom's death was noncompensable and the Division's award of death benefits should be reversed.
The district court granted the District's motion and rendered summary judgment reversing the Division's benefits award. On Newsom's appeal, the judgment was set aside as void, the appeal was dismissed, and the case remanded to the district court. (1) The parties again filed cross- motions for summary judgment on the issue of whether Mrs. Newsom was in the course and scope of her employment at the time the accident occurred. The district court again granted summary judgment in favor of the District, and this appeal followed.
DISCUSSION
The only issue on appeal is whether the District established as a matter of law that Mrs. Newsom's death did not occur in the "course and scope of her employment" because she was merely traveling to her place of employment, and therefore, the injury was noncompensable. Because Mrs. Newsom was driving to a Saturday practice and such practices are encouraged by her employer, Newsom contends that she was acting on a "special mission" for her employer, that she was therefore acting in the course and scope of her employment, and the injury was therefore compensable.
The parties do not dispute that an injury is compensable if it occurs in the "course and scope of employment." Section 401.011(12) of the Texas Labor Code defines that term:
(12) "Course and scope of employment" means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee's employment to proceed from one place to another place.
Tex. Labor Code Ann. § 401.011(12) (West 2006) (emphasis added).
Generally, an employee is not acting in the course and scope of employment while traveling to and from work. See, e.g., Texas Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963); Longoria v. Texaco, Inc., 649 S.W.332, 335 (Tex. App.--Corpus Christi 1983, no writ); London v. Texas Power & Light Co., 620 S.W.2d 718, 719-20 (Tex. Civ. App.--Dallas 1981, no writ); American Nat'l Ins. Co. v. O'Neal, 107 S.W.2d 927, 928 (Tex. Civ. App.--San Antonio 1937, no writ). This rule is based on the premise that an injury occurring while traveling to and from work is caused by risks and hazards incident to driving on public streets, which has nothing to do with the risks and hazards emanating from a person's employment, Smith v. Texas Employers' Ins. Assoc., 105 S.W.2d 192, 193 (Tex. 1937), and the employer has not increased the employee's risk beyond the risk to the general public.
An exception to the general rule exists where an employee has undertaken a "special mission" at the employer's direction or is otherwise performing a service in furtherance of the employer's business with the express or implied approval of the employer so that "the employee is directed in the employee's employment." Tex. Labor Code Ann. § 401.011(12)(A)(iii); see also Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex. App.--El Paso 1993, no writ); Gebert v. Clifton, 553 S.W.2d 230, 231-32 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ dism'd w.o.j.). Injuries that occur while driving between job sites are covered based on a direction by the employer to proceed from one place to another. To be on a special mission, an employee must be acting under the control or in furtherance of the employer. Chevron, U.S.A., Inc., 847 S.W.2d at 356. An employee is not engaged in a special mission when the employer neither requires a particular means of travel, nor directs the employee to take a particular route.
A special mission is a specific errand that an employee performs for his employer, either as part of his duties or at his employer's request. It involves work or a work-related activity apart from the employee's regular job duties. See Chevron, U.S.A., Inc., 847 S.W.2d at 356 (employee traveling at direction of employer en route to mandatory seminar was on a special mission); Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 129 (Tex. Civ. App.--Tyler 1977, writ ref'd n.r.e.) (employee instructed to travel from job site to pick up supplies was on a special mission); see also Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 654 (Tex. App.--Houston [1st Dist.] 1993, writ dism'd w.o.j.) (employee who stopped at friend's house to retrieve briefcase so she could work at home was not on a special mission).
The undisputed summary-judgment proof shows that Mrs. Newsom was killed in a single-vehicle automobile accident on her way to a practice of her girls' basketball team on a Saturday. She had departed her residence and was on her way to the District's facilities where both junior high and high school classes were conducted. The facility is a single complex utilized jointly by the junior high and high school. It was also undisputed that her purpose in going to the District's facility that day was to conduct basketball practice with her eighth grade girls' basketball team.
The District contends that Mrs. Newsom was traveling to her regular place of employment and was therefore outside of the definition of the term "course and scope of employment." See Tex. Labor Code Ann. § 401.011(12). Because transportation to and from a place of employment is not included within the definition of "course and scope of employment," an injury is not compensable unless it falls within one of the three exceptions to noncompensability. The parties dispute only whether Mrs. Newsom was on a "special mission" as to fall within the third exception to the noncompensability provision, i.e., that she was directed by her employer. Newsom urges and averred in his affidavit that the Saturday practice was "a special practice, in furtherance of her duties as the coach" and that "she was encouraged to have such special practices by the school."
In support of its motion for summary judgment, the District produced the affidavits of Mickey Owens, the director of athletics for the District; Tri Danley, the high school varsity girls' basketball coach; Freda Perez, the coach of the high school girls' junior varsity basketball team; and Nancy Minzenmayer, the seventh grade girls' basketball coach. The District's summary judgment evidence showed that the eighth grade girls' team generally practiced from 3:00 to 3:45 p.m. on school days. Owens averred that University Interscholastic League ("UIL") rules would not allow teams to practice after school and on Saturdays except during specific times of the year. When UIL rules did allow additional practice after school and on Saturdays, the District allowed the coach to conduct those practices, as long as the practices were in compliance with UIL regulations and did not exceed limitations concerning the amount of time that could be spent in practice. Owens also averred that extra practice time was allowed and encouraged, and that it was not unusual for the girls' basketball teams to practice after school or on Saturdays: "Although Saturday was not a regular practice day, Saturday practice was not an unusual occurrence."
The proof also showed that Mrs. Newsom had total control over the scheduling of practices for her team. Neither Owens nor Tri Danley, the high school girls' basketball coach and Mrs. Newsom's immediate supervisor, set the schedule for the teams to practice. Danley averred that Saturday practices were not allowed by the UIL until after the last Monday in October. In her affidavit, she stated:
Cecyle Newsom and Nancy Minzenmayer set their own schedules for their teams to practice. Saturday practices for the girls' basketball teams were not required by me or the athletic department, but they were allowed. The only limitation or restriction was that the coach comply with the UIL rules on the amount of time that could be spent in practice, especially limitations concerning practice after school and practices on Saturday. The only other limitation was having available gym space.
Danley averred that on November 22 she was deer hunting and had not scheduled or contemplated practices by any of the teams or a scrimmage between any of the teams: "[T]here was no planned scrimmage between the high school girls' varsity teams and the 8th grade girls' 'A' team on Saturday, November 22, 2003." Nor did she instruct Mrs. Newsom to conduct a practice on that date. She left the practice schedule to Mrs. Newsom's discretion. She averred:
Basketball practice at that time of year on Saturday was not unusual. This was a routine practice, and it was a normal or routine part of Cecyle Newsom's job as head coach of the 8th grade girls' basketball team.
There is no testimony that anyone in the District directed Mrs. Newsom to conduct a practice on that day. The decision as to the scheduling of practices was left to her discretion and, on that day, it is uncontroverted that Mrs. Newsom alone decided that she would schedule a practice.
In response to the District's motion and in support of his own motion for summary judgment, Newsom averred that the practice was not a "regularly scheduled practice," but was instead a "special practice." But he does not dispute that practices were conducted regularly after school and on Saturdays. Nor does he dispute that Mrs. Newsom scheduled her practices.
Relying on Evans v. Illinois Employers Ins., 790 S.W.2d 302 (Tex. 1990), Newsom urges that because the practice was not a regularly scheduled practice, it was transformed into a "special mission." In Evans, two employees working on their company's contract with the Army Corps of Engineers to relocate a county road and railroad tracks had been instructed by their supervisor on the Friday before the accident to attend a safety meeting at 7:30 a.m. on the following Monday morning, at which time their pay began. As the two men were driving directly to the meeting on Monday morning, they collided with a train. Because all employees were required to attend the regularly scheduled safety meetings as a part of their employment, attendance was "an integral part of the job, and not a special mission, travel to the safety meeting was simply travel to work." Id. at 304. The employees asserted that because the meeting started at an earlier time than their usual work began and was at a different location than their work that they were on a special mission. The court rejected this argument:
Had [the employees] been injured while en route from the safety meeting to the primary work site[], these injuries would have been covered by the Act. However, since neither of them had begun work, their injuries fall squarely within the 'coming and going' rule and they are thereby precluded from recovering workers' compensation benefits. If other factors are not found to be special, then the employee must have been actually working as he traveled down the road in order for an injury to be compensable. Id. at 305.
Because the employer neither supplied the transportation, compensated the employees for transportation time to the safety meetings, specified the route to be taken, nor was aware of the route normally taken, there was nothing that would bring the employees within the coverage of the Act. By merely being on their way to work at the time of the accident, the court concluded that the employees were outside the scope of employment. Id.
In this case, Mrs. Newsom was driving to the school complex for practice; she was not traveling on a "special mission" for the school district, nor was she traveling at anyone's direction or control. We conclude that the accident occurred while Mrs. Newsom was en route to work and that the accident did not occur in the course and scope of her employment.
CONCLUSION
We affirm the judgment of the district court granting summary judgment in favor of the District.
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: July 17, 2007
1. See Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375 (Tex. App.--Austin 2006, no pet.).
Showing posts with label school districts. Show all posts
Showing posts with label school districts. Show all posts
Tuesday, July 17, 2007
Tuesday, June 26, 2007
Zeifman v. Michels and Austin ISD (Tex.App.- Austin, Jun. 20, 2007)
Clifford Zeifman v. Michels and Austin Indep. Sch. Dist. (Tex.App.- Austin, Jun. 20, 2007)(Pemberton)(ISD law, parental rights, SACPR)
REVERSED AND REMANDED ON MOTION FOR REHEARING:
Opinion by Justice Bob Pemberton
Before Justices Patterson, Pemberton and Waldrop
03-06-00598-CV
Clifford Zeifman v. Sheryl Diane Michels and Austin Independent School District
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-06-002930, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
OPINION BY JUSTICE PEMBERTON
We withdraw our opinion issued May 11, 2007, and substitute the following in its place. The Court has overruled Michels's motion for rehearing.
This appeal arises within a statutory scheme intended to ensure the best interests of children following their parents' divorce. It also implicates the principles underlying our adversarial system, which we trust to ensure justice and truth under our law through the refining of issues achieved when parties and their able advocates receive their "day in court" under fair procedures.
Ex-spouses Sheryl Michels and Clifford Zeifman, aided by their respective legal teams, are embroiled in a controversy concerning the best interests of their two children, A.A. and G.L. The background of this controversy is detailed in our opinions in prior proceedings that have arisen from it in recent months. (1) To summarize, Michels and Zeifman "have pursued extensive and acrimonious litigation over which [elementary] school A.A. should attend," (2) a conflict that evidently has spread to other issues involving both A.A. and a second child, G.L. (3) Informed by the harsh tenor of the litigation and legal expenses that, the record of these proceedings reveal, are spiraling into the hundreds of thousands of dollars, we have previously suggested that "the adversarial processes of our court system," at least when utilized in this manner, "may not be the best means" of either deciding which school A.A. should attend or of ensuring this young child's best interests. (4)
This latest appeal involves a contention by Zeifman that Michels and her lawyers sought to advance their interests by unethically circumventing the procedural protections that our adversarial justice system provides him. The conduct he alleges is indeed disturbing. In our August 4, 2006 opinion in Cause No. 03-05-00533-CV, we held that, on the record before us, the district court had abused its discretion in modifying the comprehensive terms of the parties' original agreed divorce decree to give Michels sole power to make educational decisions on behalf of A.A. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.--Austin 2006, pet. denied); id. at 596 (Pemberton, J., concurring). During the period in which the district court's order was in effect, Michels had exercised her authority to withdraw A.A. from the Austin Independent School District's (AISD) Bryker Woods Elementary, the school in which the original agreed divorce decree had required the child to be enrolled, and enrolled her in St. Andrews. Zeifman, 212 S.W.3d at 586. After we had released our opinion but before mandate issued, Michels sued AISD seeking injunctive relief to prevent the district from permitting Zeifman to enroll A.A. at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that permitting such enrollment would (1) violate Michels's exclusive parental rights (at least until the mandate in No. 05-533-CV issued) to make educational decisions on behalf of A.A. and (2) "actively assist[] . . . and aid[] and abet[] Clifford Zeifman in the violation of a valid court order," a December 17, 2004, standing order governing Travis County family law cases. (5)
While Michels's new lawsuit was directed at controlling Zeifman's actions--and despite the fact that he was A.A.'s father, joint-managing conservator, and her opposing party in ongoing litigation concerning A.A.'s education--Michels did not name Zeifman as a party. Zeifman represents that, even worse, Michels sought to avoid his notice or detection by deliberately filing her lawsuit on a day--Monday, August 14--on which "Sheryl and her attorneys were aware" from a vacation letter and prior correspondence "that Clifford's attorney was out of town attending the Advanced Family Law Course in San Antonio." (6)
At 2:48 p.m. on August 14, Michels obtained an ex parte temporary restraining order against AISD. On the following Friday, August 18, (7) Zeifman filed a petition in intervention, motion to dismiss, and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels's new lawsuit as A.A.'s father and co-managing conservator, and as respondent and counter-petitioner in the ongoing litigation. Zeifman moved to dismiss Michels's suit as an improper attempt to circumvent the district court's jurisdiction over the divorce decree and this Court's jurisdiction over "the issue of [A.A.'s] education." Zeifman also urged that Michels's attempt to invoke the district court's jurisdiction was inconsistent with the position she had taken only a few months earlier in a second modification proceeding she had initiated under the divorce decree in 2005. Specifically, in response to a counter-petition from Zeifman to modify the educational-choice portions of the decree, Michels had filed a plea to the jurisdiction asserting that the district court lacked subject matter jurisdiction over the counter-petition while the appeal of the decree modifications in No. 05-533 was pending. The district court then "agree[d] that it has no jurisdiction to modify the order addressing the education of [A.A.] because of the current appeal of that matter" but overruled Michels's plea because it "retains jurisdiction with respect to all other aspects of the parent-child relationship as to both children under Chapters 155 and 156 of the Texas Family Code." (8)
Zeifman sought sanctions under rule 13 of the Texas Rules of Civil Procedure, chapters 9 and 10 of the civil practice and remedies code, and the district court's inherent power. He complained chiefly that Michels had filed a "frivolous and groundless" separate suit against AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or participation for a short, but critical, period of time. Zeifman argues that these tactics, coupled with subsequent events, reveal Michels's sole design to have been delay. He represents that he had been scheduled to have custody of A.A. during the week of August 14, that classes at Bryker Woods were to begin on August 15, and that custody was scheduled to return to Michels the following week. Thus, Zeifman maintains, Michels filed what proved to be a "one-week lawsuit" solely to prevent him from enrolling A.A. during his custody week and to "buy time" until custody returned to Michels the following week and she could enroll A.A. in St. Andrews.
A hearing on Zeifman's intervention, motion to dismiss, and motion for sanctions was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21, Michels filed a rule 11 agreement with AISD, dated August 18, whereby the district agreed not to permit A.A. to be enrolled at or attend Bryker Woods "until such time as [AISD] is presented with a final, non-appealable order expressly authorizing such enrollment and attendance," in return for Michels's agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the day of the hearing, filed a motion to strike Zeifman's intervention. After a hearing in which only argument was presented, the district court signed an "Order Confirming Nonsuit" and, by separate order, granted Michels's motion to strike intervention, dismissed as moot
Zeifman's motion to dismiss, and denied Zeifman's motion for sanctions.
Zeifman brings two issues, contending that the district court abused its discretion in striking his intervention and in denying his sanctions motion. We agree that the district court abused its discretion in striking Zeifman's intervention. Furthermore, because this ruling was undisputedly a predicate for the district court's ruling on Zeifman's sanctions motion, we remand Zeifman's sanctions motion for further proceedings.
As this Court has previously observed, the right of intervention is ultimately rooted in equity. Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.) ("The right of intervention is an equitable right. It does not depend upon a rule or statute for its existence."). This right is recognized in rule 60 of the Texas Rules of Civil Procedure, which provides that "[a]ny party may intervene by filing a pleading, subject to being stricken by the court for sufficient cause on the motion of any party." Tex. R. Civ. P. 60; see Highlands Ins. Co., 794 S.W.2d at 601-02.
Sufficient cause exists for striking an intervention when a would-be intervenor faced with a motion to strike cannot demonstrate a justiciable interest in the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499-500 (Tex. 1982); see Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.--Fort Worth 2003, no pet.); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This justiciable interest may be either legal or equitable in nature but must be present and not merely remote or contingent. Mendez, 626 S.W.2d at 499; McCord, 777 S.W.2d at 811-12 ("An intervenor must show some present legal or equitable interest in the subject matter which makes it proper for him to participate in the proceedings."). This interest is "analogous to that essential for a party to maintain or defend an action." McCord, 777 S.W.2d at 811-12 (citing 1 McDonald, Texas Civil Practice § 3.47 (1981 ed.)); see also Law Offices of Windle Turley, 109 S.W.3d at 70 ("A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation."). Whether an intervenor possesses a present justiciable interest is determined, in the first instance, by the facts alleged in the petition in intervention, which "also should be construed along with the allegations of fact set forth in the pleadings of the other parties." McCord, 777 S.W.2d at 812.
While the determination of whether a justiciable interest exists based on the pleadings would appear to present a pure question of law, cf. Texas Parks & Wildlife Dept. v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004), the ultimate determination of whether an intervention should be struck, even if a justiciable interest is shown, has long been held to be vested in the sound discretion of the trial court. Mendez, 626 S.W.2d at 499 ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."); Law Offices of Windle Turley, 109 S.W.3d at 70; McCord, 777 S.W.2d at 812. We accordingly review a trial court's decision on a motion to strike an intervention for abuse of discretion. See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006) (citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)). An abuse of discretion denotes "act[ing] without reference to guiding rules or principles; in other words . . . the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
During oral argument, Michels conceded that Zeifman had shown a justiciable interest in her suit against AISD, at least at its inception. Zeifman's justiciable interest is obvious from the face of his petition, if not from Michels's own petition. Michels's suit sought to prevent Zeifman from enrolling A.A. in Bryker Woods or other AISD schools. Both Zeifman and Michels pleaded that Zeifman is A.A.'s father. Zeifman pleaded that he was joint managing conservator; Michels requested the district court to take judicial notice of the file in their divorce case, which demonstrated Zeifman's joint managing conservatorship. Both Zeifman and Michels recounted the history of their litigation concerning where A.A. should attend elementary school, including the opinion of this court reversing the district court's order granting Michels sole control over A.A.'s educational decisions. Michels further alleged that she and Zeifman had each filed additional motions to modify the divorce decree and were currently litigating these issues.
Even if Zeifman demonstrated a justiciable interest in her suit, Michels contends, he has not demonstrated that the district court abused its discretion in striking his intervention. She relies on the proposition that "[i]t is only an abuse of the trial court's discretion to strike a petition in intervention if the intervenor: (1) could have brought the same action, or any part of it, in its own name; (2) the intervention would not complicate the case by excessively multiplying the issues; and (3) the intervention is almost essential to effectively protect the intervenor's interest." Michels derives these principles from the Texas Supreme Court's decision in Guaranty Federal. See 793 S.W.2d at 657; see also Intermarque Auto Prod., Inc. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.--Texarkana 2000, no pet.). Applying her characterization of the Guaranty Federal holding, Michels contends that "Zeifman could not have brought the same action against the Austin Independent School District that [she] filed," which she depicts as seeking to protect her personal rights as a parent to solely control A.A.'s educational decisions (which she could continue to enforce, in her view, until this Court's mandate issued in the previously pending litigation) and rights unique to her under the Travis County standing order. Michels adds that Zeifman's suit would have "complicated" her case by interjecting issues--specifically, a motion to dismiss and a motion for sanctions--that were not raised by the original parties. She further emphasizes that Zeifman did not make a record of the district court's proceedings, nor request findings of fact and conclusions of law, requiring us to assume that the district court found all factual issues in support of any legal ground that could have supported its order. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 668 (Tex. App.--Austin 1997, writ denied).
Michels misconstrues the Guaranty Federal holding in several ways. In that case, the Texas Supreme Court first held that a trial court abused its discretion in striking an intervention sua sponte, as rule 60 presumptively permitted an intervention unless a motion to strike was filed. 793 S.W.2d at 657 (citing Tex. R. Civ. P. 60). The supreme court went on to observe:
Furthermore, under Rule 60, a person or entity has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him, he would be able to defeat recovery, or some part thereof. The interest asserted by the intervenor may be legal or equitable. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the intervenor's interest.
Id. (internal citations omitted). The supreme court held that these conditions were met in that case and that, accordingly, the district court had abused its discretion in striking the intervention. Id. at 757-58.
While Guaranty Federal does identify a set of equitable conditions under which the striking of an intervention would be an abuse of discretion, it does not, contrary to Michels's assertion, establish the "only" or exclusive circumstances in which that would be so. See In re Lumbermens Mutual, 184 S.W.3d at 722-29 (based on balancing of different equitable considerations, concluding that court of appeals had abused its discretion in barring intervention on appeal) (9); see also In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.--Corpus Christi 1997, no pet.) ("[W]e question whether the general rule of Guaranty Federal, which allows some discretion to strike the intervention, even applies to a probate proceeding in which interested parties attempt to assert claims which will otherwise be adjudicated against them in their absence.").
Furthermore, Michels both misstates the first element of the Guaranty Federal framework and misapplies it. This element is not limited to whether the would-be intervenor "could have brought the same action, or any part of it, in its own name," as Michels states, but also is satisfied "if the action had been brought against him, he would be able to defeat recovery, or some part thereof." (10) Moreover, the first element of the Guaranty Federal framework is not as restrictive as Michels suggests:
The requirement [for intervention] has been stated, not exhaustively, to demand that "the intervenor's interest . . . be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him, he would have been able to defeat a recovery, in part at least." The statement, a useful guide, does not reach all situations. It does not cover, for example, the case in which the intervenor-defendant could not have been sued directly, yet a judgment for plaintiff may lead to an action over against the intervenor or otherwise seriously prejudice the intervenor, and the intervenor's intervention is necessary to assure proper defense of the claim. Nor does it meet the situation in which the intervenor asserts a claim adverse to both parties, though in special circumstances such an intervention may be proper . . . .
1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 5.80, at 967-68 (2d ed. 2004) (citations omitted) (emphasis added). Citing this commentary with approval, we held in McCord that while a child's grandparents in that case could not have initiated an original suit affecting the parent-child relationship, they did possess a justiciable interest in their grandchild's best interests that could support intervention in the divorce and custody suit initiated by the child's parents. McCord, 777 S.W.2d at 811-13; see also Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex. App.--Corpus Christi 2006, pet. denied) ("Even where an intervenor has not or could not have been sued directly, if a judgment for the plaintiff may lead to an action against the intervenor or otherwise seriously prejudice the intervenor, the intervention is necessary to assure a proper defense against the claim.").
We conclude that even if Zeifman could not assert precisely the same claims or defenses as Michels and AISD, he possessed a justiciable interest in the suit, and was potentially prejudiced by it, in a manner that satisfies the equitable considerations underlying the first element of the Guaranty Federal analysis. We likewise reject Michels's contentions that Zeifman's intervention to protect his interests and join issue with Michels would "complicate" the litigation or "excessively multiply" the issues relative to the benefits his participation would yield. McCord, 777 S.W.2d at 812 (trial court had discretion to determine that grandparents' intervention "may enhance [its] ability to adjudicate what is in the best interest of the child."). (11) The district court would have abused its discretion in striking his intervention on these grounds.
Michels ultimately relies on the fact that she subsequently non-suited her claims against AISD, suggesting that this tactic extinguished any justiciable interest Zeifman might have possessed in the action at its inception, see Potash Corp. of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 63-65 (Tex. App.--Corpus Christi 1997, no writ), or otherwise divested him of his right to intervene. Michels overlooks the fact that Zeifman filed his intervention on August 18, while she did not file her non-suit until the following week. As of the time of Michels's non-suit, Zeifman, as we have determined, was a proper party. Michels's non-suit thus could not defeat or render moot his claims for sanctions and for attorney's fees under rule of civil procedure 13, and sections 9 and 10 of the civil practice and remedies code. Allstate Ins. Co. v. Hellman, 159 S.W.3d 640, 642-43 (Tex. 2005) (where merits of UDJA claim were rendered moot, claim for attorney's fees "'breathes life' into this appeal and prevents it from being moot.") (quoting Camerena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)); Tri-M Erectors, Inc. v. Clearwater Constructors, Inc., 788 S.W.2d 906, 907-08 (Tex. App.--Austin 1990, writ denied); see Tex. R. Civ. P. 162 ("Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal . . . .").
For these reasons, we hold that the district court abused its discretion in striking Zeifman's intervention, accordingly sustain Zeifman's first issue, and reverse the district court's striking of the intervention. During oral argument, Michels conceded that the district court's order denying sanctions was necessarily predicated upon its order striking Zeifman's intervention. Thus, we also reverse the district court's order denying sanctions and remand for further proceedings.
Regarding sanctions, rule 13 of the Texas Rules of Civil Procedure allows a trial court to impose sanctions against an attorney, a represented party, or both, who file groundless pleadings brought in bad faith or brought for the purpose of harassment. Tex. R. Civ. P. 13.
Additionally, chapter 10 of the Civil Practices and Remedies Code allows a trial court to impose sanctions against a person, party, or both for advancing frivolous pleadings or motions. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001(1), .004(a) (West 2002). In light of our observation that Michels's conduct as alleged by Zeifman "is indeed disturbing," the district court on remand should carefully consider the facts known by Michels at the time she filed suit against AISD when determining whether sanctions are appropriate. See Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 490-94 (Tex. App.--Dallas 2005, no pet.) (upholding sanctions order where law firm filed suit against former clients for improper purpose); Martin v. Zieba, No. 03-03-00584-CV, 2004 Tex. App. LEXIS 3742, at *9-*13 (Tex. App.--Austin 2004, no pet.) (mem. op.) (upholding sanctions order where husband filed pleadings in child custody case for improper purpose); see also Low v. Henry, 50 Tex. Sup. J. 606, 2007 Tex. LEXIS 320, *6-*17 (Tex. Apr. 20, 2007). (12)
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded on Motion for Rehearing
Filed: June 20, 2007
1. See Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.--Austin 2006, pet. denied); see also In re Zeifman, No. 03-06-00601-CV, slip op. at 1-2 (Tex. App.--Austin Nov. 22, 2006) (orig. proceeding) (mem. op.); In re Zeifman, No. 03-07-00075-CV, slip op. at 1 (Tex. App.--Austin Mar. 16, 2007, orig. proceeding) (mem. op.). We have taken judicial notice of our files from these prior related proceedings.
2. In re Zeifman, No. 03-06-00601-CV, slip op. at 2.
3. In re Zeifman, No. 03-07-00075-CV, slip op. at 1.
4. In re Zeifman, No. 03-06-601-CV, slip op. at 2. We also observed that "A.A.'s parents--not the courts or other third parties--are in the best position, perhaps with the assistance of a competent mediator, to make that determination in A.A.'s best interests, thereby avoiding extensive and acrimonious litigation that could adversely impact A.A., their other child, each other, and possibly others."
5. This standing order, applicable to "every divorce suit and every suit affecting the parent-child relationship filed in Travis County" after January 1, 2005, prohibits parties, "while the lawsuit is pending before the court," from actions including "[d]isrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court." See Travis Co. Standing Order Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk's File No. 121,012 (Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties' 1997 divorce decree predated the standing order, Michels alleged that Zeifman had made himself subject to the order by filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning G.L.
6. The publicly available State Bar of Texas publications from this course state that it was held between August 14-17, 2006.
7. This date corresponds to the day after the 2006 State Bar Advanced Family Law Course was scheduled to end.
8. Order on Plea to the Jurisdiction of Sheryl Diane Michels, May 24, 2006. On appeal, Zeifman points out that Michels subsequently made similar arguments in the district court, after she filed a petition for review of this Court's judgment in the supreme court, in resisting his efforts to enforce his rights under the original divorce decree.
9. Lumbermens Mutual involved the appellate intervention of an insurer after its insured, for whom it had paid the appeal bond, abandoned potentially dispositive issues impacting claims within the scope of coverage. See In re Lumbermens Mutual,184 S.W.3d 718, 720-21 (Tex. 2006). The supreme court determined that the insurer had invoked "the equitable doctrine" of virtual representation, and then considered "other factors [that] may weigh against allowing intervention after final judgment has been rendered, including the length of time the insurer had known of its interest in the case before attempting to intervene, the extent of prejudice the existing parties may suffer from the would-be intervenor's delay, the extent of prejudice to the would-be intervenor if intervention is denied, and the existence of unusual circumstances militating for or against a determination that the application is timely." Id. at 726. The supreme court held that the court of appeals abused its discretion in refusing to allow the intervention. Id. at 729.
10. We thus reject Michels's contention that "[a] proper intervention requires that the intervenor be seeking some sort of affirmative relief from the court."
11. We find it interesting that Michels would decry Zeifman's intervention as "complicating" their litigation by "multiplication" of issues where she has done precisely that by foregoing the parties' ongoing proceedings under the divorce decree and filing a related but separate lawsuit (leading to a separate appeal), ensnaring a third party in her domestic dispute, yet oddly not naming Zeifman as a party in that separate proceeding--who, she acknowledged at oral argument, clearly had a justiciable interest. If intervention is ultimately an equitable concept, Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.), Michels arguably would be estopped from arguing that Zeifman's intervention would have complicated or excessively multiplied the issues in litigation.
12. We note that Zeifman did not obtain a reporter's record below, nor requests findings of fact and conclusions of law. As Michels observes, such devices enable an appellate court to review a trial court's rulings to award (or not award) sanctions.
REVERSED AND REMANDED ON MOTION FOR REHEARING:
Opinion by Justice Bob Pemberton
Before Justices Patterson, Pemberton and Waldrop
03-06-00598-CV
Clifford Zeifman v. Sheryl Diane Michels and Austin Independent School District
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-06-002930, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
OPINION BY JUSTICE PEMBERTON
We withdraw our opinion issued May 11, 2007, and substitute the following in its place. The Court has overruled Michels's motion for rehearing.
This appeal arises within a statutory scheme intended to ensure the best interests of children following their parents' divorce. It also implicates the principles underlying our adversarial system, which we trust to ensure justice and truth under our law through the refining of issues achieved when parties and their able advocates receive their "day in court" under fair procedures.
Ex-spouses Sheryl Michels and Clifford Zeifman, aided by their respective legal teams, are embroiled in a controversy concerning the best interests of their two children, A.A. and G.L. The background of this controversy is detailed in our opinions in prior proceedings that have arisen from it in recent months. (1) To summarize, Michels and Zeifman "have pursued extensive and acrimonious litigation over which [elementary] school A.A. should attend," (2) a conflict that evidently has spread to other issues involving both A.A. and a second child, G.L. (3) Informed by the harsh tenor of the litigation and legal expenses that, the record of these proceedings reveal, are spiraling into the hundreds of thousands of dollars, we have previously suggested that "the adversarial processes of our court system," at least when utilized in this manner, "may not be the best means" of either deciding which school A.A. should attend or of ensuring this young child's best interests. (4)
This latest appeal involves a contention by Zeifman that Michels and her lawyers sought to advance their interests by unethically circumventing the procedural protections that our adversarial justice system provides him. The conduct he alleges is indeed disturbing. In our August 4, 2006 opinion in Cause No. 03-05-00533-CV, we held that, on the record before us, the district court had abused its discretion in modifying the comprehensive terms of the parties' original agreed divorce decree to give Michels sole power to make educational decisions on behalf of A.A. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.--Austin 2006, pet. denied); id. at 596 (Pemberton, J., concurring). During the period in which the district court's order was in effect, Michels had exercised her authority to withdraw A.A. from the Austin Independent School District's (AISD) Bryker Woods Elementary, the school in which the original agreed divorce decree had required the child to be enrolled, and enrolled her in St. Andrews. Zeifman, 212 S.W.3d at 586. After we had released our opinion but before mandate issued, Michels sued AISD seeking injunctive relief to prevent the district from permitting Zeifman to enroll A.A. at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that permitting such enrollment would (1) violate Michels's exclusive parental rights (at least until the mandate in No. 05-533-CV issued) to make educational decisions on behalf of A.A. and (2) "actively assist[] . . . and aid[] and abet[] Clifford Zeifman in the violation of a valid court order," a December 17, 2004, standing order governing Travis County family law cases. (5)
While Michels's new lawsuit was directed at controlling Zeifman's actions--and despite the fact that he was A.A.'s father, joint-managing conservator, and her opposing party in ongoing litigation concerning A.A.'s education--Michels did not name Zeifman as a party. Zeifman represents that, even worse, Michels sought to avoid his notice or detection by deliberately filing her lawsuit on a day--Monday, August 14--on which "Sheryl and her attorneys were aware" from a vacation letter and prior correspondence "that Clifford's attorney was out of town attending the Advanced Family Law Course in San Antonio." (6)
At 2:48 p.m. on August 14, Michels obtained an ex parte temporary restraining order against AISD. On the following Friday, August 18, (7) Zeifman filed a petition in intervention, motion to dismiss, and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels's new lawsuit as A.A.'s father and co-managing conservator, and as respondent and counter-petitioner in the ongoing litigation. Zeifman moved to dismiss Michels's suit as an improper attempt to circumvent the district court's jurisdiction over the divorce decree and this Court's jurisdiction over "the issue of [A.A.'s] education." Zeifman also urged that Michels's attempt to invoke the district court's jurisdiction was inconsistent with the position she had taken only a few months earlier in a second modification proceeding she had initiated under the divorce decree in 2005. Specifically, in response to a counter-petition from Zeifman to modify the educational-choice portions of the decree, Michels had filed a plea to the jurisdiction asserting that the district court lacked subject matter jurisdiction over the counter-petition while the appeal of the decree modifications in No. 05-533 was pending. The district court then "agree[d] that it has no jurisdiction to modify the order addressing the education of [A.A.] because of the current appeal of that matter" but overruled Michels's plea because it "retains jurisdiction with respect to all other aspects of the parent-child relationship as to both children under Chapters 155 and 156 of the Texas Family Code." (8)
Zeifman sought sanctions under rule 13 of the Texas Rules of Civil Procedure, chapters 9 and 10 of the civil practice and remedies code, and the district court's inherent power. He complained chiefly that Michels had filed a "frivolous and groundless" separate suit against AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or participation for a short, but critical, period of time. Zeifman argues that these tactics, coupled with subsequent events, reveal Michels's sole design to have been delay. He represents that he had been scheduled to have custody of A.A. during the week of August 14, that classes at Bryker Woods were to begin on August 15, and that custody was scheduled to return to Michels the following week. Thus, Zeifman maintains, Michels filed what proved to be a "one-week lawsuit" solely to prevent him from enrolling A.A. during his custody week and to "buy time" until custody returned to Michels the following week and she could enroll A.A. in St. Andrews.
A hearing on Zeifman's intervention, motion to dismiss, and motion for sanctions was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21, Michels filed a rule 11 agreement with AISD, dated August 18, whereby the district agreed not to permit A.A. to be enrolled at or attend Bryker Woods "until such time as [AISD] is presented with a final, non-appealable order expressly authorizing such enrollment and attendance," in return for Michels's agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the day of the hearing, filed a motion to strike Zeifman's intervention. After a hearing in which only argument was presented, the district court signed an "Order Confirming Nonsuit" and, by separate order, granted Michels's motion to strike intervention, dismissed as moot
Zeifman's motion to dismiss, and denied Zeifman's motion for sanctions.
Zeifman brings two issues, contending that the district court abused its discretion in striking his intervention and in denying his sanctions motion. We agree that the district court abused its discretion in striking Zeifman's intervention. Furthermore, because this ruling was undisputedly a predicate for the district court's ruling on Zeifman's sanctions motion, we remand Zeifman's sanctions motion for further proceedings.
As this Court has previously observed, the right of intervention is ultimately rooted in equity. Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.) ("The right of intervention is an equitable right. It does not depend upon a rule or statute for its existence."). This right is recognized in rule 60 of the Texas Rules of Civil Procedure, which provides that "[a]ny party may intervene by filing a pleading, subject to being stricken by the court for sufficient cause on the motion of any party." Tex. R. Civ. P. 60; see Highlands Ins. Co., 794 S.W.2d at 601-02.
Sufficient cause exists for striking an intervention when a would-be intervenor faced with a motion to strike cannot demonstrate a justiciable interest in the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499-500 (Tex. 1982); see Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.--Fort Worth 2003, no pet.); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This justiciable interest may be either legal or equitable in nature but must be present and not merely remote or contingent. Mendez, 626 S.W.2d at 499; McCord, 777 S.W.2d at 811-12 ("An intervenor must show some present legal or equitable interest in the subject matter which makes it proper for him to participate in the proceedings."). This interest is "analogous to that essential for a party to maintain or defend an action." McCord, 777 S.W.2d at 811-12 (citing 1 McDonald, Texas Civil Practice § 3.47 (1981 ed.)); see also Law Offices of Windle Turley, 109 S.W.3d at 70 ("A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation."). Whether an intervenor possesses a present justiciable interest is determined, in the first instance, by the facts alleged in the petition in intervention, which "also should be construed along with the allegations of fact set forth in the pleadings of the other parties." McCord, 777 S.W.2d at 812.
While the determination of whether a justiciable interest exists based on the pleadings would appear to present a pure question of law, cf. Texas Parks & Wildlife Dept. v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004), the ultimate determination of whether an intervention should be struck, even if a justiciable interest is shown, has long been held to be vested in the sound discretion of the trial court. Mendez, 626 S.W.2d at 499 ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."); Law Offices of Windle Turley, 109 S.W.3d at 70; McCord, 777 S.W.2d at 812. We accordingly review a trial court's decision on a motion to strike an intervention for abuse of discretion. See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006) (citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)). An abuse of discretion denotes "act[ing] without reference to guiding rules or principles; in other words . . . the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
During oral argument, Michels conceded that Zeifman had shown a justiciable interest in her suit against AISD, at least at its inception. Zeifman's justiciable interest is obvious from the face of his petition, if not from Michels's own petition. Michels's suit sought to prevent Zeifman from enrolling A.A. in Bryker Woods or other AISD schools. Both Zeifman and Michels pleaded that Zeifman is A.A.'s father. Zeifman pleaded that he was joint managing conservator; Michels requested the district court to take judicial notice of the file in their divorce case, which demonstrated Zeifman's joint managing conservatorship. Both Zeifman and Michels recounted the history of their litigation concerning where A.A. should attend elementary school, including the opinion of this court reversing the district court's order granting Michels sole control over A.A.'s educational decisions. Michels further alleged that she and Zeifman had each filed additional motions to modify the divorce decree and were currently litigating these issues.
Even if Zeifman demonstrated a justiciable interest in her suit, Michels contends, he has not demonstrated that the district court abused its discretion in striking his intervention. She relies on the proposition that "[i]t is only an abuse of the trial court's discretion to strike a petition in intervention if the intervenor: (1) could have brought the same action, or any part of it, in its own name; (2) the intervention would not complicate the case by excessively multiplying the issues; and (3) the intervention is almost essential to effectively protect the intervenor's interest." Michels derives these principles from the Texas Supreme Court's decision in Guaranty Federal. See 793 S.W.2d at 657; see also Intermarque Auto Prod., Inc. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.--Texarkana 2000, no pet.). Applying her characterization of the Guaranty Federal holding, Michels contends that "Zeifman could not have brought the same action against the Austin Independent School District that [she] filed," which she depicts as seeking to protect her personal rights as a parent to solely control A.A.'s educational decisions (which she could continue to enforce, in her view, until this Court's mandate issued in the previously pending litigation) and rights unique to her under the Travis County standing order. Michels adds that Zeifman's suit would have "complicated" her case by interjecting issues--specifically, a motion to dismiss and a motion for sanctions--that were not raised by the original parties. She further emphasizes that Zeifman did not make a record of the district court's proceedings, nor request findings of fact and conclusions of law, requiring us to assume that the district court found all factual issues in support of any legal ground that could have supported its order. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 668 (Tex. App.--Austin 1997, writ denied).
Michels misconstrues the Guaranty Federal holding in several ways. In that case, the Texas Supreme Court first held that a trial court abused its discretion in striking an intervention sua sponte, as rule 60 presumptively permitted an intervention unless a motion to strike was filed. 793 S.W.2d at 657 (citing Tex. R. Civ. P. 60). The supreme court went on to observe:
Furthermore, under Rule 60, a person or entity has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him, he would be able to defeat recovery, or some part thereof. The interest asserted by the intervenor may be legal or equitable. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the intervenor's interest.
Id. (internal citations omitted). The supreme court held that these conditions were met in that case and that, accordingly, the district court had abused its discretion in striking the intervention. Id. at 757-58.
While Guaranty Federal does identify a set of equitable conditions under which the striking of an intervention would be an abuse of discretion, it does not, contrary to Michels's assertion, establish the "only" or exclusive circumstances in which that would be so. See In re Lumbermens Mutual, 184 S.W.3d at 722-29 (based on balancing of different equitable considerations, concluding that court of appeals had abused its discretion in barring intervention on appeal) (9); see also In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.--Corpus Christi 1997, no pet.) ("[W]e question whether the general rule of Guaranty Federal, which allows some discretion to strike the intervention, even applies to a probate proceeding in which interested parties attempt to assert claims which will otherwise be adjudicated against them in their absence.").
Furthermore, Michels both misstates the first element of the Guaranty Federal framework and misapplies it. This element is not limited to whether the would-be intervenor "could have brought the same action, or any part of it, in its own name," as Michels states, but also is satisfied "if the action had been brought against him, he would be able to defeat recovery, or some part thereof." (10) Moreover, the first element of the Guaranty Federal framework is not as restrictive as Michels suggests:
The requirement [for intervention] has been stated, not exhaustively, to demand that "the intervenor's interest . . . be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him, he would have been able to defeat a recovery, in part at least." The statement, a useful guide, does not reach all situations. It does not cover, for example, the case in which the intervenor-defendant could not have been sued directly, yet a judgment for plaintiff may lead to an action over against the intervenor or otherwise seriously prejudice the intervenor, and the intervenor's intervention is necessary to assure proper defense of the claim. Nor does it meet the situation in which the intervenor asserts a claim adverse to both parties, though in special circumstances such an intervention may be proper . . . .
1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 5.80, at 967-68 (2d ed. 2004) (citations omitted) (emphasis added). Citing this commentary with approval, we held in McCord that while a child's grandparents in that case could not have initiated an original suit affecting the parent-child relationship, they did possess a justiciable interest in their grandchild's best interests that could support intervention in the divorce and custody suit initiated by the child's parents. McCord, 777 S.W.2d at 811-13; see also Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex. App.--Corpus Christi 2006, pet. denied) ("Even where an intervenor has not or could not have been sued directly, if a judgment for the plaintiff may lead to an action against the intervenor or otherwise seriously prejudice the intervenor, the intervention is necessary to assure a proper defense against the claim.").
We conclude that even if Zeifman could not assert precisely the same claims or defenses as Michels and AISD, he possessed a justiciable interest in the suit, and was potentially prejudiced by it, in a manner that satisfies the equitable considerations underlying the first element of the Guaranty Federal analysis. We likewise reject Michels's contentions that Zeifman's intervention to protect his interests and join issue with Michels would "complicate" the litigation or "excessively multiply" the issues relative to the benefits his participation would yield. McCord, 777 S.W.2d at 812 (trial court had discretion to determine that grandparents' intervention "may enhance [its] ability to adjudicate what is in the best interest of the child."). (11) The district court would have abused its discretion in striking his intervention on these grounds.
Michels ultimately relies on the fact that she subsequently non-suited her claims against AISD, suggesting that this tactic extinguished any justiciable interest Zeifman might have possessed in the action at its inception, see Potash Corp. of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 63-65 (Tex. App.--Corpus Christi 1997, no writ), or otherwise divested him of his right to intervene. Michels overlooks the fact that Zeifman filed his intervention on August 18, while she did not file her non-suit until the following week. As of the time of Michels's non-suit, Zeifman, as we have determined, was a proper party. Michels's non-suit thus could not defeat or render moot his claims for sanctions and for attorney's fees under rule of civil procedure 13, and sections 9 and 10 of the civil practice and remedies code. Allstate Ins. Co. v. Hellman, 159 S.W.3d 640, 642-43 (Tex. 2005) (where merits of UDJA claim were rendered moot, claim for attorney's fees "'breathes life' into this appeal and prevents it from being moot.") (quoting Camerena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)); Tri-M Erectors, Inc. v. Clearwater Constructors, Inc., 788 S.W.2d 906, 907-08 (Tex. App.--Austin 1990, writ denied); see Tex. R. Civ. P. 162 ("Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal . . . .").
For these reasons, we hold that the district court abused its discretion in striking Zeifman's intervention, accordingly sustain Zeifman's first issue, and reverse the district court's striking of the intervention. During oral argument, Michels conceded that the district court's order denying sanctions was necessarily predicated upon its order striking Zeifman's intervention. Thus, we also reverse the district court's order denying sanctions and remand for further proceedings.
Regarding sanctions, rule 13 of the Texas Rules of Civil Procedure allows a trial court to impose sanctions against an attorney, a represented party, or both, who file groundless pleadings brought in bad faith or brought for the purpose of harassment. Tex. R. Civ. P. 13.
Additionally, chapter 10 of the Civil Practices and Remedies Code allows a trial court to impose sanctions against a person, party, or both for advancing frivolous pleadings or motions. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001(1), .004(a) (West 2002). In light of our observation that Michels's conduct as alleged by Zeifman "is indeed disturbing," the district court on remand should carefully consider the facts known by Michels at the time she filed suit against AISD when determining whether sanctions are appropriate. See Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 490-94 (Tex. App.--Dallas 2005, no pet.) (upholding sanctions order where law firm filed suit against former clients for improper purpose); Martin v. Zieba, No. 03-03-00584-CV, 2004 Tex. App. LEXIS 3742, at *9-*13 (Tex. App.--Austin 2004, no pet.) (mem. op.) (upholding sanctions order where husband filed pleadings in child custody case for improper purpose); see also Low v. Henry, 50 Tex. Sup. J. 606, 2007 Tex. LEXIS 320, *6-*17 (Tex. Apr. 20, 2007). (12)
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded on Motion for Rehearing
Filed: June 20, 2007
1. See Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.--Austin 2006, pet. denied); see also In re Zeifman, No. 03-06-00601-CV, slip op. at 1-2 (Tex. App.--Austin Nov. 22, 2006) (orig. proceeding) (mem. op.); In re Zeifman, No. 03-07-00075-CV, slip op. at 1 (Tex. App.--Austin Mar. 16, 2007, orig. proceeding) (mem. op.). We have taken judicial notice of our files from these prior related proceedings.
2. In re Zeifman, No. 03-06-00601-CV, slip op. at 2.
3. In re Zeifman, No. 03-07-00075-CV, slip op. at 1.
4. In re Zeifman, No. 03-06-601-CV, slip op. at 2. We also observed that "A.A.'s parents--not the courts or other third parties--are in the best position, perhaps with the assistance of a competent mediator, to make that determination in A.A.'s best interests, thereby avoiding extensive and acrimonious litigation that could adversely impact A.A., their other child, each other, and possibly others."
5. This standing order, applicable to "every divorce suit and every suit affecting the parent-child relationship filed in Travis County" after January 1, 2005, prohibits parties, "while the lawsuit is pending before the court," from actions including "[d]isrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court." See Travis Co. Standing Order Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk's File No. 121,012 (Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties' 1997 divorce decree predated the standing order, Michels alleged that Zeifman had made himself subject to the order by filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning G.L.
6. The publicly available State Bar of Texas publications from this course state that it was held between August 14-17, 2006.
7. This date corresponds to the day after the 2006 State Bar Advanced Family Law Course was scheduled to end.
8. Order on Plea to the Jurisdiction of Sheryl Diane Michels, May 24, 2006. On appeal, Zeifman points out that Michels subsequently made similar arguments in the district court, after she filed a petition for review of this Court's judgment in the supreme court, in resisting his efforts to enforce his rights under the original divorce decree.
9. Lumbermens Mutual involved the appellate intervention of an insurer after its insured, for whom it had paid the appeal bond, abandoned potentially dispositive issues impacting claims within the scope of coverage. See In re Lumbermens Mutual,184 S.W.3d 718, 720-21 (Tex. 2006). The supreme court determined that the insurer had invoked "the equitable doctrine" of virtual representation, and then considered "other factors [that] may weigh against allowing intervention after final judgment has been rendered, including the length of time the insurer had known of its interest in the case before attempting to intervene, the extent of prejudice the existing parties may suffer from the would-be intervenor's delay, the extent of prejudice to the would-be intervenor if intervention is denied, and the existence of unusual circumstances militating for or against a determination that the application is timely." Id. at 726. The supreme court held that the court of appeals abused its discretion in refusing to allow the intervention. Id. at 729.
10. We thus reject Michels's contention that "[a] proper intervention requires that the intervenor be seeking some sort of affirmative relief from the court."
11. We find it interesting that Michels would decry Zeifman's intervention as "complicating" their litigation by "multiplication" of issues where she has done precisely that by foregoing the parties' ongoing proceedings under the divorce decree and filing a related but separate lawsuit (leading to a separate appeal), ensnaring a third party in her domestic dispute, yet oddly not naming Zeifman as a party in that separate proceeding--who, she acknowledged at oral argument, clearly had a justiciable interest. If intervention is ultimately an equitable concept, Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.), Michels arguably would be estopped from arguing that Zeifman's intervention would have complicated or excessively multiplied the issues in litigation.
12. We note that Zeifman did not obtain a reporter's record below, nor requests findings of fact and conclusions of law. As Michels observes, such devices enable an appellate court to review a trial court's rulings to award (or not award) sanctions.
Monday, June 25, 2007
Hudspeth v. Chapel Hill ISD (Tex.App.- Austin, Jun 8, 2007)
Hudspeth v. Chapel Hill Indep. Sch. Dist. (Tex.App.- Austin, Jun 8, 2007)(Waldrop)
AFFIRMED: Opinion by Justice Waldrop
(Before Justices Patterson, Pemberton and Waldrop)
03-06-00243-CV
Beth Hudspeth v. Chapel Hill I.S.D. and Texas Education Agency
Appeal from 250th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-04-003097, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Beth Hudspeth filed a grievance against Chapel Hill I.S.D. in Tyler for crediting her with only two years of teaching experience for purposes of the district pay scale rather than seven years of teaching experience. She claims that she accepted a position at Chapel Hill I.S.D. based on a promise by the high school principal that she would be paid based on seven years of experience. Chapel Hill I.S.D. denied the grievance and the Commissioner of Education denied Hudspeth's appeal of the grievance. The district court affirmed the Commissioner's decision. On appeal to this Court, Hudspeth contends that the district court erred by affirming the Commissioner's decision because the Texas Education Agency's findings demonstrate that Chapel Hill I.S.D. is liable to Hudspeth for breach of contract or, alternatively, that Chapel Hill I.S.D. is liable to her under the theory of promissory estoppel. We affirm the judgment of the district court.
Factual and Procedural Background
Hudspeth has been a special education teacher at Chapel Hill High School since August 2002. Before being hired by Chapel Hill I.S.D., she worked at Stepping Stone, a private school in Smith County, where her annual salary was close to $30,000. In June 2002, Greg Wright, the principal of Chapel Hill High School, called Hudspeth and asked her to interview for a teaching position. During the interview, Hudspeth told Wright that she had taught at Stepping Stone for nine and one-half years, seven of which were full-time. They did not discuss salary or the accreditation status of Stepping Stone at that time. Soon after the interview, Wright called and offered Hudspeth the teaching position. During their telephone conversation, Hudspeth asked about salary and again told Wright that she had seven years of full-time teaching experience. Hudspeth also asked Wright for $1,500 to be applied toward her tuition for an alternative certification program. Wright told Hudspeth that he needed to get permission from Chapel Hill I.S.D. Superintendent Joe Stubblefield before he could promise her a specific salary. Shortly thereafter, Wright called Hudspeth and told her that in accordance with her seven years of teaching experience, she would be paid an annual salary of $31,720, plus the $1,500 that she requested for tuition.
Based on these representations, Hudspeth orally accepted the position with Chapel Hill I.S.D. and stopped looking for other jobs. (1) Wright informed Hudspeth that the terms of her employment would be presented for approval at the June 24 meeting of the Chapel Hill I.S.D. Board of Trustees. The board approved the terms of her employment on June 24 and, shortly thereafter, Hudspeth signed a probationary contract for the 2002-2003 school year. On or about August 14, after Hudspeth had begun working for Chapel Hill I.S.D., Royce Sulser, Human Resources Director for Chapel Hill I.S.D., informed her that he had received her service record from Stepping Stone and that because Stepping Stone was accredited for only two of the seven years that she worked there full-time, Chapel Hill I.S.D. could only credit her with two years of teaching experience for the purposes of the pay scale. Sulser told Hudspeth that, as a result, her salary would be reduced to $26,390.
Hudspeth filed a grievance with Chapel Hill I.S.D. regarding her reduction in salary and appealed through three levels at Chapel Hill I.S.D., culminating with the denial of her appeal at a Level III Grievance Hearing before the board. Hudspeth appealed to the Texas Education Agency, which signed a final order denying her appeal on July 9, 2004. Hudspeth sought judicial review of the Texas Education Agency's decision, and on April 14, 2006, the district court affirmed the Commissioner's decision.
Standard of Review
A district court may not reverse the Commissioner's decision unless it was not supported by substantial evidence or the Commissioner's conclusions of law were erroneous. Tex. Educ. Code Ann. § 21.307(f) (West 2006). Substantial evidence review is a limited standard of review requiring "only more than a mere scintilla" to support an agency's determination. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000) (quoting Railroad Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995)). In conducting a substantial evidence review, the court determines whether the evidence as a whole is such that reasonable minds could have reached the same conclusion as the agency in the disputed action. See Texas Educ. Agency v. Goodrich Indep. Sch. Dist., 898 S.W.2d 954, 957 (Tex. App.--Austin 1995, writ denied). The court may not substitute its judgment for that of the agency and may only consider the record on which the agency based its decision. See id.; State v. Public Util. Comm'n, 883 S.W.2d 190, 203 (Tex. 1994). The test is not whether the Commissioner reached the correct conclusion, but whether some reasonable basis exists in the record for his action. Public Util. Comm'n, 883 S.W.2d at 204. The findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the appellant to prove otherwise. Id.
The question of whether an agency's determination meets the substantial evidence standard is one of law. Montgomery, 34 S.W.3d at 566. On questions of law, the trial court is not entitled to deference on appeal. Texas Dep't. of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). On appeal of the district court's judgment, the focus of the appellate court's review, as in the district court, is on the decision of the Commissioner. Montgomery, 34. S.W.3d at 562; Tave v. Alanis, 109 S.W.3d 890, 893 (Tex. App.--Dallas 2003, no pet.); Goodie v. Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.--Houston [14th Dist.] 2001, no pet.).
Discussion
Hudspeth contends that the district court erred in affirming the Commissioner's decision because the Texas Education Agency's findings demonstrate that Chapel Hill I.S.D. is liable to Hudspeth for breach of contract.
The elements of a breach of contract claim are (1) that a valid contract existed, (2) that the plaintiff performed or tendered performance, (3) that the defendant breached the contract, and (4) that the plaintiff was damaged as a result of the breach. New York Life Ins. Co. v. Miller, 114 S.W.3d 114, 121 (Tex. App.--Austin 2003, no pet.). The operational policies adopted by a school board before making an employment contract with a teacher form part of the contract and the teacher's employment is subject to those policies. Perry v. Houston Indep. Sch. Dist., 902 S.W.2d 544, 547 (Tex. App.--Houston [1st Dist.] 1995, writ. dism'd w.o.j.); Myrtle Springs Reverted Indep. Sch. Dist. v. Hogan, 705 S.W.2d 707, 709 (Tex. App.--Texarkana 1985, writ ref'd n.r.e.).
Although Hudspeth's probationary contract is not included in the record, all parties agree that there was a valid contract. Testimony at the Level III Grievance Hearing indicates that the contract did not specify a dollar amount, but instead stipulated that Hudspeth would be paid in accordance with board policy. It is undisputed that Hudspeth has continued to work at Chapel Hill High School as a special education teacher and has fully performed her obligations under the contract. Hudspeth contends that the board breached the contract. She argues that because Wright and Stubblefield were acting as agents of the board within the scope of their apparent authority, the board is bound by their representation that her salary would be $31,720.
The superintendent of a school district acts as the agent of the board of trustees and his acts bind the board unless they are unauthorized. Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 888 (Tex. 1990). A high school principal is not per se the agent of the board of trustees, but a school principal could act as an agent of the board if appointed to do so or if the requirements of an implied agency are met. Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 540 (Tex. App.--Tyler 2000, pet. dism'd by agr.). To establish an implied agency or apparent authority to act as an agent, one must show that the principal either knowingly permitted its agent to hold himself out as having authority or "showed such lack of ordinary care as to clothe the agent with indicia of authority." Nationsbank, N.A. v. Dilling, 922 S.W.2d 950, 952-53 (Tex. 1996). In determining whether an agent has apparent authority, a court may consider only the principal's conduct leading a third party to believe that the agent has authority. Id. at 953.
In this case, it is not Superintendent Stubblefield who made the salary representation to Hudspeth, but Principal Wright. There is no evidence that the board made any representation, express or implied, that Wright had the authority to negotiate Hudspeth's salary. It is undisputed that as a part of the discussion of salary with Hudspeth, Wright informed her that he would need to get approval from Stubblefield. Wright also informed Hudspeth that the terms of her employment would need to be approved by the board. Thus, when Wright told Hudspeth that her salary would be $31,720, he did not hold himself out as acting on behalf of the board. Because the board did not knowingly permit Wright to hold himself out as having authority, nor did it show a lack of ordinary care so as to clothe Wright with "indicia of authority," Wright was not acting as an agent of the board for the purposes of binding the board to the amount of
Hudspeth's salary.
Even if Wright had the apparent authority to bind the board, the board is not liable for breach of contract. The $31,720 salary, which was based on Hudspeth's representation that she had seven years of full-time teaching experience, was not included in the probationary contract. Chapel Hill I.S.D. policy provides that no credit is given for work completed at unaccredited schools. (2) Chapel Hill I.S.D. policies form part of Hudspeth's contract, and she was paid in accordance with those policies. Thus, the district court did not err in finding substantial evidence to support the Commissioner's conclusion that Chapel Hill I.S.D. did not breach its contract with Hudspeth.
Hudspeth also contends, in the alternative, that the district court erred in affirming the Commissioner's decision because the Texas Education Agency's findings demonstrate that Chapel Hill I.S.D. is liable to Hudspeth under the theory of promissory estoppel.
The requisites of promissory estoppel are (1) a promise, (2) foreseeability of reliance on the promise by the promisor, and (3) substantial reliance by the promisee to his detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983). The reliance must be reasonable and justified. Id. The general rule that estoppel does not apply to a unit of government exercising its governmental power is subject to several exceptions. Bowman, 801 S.W.2d at 888. Estoppel may apply to "municipalities and similar local units of government" when justice requires its application, and there is no interference with the exercise of governmental functions. Id. Estoppel may also apply when a school board's agent acts within the scope of his apparent authority, unless the acts were unauthorized. Id. Finally, estoppel may apply against a subdivision of government where the governing body is a board or commission if the evidence clearly indicates that the subordinate officer's act was done with the knowledge of the governing body and was so closely related to the expressed will of the governing body that the officer's act constitutes an act that of the board itself. Id. Hudspeth argues that her case falls within each of these exceptions.
First, Hudspeth argues that justice requires the application of estoppel and that there is no interference with the exercise of the board's governmental functions. This exception is available "only in exceptional cases where the circumstances clearly demand its application to prevent manifest injustice." City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 774 (Tex. 2006) (quoting City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex. 1970)). This Court has also held that this exception is limited to municipalities. Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 595 (Tex. App.--Austin 1991, writ denied), abrogated on other grounds by Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405-406 (Tex. 1997), superseded by statute as stated in General Servs. Comm'n v. Little-Tex Insulation Co, Inc., 39 S.W.3d 591, 598 (Tex. 2001); see also City of White, 198 S.W.3d at 774 (referring only to municipalities in discussing this exception). The use of estoppel against a governmental unit under this exception is "clearly linked" to the proprietary actions of a municipality. Dillard, 806 S.W.2d at 594-95. Because a school district has no proprietary functions, estoppel cannot be applied to a school district under this exception. Id. We also hold that even if this exception could be applied to a school district, this case is not the "exceptional case where the circumstances clearly demand its application to prevent manifest injustice."
Next, Hudspeth argues that the board is bound by Wright's salary representation regardless of whether it had actual knowledge of it because Wright was an agent of the board acting within the scope of his authority. As discussed above, Wright was not an agent of the board for the purposes of binding the board to a salary amount. However, even if Wright was acting as an agent of the board under these circumstances, the acts of an agent of a board do not bind the board if the acts were unauthorized. Bowman, 801 S.W.2d at 888. The record contains no evidence that the salary that Wright quoted to Hudspeth was an exception approved by the board or that Wright was authorized by the board to negotiate salaries greater than those provided in district policy. In addition, at the time that Wright told Hudspeth that she would be paid $31,720 based on seven years' experience, Chapel Hill I.S.D. had not yet received Hudspeth's teaching record and had no way of knowing that Stepping Stone was only accredited for two of those years.
Finally, Hudspeth argues that an exception to the general rule that estoppel does not apply to a governmental unit is appropriate because the evidence indicates that Wright acted with the knowledge of the board and that his act was so closely related to the will of the board as to constitute an act of the board itself. Hudspeth characterizes the "act" as Wright's offering her a job and states that the board "had to know" that Hudspeth had been offered a job at Chapel Hill I.S.D.. This is an incorrect application of this exception because none of the parties dispute that Wright offered the job to Hudspeth. Rather, the "act" at issue is Wright's representation that Hudspeth's salary would be $31,720. The record contains no evidence that the board had knowledge of this salary representation. In fact, the record indicates that the board routinely approves teachers' employment without knowledge of specific salaries. The transcript of the Level III Grievance Hearing shows a board member asking what is included in a teacher's contract regarding salary. Finally, the promise of $31,720 is not so closely related to the board's will as to constitute an act of the board itself. Absent an exception granted by the board, paying this salary to a teacher with only two years of experience at an accredited school is in direct conflict with board policy.
The record does not contain evidence to support any of the exceptions that Hudspeth asserts to the general rule that estoppel does not apply to a unit of government exercising its governmental power. Thus, the trial court did not err in determining that the Texas Education Agency's findings did not demonstrate that Chapel Hill I.S.D. is liable on the theory of promissory estoppel.
Affirmed.
____________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: June 8, 2007
1. See Decision of the Designee of the Commissioner, Finding of Fact 7 ("Based on the salary representation, Petitioner stopped looking for other jobs, orally agreed to work for Respondent, and signed a probationary contract for the 2002-2003 school year.")
2. Chapel Hill I.S.D. board policy specifically incorporates the Commissioner's rules on creditable years of service, which specify that teaching credit is not awarded for work done at an unaccredited private school. See 19 Tex. Admin. Code § 153.1021(g) (2007).
AFFIRMED: Opinion by Justice Waldrop
(Before Justices Patterson, Pemberton and Waldrop)
03-06-00243-CV
Beth Hudspeth v. Chapel Hill I.S.D. and Texas Education Agency
Appeal from 250th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-04-003097, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Beth Hudspeth filed a grievance against Chapel Hill I.S.D. in Tyler for crediting her with only two years of teaching experience for purposes of the district pay scale rather than seven years of teaching experience. She claims that she accepted a position at Chapel Hill I.S.D. based on a promise by the high school principal that she would be paid based on seven years of experience. Chapel Hill I.S.D. denied the grievance and the Commissioner of Education denied Hudspeth's appeal of the grievance. The district court affirmed the Commissioner's decision. On appeal to this Court, Hudspeth contends that the district court erred by affirming the Commissioner's decision because the Texas Education Agency's findings demonstrate that Chapel Hill I.S.D. is liable to Hudspeth for breach of contract or, alternatively, that Chapel Hill I.S.D. is liable to her under the theory of promissory estoppel. We affirm the judgment of the district court.
Factual and Procedural Background
Hudspeth has been a special education teacher at Chapel Hill High School since August 2002. Before being hired by Chapel Hill I.S.D., she worked at Stepping Stone, a private school in Smith County, where her annual salary was close to $30,000. In June 2002, Greg Wright, the principal of Chapel Hill High School, called Hudspeth and asked her to interview for a teaching position. During the interview, Hudspeth told Wright that she had taught at Stepping Stone for nine and one-half years, seven of which were full-time. They did not discuss salary or the accreditation status of Stepping Stone at that time. Soon after the interview, Wright called and offered Hudspeth the teaching position. During their telephone conversation, Hudspeth asked about salary and again told Wright that she had seven years of full-time teaching experience. Hudspeth also asked Wright for $1,500 to be applied toward her tuition for an alternative certification program. Wright told Hudspeth that he needed to get permission from Chapel Hill I.S.D. Superintendent Joe Stubblefield before he could promise her a specific salary. Shortly thereafter, Wright called Hudspeth and told her that in accordance with her seven years of teaching experience, she would be paid an annual salary of $31,720, plus the $1,500 that she requested for tuition.
Based on these representations, Hudspeth orally accepted the position with Chapel Hill I.S.D. and stopped looking for other jobs. (1) Wright informed Hudspeth that the terms of her employment would be presented for approval at the June 24 meeting of the Chapel Hill I.S.D. Board of Trustees. The board approved the terms of her employment on June 24 and, shortly thereafter, Hudspeth signed a probationary contract for the 2002-2003 school year. On or about August 14, after Hudspeth had begun working for Chapel Hill I.S.D., Royce Sulser, Human Resources Director for Chapel Hill I.S.D., informed her that he had received her service record from Stepping Stone and that because Stepping Stone was accredited for only two of the seven years that she worked there full-time, Chapel Hill I.S.D. could only credit her with two years of teaching experience for the purposes of the pay scale. Sulser told Hudspeth that, as a result, her salary would be reduced to $26,390.
Hudspeth filed a grievance with Chapel Hill I.S.D. regarding her reduction in salary and appealed through three levels at Chapel Hill I.S.D., culminating with the denial of her appeal at a Level III Grievance Hearing before the board. Hudspeth appealed to the Texas Education Agency, which signed a final order denying her appeal on July 9, 2004. Hudspeth sought judicial review of the Texas Education Agency's decision, and on April 14, 2006, the district court affirmed the Commissioner's decision.
Standard of Review
A district court may not reverse the Commissioner's decision unless it was not supported by substantial evidence or the Commissioner's conclusions of law were erroneous. Tex. Educ. Code Ann. § 21.307(f) (West 2006). Substantial evidence review is a limited standard of review requiring "only more than a mere scintilla" to support an agency's determination. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000) (quoting Railroad Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995)). In conducting a substantial evidence review, the court determines whether the evidence as a whole is such that reasonable minds could have reached the same conclusion as the agency in the disputed action. See Texas Educ. Agency v. Goodrich Indep. Sch. Dist., 898 S.W.2d 954, 957 (Tex. App.--Austin 1995, writ denied). The court may not substitute its judgment for that of the agency and may only consider the record on which the agency based its decision. See id.; State v. Public Util. Comm'n, 883 S.W.2d 190, 203 (Tex. 1994). The test is not whether the Commissioner reached the correct conclusion, but whether some reasonable basis exists in the record for his action. Public Util. Comm'n, 883 S.W.2d at 204. The findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the appellant to prove otherwise. Id.
The question of whether an agency's determination meets the substantial evidence standard is one of law. Montgomery, 34 S.W.3d at 566. On questions of law, the trial court is not entitled to deference on appeal. Texas Dep't. of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). On appeal of the district court's judgment, the focus of the appellate court's review, as in the district court, is on the decision of the Commissioner. Montgomery, 34. S.W.3d at 562; Tave v. Alanis, 109 S.W.3d 890, 893 (Tex. App.--Dallas 2003, no pet.); Goodie v. Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.--Houston [14th Dist.] 2001, no pet.).
Discussion
Hudspeth contends that the district court erred in affirming the Commissioner's decision because the Texas Education Agency's findings demonstrate that Chapel Hill I.S.D. is liable to Hudspeth for breach of contract.
The elements of a breach of contract claim are (1) that a valid contract existed, (2) that the plaintiff performed or tendered performance, (3) that the defendant breached the contract, and (4) that the plaintiff was damaged as a result of the breach. New York Life Ins. Co. v. Miller, 114 S.W.3d 114, 121 (Tex. App.--Austin 2003, no pet.). The operational policies adopted by a school board before making an employment contract with a teacher form part of the contract and the teacher's employment is subject to those policies. Perry v. Houston Indep. Sch. Dist., 902 S.W.2d 544, 547 (Tex. App.--Houston [1st Dist.] 1995, writ. dism'd w.o.j.); Myrtle Springs Reverted Indep. Sch. Dist. v. Hogan, 705 S.W.2d 707, 709 (Tex. App.--Texarkana 1985, writ ref'd n.r.e.).
Although Hudspeth's probationary contract is not included in the record, all parties agree that there was a valid contract. Testimony at the Level III Grievance Hearing indicates that the contract did not specify a dollar amount, but instead stipulated that Hudspeth would be paid in accordance with board policy. It is undisputed that Hudspeth has continued to work at Chapel Hill High School as a special education teacher and has fully performed her obligations under the contract. Hudspeth contends that the board breached the contract. She argues that because Wright and Stubblefield were acting as agents of the board within the scope of their apparent authority, the board is bound by their representation that her salary would be $31,720.
The superintendent of a school district acts as the agent of the board of trustees and his acts bind the board unless they are unauthorized. Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 888 (Tex. 1990). A high school principal is not per se the agent of the board of trustees, but a school principal could act as an agent of the board if appointed to do so or if the requirements of an implied agency are met. Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 540 (Tex. App.--Tyler 2000, pet. dism'd by agr.). To establish an implied agency or apparent authority to act as an agent, one must show that the principal either knowingly permitted its agent to hold himself out as having authority or "showed such lack of ordinary care as to clothe the agent with indicia of authority." Nationsbank, N.A. v. Dilling, 922 S.W.2d 950, 952-53 (Tex. 1996). In determining whether an agent has apparent authority, a court may consider only the principal's conduct leading a third party to believe that the agent has authority. Id. at 953.
In this case, it is not Superintendent Stubblefield who made the salary representation to Hudspeth, but Principal Wright. There is no evidence that the board made any representation, express or implied, that Wright had the authority to negotiate Hudspeth's salary. It is undisputed that as a part of the discussion of salary with Hudspeth, Wright informed her that he would need to get approval from Stubblefield. Wright also informed Hudspeth that the terms of her employment would need to be approved by the board. Thus, when Wright told Hudspeth that her salary would be $31,720, he did not hold himself out as acting on behalf of the board. Because the board did not knowingly permit Wright to hold himself out as having authority, nor did it show a lack of ordinary care so as to clothe Wright with "indicia of authority," Wright was not acting as an agent of the board for the purposes of binding the board to the amount of
Hudspeth's salary.
Even if Wright had the apparent authority to bind the board, the board is not liable for breach of contract. The $31,720 salary, which was based on Hudspeth's representation that she had seven years of full-time teaching experience, was not included in the probationary contract. Chapel Hill I.S.D. policy provides that no credit is given for work completed at unaccredited schools. (2) Chapel Hill I.S.D. policies form part of Hudspeth's contract, and she was paid in accordance with those policies. Thus, the district court did not err in finding substantial evidence to support the Commissioner's conclusion that Chapel Hill I.S.D. did not breach its contract with Hudspeth.
Hudspeth also contends, in the alternative, that the district court erred in affirming the Commissioner's decision because the Texas Education Agency's findings demonstrate that Chapel Hill I.S.D. is liable to Hudspeth under the theory of promissory estoppel.
The requisites of promissory estoppel are (1) a promise, (2) foreseeability of reliance on the promise by the promisor, and (3) substantial reliance by the promisee to his detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983). The reliance must be reasonable and justified. Id. The general rule that estoppel does not apply to a unit of government exercising its governmental power is subject to several exceptions. Bowman, 801 S.W.2d at 888. Estoppel may apply to "municipalities and similar local units of government" when justice requires its application, and there is no interference with the exercise of governmental functions. Id. Estoppel may also apply when a school board's agent acts within the scope of his apparent authority, unless the acts were unauthorized. Id. Finally, estoppel may apply against a subdivision of government where the governing body is a board or commission if the evidence clearly indicates that the subordinate officer's act was done with the knowledge of the governing body and was so closely related to the expressed will of the governing body that the officer's act constitutes an act that of the board itself. Id. Hudspeth argues that her case falls within each of these exceptions.
First, Hudspeth argues that justice requires the application of estoppel and that there is no interference with the exercise of the board's governmental functions. This exception is available "only in exceptional cases where the circumstances clearly demand its application to prevent manifest injustice." City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 774 (Tex. 2006) (quoting City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex. 1970)). This Court has also held that this exception is limited to municipalities. Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 595 (Tex. App.--Austin 1991, writ denied), abrogated on other grounds by Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405-406 (Tex. 1997), superseded by statute as stated in General Servs. Comm'n v. Little-Tex Insulation Co, Inc., 39 S.W.3d 591, 598 (Tex. 2001); see also City of White, 198 S.W.3d at 774 (referring only to municipalities in discussing this exception). The use of estoppel against a governmental unit under this exception is "clearly linked" to the proprietary actions of a municipality. Dillard, 806 S.W.2d at 594-95. Because a school district has no proprietary functions, estoppel cannot be applied to a school district under this exception. Id. We also hold that even if this exception could be applied to a school district, this case is not the "exceptional case where the circumstances clearly demand its application to prevent manifest injustice."
Next, Hudspeth argues that the board is bound by Wright's salary representation regardless of whether it had actual knowledge of it because Wright was an agent of the board acting within the scope of his authority. As discussed above, Wright was not an agent of the board for the purposes of binding the board to a salary amount. However, even if Wright was acting as an agent of the board under these circumstances, the acts of an agent of a board do not bind the board if the acts were unauthorized. Bowman, 801 S.W.2d at 888. The record contains no evidence that the salary that Wright quoted to Hudspeth was an exception approved by the board or that Wright was authorized by the board to negotiate salaries greater than those provided in district policy. In addition, at the time that Wright told Hudspeth that she would be paid $31,720 based on seven years' experience, Chapel Hill I.S.D. had not yet received Hudspeth's teaching record and had no way of knowing that Stepping Stone was only accredited for two of those years.
Finally, Hudspeth argues that an exception to the general rule that estoppel does not apply to a governmental unit is appropriate because the evidence indicates that Wright acted with the knowledge of the board and that his act was so closely related to the will of the board as to constitute an act of the board itself. Hudspeth characterizes the "act" as Wright's offering her a job and states that the board "had to know" that Hudspeth had been offered a job at Chapel Hill I.S.D.. This is an incorrect application of this exception because none of the parties dispute that Wright offered the job to Hudspeth. Rather, the "act" at issue is Wright's representation that Hudspeth's salary would be $31,720. The record contains no evidence that the board had knowledge of this salary representation. In fact, the record indicates that the board routinely approves teachers' employment without knowledge of specific salaries. The transcript of the Level III Grievance Hearing shows a board member asking what is included in a teacher's contract regarding salary. Finally, the promise of $31,720 is not so closely related to the board's will as to constitute an act of the board itself. Absent an exception granted by the board, paying this salary to a teacher with only two years of experience at an accredited school is in direct conflict with board policy.
The record does not contain evidence to support any of the exceptions that Hudspeth asserts to the general rule that estoppel does not apply to a unit of government exercising its governmental power. Thus, the trial court did not err in determining that the Texas Education Agency's findings did not demonstrate that Chapel Hill I.S.D. is liable on the theory of promissory estoppel.
Affirmed.
____________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: June 8, 2007
1. See Decision of the Designee of the Commissioner, Finding of Fact 7 ("Based on the salary representation, Petitioner stopped looking for other jobs, orally agreed to work for Respondent, and signed a probationary contract for the 2002-2003 school year.")
2. Chapel Hill I.S.D. board policy specifically incorporates the Commissioner's rules on creditable years of service, which specify that teaching credit is not awarded for work done at an unaccredited private school. See 19 Tex. Admin. Code § 153.1021(g) (2007).
Subscribe to:
Posts (Atom)