Alex Farr, Leigh A. Simpson, Kyla Garcia, Gynette Rodriguez, Karan Hannah, Rebecca Britton, Nancy Bean, Rose Crusdale, Ashley Robinson, A.S., Next of Friend of J.S., a Minor, V.G. Next of Friend of S.G., a Minor v. Arlington Independent School District, Arlington Independent School District Board of Trustees, Jamie Sullins, and Marcelo Cavazos ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00196-CV
ALEX FARR, LEIGH A. SIMPSON, APPELLANTS
KYLA GARCIA, GYNETTE
RODRIGUEZ, KARAN HANNAH,
REBECCA BRITTON, NANCY
BEAN, ROSE CRUSDALE,
ASHLEY ROBINSON, A.S., NEXT
OF FRIEND OF J.S., A MINOR,
V.G. NEXT OF FRIEND OF S.G., A
MINOR, J.R. NEXT FRIEND OF
T.R., A MINOR, K.H., NEXT OF
FRIEND OF K.H., A MINOR,
DELILA PERRERIRA, IN HER
OWN RIGHT AND AS NEXT OF
FRIEND OF A.M., A MINOR, T.D.,
NEXT OF FRIEND OF C.D., A
MINOR., AND JASMINE
CROCKETT
V.
ARLINGTON INDEPENDENT APPELLEES
SCHOOL DISTRICT, ARLINGTON
INDEPENDENT SCHOOL
DISTRICT BOARD OF TRUSTEES,
JAMIE SULLINS, AND MARCELO
CAVAZOS
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-291133-17
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MEMORANDUM OPINION1
This is an interlocutory appeal from the trial court’s order granting a motion
to dismiss and plea to the jurisdiction based on governmental immunity. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). The appellants
are sixteen individuals (the “Individual Appellants”) and their attorney, Jasmine
Crockett. The appellees are Arlington Independent School District (AISD); the
AISD Board of Trustees (Board); AISD Board of Trustees president Jamie Sullins
in her official capacity (Board President); and AISD Superintendent Macrelo
Cavazos in his official capacity (Superintendent).
The individual appellants sued the appellees and others, alleging tort causes
of action and also seeking equitable relief. The appellees filed a motion to dismiss
and plea to the jurisdiction based on governmental immunity. The trial court
granted both motions and assessed $14,500 in attorney’s fees as sanctions
against Crockett. The individual appellants and Crockett brought this interlocutory
appeal from that order. Finding no reversible error, we affirm.
I. BACKGROUND
The individual appellants filed a lawsuit alleging that on or about September
22, 2016, unnamed occupants at the Nichols Junior High School, a school within
the AISD, reported to school officials that they were “being overcome with
1
See Tex. R. App. P. 47.4.
2
dizziness, nausea, light-headedness, numbness, high sensitivity to motion[,] and
tingling sensations as a result of exposure to poor air quality” at the school. The
individual appellants claimed that they were all either students, employees,
contractors, or parent volunteers who were regularly exposed to the poor air quality
at the school both before and after the September 22 report and that over the next
few months following the report, they suffered from “serious and pervasive
illnesses and symptoms” that were caused by their exposure.
The individual appellants named as defendants the appellees; EFI Global
Engineering; Estes McClure and Associates, Inc.; Armstrong Forensic Laboratory,
Inc.; and Tarrant County Public Health. The individual appellants asserted causes
of action for negligence, gross negligence, negligent misrepresentation, and fraud,
seeking monetary relief of over $1 million. They also sought a temporary
restraining order requiring the appellees to close the school and relocate its
students and staff “until the cause for their continued illness is correctly identified
and fully remedied,” as well as a temporary injunction.
On March 27, the appellees filed a motion to dismiss and a plea to the
jurisdiction, both of which argued for dismissal on several grounds. They also
asserted counterclaims for attorney’s fees and costs. On April 28, the individual
appellants amended their petition, omitting the Board, the Board President, and
the Superintendent as defendants and indicating that they were seeking only
nonmonetary relief against AISD. Three days later, the trial court held a hearing
on appellees’ motion to dismiss and plea to the jurisdiction, during which Crockett
3
stated on the record that the individual appellants were no longer maintaining their
causes of action against the Board President or the Superintendent.
After the hearing, the trial court found the individual appellants’ suit against
the appellees was frivolous, unreasonable, and without foundation; granted the
appellees’ motion to dismiss and plea to the jurisdiction; dismissed the suit as to
the appellees with prejudice; and ordered that Crockett and Stacy Lee Merritt, an
individual who had unsuccessfully attempted to be admitted pro hac vice, pay
appellees $14,500 for their attorney’s fees. The individual appellants and Crockett
have brought this interlocutory appeal from the trial court’s order.2 See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(8).
II. THE TRIAL COURT PROPERLY GRANTED THE APPELLEES’
JURISDICTIONAL PLEAS
In the first issue, the individual appellants contend the trial court erred by
granting the motion to dismiss and plea to the jurisdiction based upon
governmental immunity because they sought injunctive relief against AISD and
governmental immunity does not bar prospective injunctive relief against
government actors who violate statutory or constitutional provisions.
2
In addition to indicating that the individual appellants intended to appeal the
trial court’s order, the notice of appeal stated that “non-parties Attorney Jasmine
Crockett and Lee Merritt, Pro Se” intended to appeal as well. We previously
dismissed Merritt’s appeal for want of prosecution. See Farr v. Arlington ISD,
No 02-17-00196, 2017 WL 3821875, at *1 (Tex. App.—Fort Worth Aug. 31, 2017,
no pet.) (mem. op.).
4
A. STANDARD OF REVIEW
Governmental immunity generally applies to cases in which a party has sued
a government entity or its employees in their official capacity. See Franka v.
Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011) (noting that except for ultra vires
acts, “an employee sued in his official capacity has the same governmental
immunity, derivatively, as his government employer”); Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (noting sovereign immunity
applies in suits against the state or certain governmental units). Governmental
immunity implicates the trial court’s subject-matter jurisdiction. See Engelman
Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 747 n.1, 750–51 (Tex. 2017).
Whether a trial court has jurisdiction is a question of law subject to de novo review.
Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).
The appellees’ motion to dismiss and plea to the jurisdiction challenged the
individual appellants’ pleadings.3 We therefore determine whether the individual
appellants have alleged facts that affirmatively demonstrate the trial court’s
jurisdiction. See Miranda, 133 S.W.3d at 226. In making that determination, we
construe the pleadings liberally in the individual appellants’ favor, looking to their
intent. See id. If the pleadings do not contain sufficient facts to affirmatively
3
The appellees did not attach any evidence to their motion to dismiss or plea
to the jurisdiction, the individual appellants filed no response to those pleadings,
and neither party introduced evidence related to the jurisdictional pleas during the
trial court’s hearing.
5
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
individual appellants should be afforded the opportunity to amend. See id. at 226–
27. However, if the pleadings affirmatively negate the existence of jurisdiction,
then a plea to the jurisdiction may be granted without allowing the individual
appellants an opportunity to amend. Id.
B. ANALYSIS
The individual appellants did not allege any waiver of governmental
immunity in their original or amended petition, and they do not rely on any such
waiver in their brief. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,
542 (Tex. 2003) (“In a suit against a governmental unit, the plaintiff must
affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of
immunity.”). Rather, over the course of this case, their sole contention has become
that governmental immunity does not bar their claims for injunctive relief. As their
only authority for that proposition, they cite the supreme court’s decision in City of
El Paso v. Heinrich. See 284 S.W.3d 366 (Tex. 2009). But that case is
inapplicable here.
Heinrich involved the ultra vires exception to governmental immunity. See
id. at 369–70. An ultra vires suit is one that is brought against a government officer
for acting outside his authority. See Houston Belt & Terminal Ry. v. City of
Houston, 487 S.W.3d 154, 161 (Tex. 2016). That exception is inapplicable here
for at least two reasons. First, the individual appellants’ amended petition, which
6
was their live pleading at the time of the hearing, does not allege that any
government officials acted outside of their authority. See id. And second, the
individual appellants omitted the Board President and the Superintendent from
their amended petition; thus, this suit does not involve any claims against any
individual state actors in their official capacities. See Patel v. Tex. Dep’t of
Licensing and Regulation, 469 S.W.3d 69, 76 (Tex. 2015) (noting ultra vires suits
must be brought against individual state actors in their official capacities; they
cannot be brought against a governmental unit, which remains immune from suit);
see also FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys.,
255 S.W.3d 619, 632 (Tex. 2008) (“In civil causes generally, filing an amended
petition that does not include a cause of action effectively nonsuits or voluntarily
dismisses the omitted claims as of the time the pleading is filed.”); Deadmon v.
Dallas Area Rapid Transit, 347 S.W.3d 442, 444–45 (Tex. App.—Dallas 2011, no
pet.) (stating that “the omission of claims against a party in a petition operates as
a voluntary dismissal of the party from the lawsuit”).4
4
But the individual appellants’ amended petition did not serve to nonsuit the
appellees’ pending counterclaims for attorney’s fees and costs. See Tex. R. Civ.
P. 162 (providing that a plaintiff’s nonsuit “shall not prejudice the right of an adverse
party to be heard on a pending claim for affirmative relief” and that a nonsuit “shall
have no effect on any motion for sanctions, attorney’s fees or other costs, pending
at the time of” the nonsuit); see also Lona Hills Ranch, LLC v. Creative Oil & Gas
Operating, LLC, No. 03-17-00743-CV, 2018 WL 1868054, at *2 (Tex. App.—Austin
Apr. 19, 2018, no pet. h.) (noting that defendant’s counterclaims and request for
attorney’s fees remained pending after plaintiff’s amended petition dropped
defendant from the suit).
7
Since this suit does not involve any ultra vires claims, Heinrich is
inapplicable. Accordingly, because the individual appellants have not shown any
waiver of AISD’s immunity from suit or that governmental immunity is inapplicable
to their claims, the trial court properly granted the motion to dismiss and plea to
the jurisdiction. We overrule the individual appellants’ issue.
III. THE TRIAL COURT’S ATTORNEY-FEE AWARD
In four issues, Crockett contends that the trial court abused its discretion by
awarding the appellees $14,500 in attorney’s fees and by ordering her to pay those
fees. In pertinent part, the trial court’s order provides as follows:
The Court finds that this suit is frivolous, unreasonable, and without
foundation. As such, Defendant AISD is entitled to attorney’s fees
under Texas Education Code section 11.161 and/or Texas Civil
Practices and Remedies Code section 105.002. Additionally, [the
Board President] and [the Superintendent] were immune from this suit
and are entitled to reasonable attorney’s fees and costs. The[] Court
therefore ORDERS that [AISD, the Board, the Board President, and
the Superintendent], be awarded reasonable attorney’s fees against
Plaintiffs’ Attorneys, Jasmine Crockett and S. Lee Merritt, jointly and
severally, under Texas Education Code sections 11.161 and 22.0517,
in the amount of:
$14,500 Attorney’s Fees[.]
A. PRESERVATION
The appellees contend that Crockett failed to preserve the bulk of her
arguments concerning the trial court’s fee award. Indeed, the record shows that
Crockett did not complain to the trial court concerning the propriety of the award of
attorney’s fees. Therefore, she failed to preserve any complaints concerning that
award except for complaints about the legal or factual insufficiency of the evidence,
8
which may be raised for the first time on appeal in a civil nonjury case. See Tex.
R. App. P. 33.1(a)(1), (d); see also Petrohawk Props., L.P. v. Jones, 455 S.W.3d
753, 783 (Tex. App.—Texarkana 2015, pet. dism’d) (holding that complaint that
attorney-fee award was not authorized by statute was subject to rules of
preservation); Nolte v. Flournoy, 348 S.W.3d 262, 273 (Tex. App.—Texarkana
2011, pet. denied) (holding that appellant failed to preserve complaint that trial
court abused its discretion by failing to explain the basis of its award of sanctions);
Sherman v. Triton Energy Corp., 124 S.W.3d 272, 278–79 (Tex. App.—Dallas
2004, pet. denied) (holding that appellants failed to preserve complaint that final
judgment contradicted the trial court’s oral pronouncement on motion for
sanctions). We therefore overrule all of Crockett’s issues concerning the trial
court’s award of attorney’s fees except for her fourth issue, in which she challenges
the legal sufficiency of the evidence supporting the amount of the trial court’s fee
award.
B. SUFFICIENCY OF THE EVIDENCE
In her fourth issue, Crockett contends that the amount of fees the trial court
awarded is not supported by legally sufficient evidence. She argues, for the first
time on appeal, that the appellees did not establish what a reasonable and
necessary attorney’s fee would be under the lodestar method because the
appellees did not introduce documentary support for their fees or provide adequate
testimony detailing the work they performed. In making this argument, Crockett
does not assert that the lodestar method of proving attorney’s fees was required,
9
and it does not appear that the appellees chose to prove up attorney’s fees using
this method.5 See Long v. Griffin, 442 S.W.3d 253, 253, 255 (Tex. 2014) (referring
to party “choosing” the lodestar method of proving attorney’s fees); Lawry v. Pecan
Plantation Owner’s Ass’n, No. 02-15-00079-CV, 2016 WL 4395777 at *9 (Tex.
App.—Fort Worth Aug. 18, 2016, no pet.) (mem. op.). More importantly, where,
as here, the trial court awards attorney’s fees as sanctions, the strictures of the
lodestar method, as well as other evidentiary requirements applicable to statutorily
earned attorney’s fees, are not required, and the trial court may award any
reasonable amount within its broad discretion. See Bennett v. Reynolds, No. 03-
12-00568-CV, 2014 WL 4179452, at *15 (Tex. App.—Austin Aug. 22, 2014, pet.
denied) (mem. op.) (noting lodestar requirements inapplicable “to the assessment
of sanctions based on attorney’s fees” under chapter 10 of the civil practice and
remedies code); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 817
(Tex. App.—Houston [1st Dist.] 2008, no pet.) (noting that “[w]hen attorney’s fees
are assessed as sanctions, no proof of necessity or reasonableness is required”
(citation omitted)); see also Rubalcaba v. Raymondville ISD, No. 13-14-00224-CV,
2016 WL 1274486, at *6 (Tex. App.—Corpus Christi Mar. 31, 2016, no pet.) (mem.
op.) (characterizing attorney’s fees awarded under education code section 11.161
as sanctions); Thielemann v. Blinn Bd. of Trs., No. 01-14-00595-CV, 2015 WL
5
For instance, although the appellees’ counsel testified regarding the hourly
rates of the attorneys who worked on the case, he did not testify regarding the
number of hours the attorneys worked on the case.
10
1247018, at *2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (mem. op.)
(same).
The record supports a conclusion that the trial court awarded the fees at
issue here as sanctions. Appellees filed a counterclaim for their statutory
attorney’s fees, arguing that they were entitled to the award because appellants’
suit was “frivolous, unreasonable, and without foundation.” See Tex. Civ. Prac. &
Rem. Code Ann. § 105.002 (West 2011); Tex. Educ. Code Ann. §§ 11.161,
22.0517 (West 2012). And the Board President and Superintendent argued in the
motion to dismiss that they were entitled to statutory attorney’s fees because “any
diligent attorney should have researched and known [the appellees] were immune
from these causes of action and not brought this nuisance suit.” Similarly, AISD
and the Board asserted in the dismissal motion that statutory attorney’s fees were
appropriate based on the frivolous nature of appellants’ suit.
Courts considering attorney’s fees awarded under education code section
11.161 have analogized those awards to an award of fees as sanctions under both
chapter 10 of the civil practice and remedies code and rule 13 of the rules of civil
procedure. See, e.g., Roach v. Ingram, No. 14-16-00790-CV, 2018 WL 2672546,
at *17–18 (Tex. App.—Houston [14th Dist.] June 5, 2018, no pet. h.); Ollie v. Plano
ISD, 383 S.W.3d 783, 793 (Tex. App.—Dallas 2012, pet. denied). Moreover, as a
statutory prerequisite to awarding the fees, the trial court was required to, and did,
find that the Board President and Superintendent were absolutely immune from
the individual appellants’ suit and that their suit was frivolous, unreasonable, and
11
without foundation. See Tex. Educ. Code Ann. §§ 11.161, 22.0517. Thus, under
the facts of this case, the awarded attorney’s fees based on these specific statutory
requirements were in the nature of a sanction. See Davison v. Plano ISD, No. 05-
12-01308-CV, 2014 WL 1018212, at *8 (Tex. App.—Dallas Feb. 20, 2014, no pet.)
(mem. op.); Loeffler v. Lytle ISD, 211 S.W.3d 331, 349–50 (Tex. App.—San
Antonio 2006). This conclusion is buttressed by the fact that the trial court found
the individual appellants’ attorneys, not the individual appellants, jointly and
severally liable for the award. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 10.004
(West 2017) (authorizing the trial court to assess sanctions against an attorney
who signs a pleading or motion in violation of civil practice and remedies code
section 10.001); Bennett, 2014 WL 4179452, at *15 (considering sanctions
awarded under civil practice and remedies code section 10.004, which the trial
court had in part assessed against parties and their attorney and had ordered them
jointly and severally liable).
Because the awarded attorney’s fees were in the nature of a sanction, we
review the award of attorney’s fees using the same abuse-of-discretion standard
we apply to sanctions generally, reviewing the record for some evidence that
supports the trial court’s decision. See Bennett, 2014 WL 4179452, at *15. Under
this standard, legal sufficiency is not an independent ground of error; rather, it is a
relevant factor in assessing whether the trial court abused its discretion. See
MacDonald Devin, P.C. v. Rice, No. 05-14-00938-CV, 2015 WL 6468188, at *5
(Tex. App.—Dallas Oct. 27, 2015, no pet.) (mem. op.).
12
The appellees’ counsel, Dennis Eichelbaum, testified concerning their
attorney’s fees. He testified that as of the date of the hearing, the appellees had
incurred reasonable attorney’s fees in the amount of $19,359.50 to defend the
lawsuit. He also testified that amount included their efforts related to defending
against the lawsuit itself as well as in defending against Merritt’s multiple motions
to be admitted pro hac vice. Eichelbaum further testified that he had been
practicing law for thirty years and was familiar with hourly rates for attorneys in the
area who practiced governmental law, that his hourly rate was $245.00, and that
his co-counsel’s hourly rate was $165. Eichelbaum stated that both rates had been
reduced for this case from $300 and $245 per hour, respectively, and that they
were both reasonable. He testified that the time spent on this case was reasonable
and necessary to defend the lawsuit. He stated that the time spent on the case
involved legal research related to multiple attempts by Merritt to file documents pro
hac vice, researching who the individual appellants who had sued them were,
researching their individual claims, and being thorough in drafting their
jurisdictional pleas and accompanying trial brief.
This testimony provided some evidence supporting the trial court’s award of
$14,500 in attorney’s fees to the appellees; thus we cannot say that the amount of
sanctions the trial court awarded was an abuse of discretion. See Nath v. Tex.
Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014) (“[W]e will not hold that a trial
court abused its discretion in levying sanctions if some evidence supports its
13
decision.”); Bennett, 2014 WL 4179452, at *15. Accordingly, we overrule
Crockett’s fourth issue.
IV. CONCLUSION
Having overruled all issues, we affirm the trial court’s order. See Tex. R.
App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.
SUDDERTH, C.J., concurs without opinion
DELIVERED: July 19, 2018
14