Susan Wheeler v. Honorable Mayor William White, Chief Harold Hurtt and Officer's Civil Service Commission ( 2010 )

Affirmed and Majority and Dissenting Opinions filed May 6, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-08-00490-CV

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Susan Wheeler, Appellant

V.

Honorable Mayor William White, Chief Harold Hurtt, and Officers’ Civil Service Commission, Appellees

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2005-25844

MAJORITY OPINION

            Susan Wheeler, an officer with the Houston Police Department (“HPD”), appeals from the trial court’s dismissal of her lawsuit against appellees, Houston Mayor William White, Police Chief Harold Hurtt, and the Police Officers’ Civil Service Commission.  In her lawsuit, Wheeler sought declaratory and injunctive relief regarding the calculation of her promotion-eligibility score, such scores being used to determine promotions within HPD.  Appellees filed a motion to dismiss, alleging that Wheeler did not have standing to bring the lawsuit and the trial court did not have jurisdiction to entertain the lawsuit.  The trial court granted the motion.  In two issues, Wheeler contends that the trial court erred in determining that (1) the court lacked jurisdiction, and (2) she lacked standing. We affirm.

I.  Background

            Wheeler is an HPD sergeant seeking promotion to the rank of lieutenant.  Pursuant to the Meet and Confer Agreement between the Houston Police Officer’s Union (“HPOU”) and the City of Houston, promotions within HPD are determined based on candidates’ comparative scoring on a number of preset elements, including an independent assessment or evaluation, seniority, written testing, and education attainment.  In her lawsuit, Wheeler complains that HPD misinterpreted the Meet and Confer Agreement and thereby miscalculated her total score for a certain promotional period.  Specifically, she contends that HPD erred in not giving her credit for having earned a master’s degree after having completed the written test. Apparently, HPD interprets the scoring rules as freezing the educational attainment criteria as of the time of the written testing.  Wheeler further contends that had she received proper credit for her degree, she would have been promoted to lieutenant.

            In her pleadings, Wheeler sought a temporary restraining order to prevent the alleged wrongful depravation of her property rights to promotion.  She also sought a declaratory judgment interpreting the Meet and Confer Agreement such that postgraduate degrees awarded prior to completion of assessment scoring would be included in a candidate’s total score.  Appellees filed a motion to dismiss alleging, as will be explained more fully below, that the trial court did not have jurisdiction and that Wheeler did not have standing.  The trial court granted the motion and dismissed Wheeler’s lawsuit without specifying the grounds therefor.

II.  Standing

In their motion to dismiss, appellees asserted, inter alia, that Wheeler does not have standing to sue under the Meet and Confer Agreement.  In her response, Wheeler contended that she does have standing to sue under the agreement.  Standing is a constitutional prerequisite for a party to bring a lawsuit.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).  The issue of standing focuses on the question of who may bring a lawsuit.  Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998).  Standing is a prerequisite to subject matter jurisdiction, and a trial court must have subject matter jurisdiction in order to entertain a particular case.  Bland I.S.D. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000).  A court has no jurisdiction over a claim pursued by a plaintiff who lacks standing to assert the claim.  DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008).  When a plaintiff lacks standing, the proper resolution is to dismiss the lawsuit.  Id.  Generally, the scope of review on appeal from the grant of a motion to dismiss is limited to the grounds raised in the motion.  Williams v. Nealon, 199 S.W.3d 462, 464-65 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

A.  Meet & Confer Agreement

As stated, both sides base their standing arguments on the Meet and Confer Agreement between the City and HPOU.  Under provisions of the Texas Local Government Code, if the Meet and Confer Agreement satisfies certain criteria, then it preempts Aall contrary local ordinances, executive orders, legislation, or rules adopted by the state or a political subdivision or agent of the state.@  See Tex. Loc Gov=t Code ' 143.361.  Furthermore, once these criteria are met, the agreement is enforceable and binding on the employer, the bargaining agent (HPOU), and the employee police officers (including Wheeler).  See id. § 143.359.  The criteria in question are as follows:

(1)  HPOU qualifies as a “bargaining agent” under section 143.352(1);

(2)  the agreement was made pursuant to Chapter 143, Subchapter J, of the Local Government Code;

(3)  the agreement has been ratified by a majority vote of the City of Houston’s governing body; and

(4)  the agreement has been ratified by a majority vote in an election held by HPOU under section 143.360.

Tex. Loc. Gov’t Code §§ 143.352, 143.359-.361.

Although neither Wheeler nor appellees offered evidence below to establish that the Meet and Confer Agreement met these criteria, both assert the validity, enforceability, and applicability of the agreement in their standing arguments.  Furthermore, Wheeler not only doesn’t contest the enforceability and applicability of the agreement, she is specifically suing to enforce its provisions.  Her very cause of action is premised on the enforceability of the Meet and Confer Agreement.  If the agreement is not controlling, then she has no cause of action.  In other words, the applicability of the agreement is an element of proof for Wheeler.  Because Wheeler premised her cause of action on the enforceability of the agreement, she has judicially admitted its enforceability for purposes of this lawsuit.  See, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (“A judicial admission must be a clear, deliberate, and unequivocal statement . . . and occurs when an assertion of fact is conclusively established in live pleadings . . . .”) (internal punctuation and citation omitted).  Because of Wheeler’s judicial admission, appellees were relieved from having to prove the enforceability of the agreement in making their arguments on standing.  See id. (“A judicial admission not only relieves an adversary from making proof of the fact admitted but also bars the party himself from disputing it.”) (internal punctuation omitted).  We premise our opinion on the Meet and Confer Agreement’s satisfaction of the Local Government Code criteria and its effective operation as a statute.

            A party suing under a statute, or as here an agreement with the force of a statute, must establish standing, or the right to make a claim, under that statute or agreement.  See Exxon Corp. v. Emerald Oil & Gas Co., No. 05-0729, 2009 WL 795760, at *4 (Tex. May 27, 2009).  In other words, the agreement itself provides the framework for the standing analysis.  Cf. id.  We will not imply a right of enforcement simply because a party suffered harm from a breach of the agreement; we look to the intent as expressed in the document.  Cf. id.

            Moreover, what is typically referred to as “standing” in a contractual context, i.e., “standing” to sue on the contract, is not the same as standing in the jurisdictional sense, even though the analyses of the two types of standing contain similar elements.  See Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  Here, there is no practical distinction, however, because the agreement in question operates as a statute and trumps all conflicting rules and legislation.  See Tex. Loc Gov=t Code ' 143.361.

B.  Evidence

As indicated, the substance of the parties’ standing arguments requires reference to the provisions of the Meet and Confer Agreement. Appellees attached portions of the agreement to their motion to dismiss as well as to a supplemental motion.  Wheeler quoted a different portion of the agreement in her response to the motion.  Neither side provided a complete copy of the agreement.  Therefore, a question arises as to whether we can properly analyze the agreement in the absence of a complete copy.

Generally, in interpreting contracts or other documents, we examine the writing as a whole in an effort to harmonize and give effect to all provisions so that none is rendered meaningless.  See rePipe, Inc. v. Turpin, 275 S.W.3d 39, 44 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  However, the Texas Supreme Court has held that this rule does not necessarily apply in the context of analyzing the right to sue under a contract. See Tex. Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879 (Tex. 1999); Paragon Sales Co. v. New Hampshire Ins. Co., 774 S.W.2d 659, 661 (Tex. 1989).  In Murphy and Paragon Sales, the court explained that in order to prove a right to sue under an insurance policy, a plaintiff was required to establish only those provisions of the policy allowing recovery.  Murphy, 996 S.W.2d at 879; Paragon Sales, 774 S.W.2d at 661.  Upon such proof, it was incumbent upon the defendant to plead and prove any provisions that would bar recovery.  Murphy, 996 S.W.2d at 879; Paragon Sales, 774 S.W.2d at 661.  Although these cases involved insurance contracts, their method of proof is readily adaptable in disputes concerning other types of contracts.[1] Indeed, in the jurisdictional context, the Texas Supreme Court has not placed the sole burden of producing evidence on either the party urging standing or jurisdiction or the party contesting standing or jurisdiction.

In Texas Department of Parks and Wildlife v. Miranda, the supreme court explained that when a dilatory plea, such as a plea to the jurisdiction or similar procedural device, challenges the existence of material facts supporting jurisdiction, the court must consider the relevant evidence submitted by the parties.  133 S.W.3d 217, 227 (Tex. 2004).  If the evidence is undisputed or fails to raise a question of fact, the court should rule on the plea as a matter of law.  Id. at 228.  After a defendant asserts, and supports with evidence, that the court lacks subject matter jurisdiction, the plaintiff must show a disputed fact issue exists in order to avoid dismissal for want of jurisdiction.  Id.  The court further explained that the standard for such jurisdictional disputes “generally mirrors that of a [traditional] summary judgment.”  Id.  That a court’s jurisdictional analysis is framed by the parties’ arguments and competing evidence is further illustrated by the supreme court’s opinion in Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex. 2000).  In Bland, a standing case, the court stated that there are times when a plaintiff must produce evidence to prove jurisdiction in response to a defendant’s jurisdictional challenge.  34 S.W.3d at 554.  Specifically, the court in Bland relied on the fact that the plaintiff did not dispute the veracity of certain evidence produced by the defendant.  Id. at 555.  The court, indeed, took that evidence as conclusive of certain essential facts.  Id. at 555-56.

Here, appellees filed their motion to dismiss and attached portions of the agreement that they deemed relevant to the analysis.  In response, Wheeler cited to a different portion of the agreement (the preamble) as being relevant to the analysis.  Ultimately, there is no dispute by the parties that all portions of the agreement relevant to the jurisdictional analysis are in the record.  See, e.g., C & C Partners v. Sun Exploration and Prod. Co., 783 S.W.2d 707, 714 (Tex. App.—Dallas 1989, writ denied) (“Although the entire contract should be considered so that its parts are interpreted together with all other parts, the parties’ intent concerning a particular matter may be determined from only one portion of the contract.”).  Wheeler, specifically, has not complained in the trial court or on appeal regarding the absence of any portion of the agreement from the record.  In other words, the parties dispute only the interpretation of the evidence provided; they do not complain that any relevant portion was omitted.  Consequently, under Murphy, Paragon Sales, Miranda, and Bland, the evidence provided is sufficient for a determination on standing.[2]

C.  Analysis

Finally, we turn to the parties’ assertions concerning standing.  In arguing that Wheeler lacked standing to assert her claims, appellees specifically cited article 5 of the Meet and Confer Agreement wherein it states that:  “A challenge to any term of this Agreement either by interpretation and/or application which applies to an officer or to the MBA [Majority Bargaining Agent], may be filed only by the HPOU, in its capacity as the MBA or the City.”[3] This is exactly what Wheeler is trying to do in this case:  challenge an interpretation of the agreement and its application to her.  In her petition, Wheeler expressly asserts that appellees are misinterpreting and misapplying the promotional scoring rules contained in the agreement, and she seeks a declaratory judgment stating that “postgraduate degrees (earned prior to the completion of . . . assessment scoring) count toward points to be factored into [the] overall score, as contemplated by the express terms of the agreement.” In her brief, she repeatedly emphasizes that the point of her lawsuit is to obtain an interpretation of the scoring rules of the agreement.  Thus, Wheeler’s bringing of the present lawsuit runs contrary to the express language in the agreement permitting only the City and HPOU to file challenges implicating the interpretation or application of terms of the agreement to officers such as Wheeler.

In her response to the motion, Wheeler quoted from the agreement’s preamble in arguing that she was an intended third-party beneficiary of the agreement entitled to bring suit to enforce its provisions. The quoted portion states:  “The parties to this Agreement are [HPOU] as the sole and exclusive Majority Bargaining Agent for and on behalf of all Police Officers of [HPD] and the City of Houston, Texas (City).”  While the preamble does state that HPOU entered the contract “for and on behalf of all” HPD officers, the preamble says nothing about an individual police officer being able to sue.  In fact, it could be read as supporting the conclusion that because HPOU is operating “for and on behalf of” police officers, the officers themselves may not be authorized to act on their own behalf.  However, we need not go that far in deciding this case.  Article 5 states that only HPOU can challenge the interpretation or application of the agreement.  It does not state that HPD officer’s cannot sue the City for any employment reason whatsoever; it merely restricts officers ability to sue over an interpretation or application of the agreement.  Wheeler does not raise any further arguments in support of her standing to bring these claims.[4] Accordingly, the trial court did not err in holding that Wheeler did not have standing to pursue her claims.  We overrule Wheeler’s second issue.

Because we affirm the trial court’s holding that Wheeler does not have standing to bring her claims, we need not consider the court’s holding that it did not have jurisdiction over those claims. Consequently, we also overrule her first issue.

We affirm the trial court’s order of dismissal.[5]

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Frost, J. dissenting)

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[1] As the court explained in Paragon Sales, there are particular reasons for allowing this method of proof in the insurance context, including that a third-party beneficiary attempting to establish standing would frequently have less access to policy documentation than would the insurer.  774 S.W.2d at 661.  However, the existence of reasons unique to the insurance context does not necessarily mean that the methodology would be inapplicable in other contexts.

[2] The dissent maintains that we are constrained from considering a partial contract under our prior holding in Crawford v. Pullman, Inc., 630 S.W.2d 377 (Tex. App.—Houston [14th Dist.] 1982, no writ).  The key issue in Crawford was whether a plaintiff in a suit on a sworn account was entitled to summary judgment when only portions of the two contracts between the parties were offered as summary judgment evidence and the defendant filed a verified denial.  Id. at 379.  The partial lease agreements provided to the court each referenced “terms and conditions . . . on the reverse side hereof,” but the plaintiff failed to provide the reverse sides of the agreements.  Id.  In finding that the absence of the referenced terms and conditions prevented summary judgment, we relied on a factually similar case from the Dallas Court of Appeals, in which the court stated:

Here, the terms of the contract . . . may have been materially modified by the “conditions” found on the reverse side . . . .  When a party sues upon an instrument, and that instrument affirmatively shows upon its face that it is subject to, and not merely cumulative of, terms and conditions found in another instrument, both must be introduced.

See Tex. Int’l Airlines v. Wits Air Freight, 608 S.W.2d 828, 830 (Tex. Civ. App.—Dallas 1980, no writ).

The circumstances of the present case are readily distinguishable from those faced in Crawford and Texas International. To begin with, unlike in Crawford and Texas International, there is no indication in the present case that there are potentially relevant portions of the agreement missing from the record.  To the contrary, the portions presented appear to be directly on point and self-contained regarding the right to sue under the agreement.  Moreover, the issue here, as it was in Murphy and Paragon Sales, is whether a party had the right to sue under a contract, not, as in Crawford and Texas International, whether a party had proven a right to recover on a sworn account.  A suit on a sworn account will typically require examination of all terms and conditions within an agreement, whereas a determination of standing to sue on an agreement will often be resolved by reference to only particular portions of the agreement. Consequently, we find that our prior decision in Crawford does not control the disposition of the right-to-sue issue currently before us.

^[3] Appellees further point to a latter section of article 5, placed after a discussion of the challenge process, which includes arbitration.  This section states:  “No appeal lies to a District Court for either party except for fraud, collusion or unless the arbitrator exceeded his/her jurisdiction.”

[4] To the extent Wheeler’s briefing can be interpreted as arguing that she has standing under the Declaratory Judgments Act (DJA) to seek an interpretation of the agreement irrespective of limitations on such actions contained in the agreement itself, this argument fails for at least two reasons.  First, the DJA does not create jurisdiction where jurisdiction would not otherwise exist.  Tex. Civ. Prac. & Rem. Code § 37.003(a); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Medina v. Benkiser, 262 S.W.3d 25, 28 (Tex. App.—Houston [1st Dist.] 2008, no pet.); City of Houston v. Clark, 252 S.W.3d 561, 568 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  Second, the Meet and Confer Agreement preempts “all contrary local ordinances, executive orders, legislation, or rules adopted by the state or a political subdivision or agent of the state.@ See Tex. Loc Gov=t Code ' 143.361.  Thus, the agreement’s restriction on who can bring an action seeking interpretation of the agreement would trump any alleged standing on the matter premised on the DJA.

[5] We have previously held that when a party is found to lack “standing” to sue under a contract, the proper disposition is to render a take-nothing judgment rather than to dismiss the case for want of jurisdiction.  See Yasuda Fire, 225 S.W.3d at 898. However, as discussed in detail above, we are assuming in the present case, based on the parties’ representations, that the agreement in question operates as a statute.  See Tex. Loc Gov=t Code ' 143.361. Consequently, dismissal was proper under the facts of this case.  See generally Inman, 252 S.W.3d at 304.