Michelle Herczeg v. City of Dallas, Texas ( 2021 )

Affirmed and Opinion Filed March 29, 2021
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01023-CV
MICHELLE HERCZEG, Appellant
V.
CITY OF DALLAS, TEXAS, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-16429
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Garcia
Appellant Michelle Herczeg appeals the dismissal of her discrimination
lawsuit against appellee the City of Dallas. We affirm because Herczeg has not
challenged all independent bases for the trial court’s judgment.
I. Background
Herczeg alleged that she was a Dallas police officer who “suffered
discrimination and retaliation because of her gender.” She also alleged that she was
subjected to a hostile work environment.
Herczeg sued the City under Chapter 21 of the Texas Labor Code. After the
City answered, she filed her first amended petition, which was her live pleading at
the time of judgment. In that pleading, she asserted four counts under Chapter 21
for (1) gender discrimination, (2) wrongful termination based on gender,
(3) retaliation based on gender, and (4) aiding and abetting discrimination.
The City filed a plea to the jurisdiction based on immunity from suit. The
City raised multiple grounds in its plea. Some grounds attacked the merits of
Herczeg’s claims, arguing that she could not establish that the City committed
Chapter 21 violations for which the City’s immunity was waived. Other grounds
asserted that (1) some of Herczeg’s liability theories were time-barred because she
did not timely present them to the Texas Workforce Commission and (2) all of
Herczeg’s remaining liability theories were barred because she failed to exhaust
administrative remedies as to those theories.
Herczeg filed a response to the City’s plea to the jurisdiction.
After a hearing, the trial judge signed an order granting the City’s plea, and
Herczeg appealed.
The City filed a document suggesting that Herczeg’s appeal was untimely
because the trial court’s judgment did not dispose of all of Herczeg’s claims, which
would make the judgment interlocutory and thus make Herczeg’s notice of appeal
untimely. See TEX. R. APP. P. 26.1(b) (deadline for notice of appeal in accelerated
appeals). At our request, Herczeg filed a jurisdictional brief. After reviewing the
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record, this Court issued an order concluding that the trial judge intended the order
to be a final judgment granting the City’s plea as to all of Herczeg’s claims. Thus,
Herczeg’s notice of appeal was timely.
II. Analysis
A. Summary of the Arguments
Herczeg raises three issues on appeal. First, she argues that the trial court
erred by granting the City’s plea to the jurisdiction because the evidence raised
numerous genuine issues of material fact. Second, she argues that the trial court
erred by granting the City’s plea because her expert witness’s testimony created
genuine issues of material fact. Third, she argues that the trial court erred by failing
to sustain her objections to certain evidence filed by the City.
In its brief, the City argues, among other things, that we must affirm the
judgment because Herczeg’s brief did not address all independent grounds
supporting the judgment. For example, the City argues that Herczeg’s brief did not
address the untimeliness and failure-to-exhaust grounds asserted in the City’s plea.
In her reply brief, Herczeg disputes that she waived any issues in her opening
brief and insists that she demonstrated reversible error. But neither her opening brief
nor her reply brief addresses or even mentions the City’s untimeliness and failure-
to-exhaust grounds for dismissal.
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B. Applicable Law
It is a well-settled rule that an appellant must attack all independent bases or
grounds that fully support a ruling or judgment. See, e.g., Oliphant Fin. LLC v.
Angiano, 295 S.W.3d 422, 423 (Tex. App.—Dallas 2009, no pet.). This rule is a
corollary of the harmless-error rule:
If an independent ground fully supports the complained-of ruling or
judgment, but the appellant assigns no error to that independent ground,
we must accept the validity of that unchallenged independent ground,
and thus any error in the grounds challenged on appeal is harmless
because the unchallenged independent ground fully supports the
complained-of ruling or judgment.
Id. at 424; see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).
The rule applies to a dismissal based on a plea to the jurisdiction. See Douglas v.
City of Kemp, No. 05-14-00475-CV, 2015 WL 3561621, at *3 (Tex. App.—Dallas
June 9, 2015, no pet.) (mem op.).
When the trial court’s judgment does not specify the ground or grounds on
which it is based, the appellant must attack all grounds the judgment could have been
based on. See Wilhite v. Glazer’s Wholesale Drug Co., Inc., 306 S.W.3d 952, 954
(Tex. App.—Dallas 2010, no pet.). To carry its burden, an appellant may either
(1) assert a separate issue challenging each possible ground for the judgment or
(2) assert a general issue assailing the judgment and within that issue present
argument defeating all possible grounds on which the judgment could be based. See
id.–4–
C. Applying the Law to the Facts
First, we agree with the City that the untimeliness and failure-to-exhaust-
administrative-remedies grounds it raised in its plea to the jurisdiction are separate
and independent from its grounds that Herczeg could not establish the elements of
her Chapter 21 claims. See Douglas, 2015 WL 3561621, at *3–4 (failure to exhaust
administrative remedies was independent ground supporting judgment); cf. Reliford
v. BNSF Ry. Co., No. 02-09-00322-CV, 2011 WL 255795, at *1 (Tex. App.—Fort
Worth Jan. 27, 2011, no pet.) (mem. op.) (statute of limitations was independent
ground supporting judgment). We also agree that the City’s untimeliness and
failure-to-exhaust grounds covered every liability theory that Herczeg asserted in
her live petition. Herczeg does not dispute these points.
Next, we agree with the City that the trial court’s order did not specify the
grounds on which it was granting the City’s plea. The order consists of thirty
statements that the City’s plea is granted or denied as to Herczeg’s various claims
and theories, and it allowed the trial judge to circle “GRANTED” or “DENIED” as
appropriate. Two representative examples follow:
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None of the trial court’s rulings references a specific ground for the ruling.
Accordingly, on appeal Herczeg must attack every ground the City asserted in its
plea. See Wilhite, 306 S.W.3d at 954.
Finally, we conclude that Herczeg’s opening appellate brief does not attack
the City’s untimeliness or failure-to-exhaust grounds for dismissal. The brief does
not mention them by name, discuss their elements, or allude to them in any way.
Although an appellant who has failed to challenge all independent grounds on appeal
is not allowed to cure the defect in the reply brief, Douglas, 2015 WL 3561621, at
*4, we also note that Herczeg has not attempted to do so here. Instead, her reply
brief (1) invokes the general principle that an appellate court should reach the merits
of an appeal whenever possible and (2) includes a footnote with a string citation to
numerous cases, which we address below.
Herczeg cites St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211(Tex. 2020) (per curiam), without explanation. In that case, we held that the
appellants failed to challenge one of two independent grounds for the trial court’s
judgment, but the supreme court concluded that the two grounds were not actually
independent but were inextricably intertwined. Id. at 214. Thus, we erred by holding
that the appellant had omitted one of the two grounds from its brief. Id. at 215. In
this case, by contrast, untimeliness and failure to exhaust administrative remedies
are independent of the City’s other grounds, which focused on the merits of
Herczeg’s claims. Thus, St. John is distinguishable.
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Herczeg’s other cases generally support the proposition that appellate courts
should reach the merits whenever reasonably possible, but they are not similar
enough to this case to be illuminating. See, e.g., Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 480 (Tex. 2019); Weeks Marine, Inc. v. Garza,
371 S.W.3d 157, 162 (Tex. 2012); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)
(per curiam). By contrast, the rule stated in Oliphant Financial and the other cases
cited above is precisely on point. Herczeg did not challenge all independent grounds
on which the trial court may have dismissed her case, so we must affirm. See
Oliphant Fin., 295 S.W.3d at 424; see also State Bar of Tex. v. Evans, 774 S.W.2d
656, 658 n.5 (Tex. 1989) (per curiam) (appellate court may not raise an argument
sua sponte and reverse based on that argument).
III. Disposition
We affirm the trial court’s judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Schenck, J., dissenting.
191023F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHELLE HERCZEG, Appellant On Appeal from the 191st Judicial
District Court, Dallas County, Texas
No. 05-19-01023-CV V. Trial Court Cause No. DC-16-16429.
Opinion delivered by Justice Garcia.
CITY OF DALLAS, TEXAS, Justices Schenck and Smith
Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee CITY OF DALLAS, TEXAS recover its costs
of this appeal from appellant MICHELLE HERCZEG.
Judgment entered March 29, 2021.
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