Ollie, Dorothy v. Plano Independent School District

. [‘Ii I W’4: ( )pinioii issued ( )ctoher 24, 2012.

in The

((turt t( Appra1

,FiitIt k!3trict tif X1!3 &It lZ1LL&13

No. 05-I 2-00077-CV

D( ) R( )TI IY 01111, ppel1iut

I’LN() INDI P1 NIWN I’ Sul IOOL DISTRIC’F, I’A1JRA CRIFH

N,

I)OUCIAS OTTO, ND TAi1MY RICIIARI)S, \ppellees

On \ppcal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause No. 219—04411—201 1

OPINION

Before Justices Moseley, [‘ilirnore, and Myers

Opinion By Justice lillmore

I)orothy Ollie brought breach of contract and tort claims against the

Piano Independent

School District ( PISD), Tamira Griffin. individually and as the PISD’s Execut

ive Director ofi-luman

Resources, Douglas Otto, individually and as the PISD’s Superintende

nt of Schools, and Tarnrny

Richards, individually and as President of the PISD’s Board of Trustees,

based on the termination

of Ollie’s employment with the PISD. The trial court granted appellees’

plea to the jurisdiction,

dismissed Ollie’s claims, and assessed attorney’s fees as sanctions agains

t Ollie. In tbur issues, Ollie

argues (I) the trial court abused its discretion by assessing sanctions

against her, (2) the federal

district court presiding over a previous lawsuit filed by Ollie agains

t the PISD did not have

lurisdiction over Ollie’s employment contract, (3) the trial court erred by granting appellees’ plea

to the jurisdiciton, md (4) the l’cxas liducation Agency( lEA) hadjurisdiction to investigate flue’s

coinplaiitts against the l’ISI). We affirm the trial court’s judgment.

Background

(Nile began working as a school teacher for the I’ISD in 1998. In 2006, she tiled a lawsuit

against the PISD in the United States District Court fur the Eastern District of Texas (the district

court) assertingelaims ofracial discrimination, hostile work environment, and retaliation underTitle

VII of The Civil Rights Act of 1964 (ritlc VII)’ and age discrimination under the Age

L)iscrimination in linployment Act (Al)EA)? On March 22,2007. Ollie signed a new employment

contract with the PISD for a three-year period commencing on September 1, 2007 and ending

on

August 31, 2010.

At a March 29, 2007 mediation, Ollie and the PISD entered into a handwritten settlement

agreement ofOllie’s claims in the federal litigation. The terms ofthe agreement provided the PISD

would pay 011k twenty months’ compensation and Ollie would be placed on administrative leave

effective March 30, 2007. Following the mediation, Ollie refused to sign a formal settlement

agreement that required her to resign her employment at the end of the twenty-month period

encompassed by the settlement agreement Ollie claimed the parties intended that she would have

an opportunity to research the amount oftime she needed to quali for full retirement benefits. The

PISD filed a motion to enforce the settlement agreement. On June 25,2007, the district court signed

an order enforcing the settlement agreement as to Ollie’s Title VU claims, but not as to her claims

42 LLS.C.A. 4420Gb •2000o-17 (West 2003).

2

29 U.S.CS. 44621.634 (West 2008). OHio also mated claims for violations of her civil rights under

42 U.S.C.A. 41983 (West 2012).

intentional infliction olemotional distttss. and breach ofcontract based on Ollic’s removal asa’l’eam Leader.” 11w

federal district cowl dismissed

these claims. as well as (Jibe’s claims for punitive damages. These claims do not affect this appeal.

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under the Al )lA.

)n iilv (), 2007. ( )llie o itacted the P1st) ah)iit ieturnnli 1(1 wok in

/\iaetist 2007. ( iitIn

responded that, pursuant to the terms of the settlement agreement, ( )llie was on admin

istrative leave

br twenty months. Un bun subsequently explicitly inbonned Ollie that the

twentymonth paid

administrative leave was a “huyout’ ot Glue’s contract with the P151). UtIle

responded that the

tventymonth period otadm misirative leave contemplated by the settlement agreem

ent was separate

1mm her employment contract. [he l’ISI) then tiled a Request br Clarilication

in the district court

seeking a speca tic tinding that the settlement agreement superceded Gibes emplo

yment contract

with the P151).

)n July 21 , 2008, the district court granted the PISD’s motion hr elan tication

and

determined “the intent ot the parties was fur the 2() months tame tiarne to enable (

)llie to draw limit

retirement benefits, anti, therelure, the parties intended the terms ot the

settlement agreement to

override and replace her teaching contract’ The district court ftnand that

the lact ()ilie later

determined she needed more than twenty months of administrative leave to qualify

for full retirement

benefits “was a unilateral mistake on her part” and Glue had not established

she was entitled to

rescind the agreement due to her mistake. The district court tound the settlement agreement

“supercedes 01 lie’s teaching contract.”

On September 19, 2008, the district court granted the PISD’s motion lbr summa

ry judgment

on Ollie’s age discrimination claim. Thereafter, Ollie tiled a pro se appeal to the

Fifth Circuit Court

of Appeals of tile district court’s rulings on her Title VII and age discrim

ination claims. On

[)ecemher 2, 2008. Glue received a termination notice [roan Griffin stating that,

in accordance with

the settlement agreement, Ollie’s employment with tile PISD was termin

ated effective November

28, 2008.

On April 8, 2009, the Fl fth Circuit issued its opmion affirming, in part, and reversing, in part,

the district court’s judgment. I’he Filth Circuit trfirmcd the dismissal of OlIk’s claims under

the

AL)liA because I) must of the alleged discriminatory conduct occurred more than 300 days before

011k (lIeu stilt and, therelbre, could not support her claims, and (2)011k had not produced eviden

ce

raising an issue of tict as to whether the l’tSD’s legitimate, non-discriminatory reason tbr

the

purported employment dccision was a pretext. The Fifth Circuit reversed the district court’s

judgment as to Ollie’s claims under Title VII. Relying on the district court’s finding that the

intent

of the parties in entering the settlement agreement was for the twenty-month time frame

to allow

011k to draw full retirement benefits. the Fifth Circuit concluded “the mistake as to whether twenty

months was sutficient for this purpose was mutual, not unilateral.” The Fifth Circuit remand

ed the

case to the district court to make the necessary findings to determine whether, under the totality

of

the circumstances, Ollie had established the defense ofmutual mistake. On June22, 2009,

the PISD

tiled a motion in the district court to enforce the settlement agreement.

In October 2009, Ollie tiled a complaint with the TEA asserting the PISD had breached the

employment contract. The PISD requested 01lie’s complaint be dismissed because the TEA did

not

have jurisdiction over the complaint due to Ollie’s Ililure to exhaust her administrative

remedies

with the P1SD.

On March 30, 2010, the district court granted the PISD’s motion to enforce the settlement

agreement. finding Ollie had failed to establish the defense of mutual mistake and, on March

31,

2010, entered final judgment disposing of Ollie’s Title VII claims. On April 14, 2011, the

TEA

dismissed Ollie’s complaint due to lack of jurisdiction. In his decision, Robert Scott, the

Commissioner of Education, determined that section 7.057(aX2) of the education

code was

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phcahle to (. )lhe s cuins. Scott tiniher determmcd the P151) had grievance policies hat

allowed

I inns to hL hi oiieht COflLL I ning s, how s md conditions of work Scott fli )tcd t h it w hi Ic thu c

were some eccphons to the IYXD’s urievance policies, none ot those exceptions applied (

to )llie’s

claims, Scott ktiind that ( )ll me tailed to tile a grievance concerning the PIS[)’s rctiisal to allow

UI lie

to work and tii1ing to pay her after November 28, 2008. Because Ollie failed to exhaust her

administrative remedies by tiling a grievance with the PISD, the lEA concluded it did

not have

nrisdict ion over her complaint.

)n September 8, 2011, Ollie sent a demand letter to appellees. Appellees responded

and

informed ()llie that (1) the district court had rejected 01 lie’s claims that her teaching contrac

t was

still in etict and the settlement agreement was obtained by fraud, and (2) appellees had

immunity

Irorn Ollie’s tort claims tinder the Texas Tort Claims Act (the TTCA). Appellees inform

ed Ollie

that, if she proceeded with a lawsuit, appellees would seek reimbursement of their attorne

y’s fees

aS sanctions for a groundless and/or frivolous pleading. On October 24, 2011 01 lie

tiled this ,

lawsuit.

Appellees tiled an answer, asserting a general denial, a specitic denial that Ollie

had

exhausted her administrative remedies, and a number of affirmative defenses, including

that Ollie’s

claims were barred by immunity and by her fiuilure to exhaust administrative remedi

es and that the

trial court lacked subject matter jurisdiction over Ollie’s claims. Appellees also filed a

plea to the

jurisdiction and a motion tbr sanctions. Appellees contended the trial court did not have

jurisdiction

over Ollie’s breach of contract and employment claims because she failed to

exhaust her

Section 7 057(ah2)of the education code allows a person to appeal to the commissioner

ifthe person is agrieved by actions or decisions of

my school district hoard oltrustees that violate either the school as of Texas or a provision of a

wrttten employment contract between the schooi

district and a school district employee. ifa violatton causes or would cause monetary harm the

to employee. [tx. iZill;c, (‘i DE i\NN. 7057(aM2)

West Supp. 21)12).

administrative remedies with the P151). Appeilces also argued that ( )lIte s tort claims were

barred

by ( ) governmental inmunity, md ( 2) sect ion it) I 0(() of the civil practice and remedi

es code

because ( )l lie ucd both the PIS[) and the individual employees and hoard members, Appell

ees

Ilirther asserted ( )l lie had notice prior to tiling suit of the legal bars to her claims and, thereto

re.

should he sanctioned tinder the education code, the civil practice and remedies code, or the rules of

civil procedure br filing a frivolous or groundless lawsuit,

)Il ic responded to the plea to the jurisdiction, arguing her breach ot contract claim was

a

cause ot action tinder state law over which the tederal district court did not have jurisdi

ction,

appellees had waived their claims by not pleading them in theiroriginal answer, and she had standing

to assert the claims. She further argued appellees did not have immunity ti’om her tort claims

because appellees were not acting in the course and scope of their employment. She finally asserte

d

she was not required to exhaust her administrative remedies under the PISD’s grievance

process

because the PISI) buiiled to provide her with notice prior to her termination as required by chapter

21 of the education code. Ollie also responded to appellees’ motion br sanctions asserting her

claims were not frivolous.

The trial court granted appellees’ plea to the jurisdiction and dismissed Ollie’s claims. The

trial court also Ibund that, prior to filing the lawsuit, Ollie “had specific knowledge of the legal

bars

to her claims in this suit, and this lawsuit is thercfbre frivolous, groundless, andlor brough

t fur an

improper purpose such as to harass or needlessly increase appellees’j litigation costs.”

The trial

court granted appellees’ motion for sanctions and awarded appellees $4,192.50 as reason

able and

necessary attorney’s fees pursuant to section 11. 161 of the education code, sections 9.012 and

10.004

of the civil practice and remedies code, and rule of civil procedure 13. The trial court also

awarded

contingent attorney’s fees of $21,500 for an unsuccessful appeal by Ollie to this court and

$2 1,500

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1kw an unsuccessful appeal by UtIle to the supreme court.

Plea to the Jurisdiction

In her third issue, Utile generally contends the trial Court erred by granting appellees’ plea

to the jurisdiction because (I) appeltees waived their claim to immunity by filing a general denial,

and (2) Uriflin, Otto, and Richards waived immunity by acting outside the course and scope oftheir

employment.

Procedural Waiver 1kv lppellees

Ollie first argues appellees waived their claim to immunity by filing only a general denial.

liowever, subject matter jurisdiction cannot be waived. Ajfonso v. Skadden, 251 S.W.3d 52, 55

(rex. 2008) (per curiam); see 1,130 Rusk Stale Hasp. v. Black, No. 104548,2012 WL 3800218. at

9—6 (Ta. Aug. 31, 2012) (claim of immunity by governmental entity can be raised for first time

on appeal). Further, as noted above, appellees specifically denied that Ollie exhausted her

administrative remedies, and asserted the affirmative defenses of governmental immunity, failure

to exhaust administrative remedies, and that the trial court did not have subject matter jurisdiction

over Ollie’s claims. Appellees also specifically challenged the trial court’s subject matter

jurisdiction in their plato thejurisdiction. We conclude appellees did not waive their claim the trial

court did not have subject matter jurisdiction over Ollie’s claims.

Standard of Review

A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause ofaction without

regard to whether the claims asserted have merit” Bland Indep. 5th. 1)1st v. Blue, 34 S.W.3d 547,

554 (Tex. 2000). A plea challenges the trial court’s authority to decide a case. Heckman v.

Williamson Cnn’.. 369 S.W.3d 137, 149 (Tex. 2012). The existence of subject-matterjurisd

iction

is a question of law; thus, we review de novo the trial court’s ruling on a plea to the jurisdiction.

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/. I)p r oJ Puks LtThIIi/ eIi,incIu, 155 S.W,Sd 2!?, 226, 22 ( [cx. 2(304); Ir. Aatural Rex

ize, uulini ( mIifl ‘ii i 11 I )o ci. / I S \\‘ d X40, X55 ( I cx /0( )2).

I he pLitnU 11 has the burden to affirmatively demonstrate the foal court has subject matter

jiinsdictton. Ii&’ck,nan, 369 SW.3d at 151; ixJss ‘n o/IIuv, v R’x.Air ( ‘ontrol lid., 52 S.W2d

140. 446 ( [cx. I )93). Whale we begin our analysis with the live pleadmgs, we may also consider

evidence relevant to the jurisdictional inquiry and must consider such evidence when it is necessary

to resolve the jurisdictional issue. /ft’cIona,i. 36k) S.W. 3d at I 50. “We construe the plainti irs

pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s intent.’’ Id. We

must urant the plea to the jurisdiction if the plainti ft’s pleadings affirmatively negate the existence

of jurisdiction or if the deftndant presents undisputed evidence I hat tiegates the existence of the

courts jurisdiction, hi. “If a claim is not within a court’s jurisdiction, and the impediment to

jurisdiction cannot be removed, then it must he dismissed.” tm. Motorists Ins. Co. e. Eodit’, 63

S.W.3d 0l, X05 cx. 2001).

01/ic ‘s Tort (Ianns

Reading (illie’s petition liberally, she asserted (I) claims I’or interti.rence with an existing

employment contract, intentional infliction of emotional distress, negligence, and negligent

misrepresentation against the PISD, (2) a claim fbr breach of tiduciary duty against the PISD’s

“Board ofTrustees,” (2) a claim for abuse of process against Otto and the PISD’s “l3oard Members,”

(4) a claim for fraud against the PISD, Griffin. and Richards, and (5) a claim for conspiracy against

the PISD, Richards, Otto, and Griffin. In their plea to the jurisdiction, appellees asserted the trial

court did not have subject matter jurisdiction over Ollie’s tort claims because the PISD retained

governmental immunity under the TTCA from all tort claims other than those arising from the use

of a motor vehicle. Appellees also asserted Ollie’s tort claims should be dismissed because her

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decti()fl to ,;iie hot h the l’ISI) and the individual del.mdanis barred any recovery by ()flie pursuant

10 section 101.060 of the civil practice and remedies code. The trial court did not state the ground

on which it granted appcllccs’ plea to the jurisdiction.

Governmental immunity protects a school district from lawsuits and liability fir money

damages. ?Itvsion (.onxot Indep. .Vch. Dist. v. Garcia, 253 S.W.3d 653, 655 rex. 2008); harris

Cnn’. v. Sykv, 136 S.W.3d 635,638 (l’ex. 2004). Accordingly, a governmental entity, including a

school district, cannot be sued without its consent Garcia, 253 S.W.3d at 655 (quoting Hosner v.

DeYowig, I Tex. 764, 769(1847)); Wilson v. Dallas Indep. 5th. Din., No. 05-I l-00468-CV, 2012

WL. 3264943, at ‘2 (TeL App.— Dallas Aug. 13, 2012, no pet.) (governmental immunity deprives

trial court of subject matter jurisdiction over governmental unit of State unless State consents to

suit). A governmental entity’s employee, acting within the course and scope ofhis employment, has

the same immunity as the governmental entity. City qIN. RidE land ililic v. Friend, 370 S.W.3d 369,

373 (Tex. 2012) (“The doctrine of governmental immunity protects the public flsc by prohibiting

suits against governmental units (or their employees acting within the scope of their employment)

except in narrow circumstances prescribed by statute.”); see also Bales v. L)allas Indep. Seh. DisL,

952 S.W.2d 543, 551 (Tn. App.—Dallas 1997, writ denied) (“Trustees and agents of a school

district while acting in an official capacity, enjoy the same governmental immunity as does the

school district”).

Whether a governmental entity is immune from tort liability for a particular claim depends

entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bosslev, 968 S.W.2d

339, 341 (Tex.. 1998); see Garcia, 253 S.W.3d at 655. The TTCA provides a limited waiver of

immunity for certain suits against governmental entities and caps recoverable damages. See TEx.

Civ. PRAC. & REM. CODE ANN. ft 101.021, 101.023 (West 2011); Garcia, 253 S.W.3d at 655. For

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a school district. he Ut A’s waiver ol immunity encompasses “only tort claims involving the use

or operation of motor vehicles.” GarcIa, 253 S.W.id at 656; see aIxoTEX. (iv. PRsc. & REM. CODE

ANN.* 101.051 (West 2Oll).

Appellees asserted in their plea to the jurisdiction that governmental immunity deprived the

trial court of subject matter jurisdiction over Ollie’s tort claims. Appellees specifically argued the

fl’CA waives governmental immunity for a school district only for tort claims arising from the use

or operation of a motor vehicle and, because Ollie’s claims did not involve the use or operation of

a motor vehicle, governmental immunity had not been waived by the TTCA. On appeal, Ollie does

not challenge the trial court’s dismissal of her tort claims because the claims did not relate to the use

ofa motor vehicle. By failing to challenge one possible ground of the trial court’s ruling, Ollie has

waived any error by the trial court in dismissing Ollie’s tort claims against the PISD. TF.x. R. APP.

P. 38.1(i); (‘li/ion v. Walters, 308 S.W.3d 94, 99 (Tex. App.—-Fort Worth 2010, pet. denied)

(appellants waived argument about having standing, a component ofsubject matterjurisdiction, by

failing to adequately brief argument on appeal); Sass Antonio State Hasp. K (Juerrero, No. 04-04-

00396-CV, 2004 WI.. 2236619, at 1 (Tex. App.—San Antonio Oct. 6. 2004, no pet) (mem. op.)

(trial court’s order denying plea to jurisdiction was affirmed because governmental entity failed to

attack on appeal all possible bases for trial court’s ruling).

On appeal, Ollic contends Griffin, Otto, and Richards waived their immunity by not acting

within the course and scope oftheir employment. The TfCA defines “scope ofemployment” as “the

pertbnnance for a governmental unit of the duties of an employee’s office or employment and

includes being in or about the performance ofa task lawfully assigned Wan employee by competent

authority.” TEx. Civ. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp. 2012). Ollie’s tort

claims are all premised on the individual appellees’ alleged actions, or thilure to act, in connection

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with Quit’s employment contract with the P1W. l’he complained about actions or inactions were

all generally related to the individual appellecs’ service to the VlSI) and (liii within the pertontiance

at’a task IawtIilly assigned to them. See City ofLancaster v. Chambers, 883 S.W.2d 650,658 (Tex.

I’)94) (lbr purposes of fl(’A, an oflicial acts within scope of her authority if she is discharging

duties gcnerallyassigned to her); Anderson v. llessman, 365 S.W.3d 119, 126 (rex. App.—4{ouston

[1st Dist. I 2011, no pet. )(“lfthe purpose of serving the employer’s business motivates the employee,

his acts are within the scope ofemployment”); see also Ballantyne K Champion Builders, Ii,a, 144

S.W.3d 417,425 (Thx. 2004) (members of city’s Board of Adjustment’s action were in discharge

of the duties generally assigned to them even though court had found members were incorrect in

revoking pennit). Because Ollie failed to allege any acts against the individual appellees that fall

outside the general scope of their employment, the individual appellees have not waived immunity.

City ofM Rkhland Kills, 370 S.W.3d at 373; Bates 952 S.W.2d at 551; see also flx. EDUC. CODE

ANN. § 22.0511(a) (West Supp. 2012) (except in circumstances in which professional employee of

school district uses excessive force in discipline of student or negligence resulting in bodily injury

to students, professional employee of school district is not personally liable for any act that is

incident to or within scope of duties of employee’s position of employment and that involves

exercise ofjudgment or discretion on part ofemployee)

4. We conclude the trial court did not err by

granting appellees’ plea to the jurisdiction as to Ollie’s tort claims.

Vile’s Breach of Contract and Wrongful Termination Claim

Appellees’ plea to the jurisdiction also asserted the trial court did not have subject matter

jurisdiction over Ollie’s breach ot’eontraet and wrongllil termination claims because Ollie failed to

Based on our resolition of tide issue, we need net address appeilees’ contention that OtiWs election to sue both the P1SD and the individual

appellecs barred OhIi&s cbims against appellees. See TEL it An. P. 47.1

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cx I inst her administrative remedies. ( )llie admits she did not tile a erievance under the l ISD’s

internal gne ime hut el,ums she did not i eceive notice ot her termination Is required by

chapter 2 1 of’ the education code, Ollie argues that, because she did not receive the required notice,

she was deprived ot iii opportunity to nUt tie the 1>150’s gnevance process.

As noted by Scott in the ItiA’s Commissioner’s Decision, Ollie is not claiming her contract

was tenninated by the settlement areeinent. Rather, she claims her contract is still in etThct and is

complaining the P151) has refused to allow her return to work and refused to pay her atler November

28, 2() I 0.Ac cordingly. the procedures set out in chapter 2 I of the education code (10 not apply to

Ullie’s claims. Other than certain listed exceptions, the P150 grievance policy applies to “all

employee complaints.” None ot the exceptions apply to the claims asserted by Ollie in this lawsuit.

We agree with the l’E\ that Ollie could have availed herself of’ the PISI)’s grievance process “to

bring betbre the board of trustees the claim that her contract was still in effect when the

administration held the contract had been terminated by agreement.”

We, theretbre, must determine whether Ollie was required to exhatist her administrative

remedies prior to tiling suit. Generally, il’an agency has exclusive jurisdiction, a party must exhaust

all administrative remedies before seeking judicial review of the agency’s action. Suborn 0/Am.,

1,ic. v. David kL)avicI Nissan. inc., 84 S.W.3d 2 12, 221 (Tex. 2002); Main I? ehab. & Diagiiostic

Ctr., LLC v. Liberty Mat. Ins. Co., No. 05-1 l-00189-CV, 2012 WL 2890413, at *2 (Tex.

App.-——l)allas July 13, 2012, no pet.). Until the claimant has exhausted applicable administrative

remedies, the trial court lacks subject matter jurisdiction and must dismiss the claims within the

Under the education code, a teacher can, under certain circumstances, resign from an employment contract or the school district can teinate

an employment contract or good cause, Thx. Enuc. CoDF. ANN. t( 21.20. 2 21 l(a)( 1) (West 2006). Ifa teacher receives notice

of a proposed

decision to terminate hc teacher’s continuing contract, the teacher can request a hearing pursuant to subchapter F of the education code,

Id.

21.251(a) West 2006(

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excl lll\ C isdict lOll. itIirii I Inc.. X4 SW id at 2 I 1(1111 /‘Iii’. / )iugnosil:

( ir. /,L 2(1 2 WI, 2S)04 13, at *2 “Requiring exhaustion ot admmistrative remedies is not meant

to deprive ,in ierieved party of any legal rwiits. It is meant, rather, to provide an orderly procedure

by which aggrieved parties may entbree those rights.” Yv/eta Indep Sch L)ist, v. (iriego, 170

SW d 7J2, Jo)5 ( Fex App. II Paso 2005, pet. denied).

lexas requires an aggrieved party to exhaust all remedies provided under the applicable

administrative scheme it the claim (1) concerns the administration ol school laws, and (2) involves

qucstons of fact M1S5U)1i ltid(’[). Sc/i. 1)1st. L)iserens. 144 Tex. I 07, 1 II 1 88 S.W2d 56S, 570

,

I 945); fr’arran e Lanutillo Indep Sc/i, DisL, No. OS— I 0’00259’CV, 2012 WL 2127727, at

*9 (Tex,

App.— El Paso June I 3. 2014. pet, tiled). Ihe PISD’s grievance process consists of tur levels. An

employee must tile a compliant with the appropriate administrator within tifteen days ot the date the

employee tirsI knew, or with reasonable diligence should have known, of the decision or action

giving rise to a complaint. It’ the employee does not receive the requested re1ief the employee can

appeal the decision to the executive director of human resources, then to the superintendent, and

tinally to the hoard of trustees. After exhausting the PISI)’s grievance process, the employee must

appeal the decision of the board of trustees to the Commissioner of Education. See Nairn v. Killeen

Inclep. Sc/i. JEst., 366 S.W.3d 229, 241—42 (Tex. App.——E1 Paso 2012. no pet.). The Texas

Commissioner of Education has exclusivejurisdiction over actions or decisions of’any school district

board of trustees that violate a provision of a written employment contract between the school

district and a school district employee if a violation causes or would cause monetary harm to the

employee. Tix, E[)UC. CODE ANN. § 7.057(a)(2)(B)(West Supp. 2012); Larsen v. Santa Fe Indep.

Sc/i. Dist.. 296 SAV.3d uS, 128 (Tex. App.—Houston [14th Dist.j 2009, pet. denied). Until the

employee has exhausted her administrative remedies, she may not bring an independent breach of

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contract action. Vain,, .6 SWd at 241 42.

t is imdispiitcd the 19S1) has an internal gncv;ince process that applies to ;ihI employee

complailits other than certain listed exceptions. Scott, the ( oininissioner ot 1:ducation, determined

the P151 )‘s grievance process applied to ( )l lie’s claims, none ot the exceptions to the grievance

process applied to Ohlie’s claims, and ()hhie titiled to exhaust her administrative remedies.°

It is

undisputed (JIbe Iuled to tile a grievance regarding the alleged violation of her emplo

yment

contract. l3ecausc ( )lhie tiilcd to exhaust the applicable administrative remedies, the trial court

did

not err by granting the plea to the jurisdiction with respect to the breach of contract and wrongful

termination claims.

We resolve Olhie’s third issue against her.

Sanctions

In her tirst issue, Ohlie argues the trial court abused its discretion by granting appelle

es’

motion for sanctions. Appehlees moved for sanctions under rule olcivil procedure I 3,

chapter 9 and

10 of the civil practice and remedies code, and section I I 1 61 of the education code.

We review the trial court’s award of sanctions for an abuse of discretion. Low v. henry,

22 1

S.W.3d 609, 614 (Tex, 2007) (review imposition of sanctions under either chapter 10 of the civil

practice and remedies code or rule of civil procedure 13 for an abuse of discretion); Kessli

ng v.

Friemhvwood indep. Se/i. Dist., 302 S.W.3d 373, 37 (Tex. App.—[louston [14th Dist.j

2009, pet.

denied> (review award of attorney’s fi7es tinder section 11.161 of the education code for abuse

of

discretion). “The test foran abuse of discretion is not whether, in the opinion of the reviewing

court,

the facts present an appropriate case for the trial court’s action, but ‘whether the court acted withou

t

OlIte dtd not appeal the decision of the lEA. Any appeal of the deciston was required to he

0 lcd to a dtstrtct coti m Travis County. texas.

ccc Tox. Entu. (oDr ANN. 7.057(d); N. E. hulcp.Sch 01st. t Kcth’t. 277 S.W.3d 342. 344 4)

hex. ApP. San Antonio 2005. no pet.) (only

Fravis County dtstnct coolS had urisd jet jolt over appeal oh FL\ dcc isioti purstiant

to section 7 057 of the education code).

14—

rct)rence In any guiding rules and principles.’” Cite v. (‘ummings, 134 S.W.3d 835,

838—39 (Tex.

2004) (quoting Downer v. Aquamarine Operator.t tnt, 701 S.W.2d 238,24142

(Tex. l985fl. The

trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Downer, 701 S.W.2d

at 242.

tinder section 11.161 of the education code, a trial court may award costs and reason

able

attorney’s fees in a civil suit brought under state law against an independent school

district or an

officer of an independent school district acting under color of office if the court

Linda the suit is

frivolous, unreasonable, and without foundation and the suit is dismissed or judgm

ent is for the

dekndant fix. Ecuc. CODE ANN. § I 1.161 (West 2006). In this case, the record

shows Ollie was

aware the district court had ruled the settlement agreement supcrceded the employment

contract and

that Ollie had thiled to establish her defense of mutual mistake. Ollie also knew

the TEA had

dismissed her complaint alleging the PISD had breached the employment contrac

t because the

complaint was subject to the PISD’s internal grievance procedure and Ollie failed to

exhaust her

administrative remedies. All arguments made by OWe in this case were asserted in

the district court

and in the complaint tiled with the TEA. Further, the P1SD specifically notified Ollie

in response

to her demand letter that her claims were barred and it would seek to recover its attorne

y’s fees if

Ollie proceeded in filing this suit The trial court found that, prior to filing suit, Ollie

had specific

knowledge ofthe legal bars to her claims and that this lawsuit was, therefore, frivolous,

groundless,

and/or brought for an improper purpose. The trial court also dismissed Ollie’s claims

against

appellees.

We conclude the trial court did not abuse its discretion by awarding the PISD attorne

y’s fees

pursuant to section 11.161 ofthe education code. SeeLoclflerv. Lytleindep. Sch. DisL,2

1l S.W.3d

331, 350 (‘rex. App.—San Antonio 2006, pet. denied) (op. on reh’g). We, therefo

re, need not

—15-

consider whether anctioiis were appropriate under chapters 9 and 10 ol the

civil practice and

remedies code or nile of civil procedure I). ftx. It. API’. I’. 47.1. We resolve

flue’s tirst issue

against her.

Jurisdiction of Federal District Court

In her second issue, flue asserts the district court did not have subject matter

or personal

jurisdiction to detennine whether the settlement agreement supcrccded (Mile’s emplo

yment contract.

Ollie specifically argues her term contract is governed by subchapter B of the

education code and,

therefore, lodged under State law and not under the power, authority nor jurisdi

ction of a U.S.

Federal District Judge.”

The trial court granted appellees’ plea to the jurisdiction as to Ollie’s tort claims

based on

governmental immunity and as to Ollie’s breach of contract claims based on

Ollie’s Ibilure to

exhaust administrative remedies. Whether the district court properly exercised

jurisdiction over a

settlement agreement governing Ollie’s Title VII claims does not impact this

Court’s analysis of

whether the trial court properly determined it did not have subject matter jurisdi

ction over Ollie’s

claims in this case. Consequently, we need not address this issue. See TEx. It.

App. P. 47.1 (“The

court of appeals must hand down a written opinion that. . . addresses every issue raised and

necessary to final disposition of the appeal.”); Williams v. Nexplore Corp., No.

05-09-00621-CV,

2010 WL 4945364, at *2, 3 (Tex. App.—Dallas Dec. 7, 2010, pet. denied) (mem.

op.) (appellate

court need not address whether thai court erred by denying motion for new

trial because

determination trial court lacked personaljurisdiction over defrndant was dispositive

ofappeal); Ta.

Dep ‘t qf Pub. Safety t’. Jenkins, 262 S.W.3d 811, 813 (Tex. App.—Eastland 2008,

no pet.).

Jurisdiction of Texas CommissIoner of Education

In her brief, Ollie lists, as a fourth issue, whether, under Texas law, “the Commissione

r of

-16-

I.duitkui II td pocr and aiitl uitv in I )lliesj (

iiivcsiwaie ninpLiint .n!aiilst I the PlSl.)’I

violations ol lexas School and state laws and under state and 135. t onstitutional law” ( )llie

tailed to uhstantively address this issue in her brief.

:\ fl appellate brief “must contain a clear and concise argument br the contentions made, with

appropriate citations to authorities and to the record” Tix, R. APP. P. 38. 1(1). Appellate courts must

construe the lexas Rules ot i\ppellate Procedure reasonably, yet liberally, so that the right to appeal

s not lost 1w nuposmg requirements not absolutely necessary to effect the purpose of a rule.

Repith/ic Underwriters Ins, C’o. v, MexJx, me,, 150 SW3d 423,427 (Tex. 2004); see l’ux. R. Apr.

P.38,9. I lowever. an issue on appeal that is not supported by argument or citation to legal authority

presents nothing for (lie court to review. See 1redo,iia ,tute Bank v. Ge,,. ilin. Li/i’ Ins. Co.. 881

S.W.2d 279, 284 tFex. 1994); Birnhaum v. Law 0/flees ofG. David IVest/ull, 120 S.W.3d 470,477

([cx. App. - l.)allas 2003, pet. denied). Accordingly, Ollie has waived any argument the lEA had

jurisdiction to investigate her complaint, See FFx. R. APP. P. 38. 1(i); Lundv v. Masson, 260 S.W.3d

482, 503 (Tex. App.—l louston I 1.4th Dist. 2008, pet. denied) (concluding that appellant failed to

provide argument or cite authority br contention on appeal and appellate court was “not required

to do the job of the advocate”). We resolve Ollie’s fourth issue against her.

We affirm the trial court’s judgment.

77

ROBERT M. FILLMORE

JUSTICE

I 20077F.P05

—17—

(!iiirt

.Fift1! Oitrict üí xai at Jat1a

JUDGMENT

I )R( )iI I’i’ 0111 l. Appellant Appeal trom the 2 9th Judicial District

( ourt ot ( ol in County, lexas ( ir.Ct. No.

No. ()5 I 200O77CV 2194)441 l20I I)

)pmioii deliVeie(I by .1 iislice lii linoic,

PLANt) IN DEPl.NDLNT XCI JOOL Justices Moseley and Myers participating.

DISTRICT, lAMIRA ;RIIFIN,

Dot. JOLAS OTTO, AND lAMMY

R ICI IA RDS, í\ppeilees

In accordance with this Court’s opinion ol this date, the judgment of the

trial court is

AFFIIMEI) It s ()RD1I{EI) that appellees Piano Independent Schoo

l District, Tarnira

( ritiin, 1)ouglas ( )tto, and Fammy Richards recover their costs ot this appeal

horn appellant

Dorothy (>11 ic.

Judgment entered October 24, 2012.

RC)F3LRT rvl. F1LLv1ORE

JUSTICE