Noris Rogers v. Houston Community College

Affirmed and Memorandum Opinion filed March 9, 2023.

In The

Fourteenth Court of Appeals

NO. 14-21-00557-CV

NORIS ROGERS, Appellant

V.

HOUSTON COMMUNITY COLLEGE, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 17-DCV-240191

MEMORANDUM OPINION

Appellant Noris Rogers appeals the trial court’s final judgment granting

summary judgment on appellee Houston Community College’s (HCC) motion. He

raises eight issues on appeal. We affirm.

This is the second appeal in this cause. Previously we reversed the trial

court’s June 2018 final judgment and remanded for further proceedings on

appellant’s breach of contract claim. Pertinent to the prior appeal, HCC filed a

plea to the jurisdiction arguing that it is immune from suit as a governmental

entity. Appellant alleged that he had a contract with HCC that HCC breached. We

concluded that HCC failed to meet their burden to establish a lack of jurisdiction

and remanded appellant’s breach of contract claim for further consideration and

proceedings.

A. Jurisdiction of the Trial Court

In his first issue, appellant contends the trial court lacked jurisdiction to

reconsider HCC’s arguments on remand because more than three years had passed

since the trial court rendered the June 2018 final judgment and, as a result, the trial

court lacked plenary power. However, as stated in our prior opinion and judgment,

we upheld a portion of the trial court’s judgment and reversed and remanded “for

further proceedings” that portion regarding the breach of contract issue. As a

result, the trial court regained jurisdiction and plenary power over the proceedings

because there was no longer a final judgment. See Tex. R. App. P. 43.2; see also

Brockie v. Webb, 331 S.W.3d 135, 137 (Tex. App.—Dallas 2010, no pet.) (“The

very nature of a remand for ‘proceedings consistent with this opinion’ anticipates

that the trial court will hold further proceedings regarding the issue that was

remanded.”). We overrule appellant’s first issue.

B. Res Judicata and Collateral Estoppel

In his second issue, appellant argues that the doctrines of res judicata and

collateral estoppel bar HCC’s arguments. This argument also appears to be based

on the assumption that because there was a “final judgment” that appellant

successfully appealed in part, that HCC was somehow barred from raising, and

providing additional evidence of, the arguments it made previously to establish

governmental immunity. However, there is no final judgment to support

appellant’s res judicata argument. Appellant further argues that HCC lost its

immunity argument in an “earlier suit.” There was, however, no earlier suit and

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HCC did not lose on this issue. Instead, HCC did not meet its burden and the issue

was remanded. Appellant fails to show a final judgment or second suit involving

the same parties and subject matter. Instead, appellant points to the prior judgment

that this court remanded. See Brockie, 331 S.W.3d at 137 (“This, in turn,

implicitly enables the trial court to allow the parties appropriate time to present

argument and evidence regarding the remanded issue, after which it renders a

judgment based on the evidence presented.”). We overrule appellant’s second

issue.

C. Admission of Evidence

In appellant’s third issue he argues that the trial court erred in admitting

certain evidence over his objection.1 Appellant makes multiple arguments

regarding the admissibility of the affidavits and other evidence submitted with

HCC’s summary judgment motion. We address each below.

First, appellant argues that one of the affidavits is not an “affidavit” at all

because it lacks the signatures of both the affiant and the authorized officer.

However, both signatures are electronically affixed to the affidavit. See Tex. Gov’t

Code § 406.101–.113. Appellant cites to no case law or statute to support his

argument that an electronic signature is “no signature.” See id. § 406.101(6)

(“‘Electronic signature’ means an electronic sound, symbol, or process attached to

or logically associated with an electronic document and executed or adopted by a

person with the intent to sign the document.”).

In appellant’s “Issues Presented” section of his appellate brief, he only presents one

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question to be resolved by this court: “Whether TRCP 193.6 bars [HCC’s] summary-judgment

evidence.” However, within the body of the brief there are three different subheadings arguing

points about the affidavits submitted by HCC in support of its motion for summary judgment.

We address these evidentiary issues together.

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Appellant raises the following objections to one or more of the affidavits

submitted to support HCC’s motion for summary judgment:

• The affiants lack personal knowledge;

• The affidavit is not readily controvertible;

• The affidavit contains inadmissible hearsay;

• The affiant is not the “official custodian of the minutes, books,

and records” of HCC under section 130.082(d) of the Texas

Education Code. See Tex. Educ. Code § 130.082(d). However,

this is an objection based on hearsay and that HCC failed to

meet the exception under Rule 803(6). See Tex. R. Evid.

803(6) (defining exceptions to the rule against hearsay);

• The affidavits are barred under Rule 193.6 of the Rules of Civil

Procedure; and

• The documents attached to an affidavit are “not HCC Board

Policy as [the affidavit] purports.”

Appellant also admits that he raised these objections to the trial court but

failed to obtain any ruling. See FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch.

Dist., 642 S.W.3d 829, 837 (Tex. 2022) (“[T]o complain on appeal about defects in

the form of summary judgment evidence, a party must both timely object and

secure a ruling from the trial court on the objection.”). As a prerequisite to

presenting a complaint for appellate review the record must demonstrate that the

trial court either expressly or implicitly ruled on the objection or refused to rule on

the objection and the complainant objected to that refusal. See Tex. R. App. P.

33.1(a); Trevino v. City of Pearland, 531 S.W.3d 290, 299–300 (Tex. App.—

Houston [14th Dist.] 2017, no pet.); see also Wells Solutions, Inc. v. Stafford, 32

S.W.3d 313, 317 (Tex. App.—San Antonio 2000, no pet.) (“[A] trial court’s ruling

on an objection to summary judgment evidence is not implicit in its ruling on the

motion for summary judgment; a ruling on the objection is simply ‘not capable of

being understood’ from the ruling on the motion for summary judgment.”).

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Because appellant did not obtain a ruling on his objections they are not

preserved. See Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d

723, 736 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc) (personal

knowledge); Seidner v. Citibank (S. Dakota) N.A., 201 S.W.3d 332, 335 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied) (hearsay); Blancett v. Lagniappe

Ventures, Inc., 177 S.W.3d 584, 589 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (affidavit not readily controverted); FieldTurf USA, Inc., 642 S.W.3d at 837;

Seidner, 201 S.W.3d at 335 (business records affidavit and exhibits attached

thereto); Trevino, 531 S.W.3d at 300 (Rule 193.6 of the Rules of Civil Procedure);

Ellen v. Brazos Cnty. Bail Bond Br., 127 S.W.3d 42, 46 (Tex. App.—Houston

[14th Dist.] 2003, no pet.) (improper authentication).2

We overrule appellant’s third issue.3

D. Summary Judgment

In appellant’s fourth and fifth issues, he contends that the trial court erred in

granting summary judgment and dismissing his claims against HCC. Appellant

contends that he entered into a “unilateral contract” with HCC and that because the

legislature has waived immunity as “to local governmental entities that entered into

contracts for goods and services” that the trial court has jurisdiction over his claim

against HCC.

2

In this case, an objection to the alleged improper authentication is required because the

affidavit provides the foundation for authenticating the records attached thereto. See Ellen, 127

S.W.3d at 46. Thus, there is not a “complete absence of authentication.” See In Estate of

Guerrero, 465 S.W.3d 693, 706–07 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en

banc) (noting complete lack of authentication is a defect of substance that does not require an

objection or ruling from the trial court and may be raised for the first time on appeal).

3

Appellant requests that this court take judicial notice of HCC’s current board policies.

Even if we took judicial notice of such policies, it would not change our disposition on this issue.

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HCC argues that even if the documents submitted by appellant are a

“contract,” they do not meet all the requirements of the Government Code—

namely that the alleged contract is not properly executed on behalf of the local

government entity. Because the alleged contract is not properly executed, there is

no waiver of governmental immunity. HCC contends that it conclusively showed

that the alleged contract was not properly executed, and the trial court’s summary

judgment should be affirmed.

“We review an order granting summary judgment de novo, taking as true all

evidence favorable to the nonmovant and indulging every reasonable inference in

the nonmovant’s favor.” JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864

(Tex. 2021). “To be entitled to traditional summary judgment, the movant has the

burden to prove that no genuine issue of material fact exists and that the movant is

entitled to judgment as a matter of law.” Id. A traditional motion for summary

judgment can only be granted after the defendant establishes as a matter of law that

the trial court lacks subject-matter jurisdiction over the plaintiff’s claims. Woods,

388 S.W.3d 792. It is HCC’s burden of proving the trial court’s lack of

jurisdiction. See id.; see also Miranda, 133 S.W.3d at 228 (standard for

considering evidence in a plea to the jurisdiction mirrors that of a traditional

motion for summary judgment).

HCC is a local governmental entity as defined by section 271.151(3) of the

Local Government Code. See Tex. Local Gov’t Code § 271.151(3)(B). “The

authority to enter into contracts also may be dictated by various documents

adopted by a governmental entity for its own governance, such as city ordinances,

charters, by-laws, or resolutions.” Hous. Auth. of City of Dallas v. Killingsworth,

331 S.W.3d 806, 811 (Tex. App.—Dallas 2011, pet. denied).

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HCC argued and presented evidence that appellant did not have a contract

that was “executed on behalf of the local government entity” as required to waive

governmental immunity under section 271.151(2). See Tex. Gov’t Code §

271.151(2). Per HCC’s procedures:

All HCC employees who do no hold employment contracts authorized

by the Board are employed at-will and have no entitlement to

continued employment. At-will employees are hired by the

Chancellor or designee. At-will employees . . . may be released or

terminated at any time, for any reason or for no reason, but not for an

illegal reason.

The procedures further provide that the “use of these descriptions is not intended to

alter the at-will status of any employee.” HCC presented evidence of the lack of

any board action to “grant or delegate authority to award an employment contract

to [appellant].” The evidence further demonstrated that HCC has never

“recommended, awarded, or approved a written employment contract with HCC to

[appellant].” Thus, HCC presented evidence conclusively establishing a lack of

execution on its behalf pursuant to its policies, procedures, and authority. See

Houston Comm. Coll. Sys. v. HV BTW, LP, 589 S.W.3d 204, 213–14 (Tex. App.—

Houston [14th Dist.] 2019, no pet.) (holding where evidence showed HCC’s

representative had authority to sign contract per HCC’s policies and procedures,

there was a fact issue on whether the contract was properly executed). In response,

appellant has presented no evidence showing that the alleged contract was

“properly executed on behalf of” HCC or that his “at-will” status was altered in

accord with the policies and procedures of HCC.

Appellant instead contends that he had a unilateral contract with HCC.

However, the record does not support his contention. The record includes the

procedures and policies of HCC, as well as the documents appellant alleges

comprise his employment contract. The procedures clearly indicate that all

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contracts are at-will unless they are approved by the Board. HCC presented

evidence that the Board never approved the contract with appellant. Appellant

failed to present any evidence that his alleged contract was approved by the Board

and thus no longer considered at-will. See Seals v. City of Dallas, 249 S.W.3d 750,

757 (Tex. App.—Dallas 2008, no pet.) (concluding policies and procedures clearly

indicated that employment was at-will and there was no evidence showing

employment was anything but “at-will” to waive governmental immunity). As a

result, the trial court properly granted HCC’s motion for summary judgment.

Having overruled appellant’s dispositive issues on appeal, we affirm the

judgment of the trial court.

/s/ Ken Wise

Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

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