City of Houston v. Donald Clark--Appeal from 333rd District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00828-CV

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THE CITY OF HOUSTON, Appellant

v.

DONALD CLARK, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2000-20826

O P I N I O N

The City of Houston, appellant, appeals the summary judgment rendered in favor of Donald Clark, appellee. We reverse and remand for further proceedings.

BACKGROUND

Clark, an employee of the City of Houston Fire Department, was assigned to the Emergency Dispatch Center in early 1998. Clark informed an assistant fire chief, in writing, that he had a hearing defect and had particular problems with telephone conversations. However, his assignment was not changed.

On May 19, 1999, Clark received an emergency call regarding the shooting of a Houston Police Officer. According to the June 2, 1999 investigative report of the City s Office of Inspector General, Clark improperly recorded the address of the shooting and did not follow the proper procedure of verifying the cross street and having the police dispatcher repeat the street address numbers. These errors resulted in an unnecessary delay in the emergency response to the call.

On June 12, 1999, the mayor suspended Houston Fire Chief Lester Tyra for seven days in connection with this event. Tyra, by letter to the mayor, assigned two assistant fire chiefs to serve as acting fire chief during Tyra s absence. On June 16, Assistant Fire Chief Conneally, who was to serve as acting fire chief on June 16, 17, and 18, suspended Clark for 15 days. Clark appealed this suspension to a hearing examiner, who conducted a hearing on the matter and, at the request of Clark and the City, considered both the merits of the case and a motion to dismiss filed by Clark. The motion to dismiss asserted that the acting fire chief did not have the authority to suspend Clark because, under chapter 143 of the Local Government Code, only the head of the department had that authority. See Tex. Loc. Gov t Code Ann. 143.001-.363 (Vernon 1999 & Supp. 2002). Clark s motion to dismiss relied, in part, on a 1990 district court case in City of Houston v. Rivera, No. 90-045333, in the 190th District Court of Harris County. In Rivera, an assistant fire chief, as acting fire chief for two hours, suspended Rivera. Rivera appealed the suspension to an independent hearing examiner, who granted Rivera s motion to dismiss the suspension on the ground that the acting fire chief did not have the authority under chapter 143 to issue a suspension. The City appealed the arbitrator s decision, and the trial court granted Rivera s motion for summary judgment.

In this case, the hearing examiner ruled, on the merits, that Clark had violated the rules and regulations of the fire department, as stated in the letter of suspension, but granted Clark s motion to dismiss his suspension. The hearing examiner, in his written opinion, noted that, while he was not bound by the ruling of the Court(s) or that of other arbitrators, he found them instructive.

The City appealed the hearing examiner s decision to the district court. In its petition, the City alleged, Plaintiff asserts that Third Party Hearing Examiner Leroy Bartman both exceeded his jurisdiction and wrongfully applied the law in his ruling on Defendant s motion to dismiss. The City did not allege any other jurisdictional defects, nor did it allege that the decision was the result of fraud. In its prayer for relief, the City requested a judgment declaring that the Third Party Hearing Examiner exceeded his jurisdiction by granting Defendant s motion to dismiss . . . . The City also requested a declaration regarding whether an acting fire chief may issue a temporary suspension under chapter 143. //

Clark filed a motion for summary judgment in which he argued, as the sole ground for summary judgment, that the 1990 Rivera case collaterally estopped the City s claim that an acting fire chief had the authority to issue a valid suspension. The City filed a cross-motion for summary judgment in which it asserted, as grounds for summary judgment, that (1) the hearing examiner ignored the provisions of chapter 143 of the Local Government Code and improperly interpreted the term department head, (2) Rivera does not control the present case under the doctrine of stare decisis, (3) the hearing examiner had jurisdiction to decide the merits of the suspension, (4) the hearing examiner did not have jurisdiction to determine that the acting fire chief did not have the authority to issue a suspension, (5) only the City had the authority to determine who could act as the equivalent of the fire chief, (6) the hearing examiner did not have standing to compel the City to follow procedures it was not legally required to follow, and (7) the City enjoyed governmental immunity. The trial court granted Clark s motion and denied the City s motion, and the City appealed.

STANDARD OF REVIEW

A rule 166a(c) summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex. App. Houston [1st Dist.] 1994, writ denied). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Lawson, 888 S.W.2d at 33. We will take all evidence favorable to the nonmovant as true. Id. As movant, the defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff s causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App. Houston [1st Dist.] 1993, writ denied).

Generally, when we review cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001). However, in the present case, the City does not request a review of the trial court s denial of the City s motion for summary judgment.

DISCUSSION

The underlying issues of this case are governed by chapter 143 of the Local Government Code, which regulates civil service for municipal police and fire departments. See Tex. Loc. Gov t Code Ann. 143.001 .363. Under chapter 143, a firefighter may appeal a temporary suspension to the civil service commission. Id., 143.010 (Vernon 1999). The commission must determine if just cause exists for the suspension. Id., 143.118(a) (Vernon 1999). A firefighter may appeal the decision of the commission to the district court for a trial de novo. Id., 143.015(b) (Vernon 1999). A firefighter may elect to appeal to an independent hearing examiner instead of the commission. Id., 143.1016 (Vernon 1999). A hearing examiner has the same duties and powers as the commission. Id., 143.1016(f) (Vernon 1999). Unlike the commission s decision, the decision of the hearing examiner is final and binding on all parties. Id., 143.1016(c) (Vernon 1999). A district court may hear an appeal of a hearing examiner s award only on the grounds that (1) the arbitration panel was without jurisdiction, (2) the panel exceeded its jurisdiction, or (3) the order was procured by fraud, collusion, or other unlawful means. Id., 143.1016(j) (Vernon 1999).

Collateral Estoppel

In its first issue, the City contends that the district court improperly granted judgment to Clark because his motion did not articulate any legal theory that would entitle Clark to judgment as a matter of law. The City specifically argues, The doctrine of collateral estoppel did not in any manner bind the District [Court]. The City also argues that the opinion relied on was not based on facts similar to those in the present case.

To establish the defense of collateral estoppel, a party must show that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties were cast as adversaries in the first action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

Clark contends that collateral estoppel bars the claims asserted by the City because those claims were fully and fairly litigated in Rivera. To support his defense of collateral estoppel in the trial court, Clark attached, as summary judgment evidence, the City s petition in the Rivera case, Rivera s motion for summary judgment, and the order granting Rivera s motion. However, these documents establish that collateral estoppel does not apply to this case.

Rivera s motion for summary judgment asserted the following three grounds on which the judgment could have been granted: (1) the district court was without jurisdiction to consider the case, (2) the arbitrator had the power and authority to decide questions of law necessary to the rendition of an award, and (3) the assistant fire chief did not have the authority to issue the suspension. The order granting Rivera s motion did not state the basis on which the motion was granted.

There are important factual differences between Rivera and the present case. There is no indication in the pleadings in Rivera that the fire chief was under a temporary suspension, and it appears that the acting fire chief was in that position for only a few hours, as compared with seven days in this case. Therefore, the facts of the present case were not fully and fairly litigated in Rivera. In addition, because the judgment in Rivera does not inform us regarding which of the grounds formed the basis of the judgment, we cannot determine which facts were essential to the judgment in the Rivera case.

We conclude that collateral estoppel does not bar the City s claim in this case. Therefore, the trial court erred in granting Clark s motion for summary judgment. Accordingly, we sustain the City s first issue.

Jurisdiction

In its second issue, the City contends that the district court improperly granted judgment to Clark because the hearing examiner s decision found for the City on the merits, but then misapplied state law in order to avoid enforcement of his decision on the merits. Under this issue, the City asserts that the hearing examiner s decision can be reviewed by this Court if he exceeded his jurisdiction, citing section 143.1016(c).

The City misinterprets section 143.1016(c) and (j). Those sections authorize the district court to hear an appeal of a hearing examiner s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Tex. Loc. Gov t Code, 143.1016(j). In the district court, the City pleaded that the hearing examiner had exceeded his authority. However, the City argued in its motion for summary judgment that the hearing examiner had exceeded his authority by ruling incorrectly on the motion to dismiss. That is, on motion for summary judgment, the City argued that the hearing examiner made the wrong decision, not that he nad no power to make that decision.

Consistent with section 143.1016(j), the City may not challenge the correctness of the hearing examiner s decision. If the hearing examiner had jurisdiction to rule on the motion to dismiss, that ruling, whether right or wrong, is unassailable unless obtained by fraud or some other unlawful means. See id. Therefore, under 143.1016(j), the issue is not whether he ruled correctly, but whether he had jurisdiction to rule at all on the motion to dismiss. The City has not presented that issue either in the trial court or on appeal. // The City s second issue does not challenge the hearing examiner s jurisdiction.

We overrule the City s second issue.

Governmental Immunity

In its third issue, the City asserts that the district court improperly granted judgment to Clark because the City is entitled to governmental immunity. This argument is without merit. This entire proceeding was conducted pursuant to chapter 143 of the Local Government Code, which governs the civil service employment of police officers and firemen and provides for such matters as suspensions and appeals. See id., 143.001 .363. It was the City that availed itself of chapter 143 to appeal the hearing examiner s decision. The City is subject to chapter 143 and, in its brief, does not even attempt to reconcile its position on governmental immunity with that statute.

We overrule the City s third issue.

CONCLUSION

We reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Radack, and Keyes.

Do not publish. Tex. R. App. P. 47.