El Paso County v. Juana M. Avila

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

COUNTY OF EL PASO, § No. 08-23-00173-CV

Appellant, § Appeal from the

v. § 448th Judicial District Court

JUANA M. AVILA, § of El Paso County, Texas

Appellee. § (TC# 2015DCV1531)

MEMORANDUM OPINION

The County of El Paso (the County) appeals an order denying its plea to the jurisdiction.

Appellee Juana M. Avila sued the County alleging it had breached a settlement agreement it

reached with her following the settlement of an employment-related lawsuit from which the

County was not immune. In its sole issue on appeal, the County asserts Avila failed to meet her

evidentiary burden of showing she fulfilled all conditions precedent necessary to trigger a breach

by the County. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Avila began employment with the County in 1999 as a cashier at the County Clerk’s Office.

Avila remained in that position until 2012 when she was terminated. Following her termination,

Avila filed an original petition against the County for violations of the Family & Medical Leave Act of 1993 (FMLA). The case was removed to federal court and set for a jury trial. On September

19, 2013, the County and Avila entered into a Settlement Agreement and Release of All Claims

(the Settlement Agreement), which compromised and settled the pending wrongful termination

lawsuit.

Pursuant to the Settlement Agreement, Avila agreed to settle her entire claim for the

aggregate sum of $65,000. Among other terms and conditions, the County agreed to reinstate Avila

“within a reasonable time to an available position of employment with the County subject to her

approval and the approval of the official or department head overseeing the job selected.” In

seeking reinstatement, the Settlement Agreement required Avila to be qualified for the available

position and imposed on her the responsibility to seek employment with the County. Upon

reinstatement, Avila would receive 420.14 hours of sick leave as additional consideration subject

to certain restrictions. In exchange, Avila acknowledged she “hereby releases and forever

discharges” the County “for any and all damages stemming from the above-mentioned incident.”

Following settlement, the parties filed a Joint Stipulation of Dismissal requesting the court

dismiss the pending case. However, the stipulation provided that the court would have and retain

supplemental or ancillary jurisdiction, or both, for purposes of enforcing the settlement agreement

between the parties. On September 26, 2013, the federal district court entered an order dismissing

the case.

On May 6, 2015, Avila filed suit against the County asserting the County breached the

Settlement Agreement by failing to reinstate her to an available position. Avila requested damages

and attorney’s fees. Avila further alleged that all conditions precedent to the filing of the action

have been fulfilled.

2 In October 2019, the County filed its plea to the jurisdiction asserting Avila failed to plead

sufficient jurisdictional facts to establish a waiver of immunity. The County asserted it had fulfilled

every provision of the Settlement Agreement showing that Avila was reinstated on October 10,

2017, and that she received the precedent payment. The County attached as evidence to its plea a

copy of the Settlement Agreement, Avila’s new hire letter, and an excerpt from Avila’s deposition.

In response to the plea, Avila asserted the County was never immune from the underlying

claims of the Settlement Agreement and, therefore, it could not create immunity by contracting

with her to release her claims. Avila attached to her response her own affidavit where she averred

that she had applied for rehire with the County by applying 17 times to publicly posted positions,

yet she was not even given interviews. 1 Further, she attested to her belief that the amount of time

that passed from when she applied and when she was ultimately re-hired was not reasonable. In

addition to her own affidavit, Avila attached to her response the full deposition transcripts of

herself and two other employees with the County.

Following a hearing on the plea, the trial court issued an order denying the County’s plea

to the jurisdiction. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(8). In a single issue on appeal, the County asserts the trial court erred in denying the

plea to the jurisdiction.

STANDARD OF REVIEW A plea to the jurisdiction is a challenge to the subject matter jurisdiction of the court hearing

the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A court cannot decide

a case in the absence of subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

1 From produced discovery, Avila showed she applied for positions with the County an additional 12 times.

3 S.W.2d 440, 443–44 (Tex. 1993). As subject matter jurisdiction will not be presumed, the plaintiff

has the burden of pleading facts to establish its existence. Id. at 443–44, 446. “Whether a pleader

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a

question of law reviewed de novo. Likewise, whether undisputed evidence of jurisdictional facts

establishes a trial court’s jurisdiction is also a question of law.” Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We look only to the plaintiff’s pleadings and the

evidence pertinent to the jurisdictional inquiry while eschewing examination of the merits of the

case. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The court of appeals credits

as true all evidence favoring the nonmovant and draws all reasonable inferences and resolves any

doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228.

Texas counties enjoy governmental immunity from suit which, to the extent it applies,

deprives a court of its subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004). “The party suing the governmental entity must establish the state’s consent, which

may be alleged either by reference to a statute or to express legislative permission.” City of Dallas

v. Albert, 354 S.W.3d 368, 373 (Tex. 2011).

ANALYSIS

In its sole issue, the County asserts the trial court erred in denying its plea to the jurisdiction

because Avila failed to establish a valid waiver of immunity. The County asserts Avila failed to

sufficiently plead any cause of action that pierces the County’s immunity. Furthermore, the County

contends evidence shows, as a matter of law, the County fulfilled every obligation it had under the

Settlement Agreement and did not breach that agreement. In opposing, Avila asserts she

sufficiently plead a waiver of immunity because, by the County entering into the Settlement

4 Agreement, it agreed to settle classes of claims from which it was not immune, and it cannot now

claim immunity from suit in an action alleging a breach of the settlement agreement.

Avila argues the Supreme Court of Texas’s decision in Lawson is controlling. See Texas A

& M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex. 2002) (plurality opinion). In Lawson,

a former employee sued a state university alleging the university breached a settlement agreement

it had entered with the employee to settle his wrongful termination lawsuit. Id. at 518–19.

Lawson’s original suit asserted the university violated the Whistleblower Act after it terminated

his employment. Id. at 518. Lawson and the university subsequently reached a settlement

agreement where one of the terms obligated the university to confirm to potential employers that

he had been employed with the university as an “assistant professor.” Id. at 519. Lawson alleged

the university breached the settlement agreement by telling a potential employer that Lawson had

been an “instructor,” and further refused to elaborate on what was meant by that designation. Id.

In considering the university’s plea to the jurisdiction based on immunity, the Texas Supreme

Court held that Lawson had been entitled to sue the university for violating the statute prior to

entering into the settlement agreement. Id. at 521. Explaining how the waiver of immunity

extended from Lawson’s whistleblower claim to his later breach of settlement claim, the Supreme

Court stated, “when a governmental entity is exposed to suit because of a waiver of immunity, it

cannot nullify that waiver by settling the claim with an agreement on which it cannot be sued.” Id.

The Court added, “[o]nce the Legislature has decided to waive immunity for a class of claims, the

inclusion of settlements within the waiver is consistent with that decision.” Id. at 522; see also

Hughes v. Tom Green County, 573 S.W.3d 212, 221 (Tex. 2019) (reaffirming Lawson stating,

“Lawson provides that a governmental entity cannot create immunity for itself by settling a claim

5 for which it lacks immunity only to assert immunity from suit in a subsequent action to enforce

the government’s agreement”).

Avila contends this case meets the standard set by Lawson and the County cannot “nullify

that waiver by settling the claim with an agreement on which it cannot be sued.” Lawson, 87

S.W.3d at 521–22. The County does not contest that it was not immune from Avila’s original suit

for wrongful termination and violation of FMLA. Moreover, the County acknowledges that it

would not be immune from a suit for breach of the settlement agreement which stems from

underlying claims it was not immune. Rather, the County’s complaint is that it did not breach the

Settlement Agreement with Avila, as a matter of law, because it completed all it was required to

do after Avila completed all her conditions precedent. For this reason, it asserts that Avila failed

to plead a cause of action waiving its immunity.

Only a few years ago, however, this Court rejected the County’s same argument, which

was accompanied by similar background facts. See County of El Paso v. Mijares, 630 S.W.3d 169,

171 (Tex. App.—El Paso 2020, pet. denied). In Mijares, the case concerned two former employees

of the County who filed suit against the County in 2012 for violations of the Fair Labor Standards

Act and retaliation for filing complaints. Id. Like this case, the County did not contest that it was

not immune from the asserted claims and entered into a settlement agreement with the two

plaintiffs. Id. The settlement agreement called for monetary payments to each plaintiff. A specific

contract term also provided that each “will be re-hired to a position of employment with the County

subject to [plaintiff’s] approval and the approval of the official or department head overseeing the

job selected.” Id. In 2016, the Mijares plaintiffs filed suit against the County asserting breach of

the settlement agreement among other claims. Id. Plaintiffs’ petition alleged all conditions

precedent were fulfilled and that they applied for vacant positions which they were qualified for

6 with the County, but they were not rehired. Id. In responding, the County filed a plea to the

jurisdiction asserting it owed no unconditional contractual obligation to rehire either plaintiff. Id.

at 172. After the trial court denied the County’s plea, we affirmed the ruling on appeal. Id.

This Court held that “the waiver of immunity in this dispute was established before this

suit was ever filed.” Id. at 174 (citing Lawson, 87 S.W.3d at 521 (“[W]hen a governmental entity

is exposed to suit because of a waiver of immunity, it cannot nullify that waiver by settling the

claim with an agreement on which it cannot be sued.”)). Because the County conceded its

immunity had been waived as to the plaintiffs’ original employment-related claims, we concluded

the same waiver of immunity carried forward to the subsequent claims of breach of settlement

agreement. Id. Furthermore, although the County’s arguments relied on a proper interpretation of

the settlement agreements and whether there existed an unconditional obligation to rehire

plaintiffs, we reasoned that “[i]mmunity from suit [did] not turn on the validity of the settlement

agreement [that was] sued on.” Id. (quoting Lawson, 87 S.W.3d at 523). As Lawson had explained,

“[o]nce the Legislature has decided to waive immunity for a class of claims, the inclusion of

settlements within the waiver is consistent with that decision.” Lawson, 87 S.W. 3d at 522.

Here, the County attempts to distinguish our holding in Mijares by pointing out it had not

rehired either plaintiff of the case. But here, it contends it “promptly reinstated” Avila. The County

argues Avila confuses conditions precedent with conditions subsequent contending that Avila’s

assertion that she was not reinstated within a reasonable time is an argument that “ignores the

conditions precedent of approval of an official or department head overseeing the job selected and

that she must be qualified for the position.” The County asserts that because the Settlement

Agreement is “plain on its face” as to this provision, that we must interpret this dispute as a matter

of law. We disagree.

7 Similar to Mijares, Avila sufficiently pleaded that all conditions precedent were fulfilled.

Mijares, 630 S.W. 3d at 173 (citing TEX. R. CIV. P. 54). Moreover, like in Mijares, the County’s

argument similarly depends on the County’s contentions about the proper interpretation of the

Settlement Agreement. Although the County’s argument urges that its obligation to rehire Avila

was not triggered until she completed all her conditions precedent, and thus it had no unconditional

obligation to rehire, this argument still “depend[s] heavily on [the County’s] contentions about the

proper interpretation of the settlement agreements.” Id. at 174. Responding, Avila contends the

distinction that she was eventually reinstated is relevant to the extent of her damages, but it is not

relevant to the jurisdictional inquiry of this case. Consistent with Mijares, we agree with Avila.

We conclude the County’s immunity has been waived with respect to Avila’s pleaded claim

for breach of the settlement agreement. To the extent there remains a dispute over the merits of

her claim and the extent of damages, if any, we express no opinion as those issues exceed the scope

of our jurisdictional inquiry.

We overrule the County’s sole issue.

CONCLUSION

We affirm the trial court’s denial of the County’s plea to the jurisdiction.

GINA M. PALAFOX, Justice

March 27, 2024

Before Alley, C.J., Palafox and Soto, JJ.