REVERSED and REMANDED; Opinion Filed May 1, 2013
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01178-CV
NATALIE L. HOLMES, Appellant V. SOUTHERN METHODIST UNIVERSITY, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. 10-11311-M
MEMORANDUM OPINION
Before Justices Francis, Lang, and Evans Opinion by Justice Lang
Natalie L. Holmes (“Holmes”) filed suit against Southern Methodist University (“SMU”)
for breach of contract, fraud, and violations of the Texas Deceptive Trade Practices Act. SMU
filed a motion to dismiss for lack of subject matter jurisdiction and argued the claim was not ripe
because Holmes failed to exhaust all administrative appeals. The trial court granted SMU’s
motion and dismissed the suit for lack of subject matter jurisdiction.
In her first issue, Holmes argues the trial court erred by granting SMU’s plea to the
jurisdiction prior to compelling or conducting any discovery. In her second, third, fourth, fifth,
and sixth issues, Holmes contends the trial court erred by granting SMU’s plea to the jurisdiction
because SMU failed to provide a legal basis for requiring Holmes to exhaust administrative remedies prior to filing suit and failed to provide any evidence to prove there is no subject matter
jurisdiction. We conclude the trial court erred by granting SMU’s plea to the jurisdiction.
Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion.
TEX. R. APP. P. 47.4
I. FACTUAL & PROCEDURAL BACKGROUND
Holmes began her graduate studies at SMU in May 2003 in pursuit of a Master of Music
degree in Music Education. After completing all graduate course requirements in July 2004,
Holmes’s only remaining requirement for graduation was passing the Graduate Comprehensive
Exam (“GCE”). Holmes took the GCE in February 2005. When Holmes learned in March 2005
that she had failed the GCE and would not be awarded her graduate degree, she pursued
academic appeals of the results of her GCE. She challenged the grading as arbitrary and
capricious and objected to her Music History professor’s refusal to allow her to review her Music
History exam answers. SMU denied Holmes’s appeals and encouraged her to retake the GCE.
Holmes took the GCE a second time in February 2008 and received a failing score on the Music
History component. Holmes appealed the results of her 2008 GCE, challenging the questions as
“beyond the scope of [her] graduate coursework.”
In April 2009, SMU offered a “revised GCE” to Holmes to be administered by telephone
or over the internet. Holmes declined SMU’s offers of a revised GCE and continued to appeal
her 2008 GCE results. In August 2009, Holmes wrote a letter to SMU Provost Paul Ludden, in
which she “demand[ed] a satisfactory and timely resolution to this situation,” including award of
her degree and compensation for damages incurred. After receiving no response to her August
2009 letter, Holmes inquired in October 2009 regarding the status of her appeal and was
informed that her appeal had been referred to SMU’s Office of Legal Affairs.
2 Holmes claims she received no response from SMU’s Office of Legal Affairs. Then,
Holmes filed suit for breach of contract, fraud, and violations of the Texas Deceptive Trade
Practices Act in September 2010. After Holmes served SMU with her requests for discovery,
SMU filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction, in which SMU argued
that because Holmes “failed to complete the appeal process and receive a final determination
from SMU . . . [her] claims are not ripe and this Court lacks jurisdiction to hear them until [she]
has completed the appellate process at SMU.” Holmes then filed her Motion to Compel
Discovery.
On August 19, 2011, the trial court held a hearing on SMU’s motion to dismiss and
Holmes’s Motion to Compel Discovery. SMU argued Holmes had not exhausted her remedies at
SMU before filing suit. Holmes contended SMU failed to provide any evidence of SMU’s
academic administrative procedure and what particular remedy Holmes allegedly had not
exhausted. At the conclusion of the hearing, the trial court granted SMU’s motion to dismiss
without ruling on Holmes’s Motion to Compel Discovery. In six issues, Holmes appeals the trial
court’s decision to grant SMU’s plea to the jurisdiction.
II. STANDARD OF REVIEW & APPLICABLE LAW
A. Plea to the Jurisdiction
“A party may challenge the trial court’s subject matter jurisdiction by filing a plea to the
jurisdiction.” City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied)
(citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)).
“Whether the trial court has subject matter jurisdiction is a question of law, which we review de
novo.” Id. (citing Miranda, 133 S.W.3d at 226). “When the plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider the relevant evidence submitted by the parties when
3 it is necessary to resolve the jurisdictional issue.” Id. (citing Miranda, 133 S.W.3d at 227). “This
procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c).”
Id. (citing Miranda, 133 S.W.3d at 228). “The plaintiff has the burden to plead facts
affirmatively showing the trial court has subject matter jurisdiction.” Id. (citing Miranda, 133
S.W.3d at 226). The defendant then has the burden to assert and support its contention, with
evidence, that the trial court lacks subject matter jurisdiction. Id. (citing Miranda, 133 S.W.3d at
228). “If it does so, the plaintiff must raise a material fact issue regarding jurisdiction to survive
the plea to the jurisdiction.” Id. (citing Miranda, 133 S.W.3d at 228).
“In conducting our review, we construe the pleadings liberally in favor of the plaintiff
and look to the plaintiff’s intent.” Id. (citing Miranda, 133 S.W.3d at 226-27). “We consider the
pleadings and the evidence pertinent to the jurisdictional inquiry.” Id. at 102-03 (citing Miranda,
133 S.W.3d at 226-27; City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686
(Tex. App.—Dallas 2003, pet. denied)). “If the evidence creates a fact issue concerning
jurisdiction, the plea to the jurisdiction must be denied.” Id. at 103 (citing Miranda, 133 S.W.3d
at 227–28). “If the evidence is undisputed or fails to raise a fact issue concerning jurisdiction, the
trial court rules on the plea to the jurisdiction as a matter of law.” Id. (citing Miranda, 133
S.W.3d at 228). This standard “protect[s] the plaintiffs from having to ‘put on their case simply
to establish jurisdiction.’” Id. (quoting Miranda, 133 S.W.3d at 228).
“The trial court is allowed to conduct a hearing on a plea to the jurisdiction or motion to
dismiss for lack of jurisdiction in a manner similar to how it hears a summary judgment motion,
and may consider affidavits and other summary judgment-type evidence.” FKM P’ship Ltd. v.
Bd. of Regents of Univ. of Hous. Sys.,
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REVERSED and REMANDED; Opinion Filed May 1, 2013
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01178-CV
NATALIE L. HOLMES, Appellant V. SOUTHERN METHODIST UNIVERSITY, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. 10-11311-M
MEMORANDUM OPINION
Before Justices Francis, Lang, and Evans Opinion by Justice Lang
Natalie L. Holmes (“Holmes”) filed suit against Southern Methodist University (“SMU”)
for breach of contract, fraud, and violations of the Texas Deceptive Trade Practices Act. SMU
filed a motion to dismiss for lack of subject matter jurisdiction and argued the claim was not ripe
because Holmes failed to exhaust all administrative appeals. The trial court granted SMU’s
motion and dismissed the suit for lack of subject matter jurisdiction.
In her first issue, Holmes argues the trial court erred by granting SMU’s plea to the
jurisdiction prior to compelling or conducting any discovery. In her second, third, fourth, fifth,
and sixth issues, Holmes contends the trial court erred by granting SMU’s plea to the jurisdiction
because SMU failed to provide a legal basis for requiring Holmes to exhaust administrative remedies prior to filing suit and failed to provide any evidence to prove there is no subject matter
jurisdiction. We conclude the trial court erred by granting SMU’s plea to the jurisdiction.
Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion.
TEX. R. APP. P. 47.4
I. FACTUAL & PROCEDURAL BACKGROUND
Holmes began her graduate studies at SMU in May 2003 in pursuit of a Master of Music
degree in Music Education. After completing all graduate course requirements in July 2004,
Holmes’s only remaining requirement for graduation was passing the Graduate Comprehensive
Exam (“GCE”). Holmes took the GCE in February 2005. When Holmes learned in March 2005
that she had failed the GCE and would not be awarded her graduate degree, she pursued
academic appeals of the results of her GCE. She challenged the grading as arbitrary and
capricious and objected to her Music History professor’s refusal to allow her to review her Music
History exam answers. SMU denied Holmes’s appeals and encouraged her to retake the GCE.
Holmes took the GCE a second time in February 2008 and received a failing score on the Music
History component. Holmes appealed the results of her 2008 GCE, challenging the questions as
“beyond the scope of [her] graduate coursework.”
In April 2009, SMU offered a “revised GCE” to Holmes to be administered by telephone
or over the internet. Holmes declined SMU’s offers of a revised GCE and continued to appeal
her 2008 GCE results. In August 2009, Holmes wrote a letter to SMU Provost Paul Ludden, in
which she “demand[ed] a satisfactory and timely resolution to this situation,” including award of
her degree and compensation for damages incurred. After receiving no response to her August
2009 letter, Holmes inquired in October 2009 regarding the status of her appeal and was
informed that her appeal had been referred to SMU’s Office of Legal Affairs.
2 Holmes claims she received no response from SMU’s Office of Legal Affairs. Then,
Holmes filed suit for breach of contract, fraud, and violations of the Texas Deceptive Trade
Practices Act in September 2010. After Holmes served SMU with her requests for discovery,
SMU filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction, in which SMU argued
that because Holmes “failed to complete the appeal process and receive a final determination
from SMU . . . [her] claims are not ripe and this Court lacks jurisdiction to hear them until [she]
has completed the appellate process at SMU.” Holmes then filed her Motion to Compel
Discovery.
On August 19, 2011, the trial court held a hearing on SMU’s motion to dismiss and
Holmes’s Motion to Compel Discovery. SMU argued Holmes had not exhausted her remedies at
SMU before filing suit. Holmes contended SMU failed to provide any evidence of SMU’s
academic administrative procedure and what particular remedy Holmes allegedly had not
exhausted. At the conclusion of the hearing, the trial court granted SMU’s motion to dismiss
without ruling on Holmes’s Motion to Compel Discovery. In six issues, Holmes appeals the trial
court’s decision to grant SMU’s plea to the jurisdiction.
II. STANDARD OF REVIEW & APPLICABLE LAW
A. Plea to the Jurisdiction
“A party may challenge the trial court’s subject matter jurisdiction by filing a plea to the
jurisdiction.” City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied)
(citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)).
“Whether the trial court has subject matter jurisdiction is a question of law, which we review de
novo.” Id. (citing Miranda, 133 S.W.3d at 226). “When the plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider the relevant evidence submitted by the parties when
3 it is necessary to resolve the jurisdictional issue.” Id. (citing Miranda, 133 S.W.3d at 227). “This
procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c).”
Id. (citing Miranda, 133 S.W.3d at 228). “The plaintiff has the burden to plead facts
affirmatively showing the trial court has subject matter jurisdiction.” Id. (citing Miranda, 133
S.W.3d at 226). The defendant then has the burden to assert and support its contention, with
evidence, that the trial court lacks subject matter jurisdiction. Id. (citing Miranda, 133 S.W.3d at
228). “If it does so, the plaintiff must raise a material fact issue regarding jurisdiction to survive
the plea to the jurisdiction.” Id. (citing Miranda, 133 S.W.3d at 228).
“In conducting our review, we construe the pleadings liberally in favor of the plaintiff
and look to the plaintiff’s intent.” Id. (citing Miranda, 133 S.W.3d at 226-27). “We consider the
pleadings and the evidence pertinent to the jurisdictional inquiry.” Id. at 102-03 (citing Miranda,
133 S.W.3d at 226-27; City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686
(Tex. App.—Dallas 2003, pet. denied)). “If the evidence creates a fact issue concerning
jurisdiction, the plea to the jurisdiction must be denied.” Id. at 103 (citing Miranda, 133 S.W.3d
at 227–28). “If the evidence is undisputed or fails to raise a fact issue concerning jurisdiction, the
trial court rules on the plea to the jurisdiction as a matter of law.” Id. (citing Miranda, 133
S.W.3d at 228). This standard “protect[s] the plaintiffs from having to ‘put on their case simply
to establish jurisdiction.’” Id. (quoting Miranda, 133 S.W.3d at 228).
“The trial court is allowed to conduct a hearing on a plea to the jurisdiction or motion to
dismiss for lack of jurisdiction in a manner similar to how it hears a summary judgment motion,
and may consider affidavits and other summary judgment-type evidence.” FKM P’ship Ltd. v.
Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 628 (Tex. 2008) (citing Miranda, 133
S.W.3d at 227). “Pleadings are not competent summary judgment evidence, even if sworn or
4 verified.” Heirs of Del Real v. Eason, 374 S.W.3d 483, 487 (Tex. App.—Eastland 2012, no pet.)
(citing Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995);
Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.)). “Unverified
documents attached to pleadings are not proper summary judgment evidence.” Id. at 488 (citing
Rath v. State, 788 S.W.2d 48, 50 (Tex. App.—Corpus Christi 1990, writ denied)). “Documents
submitted as summary judgment proof must be sworn to or certified.” Id. (citing TEX. R. CIV. P.
166a(f); Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, writ denied)).
“Thus, unauthenticated or unsworn documents do not constitute competent summary judgment
evidence.” Id. (citing Kleven v. Tex. Dep’t of Criminal Justice–I.D., 69 S.W.3d 341, 345 (Tex.
App.—Texarkana 2002, no pet.); Llopa, Inc., 956 S.W.2d at 87).
B. Ripeness & Exhaustion of Administrative Remedies
“Ripeness is ‘a threshold issue that implicates subject matter jurisdiction . . . [and]
emphasizes the need for a concrete injury for a justiciable claim to be presented.’” Robinson v.
Parker, 353 S.W.3d 753, 755 (Tex. 2011) (quoting Patterson v. Planned Parenthood of Hous. &
Se. Tex., 971 S.W.2d 439, 442 (Tex. 1998)). In evaluating ripeness, an appellate court must
consider “whether, at the time a lawsuit is filed, the facts are sufficiently developed ‘so that an
injury has occurred or is likely to occur, rather than being contingent or remote.’” Id. (emphasis
in original) (quoting Patterson, 971 S.W.2d at 442) (citing Waco Indep. Sch. Dist. v. Gibson, 22
S.W.3d 849, 851-52 (Tex. 2000)).
“Generally, when an agency has exclusive jurisdiction over a dispute, a party is required
to exhaust all administrative remedies before seeking judicial review.” Liberty Ins. Corp. v.
Camero, 360 S.W.3d 620, 622-23 (Tex. App.—Dallas 2011, no pet.) (citing Suburu of Am., Inc.
v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002)). “And until a party exhausts all
5 administrative remedies, a trial court lacks subject matter jurisdiction to consider the merits of a
dispute.” Id. at 623 (citing Suburu, 84 S.W.3d at 221-22).
III. APPLICATION OF LAW TO FACTS
We address together Holmes’s second, third, fourth, fifth, and sixth issues, which she
summarizes as follows: the trial court erred by granting SMU’s plea to the jurisdiction because
SMU’s affirmative defense of failure to exhaust administrative remedies was supported by only
the arguments of SMU’s attorneys. Holmes contends SMU failed to offer any evidence to
establish the existence of any procedural requirements of its alleged appeal process or the
“prescribed administrative remedies” at SMU.
SMU responds “[t]he undisputed evidence presented by SMU to the trial court—that
Holmes has refused to re-take the Graduate Comprehensive Exam that is still being offered to
her—prevents the claim from being ripe and precludes subject matter jurisdiction.” According to
SMU, its “policy allows for three opportunities to take the GCE,” Holmes has taken the GCE
twice, and “SMU continues to offer Holmes the opportunity to take the GCE, which Holmes has
refused.” SMU asserts that “the trial court properly considered the affidavit [submitted by SMU],
along with the evidence submitted by Holmes, in considering SMU’s Motion to Dismiss.”
SMU’s motion to dismiss includes a section that it labeled “Background Facts,” which
generally recited some alleged historical facts as to Holmes’s failing the 2005 GCE, appealing
that result, retaking the GCE in 2008, failing that examination, and appealing that result. No
documents prescribing an administrative process and remedy that SMU alleges Holmes must
follow are attached. The sole attachment to the motion is a short affidavit of Samuel S. Holland,
who identified himself as the SMU Music Division Director. That affidavit states the following:
My name is Samuel S. Holland. I am Director of the Music Division at the Meadows School of Arts at Southern Methodist University, and I have personal
6 knowledge of the facts stated in this affidavit and they are true and correct. I am over the age of 18, have never been convicted of a crime, and I am competent to make this affidavit.
Natalie Holmes has refused to take the Graduate Comprehensive Exam, which is still being offered to her.
The motion to dismiss concludes with the statement, “Because of Plaintiff’s failure to exhaust
her administrative remedies, this Court is without jurisdiction to hear this matter. Therefore, the
Court should dismiss this lawsuit in its entirety.”
At the same time as it filed its motion to dismiss, SMU filed a motion for protective order
to stay Holmes’s discovery requests that sought, inter alia, copies of the documents setting forth
SMU’s administrative procedures applicable to her GCE examinations. According to the briefs
of the parties, no such documents were produced by SMU. At the hearing before the trial court
on the motion to dismiss, Holmes argued that although SMU had the burden to show the trial
court it does not have subject matter jurisdiction, SMU did not produce “one single piece of
evidence as to what the academic administrative procedure would be in this case.” SMU did not
directly contest that argument.
SMU has made arguments to the trial court and in the briefs before this court that Holmes
is subject to an administrative process and she has not exhausted the remedies provided for in
that administrative process. However, the only document SMU attached to its motion to dismiss,
the short and conclusory Holland affidavit, makes no showing to support its arguments. SMU has
not met its burden as described by Miranda and Heard to produce evidence supporting its
contention there is no jurisdiction, or in this case what administrative remedies Holmes has failed
to exhaust, or that because of her failure to exhaust all administrative remedies her case is not
ripe. See Miranda, 133 S.W.3d at 228; Heard, 252 S.W.3d at 102.
7 We conclude the trial court erred by granting SMU’s plea to the jurisdiction and sustain
Holmes’s second, third, fourth, fifth, and sixth issues.
Holmes’s second, third, fourth, fifth, and six issues are dispositive. We decide these
issues in Holmes’s favor. Accordingly, we do not reach Holmes’s first issue.
IV. CONCLUSION
We conclude the trial court erred when it dismissed Holmes’s suit based on a finding it
lacked subject matter jurisdiction. Accordingly, we reverse the trial court’s order of dismissal
and remand this case to the trial court for further proceedings.
/Douglas S. Lang/ DOUGLAS S. LANG 111178F.P05 JUSTICE
8 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
NATALIE L.HOLMES, Appellant On Appeal from the 298th Judicial District Court, Dallas County, Texas No. 05-11-01178-CV V. Trial Court Cause No. 10-11311-M. Opinion delivered by Justice Lang. Justices SOUTHERN METHODIST UNIVERSITY, Francis and Evans participating. Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. It is ORDERED that appellant NATALIE L. HOLMES recover her costs of this appeal from appellee SOUTHERN METHODIST UNIVERSITY.
Judgment entered this 1st day of May, 2013.
/Douglas S. Lang/ DOUGLAS S. LANG JUSTICE