Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00097-CV
Brian MCENERY,
Appellant
v.
CITY OF SAN ANTONIO and Chief Charles N. Hood,
Appellees
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-06603
Honorable Cathleen M. Stryker, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 1, 2016
DISMISSED FOR WANT OF JURISDICTION
This is an appeal from a trial court’s order confirming an arbitration award that denied
appellant Brian McEnery’s grievance against the City of San Antonio (“the City”). On appeal,
McEnery argues the trial court erred in confirming the award because the arbitrator’s decision was
capricious and not supported by substantial evidence. Because this case no longer presents a live
controversy, we conclude the appeal is moot and dismiss it for want of jurisdiction.
04-15-00097-CV
BACKGROUND
After serving for approximately sixteen years as a firefighter for the City, McEnery was
promoted to the rank of captain in 2006. As captain, McEnery sometimes served as acting district
chief. In 2010, he started the promotional examination process for the rank of district chief. 1 The
process consisted of two parts: (1) a written examination; and (2) a practical examination,
commonly referred to as the assessment center portion, which itself is made up of three parts.
McEnery passed the written examination and two of the three parts of the assessment center
portion; however, he was not promoted to district chief.
McEnery filed a grievance, alleging the assessment center portion of the exam was not
given in accordance with Chapters 143 and 174 of the Texas Local Government Code (“the Code”)
and the collective bargaining agreement (“CBA”) in effect at that time. McEnery argued that as a
result, he did not receive a promotion to district chief and requested his results be set aside and a
new assessment center portion be conducted in accordance with Chapters 143 and 174 of the Code
and the CBA. Thereafter, McEnery’s grievance was arbitrated pursuant to the procedures of the
CBA. After a hearing, the arbitrator denied McEnery’s grievance, finding “there was no
convincing evidence or testimony that the test given was faulty or flawed or in any way contrary
to [Chapters] 143 and 174 of the TLGC [“the Code”].”
McEnery then filed suit against appellees, the City and Fire Chief Charles N. Hood
(collectively “the City”), ultimately seeking to vacate the arbitration award. In his live pleading,
McEnery challenged the arbitrator’s decision on the basis that it was capricious and not supported
by substantial evidence because the assessment center portion of the exam was not given in
1
The record reflects McEnery also went through the promotional exam process is 2009, but he was not promoted to
district chief at that time. As a result, he filed a grievance against the City, which was arbitrated and subsequently
denied. McEnery then filed a lawsuit in federal district court. That lawsuit ultimately resulted in summary judgment
in favor of the City.
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04-15-00097-CV
accordance with the Code or the CBA. McEnery requested the trial court order the City to allow
the firefighters who did not receive a promotion to retake the assessment center portion of the
exam, and thereafter promote those who would have received a promotion based on their new test
results. McEnery also requested an award of retroactive back pay for himself and the other
promoted firefighters. International Association of Firefighters Local 624 (“the Union”) filed a
plea in intervention, seeking to uphold the terms of the CBA and requesting the trial court deny
McEnery’s demand to allow the firefighters to retake the assessment center portion of the exam.
During the pendency of the suit, McEnery was promoted to district chief.
After a bench trial, the trial court rendered judgment denying all of McEnery’s requests for
relief and confirming the arbitration award. This appeal followed.
ANALYSIS
On appeal, McEnery contends the trial court erred in confirming the arbitration award
because the arbitrator’s decision was capricious and not supported by substantial evidence. In
response, the City argues the trial court did not err because the arbitrator’s decision was not
capricious and was supported by substantial evidence. The City also argues this court lacks
jurisdiction to consider this appeal because: (1) McEnery’s complaint is moot because he was
promoted to district chief during the pendency of this suit; and (2) McEnery’s notice of appeal was
untimely. We agree with the City that we lack jurisdiction over this appeal because it is moot.
The Mootness Doctrine – Applicable Law
We, as an appellate court, are prohibited from deciding moot controversies. Nat’l
Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). The mootness doctrine prevents
courts from rendering advisory opinions by requiring courts to decide issues that present “live”
controversies at the time of the decision. In re Estate of Hemsley, 460 S.W.3d 629, 638 (Tex.
App.—El Paso 2014, pet. denied); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex.
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04-15-00097-CV
App.—Dallas 2007, no pet.). According to the Texas Supreme Court, “[a] case becomes moot if,
since the time of filing, there has ceased to exist a justiciable controversy between the parties —
that is, if the issues presented are no longer ‘live,’ or if the parties lack a legally cognizable interest
in the outcome.” Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012); see also
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000). Stated differently, a case is moot when a
court’s action on the matter would not have any practical legal effect on the controversy. City of
Farmers Branch, 235 S.W.3d at 469.
The Mootness Doctrine – Application
Here, McEnery argues the arbitrator’s decision was capricious and not supported by
substantial evidence because the City did not give the assessment center portion of the exam in
accordance with Chapters 143 and 174 of the Code and the CBA. As a result, he asked the trial
court to vacate the arbitration award and order the City to permit him to retake the assessment
center portion of the exam, and thereafter promote him based on the new results. However, it is
undisputed McEnery was promoted to district chief during the pendency of this suit. Thus,
vacating the award and ordering the City to allow McEnery to retake that portion of the exam to
determine whether he should be promoted would have no practical effect. See City of Farmers
Branch, 235 S.W.3d at 469; see also Texas A & M University-Kingsville v. Yarbrough, 347 S.W.3d
289, 291 (Tex. 2011) (holding that challenge to lawfulness of grievance procedures by associate
professor who did not receive tenure was moot after she was awarded tenure); Seals v. City of
Dallas, 249 S.W.3d 750, 755 (Tex. App.—Dallas 2008, no pet.) (holding that after promotion,
firefighter’s issue regarding her qualification to be promoted to senior fire prevention officer was
moot). And although McEnery continues to question whether the assessment center portion of the
exam complied with the Code and the CBA, “that dispute is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.” See Yarbrough, 347 S.W.3d at 291 (citing
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04-15-00097-CV
Alvarez v. Smith, 558 U.S. 87 (2009)). Accordingly, because McEnery’s case no longer presents
a live controversy as a result of his promotion to district chief, we conclude this appeal is moot.
McEnery, however, argues his promotion to district chief does not moot the appeal because
his request to allow his colleagues to retake the exam and his request for back pay are still pending
and justiciable. Therefore, according to McEnery, a live controversy still exists. We disagree.
A review of the record reflects that neither of the foregoing requests pointed to by McEnery
were sought by McEnery during arbitration. See Garza/Phelps Dodge Refining Corp. v. Phelps
Dodge Refining Corp./Garza, 262 S.W.3d 514, 519-20 (Tex. App.—El Paso 2008, no pet.)
(holding because party did not seek back pay until after modification of award deadline passed,
trial court had no authority to consider requests for relief). In his grievance, McEnery specifically
requested that his results from the assessment center portion of the exam be set aside and a new
exam be conducted. During the arbitration hearing, McEnery clarified his request by stating he
would like to “be made a – a district fire chief [or, in the alternative] that the results of the 2010
assessment center be thrown out.” He repeated this request during his closing argument at the
hearing. Although we note that at one point during the hearing, he stated “or you could promote
everybody,” it is clear McEnery sought either to be promoted or have his exam results set aside
and be provided with the opportunity to retake an exam that complies with the Code or the CBA.
Because McEnery did not seek these additional requests regarding his colleagues and back pay
during arbitration, we conclude the trial court would have been without authority to award them.
See id. As a result, we hold these requests do not vitiate our holding that the appeal is moot.
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04-15-00097-CV
CONCLUSION
Based on the forgoing, we hold McEnery’s promotion to district chief during the pendency
of this suit renders his appeal challenging the arbitration award moot. Accordingly, we dismiss
his appeal for want of jurisdiction.
Marialyn Barnard, Justice
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Brian McEnery v. City of San Antonio and Chief Charles N. Hood
Combined Opinion