Robinson v. Alief Independent School District

KEM THOMPSON FROST, Justice,

dissenting.

The plaintiff, a former employee of the defendant school district, sought an injunction ordering the school district and its superintendent to expunge from all of their records all references to another employee’s acts against the plaintiff. The majority concludes that the plaintiff received this requested relief because the school district, in a letter, offered to move files selected by the plaintiff out of the plaintiffs personnel file and into other files maintained by the school district. The school district’s offer did not include an agreement to expunge all documents requested and is not equivalent to an injunction ordering the school district and its superintendent to permanently erase all objectionable references from all of their records. Therefore, the school district’s offer did not moot the plaintiffs claims.

A trial court must have subject matter jurisdiction to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Mootness is a threshold issue affecting a trial court’s subject matter jurisdiction. See In re H & R Block Fin. Advisors, Inc., 262 S.W.3d 896, 899 (Tex.App.-Houston [14th Dist.] 2008, no pet.). The existence of jurisdiction is a question of law, which this court reviews de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). We examine the pleadings to determine whether the facts pleaded affirmatively demonstrate that jurisdiction exists and construe the pleadings liberally, looking to the pleader’s intent. State v. Holland, 221 S.W.3d 639, 642-43 (Tex.2007) (involving plea to jurisdiction). A fact question as to jurisdiction prevents a trial court from granting a par*329t/s plea to the jurisdiction. City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex.2008).

The Request for Injunctive Relief

In his petition, appellant/plaintiff Adrian Robinson asked the trial court to “enjoin the [Alief Independent School] District through its Superintendent of Schools to expunge his records of all references to [Dwight] Brannon’s acts as against him.” Under normal rules of grammar, “his records” presumably refers to the superintendent’s records.1 But even if “his records” meant “Robinson’s records,” liberally construing the petition,2 as we must, this phrase would mean any record of appellee Alief Independent School District (the “District”) relating to Robinson and would not be limited to Robinson’s personnel file.

The Standard for Evaluating Mootness

Mootness is determined based on the status of the claims as of the time of the ruling on the plea to the jurisdiction rather than on what the status might be at some moment in the future. See Fed. Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994). Thus, in evaluating Robinson’s claims for mootness, this court must focus on the status of the claims at the time of the trial court’s order of dismissal. Likewise, the mootness determination must be made with stringent reference to Robinson’s request for relief as set forth in his pleadings, without regard to the merits of his claims or the likelihood of their success. A litigant should not be deprived his day in court unless his claims are truly moot.

The doctrine of mootness is based on the prohibition against courts issuing advisory opinions. See Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442 (Tex.1998). Courts have articulated various legal standards for determining when a case is moot.3 In this case, the District argues and the majority concludes that Robinson’s request for injunctive relief is moot because the District “fully agreed to comply with this injunctive request” and therefore “there is no more action that a court can enjoin to satisfy Robinson’s request to expunge his records.”4 The majority relies on the theory that the District has performed all the actions that Robinson asked the trial court to order the District to undertake.5

The School District’s Offer

The trial court concluded that Robinson’s request for injunctive relief is moot *330based on Robinson’s receipt of a letter from the District, dated August 26, 2008 (the “District’s Letter”). In the District’s Letter, without admitting liability or agreeing to enter into an injunction or other agreed court order and for the stated purpose of mooting Robinson’s claims, the District enclosed a copy of Robinson’s personnel file and other “non-privileged documents of which it is aware relating to the allegations in this lawsuit.” The District stated that it “agree[d] to expunge” any of its records that Robinson believes reflect “Brannon’s acts against him.” Significantly, however, rather than stating that the expunged records would no longer be part of the District’s records, the District stated only that “the expunged records will no longer be part of the records that [the District] maintains for Mr. Robinson.” 6 Robinson, who sought injunctive relief with respect to a larger scope of documents, did not accept the terms set forth in the District’s Letter and that offer did not ripen into a contract. The trial court found that this unaccepted offer alone mooted Robinson’s request for relief.

Arguments on Appeal

In challenging the trial court’s dismissal of his claims as moot, Robinson asserts several arguments. Robinson could have made these arguments more clearly and more thoroughly; better briefing would have enhanced this court’s ability to effectively review the issues presented. However, even if Robinson had not sufficiently briefed the issue, because the disposition of this case turns on a jurisdictional issue — mootness—this court is duty-bound to examine jurisdictional grounds, and may do so sua sponte. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.2004) (stating that a reviewing court is obligated to review sua sponte issues affecting jurisdiction). Construing Robinson’s appellate brief liberally, as this court must, Robinson argues that (1) his claims are not moot; (2) the District’s Letter is a “unilateral offer” that is not binding on the District; (3) Robinson’s request for expungement was directed at all of the District’s records and not just Robinson’s personnel file; (4) in the District’s Letter, the District offers only to take documents from Robinson’s personnel file and move them to another file; and (5) the District has not expunged the items requested by Robinson.7 See Ditta v. Conte, 298 S.W.3d 187, 189-90 (Tex.2009).8

*331The Reasons the Claims Are Not Moot

The trial court’s finding of mootness is unsupportable for several reasons, each of which is grounded on the fundamental concept that when Robinson’s request for relief (as set forth in his pleadings) is measured against the District’s offer, unsatisfied requests for relief clearly remain.

An offer to perform an act is not the same as performing the act.

Robinson argues on appeal that the District’s Letter is not a binding contract, that it does not provide him with any recourse against the District, and that nothing would prevent the District from moving the documents in question back to Robinson’s personnel file. Robinson’s arguments have merit.

Even if the District had offered to expunge all the information that Robinson asked the court to order expunged, such an offer would not be the same as a court order commanding the District to expunge all of this information. Under its unambiguous language, the District’s Letter is not a contract but rather an offer that is not binding on the parties unless and until Robinson accepts the District’s offer by designating documents that Robinson believes reflect “Brannon’s acts against him.” See Johnston v. Kruse, 261 S.W.3d 895, 898 (Tex.App.-Dallas 2008, no pet.) (holding that no unilateral contract was formed because promisee did not accept the offer by performing the act the promissor requested). Mootness is determined based on the status of the claims as of the time of the ruling on the plea to the jurisdiction rather than on what the status might be at some moment in the future, in which Robinson might have accepted the District’s offer by performance or in which the District might expunge information from its records regarding Robinson. See Fed. Deposit Ins. Corp., 886 S.W.2d at 767. The contingencies on which the mootness finding is premised have not yet occurred, and therefore the claims are not moot.

As Robinson correctly points out, even though his claims were dismissed as moot because he purportedly received all the relief he requested, he remains vulnerable to receiving nothing. For example, after this appeal is over, the District might not honor its offer and then might argue successfully that it has governmental immunity against Robinson’s suit for enforcement of the promise of expungement.9 Because Robinson’s claims are being declared moot even though he did not receive the injunc-tive relief he requested, he is effectively left without a remedy or enforcement mechanism. More importantly, the court’s mootness finding deprives him of the opportunity to even seek this relief.

*332An offer or agreement to expunge information is fundamentally different from a court order commanding the District to expunge information. This is true when none of the parties is a governmental entity, but it is even more significant when one of the parties involved is a political subdivision of the State that generally enjoys governmental immunity. However, if Robinson were awarded the injunctive relief he sought — an order compelling the District to expunge the records — then Robinson would have a means of enforcing this injunction against the District. Violation of a court order would subject the District to being held in contempt of court for failure to comply. Therefore, a significant difference exists between the injunction that Robinson requested and the District’s offer. On this basis alone, Robinson has not received all the relief he requested, and this claim is not moot.

Moving documents from one file to another is not the same as expunging references contained in them.

Robinson sought an injunction commanding the District to expunge from its records all references to Brannon’s allegedly improper allegations against Robinson. The plain meaning of the word “expunge” is “to erase or destroy.” See Black’s Law Dictionary 603 (7th ed. 1999); see also Tex. Dep’t of Public Safety v. J.H.J., 274 S.W.3d 803, 809 (Tex.App.Houston [14th Dist.] 2008, no pet.) (construing “expungement” as promoting “destruction” of records under the Texas Code of Criminal Procedure). If the District were to erase or destroy all of the references of which Robinson complains, then its records would contain none of these references at all. In one part of the District’s Letter, the District states that it “agrees to expunge” any of its records that Robinson believes reflect “Brannon’s acts against him.” However, after stating that the District reserves the right to use any and all of Robinson’s records in this lawsuit, the District states that “the expunged records will no longer be part of the records that [the District] maintains for Mr. Robinson.” This language strongly suggests that the District may believe that it has “expunged” the references in question if it merely removes them from its files regarding Robinson and puts them in another one of its files.10 This action is not expungement. In his petition, Robinson sought erasure or destruction of the references in question from all of the District’s files; he did not seek the transfer of documents containing such references from one part of the District’s files to another.11 Such a transfer could be undone easily and would not eliminate or erase the references from the District’s files. Expungement is permanent, and it would prevent the District from communicating these ref*333erences to third parties in the future and from having more of the District’s employees learn the contents of these references. For this reason, Robinson has not received all the relief he requested.

Documents not held back from discovery as privileged are not the same as all of the District’s documents.

Robinson did not limit his requested relief to the documents not held back by the District under assertion of privilege. Yet, in the District’s Letter, the District asks Robinson to select the information to which he objects from “non-privileged documents of which the District is aware relating to the allegations in this lawsuit.” This group of documents does not include all of the District’s records. Because the District is holding back documents under claim of privilege, there may be documents that the District has held back that contain references to Brannon’s acts or accusations. These documents are not subject to the offer in the District’s Letter but were part of the relief Robinson sought in his pleadings. This is another reason why Robinson has not received all the relief he requested.

The District has not taken the action that Robinson asked the trial court to order.

The majority concludes that there is nothing left for the trial court to order the District to do because the District already has taken the action sought by Robinson. It is on this basis that the majority distinguishes the Lakey case. See ante at p. 326; see also Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 11-12 (Tex.App.Austin 2008, no pet.). As shown above, Robinson has not received all the relief he requested, and, even under the District’s Letter, the District later could decide with seeming impunity to move the documents in question back to Robinson’s personnel file. Therefore, Lakey is on point. See Lakey, 278 S.W.3d at 11-12. Robinson’s claims are not moot because the District has not taken the action that Robinson requested the trial court to order. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex.2005) (holding that issues of whether insurer owed defense and indemnity were not moot, even though insurer could no longer be liable for defense or indemnity, because insured still sought attorney’s fees under the Texas Declaratory Judgment Act); Lakey, 278 S.W.3d at 11-12 (holding that petitioner’s challenge was not mooted by defendant’s voluntary policy changes because the previous policy that gave rise to the dispute could be reimplemented at any given time); Tex. Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 847-848 (Tex.App.Austin 2002, pet. denied) (concluding that petitioner’s challenge to the assessment of a penalty was not mooted by a letter withdrawing that penalty because the letter was non-binding and did not prevent reassessment of the disputed penalty); Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 511 (Tex.App.-Austin 1993, writ denied) (concluding that a declaratory-judgment action regarding the constitutionality of an election system was not rendered moot by the voluntary adoption of a new election system because petitioner’s request for the permanent elimination of the prior election system was not satisfied); Turner v. Chandler, 304 S.W.2d 687, 688-689 (Tex.Civ.App.-Texarkana 1957, no writ) (asserting that when a party seeks specific relief and that relief has not been granted, then a proceeding is not moot because the question of whether the specific relief sought should be granted remains undecided). Thus, even if the District’s offer ripened into a contract, the resulting agreement would not give Robinson all of the relief he requested in his pleadings. As long as some of the relief Robinson requested remains, his claims are not moot.

*334Conclusion

The District did not offer to enter into an agreed injunction or to expunge all of the documents Robinson requested, and Robinson did not accept the offer for lesser relief that the District did make. The trial court and this court conclude that the making of an offer for less than full relief renders the claims moot. It does not. Even if the majority were correct in its premise, that an unaccepted offer rather than performance is sufficient to moot Robinson’s claims, such a determination would moot only part of the requested relief. On its face, the District’s Letter does not cover documents withheld from discovery under claim of privilege or documents moved from one file location to another, all of which fell within Robinson’s request for relief. For all of these reasons, the trial court erred in ruling that Robinson’s request for an injunction regarding expungement is moot. At the very least, fact questions remain that should have precluded the granting of the plea to the jurisdiction. Because this court affirms rather than reverses the trial court’s dismissal, I respectfully dissent.

. Under common rules of English grammar, to be unambiguous, a pronoun typically refers to the last antecedent in the same sentence. The Chicago Manual of Style 155 (15th ed., 2003).

. Because no special exceptions were sustained against the petition, this court must construe Robinson’s petition liberally to contain any claims that reasonably may be inferred from the specific language used in the petition. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995).

. For example, courts have stated that a case is moot when (1) a controversy ceases to exist between the parties, (2) the parties lack a legally cognizable interest in the outcome, (3) when a party seeks a ruling on some matter which, when rendered, would not have any practical legal effect on a then-existing controversy, or (4) the plaintiff seeks a court order commanding the defendant to perform certain acts and the defendant performs all these acts without a court order. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005); In re H & R Block Financial Advisors, Inc., 262 S.W.3d 896, 900 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding); Houston Chronicle Publ'g Co. v. Thomas, 196 S.W.3d 396, 401 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

. See ante at p. 326.

. See id.

. The District also submitted an affidavit from one of its employees, Rose Benitez; however, Benitez simply said that she agreed to the terms of the District's Letter.

. The majority indicates that Robinson did not explicitly or implicitly assert these arguments. See ante at pp. 326-27 n. 2. In his appellate brief, Robinson summarizes his argument as follows:

The trial court erred in granting Defendants AISD and Stoerner's Plea to the Jurisdiction and finding that Plaintiff's claims against these Defendants were moot simply because Defendants unilaterally offered a portion of the relief being sought by Plaintiff.
[[Image here]]
Because AISD and Stoerner’s unilateral decision to expunge Plaintiff's record was not coupled with any binding judicial admission or some extrajudicial action that would prevent the recurrence of their unconstitutional actions, Robinson's claims against these Defendants are not moot and the trial court erred in finding it did not have subject matter jurisdiction over Robinson's claims against AISD and Stoerner.

Additional quoted references to specific arguments raised by Robinson in his appellate brief are contained in footnotes specific to the issues.

.The majority indicates that Robinson does not challenge the dismissal of his claim for injunctive relief to order Brannon and Freeman to cease violating or infringing upon his rights. See ante at p. 324 n. 1. However, the trial court did not dismiss Robinson's request *331as to Brannon and Freeman. As such, that request is not part of this appeal.

. See Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006); Nat’l Surety Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690, 694 (Tex.1968). The parties have not cited any applicable exception to governmental immunity. A four-justice plurality of the Supreme Court of Texas stated that immunity is waived as to a suit against a government entity for breach of a settlement agreement that resolved a lawsuit for which the entity had no immunity. See Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520-23 (Tex.2002) (plurality op.). In Lawson, four dissenting justices concluded that immunity applied even under those facts. See id. at 524 (Rodriguez, J., dissenting). Presuming that the Lawson plurality correctly stated Texas law, this exception does not apply to the District’s Letter. The Lawson plurality stressed the narrow nature of the exception in question, which it limited, among other things, to suits for breach of a settlement agreement. See id. at 522-23 (plurality op.). Under its unambiguous language, the District's Letter is not a settlement agreement. The parties have not cited any statute waiving the District's governmental immunity from a suit by Robinson seeking to enforce the District’s Letter.

. The majority also indicates that after expunging documents, the District could "reinstate” the documents in the future. See ante at p. 326. This is contrary to the plain meaning of the word "expunge."

. Robinson argues specifically in his appellate brief, "The trial court found that Plaintiff's claims against Defendants AISD and Stoerner were moot because AISD agreed more than 18 months after Robinson filed suit to expunge his AISD personnel records of whatever documents that Plaintiff maintained were the basis of the lawsuit against them. Within that finding is the trial court's and defendants’ acknowledgment that but for the defendants’ unilateral, non-binding and reversible removal of certain documents from or expungement of Robinson’s personnel file, Robinson’s claims were not moot, and the trial court had jurisdiction over those claims.” (internal citations to record omitted and emphasis added). Robinson argued that without a binding agreement as to the District’s offer in the District's Letter, "nothing would prevent them from reinserting the harmful documents into his AISD personnel file....”