TEXAS COMMISSION ON HUMAN RIGHTS, Texas Workforce Commission, David Powell, and Robert Gomez, Petitioners, v. Marilou MORRISON, Respondent.
No. 11-0644.
Supreme Court of Texas.
Aug. 31, 2012.
Rehearing Denied Nov. 16, 2012.
381 S.W.3d 533
Reata and Albert, our latest decisions on the effect of litigation conduct on governmental immunity, do not fit the facts of today‘s case. AISD never brought an affirmative claim for money damages against which Manbeck‘s claims could be offset. AISD instead merely availed itself of its statutory right to challenge Manbeck‘s award of monetary relief by pursuing an appeal of the administrative decision to district court. We hold that AISD‘s decision to challenge in court the administrative award of benefits to Manbeck did not result in a loss of AISD‘s governmental immunity from Manbeck‘s claim for attorney fees.
For these reasons, we affirm the court of appeals’ judgment insofar as it reversed the trial court‘s award of attorney fees incurred after the nonsuit and the trial court‘s award of contingent appellate attorney fees. We reverse the court of appeals’ judgment insofar as it affirmed the trial court‘s award of attorney fees incurred prior to the nonsuit.
Gary L. Bledsoe, Law Offices of Gary Bledsoe & Associates, Robert Notzon, Law Office of Robert Notzon, Austin, TX, for Marilou Morrison.
PER CURIAM.
In Casteel,1 we held that error is presumed harmful and a new trial is required when a trial court submits a broad-form
Marilou Morrison began her employment with the Texas Commission on Human Rights (TCHR) in 19912 and after several promotions ultimately reached the highest-ranking investigator position. During her employment, TCHR‘s longtime executive director retired. According to Morrison, the new executive director made derogatory comments to her about her race and rejected more qualified minority job applicants in favor of hiring white employees. After Morrison applied but was not chosen for a team leader position the following year, she requested TCHR‘s information related to the denied promotion. There was conflict between Morrison and her colleagues and supervisors for over two years, culminating in a “severe act of threat and intimidation” that Morrison allegedly perpetrated on Vickie Covington, the employment investigations manager. TCHR terminated Morrison‘s employment.
Morrison filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), which included several bases for discrimination but did not include the denied promotion. Morrison then sued TCHR for retaliation. At trial, counsel and various witnesses discussed the denied promotion. During the jury charge conference, the trial court proposed the following question on liability:
Did the Texas Commission on Human Rights (TCHR) take adverse personnel actions against Marilou Morrison because of her opposition to an unlawful discriminatory practice?
The charge did not define “adverse personnel actions.” TCHR objected, arguing the broad-form submission improperly commingled adverse personnel actions. Specifically, TCHR objected that the term adverse personnel actions would allow the jury to find liability without unanimity because there were multiple occurrences the jury could view as adverse personnel actions. TCHR tendered a liability question that focused solely on the termination. The trial court denied the objection. The jury found TCHR liable for retaliation and awarded $300,000 in compensatory damages. After post-trial hearings, the trial court entered a judgment reinstating Morrison to her position and awarding her $300,000 in compensatory damages, $300,000 in attorney‘s fees, and other equitable remedies.
On appeal, TCHR argued, inter alia, that the jury charge allowed a finding of liability based on invalid legal theories. The court of appeals concluded that TCHR waived its objection.3 4 346 S.W.3d 838, 848.
“When a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant‘s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury‘s finding.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex.2000).
We first address whether TCHR preserved error.
The jury was asked:
Did the Texas Commission on Human Rights (TCHR) take adverse personnel actions against Marilou Morrison because of her opposition to an unlawful discriminatory practice?
The charge did not define “adverse personnel actions.” Morrison first contends that TCHR‘s only objection to the liability question was that it could result in a non-unanimous verdict.5 Morrison argues the trial court could not be expected to glean from the language of TCHR‘s objection that there was a potential Casteel issue.
We disagree. During the charge conference, TCHR argued that the charge lumped TCHR‘s different actions together, that the case was “really, about retaliation and termination,” and that it would not be possible to determine what adverse acts would form the basis of the jury‘s verdict. This is the problem we identified in Casteel—commingling valid and invalid theories of liability in a broad-form question. 22 S.W.3d at 388. This is especially true given that, from the outset of the underlying proceeding, the scope of what adverse personnel actions could form the basis of the suit was a contentious issue. As we have recently stated, Casteel error may be preserved without specifically mentioning Casteel. See Thota v. Young, 366 S.W.3d 678, 691 (Tex.2012) (“[Appellant] did not have to cite or reference Casteel specifically to preserve the right for the appellate court to apply the presumed harm analysis....“).
Morrison also argues TCHR was required to request a correct question or instruction (and that its proposed question was not correct). We disagree. We require only objections, not correct questions, to preserve Casteel error. See, e.g., Romero v. KPH Consol., Inc., 166 S.W.3d 212, 228-29 (Tex.2005). Despite not having the burden to tender a correct question, TCHR submitted a proposed question that would only allow a finding of liability based on Morrison‘s termination—again indicating to the Court the over-broad nature of the question. We conclude the trial court was sufficiently put on notice and aware of TCHR‘s objection. See
Having determined TCHR properly preserved its Casteel complaint, we turn to whether the broad-form question on liability allowed a finding on invalid theories, thereby triggering Casteel‘s presumption of harm.
TCHR argues that the charge improperly allowed the jury to base liability on Morrison‘s denied promotion. The denied promotion was not part of Morrison‘s EEOC claim, which is a prerequisite to suit against a governmental entity such as TCHR. See
Morrison contends, however, that no invalid theory was directly submitted to the jury, and the mere possibility the jury may find liability based on an invalid theory does not constitute harm. However, when a broad-form question allows a finding of liability based on an invalid theory, an appealing party does not have to prove that the jury actually relied on the invalid theory. Casteel, 22 S.W.3d at 388. The very characteristic of broad-form submission prevents parties or the Court from knowing for certain what theory the jurors relied upon. Instead, the court must reverse and remand for retrial because the harm occurs when the appellant is unable to properly present its arguments on appeal due to the nature of the question.6 The harm to TCHR is not that the jury reached the wrong verdict, but rather that TCHR has been prohibited from demonstrating on appeal that the jury‘s verdict was based upon the invalid legal theory. See id. (noting that “it is possible that the jury based [the defendant‘s] liability solely on one or more of these erroneously submitted theories. At any rate, it is impossible for us to conclude that the jury‘s answer was not based on one of the improperly submitted theories“).7