Isbell v. Russell

DR. KELLY ISBELL, Appellant, v. JEANNE RUSSELL, MISSION STREET CONSULTING LLC, AND KATE ROGERS, Appellees.

No. 13-20-00193-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 6, 2022

On appeal from the 166th District Court of Bexar County, Texas.

Before Chief Justice Contreras and Justices Benavides and Silva

MEMORANDUM OPINION

GINA M. BENAVIDES JUSTICE

This appeal concerns the sufficiency of appellant Dr. Kelly Isbell's pleadings following special exceptions.^[1] Isbell appeals an order which dismisses her claims against appellees Jeanne Russell, Mission Street Consulting LLC (MSC), and Kate Rogers with prejudice. By four issues, Isbell asserts that the trial court erred by dismissing her claims against appellees because the court (1) treated appellees' special exceptions as a plea to the jurisdiction; (2) treated appellees' motion to dismiss as a Rule 91a dismissal of a baseless cause of action see Tex. R. Civ. P. 91a; (3) treated appellees' motion to dismiss as a no-evidence motion for summary judgment; and (4) dismissed Isbell's claims "even though [she] had amended her pleadings as required by [the] trial court's order as to special exceptions." We reverse and remand.

I. Background

On April 22, 2019, Isbell filed her "Plaintiff's Second-Amended Petition" against Russell, MSC, Rogers and Melissa Alcala. According to the briefs, Alcala was subsequently dismissed from the case. Isbell alleged that "[a]fter an extensive, nationwide search," she "was hired to serve as the founding principal for the CAST Tech Charter School" (CAST Tech) in the San Antonio Independent School District (SAISD). Isbell stated that "[o]n May 8, 2017, [she] was improperly fired, the victim of a power play by persons outside" of SAISD. Isbell alleged that she was placed on administrative leave "abruptly and without any advance notice, written evaluations, emails[, ] or letters stating poor performance on any topic or task," "ordered to immediately leave the CAST Tech premises," and "ordered not to speak with anyone, which would have included the other Founders^[2] and other industry advisors for CAST Tech." Isbell referred to this series of events as the "Coup." Subsequently, the SAISD School Board voted to terminate Isbell's employment, an event Isbell identifies as the" Firing." According to Isbell, Russell, MSC, and Rogers served as "outside consultants" for CAST Tech. Isbell alleged causes of action against Russell, MSC, and Rogers for tortious interference and conspiracy.

On June 7, 2019, appellees filed "Special Exceptions and First Amended Answer to Plaintiffs Second Amended Petition." In terms of special exceptions, the appellees alleged that Isbell "has failed to allege any valid contract that could support a tortious interference claim," that she "has not alleged facts that could support the essential element of willful and intentional interference with a contract," and that she "fail[ed] to plead all of the elements of [a] cause of action for conspiracy." Appellees requested the trial court to sustain their special exceptions and to require Isbell to amend her pleadings, or alternatively, to strike her claim for conspiracy.^[3]

On September 18, 2019, the trial court and the parties signed an "Agreed Order on Defendants' Special Exceptions." The order states, in relevant part:

IT IS ORDERED that Plaintiff shall amend her petition as to the claims for tortious interference and conspiracy as to each Defendant: [Russell, MSC, and Rogers], to give fair notice of the allegations and claims asserted specifically against each Defendant.

Defendants' Special Exception No. 1. is SUSTAINED. Plaintiff shall replead and assert with specificity the contract(s) she alleges were breached as a basis for Plaintiffs' tortious interference claim. It is further ORDERED, Plaintiff shall further identify the specific contractual provisions-as to each contract-she alleges were breached and the actions by each Defendant she alleges were the basis of the breach. [Gil Ramirez Grp., LLC v. Hous. lndep. Sch. Dist, No. 4:10-cv-4872, 2013 WL 3229682, at *11 (S.D. Tex. June 25, 2013)].

Defendants' Special Exception No. 2. is SUSTAINED. Plaintiff . . . shall replead and assert with specificity the basic facts identifying and supporting the requisite elements of her tortious interference claim against each Defendant. Specifically, Plaintiff shall assert with specificity, the actions or statements made by each separate Defendant which she alleges constitute a willful and intentional interference.

Defendants' Special Exception No. 3. Is SUSTAINED. Plaintiff . . . shall replead and assert the basic facts supporting the requisite elements of her conspiracy claim. It is further ORDERED, Plaintiff shall plead with specificity the overt acts she alleges, as to each Defendant, constitute an unlawful or tortious act.

It is [f]urther ORDERED that by October 17, 2019[, ] Plaintiff shall file an amended pleading as ORDERED herein. Plaintiff's failure to amend pleadings as ORDERED herein shall cause Plaintiff's pleadings to be deemed stricken without further action by this Court.

Subsequently, on October 17, 2019, Isbell filed "Plaintiff's Supplement No. 2 to First-Amended Petition."^[4] As noted in the briefing, this pleading was mistitled and acted as a supplement to "Plaintiff's Second-Amended Petition." The body of Isbell's Supplement No. 2 comprises ten pages of substantive allegations and includes twenty-nine separate enumerated paragraphs.

On February 14, 2020, the appellees filed "Defendants' Motion to Enter Final Order." According to appellees' motion, the trial court's dismissal of other parties to the litigation had "rendered [Isbell's] allegations [against them] entirely nonsensical." Appellees asserted that they had filed special exceptions asking Isbell to replead "with requisite specificity the basis for her tortious interference and conspiracy claims," Isbell had agreed to replead, and the parties and trial court had entered the agreed order sustaining appellees' special exceptions. According to appellees, Isbell's amended pleading "fails to comply with the Agreed Order," thus appellees filed their motion "to enforce the Parties' Agreed Order and strike [Isbell's] pleadings [] pursuant to the terms of the Agreed Order." The appellees argued that the agreed order constitutes an enforceable agreement under Texas Rule of Civil Procedure 11, Isbell agreed to a "heightened pleading standard," and Isbell failed to amend her pleadings according to the agreed order. See Tex. R. Civ. P. 11. The appellees requested the trial court to "enforce the terms of the Parties' Agreed Order pursuant to Tex.R.Civ.P. 11 and dismiss [Isbell's] claims with prejudice."

On February 24, 2020, Isbell filed "Plaintiff's Response to Motion to Enter." Isbell asserted that, since the time she had filed her amended pleadings, she had sent interrogatories and requests for production to Russell, MSC, and Rogers, and had sent notices of intention to take depositions by written questions with subpoenas duces tecum to Pedro Martinez, Superintendent of SAISD, and SAISD. Isbell argued that appellees' motion to enter judgment should be denied because her supplemental pleading "was sufficient to satisfy [the trial court's agreed order] and gives fair notice to [appellees] of the facts necessary to begin a defense of [Isbell's] claims for [tortious [interference and [conspiracy," and the fact that appellees filed their motion "only after the issuance of [Isbell's] discovery requests . . . is a clear indication that [appellees'] [m]otion is without merit and is merely a procedural attempt to avoid [Isbell's] prosecution of this matter."

That same day, the trial court held a hearing on appellees' motion to enter a final order. At the hearing, appellees informed the trial court that they were there "to enforce a Rule 11 agreed order" which required Isbell "to replead to very specific pleading standards." Appellees asserted that Isbell's supplemental pleading was deficient because there was "no specific contractual provision named; no contract that's identified as being breached; and . . . no specific actions by the remaining [appellees] about interference." Appellees asserted that they "still cannot identify . . . the factual basis of Isbell's claims" regarding tortious interference or conspiracy. Appellees argued that the agreed order acted as an enforceable Rule 11 agreement and "[t]here is no reason why [Isbell] should be allowed to replead or to be held to any standard other than this, and the Court has a ministerial duty to enforce the order as agreed by the parties and entered by the Court."

The trial court questioned appellees, "specifically, what are you asking the Court," and inquired whether appellees were "asking to strike [Isbell's] pleadings." Appellees informed the court that the agreed order included language providing that: "Plaintiff's failure to amend pleadings as ordered shall cause plaintiff's pleadings to be deemed stricken without further action by this Court." Appellees asserted that Isbell's pleadings were thus automatically struck when she "failed to amend as . . . was required," and so they were requesting the court to dismiss Isbell's case with prejudice. In response, the court asked appellees, "[s]o why does this Court have to do anything," because "it sounds like [the pleadings are] already stricken and gone." Appellees informed the court that Isbell had propounded discovery and was proceeding with her case.

Isbell responded to the foregoing colloquy by asserting that she "supplemented [her pleadings] in accordance with the order." She discussed her supplemental pleading and the background of the lawsuit and argued that appellees...