                              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.
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                                                 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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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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