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                                              OPINION

                                         No. 04-08-00162-CV

                        NORTH EAST INDEPENDENT SCHOOL DISTRICT,
                                        Appellant

                                                   v.

                                            John KELLEY,
                                               Appellee

                        From the County Court at Law No. 7, Bexar County, Texas
                                        Trial Court No. 312677
                              Honorable David Rodriguez, Judge Presiding

Opinion by:       Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: December 10, 2008

REVERSED AND DISMISSED IN PART; REVERSED AND REMANDED IN PART

           North East Independent School District (“District”) appeals the trial court’s order denying

its plea to the jurisdiction and granting summary judgment in favor of John Kelley. The District

presents six issues on appeal asserting: (1) the trial court lacked subject matter jurisdiction over

Kelley’s claims; (2) the trial court erred in concluding that the District breached Kelley’s contract;

(3) the trial court erred in awarding Kelley declaratory relief because the District is immune from

such relief; (4) the trial court erred in awarding injunctive relief in the absence of imminent or
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irreparable harm; (5) the injunctive relief was overly broad and not reasonably specific; and (6) the

trial court erred in awarding attorney’s fees and costs against the District because the District is

immune from such relief. We reverse the trial court’s judgment, dismiss Kelley’s breach of contract

and declaratory judgment claims, and remand the cause to the trial court with instructions to abate

Kelley’s claims for quantum meruit and injunctive relief.

                                          BACKGROUND

       Kelley was employed by the District pursuant to a written one-year probationary contract.

The contract provided that Kelley would be employed “on a 10-month basis for the school year

2000-01, according to the hours and dates set by the district as they exist or may hereafter be

amended.” The District adopted a teacher salary schedule that was based on 187 working days and

a work schedule that required teachers to work 187 days during the 2000-2001 school year. The

District required Kelley to attend a graduation ceremony in addition to the 187 days he was required

to work. Kelly filed a grievance seeking an additional day’s pay and appealed the District’s decision

to the Commissioner of Education.

       The Commissioner of Education concluded that Kelley’s contract required him to work only

187 days; therefore, the contract did not require Kelley to work an additional day by attending the

graduation ceremony. The Commissioner also concluded, however, that the District did not violate

the contract by requiring Kelley to work an additional day; instead, Kelley’s claim would be a claim

for quantum meruit over which the Commissioner had no jurisdiction. Therefore, the Commissioner

dismissed the appeal for lack of jurisdiction.

       Kelley then proceeded on two fronts. First, Kelley filed the underlying lawsuit in Bexar

County alleging claims for breach of contract, quantum meruit, declaratory relief, and injunctive



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relief and requesting attorney’s fees and costs. Kelley also filed an administrative appeal of the

Commissioner’s decision in Travis County.

        In the Bexar County lawsuit, the District filed a plea to the jurisdiction. The parties also filed

competing motions for summary judgment. The district court in Travis County abated its case

pending the outcome of the Bexar County lawsuit. The trial court in Bexar County subsequently

granted summary judgment in favor of Kelley, awarding him: (1) damages for his breach of contract

claim; (2) declaratory relief that the District violated the contract; and (3) injunctive relief prohibiting

the District from “illegal conduct (as occurred in this case) in the future.” The Bexar County trial

court also awarded Kelley attorney’s fees and costs.

                                        STANDARD OF REVIEW

        We review a trial court’s ruling on a plea to the jurisdiction de novo. Herring v. Welborn,

27 S.W.3d 132, 125 (Tex. App.—San Antonio 2000, pet. denied). Similarly, we review a trial

court’s summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-

157 (Tex. 2004). When reviewing a summary judgment, we take as true all evidence favorable to

the nonmovant, and we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Id. The party moving for summary judgment bears the burden to show that no

genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Id.

                                             JURISDICTION

        The District contends that section 7.057(d) of the Texas Education Code required Kelley to

appeal the Commissioner’s decision to a district court in Travis County; therefore, the Bexar County

court did not have jurisdiction to consider Kelley’s breach of contract claim. Section 7.057(d)

provides:



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         A person aggrieved by an action of the agency or decision of the commissioner may
         appeal to the district court in Travis County.

TEX . EDUC. CODE ANN . § 7.057(d) (Vernon 2006).1 Kelley responds that the Bexar County court

had jurisdiction because the Commissioner dismissed his appeal for lack of jurisdiction.

         Kelley’s assertion ignores the basis for the dismissal by the Commissioner as stated in the

Commissioner’s written decision. The Commissioner dismissed the appeal based on his conclusion

that the only claim available to Kelley was a quantum meruit claim. Any complaint by Kelley that

he had viable breach of contract claim had to be appealed to the district court in Travis County

pursuant to section 7.057(d). TEX . EDUCATION CODE ANN . § 7.057(d) (Vernon 2006). No other

court had jurisdiction to consider the breach of contract claim. Id. Similarly, a declaratory judgment

action seeking to determine whether the District’s actions violated the contract could not be brought

in Bexar County because such a claim challenges the Commissioner’s decision that no such

complaint existed.2 See Grounds v. Tolar Ind. Sch. Dist., 707 S.W.2d 889,891-92 (Tex. 1986),

abrogated on other grounds, Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); see also

City of College Station v. Wellborn Special Utility Dist., No. 10-04-00306-CV, 2006 WL 2067887,

at *2 (Tex. App.—Waco Jul. 26, 2006, pet. denied) (mem. op.) (applying exhaustion of

administrative remedies requirement to claims predicated on claims within agency’s exclusive

jurisdiction); Gutierrez v. Laredo Ind. Sch. Dist., 139 S.W.3d 363, 365 (Tex. App.—San Antonio

2004, no pet.) (affirming summary judgment in favor of school district where plaintiff failed to

exhaust administrative remedies before suing for breach of contract and declaratory relief). Because

         1
          … Under section 7.057(d), the decision to appeal is optional, but the place of trial is jurisdictional. See
Grounds v. Tolar Ind. Sch. Dist., 707 S.W .2d 889,892 (Tex. 1986), abrogated on other grounds, Dubai Petroleum Co.
v. Kazi, 12 S.W .3d 71, 76 (Tex. 2000).

         2
           … The declaratory relief granted by the trial court stated, “the defendant violated the plaintiff’s rights and
entitlements under his employment contract.”

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the Bexar County court was without jurisdiction to consider Kelley’s breach of contract and

declaratory judgment claims, it also was without jurisdiction to award Kelley attorney’s fees based

on the judgment it entered on those claims.

                                        QUANTUM MERUIT

       Kelley contends that because he pled a quantum meruit claim in the alternative, we can affirm

the trial court’s judgment on that basis. A party may recover under quantum meruit only when there

is no express contract covering the services rendered. Collins & Aikman Floorcoverings, Inc. v.

Thomason, 256 S.W.3d 402, 407 (Tex. App.—San Antonio 2008, no pet.). Accordingly, the trial

court necessarily rejected the quantum meruit claim in granting relief on the breach of contract claim.

Because the existence of Kelley’s quantum meruit claim hinges on the non-existence of his breach

of contract claim, and his breach of contract claim is within the exclusive jurisdiction of the

Commissioner under appeal in Travis County, the Bexar County trial court was required to abate that

claim until the appeal of the administrative proceedings was concluded. See O’Neal v. Ector County

Ind. Sch. Dist., 251 S.W.3d 50, 52 (Tex. 2008); American Motorists Ins. Co. v. Fodge, 63 S.W.3d

801, 805 (Tex. 2001).

                                            INJUNCTION

       The District contends that the trial court erred in granting summary judgment in favor of

Kelley on his claim for injunctive relief. The Bexar County court’s order states, “Further, the Court

finds and ORDERS that defendant is enjoined and prohibited from illegal conduct (as occurred in

this case) in the future.” This finding and order are necessarily based on the trial court’s

determination that the District breached the employment contract which, for the reasons previously

stated, the Bexar County court did not have jurisdiction to consider. Since the breach of contract



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claim is within the exclusive jurisdiction of the Commissioner under appeal in Travis County, the

Bexar County trial court was required to abate Kelley’s claim for injunctive relief until the appeal

of the administrative proceedings was concluded. See O’Neal, 251 S.W.3d at 52; American

Motorists Ins. Co., 63 S.W.3d at 805.

                                          CONCLUSION

       The trial court’s judgment is reversed. Kelley’s claims for breach of contract and declaratory

judgment are dismissed. The cause is remanded to the trial court with instructions to abate its

proceedings with regard to Kelley’s quantum meruit and injunction claims pending the final

resolution of Kelley’s appeal of the Commissioner’s decision in Travis County.


                                                      Alma L. López, Chief Justice




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