Letter agreement to hire CEO was not properly authorized by Board so no breach can occur

Killingsworth, Jerry v. The Housing Authority of the City of Dallas, 05-12-00524-CV (Tex. App. – Dallas, October 14, 2014).

This is a breach of contract, §1981 (race) and §1983 (due process) case in an employment dispute in which case the Dallas Court of Appeals affirmed the granting of summary judgment for the Housing Authority of the City of Dallas (“DHA”).

Killingsworth asserted he had a written employment contract to be the DHA President and CEO, however the DHA Board yielded to political pressure to retain the existing president and not go through with hiring him. Killingsworth asserted that even though no public vote occurred by the Board to approve the contract (a term within the contract) the Board chair signed the letter agreement. He also asserted that he spoke to each commissioner individually prior to any meetings who supported his retention and he was told through the grapevine that the board members all voted in executive session to approve the contract. He sued but the trial court granted the DHA’s summary judgment motion. The trial court also did not allow any discovery of disclosure of executive session information. He appealed.

The 5th Court of Appeals held the letter agreement had two primary conditions: 1) being signed by the Chair, 2) approval by the Board. These requirements must occur after the contract was presented to Killingsworth and no authority was granted before presented. The summary judgment evidence conclusively established the Board did not vote to approve the contract. As a result, no breach could occur. The court rejected Killingsworth’s “law of the case” argument from an interlocutory appeal in this case. The interlocutory opinion merely held the trial court has jurisdiction to hear this type of case and whether the Board properly executed the contract; it was not a determination that the contract was, in fact, properly executed.  With regards to Killingsworth’s §1983 due process claims, the court held his claims hinge on the validity of the contract, which the court just determined was not valid. As to his §1981 claim, the retained director was African American, but that alone cannot support a claim. Killingworth presented no evidence to create a fact issue that race-based motives were part of the decision making.  All of the DHA evidence established race was not a factor. Finally, the trial court properly ruled on the summary judgment before the completion of discovery since it is at the trial court’s discretion and Killingsworth did not file an affidavit attesting to why further discovery is needed. The preclusion of discovery into executive session matters (to the extent limited specifically by the trial judge) was not error. As a result, summary judgment was properly granted.

If you would like to read this opinion click here. Panel: Justice Bridges, Justice O’Neill and Justice Brown. Opinion by Justice Brown. The attorneys listed for the Housing Authority are Jadd F. Masso and Katherine E. Anderson.  The attorney listed for Killingsworth is John H. Crouch IV.

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