NO. 07-10-00212-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B APRIL 29, 2011

REBECCA TERRELL AND CHANDRASHEKHAR THANEDAR, APPELLANTS

v. PAMPA INDEPENDENT SCHOOL DISTRICT, APPELLANT

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY; NO. 35621; HONORABLE LEE WATERS, JUDGE

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ. OPINION
Appellants, Rebecca Terrell and Chandrashekhar Thanedar, 1 are appealing the granting of a summary judgment in favor of PISD, Pampa Indep endent School District, regarding appellants’ action all eging violations of the Texas Open Meetings Act (TOMA) 2 and a request to void all actions of PISD taken as a result of alleged illegal meetings. We will reverse and remand.

1 Appellants are husband and wife.

2 See T EX

. G OV ’ T

. C ODE A NN

. §§ 551.001-.146 (West 2004 & Supp. 2010).2 Factual and Procedural Background
Appellant Terrell was a firs t-year teacher in the PI SD whose probationary contract of employment was terminated by action of the PISD School Board on March 26, 2009. On May 29, 2009, appellants filed their original petit ion alleging numerous violations of TOMA and requesting that the trial court issue a temporary restraining order against PISD, issue a temporary and permanent inj unction against PISD, and enter an order declaring that all meetings of the School Boar d held between certain specified dates to be void and that all ac tions taken by the School Board at those meetings to be void, specifically identifying the termination of Terrell’s employment. Further, appellants requested that the trial court enter a wr it of mandamus ordering the School Board to reinstate Terrell. Appellants requested an unspecified amount of damages, costs of court, and attorneys fees. PISD duly filed an answer to the allegations contained in appellant s’ original petition.
Appellants obtained a setting for a hearing on the appl ication for a temporary injunction and, in connection with t he setting, caused to be issued a subpoena duces
tecum for PISD employee, Karen Linder. PISD filed an objection to the subpoena duces tecum and to certain of the documents reques ted. Appellants subsequently filed a motion to “show cause and strike defendant’s or iginal answer.” The trial court granted PISD’s objections to the subpoena duces tecum and denied appellant s’ motion to show cause and strike PISD’s orig inal answer by order dated J une 10, 2009. After the trial court refused to enter a temporary restrain ing order, appellants r equested the trial court to vacate a setting on the temporary injunction.3 On June 15, 2009, appellants filed a tr aditional motion for summary judgment and a no-evidence motion for summary judgment. See T EX

. R. C IV

. P. 166a; 166a(i). After PISD had filed a response to the mo tions, appellants subsequently filed objections to PISD’s summary judgment evidence. T he trial court denied appellants’ motion for summary judgment by order dated October 12, 2009. Appellants then filed a motion requesting the trial court to re consider its ruling on the summary judgment and to enter a ruling on appellants’ objections to PISD’s summary judgment evidence. The trial court denied both the motion to reconsider and t he objections to PISD’s summary judgment evidence by order dated December 23, 2009. On that same day, PISD filed a traditional and no-evidence motion for summary judgmen t. On May 14, 2010, the trial court granted PISD’s motion for summary judgment without specifying upon which ground the motion was granted.
Appellants appeal the order of the trial court, asserting an extensive number of reasons why the trial court’s judgment was in error. The issues presented may be broken down into allegations th at the trial court erred in not finding that PISD violated the provisions of TOMA regar ding: 1) posting of notice of meetings, 2) requirements for specificity in the notice of m eetings and the place of the meetings, 3) internet posting provisions, 4) requirement that all deliberations of the type involved be held in a public meeting, 5) allegations t hat the notices posted were not posted by a person with authority to post notices of me etings. In addition to the a lleged violations of TOMA, appellants allege that the trial court erred in: 6) ruling on various objections to some of PISD’s summary judgment evidence, 7) in granting PISD’s motion for summary judgment, and 8) in denying app ellants’ motion for summary judgment. Because one of4 the issues appellants rais e regarding violations of TOMA is dispositive of this matter, we will address it first.

Standard of Review
We review the granting or denial of a motion for summary judgment de novo

. See Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex . 2005). When both parties file a motion for su mmary judgment, as in this case, and one is granted and one is denied then we, as the reviewing court, must determine all questions presented and render the judgment that should have been rendered by the trial court. See HCBeck, Ltd. v. Rice , 284 S.W.3d 349, 352 (Tex. 2009).
Internet Posting of Notices
TOMA requires a school district, am ong other governm ental bodies, to concurrently post notice of a School Board meeting on the school district’s internet website. T EX

. G OV ’ T C ODE A NN . § 551.056(b) (West 2010). 3 Section 551.056 provides that a good faith attempt to comply with the requirements is not affected when the failure to comply with the requirement is due to a technical problem beyond the control of the school distri ct. § 551.056(d).
The record before us clearly demonstrates that, for the period of time between January 15, 2009, and May 19, 2009, the notices of the Sc hool Board meetings could not have been posted on the PISD website. Further, summary judgment evidence proves that the failure to post was due to a cutting of the link between the software

3 Further references to the Texas Go vernment Code An notated will be by reference to “section ___”, “Section ___” or “§ ____.”5 program used to post the notices, BoardB ook, and the website. PISD contends, through Linder’s affidavit, that, although the lin k was cut to the website, the notices continued to be posted as required. They simply did not appear on the website.
According to PISD’s theory, the failure to post was due to a technical problem beyond its control and, t herefore, PISD’s failure to pos t is excused under the good faith exception of the stat ute. Appellants, however, contend that the missing notices, when produced by PISD, reflect that they were “c reated” not around the ti me of the original meeting, but after PISD was notified of the failure of the connection between the software and the website. Under appellants’ theory, this summary judgment evidence establishes a material fact issue regarding the good faith attempt of PISD to post the notices on its website as required by the statute. See § 551.056(d).
A review of the summary judgment ev idence does, indeed, reflect that the notices in question show to have been “created” after PISD was notifi ed of the failure to post the required website notices. Neit her party offered any summary judgment evidence as to what the term “created,” as it appears under the prop erties tab of the notice, means. Both parties have opined as to what it means. Appellants contend it means the notices were not prepared and entered until after t he notification that PISD had failed to post notices of the School Boar d meetings as required. PISD contends “created” means the date the particular notice was printed for delivery to appellants. We, however, have no evidence to support either interpretation.
In our analysis of the su mmary judgment under the de novo standard of review, evidence favorable to appellants must be ta ken as true and every reasonable inference6 must be indulged in favo r of appellants. See Diversicare Gen. Pa rtner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex. 2005). Accordingly, we find that there is a material fact issue about whether PISD actually attempted to post the notices and, therefore, met the good faith exception to the requi rement to concurrently post notices of the School Board meetings on its website.
PISD argues that this case is similar to the allegations in Argyle Indep. Sch. Dist. v. Wolf in which the Fort Worth court determined that there was no ev idence of bad faith on the part of the school district. See 234 S.W.3d 229, 248-49 (Tex.App.—Fort Worth 2007, no pet.). However, in Argyle the parties had a stipulat ion of evidence that the webmaster had, in fact, received the notice of the meeting in questi on and attempted to post the same on the school di strict’s website. See id . at 248. Further, the parties stipulated that the failure of the notice to appear was beyon d the control of the school district and the problem was corrected a few hours before the meeting. See id . The evidence in Argyle is factually distinguishable from the summary judgment evidence in this case and does not control our disposition of this matter.

Conclusion
Because the issue of concurrently posting notices on the PISD’s website involves a genuine issue of material fact not estab lished as a matter of law, we reverse the judgment of the trial court. We remand this matter for further proceedings consistent with this opinion.
Mackey K. Hancock Justice