County properly supported summary judgment affidavits to establish breach of contract claim against garbage franchise holder

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Hernandez v County of Zapata, 04-19-00507-CV  (Tex. App. – San Antonino, July 8, 2020).

This is a breach of contract/garbage collection case where the San Antonio Court of Appeals upheld an order granting the County’s summary judgment against Hernandez.

The County of Zapata and Hernandez entered into a one-year written contract, granting Hernandez an exclusive franchise to provide garbage collection services to Zapata County residents. Hernandez agreed to pay Zapata a percentage of the sums he collected from Zapata County residents for his garbage collection services. When a dispute arose, the County of Zapata sued Hernandez for breach of contract.  The County filed a traditional motion for summary judgment, which was granted. Hernandez appealed. [Comment: this opinion is helpful mainly to litigators who deal with standards for admission of evidence].

A party opposing a motion for summary judgment may file a response “not later than seven days prior to the day of” the summary judgment hearing.  Hernandez failed to timely file a response and failed to establish the trial court abused its discretion in denying his motion to file a late response. Hernandez’s motion was unsupported by any probative evidence establishing good cause for the failure. The lack of factual support and explanation regarding counsel’s alleged mistakes, “leav[es] the trial court without any means of determining whether an excusable accident or mistake had in fact occurred.”

In comparison, the County’s affidavits in support of its summary judgment were properly supported and included the underlying facts to justify the conclusions asserted in the affidavits. For example, the affidavit of the County auditor provided support by stating 1) His primary duties are to oversee financial record-keeping for the county and to assure that all expenditures comply with the county budget, 2)  He has continuous access to all county books and financial records and conducts a detailed review of all county financial operations, 3) He has general oversight of all books and records of all county officials and is charged with strictly enforcing laws governing county finance, 4)  After reviewing bank statements from Hernandez’s business and comparing with county records and the cross-checking corresponding franchise fee percentage owed by Hernandez pursuant to the contract, that the amount Hernandez owed Zapata was $361,439.07. The trial court did not abuse its discretion in denying Hernandez’s objections to the County’s affidavits.

The trial court also did not abuse its discretion in overruling the objection to bank statements based on hearsay.  Under the Texas Rules of Evidence, a statement by an opposing party is not hearsay if the statement is offered against the opposing party and “is one the party manifested that it adopted or believed to be true.” Hernandez admitted that he produced the bank statements in discovery. By producing the bank statements and by adopting the bank statements as his own, Hernandez manifested an adoption or belief in their truth.  The evidence is sufficient to conclusively establish the existence of a valid contract,  that Zapata performed under the contract, and that Hernandez breached the agreement.  Aside from the first-year payment, it is undisputed Hernandez did not pay Zapata the contracted percentages of the total gross receipts for the years 2011 to 2016. As a result, the trial court was within its discretion to grant the summary judgment.  Finally, the record supports an award of attorney’s fees.

If you would like to read this opinion click here. The panel consists of Justices Martinez, Rios and Watkins.  Opinion by Justice Martinez.

Failure to use an x-ray machine in the right body area to locate a missing sponge constitutes the misuse of tangible personal property under TTCA

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Univ. of Tex. Sw. Med. Ctr. V. Rhoades, No. 05-19-00445-CV (Tex. App.—Dallas June 30, 2020).

This is a medical negligence case brought under the Texas Tort Claims Act (TTCA) filed after a sponge was left inside Plaintiff Rhoades during surgery.  The Dallas Court of Appeals held the plea to the jurisdiction was properly denied because Rhoades had made a proper allegation of misuse of tangible personal property.

Rhoades had surgery at the Medical Center for breast reconstruction surgery.  During the surgery, surgery included removal of tissue from her abdomen for use in her chest.  After the surgery in the abdomen was completed, but the surgery in her chest area was still in progress, the surgical staff realized they were missing a sponge.  The staff x-rayed Rhoades body in its search for the sponge but did not x-ray low enough in Rhoades’ abdomen.  While Rhoades was still in recovery in the ICU, the sponge was found with an x-ray of her pelvic area and it was removed. Complications after the sponge-removal surgery resulted in multiple further surgeries.  Rhoades sued the Medical Center for medical negligence asserting a waiver of immunity for misuse of tangible personal property (i.e. the sponge and the first x-ray machine.)  The Medical Center filed a plea to the jurisdiction which was denied. The Medical Center appealed.

The Texas Tort Claims Act, states that a governmental entity’s immunity is waived for “ personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. “  Tex. Civ. Prac. & Rem. Code § 101.021(2).   Immunity is not waived for incorrect medical judgment.  Non-use of medical equipment is insufficient to waive immunity as is negligent medical judgment. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2001).  The Court of Appeals held that Rhoades had sufficiently alleged misuse of the x-ray machine in failing to take the x-rays in the right location to discover the sponge during the initial surgery and that the misuse of the sponge by leaving it in the body are sufficient to waive governmental immunity to overcome a plea to the jurisdiction.  Not monitoring or responding to medical equipment in a timely fashion can constitute a waiver of governmental immunity for negligent use of the equipment.  It was not a misuse of the information that the x-ray provided that caused the medical injuries, but it was not using it in the correct area that caused the additional surgery that led to further medical issues.

The dissent stated that immunity was not waived by the use of the x-ray machine, because the use of the x-ray machine did not cause the injuries or additional surgeries, but instead the non-use of the x-ray machine in her pelvic area did not find the sponge.   The x-ray machine was operated and functioned properly and produced the images correctly, and there is no allegation that it should not have been used.

If you would like to read this opinion click here. Panel consists of Justices Bridges, Molberg, and Partida-Kipness.  Opinion by Justice Partida-Kipness.

Austin Court of Appeals holds junior college could not withhold school transcripts of two employees under the Texas Public Information Act

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Del Mar College District v Ken Paxton, 03-19-00094-CV (Tex. App. – Austin, July 1, 2020)

This is a Texas Public Information Act (“PIA”) case where the Austin Court of Appeals affirmed an order requiring the release of certain information possessed by the college district.

The Del Mar College District (“District”), a junior college district,  received a request for the personnel files of two professors.  The files contained their college transcripts. The District timely requested an opinion from the Attorney General’s office. The AG opined certain information could be withheld, but determined other information must be released, including the college transcripts. The District filed suit against the AG and the trial court heard opposing summary judgment motions. The trial court granted the AG’s motion and ordered the release of the transcripts. The District appealed.

The court listed a narrow legal question – was the junior college a “public school” for purposes of the PIA exception under §552.102(b)(which exempts such transcripts). The court held the proper inquiry was into the meaning of the phrase “public school,” which has its own generally accepted meaning, referring to the elementary and secondary educational system funded by the state. Junior colleges, in contrast, are part of the higher education system and charge tuition to their students. See Tex. Educ. Code § 130.084(b). “Public Education,” governs the State’s free elementary and secondary schools, while “Higher Education,” governs the State’s university and college system. The court acknowledged that junior colleges have been held to be integral to the Texas education system and could be a public school for other purposes, but noted it was not a “free” public school. Section 552.102(b) is part of the Public Information Act, not the Education Code, and is not part of the “general law governing the establishment, management, and control of independent school districts.” So, while the District is a public entity and a school subject to the PIA, it is not a “public school” for purposes of Section 552.102(b).  As a result, the college transcripts must be released.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justices Triana and Smith. Opinion by Chief Justice Rose.

Texas Supreme Court holds TTCA waives immunity for slight negligence claims, which applies to common carriers (buses) and imposes a higher degree of care for passengers

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VIA Metropolitan Transit v Curtis Meck, 18-0458 (Tex. June 26, 2020)

This is a Texas Tort Claims Act (TTCA) case involving a VIA bus accident where the Texas Supreme Court affirmed a jury award against VIA.

VIA Metropolitan Transit is a governmental entity that operates public transportation services in San Antonio and Bexar County. Curtis Meck boarded a VIA bus operated by Frank Robertson, who was new to the job and still in training. Robertson began to pull away from the stop when another passenger shouted “Back door!,” apparently to notify Robertson that a passenger was still trying to exit. Traveling just under five miles per hour, Robertson made an “abrupt stop,” causing Meck to fall forward into the partition behind Robertson’s seat. Meck asserts this caused a herniated disc in his neck. Mech sued VIA asserting negligence and asserted VIA was a “common carrier” with a high degree of care imposed for the benefit of the passengers. After a trial on the merits the jury found for Meck and VIA appealed. VIA did not object to the designation as a common carrier and did not object during jury selection when Meck’s attorneys told the jury of the higher duty imposed on VIA. VIA moved for a directed verdict asserting it was not a common carrier and the jury instruction was incorrect. The motion was denied.

Under the Texas Transportation Code, the duties and liabilities of a common carrier are the same as provided for under common law. Tex. Transp. Code §5.001(a)(1). A common carrier owes a duty to its passengers to act as “a very cautious and prudent person” would act under the same or similar circumstances.  To qualify as a common carrier (in contrast to a private carrier), the entity must provide transportation services to the general public, as opposed to providing such services only for particular individuals or groups and as its primary function. VIA argued it is not a common carrier because (1) it is not “in the business” of providing such services, (2) providing such services is not its “primary function,” and, (3) in any event, it cannot be a common carrier because it is a governmental body that performs only governmental functions.  While the Court agreed that VIA is statutorily prohibited from generating revenue greater than an amount “sufficient to meet [its] obligations,” it disagreed that profit is necessary to qualify for the “in business” designation. The  Court held VIA was indisputably in “the business of transporting people” and therefore met the first prong. And while VIA argued it performs numerous governmental functions that include constructing roads, issuing bonds, collecting taxes, and promoting economic development, for the purpose of “implementing the State’s transportation policy”, the Court held it must only do so to fulfill its obligation to operate as a “rapid transit authority.”  As a result, transporting people is its primary function. The Court agreed that VIA is a governmental entity and that it was performing governmental functions that provided, by default, governmental immunity. However, that status does not prevent it from being a common carrier with a higher degree of care to its passengers. The Court further declined to change the law by requiring a lower, ordinary standard of care. The Court then held the TTCA does not define what type of negligence is subject to the waiver of immunity. However, the common law has long used the term “negligence” to refer to “three degrees or grades of negligence,” including gross negligence, ordinary negligence, and slight negligence (which applies to common carriers).  As a result, all three types are subject to the waiver in the TTCA. Finally, the Court held the evidence was legally sufficient to uphold the jury award.

Chief Justice Hecht wrote a concurring opinion noting the “slight negligence” or “high decree of care” standards are misleading, unnecessary and should be abandoned. They suggest that common carriers are to “exercise all the care, skill, and diligence of which the human mind can conceive” and invites the jury “to scrutinize the carrier’s conduct in an endeavor to find it defective.”  However, he notes that given the evidence, an instruction on a “reasonable care” standard would not have changed the outcome.

If you would like to read this opinion click here. Justice Boyd delivered the opinion of the Court, in which Justice Green, Justice Lehrmann, Justice Blacklock, and Justice Busby joined. Chief Justice Hecht delivered a concurring opinion, in which Justice Guzman, Justice Devine, and Justice Bland joined.

San Antonio Court of Appeals holds because officer’s affidavit was too sparse to establish a proper lookout trial court properly denied the plea to the jurisdiction

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City of San Antonio v Huron, 04-19-00570-CV (Tex. App. – San Antonio, June 11, 2020)

This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

David L. Arredondo was struck and killed by a San Antonio Police Department (SAPD) vehicle when Arredondo was riding his bicycle.  Arredondo failed to stop at a stop sign, and he rode across the unlit intersection. The City sent investigators and a supervisor to the scene, and the driver/officer gave a statement regarding the accident. The investigators took photographs and videos, collected evidence, and filed their reports.  No formal written notice of claim was filed, but just over thirteen months after the accident, the family filed suit.  The City asserted its immunity from suit for lack of formal or actual notice.  The family asserted the City had actual notice due to the investigation and reports.    The plea was denied and the City appealed.

“[A]ctual notice exists only when the governmental unit has ‘knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.’”  “[S]ubjective awareness of alleged fault requires neither adjudication of liability nor confession of fault.”  But a governmental unit’s subjective awareness of its potential fault is not enough to establish actual notice. The investigation reports, prepared by an SAPD investigator, identifies the officer driving the SAPD vehicle, the decedent, the location, and other facts pertaining to the accident.  The only finding of fault in the Texas Peace Officer’s Crash Report points to Arredondo.  Neither of the two CSI reports gave any indication of fault by any party, and the court expressly did not infer that the City gained any subjective awareness of its alleged fault merely because it conducted an extensive investigation. It is the facts disclosed in the investigation, not the breadth of the investigation alone, that inform the actual notice question. The driving officer’s report, however, was very sparse and noted “I was traveling [southwest] in the #1 lane of Somerset [Road], when I felt something strike my vehicle. I immediately noticed my windshield was damaged and [I] came to an immediate stop.”  All persons have the duty to maintain a proper lookout and to observe in a careful manner the traffic and the general environment at and in the vicinity of an intersection. The officer’s affidavit was so sparse, it did not establish he was maintaining a proper lookout. He does not list his speed at the time of the accident or much of anything else. From this evidence, the trial court could have found that the officer did not see Arredondo and it could have concluded that the officer was failing to keep a proper lookout in violation of his duty.  As a result, the plea was properly denied. [Comment: This opinion appears to be inconsistent with the burdens attributed to the parties during a plea as the opinion does not go into what evidence was present in response to the plea to establish a failure to keep a proper lookout. The court seems to treat the absence of evidence as a proper submission of contradicting evidence to make an implied finding by the trial court.]

If you would like to read this opinion click here. The panel consists of Justices Alvarez, Chapa and Rios.  Opinion by Justice Alvarez.

Austin Court of Appeals holds no vested rights for zoning changes related to square foot of use ratio

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River City Partners, Ltd. V City of Austin, 03-19-00253-CV (Tex. App. —  Austin, June 4, 2020).

This is a vested rights/Chapter 245 challenge suit where the Austin Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

In 1986, River City’s predecessor in title applied to rezone the property to the Community Commercial classification and the  City approved with some conditions.  In April 2003, the property owner applied to the City for approval to create an eight-lot commercial subdivision.  While the application was pending the City passed its zoning ordinance.  The City then approved the plat.  Fast forward to 2017, aware that its plans exceeded the zoning ordinance limits on use size in relation to the building, River City sought an exemption on the ground that the ordinance conflicted with the 1986 Covenants. When the City denied the request, River City Partners sued for declaratory and injunctive relief asserting the City must apply the regulations in effect at the time of the application. The City filed a plea to the jurisdiction which was granted.  River City Partners appealed.

Under Chapter 245 of the Texas Local Government Code, a vested right will attach to a project rather than a permit holder and follow any conveyances or transfers of rights related to the project. River City’s as-applied challenge is consistent with parts of Chapter 245 that apply on a project-by-project basis.  However, Chapter 245 “does not apply to,” municipal zoning regulations unless they affect certain categories, including building size.   Section 245.004 also does not employ similar language or even include the term “project” so the project-based analysis is not applicable. So, the question becomes does the restriction qualify as a zoning regulation on “building size.” The court interpreted the LDC provisions as they applied to the entire code and not simply in isolation.  The City’s LDC required that uses not exceed a certain ratio of gross floor area to gross site area. However, the LDC does not prohibit multiple uses within the same building and therefore River City failed to establish the LDC affected building size, only use size. Since Chapter 245 only waives immunity for applicable vested rights, and River City failed to establish a possible vested right, the trial court was without jurisdiction. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, and Justices Triana and Smith.

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals

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Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

The Uniform Declaratory Judgment Act not allowed where plat does not show ownership interest to establish standing

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Korr, LLC. v. County of Gaines, No. 11-18-00130-CV (Tex.App.– Eastland May 29, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

 The case involves a claim under the Uniform Declaratory Judgment Act (UDJA) for an interpretation of a county regulation dealing with plats.  The court of appeals held that the UDJA cannot be used if there is no ripe injury.

Korr, a land developer in the county,  filed suit against the county under the UDJA based on a county regulation that requires a bond to cover the cost of electrical infrastructure prior to a plat being reviewed.  Korr argued that the provision was preempted by the Public Utility Commission’s authority.  Korr presented a plat that had already been approved and indicated but did not state that Korr had an interest in this and other properties in the county. The County filed a plea to the jurisdiction, which was granted. Korr appealed.

Korr presented no proof of Korr’s land ownership in the county, no active plat applications before the county and the listed plat had not required such a bond.  Korr argued that despite having a ripe injury, the UDJA should still allow the suit, because it wished to develop property in the future. The court of appeals reviewed the requirements for standing in a UDJA claim, including the ripeness of a controversy.  The court held that a ripe controversy is still required and noted Korr’s arguments in the trial court were all based on “hypothetical” situations.  The court held that it could not issue an advisory decision and affirmed the trial court’s dismissal.

If you would like to read this opinion, click here. The panel consists of Chief Justice Bailey, Justices Stretcher and Wright.

Possible suspension of officer’s license does not toll the statute of limitations for Sec. 1983 claims against an officer

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Haule  v.  Travis County and Spinner, No.  03-19-00250-CV (Tex.App.–Austin May 28, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

This case involves claims under §1983 and state law claims based on Haule’s attempt to report a crime to Travis County Officer Michael Spinner.  The court of appeals held that the statute of limitations had run against all of Haule’s claims.

Haule attempted to file a criminal complaint against the Caldwell County District Attorney based on a previous prosecution.  She called the Travis County Sheriff’s Office, claiming that the District Attorney had told her that he would put her in jail if she complained to the State Bar of Texas.  The Sheriff’s Office sent Officer Spinner to take her statement.  In his report, Officer Spinner referred to Haule as potentially mentally ill and intoxicated.  After Haule complained about Officer Spinner’s report, the Sheriff’s Office responded to Haule’s complaint in a letter stating that: (1) her claim was not sustained; (2) that the Travis County Sheriff’s Office did not have authority over the Caldwell County District Attorney; and (3) that she should contact the Caldwell County Sheriff’s Office or the Attorney General’s Office.  Seven years after receiving the letter from Travis County, Haule filed suit in Travis County District Court, alleging Section 1983 claims and general state law claims that appeared to include negligence, fraud, malicious prosecution, and defamation against Travis County and Officer Spinner.  The County filed a motion for summary judgment that the claims were frivolous, and the district court granted the motion.  Haule appealed.

The court of appeals reviewed all of the claims under each statute of limitations to determine whether any of the claims, even if substantiated, remained viable.  The court first discussed Haule’s briefing and noted that it was unclear that Haule’s claims were able to be pursued.  However, based on the information provided, the court reviewed the statute of limitations for §1983 claims, fraud, defamation, and others and determined that all of the statute of limitations had passed.  Haule argued that the statute limitations should be tolled because: (1) the report stating that she was mentally ill and/or intoxicated was “ongoing” and (2) Officer Spinner’s license was suspended during the period in question.   The court stated that the report was not ongoing and that even if Officer Spinner’s license had been suspended, it would not toll the statute of limitations. The district court’s judgment was affirmed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Rose, Justices Baker and Triana.

Slowing and visually observing stopped traffic was not reckless action for purposes of emergency responder doctrine of TTCA

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City of Kingsville v Dominguez, 13-19-00236-CV (May 28, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the Corpus Christi Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the plaintiff’s claims.

Dominguez alleged that Oscar Mendiola, while operating a City fire truck, failed to yield the right of way at a signal light which resulted in a collision with Dominguez’s vehicle. The record demonstrated the fire truck was traveling behind an ambulance and the truck’s siren and emergency lights were both activated.  Mendiola slowed as he approached, visually confirmed traffic had stopped, then proceeded.  According to the official accident report, the investigating officer concluded that the fire truck driver was facing a red light and failed to yield the right of way to Dominguez. The officer also concluded that Dominguez “disregarded an Emergency Vehicle while operating emergency lights.” The officer did not issue a citation to either driver. The City filed a plea to the jurisdiction based on the emergency responder exception of the TTCA. The plea was denied and the City appealed.

Part of the policy behind the emergency responder exception is because imposing “liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks” and would “allow for judicial second-guessing of the split-second and time-pressured decisions emergency personnel are forced to make.”  However, compliance with the requirements of Chapter 546 of the Texas Transportation Code does not relieve the driver of liability if they act recklessly (i.e., he understood the risks but did not care about the result).  The City argued Mendiola acted to minimize the risk to others as he entered the intersection, thereby demonstrating that Mendiola “clearly did care about the result” of his actions. Dominguez responds that Mendiola’s actions of entering the intersection against a red light without stopping were evidence of recklessness. The court held the fire truck driver slowed below the speed limit, visually confirmed stopped vehicles, had the lights and sirens on, and therefore did not act recklessly. As a result, the plea should have been granted.

If you would like to read this opinion, click here.

13th Court of Appeals holds it does not have interlocutory jurisdiction to hear 2nd motion which is nothing more than reconsideration of first plea to the jurisdiction

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City of Elsa, Texas v. Jesse Diaz, 13-19-00109-CV, (Tex. App – Corpus Christi – Edinburg, April 2, 2020)

This is an interlocutory appeal (2nd for the case) in a contractual immunity case where the 13th Court of Appeals held the City’s summary judgment was merely a motion to reconsider the already denied plea to the jurisdiction, so the appellate court lacked interlocutory jurisdiction.

Diaz was appointed as interim police chief but emails stated if not selected for the permanent position, he would resume his role as the warrants officer. Later, a new city manager removed Diaz from the chief position but terminated his employment. Diaz sued for breach of contract. The City first filed a plea to the jurisdiction which was granted.  However, the 13th Court of Appeals reversed and remanded. On remand, the City filed separate no-evidence and traditional motions for summary judgment, each reasserting that the trial court lacks subject matter jurisdiction because the city council did not formally approve the contract. The motions were denied and the City took this interlocutory appeal.

Although § 54.014(a) does not expressly limit a party to one interlocutory appeal, the right to successive interlocutory appeals is not without limits. When a second motion/plea constitutes nothing more than a motion to reconsider, without any new or distinct evidence or arguments, the appellate court lacks interlocutory jurisdiction. In making this determination, courts of appeals should compare both the substance and procedural nature of the two challenges.  The court held, in this case, the original plea and the motions for summary judgment, were substantively and procedurally identical. The only change is the  City added an affidavit which implicitly refutes evidence considered in Diaz I regarding the authority to enter into the contract by the City Manager. Since the second set of motions do not contain “new and distinct” challenges to the trial court’s jurisdiction, they are mere reconsiderations. The court of appeals, therefore, dismissed the appeal for lack of interlocutory jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Longoria, and Perkes. Dismissed – Want of Jurisdiction. Memorandum Opinion by Justice Perkes. Docket page with attorney information can be found here.

 

Eastland Court of Appeals holds conclusory statements in pleadings insufficient to plead jurisdiction – facts are needed to establish City had intent to commit a taking

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City of Albany v. Diana Christine Blue and Elva Rae Sanders, 11-18-00051-CV, (Tex. App – Eastland, April 2, 2020)

This is an interlocutory appeal in a nuisance and inverse condemnation case where the Eastland court of appeals reversed the denial of the City’s plea to the jurisdiction.  It then remanded to allow the Plaintiffs the ability to replead.

The City began construction of a drainage and improvement project for the city-owned golf course next to property owned by the Plaintiffs.  The Plaintiffs assert the construction altered surface water flow and drainage resulting in the flooding of their property. They sued and the City filed a plea to the jurisdiction, which was denied. The City appealed.

The City only challenged the sufficiency of the Plaintiffs’ pleadings and did not submit any evidence contrary to the alleged facts. The City asserts that Appellees failed to allege facts that show an intentional act of the City.  However,  if the City knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged. The Plaintiffs merely allege that “[Appellant] knew that its actions would cause identifiable harm, or that specific property damage was and is substantially certain to occur.” However, conclusory statements in a pleading are insufficient to establish jurisdiction.  As a result, the Plaintiffs did not sufficiently plead an inverse condemnation claim. Likewise, they failed to allege the required intent needed to establish a nuisance claim against the City under the Texas Constitution. Again, they provide mere conclusory statements.  However, the Plaintiffs were not put on notice their pleadings were defective. The pleading defects in this case are not the type that can never be cured. As a result, the case is remanded to give the Plaintiffs the opportunity to cure the defects.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey,  Senior Justice Wright, and Justice Stretcher. Memorandum Opinion by Justice Stretcher. Docket page with attorney information can be found here.

First Court of Appeals holds service on pro se of MSJ via email address on file with court was proper service

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Glenn Herbert Johnson v. Harris County, et al., 01-18-00783-CV, (Tex. App – Hou [1st Dist.], Feb. 27, 2020)

This is an inverse condemnation case where the First Court of Appeals affirmed the granting the defendants’ motion for summary judgment. However, it will be of interest mostly to litigators as the central issue is proper service on a pro se by email during litigation.

Johnson (pro se) alleged that Harris County’s tax sale of his property constituted a taking. The County filed a traditional and no-evidence motion for summary judgment, to which Johnson did not respond. The trial court granted the motion. Johnson filed a post-judgment motion arguing that he did not receive notice of the MSJ or hearing, but listed a different email address for notice. The County submitted evidence it served Johnson via the electronic filing email he had on file with the court.  The trial court denied Johnson’s post-judgment motion and Johnson appealed.

The court first noted that Johnson failed to provide a single citation to the record in his brief and therefore waived any arguments. When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review.  However, the court went on to say that even if he had cited to the record, he could not prevail.  The County’s MSJ was filed twenty-eight days before the date of submission and was therefore timely filed.  A nonmovant has the right to minimum notice of the summary judgment hearing. Id. “Proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment.” Rule 21a deals with service and notice requirements for pleadings, including motions for summary judgment.  Pro se litigants are not required to participate in the electronic service program.  However, the Rule also states that if no email address is on file with the electronic filing manager, the document “may be served in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” “A certificate by a party or an attorney of record . . . shall be prima facie evidence of the fact of service.” Notice properly sent pursuant to Rule 21a raises a presumption that notice was received.  No evidence in the record indicates Johnson attempted to change the email address on file with the court or to the attorney in charge for the County. Pursuant to Texas Rule of Civil Procedure 57, Johnson was required to designate an email address if he had one.  Harris County used the designated email address and Johnson presented no evidence of a change. Therefore, Johnson did not overcome the presumption that Harris County properly served him and that he received Harris County’s motion and notice via email service.   Finally, to defeat a no-evidence MSJ, a non-movant must file a response. Here, Johnson did not.  The MSJ was affirmed.

If you would like to read this opinion click here. Panel consists of Justices Lloyd, Kelly, and Landau. Reversed and Remanded. Memorandum Opinion by Justice Lloyd. Docket page with attorney information can be found here.

When alleged harasser was placed on restrictions, then restrictions were removed five months later, the fact the employer believed it did not have time to respond to subsequent complaint is irrelevant says El Paso Court of Appeals

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County of El Paso, Texas v. Monique Aguilar, 08-19-00082-CV, (Tex. App – El Paso, March 18, 2020)

This is a gender discrimination/hostile work environment case where the El Paso Court of Appeals reversed-in-part and affirmed-in-part the denial of the County’s plea to the jurisdiction. [Comment: this is a 42-page opinion, so that is why the summary is longer than normal.]  The case presents a detailed thought process analysis under employment law, including prima facie element analysis and burden shifting.

Aguilar worked for the County in various positions for nearly twenty-four years.  She was holding the position of Facilities Manager when she complained to her supervisors and HR that she was paid substantially less than not only the male who previously held the position of Facilities Director (which was reorganized and formed in the Facilities Manager position) but also less than other similarly situated male coworkers.  She also raised the issue of pay disparity with the County Commissioner’s Court. She also complained she was harassed by a male co-worker.  The supervisor put restrictions on the co-worker in 2014, limiting contact with Aguilar and her staff. That restriction was lifted five months later, but according to Aguilar, the co-worker, Lucero, resumed his harassing behavior. When Aguilar obtained an email the supervisor wanted to discuss Lucero with her and her behavior in a meeting where he was present, she experienced an anxiety attack and eventually resigned. Aguilar brought suit under the Texas Commission on Human Rights Act (“TCHA”) under a constructive discharge theory. The County filed a plea to the jurisdiction, which was denied.

The court first went through numerous pages regarding the affidavits and determined the trial court did not abuse its discretion in considering Aguilar’s affidavit. Next, the court determined Aguilar was required to establish she was “treated less favorably than similarly situated members of the opposing class[.]” The County presented evidence that Aguilar did not hold the same job position,  duties and responsibilities, or requirements for education as the comparators she listed. The applicable test is not whether the positions are comparable in some respects; the test is whether the positions are “comparable in all material respects.” While Aguilar’s burden at the prima facie stage was not onerous, it did require, at a minimum, that she present evidence raising a fact issue on whether she was similarly situated to members outside her protected group who were treated differently. She did not present contradicting evidence as to two other managers, but did as to a third, Cruz. As a result, the plea should have been granted as to disparate regarding the first two managers, but was properly denied as to Cruz. As far as the harassment claim goes, County argues that Lucero’s comments did not create a hostile work environment because many of them were made to persons other than Aguilar. But those comments were made about Aguilar and were humiliating to her. In addition, because many of the comments were made to her staff and to contractors with whom she worked, they interfered with her ability to perform her job duties. Aguilar demonstrated that a disputed material fact exists concerning whether her work environment was objectively hostile or abusive. While the restrictions on Lucero were put in place, they were lifted five months later and he returned to his prior behavior.  While the County asserts it did not have time to respond to the return, Aguilar’s hostile work environment claim is not based solely on the final week of her employment, divorced from the years of harassing conduct that preceded that week. A reasonable person could conclude that this failure effectively communicated to Aguilar that Lucero would be permitted to once again humiliate Aguilar and interfere with her job performance. As to her retaliation charge, she asserted after complaining about Lucero, her supervisor sent her an email accusing her of inappropriate behavior in a meeting. When her supervisor emailed her to discuss “next steps” she took that to mean discipline of her, so she resigned. The totality of the circumstances surrounding Aguilar’s hostile work environment claim create a fact issue as to whether retaliation was committed by the County for reporting harassment.  However, no fact issue exists regarding Aguilar’s retaliation charge for reporting disparate pay.   In sum, the plea was properly denied as to some claims, but should have been granted as to others.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley and Justices Rodriguez and Palafox. Opinion by Justice Palafox. Docket page with attorney information can be found here.

School district failed to establish unauthorized contract, even with TEA report declaring contract was executed in violation of procurement laws

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Harlandale Independent School District v. Jasmine Engineering, Inc, 04-19-00638-CV, (Tex. App – San Antonio, March 11, 2020)

This is a breach of contract/immunity case where the San Antonio Court of Appeals affirmed the denial of the school district’s plea to the jurisdiction.

Harlandale Independent School District (the “District”) and  Jasmine Engineering, Inc. (“Jasmine”) entered into a Professional Services Agreement (“PSA”)which was amended six times. When the District terminated the contract, Jasmine sued for breach of contract.  The District filed one plea to the jurisdiction challenging only the pleadings, which the 4th Court already considered and held Jasmine properly pled a waiver of immunity. On remand, the District filed another plea to the jurisdiction challenging jurisdictional facts. The plea was denied, and the District appealed.

Texas Education Agency (“TEA”) performed an investigation and issued a determination that the District violated state law procurement requirements by entering into the PSA and amending it. The District therefore asserts no valid contract was created. Section 271.152 of the Texas Local Government Code waives immunity for contracts for goods or services. Under chapter 271 a valid contract is one stating the essential terms for providing goods or services to the local governmental entity and that is properly executed on behalf of the local governmental entity. Jasmine Engineering asserts that the TEA cannot determine the validity of the PSA and, if the matter were properly before the trial court, Jasmine Engineering would argue waiver and other legal theories. While the District relies on the TEA report, the District did not advance that it also determined the PSA was not authorized. While it is true that the TEA has the statutory authority to initiate investigations into contracting matters, make findings, and impose sanctions pursuant to its findings, these powers do not imply that the TEA’s findings bind the trial court or are a jurisdictional bar. Tex. Educ. Code §39.057.  And while the TEA report is attached to the plea, none of the supporting documentation was included. As a result, the evidence did not negate the pleadings and the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justices Martinez, Chapa, and Rios. Memorandum Opinion by Justice Martinez. Docket page with attorney information can be found here.