Corpus Christi Court of Appeals holds recovery in breach of contract case under Chapter 271 waiver of immunity dependent on contract definition of “owner” – attorney’s fees are recoverable for any contract covered by Chapter 271 waiver.

Quote

Special guest author Laura Mueller, City Attorney of Dripping Springs

City of Corpus Christi v. Graham Constr. Servs., Inc., 2020 WL 3478661, No. 13-19-00367-CV (Tex. App.—Corpus Christi June 25, 2020) (mem. op.).

This is a breach of contract claim under Chapter 271 of the Local Government Code involving a wastewater plant replacement project where the Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

The City of Corpus Christi (City) entered into a contract with Graham Construction Services (Graham) for the replacement of a wastewater plant.  In the agreement, the City hired Carollo to provide engineering and contract administration services and Carollo was considered the owner’s representative.  The agreement had strict deadlines for the completion of the project in two different phases.  The agreement also had strict notice of claim requirements (i.e. less than 90 days after claim event).  Graham submitted over a dozen delay claims, arguing that it faced delays due to “unclear or conflicting specifications in the contract, unnecessarily burdensome testing requirements, and an uncooperative and obstructionist attitude on the part of Carollo”, but not within the time frames required by the agreement.  At some point, the City replaced Carollo with Freese & Nichols (Freese), but Carollo was still involved in the project.  Graham also submitted reports requesting an increase in price and extensions of the schedule.  The City reviewed the reports and met with Graham regarding these reports. The City refused to issue a certificate of substantial completion, and Graham left the job site.   Graham sued the City for breach of contract.  The City filed a counterclaim which included a third-party petition against Carollo.  Three years after the suit filing, the City filed a plea to the jurisdiction.  The trial court denied the plea as to the breach of contract and attorney fee claims and the City appealed.

Under Chapter 271 of the Texas Local Government Code’s waiver of immunity for goods/services contracts contract damages are limited to: (a) balance due including increased costs from owner caused delays; (b) change orders; (c) attorney’s fees; and (d) interest.  Id. § 271.153.  The chapter does not waive a contractor’s defense, but does require a contractor to comply with the adjudication methods found in the contract. Id. §§ 271.154; .155.  The City argued that it was not responsible for owner-caused delays because the delays were allegedly caused by Carollo, an independent contractor.  The Court held a fact issue exists because Carollo was listed as an Owner Representative in the agreement.  The Court also held (a) the City’s thirty and sixty-day notice of claim requirements are prohibited by § 16.071 of the Texas Civil Practice and Remedies Code; and (2) the City did not tell Graham it missed the notice of claim deadline but instead worked through the claim dispute.  These are permissible under § 271.155.  The Court compared this case to a recent contract case where the City did notify a contractor of the lateness of their claims.   See Mission Consol. Indep. Sch. Dist. v. ERO Int’l, LLP, 579 S.W.3d 123, 129 (Tex. App.—Corpus Christi–Edinburg 2019, no pet.).  Finally, the Court held that the contractor’s request for attorney’s fees was allowed because § 271.153 states that fair and equitable attorney’s fees are recoverable. The plea was properly denied.

If you would like to read this opinion click here.

 

 

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

Quote

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.

Paying for train ticket is not the same as paying for use of train station under TTCA premise defect claim says 5th Court of Appeals

Quote

Special guest author Laura Mueller, City Attorney for Dripping Springs

City of Dallas v. Kennedy, No. 05-19-01299-CV (Tex. App.—Dallas June 13, 2020) (mem. op.)

This is a slip and fall/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals reversed and rendered on the trial court’s denial of the City’s plea to the jurisdiction.

Vernell Kennedy injured herself when she fell at the City of Dallas’ Eddie Bernice Johnson’s Union Station by tripping on a broken area of tile.  She had traveled by Amtrak train from Kilgore to Dallas before using the Station and had purchased her train ticket in Longview.  She sued the City for failing to repair the floor or warning of the dangerous condition.  The City filed a plea to the jurisdiction claiming that it was protected by governmental immunity on the basis that Ms. Kennedy was a licensee, not an invitee because she did not pay to use the train station.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

Under the Tort Claims Act, a city owes “owes to the claimant only the duty that a private person owes to a licensee on private property,”  Tex. Civ. Prac. & Rem. Code § 101.022.  The duty to a licensee regarding premises defects is to warn of premises defects that the entity has actual knowledge of.  If someone pays for the use of property, the claimant becomes an invitee and the city’s duty to protect the individual from harm is elevated to warning the individual of dangers the person knew or should have known of.  The plaintiff in this case argued that she was an invitee because she had paid to ride the train to the station. The court of appeals disagreed.

“A fee must be paid specifically for entry onto and use of the premises” to change a plaintiff to an invitee.  City of Dallas v. Davenport, 418 S.W.3d 844, 848 (Tex. App.—Dallas 2013, no pet.)(holding that paying for a plane ticket did not make a person an invitee when injured on airport property); but see City of Fort Worth v. Posey, 593 S.W.3d 924, 929 (Tex. App.—Fort Worth 2020, no pet.).  Because Kennedy had purchased only a train ticket, and no payment was made to use the station itself, she was a licensee and the city only owed her a duty to warn her of dangers of which the city had actual knowledge.  Actual knowledge of the danger in this case was not established by Kennedy, because there were no reports on file at the city that the danger existed.

If you would like to read this opinion click here.

Texas Supreme Court holds contractor entitled to derivative immunity for conspiracy claims, but not fraud claims

Quote

GTECH Corp v. Steele, et al, 18-0158 (Tex. June 12, 2020).

In this case, the Texas Supreme Court held a contractor providing certain functions of the Texas Lottery Commission was not entitled to derivative sovereign immunity.

GTECH provided instant ticket manufacturing and services to the Texas Lottery Commission.  GTECH was sued by multiple plaintiffs (in multiple suits alter consolidated on appeal) alleging that the instructions on a scratch-off lottery ticket were misleading, causing them to believe they had winning tickets when they did not.  GTECH created draft tickets, which the TLC commented on and made changes, but ultimately approved after the back-and-forth concluded. After several complaints, the TLC shut down the game within 60 days of its release.  The plaintiffs asserted claims for fraud, fraud by nondisclosure, aiding and abetting fraud and conspiracy.  GTECH filed pleas to the jurisdiction, asserting it was entitled to the same immunity held by the Lottery Commission. Due to the multitude of suits, some pleas were granted, some denied, but all ended up on appeal.

The Court first noted it had not yet had the opportunity to address whether a Texas government agency’s immunity from suit might extend to its private contractors and if so under what circumstances. In the instances of derivative immunity, it only applies  to a private company operating “solely upon the direction” of a government, and exercising “no discretion in its activities,” was “not distinguishable” from the entity such that “a lawsuit against one [was] a lawsuit against the other.”  Here, the contract required GTECH to provide suggested game designs. After receiving approval from the Lottery Commission, GTECH provided drafts and received comments. GTECH’s role also included crafting, designing, and choosing wording. The Commission’s instant product coordinator testified he would expect GTECH to notify the Commission if it saw concerns with a game, including misleading instructions.  Based on the contract and other evidence in the record, the Court held GTECH had some discretion with regard to the conduct at issue.  The Court held that close supervision and final approval of work over which a contractor has discretion are not the same as the government specifying the manner in which a task is to be performed. Importantly, the Court stated “[t]hus, even if we recognized derivative sovereign immunity for contractors, GTECH would not be entitled to immunity from suit on the fraud claims under the control standard.”  This seems to indicate the issue of derivative immunity for contracts with state agencies remains an open question. The Court also stated “[a] challenge to an element of a plaintiff’s claim by a defendant who lacks immunity from suit does not implicate the jurisdiction of the court; it should be raised in a motion for summary judgment rather than a plea to the jurisdiction.”  Finally, the majority held that extending immunity to contractors for fraud could not further the purpose of immunity.   However, the Court did say that GTECH WAS entitled to derivative immunity from the allegation of conspiracy and aiding and abetting because such claims require a finding of the underlying fraud claim being viable against the TLC.  Since the TLC has immunity from fraud claims, the conspiracy and aiding and abetting claims cannot be sustained against GTECH.

Chief Justice Hecht’s concurring in part and dissenting in part opinion notes that he believes since the ultimate decision and approval of the final ticket form rested with the Commission that GTECH should have been provided immunity as to the fraud claims. He stated “Today’s lesson is that if the government acts only through its own employees, it is immune from suit, but if it consults experts before it acts, it is still immune from suit but the experts are not, except that the experts are immune from suit for helping the government defraud but not for giving the government advice that it uses to defraud. And there you have it.”  He agreed GTECH was immune from the conspiracy and aiding and abetting claims.

Justice Boyd’s opinion essentially stated his opinion is that “the simple and logical conclusion” is simply that sovereign immunity only protects the sovereign, no one else. He clarified that this does not affect his opinion on official or qualified immunity which applies to individuals.

If you would like to read this opinion click here.  Opinion by Justice Busby. Chief Justice Hecht delivered an opinion concurring in part and dissenting in part. Justice Boyd delivered an opinion concurring in part and dissenting in part.

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

Quote

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.

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

Quote

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.

Texas Supreme Court holds immunity waived for arbitration clauses, but only a court can decide the immunity question

Quote

San Antonio River Authority v Austin Bridge & Road, L.P., 17-0905 (Tex. May 1, 2020)

In this construction contract dispute, the Texas Supreme Court held Chapter 271 of the Texas Local Government Code waives immunity for arbitration clauses.

The San Antonio River Authority (“Authority”) hired Austin Bridge and Road L.P. (“ABR”) to perform repairs of the Medina Lake Dam.  Disagreements about scope of work and payment arose. ABR triggered the arbitration provision in the contract. When the arbitrator denied the Authority’s assertion it was immune, it sued ABR in district court seeking a declaration the Authority lacked the ability to waive immunity for arbitration. The trial court denied the Authority’s summary judgment. The court of appeals reversed in part, holding that while the arbitration provision was enforceable, only a court could determine immunity was waived. The Authority appealed.

Until the waiver in Chapter 271 existed, governmental immunity shielded a local government from enforcement of its contract obligations. Currently, § 271.154 expressly provides that arbitration agreements are enforceable. The term “Adjudication” in Chapter 271 means “the bringing of a civil suit and prosecution to final judgment . . . and includes the bringing of an authorized arbitration proceeding…”  Further, an arbitration is an “adjudication procedure” under the plain meaning of the statute. However, immunity is waived only to the extent authorized by Chapter 271. As a result, the Authority was authorized to agree to arbitrate disputes arising from its contract with Austin Bridge, within Chapter 271’s expressed limits.  However, the Court agreed with the court of appeals and held only the judiciary has a non-delegable duty to determine whether immunity has been waived. Because immunity bears on the trial court’s jurisdiction to stay or compel arbitration, and to enforce an arbitration award in a judgment against a local government, a court must decide whether governmental immunity is waived. An agreement to arbitrate is unenforceable against a local government to the extent it purports to submit immunity questions to an arbitrator. The Court then analyzed the contract and determined that while the contract was for the benefit of the River District, it also provided a benefit to the Authority, and the Authority is the entity that entered into the contract. As a result, in this situation, the Authority’s immunity is waived.  The Court held the decision of whether ABR is seeking actual damage or consequential damages is not factually developed; however, ABR at last pled some possibility the damages sought are actual damages.

If you would like to read this opinion, click here. Justice Bland delivered the opinion of the Court. Dissent filed by Justice Boyd, joined by Chief Justice Hecht and Justices Guzman and Devine.

Texas Supreme Court holds 90-day statute of limitations is a jurisdictional prerequisite to filing suit under Texas Whistleblower Act

Quote

City of Madisonville, et al., v Sims, 18-1047 (Tex. April 17, 2020)

This is a Texas Whistleblower Act case where the Texas Supreme Court held the 90-day deadline for filing suit is jurisdictional.

David Sims was a police officer in the Madisonville Police Department. Sims received information that his boss, Sergeant Jeffrey Covington, planned to plant drugs in Covington’s ex-wife’s car to assist in his ongoing child-custody dispute. Sims and Covington had a bad history, both before and during Madisonville PD.  Sims told the Chief of Police, Charles May, but Chief May dismissed the information. Sims later discovered, by using an administrator access login, that Covington was compiling an “investigative file” on Sims presumably to have him fired. Sims was “dishonorably discharged” shortly afterwards for violating the Department’s computer-use policy. The dishonorable designation  was later changed to honorable by a SOAH administrative law judge.   Sims sued under the Texas Whistleblower Act after the SOAH determination (which was past the 90 day deadline to file suit). The City filed a plea to the jurisdiction, which was granted. The court of appeals reversed, holding the deadline was not jurisdictional. The City appealed.

Texas Government Code § 311.034 of the Code Construction Act makes statutory prerequisites to suit jurisdictional as to claims against governmental entities. The Texas Supreme Court has held “the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory and must be accomplished prior to filing suit.”  When a statutory prerequisite to suit is not met, “whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit),” the suit may be properly dismissed for lack of jurisdiction.  The Whistleblower Act clearly and unambiguously waives sovereign immunity to allow plaintiffs to obtain relief. But an employee with a Whistleblower Act claim must strictly abide by the procedural limitations set out in the Act to obtain relief, including the statute of limitations. The Act states the employee “must sue” within ninety days. The ninety-day filing deadline is thus a jurisdictional statutory prerequisite to suit.  The plea should have been granted.

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

U.S. 5th Circuit adopts 1st Amendment unbridled discretion/prior-restraint standards in federal suit against Texas Governor

Quote

Freedom from Religion Foundation, Inc. v. Greg Abbott Governor of the State of Texas, 18-50610, (5th Cir – April 3, 2020)

This is a First Amendment case regarding immunity and viewpoint discrimination where the U.S. 5th Circuit adopted a specific prior restraint test.

The Texas State Preservation Board (“the Board”) is a state agency that preserves and maintains the Texas Capitol and its grounds. Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. Such displays must have a public purpose. FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol. FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit, which was also approved. FFRF’s depiction was displayed, but the day before its final display date, Governor Abbott sent a letter to then Executive Director of the Board, Mr. Welch, urging him to “remove this display from the Capitol immediately.” The letter explained that the exhibit was inappropriate for display because “[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare,” “the exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus[.]”  This letter resulted in the removal of the FFRF display prior to its scheduled removal date. When FFRF submitted another application for the same display, it was told the display did not promote a public purpose. FFRF sued for declaratory and injunctive relief.  The district court granted FFRF summary judgment on certain grounds and denied it on others.  The parties appealed/cross-appealed.

Governor Abbott and Mr. Welsh argue that the district court’s declaratory judgment is retrospective and therefore barred by sovereign immunity (including 11th  Amendment immunity). They further asserted no prospective relief was proper because the dispute is not ongoing. A litigant may sue a state official in his official capacity in federal court as long as the lawsuit seeks prospective relief to redress an ongoing violation of federal law. FFRF alleged constitutional violations against Abbott and Welsh in their official capacities. Further, they established an ongoing violation and Abbott and Welsh did not technically appeal the viewpoint discrimination finding. Speech cannot be prohibited on the basis of offensiveness, and the defendants have only presented arguments through counsel that their behavior will change.  The district court had jurisdiction to entertain the suit, and the controversy is ongoing.  The district court did not, however, have jurisdiction to award FFRF purely retrospective relief.  The declaration that FFRF’s rights were violated in the past is prohibited to the extent it is an individual claim. The U.S. 5th Circuit remanded for the trial court to determine proper prospective relief.  Next, the court analyzed the unbridled discretion arguments regarding public purpose determinations (i.e. prior restraint arguments). Unbridled discretion runs afoul of the First Amendment because it risks self-censorship and creates proof problems in as-applied challenges. Even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment. However, in situations such as where space is limited, certain discretion should be afforded. Because discretionary access is a defining characteristic of a limited public forum, the government should be afforded more discretion to use prior restraints on speech in limited public forums than in traditional public forums. The possibility (including imposed checks and balances) of viewpoint discrimination is key to deciding unbridled discretion claims in the context of limited or nonpublic forums. A reasonableness test would be insufficient, by itself.  In a matter of first impression for the 5th Circuit, the court held that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, the issue was remanded.

If you would like to read this opinion click here. Panel consists of Davis, Graves, and Higginson, Circuit Judges. Vacated and Remanded in part; Reversed and Remanded in part. Memorandum Opinion by Higginson, Circuit Judge. Attorney for Appellant is Kyle Douglas Hawkins, of Austin, Texas. Attorney for Appellee is Samuel Troxell Grover, of Madison, Wisconsin.

 

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

Quote

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

Quote

 

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.

Contractor properly complied with administrative dispute resolutions in contract, so properly exhausted administrative remedies holds Dallas Court of Appeals

Quote

 

Dallas Area Rapid Transit Authority v. GLF Construction Company, 05-19-003930-CV, (Tex. App – Dallas, April 3, 2020)

This is an interlocutory appeal in a contractual immunity case where the Dallas Court of Appeals affirmed the denial of DART’s plea to the jurisdiction.

GLF and DART entered into a contract for GLF to built part of a DART light rail extension. In the contract, the parties agreed to an administrative dispute resolution process. According to GLF, DART’s inadequate project administration drove GLF’s costs up far beyond the contract price.  GLF submitted a paragraph 50 request for equitable adjustment. GLF administratively appealed the contracting officer’s decision to an administrative judge, but the judge’s decision, while finding liability, did not list which party owed any money. In January 2019, GLF sued DART for breach of contract and to hold the resolution process unconstitutional. DART filed a plea to the jurisdiction, which was denied.

DART asserts GLF failed to exhaust its remedies under the resolution process. However, the court interpreted DART’s position as essentially stating that because GLF did not sue to challenge the judge’s decision and formally list the suit as an appeal, that this lawsuit does not qualify as an appeal of that decision, and therefore GLF did not exhaust its remedies. The court noted in this lawsuit, GLF requested a trial de novo from the administrative law judge’s decision and sought damages. As a result, the petition challenges the administrative judge’s decision within the plain meaning of the regulations and contract. The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Justices Myers, Whitehill, and Reichek. Affirmed. Memorandum Opinion by Justice Whitehill. 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

Quote

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.

13th Court of Appeals holds statute of limitations properly raised in plea to the jurisdiction and “damage” to real property is limited to two-year SOL

Quote

Danis Tucker and Beverly Tucker v. City of Corpus Christi, Texas, 13-18-00328-CV, (Tex. App – Corpus Christi, Feb. 27, 2020)

This is a takings claim where the Corpus Christi Court of Appeals affirmed the granting of the City’s plea to the jurisdiction involving junked vehicles v antique vehicles.

A City municipal court judge ordered that four vehicles located on the Tuckers’ residential property be seized and disposed of pursuant to the City’s junked vehicles ordinance.  The Tuckers sued claiming a taking under the Texas Constitution. The City filed a plea to the jurisdiction, based in part on a statute of limitations defense,  which was granted.  The Tuckers appealed.

The court first addressed whether the statute of limitations is now considered a jurisdictional defense (as opposed to an affirmative defense) which could be raised in a plea. Adopting reasoning from other districts, the court held Tex. Gov’t Code §311.034 states compliance with statutory prerequisites to suit are jurisdictional. A statute of limitations is a prerequisite to suit and is therefore jurisdictional when dealing with a governmental entity. It, therefore, can be raised in a plea. Under § 16.003 of the Texas Civil Practice and Remedies Code, a takings claim based on a physical seizure of “personal property” is governed by a two-year limitation, while a takings claim based on the actual physical seizure of real property is a ten-year period (referencing adverse possession). However, a takings claim based on “damage” to real property is governed by the two-year limitations period. The statute of limitations begins to run when a claim accrues, which occurred more than four years before the Tuckers brought suit. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Hinojosa, and Tijerina. Affirmed. Opinion by Justice Hinojosa. Docket page with attorney information can be found here.

Texas Supreme Court holds supervisor’s order to use tear-gas gun was “use” under TTCA, but riot exception preserved immunity

Quote

Texas Dept. Crim. Justice v Cesar Rangel, 18-0721, (Tex. Feb. 7, 2020)

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Department of Criminal Justice (“Department”) retained immunity for hitting an inmate with a tear-gas shell.

Two groups of inmates were threatening each other in  The Pam Lychner State Jail.  The groups totaled approximately thirty (30) inmates. After giving orders to cease hostilities for almost an hour, which were ignored, Department officials ordered a guard to fire tear-gas (including a skat shell) at the groups.  A “skat shell” launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters. The shell hit Rangel, injuring him. Rangel sued.  The Department conducted an internal use-of-force review that “revealed several mistakes” as to how the incident was handled, noting that the skat shell was “designed for outdoor areas” only and “that chemical agents should have been administered through the door rather than in the middle of the housing area.” The official who authorized the use indoors was disciplined. The Department filed a plea to the jurisdiction, which was denied.

The Texas Supreme Court held the supervisor’s order to use the tear-gas gun was a “use of tangible personal property” under the TTCA. It was not the use by the individual guard following orders, but was a “use” by the supervisor who authorized an order the gun be put into play. The distinguishing factor is the order by the supervisor specifically to use the weapon, and not merely making the weapon available to the guard with no direction. [Comment: the Court spent multiple pages in the opinion on this distinction.] This also had an interplay with the court of appeals opinion on the intentional tort exceptions. However, the immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.” TEX. CIV. PRAC. & REM. CODE § 101.057(1). Rangel argued that the circumstances did not constitute a riot or there was a fact issue as to whether a riot existed. Using the plain and ordinary meaning of the term “riot” also includes how the term is used in other statutes, including the Penal Code. The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.” TEX. PENAL CODE § 42.02(a). While not identical, that definition is in line with the ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events but also the immediate danger.  As a result, the undisputed facts of the case constitute a riot as a matter of law. As a result, no waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Opinion by Justice Lehrmann.  Docket page found here.