14th Court of Appeals holds ex-employees trigger date to file a charge of discrimination only occurs when employer’s discriminatory animus becomes sufficiently clear and he has suffered a tangible employment action

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Metropolitan Transit Authority of Harris County, Texas v. John Carter, 14-19-00422-CV (Tex. App. – Houston [14th Dist.], January 14, 2021)

This is an employment dispute where the 14th Court of Appeals affirmed the denial of a plea to the jurisdiction filed by the Metropolitan Transit Authority (Metro).

Carter worked as a bus operator for Metro. In 2014 Carter was involved in a vehicle accident that Metro categorized as “preventable.”  Carter’s union representative requested a reconsideration. Due to polio as a child, Carter walked with a noticeable limp. When reviewing the video of the accident, the superintendent (Ramirez) believed Carter did not have sufficient leg strength to lift his leg off the accelerator and instead had to use his arm to move his leg off the accelerator and onto the brakes. Cater had to submit to a fitness-for-duty evaluation and was held to be capable of performing the job. Ramirez refused to put Carter back to work. Ramirez required Carter to pass a Texas Department of Public Safety Skilled Performance Evaluation (SPE) to determine if he was capable of driving commercial vehicles, which had not been done by Ramirez before. However, Carter passed. From June 2014 to January 2016, Metro moved Carter from place to place within the agency. In January 2016, after receiving notification that Carter had not passed the January 2016 medical examination, Metro placed Carter on involuntary medical leave. However, Carter had received a 2015 medical certificate noting he could operate commercial vehicles. At this point, Carter filed a charge of discrimination.  In March of 2017, Metro terminated Carter. Carter sued for disability and age discrimination and retaliation. Metro filed a plea to the jurisdiction, which was denied. Metro appealed.

The court first held Carter’s claims were not time-barred. Even though he was on notice in 2014 that he may have been subject to discrimination, his wages did not change and he was not otherwise impacted until placed on medical leave in 2016. He timely filed his charge of discrimination in 2016 and was terminated in 2017. The court specifically stated “[i]t was only when Metro placed Carter on involuntary medical leave even though he possessed a valid, two-year CDL and DOT medical certification, that Metro’s discriminatory animus became sufficiently clear and he had suffered a tangible employment action, that Carter was required to file a charge of disability discrimination.”  As a result, he timely filed his charge and brought suit. The court then held that fact issues exist as to the remaining aspects of the disability discrimination and retaliation charges.

If you would like to read this opinion click here. Panel consists of   Chief Justice Christopher, Justice Wise and Justice Zimmerer. Memorandum Opinion by Justice Zimmerer. Docket page with attorney information found here.

Beaumont Court of Appeals holds City is not liable for alleged failure to create a police report, failure to investigate, or failure to prosecute as asserted by Plaintiff

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Caryn Suzann Cain v. City of Conroe, Tex., et al., 09-19-00246-CV, 2020 WL 6929401 (Tex. App.—Beaumont Nov. 25, 2020)

 This is an interlocutory appeal from the trial court’s order granting the City’s motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment.

Plaintiff, Caryn Suzann Cain, filed a pro se civil suit against the Conroe Police Department alleging police negligence in the department’s investigation and disposal of her complaints regarding disputes with her neighbors. Cain asserted the City failed to render police assistance and file an incident report after she was allegedly assaulted by her neighbor’s dog, and that the Department showed bias towards her neighbor, a state correctional officer, who allegedly continued to harass her over a period of eighteen months.  Cain later § 1983 claims against the City.  In response, the City defendants filed a motion to dismiss under §101.106(e) of the Civil Practice and Remedies Code, a plea to the jurisdiction, and traditional motion for summary judgment.  The trial court granted all motions.

The officers were entitled to dismissal of the tort claims under §101.106(e).  Next, under the TTCA if an injury does not arise from a city employee’s operation or use of a motor-driven vehicle, then the city is not liable for its employee’s negligence. “Arises from” requires a plaintiff to show a direct connection between the injury and the employee’s vehicle operation or use.  Simply using a patrol vehicle’s radio is not actionable. Similarly, the court noted mere involvement of tangible personal property in an injury does not, by itself, waive immunity.  The tangible personal property must do more than create the condition that makes the injury possible. Here, no tangible personal property was negligently used to result in any of the alleged injuries. Next, to allege a valid constitutional rights violation under § 1983 against the City, Cain was required to assert a deprivation was caused by a policy, custom, or practice of the City. A municipality is not liable under § 1983 for the unconstitutional acts of its non-policymaking employees.  The Court determined Cain did not allege sufficient facts showing an unconstitutional policy or custom was being implemented. Finally, the Due Process Clause does not require the State to protect life, liberty, and property of its citizens against invasion by private actors, and it generally confers no affirmative right to government aid.  Thus, Cain’s allegation that the City failed to protect her against her neighbor did not constitute a due process violation.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Steve McKeithen and Justices Hollis Horton and Leanne Johnson.  Opinion by Chief Justice McKeithen.  Docket page with attorney information can be found here.

 

El Paso Court of Appeals holds courts analyze the substance of pleadings, not the form of creative pleadings trying to reframe the claims.

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Joseph O. Lopez v. The City of El Paso, 08-19-00123-CV (Tex. App.—El Paso Dec. 9, 2020)

This is an interlocutory appeal from the trial court’s order granting the City’s plea to the jurisdiction in which the El Paso Court of Appeals affirmed.

Plaintiff, Joseph O. Lopez sued the City of El Paso, for alleged injuries he sustained as the result of an arrest by two City police officers.  Lopez alleged that during the arrest, the officers forcefully pulled him from his vehicle; flung him to the ground, pinned him and applied pressure on his torso, head, and neck.  He also asserts one of the officers struck him in the head multiple times.  Lopez further alleged that the officers negligently employed a baton while using excessive force. The City filed a plea to the jurisdiction, which was granted.

On appeal, the Eighth Court of Appeals addressed the sole issue of whether the trial court abused its discretion by deciding that Appellant had failed to allege sufficient facts to support a waiver of immunity under the Texas Tort Claims Act (“TTCA”).  First, the court noted that § 101.106(a) bars a plaintiff from suing city employees once the plaintiff has elected to sue the city first, even in cases where city employees might otherwise be solely and personally liable in their individual capacities.  The court then acknowledged Lopez had creative pleading in an attempt to avoid characterizing the officers’ conduct as an intentional tort.  It noted that when courts analyze a plaintiff’s pleadings to determine the existence of waivers of immunity, courts look at the substance of the pleadings, not to their characterization or form. The TTCA does not apply to intentional acts including assault, battery, false imprisonment, or any other intentional tort.  In this case, the police conduct alleged by Lopez, the substance of his claims, fell under the category of intentional torts, specifically assault and battery, not negligence.  As a result, the alleged tortious conduct did not sustain a waiver of immunity under the TTCA.  The plea was properly granted.

 

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

 

14th Court of Appeals holds describing the general place where an injury occurs is sufficient for Tort Claims Act notice.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Metro. Transit Auth. of Harris County v. Tracey Carr, No. 14-19-00158-CV (Tex. App.—Houston [14th]  January 12, 2021) (mem. op.).

In this appeal from a trial court’s order denying the city’s plea to the jurisdiction in a vehicle accident tort claims case, the 14th Court of Appeals affirmed the denial.

The plaintiff sued the transit authority after she was injured on a bus.  The plaintiff was injured when boarding a bus due to the driver’s sudden acceleration.  The plaintiff alleged that the injury occurred on October 25, 2017 on or around 7:15 p.m. near a specific intersection on Bus 3578.  She stated that the driver was male and either Hispanic or Caucasian.  The plaintiff injured her back, neck, and spine.  The plaintiff notified the transit authority of this information within six months of her alleged injury.  The transit authority filed a plea to the jurisdiction asserting the notice was insufficient because she gave the wrong bus number in her notice.  The trial court denied the Authority’s plea to the jurisdiction and the Authority appealed.

A plaintiff is required to present written notice to the governmental entity within six months of an injury that could give rise to a claim under the Texas Torts Claim Act.  The notice has to “reasonably” describe the injury or damage, the time and place of the incident in question, and the facts of the incident.  Tex. Civ. Prac. & Rem. Code § 101.101(a).  Whether a notice provided to the governmental entity is timely and adequate is a question of law for the court to decide.  The court of appeals upheld the trial court’s denial of the transit authority’s plea to the jurisdiction, holding that the plaintiff’s notice was sufficient because she provided notice of the location, the injury, and the facts of the injury.   The description was sufficient with the street intersection despite the allegation that the bus number of the bus where the accident occurred was incorrect.

If you would like to read this opinion click here.   Panel consists of Chief Justice Christopher and  Justices Wise and Zimmerer. Opinion by Justice Ken Wise.

 

City not liable for accident caused by stolen ambulance says San Antonio Court of Appeals

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The City of San Antonio v. Smith, 04-20-00077-CV (Tex.App.—San Antonio, November 25, 2020) (mem. op.)

This is an appeal from a denial of the city’s plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case stemming from the operation of an ambulance.

Two paramedics were dispatched to a “Code 3” emergency in an apartment complex, warranting the use of the ambulance’s lights and sirens while in transit. When they arrived, they parked the ambulance, left the emergency lights on, and left the vehicle idling. Neither paramedic had heard of an idling ambulance being stolen nor had any inclination that the area would pose such a risk. While they were attending to the patient, an unknown person stole the ambulance and collided with two cars. The occupants of the other vehicles sued the city under the TTCA, alleging their injuries arose from the operation or use of a motor vehicle or were caused by a condition or use of tangible personal property. The allegation was that the City negligently left the ambulance unattended and it failed to use an adequate anti-theft device. The City filed a plea to the jurisdiction, primarily focusing on the facts that the ambulance was not operated by a city employee and that nonuse of property do not fall under TTCA’s’ waiver of immunity. The trial court denied the City’s plea and the City appealed.

The Court quickly dismissed the “operation of a motor vehicle” claim, as it was undisputed that no city employee was operating the ambulance. The appellees’ “condition or use of tangible personal property” claim focused on case law holding that items lacking an “integral safety component” fall under the TTCA’s waiver of immunity. However, the Court distinguished that such cases are not only the outer bounds of what could fall under the TTCA, but also inapplicable here because the ambulance did have anti-theft measures: door locks and an alarm. Thus, the appellees’ argument was not that the ambulance lacked an integral safety component, but that the ones present were not enough, and that does not waive immunity under the TTCA. Ultimately, the Court reversed the denial and dismissed the appellees’ case.

If you would like to read this opinion, click here. Panel consists of Chief Justice Marion, Justice Martinez, and Justice Rios. Memorandum opinion by Chief Justice Marion.

Fifth District Court of Appeals holds property owner’s pleadings adequately alleged waiver of immunity in sewer backup case due to overtaxed pumps

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The City of Blue Ridge v. Rappold, 05-19-00961-CV (5th Cir. Dec. 3, 2020) (mem. op.)

This is an interlocutory appeal from a denial of the City’s plea to the jurisdiction, in a sewage backflow case.

The Rappolds brought a claim under the Texas Tort Claims Act (“TTCA”), alleging that the City’s wastewater treatment facility (“WWTF”) failed in its operation, causing raw sewage and stormwater to cover portions of the Rappolds’ property several times over the course of three years.  The City requested discovery to which Rappold objected.  The trial court considered the plea prior to the City’s motion to compel discovery. The first sewage backup event was allegedly due to an electrical failure in the pumps while the remaining were due to high levels of rain creating too much waterflow for the pumps to handle. The plea was denied and the City appealed.

The court first held that identifying a specific person in the pleadings is not necessary to establish causation, only that a City employee acted negligently within the course and scope of their duties. It also disagreed with the City’s claim that the Rappolds’ claim indicates non-use and, similarly, fails to show operation. The court points to allegations that the City failed to properly maintain the WWTF and that the City’s employees were not using the WWTF as designed. These additional allegations created a sufficient nexus between the damage and the City’s actions to adequately allege that the City was negligently using the motor-driven equipment. Similarly, the City employees’ knowledge that the WWTF is unable to handle large amounts of water it receives at times indicates negligence in continuing to operate the pumps in such a condition. The court also found proper pleading of the “condition or use of tangible personal property”  as different components failed at different times.  Finally, it held that the Rappolds were able to properly plead a takings claim by alleging that the City’s knowledge of the WWTF’s inadequacy resulted in the City using the Rappolds’ land as an overflow depository.

If you would like to read this memorandum opinion, click here. Panel consists of Justice Molberg and Justice Carlyle. Memorandum opinion by Justice Carlyle.

Tyler Court of Appeals holds District is immune from sewer backup as 20 year old plastic coupler which failed was not part of the motor system

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Sean Self v. West Cedar Creek Municipal Utility District, 12-20-00082-CV, (Tex. App – Tyler, Jan. 6, 2021)

This is an appeal from the granting of a plea to the jurisdiction in a sewage backup case in which the Tyler Court of Appeals affirmed the order.

Self and his wife Kimberly entered into a contract with the District in 2012  water and sewer services. After sewage backed up into their home in April 2015, the District made some repairs to the vault system. Another backup occurred in 2016 and Sean Self sued the District alleging negligent use of motor-driven equipment, premises defect, unconstitutional taking, non-negligent nuisance, and breach of contract. The District filed a plea to the jurisdiction, which was granted. Self appealed.

It is undisputed that a plastic coupler (known as a quick connect) failed causing the backup. Self argued the motors, pipes and couplers are all one system. The court explained in detail how the Self system worked. The coupler gives District employees the ability to remove the pump without cutting pipes. There is no motor in the coupler. It merely assists in disconnecting the pump if it needs to be worked on. If the coupler fails, gravity will cause any sewage coming from a higher-grade property to backfill Self’s property. Self’s expert plumber testified the pumps used can cause high pressure, which could potentially break the coupler, but he did not know that is what occurred in this instance.  However, there was no evidence that the coupler assists in sewage collection other than to the extent it helps maintain the connection between the pump and the discharge line. The evidence shows that, if the coupler breaks, whether the pump is on or not, the sewage in the tank would flow out to the ground or through the line in the tank and back into the house, due to the force of gravity, not the operation or use of motorized equipment. Under a premise defect theory, the duty owed by an owner of premises to an invitee is not that of an insurer. The coupler was placed in 1995. The fact that materials deteriorate over time and may become dangerous does not itself create a dangerous condition, and the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. No evidence of actual knowledge existed. In the context of an inverse condemnation claim, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” A taking cannot be established by proof of mere negligent conduct. No knowledge of intent is present. While Self alleged a claim for non-negligent nuisance, there is no separate waiver of governmental immunity for nuisance claims. Finally, as to the breach of contract claim, no goods are services were provided to the District, it was the District providing services to Self. As a result, no waiver of immunity exists.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Affirmed. Opinion by Justice Neeley. Docket page with attorney information found here.

Second Court of Appeals holds general law city has inherent power to require solid waste haulers to obtain a license

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Builder Recovery Services LLC v. The Town of Westlake, Texas, 02-20-00051-CV,  (Tex. App. – Fort Worth, Jan. 1, 2021)(mem. op.).

This is a declaratory judgment/ordinance invalidation suit brought by a solid waste collector where the Fort Worth Court of Appeals affirmed the Town’s power to require licenses. [Warning, this is a long opinion at 56 pages].

BRS contracts with home builders in the Town of Westlake to remove the temporary construction waste that the builders generate and place a dumpster on the property during construction. The dumpsters are towed to each site and place as much as 20,000 pounds of weight upon the Town’s roads, with as many as ten visits to each site during construction. BRS initially raised concerns that the Town’s regular solid waste hauler (Republic) could not be the sole hauler for temporary construction waste. The city council delegated the Town’s staff to meet with the builders to discuss amendments to the Town’s ordinances in order to address the issue. The Town eventually passed an ordinance allowing third-party haulers like BRS to obtain licenses for temporary construction waste services in imposed certain regulations on the license. BRS brought suit asserting, among other things, that the license fee was not tied to actual administrative costs, that the ordinance was preempted by state law, and challenging the Town’s authority to pass the ordinance. After a bench trial, the trial judge found largely in favor of the Town but did invalidate the license fee calculation. BRS appealed.

The court first went through a detailed analysis of the power distinctions between general law cities and home rule cities. While the Town is a general law city, the court held it has the power to regulate solid waste collection under §361.113 of the Texas Health and Safety Code. The court rejected BRS’ argument that the section does not empower the Town to issue licenses as a license is an inherent part of the regulatory power.  Licenses are one means for a governmental agency to regulate activities that the Town is empowered to regulate. The court analyzed the various powers of the Town, including inherent powers and noted the power to regulate carries with it all means to accomplish the regulation, including licensing. Further, BRS failed to establish the ordinance was invalid because it failed to negate all conditions which would warrant the ordinance.  Further, such rules do not conflict with the franchise section of the same subtitle of the statute. Franchises and licenses are separate creatures. The court analyzed the wording of the various health and safety code sections and determined the power to license is not preempted by any other portion of the code. It held a “dumpster” is not the same as a “container” as that term is defined under the Solid Waste Disposal Act. The court determined the license fee issue was moot due to an amended ordinance.  However, due to an outstanding issue of attorney’s fees, the court remanded to the trial court for disposition.

If you would like to read this opinion click here. Panel consists of Justice Bassel, Justice Womack and Justice Wallach.  Memorandum opinion by Justice Bassell.

The Tenth Court of Appeals held immunity waived for airport lease based on improvements made by tenant

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Cleburne v. RT General, LLC, No. 10-20-00037-CV (Tex. App.—Waco  December 16, 2020) (mem. op.).

This is an interlocutory appeal from a trial court denial of the city’s plea to the jurisdiction on a breach of contract and related claims regarding an airport lease. The Waco Court of Appeals affirmed the denial.

The plaintiff sued the city after the city attempted to evict the plaintiff from the city’s airport under a lease agreement with the plaintiff.  The city and plaintiff entered into a lease agreement for airport facilities where the plaintiff could use the airport facilities at no charge for ten years because the plaintiff had expended over $300,000 in repairing the city’s airport facilities.  After the first ten years, the plaintiff was required to pay rent for use of the facilities.   Three years into the lease, the city sent a letter of eviction to the plaintiff, and the plaintiff sued the city for breach of contract, inverse condemnation, declaratory judgment, and fraud.  The city argued it had immunity from suit because the airport operation is a governmental function and the contract was missing an essential term, the rental payments for the first ten years.  The trial court denied the city’s plea to the jurisdiction.

Immunity is based on whether a function on which liability is based is a governmental or proprietary function.  Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 146 (Tex. 2018).  Operation of an airport is a governmental function.  Tex. Transp. Code § 22.021(a)(2).  Immunity from a governmental function can be waived by a contract claim if the contract falls within the provisions of Chapter 271 of the Local Government Code including stating the essential terms of the contract.  Tex. Loc. Gov’t Code § 271.152.  While price is an essential term of an agreement, the court of appeals held that past consideration could meet this requirement.  The court of appeals also held that claims for declaratory judgment and inverse condemnation can move forward on the same set of facts because immunity is waived under breach of contract.

Chief Justice Gray dissented by footnote stating that there was insufficient evidence that goods or services were provided to the city under the lease agreement.  Chief Justice Gray would also render judgment on the other claims as they are creative pleading efforts that should be dismissed as attempts to avoid the governmental immunity issue.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by John Neill and Chief Justice Gray dissenting by footnote within the opinion.

 

The Eleventh Court of Appeals held that failure to monitor or provide medical care for an inmate who was injured in a county jail is insufficient to waive immunity under the Tort Claims Act.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

James Garms v. Comanche County, No. 11-19-00015-CV (Tex. App.—Eastland   December 18, 2020) (mem. op.).

In this appeal from a trial court’s judgment granting the city’s plea to the jurisdiction on a tort claims case, the Eastland Court of Appeals affirmed the trial court’s grant of the plea because injuries allegedly caused by failure to monitor or provide medical care is a nonuse of tangible personal property which does not waive immunity under the Tort Claims Act.

The plaintiff sued the county after he was injured in the county jail.   The plaintiff was an inmate in the county jail when he was injured.  He had informed the jail staff that he felt unwell and his blood pressure was checked.  Despite a high blood pressure reading, the duty nurse was not notified and the plaintiff was not monitored.  The plaintiff lost consciousness and sustained a serious head injury.  The plaintiff was left unattended with a serious head injury which caused further issues.  The plaintiff sued the county for negligence caused by a faulty motorized camera and failure to monitor and provide medical care to the plaintiff. The trial court granted the county’s plea to the jurisdiction.

Immunity from a governmental function can be waived under the Tort Claims Act if the injury is caused by: (1) the operation or use of motor-driven equipment; or (2) use of tangible of personal property.  Tex. Civ. Prac. & Rem. Code § 101.021.  The plaintiff must also show a nexus between the injury and the uses listed in the Tort Claims Act.  LeLeaux v. Hampshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).  Claims based on inaction of government employees or nonuse of tangible property are insufficient to waive immunity under the Tort Claims Act.  Harris Cty. v. Annab, 547 S.W.3d 609, 614 (Tex. 2018).  The court of appeals held that the claims for failure to monitor or provide medical care did not waive the county’s immunity.  The court of appeals upheld the trial court’s grant of the city’s plea to the jurisdiction.

If you would like to read this opinion click here.   Panel consists of Chief Justice Bailey and  Justices Trotter and Wright. Opinion by Justice W. Stacy Trotter.

 

First Court of Appeals holds transporting patient to hospital was Texas Medical Liability Act claim, but passenger’s claim was proper under TTCA

City of Houston v. Najla Hussein and Asha Obeid, No. 01-18-00683 (Tex. App. — Houston November 19, 2020) (mem. op.).

This is a case involving the interplay between the Texas Tort Claims Act (“TTCA”) and Texas Medical Liability Act (“TMLA”) stemming from a single motor vehicle collision. The City appealed the trial court’s order denying its motion for summary judgment and its motion to dismiss the negligence suit brought by plaintiffs, Najla Hussein and Asha Obeid.

Hussein’s mother, Obeid, was suffering chest pain and called 911 in response. First responders arrived and placed Obeid in the ambulance and began to transport Hussein and her mother to a hospital.   Mid transport, Obed made a request to be transported to a different and specific hospital. In response to her request, the ambulance exited the tollway and while driving through a narrow toll booth, the left and right sides of the ambulance struck the booth allegedly causing injuries to Obed and her daughter. Plaintiffs filed suit alleging the negligent operation of a motor vehicle. The city filed a motion for summary judgment asserting the application of the TTCA’s “emergency responder exception” while also moving to dismiss their claims arguing that they constitute health care liability claims under the TMLA.  The trial court denied both motions.

In considering the City’s motion to dismiss under the TMLA, the court of appeals determined that Obed’s claim constituted a health care liability claim, and as such, was required to submit an expert report, with a curriculum vitae for the expert whose opinion is offered, on a defendant physician or health care provider within 120 days of the filing of the City’s answer. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), 74.351(a),(b). As no expert report was submitted, the court dismissed Obed’s claim with prejudice, reversing the trial court’s judgment. However, the TMLA claim related only to the mother (Obed) who was receiving treatment, not to Hussein.  As to Hussein’s claim for personal injuries under the TTCA, the emergency responder exception requires the driver to be responding to an emergency.  While lights and sirens were used when traveling to Obed’s location, her EKG was normal, and no lights and sirens were on when he impacted the toll barriers. As a result, a fact question exists on whether an emergency existed.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Goodman and Justice Countiss. Memorandum Opinion by Justice Countiss.

The Tenth Court of Appeals affirmed the trial court’s summary judgment against the plaintiff developer because it did not challenge all possible grounds supporting the summary judgment order

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

David A. Bauer, et al. v. City of Waco, No. 10-19-00020-CV (Tex. App.—Waco  December 9, 2020) (mem. op.).

The Waco Court of Appeals affirmed a trial court’s judgment dismissing the plaintiff’s vested rights and takings claims on summary judgment.

The plaintiff developer sued the city after being required to provide an easement for a water line and meet other requirements in the city’s code prior to construction of its project.  The city required changes to various permit applications of the plaintiff prior to approval and required an easement for a previously placed waterline. The plaintiff developer sued the city for vested rights and takings, arguing the regulations were inapplicable due to the vesting of its original permit.  Among its summary judgment arguments, the City argued that a declaration of the plaintiff’s vested rights would not resolve the issue because the ordinance in place at the time of initial permit vesting would yield the same result.  As to the required easement, the City argued that the plaintiff did not seek a variance from the easement and could not claim a taking.  The trial court granted summary judgment in favor of the city but the order did not provide specific reasons.

To appeal a summary judgment, the appealing party has to prove that any or all bases for the summary judgment is error.  Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Lesher v. Coyel, 435 S.W.3d 423, 429 (Tex. App.—Dallas 2014, pet. denied). To establish a claim for vested rights under Chapter 245 of the Local Government Code the plaintiff needs to show that the city is required to review a permit application based on the regulations in effect at the time the original application is filed.  See Tex. Loc. Gov’t Code § 245.002; Milestone Potranco Dev., Ltd., v. City of San Antonio, 298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied).  For a takings claim, the plaintiff needs to show that the action where the property was taken was done without consent of the property owner and that there has been a final decision regarding the application of the regulations to the property at issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998). The court of appeals upheld the trial court’s judgment on both the vesting rights and takings claims because the plaintiff failed to disprove every basis for the summary judgment including that the ordinance in effect for vesting would not have changed the result and that the original property owner had given consent for the installation of the water line.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Chief Justice Tom Gray.

 

Third Court of Appeals holds church’s motion for new trial in water rate EDJA case held valid given unique and troubling circumstances in case

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City of Magnolia v Magnolia Bible Church, et al., 03-19-00631-CV (Tex. App. – Austin, Dec. 18, 2020)

This is an interlocutory appeal from an order granting a new trial and denying a plea to the jurisdiction in a water rate case in which the Austin Court of Appeals affirmed the granting of new trial and the denial of the City’s plea.

This case involves the interplay between the provisions of the Expedited Declaratory Judgment Act (“EDJA”)(which deals with public securities), the Texas Rules of Civil Procedure, and the constitutional principles of due process. The City adopted an ordinance relating to the City’s water-system rates. In addition to residential and commercial accounts, the ordinance created a new category of water user, the “Institutional/Non-Profit/Tax-Exempt accounts,” which, among others, covered churches.  The Churches opposed the new category and surcharge as being discriminatory under the Tax Code and the Texas Religious Freedom Restoration Act (“TXRFRA”).  The City preemptively filed a validation suit under the EDJA to validate the bonds and rates tied to the bonds, but only notified the public through newspaper publications. It did not expressly notify the church of the suit. The trial court granted the City’s validation of the rates. The Church later filed a regular Uniform Declaratory Judgment Act (“UDJA”) claim asserting the rates were discriminatory. When the City informed the Church of the final judgment under the EDJA claim, the church filed a motion for new trial in the EDJA trial court (under Tex. R. Civ. P. 329). The City filed a plea to the jurisdiction asserting the trial court lost plenary power over the case.  The trial court denied the plea and granted the motion for new trial. The City appealed.

Chief Justice Rose held that due process does not require personal service in all circumstances, but any use of substituted notice in place of personal notice—e.g., notice by publication—must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Notice by publication is insufficient when the name, address and interest are known.  The EDJA empowers an issuer of public securities to seek an expedited declaratory judgment concerning “the legality and validity of each public security authorization relating to the public securities,” including, as relevant here, the legality and validity of “the imposition of a rate, fee, charge, or toll.” Tex. Gov’t Code § 1205.021(2)(E). Ordinarily, notice by publication satisfies due process as to the parties bound by an EDJA judgment because the EDJA permits only in rem declarations concerning property rights and is notice to the public. However, in this case, the church challenged the application under religious freedom grounds.  Due process, therefore, requires more than notice by publication. Because notice to the Churches was constitutionally insufficient, the resulting judgment was void and can be challenged at any time. Justice Trianna took a slightly different approach, using the text of the EDJA and holding that it does not conflict with Rule 329 (allowing a new trial for persons who did not receive notice) and Rule 329 extends the plenary power of the court for a certain period of time.  Since the Church met the time periods under Rule 329, it was within the trial court’s discretion to grant or deny the motion or new trial.

Justice Baker’s dissent holds that such an interpretation undermines the intent of the EDJA which is to quickly decide the issue then preclude future claims from any other person who challenges the rate and bond applications.   He asserts Rule 329 only applies when a defendant (not an interested person) does not appear after service by publication.

If you would like to read the various opinions, Chief Justice Rose’s concurring opinion is here, Justice Trianna’s concurring opinion is here, and Justice Baker’s dissent is here.

U.S. 5th Circuit held reasonableness of an ADA accommodation request is normally a fact issue plus alleged discrimination is not enough for discriminatory firing claim under ADA

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Jones v. Lubbock County Hosp. Dist., 19-11364, 2020 WL 6787549, at *1 (5th Cir. Nov. 18, 2020)

 This is an interlocutory appeal of a granting of summary judgment for the University Medical Center (“UMC”) and appealed by its former employee, Ricky Jones. The U.S. 5th Circuit affirmed in part, vacated in part, and remanded in part.

Jones, a respiratory therapis, has breathing problems and relies on supplemental oxygen. He requested UMC to accommodate his condition by letting him wear a portable oxygen device while working, but UMC denied the request. Subsequently, Jones took a few weeks of leave after working for a few days with his supplemental oxygen device, applied for, and was offered a secretarial position with UMC. Jones denied the offer after he returned from leave and felt he could without his device. Jones again requested the use of the device, was denied, then took a few weeks of leave. During that time, he sought other work around UMC but found no opening. After a third request was denied, he put in his two weeks’ notice and resignation. During the two weeks, Jones was fired for sending messages which violated UMC’s policy against gossip. Jones filed suit. UMC filed a motion for summary judgement which the trial court granted. Jones appealed.

The Fifth Circuit vacated the lower court’s ruling, stating that whether a proposed accommodation is reasonable is generally a fact issue and that Jones showed a triable fact issue in how he and UMC interpreted his request.  However, for Jones’ discrimination claim, the Fifth Circuit held that the evidence of UMC’s alleged failure to accommodate did not offer evidence to connect it to his being fired. UMC was able to show a legitimate reason for Jones’ firing which Jones failed to rebut.  As a result, the discrimination claim remained dismissed but the failure to accommodate claim was remanded.

If you would like to read this per curiam opinion click here. Panel consists of Judge Stewart, Justice Duncan, and Justice Wilson.

The Ninth Court of Appeals affirmed judgment for City in First Amendment/Whistleblower claims since no causal connection was present

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Samer Shobassy v. City of Port Arthur, No. 09-18-00363-CV (Tex. App.—Port Arthur  November 19, 2020) (mem. op.).

In this appeal from a trial court’s judgment dismissing the plaintiff’s retaliation-in-employment case.  The Beaumont Court of Appeals affirmed the trial court’s summary judgment.

The plaintiff worked as an assistant city attorney for the city for five years and the city attorney was the plaintiff’s supervisor.  During the plaintiff’s employment, he discussed the city’s compliance with purchasing law in the context of his employment as an assistant city attorney.  He was terminated by the city attorney and was given a termination notice which indicated that he was terminated because, among other things, he failed to follow-up on tasks and communicate with the city attorney and failed to complete the tasks assigned to him.  Plaintiff sued the city in district court claiming a Whistleblower Act claim and that his termination violated his First Amendment rights.  The city filed a plea to the jurisdiction and no evidence motion for summary judgment which the trial court granted.

To establish a claim for retaliation under the Whistleblower Act, the plaintiff has to show that the employer’s termination would not have occurred had the plaintiff not made a good faith allegation of violation of law to an appropriate law enforcement authority.  Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995).  The report has to be a “but-for” cause of the termination.  Office of the Attorney Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex. 2020). The plaintiff was unable to make the causal connection.  To establish a claim for a free-speech retaliation claim, the plaintiff must show the plaintiff was terminated for engaging in constitutionally protected speech.  Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996).   The speech in question is not protected if it is spoken within the context of the employee’s official duties.  Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 1998). The Whistleblower claim was dismissed because the claims of illegal conduct by the City were not made until after the termination. The free speech claim was invalid because his speech was performed and related to is employment position. The dismissal of both was proper.

If you would like to read this opinion click here.   Panel consists of Chief Justice McKeithen and  Justices Kreger and Horton. Opinion by Justice Hollis Horton