Dallas Court of Appeals holds officer entered intersection in good faith – entitled to official immunity

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City of Dallas v. Rosa Rodriguez, 05-19-00045-CV, (Tex. App. – Dallas Texas, August 7, 2019)

In this Texas Tort Claims Act (“TTCA”)/motor vehicle accident/emergency responder case, the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rodriguez was injured when a Dallas police officer disregarded a red light and collided with her.  The officer driving the vehicle provided the accident investigation as well as her own affidavit, noting she was responding to an emergency call regarding a person who was breaking windows and threatening to shoot a woman in her home.

The officer stated she approached the intersection and came to a complete stop before proceeding through the intersection. The officer also stated that “all traffic on the northbound side had stopped and was giving [her] passage.” Rodriguez asserted the officer did not stop, and the PD had a policy requiring officers to come to a complete stop. It was discovered after the accident that the officer’s lights and sirens were not working properly, based on dash cam footage. The video’s GPS “speed” indication shows the officer’s speed at 23 mph just before she appears to come to a complete stop. The speed indicator quickly drops to 9 mph and then to 2  mph after after she stopped; the indicator immediately shows her speed at 3 mph as she slowly entered the intersection. The officer’s affidavit stated the potential danger posed by proceeding through the intersection was far less, considering all factors, than the danger posed to the officers and victims involved in the emergency at issue.  The City filed a plea to the jurisdiction arguing official immunity, which was denied.

The court first noted that Rodriguez’ objections to the officer’s affidavit (i.e., hearsay and best evidence) were not sufficiently specific. The court held that the “stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before” the officer started moving again. The video also indicates “triggers” including lights, siren, and brakes. The officer testified she understood that, in making discretionary decisions during emergency calls, she must weigh the need to respond urgently to the emergency call against the risk involved to the general public when responding to the emergency. She explained her thought process on the record.  The court held that the fact a collision occurred does not equate to a showing that the law was violated and is insufficient to raise a fact issue on recklessness.  An officer’s own affidavit can establish good faith, and an officer’s good faith is not rebutted by evidence that she violated department policy.  The record shows the need/risk analysis performed by the officer. Rodriguez failed to establish a fact issue as to recklessness. As a result, the plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices Bridges, Brown and Nowell. The attorneys listed for Dallas County are Bonnie Snell, Amy I. Messer, James B. Pinson, Jason G. Schuette, and Nicholas Palmer. The attorneys listed for Rosa Rodriguez are Susan B. Smith, Billy McGill Jr., and Briana Crozier.

Developer properly pleaded claims County failed to maintain roadways, Fort Worth Court of Appeals says

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Wise County, et al v. Katherine Mastropiero02-18-00378-CV (Tex. App. – Fort Worth, August 9, 2019)

In this case, the Fort Worth Court of Appeals held that the district court had jurisdiction to hear a property owner’s claims the County must maintain roads in her subdivision.

Mastropiero (the developer) began to develop Prairie View Estates, a subdivision in Wise County. In Phase Two of the subdivision, the county refused to maintain the roadways. The plat described several roads and stated that the roads were “dedicate[d] to the public.” Mastropiero alleged that the owners, residents, and members of the public have used the roads continuously ever since. The final plat was then endorsed and filed in the County’s records.  Mastropiero asserted she did not have to file a maintenance bond after the  County accepted the roads but that the County was required to maintain the roads. She sued for a failure to maintain, and the County filed a plea to the jurisdiction, which was denied.

Article V, § 8 of the Texas constitution provides that the district court has supervisory jurisdiction to review certain actions of the County Commissioners Court. Mastropiero has alleged that the Commissioners Court failed to perform a clear statutory duty.  The County asserted it never “accepted” the dedication and thus has no statutory duty. Recording a map or plat showing streets or roadways does not, standing alone, constitute a completed dedication as a matter of law. But acceptance does not require a formal act; implied acceptance is also sufficient, including use of the roads by the public. The determination of whether a dedication has been accepted is a question of fact. As a result, from a jurisdictional standpoint, Mastropiero properly pleaded a cause of action against the County. Additionally, the suit against a single commissioner, but only in her official capacity, is the same as a suit against the County. A suit to compel prospective action is viable in an ultra vires suit, as is raised here.  The plea was properly denied.

If you would like to read this opinion, click here. Panel consists of Justices Birdwell, Bassel and Womack. Memorandum opinion by Justice Birdwell. The attorney listed for the County is James Stainton. Ms. Mastropiero appeared pro se.

U.S. 5th Circuit holds deputy entitled to qualified immunity on state-created-danger claims, but not wrongful arrest claims

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Keller v. Fleming, 18-60081(5th Cir. July 23, 2019)

In this §1983 case, the U.S. 5th Circuit reversed the denial of an officer’s qualified immunity defense for a state-created-danger claim but affirmed denial based on unlawful arrest claims.

Gerald Simpson was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness after Simpson had been dropped off at the county line by Sheriff’s Deputy Darrin Fleming.  Simpson was originally stopped while walking down the roadway, but his speech was unintelligible.  The Plaintiffs alleged Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. The submitted evidence establishes Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Fleming drove Simpson in that direction to the point he reached the end of Attala jurisdiction and let Simpson out.  Fleming was not aware Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. The family sued Fleming and the County and Fleming filed a motion for summary judgment arguing qualified immunity.  The motion was granted in part and denied in part. Fleming appealed.

The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause.” A police officer may approach a person for purposes of investigating possible criminal behavior (i.e. Terry stop). The court determined a reasonable person in Simpson’s position would not have felt free to leave. The transport was also not reasonable given the circumstances. The seizure was not for Terry stop purposes and was significantly more intrusive than a brief detention for identification or investigatory purposes.  It also was law previously established which Deputy Fleming should have known. As a result, it was proper to deny qualified immunity for the Fourth Amendment claim.

Next, for Fourteenth Amendment purposes, as a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. An exception exists in other circuits for a “state-created-danger” theory where the entity and plaintiff are in a special relationship. However, a “special relationship” only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order.  The law was not clearly defined at the time to allow Deputy Fleming to know it might apply. The Fifth Circuit has never recognized this “state-created-danger” exception. As a result, the Fourteenth Amendment claims should have been dismissed. Finally, Plaintiffs have not demonstrated a clearly established substantive due process right on the facts they allege.

If you would like to read this opinion click here. Panel consists of Chief Judge Stewar, Judges Willett and Dennis.  Opinion by Justice Dennis.

Texas Supreme Court holds use of fluid during surgery can trigger waiver of immunity, irrespective of medical judgment

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THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER v. LANCE MCKENZIE, 17-0730 (June 28, 2019)

This is a Texas Tort Claims Act (TTCA)/tangible personal property case in which the Texas Supreme Court affirmed the denial of the district’s plea to the jurisdiction for its use of a carrier agent during surgery. 

Cortney McKenzie-True began treatment for cancer at M.D. Anderson. She went through a test trial for treatment. The visible cancer was first surgically removed. After a chemo drug was administered, the body was washed out with a carrier agent. The hospital used D5W. Use of the carrier agent had an adverse effect on McKenzie-True, which was a known risk but was considered to have a small probability of occurring. McKenzie-True died, and the (McKenzie) family sued. The hospital filed a plea to the jurisdiction asserting the carrier agent was properly administered, so no negligent use of the drug had occurred. The lower courts denied the plea, and the hospital appealed. 

The hospital asserts the  McKenzies’ actual claims complain of negligent use of medical judgment, not negligent use of the carrier agent.  The McKenzies asserted it was the agent that caused the death, and the hospital should have known it was the incorrect fluid to use. This case blurs the fine line between medical judgment and the negligent implementation of that judgment. The Court held that “[w]hile we agree that a complaint about medical judgment, without more, is insufficient to waive immunity, the negligence alleged here does not involve only medical judgment.”  The issue becomes whether the injury is caused by improper medical judgment in which tangible property is used or whether the use, itself, of the property caused the injury, and the fact the property was administered properly is irrelevant. The Plaintiffs alleged D5W never should have been used, due to the high levels needed for the test trial procedure. The fact that the use was preceded by medical judgment is of no consequence, since all aspects of surgery are preceded by medical judgment. From a pleading standpoint, this is sufficient to establish jurisdiction and a potential waiver.  

Additionally, the Court held this was the analysis of immunity from suit, not immunity from liability.  Essentially, the Court held the plea allegations are based not only on medical judgment, but on a direct causal connection of the use of personal property. 

The dissent asserts that a separation of the decision (medical judgment) from the use of property is important. The majority’s interpretation eliminates sovereign immunity regarding medical judgment. Noting, “If sugar water [D5W] should not have been used, neither should a scalpel have been, or the surgical apparatus, or for that matter, the building.” The dissent asserted the medical judgment should not be disregarded and that if it was based on medical judgment, there is no waiver. 

If you would like to read this opinion, click here: opinion of the Court.  Justice Lehrmann delivered the opinion in which Justices Guzman, Boyd, Devine, and Blacklock joined. Chief Justice Hecht delivered a dissenting opinion, with Justice Green and Justice Brown joining.

7th Court of Appeals holds vested rights statute requires a showing of two permits; one vesting and one after a change in regulations

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Jon E. Jacks v. The Zoning Board of Adjustment of the City of Bryan  07-18-00174-CV (Tex. App. – Amarillo, July 9, 2019)

This is a board of adjustment appeal/vested rights case where the Seventh Court of Appeals upheld the Zoning Board of Adjustment’s motion for summary judgment.

Jacks purchased a piece of property in a residential subdivision intending to build a laundromat. Because the original plan for the subdivision had been filed with the City in 1960, Jacks asserted he possessed a vested right to 1960 regulations under chapter 245 of the Texas Local Government Code. When asked for a declaration from the City’s planning department that he possessed vested rights, Jacks was informed the City had no process for a blanket declaration and Jacks must apply for a permit on the project before an analysis of any vested right is performed. Relying on an e-mail “denial” from the Planning Manager Jacks pursued an appeal of this decision to the City’s Zoning Board of Adjustment. The Board denied Jacks’ request noting Jacks failed to identify any specific regulation that had changed, and Jacks failed to identify any permit application that had been denied.  Jacks appealed to district court pursuant to Tex. Loc. Gov’t Code §211.011.  The trial court granted the City’s motion for summary judgment and Jacks appealed.

Under Texas Local Government Code §245.002, once an application for the first permit of a development is filed all subsequent applications for permits shall be considered under the laws and regulations in effect at the time the first application was filed. The Amarillo Court of Appeals held the statute requires two permit applications be involved; one to vest the rights and the second after a law changed but which must be applied under the old law. Here, Jacks pointed to the 1960 first application, but failed to point to a second application in which the City tried to apply a different set of rules.  Second, Jacks objected to the trial court considering evidence not presented at the Board level.  Jacks did not preserve his objection, but additionally, §211.011 authorizes the trial court to consider additional evidence. As a result, the trial court properly dismissed the claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Pirtle and Justice Parker. Memorandum Opinion by Justice Parker. Jon Jacks appeared pro se. The attorneys listed for the ZBA are Ryan S. Henry, Artin T. DerOhanian and Michael McCann Jr.

 

U.S. Supreme Court holds ADEA applies to governmental entities, regardless of the size (i.e. under 20 employees).

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Mount Lemmon Fire District v Guido, et al., 17-587 (U.S. November 6, 2018).

Firefighters sued the District asserting it violated the Age Discrimination in Employment Act.  The parties disputed the language of the ADEA. The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).  The firefighters asserted the “also means” language creates a separate category of employers regardless of size.

After a detailed analysis of the history and wording in the ADEA and comparing the language to Title VII, the Court held the ADEA applies to political subdivisions of the state regardless of the number of employees. The ordinary meaning of “also means” is additive rather than clarifying. Furthermore, the text of §630(b) pairs States and their political subdivisions with agents, a discrete category that, beyond doubt, carries no numerical limitation. The Court acknowledged reading the ADEA as written to apply to states and political subdivisions regardless of size gives the ADEA a broader reach than Title VII. But this disparity is a consequence of the different language Congress chose to employ.

If you would like to read this opinion click here. GINSBURG, J., delivered the opinion of the Court, in which all other justices joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.

Eight Amendment Excessive Fine Prohibition applicable to the states through 14th Amendment says U.S. Supreme Court

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Timbs v Indiana, 17-1091 (U.S. February 20, 2019).

Tyson Timbs plead guilty to controlled substance and conspiracy to commit theft. At the time of his  arrest, the police seized a vehicle Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of the vehicle, which value was four times the maximum monetary fine for the offenses. The Indiana Supreme Court held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions.

The Court held the prohibition in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.”  Indiana argued the Clause does not apply to its use of civil in rem forfeitures because the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. However, the Court noted the trial court did not address the Clause’s application to civil in rem forfeitures and the Indiana Supreme Court only held the Clause was inapplicable to the states through the 14th Amendment.  The Court held the 14th Amendment makes applicable the Excessive Fines Clause, and the Court declined to separate out whether it was for criminal or civil forfeiture purposes.

If you would like to read this opinion click here. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

U.S. Supreme Court holds Clearly Establish Prong of qualified immunity defense must not be defined with a high degree of generality.

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City of Escondido v Emmons, 17-1660 (U.S. January 7, 2019)

City of Escondido police received a domestic violence 911 call from Maggie Emmons. Officer Jake Houchin responded to the scene and reported Emmons had sustained injuries caused by her husband. The officers arrested her husband. Several weeks later, another domestic violence call was placed, but this time it was called in by mother of Emmon’s roommate, Douglas (who was not present at the apartment). Officer Houchin again responded. The body cameras revealed that when trying to gain entry, a man in the apartment also told Emmons to back away from the window and not let the officers in. Shortly afterwards a man exited the apartment and tried to move past the officers. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. He was arrested for a misdemeanor offense of resisting and delaying a police officer. The man turned out to be Emmon’s father, who sued for wrongful arrest.  The officers filed for qualified immunity, which the trial court granted but the U.S. 9th Circuit reversed.

The U.S. Supreme Court broke apart the 9th Circuit’s analysis and questioned the lack of reasoning within the opinion. The Ninth Circuit’s entire relevant analysis was simply “The right to be free of excessive force was clearly established at the time of the events in question.”  The Supreme Court held “With respect to Sergeant Toth, the Ninth Circuit offered no explanation for its decision. The court’s unexplained reinstatement of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Emmons ‘fail[ed] to identify contrary evidence.’”  The 9th Circuit errored as the Supreme Court has repeatedly told courts the clearly established right must be defined with specificity. Courts may not define clearly established law at a high level of generality. “In this case, the Court of Appeals contravened those settled principles. The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”  The opinion is reversed and remanded for further analysis.

If you would like to read this opinion click here. Per Curiam opinion.

U.S. Supreme Court holds EEOC charge filing process is mandatory, but not jurisdictional

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Fort Bend County v Davis, 18-525, (U.S. June 3, 2019).

Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.  After several years of litigation, Fort Bend raised the issue of the trial court’s lack of jurisdiction over the religious discrimination claim because she did not properly file a charge with the EEOC. The trial court agreed and dismissed the claim. The 5th Circuit Court of Appeals reversed and the County appealed.

The U.S. Supreme Court held the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. But not all mandatory rules are jurisdictional. Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule.

GINSBURG, J., delivered the opinion for a unanimous Court. If you would like to read this opinion click here.

U.S. Supreme Court holds 1st Amendment retaliatory arrest claim barred because probable cause exists and plaintiff has no objective evidence of retaliatory motive

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Nieves, et al., v Bartlett, 17–1174 (May 28, 2019)

In this First Amendment/retaliatory arrest/§1983 case the U.S. Supreme Court held the presence of probable cause eliminates the First Amendment claims as a matter of law. [Comment: warning this is a 48-page set of opinions, concurrences and dissents].

Bartlett was arrested by police officers Nieves and Weight for disorderly conduct and resisting arrest during a winter sports festival in Alaska. During the event Nieves and Weight were separately speaking with individuals at the festival about various law enforcement aspects when Bartlett approached each and interfered with the questioning of patrons. Due to the fact Bartlett appeared intoxicated, after the second time Bartlett allegedly interfered, he was arrested. It was also during this second instance that Bartlett allegedly aggressively attempted to physically intimidate one officer by stepping into his personal space and yelling at him. Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The U.S. Court of Appeals for the Ninth Circuit reversed and the officers appealed.

As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.  It is not enough to show that an official acted with a retaliatory motive. The motive must cause the injury under a “but-for” analysis.  The analysis is complex as it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff ’s potentially criminal conduct.  Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.  After a highly detailed analysis of common-law and current precedent, the Court concluded the proper test was an objective standard test, which is resolved if the officers had probable cause to make an arrest.  The subjective intent of the officers is therefore taken out of the analysis.  However, the Court adopted an exception for “minor” offenses which allows a plaintiff to present objective evidence others similarly situation for these minor offenses are not arrested.  Because there was probable cause to arrest Bartlett and he presented no objective evidence others in his situation were not, his retaliatory arrest claim fails as a matter of law.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II–D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.

El Paso Court of Appeals holds County is immune from claims woman was injured by closing elevator doors

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County of El Paso, Texas v. Janice Baker, 08-18-00012-CV (Tex. App. – El Paso, May 31, 2019)

This is an interlocutory appeal in a premise defect case where the El Paso Court of Appeals held the County was entitled to governmental immunity.

While entering an elevator in the El Paso County Courthouse, Baker claims the doors shut on her, causing bodily injury. She reported the injury that day.  After Baker sued, the County filed a plea to the jurisdiction, which was denied. The County appealed.

Under a premise defect theory, a landowner owes a duty not to “injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.”  However, Baker’s petition asserts the County failed to inspect and failed to discover the malfunction in the doors. This is applicable to an invitee status, not a licensee status. Baker filed four amended pleadings and still was not able to properly plead the claims. Therefore, the court was not inclined to remand for a fifth opportunity. Under the licensee status, actual knowledge rather than constructive knowledge is required.  The County’s affidavit noted the last time the elevator had been inspected, that no notice of the defect was reported prior to Baker’s incident and no report has reoccurred. Baker’s evidence of a newspaper article that a woman got stuck in the elevator a year and a half later is insufficient to show the County had actual knowledge that the doors were likely to close on Baker. Nor would the fact that the County knew that the elevators were “old” and should be replaced show the kind of knowledge required for a valid licensee-premises-liability claim. The plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Chief Justice McClure, Justice Rodriguez and Justice Palafox. Opinion by Chief Justice McClure. The attorneys listed for the County are Jo Anne Bernal and John Untereker.  The attorney listed for Baker is Milad Kaissar Farah.

Eastland Court of Appeals holds erroneously calling the police is a discretionary act exempting employees from ultra vires claims

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The University of Texas of the Permian Basin et al. v. Michael Banzhoff, 11-17-00325-CV (Tex. App. – Eastland, May 31, 2019).

This is an ultra vires and abuse of process case where there Eastland Court of Appeals held the University of Texas at Permian Basin (UTPB) retained governmental immunity.

UTPB hired Banzhoff as a golf coach but terminated him within a year. He was issued a criminal trespass notice not to attend UTPB sporting events. Shortly after his termination, Banzhoff was arrested at the Odessa Country Club for criminal trespass.  Banzhoff sued UTPB, the athletic director (Aicinena) and the interim coach who replaced him (Newman) alleging seven different causes of action. Aicinena and Newman moved to be dismissed under §101.106(e) of the Texas Tort Claims Act (TTCA) and UTPB filed a plea to the jurisdiction. The trial court granted the dismissal as to Aicinena and Newman, and partially granted UTPB’s plea. The trial court allowed the abuse of process and ultra vires claims to proceed. UTPB filed this interlocutory appeal.

As to the abuse of process claim, no waiver of governmental immunity exists for such a tort. To fall within the ultra vires exception, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”  Suits complaining of ultra vires actions must be brought against government officials in their official capacity and may seek only prospective injunctive remedies. In this case, UTPB—a governmental entity—is not a proper defendant to Banzhoff’s ultra vires claim. As to the individuals, the general allegations in the pleadings are insufficient to plead an ultra vires claim against Aicinena or Newman.  Further, Banzhoff failed to plead any facts that support a finding that Aicinena or Newman exceeded any delegated authority, did not perform a ministerial duty, or violated Banzhoff’s constitutional rights.  The court expressly noted the criminal trespass notice in the record was not issued by either Aicinena or Newman and that there was no specific allegation either man called the police regarding Banzhoff’s presence at the Odessa Country Club. However, even if the court were to take Banzhoff’s allegations as true, “he fails to explain how issuing a criminal trespass notice or calling the police—even if done erroneously—are anything but discretionary actions by Aicinena or Newman.”  As a result, the plea should have been granted in its entirety.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Willson and Wright, Senior Justice.   Memorandum Opinion by Chief Justice Bailey.  The attorneys listed for Banzhoff are Gerald K. Fugit and M. Michele Greene.  The attorneys listed for UTPB are Enrique M. Varela and Eric Hudson.

Texas Supreme Court holds County still retains immunity from liability after inmate fell using broken chair

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Tarrant County v Roderick Bonner, 18-0431 (Tex. May 24, 2019)

This is an inmate Texas Tort Claims Act (TTCA) claim where the Texas Supreme Court held Tarrant County (County) was immune from liability for a defective chair while treating an inmate for his medical condition.

A deputy accidently damaged the leg of a chair while working at the jail where Bonner was housed. The deputy notified his supervisor of the damaged chair, who instructed the deputy to place the chair in the multipurpose room before filling out a report. Bonner, an inmate, had diabetes and entered the multipurpose room for treatment.  When he attempted to use the chair, it collapsed. Bonner sued for injuries under the TTCA asserting the negligent use of personal property.  At the summary judgment stage, the County argued despite the waiver under the TTCA, it retained immunity under the Texas Code of Criminal Procedure (TCCP) and Texas Government Code. The trial court granted the motion, the court of appeals reversed, and the County filed a petition for review.

Under the TCCP article 42.20, certain individuals and governmental entities are not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. Similarly, under the Texas Government Code § 497.096 a county and sheriff’s department employees are not liable for damages arising from action or inaction in connection with an inmate or offender treatment activity if the action or inaction was not intentional, willfully negligent or performed with conscious indifference or reckless disregard. After analyzing the statutory sections, the Court held Bonner’s allegations are more than simply the County failed to warn of the broken chair, it was the use of the chair during treatment which caused his injury. The two statutes immunize negligent acts and omissions that are reasonably related to the covered programs or activities, even when the relationship is indirect. As a practical matter, this includes acts or omissions, which give rise to damages during covered programs and activities. The Court recognized the statutes only immunize the County from liability to the extent its corporate actions or omissions were not performed with conscious indifference or reckless disregard for the safety of others. As a result, it was an immunity to liability only, not an immunity from suit. The County must assert it qualifies for the conditions, thereby placing the burden on the County. Once the defendant establishes that those conditions exist, the burden falls on the plaintiff to establish the statute’s exception to that defense, which is expressed as a heightened liability standard. The Court referred to this as a form of statutory immunity. Under this heightened standard, a defendant must have actual subjective knowledge of an extreme risk of serious harm.  Based on the record, the Court concluded no evidence exists of conscious indifference towards Bonner. As a result, the trial court’s granting of the summary judgment was proper.

Justice Boyd concurred in the judgment, but wrote separately as he disagreed (1) conscious indifference is “the same as” gross negligence or (2) a person cannot be consciously indifferent to a risk that is less than “extreme.”

If you would like to read this opinion click here.  Opinion by Justice Devine.  Justice Boyd wrote a concurring opinion found here. The docket page with attorney information can be found here.

Texas Supreme Court holds “good faith” efforts clause to seek future Board approval in contract is unenforceable. Also, damages would be consequential so Board retains immunity

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Dallas/Fort Worth International Airport Board v Vizant Technologies, 18-0059, (Tex. May 17, 2019).

This is a governmental immunity defense in a breach of contract case where the Texas Supreme Court held Chapter 271 of the Texas Local Government Code did not waive immunity for the specific relief required under the contract.

The Dallas/Fort Worth International Airport Board (“Board”) retained Vizant Technologies (“Visant”) by contract to provide recommendations on how the airport could reduce payment-processing costs. The contract contained provisions where the Board would pay Vizant a percentage of savings and/or refunds based on its advice. The contract stated the cap on payments shall not exceed $50,000. The Court commented in a footnote the appearance this was done to avoid competitive bidding limits or authorizations by delegation to staff without Board approval. However, the contract also contained a provision that in the event Vizant’s fee exceeds this cap the Board “will make a good faith effort to receive board authorization to increase the compensation,” and “if approved,” the parties would amend the contract to reflect the higher amount. The Board’s staff paid the $50,000 and ultimately asked the Board to approve an increase to $330,000, but the Board denied that request. Vizant sued.  Vizant asserts its fees should have exceeded $300,000, but the airport failed to use a good faith effort to obtain Board approval. The Board filed a plea to the jurisdiction which was denied, but the court of appeals reversed and dismissed. Vizant filed its petition for review.

The Court first held the Board was acting in a governmental not proprietary capacity. the legislature has unambiguously declared that the “maintenance, operation, [and] regulation” of an airport and the “exercise of any other power granted” for that purpose, whether exercised “severally or jointly” by local governments, “are public and governmental functions, exercised for a public purpose, and matters of public necessity.”  As a result, the Board is immune absent a waiver.

Contract waivers are primarily found in Chapter 271 of the Texas Local Government Code. While it has a waiver of immunity, it has limiting language as to the types of damages allowed and contractual approvals which apply. The “good faith” effort language becomes pivotal for this analysis. A contractual duty to act in good faith does not create a new obligation or independent cause of action; instead, it merely governs the conduct by which the party must fulfill the contractual obligation to which it applies. Under the written terms of the contract, read literally, the Board promised to make a good-faith effort to obtain its own authorization for the higher payments. The parties agreed the Board’s staff negotiated based on delegated authority and executed the contract on the Board’s behalf, with the Board’s authority but without the Board’s express approval. Under these circumstances, the Court held it was reasonable to construe the clause as a promise by the Board’s staff to make a good-faith effort to obtain the Board’s authorization for any higher payment. The staff had no authority to contractually obligate the Board to pay anything more than $50,000. To the extent the staff agreed to make a good-faith effort, that promise is not enforceable against the Board—and even if it were, the remedy could never be to require the Board to pay more than it authorized to staff to negotiate. To the extent the Board made any form of agreement, the Board merely promised to make an effort to agree to the higher payment, but to do so in good faith. “In this sense, its promise was the equivalent of a promise to negotiate towards a future bargain in good faith.”  Agreements to negotiate toward a future contract are not legally enforceable.  However, even if such were enforceable, the listed measure of damages constitutes consequential damages incurred as a result of the defendant’s failure to act in good faith, not as a result of the defendant’s failure to perform under the anticipated contract. And since §271.153 expressly excludes this type of consequential damages, the Board retains immunity.

If you would like to read this opinion click here.  Opinion by Justice Boyd.  The docket page with attorney information can be found here.

Texarkana Court of Appeals holds noncore attorney work product is confidential and not subject to PIA disclosure.

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Ken Paxton, Attorney General of the State of Texas v. City of Dallas, 06-18-00095-CV, (Tex.  App. – Texarkana, May 15, 2019).

In this Texas Public Information Act (“PIA”) case, the Texarkana Court of Appeals held noncore attorney work product is confidential and not subject to public disclosure under the PIA.

The City received seven PIA requests for reports and other records relating to specified incident investigations, each conducted in response to a notice of claim for damages received by the City. In each case, the City sought an AG opinion and was told to release the information. The City filed suit as an appeal. In cross-motions for summary judgment the trial court ruled for the City holding the information was confidential. The AG appealed.

“Core public information” is protected from disclosure only “if it is confidential under either the PIA or other law.” Core public information (also referenced as “super-public” information) includes “a completed report, audit, evaluation, or investigation made of, for, or by a governmental body.” Tex. Gov’t Code Ann. § 552.022(a)(1). It is confidential only if made so by other law.  The City asserted the information is noncore work product under Rule 192.5 of the Texas Rules of Civil Procedure and, therefore, is “confidential under . . . other law.” The Texas Supreme Court has described the level of protection accorded to core work product as, “inviolate,” “flatly not discoverable,” and “sacrosanct and its protection impermeable.” In contrast, noncore work product is “[a]ny other work product” that is not core work product.  The record indicates the information at issue includes the City’s investigations, evaluation of claims filed against the City and liability analysis prepared by the City’s employees and agents after the City received the notices of claim. The City employees testified the information constitutes material prepared or mental impressions developed in anticipation of litigation or for trial. Each of the notices of claim in question constitute statutory notices required by the Texas Tort Claims Act. As such, they satisfy the objective standard for anticipated litigation. The in-camera review of the records indicated to the court that the City’s investigations were conducted for the purpose of preparing for potential litigation, therefore qualifying for the subjective prong of the anticipated litigation analysis.  The records are therefore “noncore” work product under Rule 192.5. Finally, after a lengthy analysis of Rule 192.5, the court held the noncore work product was confidential.  The trial court judgment was affirmed.

If you would like to read this opinion click here.  Panel by Chief Justice Morriss III, Justice Burgess and Justice Stevens. Memorandum Opinion by Justice Burgess.  The attorneys listed for the City of Dallas are James B. Pinson and Nicholas D. Palmer.  The attorney listed for General Paxton is Matthew R. Entsminger.