Attorney fees awards in favor of a defendant are not an abuse of discretion where the plaintiff does not make a prima facie case of his claims.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Carl Frederick Rickert, III v. Kayla S. Meade and City of Bonham, 06-02-00002-CV (Tex. App.—Texarkana, July 30) (mem. op.).

In this § 1983 case on an attorney fees award, the Court of Appeals upheld the trial court’s grant of attorney fees in favor of the defendant City because the plaintiff did not establish even a prima facie case.

The plaintiff was terminated from his City employment after a co-worker filed a sexual harassment claim against him based on an allegedly consensual relationship.  The Texas Workforce Commission determined that the sexual harassment claim against the plaintiff was baseless.  The plaintiff sued the City under § 1983 asserting entitlement to a name clearing hearing.  The trial court dismissed the claim for lack of evidence and awarded attorney’s fees to the City.  The plaintiff appealed the attorney fee award.

In order for an attorney fee award to be upheld against a plaintiff in favor of a defendant, it has to be shown that “the plaintiff’s action was frivolous, unreasonable, or without foundation even though not brought in subjective bad faith.”  Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg, 434 U.S. at 421).  The plaintiff’s action was based on the lack of a name clearing hearing after his termination.  A terminated individual has the right to a name clearing hearing where the employee’s “good name, reputation, honor, or integrity” is questioned during a termination.  Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) In this case, the plaintiff provided no evidence that he was denied a name clearing hearing, or that he even requested one. Evidence was presented that he was provided a chance to be heard at a hearing prior to termination.  The Court of Appeals held this lack of evidence was sufficient to show that the trial court did not abuse its discretion.

If you would like to read this opinion click here. Panel consists of Chief Justice Morriss and Justices Burgess and Stevens.  Opinion by Ralph K. Burgess.

Under the Texas Tort Claims Act, injury to self by suicide is a foreseeable injury under the motor-vehicle waiver of immunity when officer did not properly fasten a seatbelt of a detainee 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Austin  v. Sayeed Anam, et al., 03-19-00294-CV (Tex. App.—Austin, July 30, 2020) (mem. op.).

In this Texas Tort Claims Act, the Court of Appeals upheld the trial court’s denial of the City’s plea to the jurisdiction for the death of an arrestee by suicide due to use of a motor vehicle because it was foreseeable that not properly fastening a seatbelt would allow an arrestee to commit suicide.

The decedent was arrested after shoplifting at a mall.   The officer performed a search on the decedent and fastened his seatbelt, but the decedent had a handgun in his waistband that went undetected.  During the ride, the decedent was able to unfasten his seatbelt, and after revealing to the officer that he was suicidal, told the officer he had a loaded handgun to his own head.  The officer then stopped and exited the vehicle and the decedent committed suicide.  The family of the decedent sued the City under the Tort Claims Act alleging that the use of a motor vehicle, not properly fastening the seatbelt, was the foreseeable cause of the death of the arrestee.  The City filed a plea to the jurisdiction arguing that there was not sufficient evidence that the motor vehicle caused the death.

In order to waive the government’s immunity through the Tort Claims Act, the plaintiff has to allege that it was the operation or use of the motor vehicle that caused the injury or death.  The Court of Appeals held that the improper fastening of a seatbelt is a foreseeable cause of an injury to self by an arrestee.  The Court affirmed the trial court’s denial of the plea to the jurisdiction on causation.  The Court did not review the issue of whether tangible personal property caused the injury.

A dissent was filed, and the judge stated that death by suicide is not a proximate cause or foreseeable from not properly using a seatbelt, that instead the foreseeable injury from not using a seatbelt is injury from a car accident.

If you would like to read this opinion click here. Dissent by Chief Justice Rose can be viewed here.  Panel consists of Chief Justice Rose and Justices Triana and Smith.  Opinion by Justice Gisela Triana.

The Dallas Court of Appeals holds liberal construction for pro se pleadings cannot give pro se party an unfair advantage

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

David E Shaw v. City of Dallas, 05-19-01233-CV (Tex. App.—Dallas, July 27, 2020) (mem. op.).

In this Texas Tort Claims Act, the Court of Appeals upheld the trial court’s dismissal of the pro se plaintiff’s Tort Claims Act action against the City.

The plaintiff called an ambulance after suffering severe stomach pain.  He alleges that the driver of the ambulance hit potholes on the way to the hospital exacerbating his injuries.  The plaintiff had surgery to fix the stomach issue. The plaintiff sued the City under the Tort Claims Act pro se arguing that the bumpy ambulance ride exacerbated his stomach injury.  The City argued that there was no evidence that the ambulance ride caused the injury because the stomach injury was a pre-existing condition.  The trial court dismissed the plaintiff’s claims for lack of sufficient evidence.

In order to waive the government’s immunity through the Tort Claims Act, the plaintiff has to allege that the government employee caused an injury.  Despite the court’s liberal construction of the pro se plaintiff’s petitions and evidence, the only evidence presented that alleged wrongdoing by the City occurred was the statement by the nurse practitioner that the bumpy ride might  have “add[ed] more pain to the abdomen area.”  The Court of Appeals agreed with the trial court that this statement alone was insufficient to waive immunity.   The Court also noted that it does liberally construe pro se plaintiff pleadings but has to hold a pro se plaintiff to the same procedural standard as a plaintiff with counsel in order to avoid giving a pro se applicant an unfair advantage.

If you would like to read this opinion click here. Panel consists of Justices Myers, Partida-Kipness, and Reichek.  Opinion by Justice Amanda L. Reichek.

14th Court of Appeals holds waiver of immunity in TCEQ SOAH hearing need not be by express statutory language

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Hyde v Harrison County, 14-18-00628-CV (Tex. App. – Houston [14th Dist.], July 30, 2020)

Harrison County (the “County”) owns and operates underground storage tanks at its road and bridge department and at its airport. A Texas Commission on Environmental Quality (the “Commission”) investigator determined the County violated the Texas Water Code by not providing a release detection for the pressurized piping. The Commission initiated an administrative enforcement action against the County. The Commission sought an administrative penalty of $5,626 against the County. At the contested case hearing at the State Office of Administrative Hearings (“SOAH”) the SOAH judge assessed an administrative penalty against the County. The County timely filed a petition in district court and argued the SOAH judge did not have jurisdiction over the County. The trial court agreed with the County and vacated the SOAH order. The Commission appealed.

The Court first held no express statutory waiver of immunity exists for the administrative proceedings or penalties in the Water Code. However, the court noted that there are limited circumstances where waiver need not be statutorily expressed. The Water Code requires such tanks comply with Commission requirements for pressurized piping release detection equipment. When a statutory context in which a statute defines “person” to include governmental entities, a statute imposes liability on a “person,” and construing the statute not to waive immunity would make part of the statutory scheme meaningless, the court may find a waiver. The court further noted that  § 7.051 allows the Commission to lower a penalty if the owner contributes to supplemental projects, but notes non-governmental entities cannot use this option if the project is necessary to bring the owner into compliance.  The Commission is also required to develop a policy to prevent “regulated entities” from avoiding compliance through the use of such supplemental projects. These provisions would be useless if governmental entities were not subject to regulation and penalties. The court concluded “…that applying the statutory definition of ‘person’ from Government Code section 311.005 to Water Code section 7.051 shows clear legislative intent to waive governmental immunity against assessment of an administrative penalty under section 7.051 because the context of section 7.051 affords no other reasonable construction.” As a result, the trial court erred in vacating the SOAH order.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, Justices Wise and Hassan. Opinion by Chief Justice Frost.

 

14th Court of Appeals holds police sergeant who picked up her husbands police vehicle to deliver it home, was acting within the course and scope of her employment

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City of Houston v. Isabel Mejia, 14-19-00559-CV (Tex. App. – Houston [14th Dist.], July 21, 2020)

This is a Texas Tort Claims Act (“TTCA”) case involving a motor vehicle accident in which the 14th Court of Appeals affirmed an order denying the City’s jurisdictional challenge on interlocutory appeal.

Isabel Mejia was driving her vehicle when Sergeant Michelle Gallagher (Gallagher) of the Houston Police Department failed to yield the right of way at an intersection and hit Mejia’s vehicle. The Mejias sued Gallagher and the City for personal injuries. The Mejias’ claims against Gallagher were dismissed pursuant to the City’s motion under Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The City originally admitted Gallagher was in the course and scope of her employment at the time, then later amended responses to Mejia’s request for admissions and denied she was within the course and scope. The City then filed a motion for summary judgment asserting Gallagher was not within her course and scope of employment at the time of the accident. Essentially, the City found out that Gallagher’s husband (a police lieutenant)  asked her to drive his “take home” police vehicle from the mechanic’s garage and was delivering it to their home when she was involved in the accident. Gallagher testified that at the time of the accident she was driving home, had no official duties, was not being paid, was not responding to a call for service, criminal activity, or an emergency situation. The motion was denied and the City appealed.

Under the TTCA  “scope of employment” means the performance of “the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Whether she was on duty, off duty, or using a police vehicle or not, is not dispositive. The focus is on  the capacity in which the officer was acting at the time of the accident (i.e. what the officer was doing and why she was doing it.) Gallagher’s affidavit reflects that her husband (a superior officer employed by Gallagher’s employer) asked her to pick up his City-issued vehicle from the City garage so her superior officer would have the vehicle available at the beginning of his shift (a benefit to Gallagher’s employer). Gallagher was not merely commuting to work, but running an errand for the City.  As a result, the City did not conclusively negate Gallagher’s course and scope.

Chief Justice Frost’s dissent asserts the majority used the wrong legal standard. Nothing in the record shows that in picking up her husband’s work vehicle and driving it to their home, Sergeant Gallagher was acting on the instructions of a supervisor or other superior in her chain of command. The mere conferring of an employer benefit is not the proper legal test.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, Justice Zimmerer and Justice Poissant. Opinion by Justice Zimmerer.  Dissent by Chief Justice Frost found here.

U.S. 5th Circuit holds a board reprimand against an elected official for speech on a matter of public concern is an actionable First Amendment claim under § 1983.

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Wilson v. Houston Community College System, 19-20237 (U.S. 5th Cir. April 7, 2020)

This is a First Amendment/§1983 case where a former member of the board of trustees claimed the College censured him in violation of his First Amendment Rights. The U.S. Fifth Circuit Court of Appeals reinstated the plaintiff’s First Amendment claims but sustained the dismissal of his declaratory and injunction claim.

Houston Community College System (“HCC”) is a public college system in the Houston area. HCC is controlled by a board of nine publicly elected trustees, one of whom was Wilson. Wilson publicly chastised HCC on various occasions for its policy decisions and even filed multiple state court lawsuits including one to prohibit videoconferencing votes as being illegal under the bylaws and in excluding him from meetings. The Board of Trustees held a hearing and issued a censure resolution which  chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. Once censured, Wilson brought §1983 claims under the First Amendment, including declaratory and injunctive relief. The trial court granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction due to a non-distinct injury. In August 2019, Wilson resigned. He was not re-elected.

In the context of free speech, “the governmental action need not have a direct effect on the exercise of First Amendment rights . . . [but] must have caused or must threaten to cause a direct injury to the plaintiffs.” The trial court held the censure did not forbid Wilson from performing his official duties or speaking publicly. Disagreeing with the trial court, the 5th Circuit held  Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Further, a free speech violation giving rise to a reputational injury is an injury in fact and properly states First Amendment standing. However, Wilson’s claims for declaratory and injunctive relief regarding the application of the Board’s censure and Code of Conduct are moot given they are no longer live controversies.

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

14th Court of Appeals holds 1) proof of causation necessary to maintain labor code disability discrimination & 2) plea was properly denied for breach of contract

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Norris Rogers v. Houston Community College, 14-18-00591-CV (Tex. App.—Houston [14th Dist.], July 14, 2020) (mem. op.).

This case contains two claims: (1) disability discrimination under Texas Labor Code Section 21.105; and (2) breach of contract under Chapter 271 of the Texas Local Government Code. The Court of Appeals reversed-in-part and affirmed-in-part the trial court’s orders and reinstated the contract claim.

The plaintiff, and adjunct electrical instructor, argued he was terminated by the College because of a disability which prevented him from performing carpentry work or general construction work.  He also argued a unilateral employment contract was created for employment.   The College filed a no-evidence summary judgment on the disability claim and a plea to the jurisdiction on the contract claim. The trial court granted both and Rogers appealed.

To establish a prima facie case of discrimination based on disability, a plaintiff must show that the plaintiff suffered an adverse employment decision because of the disability.  Donaldson v. Tex. Dept. of Aging & Disability Srvs., 495 S.W.3d 421, 436 (Tex. App.––Houston [1st Dist.] 2016, pet. denied).  The plaintiff did not establish he was terminated because of his disabilities.  During this analysis, the Court also discussed how a lack of causation in a no-evidence summary judgment argument can be presented.   The Court affirmed the trial court’s order dismissing the disability claims against the College.

Next, to establish a contract, and waiver of immunity, under Chapter 271 of the Texas Local Government Code the plaintiff must prove that the contract: (1) is in writing, (2) states the essential terms of the contract, (3) provides for goods or services for the entity; and (4) was properly executed for the entity.  The plaintiff presented evidence that a unilateral contract existed.  The College stated that its policies and procedures would not allow this type of contract, but the Court held that the policies presented did not sufficiently negate the contract could exist.  Because there was sufficient evidence from a jurisdictional standpoint that the contract could exist, the Court overturned the trial court’s order granting the plea to the jurisdiction.

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

 

Dallas Court of Appeals holds comprehensive plan ordinance is subject to referendum petition

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Carruth, et al v Henderson, 05-19-01195-CV (Tex. App. – Dallas, July 22, 2020).

This is a mandamus action (and second interlocutory opinion) where the Dallas Court of Appeals issued a mandamus against the City Secretary of the City of Plano regarding a citizen’s referendum petition and granted summary judgment for the plaintiff citizens.

The City of Plano, a home-rule municipality, has a comprehensive plan for land and use development under Chapter 213 of the Texas Local Government Code. The City of Plano’s charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. After the City passed an ordinance amending and adopting a new comprehensive plan, several citizens submitted a petition to the City Secretary for a referendum to repeal the new plan. The City Council held an executive session and was advised by outside legal counsel that the petition was not subject to a referendum vote. When no action was taken on the petition, the citizens filed suit to compel formal submission to the City Council and to have the City Council either take action or submit to a popular vote. The City Secretary filed a motion for summary judgment, which was granted. The citizens appealed.

The legislature may preempt municipal charters and ordinances. However, when preempting a home-rule charter, the language must be clear and compelling. The Plano City Charter itself excepts only ordinances and resolutions levying taxes from the referendum process. And while Chapter 213 of the Texas Local Government Code regulates the adoption of comprehensive plans, the mere fact that the legislature has enacted a law addressing comprehensive plans does not mean the subject matter is completely preempted (which would have foreclosed a referendum application). The City Secretary claims § 213.003 impliedly withdraws comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission before cities can act on such plans. This argument ignores that the statute also allows a municipality to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. Tex. Loc. Gov’t Code § 213.003(b). Thus, the legislature did not limit the power of home-rule municipalities to adopt comprehensive plans. Further, comprehensive plans, while linked, are to be treated differently than zoning regulations. So, the cases cited by the City Secretary related to zoning referendums are not applicable. The order granting the City Secretary’s motion for summary judgment is reversed.  Because the original interlocutory opinion (summary found here) held the City Secretary has a ministerial duty to present the petition to the City Council, the law-of-the-case doctrine prevents the panel from holding otherwise. As a result, it must grant the citizen’s motion for summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Schenck, Molberg, and Nowell. Opinion by Justice Schenck.  Docket page with attorney information found here.

San Antonio Court of Appeals holds a fact question exists as to whether a deputy’s U-turn caused following traffic to skid into oncoming traffic

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Webb County v. Juan C. Garcia, 04-19-00891-CV (Tex. App. – San Antonio, July 22, 2020)

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

Webb County Sheriff’s Deputy Mauro Lopez witnessed Saldivar pass a vehicle from a no-passing lane on a three-lane highway. Deputy Lopez applied his brakes to make a U-turn prior to initiating his lights and siren. The video from Deputy Lopez’s dash camera shows he slowed from 70 miles per hour to 16 miles per hour in seven seconds. During this time, he began moving into the center turn lane, effectively blocking all traffic behind him. This caused traffic behind Lopez to hit their brakes suddenly, which caused an 18-wheeler truck to jackknife. It skidded into the westbound lane, directly into Saldivar’s path. Saldivar’s truck and the 18-wheeler collided, killing Saldivar and all passengers. The families sued and the County filed a plea to the jurisdiction. The plea was denied and the County appealed.

The County asserted Deputy Lopez did not control the 18-wheeler which caused the accident, so no waiver of immunity exists. The TTCA waives immunity if the injury “arises from the operation or use of a motor-driven vehicle”. The TTCA does not define the term “arises from” but case law states it requires a nexus between the operation or use of the motor-driven vehicle or equipment and cause of the plaintiff’s injuries. The Texas Supreme Court has “described the threshold as something more than actual cause but less than proximate cause.” The necessary causal nexus requires a showing that the use of the vehicle actually caused the injury.  Deputy Lopez testified that a vehicle going far below the speed limit poses a hazard to vehicles traveling behind it. The police crash report notes witnesses stated it was Deputy Lopez’s drastic reduction in speed which caused following traffic to have to take evasive measures. Taking the pleadings in a light most favorable to the non-movants, the court held  the evidence in this case raises a fact question about whether Deputy Lopez’s operation or use of his vehicle was “directly, causally linked to the accident and the damages sustained.” The court next considered whether Deputy Lopez possessed official immunity. Such immunity is governed by the needs/risk analysis. The court agreed Deputy Lopez was performing a discretionary duty in choosing to pursue the perceived traffic violation. However, Webb County did not conclusively establish that a reasonably prudent officer could have determined Deputy Lopez’s actions were justified under these circumstances. There was no detailed analysis of the need for immediate apprehension vs the risks related to the U-turn at that point and in that manner. Finally, as to the County’s assertion under the emergency responder exception, routine traffic stops were not listed as emergency calls in the department manual, Deputy Lopez did not activate his lights or siren, he did not call dispatch to notify the situation was an emergency, and nothing indicates there was an immediate need to pull in front of oncoming traffic as opposed to waiting for traffic to be more cleared or by activating lights/sirens. The plea was properly denied.

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

Fort Worth Court of Appeals analyzes the law-of-the-case doctrine and determines private property owners did not establish claims against a city regarding fee simple land ownership

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City of Mansfield, et al., v Saverings, et al, 02-19-00174-CV (Tex. App. – Fort Worth, July 16, 2020)

In this lengthy opinion, the Fort Worth Court of Appeals holds certain private property owners did not establish a right to declaratory relief regarding fee-simple ownership of lots over which the City exercised some regulatory control, asserting they were public paths.

A developer filed a final plat in Tarrant County, creating a planned housing development—The Arbors of Creekwood – Gated Community (the Development) located in the City, but which had two HOAs. An amended plat divided the lots into R1 and R2 lots. All R2 lots were in the floodplain, which was governed by City ordinance. The developer created a lake and connected jogging paths ending at the lake. The developer testified the paths were for public use.  The boundary line for the R2 lots abutting the lake was to the north of the lake; thus, the lake was not included within the boundaries of these R2 lots. The developer executed a declaration of covenants, conditions, and restrictions (the Declaration) for the Development and filed them in Tarrant County. The Declaration stated the HOAs owned fee-simple title to private streets in the Development and “common properties” which had a complicated definition. In 1997, the Arbors HOA forfeited its right to do business and became a terminated entity. The surviving HOA asserted the Arbors HOA property lots (R2) automatically transferred to it. In January 2012, the City began planning for a “possible future trail connection” to the jogging path. Construction on the bridge began in 2013 and opened on January 25, 2014. Some owners of R1 lots noticed an increase in people using the jogging path and trespassing on the R1 lots. The R1 owners sued seeking a declaration they owned the R2 lots as common properties, and seeking to quiet title The Court of Appeals issued an interlocutory opinion in review of a temporary injunction noting the R2 lots were included in the definition of “common properties.” The R1 Owners also raised claims against the City Defendants for trespass and inverse condemnation.  The City Defendants filed a traditional and no-evidence motion for summary judgment, including arguments that the facts and law had substantially changed since the interlocutory order. They argued the R1 owners did not have a right to possess the R2 lots (which were originally owned by the defunct HOA) and that they did not have a private right to enforce a city ordinance on floodplain development. The trial court denied the City Defendants’ motions and granted the partial summary judgment of the R1 owners. The City Defendants appealed.

The court first went through a detailed analysis of the evidence submitted, objections to the evidence, and what constituted judicial admissions. The court held the law-of-the-case doctrine only applied to claims fully litigated and determined in a prior interlocutory appeal; it did not apply to claims that have not been fully litigated. The law-of-the-case doctrine is flexible and directs the exercise of court discretion in the interest of consistency but does not limit its power.  The interlocutory opinion (which was a complicating obstacle) did not address the R1 Owners’ UDJA claim regarding title to the R2 lots, only a probable right of relief for trespass claims based on an undeveloped record. The court noted they were substantially different arguments, issues, law, and review standards. [Comment: For a good analysis of the doctrine and its boundaries, read this section of the case.]  The City argued the R2 lots owned by the defunct HOA could be distributed only under the terms of the articles of incorporation and could not pass to the live HOA automatically. The court agreed with the City that the R1 owners did not establish a proper conveyance under the articles.

Next the court turned to the floodplain ordinance, where the R1 owners asserted the City failed to follow its own ordinance by obtaining studies before constructing structures in the floodplain connecting the jogging paths. The City Defendants’ argument no private cause of action to enforce the ordinance exists is one of standing. The R1 Owners did not challenge the validity of the ordinance but rather asserted that they wanted a construction of the ordinance and enforcement of it against the City Defendants. The R1 Owners did not have a right to enforce the ordinance through a UDJA claim, which only waives immunity for ordinance invalidation.  Alternatively, under the record, the R1 owners did not establish the City violated the ordinance. The City Defendants proffered summary-judgment evidence raising a fact issue on their substantial compliance.  Finally, since the court held the R1 owners could not bring a UDJA claim, the attorney’s fee award was reversed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Gabriel and Kerr.  Opinion by Justice Gabriel.

San Antonio Court of Appeals affirms county’s jurisdictional challenge and award of sanctions against property owner

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Kehoe v Kendall County, 04-19-00825-CV (Tex. App. – San Antonio, July 15, 2020).

This is a declaratory judgment case involving a private property easement where the San Antonio Court of Appeals affirmed the City’s plea to the jurisdiction and awarded sanctions against the Plaintiff.

Kehoe asserts Kendall County improperly accepted a 40-foot easement across her property and sought a declaration no easement exists. She brought suit under the Uniform Declaratory Judgment Act (“UDJA”) and the Texas Private Real Property Rights Preservation Act (“PRPRPA”). The County filed a plea to the jurisdiction, which was granted, and sought sanctions asserting Kehoe previously sued over the easement and lost. The trial court granted sanctions and Kehoe appealed.

The court first held that Kehoes’ arguments in her brief, even broadly construed, do not address the trial court’s jurisdictional dismissal. The briefings consist solely of bare assertions of error, without citations to applicable authority or the record. Since nothing was properly briefed for review, the plea to the jurisdiction remains properly granted. Likewise, Kehoe does not address the standards for sanctions and so they are likewise affirmed.

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

Company failed to establish how release of records held by City would cause it competitive harm under PIA

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Genuine Parts  Company v Ken Paxton, 03-19-00441-CV (Tex. App. – Austin, July 10, 2020)

This is a Texas Public Information Act (“PIA”) case where the Austin Court of Appeals denied a third-party’s claim to keep its information held by the City of Houston excepted from release.

An attorney in Virginia filed a PIA request for a settlement agreement entered into between Genuine Parts Company (“Genuine”) and the City. In response to a third-party notice letter, Genuine filed an opinion request with the Texas Attorney General’s office asserting the agreement contained information that would give advantages to its competitors if disclosed. The Attorney General opined the agreement must be released. Genuine filed suit. The Attorney General filed a motion for summary judgment, which was granted. Genuine appealed.

Genuine Parts bears the burden of establishing that this exception to public disclosure applies to the Settlement Agreement.  The proper test is whether disclosure of the information would provide a competitor or bidder with an advantage, albeit not necessarily a decisive one.  Genuine provided examples of how competitors, in the past, had used the PIA to gain advantages in bids to which Genuine was also applying. While that could potentially be true, the key issue is whether the Settlement Agreement actually contains such harmful information. The Settlement Agreement identifies the parties and generally describes their dispute, the details of which are contained in publicly available federal court filings. The Settlement Agreement sets forth the total amount of a payment to be made by one party to the other along with the manner and timing of the payment. The Settlement Agreement references a lump sum amount relating to inventory. There is no description of the nature of the inventory or its pricing, and there is nothing that could be construed to constitute “performance figures.” Genuine also failed to explain how the contents of the Settlement Agreement might give a competitive advantage. As a result, the evidence in the record fails to demonstrate that the Settlement Agreement contains information that “if released would give advantage to a competitor or bidder.” The trial court properly granted the AG’s summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Goodwin, Baker, and Kelly.  Opinions by Justice Baker.

Former City Manager properly alleged breach of contract under Chapter even though the actual contract document was not presented to the city council.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Port Isabel v. Edward Meza,  No. 13-19-00070-CV, 2020 WL 3786249 (Tex. App.—Corpus Christi July 2, 2020) (mem. op.).

This is a breach of contract case where the Corpus Christi Court of Appeals affirmed the denial of the  City’s plea to the jurisdiction.

Edward Meza was hired as the City Manager.  Two years later, the City Commission approved an employment/severance package for Mr. Meza, in concept.  The agreement was drafted and signed by the Mayor and Meza, but the actual agreement document was never taken back to the City Commission for approval.  Meza was later terminated and the severance policy was rescinded by the City Commission.  Meza sued the City for breach of contract.  The City argued the agreement was not properly approved and executed by the City. The City filed a plea to the jurisdiction which was denied.

Section 271.151 of the Texas Local Government Code waives immunity in contracts for services but requires a contract be “properly executed” by the governmental entity.  The court of appeals reviewed the agreement, the meeting minutes, the City’s Charter, and the affidavits of appointed and elected officials.  The July 2010 meeting minutes showed approval of the basics of the employment/severance agreement.  The City Charter provided that the mayor can sign documents for the City.  The court of appeals held that this evidence raised a fact issue that the agreement was properly executed sufficient to overcome the City’s plea to the jurisdiction.  The court of appeals affirmed the trial court’s denial of the plea to the jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Longoria, and Perkes. Opinion by Justice Benavides.

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

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

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

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

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

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

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

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

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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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

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