13th Court of Appeals holds remainder of employment contract was consequential damages, not amounts due and owed, therefore no waiver of immunity exists for breach

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Edinburg Housing Authority, Dr. Martin Castillo, Gabriel Salinas, Simon Garza, Marissa Chavana, and Juan Guzman v. Rodolfo Ramirez, 13-19-00269-CV, (Tex. App – Corpus Christi Feb. 25, 2021)

This is an interlocutory appeal from the denial of a housing authority’s motion to dismiss on jurisdictional grounds in an employment dispute. The Corpus Christi Court of Appeals reversed the denial and dismissed the case.

Ramirez signed a three-year employment contract with the Housing Authority to be its Executive Director and was extended for another three years, to end in 2021. However, in 2018 the board of the housing authority terminated Ramirez. Ramirez sued the Authority as well as individual commissioners (hereinafter “Authority Defendants”) for breach of contract, as well as constitutional due course of law, equal protection, and declaratory judgment relief. The Authority Defendants filed a motion to dismiss under Rule 91a citing a lack of jurisdiction. The trial court denied the motion and the Authority Defendants appealed.

The court first decided that, contrary to the individual commissioner’s assertion, the court did have interlocutory jurisdiction to hear the appeal involving them individually as well as in their official capacities. Section 51.014(a)(5) of the Texas Civil Practice & Remedies Code allows interlocutory appeal for the denial of a motion for summary judgment based on an individual’s immunity.  While the underlying motion was a motion to dismiss as opposed to an MSJ, the court determined they are treated the same for purposes of §51.014(a)(5). Next, suits brought pursuant to a Texas constitutional provision are limited to equitable relief and do not allow a claim for monetary damage.  This applies to the entity as well as individual employees and officials. Ramirez’s constitutional claims should have been dismissed because they sought only the recovery of monetary damages. Next, to trigger the waiver of immunity for contract claims under Tex. Loc. Gov’t Code § 271.152, a plaintiff must claim damages within the limitations of the chapter, i.e. balances due and owed, but not paid. Consequential damages are specifically excluded. Ramirez does not claim that the Housing Authority and its Commissioners failed to pay him for work he completed as the Housing Authority’s Executive Director. Rather, Ramirez seeks recovery of the wages he would have earned had his employment contract continued through the end of its extended term. These future wages would be considered “lost profits,” which are “consequential damages excluded from recovery.”  As a result, no jurisdiction exists as to the contract claim. The court then determined Ramirez’s constitutional claims against the commissioners, individually, cannot be brought against them as private actors. Because the individual commissioners are not the State or an entity thereof, these claims cannot stand. Further, Ramirez signed a contract with the Authority, not the individual commissioners. As a result, the commissioners cannot be individually sued for breach of contract. Finally, Ramirez had the opportunity to amend and failed to correct any defects. As a result, he is not entitled to amend.  Finally, the court determined the Authority Defendants were entitled to attorney’s fees and remanded to the trial court for such a determination.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, and Justices Hinojosa and Silva. Reversed and remanded. Opinion by Justice Hinojosa. Docket page with attorney information found here.

An employer cannot discriminate against an individual based on their intent to become pregnant

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

South Texas College v. Arriola, No. 12-19-00222-CV (Tex. App.—Corpus Christi  Feb, 2021).

In this appeal from a trial court’s holding that being able to become pregnant is a protected class under the Texas Commission on Human Rights Act (TCHRA), the 13th Court of Appeals affirmed the trial court’s judgment because federal case law related to Title VII has held that being able to become pregnant is a protected class under sex discrimination protections.

The plaintiff sued her employer claiming her employer discriminated against her after she stated that she was trying to become pregnant.  She alleged she was harassed and discriminated against after making this statement by her co-workers and supervisors and was terminated four months after stating she was trying to become pregnant.  Her employer alleged that intending to become pregnant is not a protected class and therefore she had no case under the TCHRA.  The trial court denied the employer’s plea to the jurisdiction related to this issue and the employer appealed.

The TCHRA prohibits sex discrimination based on “pregnancy, childbirth, or a related medical condition.”  Tex. Labor Code § 21.106(a).  The purpose of the TCHRA is to enact the policies of federal anti-discrimination laws such as Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.  Due to this purpose, federal case law guides the analysis, especially in cases such as this one where the issue has not been previously decided by Texas courts. Federal cases involving the Pregnancy Discrimination Act have held that the ability or intent to become pregnant are protected classes and discrimination against these individuals is prohibited sex discrimination.  Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991).  The Court of Appeals affirmed the trial court’s holding that the intent or ability to get pregnant is a protected class as guided by federal case law.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras, and Justices Hinojosa and Silva.  Opinion by Justice Leticia Hinojosa.

 

Austin Court of Appeals holds City’s diligent search established no actual knowledge of premise defect, therefore no waiver of immunity exists

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City of Austin v Brandy Credeur, 03-19-00358-CV (Tex. App. – Austin, February 11, 2021)

This is a premise defect case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Credeur was injured when she fell walking along a city sidewalk in front of private property owned by Riedel. She asserts she stepped off the sidewalk to cross the street, stepped on a cement block covering a pipe, and then onto an “adjacent, improperly sealed water valve cover,” both of which were obscured by Riedel’s “overgrown lawn.” She sued the City, Riedel, and a utility company. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Texas courts “consistently treat[] slip/trip-and-fall cases as presenting claims for premises defects.” The court considered Plaintiff’s rendition of facts and even added a photo of the area in the opinion. Even assuming that the sidewalk, in this case, was “sufficiently related to the street” to come within the realm of special defects, the court held the alleged defect was not on the sidewalk itself but in the grass near the sidewalk.  Credeur stepped off the sidewalk to cross the street, walking through an area not intended for pedestrian use, and thus the defect she encountered cannot be considered to have posed a danger to the ordinary users of the sidewalk.  As a result, it is not a special defect, but a premise defect.  The City produced evidence that employees did a diligent search of all reports made to the City which could have notified it of the defect prior to Credeur’s injury and found none.  Without actual knowledge of the defect, no waiver of immunity exists. [Comment: the court went into detail about all the City did to establish a lack of knowledge, which can be a good roadmap for other entities having to establish the same type of fact.] The City’s evidence detailed what the City did in response to discovery to find reports and that all departments which might have a report were searched. Credeur has not identified another City employee or department that might have received a report about the alleged defect. As a result, Credeur failed to raise a fact question as to notice and the City’s plea should have been granted.

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

Justice Smith. Memorandum Opinion by Chief Justice Byrne

 

Plaintiff must prove the TWC’s decision is unreasonable, arbitrary, and capricious to overturn a denial of unemployment benefits. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Van Deelen v. Tex. Workforce Comm’n, No. 14-18-00489-CV (Tex. App.—Houston [14th]  January 26, 2021) (mem. op.).

In this appeal from a trial court’s judgment granting the TWC’s summary judgment motion on an unemployment benefits case, the 14th Court of Appeals affirmed the trial court’s judgment because there was substantial evidence of the plaintiff’s termination being caused by employment misconduct.

The plaintiff, a teacher, sued the Texas Workforce Commission and the School District (his employer) when he was denied unemployment benefits because his termination was for misconduct.  The evidence presented was that the plaintiff was terminated from the school district for: (1) assault of a supervisor; (2) misconduct toward school staff and students; and (3) misrepresentation on his employment application.  After the plaintiff was terminated, he applied for unemployment compensation from the Texas Workforce Commission (TWC).  A TWC Appeal Tribunal held that the plaintiff was terminated for mismanagement of a position of employment and was therefore not entitled to unemployment compensation.  The full TWC affirmed the decision of the tribunal.  The plaintiff appealed to the trial court, which upheld the decision of TWC and rendered summary judgment for TWC and the school district.  The plaintiff appealed.

Section 201.012 of the Texas Labor Code provides for denial of unemployment compensation by the Texas Workforce Commission if the employee is terminated for misconduct.  The Court reviews a TWC unemployment compensation decision for whether the decision is based on substantial evidence. See Tex. Lab. Code § 212.202(a); McCrory v. Henderson, 431 S.W.3d 140, 142 (Tex. App.—Houston [14th Dist.] 2013, no pet.).  To reverse a decision of the TWC on unemployment benefits, the plaintiff has the burden to show that the TWC’s determination is not supported by substantial evidence.  See Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998).   The primary issue is whether the evidence considered by the TWC reasonably supported the decision of the TWC, and the decision may only be overturned if the decision is unreasonable, arbitrary, and capricious.   The Court of Appeals held that the evidence of misconduct was sufficient to uphold the TWC’s decision even though there was evidence contrary to the TWC’s decision.

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

 

Dallas Court of Appeals holds City waived immunity in lease agreement for use of soccer fields in exchange for upgrades and maintenance

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City of McKinney, Texas v. KLA International Sports Management, LLC, 05-20-00659-CV, (Tex. App – Dallas, Feb. 4, 2021)

This is a contractual immunity case where the Dallas Court of Appeals held the City’s immunity was waived.

KLA, a private sports management company and the City signed a non-exclusive revocable license agreement on December 18, 2018, giving KLA “recreational use” of three fields at the city-owned park. By an amendment, KLA agreed to replace two existing artificial turf soccer fields (Fields 1 and 2) and rehabilitate a grass field. The work, once commenced, was required to be completed within 180 days.  In exchange, the City granted KLA a priority 30-year license entitling it to use the improved fields for only soccer practice and soccer games in accordance with an agreed annual use calendar.  The City later issued a notice of default to KLA, alleging construction and timeliness deficiencies and other breaches. Ultimately the City terminated the contract under a theory of breach. KLA sued the City for breach of contract seeking specific performance, damages, attorney’s fees, and injunctive relief. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The court first stated the standards from Wasson II relating to the governmental/proprietary dichotomy does not apply if the function is listed as governmental in a statute. The court determined the City’s license contract constituted a governmental function.  Section 271.152 of the Texas Local Government Code provides a “limited waiver of immunity for local governmental entities that enter into certain contracts.” Chapter 271 does not define “services,” but the Texas Supreme Court has interpreted the term in this context as “broad enough to encompass a wide array of activities.” The agreement to provide services need not be the primary purpose of the agreement. “When a party has no right under a contract to receive services, the mere fact that it may receive services as a result of the contract is insufficient to invoke chapter 271’s waiver of immunity.” However, the license here required KLA to (1) improve or rehabilitate the three fields to a standard that reasonably equated to a FIFA-certified playing surface using industry-standard components and materials from a FIFA-approved turf manufacturer and (2) to provide year-round maintenance services on those fields. Thus, the City’s license agreement provided for both goods and services and provided more than indirect benefits to the City. The City need not pay currency in order to constitute proper consideration. Improving, rehabilitating, and maintaining the soccer fields was proper consideration for nonexclusive use of the fields and satisfies the requirements of Chapter 271.  The plea was properly denied.

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

Property owner not entitled to de novo review of nuisance determination says Austin Court of Appeals

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Mark Groba v. The City of Taylor, Texas, 03-19-00365-CV (Tex. App. – Austin, Feb. 3, 2021)

In this nuisance abatement case, the Austin Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Groba, a real property owner, was subject to an enforcement action in the Municipal Court of Taylor, acting in an administrative capacity.  The court conducted a hearing and issued an order granting the City’s application to declare Groba’s property a nuisance under chapter 214 of the Texas Local Government Code. The municipal court later issued an order declaring that Groba failed to comply with its original order to clean up the nuisance. The City then filed a Chapter 54 lawsuit to enforce it’s ordinances and the orders in district court. The City sought injunctive relief related to its nuisance determination, including authorizing the City to demolish the building and charge the costs for doing so to Groba. The City also sought civil penalties.  The trial court issued an injunction order allowing the City to demolish the building, which the City did.  The day after the demolition, Groba filed a counterclaim for declaratory judgment and trespass, arguing that he was entitled to a jury trial on the nuisance determination. The City filed a plea to the jurisdiction, which the trial court granted. Groba appealed.

After receiving a copy of the municipal court order, Groba did not appeal and, thus, did not comply with the jurisdictional prerequisites for judicial review of the nuisance determination.  Groba asserted he was entitled to de novo review of the City’s nuisance determination, and even if he had failed to timely appeal the nuisance determination, the City is estopped from asserting a jurisdictional challenge to his request for a jury trial because the City “misled” him by filing “multiple proceedings” and by dismissing the criminal municipal-court case after he had requested a jury trial. A property owner aggrieved by a municipality’s order under § 214.001 may seek judicial review of that decision by filing a verified petition in district court within thirty days of receipt of the order. A court cannot acquire subject-matter jurisdiction by estoppel. The City’s enforcement of an ordinance may be estopped, but only in exceptional circumstances that are not present. But subject-matter jurisdiction is still not conferred through estoppel.  Further, contrary to Croba’s assertions, the Texas Supreme Court’s opinion in City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) does not give him an unconditional right to de novo review of a nuisance determination. A de novo review is required only when a nuisance determination is appealed, which Croba did not perform.

If you would like to read this opinion click here. Panel consists of Chief Justice Byrne, Justice Baker and Justice Triana. Memorandum Opinion by Chief Justice Byrne.

Texas Supreme Court holds Texas Board of Chiropractic Examiners’ rules are valid even over objection of the Texas Medical Association

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Texas Board of Chiropractic Examiners v Texas Medical Association, 18-1223 (Tex. Jan. 29, 2021)

This case centers on the tension between chiropractors and physicians and several Texas Board of Chiropractic Examiners’ rules. The Texas Supreme Court held the Board’s rules were valid.  The analysis is beneficial for government lawyers as 1) it discusses the presumptions of validity and statutory construction and 2) for any lawyers defending personal injury or involved in worker’s compensation systems the scope of the rules can be important.

The line between practicing medicine and practice in the chiropractic profession is not always clear. The Texas Chiropractic Act (the Act) draws part of that line by defining the practice of chiropractic to include evaluating the musculoskeletal system and improving the subluxation complex. The Texas Board of Chiropractic Examiners (the Board) has issued rules defining both terms as involving nerves in addition to muscles and bones. Another Board rule authorizes chiropractors to perform an eye-movement test for neurological problems that is known by the acronym VONT. The Texas Medical Association (TMA) asserts that only physicians may perform VONT. The Legislature passed the Medical Practice Act (the MPA) to regulate physicians.  It empowers the Texas Medical Board “to regulate the practice of medicine” in Texas. The Court went through a detailed history of the Act and MPA and the Board and the TMA. The Board adopted what is now Rule 78.1 defining chiropractic practice to include diagnosing and treating neuromusculoskeletal conditions causing an alteration in the biomechanical and/or neuro-physiological reflections. In comments to the Board, TMA opposed the definition of the musculoskeletal system which would include the nervous system and brain.  The Board also allowed chiropractors to perform vestibular-ocular-nystagmus testing or VONT. TMA sued to invalidate the rules as exceeding the scope of chiropractic practice prescribed by the Act. After a bench trial, the court issued findings of fact and conclusions of law, holding that the challenged rules are invalid because they exceed the statutory scope of chiropractic practice. The Board appealed. The court of appeals affirmed in part.

The Court first held the TMA had proper authority to sue to invalidate the Board rules because the MPA recognizes that “the practice of medicine is a privilege” reserved to licensed physicians. Obtaining and maintaining the privilege imposes economic costs, and allowing nonphysicians to practice medicine outside the MPA’s control would impair—or at least threaten to impair—that privilege.  The Board rules are presumed valid. Using the principles of statutory construction and this presumption as the starting point, the Court found the trial court failed to afford Rule 78.1 a presumption of validity. TMA argues that the rule’s references to nerves authorize chiropractors to diagnose any neurological condition, which is the practice of medicine. However, the rule’s words cannot be read beyond their context. Nothing in Rule 78.1 suggests that chiropractic practice extends beyond the evaluation and treatment of the musculoskeletal system. The rule merely acknowledges the reality that chiropractors cannot ignore the presence and effect of associated nerves that help shape the musculoskeletal system and allow it to move. The Board’s definition of the musculoskeletal system only includes those nerves “associated” with the muscles, tendons, ligaments, bones, joints, and tissues “that move the body and maintain its form.” Because chiropractic is carved out of the comprehensive regulation of the practice of medicine under the MPA, its scope under the Act must be limited. Rule 78.1 acknowledges and respects the Act’s boundaries. As a result, TMA has not overcome the definitions’ presumption of validity. With regards to the VONT rule, it is a neurological test that a medical doctor may use to diagnose a problem of the brain, inner ear, or eyes, none of which is a part of the spine. However, the Board also presented evidence that VONT can be used to facilitate chiropractic treatment. A reading of all the Board’s rules together makes it clear that a chiropractor’s proper use of VONT is not for treating a neurological condition, which is certainly outside the scope of chiropractic, but rather for the limited purpose of determining whether and how to treat a patient’s musculoskeletal system.  As a result, both rules retain their presumption of validity.

If you would like to read this opinion click here. Chief Justice Hecht delivered the opinion of the Court, in which Justice Guzman, Justice Lehrmann, Justice Devine, Justice Blacklock, and Justice Busby joined in full, and in which Justice Boyd and Justice Bland joined except with respect to Part III(D).

Austin Court of Appeals holds temporary injunction order need not set a specific trial date, but must place the case for trial on the court’s calendar, otherwise the order is void

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Hegar, Comptroller of Public Accounts of State of Texas, et al., v Zertuche Construction, LLC, 03-19-00238-CV (Tex. App. – Austin, Jan. 22, 2021).

This is a tax collection case, but the main thrust is the procedural ruling on injunctions where the Austin Court of Appeals held that Zertuche Construction’s temporary injunction order was void due to a lack of trial setting.

The Comptroller audited Zertuche’s sales-and-use tax report, determined it owed additional taxes, and imposed penalties and interest. After a decision upholding an assessment of approximately $2.6 million, Zertuche submitted a written protest letter and followed the procedural steps for challenging the holding. Zertuche filed suit challenging the assessment and seeking an injunction to prohibit the Comptroller from taking action to collect the taxes owed under the assessment. The Comptroller responded by filing a plea to the jurisdiction. The trial court conducted a combined hearing on the Comptroller’s plea to the jurisdiction and Zertuche’s application for a temporary injunction to enjoin tax collection. The trial court issued a temporary injunction order prohibiting tax collection, but did not rule on the plea. The Comptroller and AG appealed.

Rule 683, dealing with temporary injunction orders,  requires that an order granting a temporary injunction state the reasons for its issuance and set “the cause for trial on the merits with respect to the ultimate relief sought.” See Tex. R. Civ. P. 683. The trial court’s order stated “[t]he parties will set this matter for trial as soon as possible after the resolution of EBS Solutions [case pending in Texas Supreme Court] if Defendants’ Plea to the Jurisdiction and Motion to Dismiss for Lack of Jurisdiction is denied by this Court.” Thus, rather than set a date for trial, the order provides that the parties will set the matter for trial. Although a specific trial date need not be set in the order, the order must “set the cause for trial on the merits” and that “rule 683 implicitly requires the injunction to order the cause be calendared on the trial court’s docket.” Because the temporary injunction order does not set the cause for trial on the merits the Court of Appeals determined the order was void.

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

U.S. 5th Circuit holds property owner’s federal Clean Water Act claim against Town for improper discharge was proper due to lack of comparable state regulation

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Stringer v. Town of Jonesboro, 20-30192 (5th Cir. Jan. 18, 2021)

In this §1983 taking suit and federal Clean Water Act (“CWA”) case, the U.S. 5th Circuit held the Plaintiff’s §1983 suit for damages due to sewage backup was barred, but not her Clean Water Act claim.

Stringer alleges that, since at least 2011, the Town’s wastewater treatment system has malfunctioned during periods of heavy rain, with chronic failures of a specific pump. She asserts the Town failed to respond to her complaints as political payback she ran against the mayor in an election.  She was also an alderwoman. The Louisiana Department of Health (LDOH) and the Louisiana Department of Environmental Quality (LDEQ) were aware of the overtaxed system. LDEQ sent the Town warning letters and issued compliance orders. LDOH also enforced the State Sanitary Code, issued the Town a compliance order imposed mandatory ameliorative measures and assessed a daily fine. Stringer brought a “citizen suit” under the CWA, 33 U.S.C. § 1365, as well as constitutional takings claims under 42 U.S.C. § 1983. She also sued the Mayor asserting he retaliated against her. The Defendants filed a motion to dismiss which the trial court granted. Stringer appealed.

The CWA creates a regime of water pollution regulation that harnesses state and federal power but also allows citizen suits. However, such citizen suits are not permitted if the applicable state is already prosecuting comparable enforcement actions. A state statute is “comparable” to the CWA so long as the state law contains comparable penalty provisions, has the same overall goals, provides interested citizens a meaningful opportunity to participate at significant stages of the decision-making process, and has adequate safeguards. The Louisiana Sanitary Code provides no formal or structured means for interested citizens to become aware of LDOH’s enforcement efforts, nor any mechanism by which they can call for further action. However, LEQA’s enforcement mechanisms provide for interested parties to obtain “periodic notice” of “all violations, compliance orders and penalty assessments,” because it mandates public comment before a proposed settlement is finalized, and because it permits third parties to “intervene in an adjudicatory hearing, or petition for an adjudicatory hearing if none is held.” However, LDEQ was not the focus of the Defendants’ diligent prosecution argument in the district court. Further, whether LDEQ has “diligently” pursued a comparable action under § 1319(g) may be “a fact-intensive question that can only be answered after the proper development of a record.”  As a result, the CWA claims should not have been dismissed. However, Stringer’s §1983 takings claim had a one-year statute of limitations. Stringer’s complaint confirms she was aware of the pertinent underlying facts as early as November 2011. A cause of action accrues when the plaintiff learns the facts giving rise to her injury. As a result, such claims were properly dismissed. Finally, Stringer’s First Amendment retaliation claim was also time-barred.

If you would like to read this opinion click here. Panel consists of Justices Elrod, Duncan and Wilson. Opinion by Justice Duncan.

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.