First Court of Appeals holds service on pro se of MSJ via email address on file with court was proper service

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Glenn Herbert Johnson v. Harris County, et al., 01-18-00783-CV, (Tex. App – Hou [1st Dist.], Feb. 27, 2020)

This is an inverse condemnation case where the First Court of Appeals affirmed the granting the defendants’ motion for summary judgment. However, it will be of interest mostly to litigators as the central issue is proper service on a pro se by email during litigation.

Johnson (pro se) alleged that Harris County’s tax sale of his property constituted a taking. The County filed a traditional and no-evidence motion for summary judgment, to which Johnson did not respond. The trial court granted the motion. Johnson filed a post-judgment motion arguing that he did not receive notice of the MSJ or hearing, but listed a different email address for notice. The County submitted evidence it served Johnson via the electronic filing email he had on file with the court.  The trial court denied Johnson’s post-judgment motion and Johnson appealed.

The court first noted that Johnson failed to provide a single citation to the record in his brief and therefore waived any arguments. When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review.  However, the court went on to say that even if he had cited to the record, he could not prevail.  The County’s MSJ was filed twenty-eight days before the date of submission and was therefore timely filed.  A nonmovant has the right to minimum notice of the summary judgment hearing. Id. “Proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment.” Rule 21a deals with service and notice requirements for pleadings, including motions for summary judgment.  Pro se litigants are not required to participate in the electronic service program.  However, the Rule also states that if no email address is on file with the electronic filing manager, the document “may be served in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” “A certificate by a party or an attorney of record . . . shall be prima facie evidence of the fact of service.” Notice properly sent pursuant to Rule 21a raises a presumption that notice was received.  No evidence in the record indicates Johnson attempted to change the email address on file with the court or to the attorney in charge for the County. Pursuant to Texas Rule of Civil Procedure 57, Johnson was required to designate an email address if he had one.  Harris County used the designated email address and Johnson presented no evidence of a change. Therefore, Johnson did not overcome the presumption that Harris County properly served him and that he received Harris County’s motion and notice via email service.   Finally, to defeat a no-evidence MSJ, a non-movant must file a response. Here, Johnson did not.  The MSJ was affirmed.

If you would like to read this opinion click here. Panel consists of Justices Lloyd, Kelly, and Landau. Reversed and Remanded. Memorandum Opinion by Justice Lloyd. Docket page with attorney information can be found here.

When alleged harasser was placed on restrictions, then restrictions were removed five months later, the fact the employer believed it did not have time to respond to subsequent complaint is irrelevant says El Paso Court of Appeals

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County of El Paso, Texas v. Monique Aguilar, 08-19-00082-CV, (Tex. App – El Paso, March 18, 2020)

This is a gender discrimination/hostile work environment case where the El Paso Court of Appeals reversed-in-part and affirmed-in-part the denial of the County’s plea to the jurisdiction. [Comment: this is a 42-page opinion, so that is why the summary is longer than normal.]  The case presents a detailed thought process analysis under employment law, including prima facie element analysis and burden shifting.

Aguilar worked for the County in various positions for nearly twenty-four years.  She was holding the position of Facilities Manager when she complained to her supervisors and HR that she was paid substantially less than not only the male who previously held the position of Facilities Director (which was reorganized and formed in the Facilities Manager position) but also less than other similarly situated male coworkers.  She also raised the issue of pay disparity with the County Commissioner’s Court. She also complained she was harassed by a male co-worker.  The supervisor put restrictions on the co-worker in 2014, limiting contact with Aguilar and her staff. That restriction was lifted five months later, but according to Aguilar, the co-worker, Lucero, resumed his harassing behavior. When Aguilar obtained an email the supervisor wanted to discuss Lucero with her and her behavior in a meeting where he was present, she experienced an anxiety attack and eventually resigned. Aguilar brought suit under the Texas Commission on Human Rights Act (“TCHA”) under a constructive discharge theory. The County filed a plea to the jurisdiction, which was denied.

The court first went through numerous pages regarding the affidavits and determined the trial court did not abuse its discretion in considering Aguilar’s affidavit. Next, the court determined Aguilar was required to establish she was “treated less favorably than similarly situated members of the opposing class[.]” The County presented evidence that Aguilar did not hold the same job position,  duties and responsibilities, or requirements for education as the comparators she listed. The applicable test is not whether the positions are comparable in some respects; the test is whether the positions are “comparable in all material respects.” While Aguilar’s burden at the prima facie stage was not onerous, it did require, at a minimum, that she present evidence raising a fact issue on whether she was similarly situated to members outside her protected group who were treated differently. She did not present contradicting evidence as to two other managers, but did as to a third, Cruz. As a result, the plea should have been granted as to disparate regarding the first two managers, but was properly denied as to Cruz. As far as the harassment claim goes, County argues that Lucero’s comments did not create a hostile work environment because many of them were made to persons other than Aguilar. But those comments were made about Aguilar and were humiliating to her. In addition, because many of the comments were made to her staff and to contractors with whom she worked, they interfered with her ability to perform her job duties. Aguilar demonstrated that a disputed material fact exists concerning whether her work environment was objectively hostile or abusive. While the restrictions on Lucero were put in place, they were lifted five months later and he returned to his prior behavior.  While the County asserts it did not have time to respond to the return, Aguilar’s hostile work environment claim is not based solely on the final week of her employment, divorced from the years of harassing conduct that preceded that week. A reasonable person could conclude that this failure effectively communicated to Aguilar that Lucero would be permitted to once again humiliate Aguilar and interfere with her job performance. As to her retaliation charge, she asserted after complaining about Lucero, her supervisor sent her an email accusing her of inappropriate behavior in a meeting. When her supervisor emailed her to discuss “next steps” she took that to mean discipline of her, so she resigned. The totality of the circumstances surrounding Aguilar’s hostile work environment claim create a fact issue as to whether retaliation was committed by the County for reporting harassment.  However, no fact issue exists regarding Aguilar’s retaliation charge for reporting disparate pay.   In sum, the plea was properly denied as to some claims, but should have been granted as to others.

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

School district failed to establish unauthorized contract, even with TEA report declaring contract was executed in violation of procurement laws

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Harlandale Independent School District v. Jasmine Engineering, Inc, 04-19-00638-CV, (Tex. App – San Antonio, March 11, 2020)

This is a breach of contract/immunity case where the San Antonio Court of Appeals affirmed the denial of the school district’s plea to the jurisdiction.

Harlandale Independent School District (the “District”) and  Jasmine Engineering, Inc. (“Jasmine”) entered into a Professional Services Agreement (“PSA”)which was amended six times. When the District terminated the contract, Jasmine sued for breach of contract.  The District filed one plea to the jurisdiction challenging only the pleadings, which the 4th Court already considered and held Jasmine properly pled a waiver of immunity. On remand, the District filed another plea to the jurisdiction challenging jurisdictional facts. The plea was denied, and the District appealed.

Texas Education Agency (“TEA”) performed an investigation and issued a determination that the District violated state law procurement requirements by entering into the PSA and amending it. The District therefore asserts no valid contract was created. Section 271.152 of the Texas Local Government Code waives immunity for contracts for goods or services. Under chapter 271 a valid contract is one stating the essential terms for providing goods or services to the local governmental entity and that is properly executed on behalf of the local governmental entity. Jasmine Engineering asserts that the TEA cannot determine the validity of the PSA and, if the matter were properly before the trial court, Jasmine Engineering would argue waiver and other legal theories. While the District relies on the TEA report, the District did not advance that it also determined the PSA was not authorized. While it is true that the TEA has the statutory authority to initiate investigations into contracting matters, make findings, and impose sanctions pursuant to its findings, these powers do not imply that the TEA’s findings bind the trial court or are a jurisdictional bar. Tex. Educ. Code §39.057.  And while the TEA report is attached to the plea, none of the supporting documentation was included. As a result, the evidence did not negate the pleadings and the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justices Martinez, Chapa, and Rios. Memorandum Opinion by Justice Martinez. Docket page with attorney information can be found here.

Nurse who reported believed violation of overtime restrictions to legal department deemed not to have reported to proper agency under Whistleblower Act

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Erin Reding v. Lubbock County Hospital District d/b/a University Medical Center, 07-18-00313-CV, (Tex. App – Amarillo, March 18, 2020)

This is a Texas Whistleblower Act case where the Amarillo Court of Appeals affirmed the granting of the hospital district’s plea to the jurisdiction.

Reding is a registered nurse working for the Lubbock County Hospital District d/b/a University Medical Center (“UMC”). UMC announced plans for a new policy that would require nurses to sign up for two mandatory “on call” shifts per month and discipline for those who did not comply. Reding believed the proposed compulsory shifts would violate § 258.003 of the Texas Health & Safety Code, prohibiting a hospital from requiring a nurse to work mandatory overtime.  She filed a complaint with the human resources and legal departments. Reding was later terminated and she asserts the termination was retaliatory.  She brought suit under the Texas Whistleblower Act. UMC filed a plea to the jurisdiction which was granted.  Reding appealed.

Reding alleged that she “reasonably and in good faith believed that [UMC’s] legal department was the appropriate authority to whom she should report the violation.” However, the Texas Supreme Court has consistently held that “reports up the chain of command are insufficient to trigger the Act’s protections.” To qualify, the internal department must also have outward-looking powers, as an “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.” While the legal department at UMC may oversee internal compliance with the law governing nurses’ work hours, that is not the same as having the authority to enforce laws against third parties. The plea was properly granted.

If you would like to read this opinion click here. The panel consists of Chief Justice Quinn and Justices Pirtle and Parker. Memorandum Opinion by Justice Parker. The attorney listed for Reding is J. Craig Johnston.  The attorney listed for UMC is Don C. Dennis.

Texas Supreme Court holds defendant entitled to designate responsible third-party even after statute of limitations expires

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In re: Mobil Mini, Inc., 18-1200 (Tex. March 13, 2020)

This is a mandamus case that will be of interest mainly to litigators. The Texas Supreme Court granted mandamus and ordered the trial court to allow the designation of a responsible third party even though the statute of limitations had expired.

Covarrubias’s pinky finger was injured when a wind gust blew the door of a construction trailer closed on his hand. Mobile Mini owned the trailer, but had leased it to Nolana Self Storage, LLC, the owner of the construction site.  Covarrubias sued Mobile Mini just before the statute of limitations expired, but did not sue Nolana. Mobile Mini’s discovery responses identified Nolana as a potentially responsible third party. Mobile Mini filed a motion to designate Nolana as a responsible third party, but no hearing was set immediately. Meanwhile, Nolana (who had been brought in) obtained a summary judgment that claims against it were time-barred and it was dismissed. Covarrubias later objected to Mobile Mini’s attempt to designate Nolana as a responsible third-party given the time bar.  The trial court refused to allow Mobile Mini to designate Nolana. The court of appeals denied Mobile Mini’s mandamus petition without substantive comment.  Mobile Mini brought this mandamus action in the Texas Supreme Court.

The Court went through a lengthy analysis of Chapter 33 of the Texas Civil Practice and Remedies Code.  The Court held Mobile Mini’s disclosure was timely because under the Texas Rules of Civil Procedure, it was not obligated to disclose potentially responsible third parties until its discovery responses were due. Because Covarrubias waited almost two years to sue Mobile Mini, the response deadline for the disclosures fell after limitations expired. Mobile Mini did not engage in any dilatory or stall tactics to game the system, but instead filed the discovery response when it was due.  Such are deemed a timely designation. Placing the onus on a defendant to respond before the Rules of Civil Procedure obligate it to do so not only contravenes section 33.004(d)’s express language but would also be unfairly prejudicial to defendants. Covarrubias’s second argument that Nolana was “substantively” dismissed was rejected as missing a statute of limitations in this case was procedural in nature. Under the proportionate-responsibility statute, “responsibility” is not equated with “liability.” Finally, an adequate appellate remedy is ordinarily lacking because allowing a case to proceed to trial without a properly requested responsible-third-party designation “would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of the relator’s defense in ways unlikely to be apparent in the appellate record.”  As a result, the trial court had a required duty to allow the designation. The Court granted the writ of mandamus ordering Nolana be designated as a responsible third-party.

If you would like to read this opinion click here.  The docket page can be found here.

Property owner negated premise duty as a matter of law involving brown-recluse spider attack on invitee

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Homer Hillis v Henry McCall, 18-1065 (Tex. March 13, 2020)

This is a premises-liability case where the Texas Supreme Court ruled the property owner negated as a matter of law the duty to warn of the brown-recluse spider danger. While not a governmental liability case, the analysis of knowledge would be similar.

Hillis owns a bed and breakfast (the B&B) and a neighboring cabin which he rents out. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems, on an “as needed” basis. Hillis leased the neighboring cabin on the property to Henry McCall, and utilized him as a handyman. Hillis typically called McCall several days before guests arrived and asked him to perform various tasks associated with B&B services. While checking under the sink for a leak in response to a Hillis call, McCall was bitten by a brown recluse spider. Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders. Hillis asserted he would pass along the information to the housekeeper to take care of. McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the MSJ and McCall appealed.

The Texas Supreme Court held the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.”  When the injured person qualifies as an invitee, as McCall did by admission of the parties,  then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is or reasonably should be, aware but the invitee is not.” The duty does not extend to warning the invitee of hazards that are open and obvious. The Court also recognized that with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Wild animals “exist throughout nature” and are “generally not predictable or controllable.” The exception to this doctrine is when wild animals are found in artificial structures or places where they are not normally found, the landowner knows or should know of the unreasonable risk of injury and patrons would not be expected to recognize the danger. Under this exception, the landowner owes the general duty owed to an invitee to warn or make safe unreasonably dangerous conditions they know or should know about. However, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm. The Court analyzed the record and listed pertinent facts. The Court found knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property. According to McCall, Hillis should have warned him that the spiders McCall himself had seen and reported to Hillis were dangerous. The Court expressly stated “[w]e will not impose a duty on a landowner to warn an invitee about something he already knows.”  As a result, Hillis negated a duty to McCall as a matter of law.

If you would like to read this opinion click here. The docket page can be found here.

Texas Supreme Court holds deputies travel home from approved extra-duty work at football game was within “course and scope” of employment for worker’s compensation purposes

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Mary Orozco v County of El Paso, 17-0381(Tex. March 20, 2020)

This is a worker’s compensation case, but the key issue is whether the deputy who died in a vehicular accident while driving his assigned patrol car, was in the course and scope of his employment.  The  Texas Supreme Court held he was within the course and scope.

Orozco was killed instantly when a wheel from another vehicle came loose and crashed through his patrol car’s windshield on the expressway. At the time of his death, Orozco was a sergeant with the El Paso County Sheriff’s Department. However, Sergeant Orozco was not scheduled to work for the department that night. He instead worked an extra-duty assignment at a University of Texas El Paso (UTEP) football game.  Because the work at UTEP was extra-duty employment (and not considered off-duty) and might entail the use of an officer’s law-enforcement powers under the policy manual, Sergeant Orozco wore his uniform, badge, and gun to the football game, and he drove there in his assigned patrol car. After completing his work at the UTEP football game, Sergeant Orozco also used the patrol car for his return trip home, which is when the accident occurred. His surviving spouse filed a claim under the Worker’s Compensation Act.  The County asserts the claim should be denied.  All procedural administrative steps were taken and suit was filed. The Court of Appeals ruled in favor of the County and the widow appealed.

The Texas Supreme Court recently held the question of whether an officer is on or off duty does not determine whether the officer’s conduct falls within the scope of his employment. “Peace officers are . . . relatively unique among governmental employees as they may be required to spring into action at a moment’s notice, even while off duty.” Because a peace officer is always a peace officer, even during off-duty hours, the capacity in which an officer is acting can be nebulous. While the parties made arguments regarding his status at the football game, the Court held that was not the focus. It is Sergeant Orozco’s use of his patrol car for travel from that approved employment to his home that is at issue.

As a general rule, travel to and from work does not originate in the employer’s business and, in some instances, is expressly excluded from the course and scope of employment by statute.  While exceptions may have previously existed for travel that is an integral or required part of the employee’s work, the Legislature has since codified its definition of course-and-scope which controls.  The Court analyzed a lot of the record and testimony and determined that Orozco’s “use” of the vehicle was authorized and not purely for personal use. Further, the statutory test asks whether the activity producing injury relates to, originates in, and furthers the employer’s business affairs. The operation of a marked patrol car on the public streets is an activity that clearly relates to and originates in the work or profession of the El Paso County Sheriff’s Department. Patrolling El Paso’s roads is a significant part of the department’s work. Moreover, having uniformed deputies in marked patrol cars on El Paso streets furthers the work of the sheriff in preserving the peace.

The statutory definition of the term “course and scope of employment” excludes two types of travel- the coming-and-going rule and the dual-purpose rule.  Travel to and from work is governed solely by the coming-and-going rule, while all other travel is subject to the dual-purpose rule. Here  it appears undisputed that Orozco “contacted the Sheriff’s dispatch as he left the extra-duty assignment that he was in route to his home and available for calls.”  After analyzing numerous parts of the record which made clear he was subject to call while driving home and was required to respond to emergencies if observed, the Court concluded that the authorized operation of Orozco’s patrol car to and from the approved extra-duty assignment was a law-enforcement activity similar to his on-duty work for the county.  As a result, his death occurred during the course and scope of his employment.

If you would like to read this opinion click here. The docket page can be found here.

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

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

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

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

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

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

Texas Supreme Court holds 1949 utility easements with “reconstruction” language means easements are general with no fixed width

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Southwestern Electric Power Company v. Kenneth Lynch, Tommy Batchelor, and Twant Wilson, Texas, 18-0768, (Tex. – Feb. 28, 2020)

This is a property/easement dispute where the Texas Supreme Court held a set of utility easements were general, with no fixed width, regardless of the historic use.

In 1949, Southwestern Gas & Electric Company (Southwestern) acquired a number of easements over a stretch of land in northeast Texas to construct a transmission line. Southwestern constructed wooden poles at the time. Southwestern Electric Power Company (SWEPCO) later acquired these easements. The easements authorize SWEPCO “to erect towers, poles and anchors along” a set course on a right-of-way that traverses several privately owned properties and SWEPCO historically used only 30 feet of easement area. In 2014 and 2015, SWEPCO undertook a modernization project to replace the transmission lines.  SWEPCO offer to set a width of 100 feet to individual property owners. Some owners accepted, but the Landowners in this case did not. After the project was completed, the Landowners filed suit seeking a declaratory judgment fixing SWEPCO’s easements to a thirty-foot width, fifteen feet on each side of the transmission line. They asserted the offer of 100 feet meant SWEPCO intended to exceed the 30 feet in the future.  SWEPCO filed two pleas to the jurisdiction, which were denied, and counterclaims for trespass and breach of contract. The trial court held a bench trial and held for the Landowners. The judgment was affirmed by the court of appeals.

The Court first determined SWEPCO’s pleas were properly denied as a ripe controversy existed regarding the scope of the easement, regardless of whether SWEPCO ever utilized more than 30 feet. While acknowledging many of the Landowner’s assertions were hypotheticals, it noted their claims are inextricably tethered to a disagreement of present scope. Regarding that scope, the easements do not state a specific maximum width of the right-of-way, nor do the easements specify how much of the land SWEPCO is entitled to access. Instead of construing the easements as general easements that intentionally omitted a defined width, the courts below incorrectly held the easements became “fixed and certain” once the transmission lines were constructed. The plain language of the easements stated they allowed for reconstruction and alteration, which contemplates future construction and installation of new poles and additional lines. The Court has recognized the existence of general easements that do not require a fixed width.  As a result, they are general easements with no fixed widths. However, the  Court noted a holder of a general easement must utilize the land in a reasonable manner and only to an extent that is reasonably necessary.  If at some point in the future SWEPCO utilizes the easements in a way that the Landowners believe is unreasonable and not reasonably necessary, or in a way that violates the express terms of the easements, the Landowners could at that point bring suit to enjoin SWEPCO’s use of the easements.

If you would like to read this opinion click here. Opinion by Justice Green. Justice Bland did not participate. Docket page with attorney information can be found here.

14th Court of Appeals reverses jury award in excessive force case against County, but upholds portion against deputy

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Harris County, et al, v Coats, et.al, 14-17-00732-CV, (Tex. App. — Houston [14th Dist.], February 6, 2020)

This is a § 1983/wrongful death case where the 14th Court of Appeals reversed in part a jury award against the County and its deputy. [Comment: this is a 49-page opinion].

Jamail and his girlfriend were using cocaine when Jamail felt ill.  Jamail exited through a window and called 9-1-1 from a public phone. However, when the EMTs arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Saints to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time.  However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity.  A jury trial was held against the County and Deputy Vailes. The jury found for Jamail’s family. The County and Deputy Vailes appealed.

The court first determined no policy, custom, or practice of the County existed to establish § 1983 liability on the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constable’s go, the fact a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.  As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient Vailes’ actions caused Jamail’s death.  Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death.  The fact Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.

If you would like to read this opinion click here. Panel consists of Justice Christopher Justice Wise, and Justice Jewel. Opinion by Justice Jewel.

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

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

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

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

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

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

Texas Supreme Court holds a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name.

St. John Missionary Baptist  Church, et al, v Merle Flakes, et al, 18-0228, (Tex. Feb. 7, 2020).

The Texas Supreme Court held in this case, which will be of interest to litigators and appellate practitioners, that the courts of appeals have authority to order additional briefing on issues that were not raised in the principal briefs.

This is a dispute over church assets. St. John Missionary Baptist Church held a conference and terminated pastor Bertrain Bailey’s contract. Both Bailey and the chairman of St. John’s trustee board, Merle Flakes, were notified of the vote, but Bailey refused to step down and Flakes continued to pay him. The Church began selling off assets to keep payments. St. John members sued Flake and Bailey. Flakes filed a plea to the jurisdiction based on lack of standing and the ecclesiastical-abstention doctrine. The trial court granted Flakes’s motion but did not specify whether its decision rested on the standing issue, the ecclesiastical abstention issue, or both. St. John appealed, but its appellate brief only expressly addressed the standing issue. The court of appeals, sitting en banc, affirmed in a divided decision holding the court of appeals was bound to affirm the trial court’s judgment because St. John failed to challenge all possible bases for the decision.

St. John contends that Texas Rule of Appellate Procedure 38.9 authorizes courts of appeals to order additional briefing when an appellant fails to brief all possible grounds for the trial court’s decision. Flakes responds that although Rule 38.9 gives courts of appeals discretion to order additional briefing, the court properly exercised that discretion here by declining to order supplemental briefing. The Texas Supreme Court held, generally, Rule 38.1 provides that an issue statement “will be treated as covering every subsidiary question that is fairly included.” However, a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name. Here, the ecclesiastical-abstention doctrine was not an independent basis for affirming the trial court’s judgment apart from the standing issue. Rather, based on the record before us, it appears that the standing and ecclesiastical-abstention issues are “so inextricably entwined that one cannot be mentioned without automatically directing attention to the other.” At the trial court level, Flake’s motion listed both. During a hearing on Flakes’s motion, the overlap between the standing and ecclesiastical abstention issues became even more apparent. On this record, then, the standing issue “fairly included” the ecclesiastical-abstention issue, and St. John’s purported omission did not require the court of appeals to affirm based on a lack of inclusive identification. St. John’s briefing was “sufficient to put the court of appeals on notice” of the ecclesiastical-abstention issues in the case and “invite[d] the court of appeals to correct any error of law” as to that issue. The opinion is reversed and remanded.

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

14th Court of Appeals holds flooded property owners’ claims lack jurisdiction in district court

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San Jacinto River Authority v. Reba Ogletree, et al., 14-18-00043-CV, (Tex App – Hou [14th dist.], Jan 28, 2020)

In this inverse condemnation case the Fourteenth Court of Appeals dismissed the homeowner’s claims for lack of jurisdiction.

Homeowners, whose properties allegedly flooded when water was released from Lake Conroe in the aftermath of Hurricane Harvey, sued the San Jacinto River Authority (SJRA) and the Texas Water Development Board in a Harris County district court. SJRA filed a plea to the jurisdiction and the TWB filed a Rule 91a motion. The trial court denied the plea but granted TWB’s motion. SJRA and the Homeowners appealed.

SJRA and the Texas Water Board contend on appeal that Texas Government Code section 25.1032(c) imbues the county civil courts at law with exclusive jurisdiction over all inverse condemnation claims filed in Harris County. Generally, Texas district courts and county courts at law have concurrent jurisdiction in eminent-domain cases, but section 25.1032(c) creates an exception for certain cases filed in Harris County.  Inverse condemnation claims and statutory condemnation claims are distinct categories of eminent-domain proceedings. The homeowners also raised substantive and procedural due process claims. The court concluded that the district court lacks subject matter jurisdiction over the purported substantive and procedural due process claims because, as pled, they are necessarily dependent upon the viability of the inverse-condemnation claims over which the district court lacks jurisdiction.  When the homeowners requested the ability to amend their petitions, the court noted it lacked authority to lift the legislatively mandated stay in section 51.014(b) [interlocutory appeal provision], even for a limited purpose. Further, in this situation, the homeowners’ live pleading affirmatively negates the district court’s jurisdiction; hence, the homeowners are not entitled to a remand to plead new claims.  All of the homeowner’s claims should have been dismissed.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, and Justices Jewell and Bourliot. Opinion by Justice Bourliot. Docket page with attorney information found here.

Under PIA common-law privacy only applies to a person’s private affairs, not events related to discrimination charges

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Stetson Roane v. Ken Paxton, Attorney General of Texas; and Seguin Independent School District, 14-18-00264-CV, (Tex App – Hou [14th dist.], Jan 28, 2020)

This is a Public Information Act (“PIA”) lawsuit where the Fourteenth Court of Appeals agreed with the Attorney General that certain records must be released.

Roane served as superintendent of the Seguin Independent School District (“the District”) who had a sexual harassment charge filed against him.  After he had left the District, it received several PIA requests which included information on the complaint. Roane was notified he could file a third-party objection, which he did asserting common law privacy to withhold the information. While the Attorney General (“AG”) allowed the District to withhold other responsive information, it opined the complaint information was subject to release. Roane filed suit to prevent the release and filed a motion for summary judgment. The AG also filed a motion for summary judgment. The trial court granted the AG’s motion and denied Roane’s motion. Roane appealed.

The common-law right to privacy protects information from disclosure when “(1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public.” However, the highly intimate or embarrassing facts must be “about a person’s private affairs.”  The summary judgment record failed to demonstrate that the information involved matters relating to Roane’s “private affairs.” Matters of workplace harassment, discrimination, and policy violations in a governmental body are, by their very nature, generally do not qualify. The court noted the complainant’s name and other individuals’ names have been redacted from the information ordered to be disclosed by the AG’s opinion.  As a result, all that remains are public matters. Therefore, the trial court ruled properly regarding the competing motions.

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

Trial court’s denial of plea after evidentiary hearing was proper given the trial court decides disputed facts unrelated to merits of underlying claims

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City of San Antonio v. Pedro J. Arciniega, 04-19-00467-CV, (Tex. App – San Antonio, Jan 15, 2020)

This is an employment discrimination case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Arciniega sued the City alleging a claim for age discrimination after his employment was terminated. The City filed a plea to the jurisdiction asserting Arciniega failed to timely file his administrative complaint with the Texas Workforce Commission within 180 days after the date he was terminated. Arciniega asserted he filed it within 180 days after receiving the  City’s letter notifying him of his termination. When the hearing was held on the plea the City asserted it should be an evidentiary hearing on exactly when Arciniega received notice and Arciniegra’s attorney asserted his affidavit was sufficient to create a fact issue. The City’s attorney responded the trial court was required to hear evidence and resolve fact issues regarding jurisdiction when the challenged jurisdictional facts are not intertwined with the merits of the case.  The court allowed an evidentiary hearing at which witnesses were presented. After the testimony, the court denied the plea.

Legally, the 180-day period “begins when the employee is informed of the allegedly discriminatory employment decision.” A trial court “must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.”  When a defendant asserts and supports with evidence that the trial court lacks subject matter jurisdiction and the facts underlying the merits and subject matter jurisdiction are intertwined, a plaintiff is only required to show that there is a disputed material fact regarding the jurisdictional issue. A different standard applies, however, when a jurisdictional issue is not intertwined with the merits of a plaintiff’s claim. In that situation, “disputed fact issues are resolved by the court, not the jury.” Based on the applicable standard of a review the court found that the denial of the plea, was an implicit finding Arciniega timely filed his administrative complaint with the TWC.  Viewing the evidence in the light most favorable to the trial court’s finding, Arciniega’s testimony supported that finding. As a result, the plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Alvarez, Rios, and Watkins. Memorandum Opinion by Justice Rios. Docket page with attorney information found here.