San Antonio Court of Appeals held City park and airport police could proceed with declaratory claims to establish collective bargaining rights

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City of San Antonio and Erik Walsh, in his Official Capacity v. San Antonio Park Police Officers Association, et al, 04-20-00213-CV, (Tex. App – San Antonio, July 14, 2021).

This is a civil service/collective bargaining suit where the San Antonio Park Police Officers Association (“SAPPOA”) sought declaratory relief for three distinct issues related to the legal classification of San Antonio’s park and airport police officers. The San Antonio Court of Appeals affirmed in part and reversed in part the City’s plea to the jurisdiction.

The SAPPOA argued that San Antonio’s park and airport police officers are “police officers” entitled to collectively bargain with the City of San Antonio (“City”) under chapters 174 and 143 of the Texas Local Government Code.  The court explained  Chapter 174 provides a limited waiver of immunity as follows: “This chapter is binding and enforceable against the employing public employer, and sovereign or governmental immunity from suit and liability is waived only to the extent necessary to enforce this chapter against that employer.” Tex. Loc. Gov’t Code Ann. § 174.023.  SAPPOA clearly alleged a violation of their right to collectively bargain under Chapter 174. The court held that these factual allegations were sufficient to establish the subject matter jurisdiction of the court.

However,  SAPPOA did not allege or argue that chapter 143 provides for a waiver of immunity for their declaratory judgment claim. The court held  SAPPOA did not request a declaration concerning the validity of chapter 143, but instead sought a declaration as to the park and airport police officers’ rights under this chapter. Thus, the court held that the UDJA does not waive the City’s immunity with respect to their declaratory claim pursuant to chapter 143.

Finally, the court held that SAPPOA alleged sufficient facts that, if taken as true, would confer standing for their ultra vires claims.

Panel consists of Chief Justice Martinez, and Justices Rios and Watkins. Reversed in part, Rendered in part, and Affirmed in part. Memorandum Opinion by Chief Justice Martinez can be read here. Docket page with attorney information found here.

Amarillo Court of Appeals holds committed individual cannot challenge commitment or conditions through secondary suit

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James Richards v. Marsha McLane, in Her Official Capacity as Director of the Texas Civil Commitment Office, 07-20-00306-CV, (Tex. App – Amarillo, July 6, 2021)

This is a declaratory judgment/ultra vires type case where the Amarillo Court of Appeals affirmed the granting of the Director’s plea to the jurisdiction.

Richards sued the director of the Texas Civil Commitment Office involving his commitment orders for being a sexually violent predator. The Director filed a plea to the jurisdiction, which was granted. Richards appealed.

Section 841.082 of the Texas Health and Safety Code provides that the court civilly committing someone as a sexually violent predator “retains jurisdiction of the case with respect to a proceeding conducted under . . . subchapter [E of the statute], . . . or to a civil commitment proceeding conducted under Subchapters F and G.” TEX. HEALTH & SAFETY CODE ANN. § 841.082(d) (West Supp. 2020).  The Court examines the claims based on the nature of the facts asserted and not the labels placed upon them by the pleading party. When reviewing the pleadings, the court held Richards actually challenged the legitimacy of his confinement for inpatient services. Richards sought to obtain less restrictive housing and supervision through the suit, thereby countermining the committing court’s jurisdiction. Further, since the housing requirements apply upon the “release” of an individual, and Richards has yet to be released, the challenge is not yet ripe.

Panel consists of Chief Justice Quinn, and Justices Pirtle and Parker. Affirmed. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

Slip and fall plaintiff failed to dispute hospital’s proof of no actual notice of dangerous condition

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The University of Texas MD Anderson Cancer Center v. Courtney Simpson, 01-20-00679-CV, (Tex. App – Houston [1st Dist.], July 22, 2021)

This is an interlocutory appeal in a premise defect/Texas Tort Claims Act (TTCA)  case where the First District Court of Appeals reversed the denial of the University’s plea and dismissed the Plaintiff’s claims.

Simpson was a visitor to the University’s MD Anderson hospital when she slipped and fell “due to a wet slippery floor.”  Simpson was visiting a friend who had surgery and was in a patient room. Simpson purportedly left her friend’s patient room to get ice from the ice machine. As she walked down the hallway, she fell and broke her wrist. Simpson asserted that she slipped on a round-shaped patch of clear liquid, about three to five inches in diameter. Simpson allegedly did not know that a clear liquid had caused her to fall until she heard someone hear the nurse’s station point out the liquid and admit they should have cleaned it up. Simpson did not know the identity of any of the persons who were present at the nurse’s station. MD Anderson asserted it did not receive any reports of substances or liquids being spilled or present on the floor where Simpson fell and did not receive any reports of falls at that location before Simpson fell.  Simpson asserted that anyone who would have admitted to knowing the water was there must be an employee of MD Anderson. The hospital asserted that an unidentified person commenting on the water does not establish a fact issue that the person was an MD Anderson employee. The trial court denied the plea and MD Anderson appealed.

To prove actual knowledge, the plaintiff must show that the governmental unit actually knew of the dangerous condition at the time of the accident.  Actual knowledge of an unreasonably dangerous condition can sometimes be proven through circumstantial evidence.  However, circumstantial evidence establishes actual knowledge only when it “either directly or by reasonable inference” supports that conclusion.  MD Anderson presented evidence establishing it did not have actual knowledge of a dangerous condition prior to the fall. Simpson testified she did not know what type of medical professionals were present at the nurse’s station and did not know what the admitting person was doing at the station. She admitted she did not see any ID badge on the admitting person and could not recall race or age. She also admitted that she did not know if the person was a nurse or not. MD Anderson produced evidence that non-employees of MD Anderson can be present at a nurse’s station and wear scrubs. MD Anderson met its burden, but Simpson did not dispute MD Anderson’s facts. As a result, the plea should have been granted.

Panel consists of Chief Justice Radack, and Justices Landau and Countiss. Memorandum Opinion by Justice Countiss can be read here. Docket page with attorney information found here.

First District Court of Appeals holds inmate failed to property provide notice of claim for alleged sexual assault

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Troylencia Wolf Anderson v. Waller County, Texas, et al, 01-20-00097-CV, (Tex. App – Houston [1st Dist.], July 20, 2021)

This is an alleged sexual assault case brought under the Texas Tort Claims Act (TTCA) where the First Court of Appeals affirmed the granting of the County’s plea to the jurisdiction.

Anderson alleged that while incarcerated at the Waller County Jail, she was taken to her cell by an unknown female jailor and given a minor amount of food and water. She took mayonnaise and obstructed the security camera. After eating her food, she claims she blacked out and therefore assumed she had been drugged. She asserts she was sexually assaulted then released. Anderson brought claims against the County, the Sheriff, and several jailors for sexual assault, assault, intentional infliction of emotional distress, and negligence. She amended her pleadings indicating the misuse or malfunctioning of security cameras lead to the assaults as well as providing unsafe food. The County filed several pleas to the jurisdiction, which were eventually granted. Anderson appealed.

A plaintiff’s failure to provide the statutorily required notice deprives the trial court of jurisdiction and requires the court to dismiss the plaintiff’s case. Knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.  Further, mere investigation of an incident or injury does not show that a governmental unit had actual notice for purposes of the TTCA. Anderson’s written notice was provided four years after her incarceration and nothing in the record indicates the County was aware, for actual notice purposes, that Anderson had reported her claims to the Texas Rangers. Anderson did not allege the date on which the County received actual notice and did not allege that the County had actual notice that Anderson had received some injury within six months of the incident giving rise to Anderson’s claimed injury. Anderson’s allegations that the Texas Rangers investigated an unspecified complaint by Anderson at some unspecified time, even if taken as true, do not show actual knowledge of the claim. Finally, the court held that when a plea is granted, if it is one of pleading defects only which could be cured, the dismissal may be without prejudice, but if the petition could not possibly allege facts demonstrating a waiver of immunity, or if the Plaintiff had been given an adequate opportunity to replead and failed, then the dismissal should be with prejudice. The trial court properly granted the plea with prejudice.

Panel consists of Chief Justice Radack, and Justices Landau and Countiss. Memorandum Opinion by Justice Countiss can be read here. Docket page with attorney information found here.

Mere acknowledgment a police report exists does not establish actual notice of claim because the existence of an investigation alone is insufficient to demonstrate actual notice says 13th Court of Appeals

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City of Mission, Texas v. Lucila Gonzalez, 13-20-00138-CV, (Tex. App – Corpus Christi & Edinburg, July 22, 2021)

This is a premise liability case under the Texas Tort Claims Act (“TTCA”) where the Corpus Christi & Edinburg Court of Appeals reversed a denial of the City’s plea to the jurisdiction and dismissed the claims.

Gonzalez was taking the trash out at her residence when she slipped and fell, striking her right knee on the ground. It is undisputed that the fall occurred on private property. However, Gonzalez alleges the area where she fell was muddy “because of negligent repair work to a water line rupture” by City employees. City firefighters emptied the water line across the street from her residence. Gonzalez alleges that the released water flowed across the street, causing the muddy condition and her fall. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Under the TTCA, a governmental unit must be given notice of a claim against it not later than six months after the day that the incident. The letter of representation Gonzalez sent to the City does not comply with the written notice requirements of § 101.101 because it fails to reasonably describe the incident, the injury claimed, or the time and place of the incident. Gonzalez asserted the police report established actual notice of claim; however, no police report was in the record. The City’s mere acknowledgment a police report exists does not raise a fact issue because the existence of an investigation alone is insufficient to demonstrate actual notice.  Nothing else in the record indicates actual knowledge of the claim sufficient under the TTCA. The plea should have been granted.

Panel consists of Chief Justice Contreras, and Justices Benavides and Silva. Reversed and rendered. Memorandum Opinion by Benavides can be read here. Docket page with attorney information found here.

Since injured inmate had observed repair of table and knew it was inadequate, inmate accepted the risk of sitting at table – County therefore not liable under TTCA

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Hidalgo County Detention Center v. Isidro Villa Huerta, 13-20-00113-CV, (Tex. App – Corpus Christi & Edinburg, July 22, 2021)

This is a premise liability case under the Texas Tort Claims Act (“TTCA”) where the Corpus Christi & Edinburg Court of Appeals reversed a denial of the City’s plea to the jurisdiction and dismissed the claims.

A table in a “day room” at the county jail broke at the base. The Hidalgo County Sheriff’s Office submitted a “Maintenance Work Order Request Form” for repair of the table that same day. A technician welded the table and returned the form half an hour later, indicating that the problem had been resolved. Huerta, an experienced welder and inmate at the jail, observed the repair performed by the technician.  Two days later, he sat on the table with three other inmates when the same point at the base broke. Huerta asserted he was injured and filed suit. The County filed a plea to the jurisdiction, which was denied. The County appealed.

Under the provisions of the TTCA applicable, the County owed a duty of care not to injure a licensee by willful, wanton or grossly negligent conduct, and to use ordinary care either to warn of or to make reasonably safe, a dangerous condition of which the County is aware and the licensee is not. Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition. If a licensee is aware of a dangerous condition, he has all that he is entitled to expect, that is, an opportunity for an intelligent choice as to whether the advantage to be gained by coming on the land is sufficient to justify him in incurring the risks involved.  The court disagreed with the County and noted the same table had broken at the same place at least three separate times, so a fact issue exists on whether the County had actual notice of the dangerous condition. However, Huerta testified that he observed the table’s repair two days before his fall, and based on his experience, he knew the weld was inadequate to ensure the structural integrity of the table because Hidalgo County’s “in-house maintenance guy” did a “quick tack [weld].” Huerta knowingly decided to sit at the same table. As a result, he was already aware of the danger and accepted the risk. The plea should have been granted.

Panel consists of Chief Justice Contreras, and Justices Benavides and Silva. Reversed and rendered. Memorandum Opinion by Benavides can be read here. Docket page with attorney information found here.

 

Austin Court of Appeals holds AG established only 6 days of violations by city of concealed handgun prohibitions, not the 500+ asserted

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Ken Paxton, Texas Attorney General v. City of Austin, Mayor Steve Adler, Ora Houston, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Don Zimmerman, Leslie Pool, Ellen Troxclair, Kathie Tovo, and Sheri Gallo, each in their Official Capacity, 03-19-00501-CV, (Tex. App – Austin, July 22, 2021)

This is a handgun notice/AG penalty case against the City of Austin. The Austin Court of Appeals affirmed the imposition of civil penalties against the City of Austin imposed by the trial court and denied the AG’s request for stronger penalties as a matter of law.

In 2015, the Legislature enacted Section 411.209 (“Wrongful Exclusion of Concealed Handgun License Holder”) of the Texas Government Code, which it amended in 2017 and 2019. The section addresses penalties against a City that improperly prohibits the carrying of concealed handguns in certain locations. Under §30.06 of the Texas Penal Code, in order to prohibit a licensed concealed handgun carrier from entering a public building, the City must post a specific sign with specific language. A citizen testified he sent the City notices to remove a pictorial sign and that he was orally told he could not enter.  Under §411.209, the AG filed suit against the City for improperly prohibiting licensed carriers. The trial court dismissed the claims related to the City’s prohibition picture of a gun with a circle and line through it, but held the AG met its burden of proof as to other warnings (including oral warnings) on six separate days. The trial court imposed penalties of $9,000 against the City. The City did not appeal, but the AG did.  AG asserted the City should have been penalized over $5 million due to continuing violations and in dismissing the pictorial violation.

To be a prohibited notice under former Section 411.209(a), the notice must be either “by a communication described by Section 30.06, Penal Code” or “by any sign expressly referring to that law or to a license to carry a handgun.” Former Tex. Gov’t Code § 411.209(a). The City’s pictorial sign is not “a communication described by Section 30.06, Penal Code.” And although the City’s Etching perhaps could be considered a “written communication” in the ordinary and common meaning of that phrase, Section 30.06 expressly defines “written communication” under which the pictorial sign does not qualify. As a result, dismissal of claims related to the pictorial sign was proper. Next, the district court concluded that the Attorney General met his burden to establish a violation of former Section 411.209(a) for six different days in 2016.  However, it failed to prove continuing violations on any other day. When a party attacks the legal sufficiency of an adverse finding on an issue on which it bears the burden of proof, the judgment must be sustained unless the record conclusively establishes all vital facts in support of the issue.  The AG failed to make such a showing. Finally, the Attorney General did not raise any complaint until his appeal regarding the district court’s award of a $1,500 per diem amount rather than the mandatory $10,000 minimum authorized by the statute for subsequent violations.  As a result, the court could not review that issue as it was not preserved.

Panel consists of Justices Goodwin, Kelly, and Smith. Affirmed. Memorandum Opinion by Justice Goodwin can be read here. Docket page with attorney information found here.

Evidence that a decisionmaker knew about the report of illegal activity is required to prove a Whistleblower retaliation claim.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Houston Community College v. Sabrina Lewis, No. 01-19-00626-CV (Tex. App.—Houston [1st Dist.], June 29, 2021) (mem. op.).

In this appeal from a trial court’s holding denying the college’s plea to the jurisdiction on racial discrimination claim and Whistleblower claim, the First District Court of Appeals reversed the trial court’s judgment and dismissed the case because the plaintiff provided insufficient evidence of discriminatory intent in her termination and failed to provide evidence of causation related to the Whistleblower retaliation claim because the individuals responsible for her termination did not have knowledge of her report of alleged illegal activity before her termination.

The plaintiff sued the college after she was terminated for cause from her employment.  The plaintiff was the Director of Veterans Affairs Department for the college and is an African-American woman.  The plaintiff argued that she was terminated either due to her race or because she made a report of illegal activity to the state and federal Veterans Affairs agencies.  The plaintiff sued the college for racial discrimination and Whistleblower retaliation.  The college argued that there was insufficient evidence of racial discrimination because she was replaced by an African-American and there was no showing she was treated differently than other similarly situated employees.  The college also argued that the plaintiff could not prove causation under the Whistleblower claim because there was no evidence that the individuals involved in the termination knew of the report of illegal activity.  The trial court denied the college’s plea to the jurisdiction related to the claim and the college appealed.

To establish a prima facie case of race discrimination, a plaintiff must show that the plaintiff: (1) is a member of a protected class, (2) was qualified for their position, (3) suffered an adverse employment action, and (4) that others similarly situated were treated more favorably than the plaintiff or the plaintiff was replaced by someone who is not in the same protected class. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).  The plaintiff, in this case, failed to establish that her termination was based on any discriminatory intent.  Evidence that a subordinate employee had made a derogatory remark was insufficient to show discriminatory intent and the employer established reasonable bases for the plaintiff’s termination. Also, her replacement was also African-American.

To establish a claim under the Whistleblower Act, an employee must establish that but for a good faith report of illegal activity, the employer would not have taken an adverse employment action against the employee.  Office of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020).  The plaintiff failed to produce evidence that the individuals responsible for her termination knew about her report of illegal activity to the Veterans organizations at the state and federal level.  This failure meant the causation prong of Whistleblower claims was not met.  The court discussed without deciding whether or not the “conduit” or “cat’s paw” theory of liability could be extended to Whistleblower retaliation claims.

The court of appeals reversed the trial court’s denial of the college’s plea to the jurisdiction and dismissed the case because insufficient evidence of either claim was provided.

If you would like to read this opinion click here.   Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Molloy.  Opinion by Justice Veronica Rivas-Molloy.

Dallas Court of Appeals holds coordination of extra-duty assignments for police officers is a governmental function – Plaintiffs required to provide proper notice of claim under TTCA

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Town of Highland Park v. Tiffany Renee McCullers, individually and for the benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, and Sonya Hoskins, et al, 05-19-01431-CV, (Tex. App – Dallas, June 29, 2021)

This is a Texas Tort Claims Act (“TTCA”) case in which the Dallas Court of Appeals reversed the denial of the Town’s plea to the jurisdiction and dismissed the claims.

The Town had a program to provide extra-duty work to various police officers in the area, but which was at the request of private citizens. The Town offered a security service assignment to Southern Methodist University (“SMU”) police officer Calvin Marcus McCullers (“Officer McCullers”) to guard a private residence under construction. After accepting the assignment, Officer McCullers sat for just over an hour in his car on the property. The National Weather Service issued a severe thunderstorm warning. Heavy rains occurred over the property so much that water rose up the sides of his vehicle. Seconds later, Officer McCullers opened the passenger door, stepped out of the vehicle, lost his footing, and the water swept him and his vehicle over an embankment at the edge of the Property. Officer McCullers did not survive. The family sued the City under general negligence and premise liability theories. The Town filed a plea to the jurisdiction, which was denied. The Town appealed.

It is undisputed that Plaintiffs did not provide written notice to the Town of their claims within six months of the accident, however, the Plaintiffs assert the Town had actual notice of the claims. Actual notice under section 101.101(c) requires evidence that the government had knowledge of its alleged fault in causing or contributing to the claimant’s injury. The issue is not whether the City should have made the connection between injury and responsibility as alleged, but whether the City made the connection or had knowledge that the connection had been made. The Town (i) acted on and investigated Officer McCullers’s request for rescue and (ii) learned of Officer McCullers’s death. However, those acts and the knowledge of Officer McCullers’s death are not sufficient to establish actual notice under the TTCA. Further, even if the Town had knowledge of the area’s general propensity for flooding, such is insufficient. The Texas Supreme Court has held the City’s knowledge of torrential rains did not establish actual knowledge of flooding at a specific location. As a result, no notice was provided.  Further, as to the Plaintiff’s premise liability claim, the Town did not own the property. Plaintiffs assert the Town had an easement on the property. However, the record shows that (i) the Town had neither a possessory interest nor an ownership interest in the land located within the easement, (ii) the easement did not give the Town authority to control or maintain the land located within the easement, and (iii) the Town had not used the easement for some years before July 5, 2016.  Finally, the actions of the Town were not proprietary. TTCA section 101.0215 enumerates “police and fire protection and control” as the first in the statutory list of governmental functions. The extra-duty jobs were provided only to certified law enforcement officers.  Officer McCullers was serving in a police capacity at the time of his death. As a result, the plea should have been granted.

The Concurring opinion focused more on the proprietary-governmental dichotomy. Texas courts have consistently held that when a city’s police activities are aimed at crime prevention, such activities are necessarily governmental. Since such was a governmental function, Plaintiffs failed to provide proper notice.

The Dissent would hold the coordination of off-duty officers was proprietary. The Town coordinated private security services for private property owners, not the general public.

Panel consists of Chief Justice Burns, and Justices Pedersen and Goldstein. Reversed and dismissed. Opinion by Justice Pedersen can be read here. Dissenting opinion by Chief Justice Burns can be read here. Concurring Opinion by Justice Goldstein can be read here. Docket page with attorney information found here.

Copyright infringement does not qualify as a constitutional taking says Texas Supreme Court

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Jim Olive Photograph, D/B/A Photolive, Ince v University of Houston System, 19-0605 (Tex. June 18, 2021)

The Texas Supreme Court held that a governmental entity’s infringement on a copyright does not qualify as a taking under the federal or state constitution.

Jim Olive Photography d/b/a Photolive, Inc. (Olive) is a professional photographer who took a series of aerial photographs of the City of Houston in 2005 and displayed them on his website for purchase. Such photos were registered with the United States Copyright Office.  Olive asserts the University of Houston (“University”) downloaded a copy and removed all identifying copyright and attribution material and began displaying the photographic image on several web pages.  Olive sued the University for a taking without compensation. The University filed a plea to the jurisdiction which was denied. The University appealed. The court of appeals disagreed and dismissed Olive’s claims. Olive appealed.

A copyright is a form of intellectual property that subsists in works of authorship that are original and are fixed in a tangible medium of expression. For a term consisting of the author’s life plus seventy years, the owner of a copyright enjoys the five exclusive rights of reproduction, adaptation, distribution, and public performance and display. The Court assumed, without deciding, that a copyright is a protected property interest. However, a compensable taking does not arise whenever state action adversely affects private property interests. Governments interfere with private property rights every day. Some of those intrusions are compensable; most are not. “A taking is the acquisition, damage, or destruction of property via physical or regulatory means.” To determine whether a physical or regulatory interference with property constitutes a taking, a court ordinarily undertakes a “situation-specific factual inquiry.” Property is the bundle of rights that describe one’s relationship to a thing and not the thing itself. Infringement of a copyright, however, is different than a typical appropriation of tangible property where rights are more closely bound to the physical thing. An act of copyright infringement by the government does not take possession or control of, or occupy, the copyright. The government’s violation of the copyright owner’s rights does not destroy the right or property. The Copyright Act provides that no action by a governmental body to seize or appropriate such ownership shall be given any effect under the Act. Similarly, the government’s unauthorized use of a copy of the copyrighted work is not an “actual taking of possession and control” of the copyright. Copyright infringement not only lacks the key features of a per se taking; it also does not implicate the reasons for creating a per se rule in the first place. Although the Texas Constitution waives governmental immunity with respect to inverse condemnation claims, such a claim must still be “predicated on a viable allegation of taking.” Allegations of copyright infringement assert a violation of the owner’s copyright, but not its confiscation, and therefore factual allegations of an infringement do not alone allege a taking. The plea should have been granted.

The concurring opinion focused more on the need to be flexible with a broad range of harm to property. However, the concurring justices agreed that copyright infringement was too far outside the protection.

If you would like to read this opinion click here. JUSTICE DEVINE delivered the opinion of the Court. JUSTICE BUSBY filed a concurring opinion (found here) in which JUSTICE LEHRMANN joined and in which JUSTICE BLACKLOCK joined as to part II.

Texas Supreme Court holds historic preservation ordinance is not “zoning” but must still comply with certain Chapter 211 requirements

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Powell, et al., v City of Houston, 19-0689 (Tex. June 4, 2021)

The Texas Supreme Court determined that Houston’s Historic Preservation Ordinance was not a zoning ordinance and therefore the zoning restrictions under state law do not apply. However, certain provisions of Chapter 211 of the Texas Local Government Code still apply to the ordinance.

The Houston City Council adopted a Historic Preservation ordinance which required owners of properties in those districts to seek approval from the Houston Archaeological and Historical Commission before modifying or developing their property. The City originally had a waiver provision, but it was removed in 2010 and instead adopted a procedure allowing a neighborhood to seek reconsideration of a designation. Several property owners brought this suit seeking a declaratory judgment that the Ordinance is void and unenforceable because it violated the City Charter’s limits on zoning and it does not comply with certain provisions of Chapter 211 of the Local Government Code. The trial court ruled for the City after a bench trial. The owners appealed arguing the ordinance is a zoning regulation, but the court of appeals disagreed and affirmed the trial court’s order.

The Houston City Charter does not prohibit the City from zoning altogether, but it limits the City’s power to adopt a zoning ordinance by requiring six months’ notice of any proposed ordinance and voter approval in a binding referendum. Zoning regulations have numerous characteristics, and given the prevalence of zoning ordinances, not all of these characteristics are always present. However, generally, a zoning ordinance is defined as a city ordinance that regulates the use to which land within various parts of the city may be put. It also allocates uses to the various districts of a municipality, as by allocating residences to certain parts and businesses to other parts, but more on a comprehensive basis throughout the entire city. Conversely a “historic preservation” is the effort to conserve, preserve, and protect artifacts and developed places, including structures and landscapes, of historical significance, and does not fall under traditional zoning categories. The Court analyzed various aspects of zoning and definitions, historically and determined the ordinance was not a zoning ordinance. For example, the ordinance impacts a site by requiring alterations and additions to a building to remain compatible with the building’s own existing height, size, and location, and with that of the rest of the district. Because each building is regulated according to its own features or the features of nearby buildings, there is no uniform standardization of height, bulk, and placement across the district as in traditional zoning laws. In sum, the Ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance. Therefore, it is not zoning.

However, Chapter 211 of the Local Government Code subjects regulations that would not traditionally be considered zoning to certain procedural requirements, such as regulation of structures in historically significant areas and certain pumping and use of groundwater. The fact Chapter 211 applies to this type of regulation does not mean it qualifies as zoning. However, even though Chapter 211 applies, the owners failed to establish that the City did not comply with the requirements.  For example, the ordinance actually qualifies, by itself, as a comprehensive plan for its intended purpose. As a result, the court of appeals order is affirmed.

If you would like to read this opinion, click here. JUSTICE BUSBY delivered the opinion of the Court.

Tyler Court of Appeals holds Tort Claims Act notice must list specific claimants in order to waive immunity

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Leondra Leach v. The City Of Tyler, 12-21-00004-CV (Tex. App. – Tyler June 9, 2021).

This is a Texas Tort Claims Act (“TTCA”) premise defect case where the Tyler Court of Appeals affirmed the trial court’s order dismissing the case for lack of proper notice.

Leach asserts he was injured when a piece of board flew from a City “roll-off” truck as it passed Leach on the roadway. The board struck the truck he was driving and entered the driver’s side window, striking him in the head. Leach’s employer submitted a notice of claim using a Claims Notice form provided by the City, but did not fill in certain fields as to Leach. Leach did not fill out his own form. After Leach filed suit, the City filed a no-evidence motion for summary judgment as to proper notice under the City’s charter and ordinance, which the trial court granted.  Leach appealed.

Ameri-Tex (Leach’s employer) listed itself alone as the “claimant” and omitted Leach’s name from that field. Section 101.101(a) speaks to the governmental unit’s entitlement to receive a notice of a claim along with the damage or injury claimed. Ameri-Tex listed only its property damages under the provision for the amount of claim. The court noted that had Ameri-Tex made some reference to Leach’s damages in the “amount of claim” section, even if such damages were described as “unknown at this time,” its earlier omission of Leach as a “claimant” would be less critical. However, part of the purpose behind the notice provision is that the entity has an awareness of its fault as ultimately alleged and an incentive to investigate the allegations to assess its exposure to liability because it no longer is protected by the shield of immunity.  Without knowledge of the identity of a potential claimant and the knowledge this additional claimant will make personal injury claims as opposed to merely property damage claims, the entity does not have the same incentive. Notice which does not convey the “perceived peril” that would serve the notice requirement’s purpose is insufficient.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Memorandum opinion by Justice Neeley.

 

Fort Worth Court of Appeals holds oral pronouncements from bench cannot be considered when appealing a written order granting Town’s plea to the jurisdiction

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John Artuso v. Town of Trophy Club, Texas, 02-20-00377-CV, (Tex. App – Fort Worth, May 13, 2021)

This is a negligence, taking,  and declaratory judgment action where the Fort Worth Court of Appeals affirmed the granting of the Town’s plea to the jurisdiction.

Plaintiff Artuso sued the Town of Trophy Club for negligence and gross negligence with regard to his home’s placement in the Town’s Public Improvement District No. 1 (PID) and the special assessments imposed in the district. Artuso asserted he timely paid all assessments and even overpaid. He requested the Town credit his account for previously over-assessed amounts, which he characterized as a taking. He claimed that the manner in which the Town apportioned the PID costs was arbitrary and capricious, amounting to a violation of his due process rights, and he complained that the Town had not responded to his assessment-reduction petition. The Town filed two pleas to the jurisdiction, which were granted. Artuso appealed.

Artuso’s argument that the trial court’s oral statements about the grounds for granting the plea were improper. The trial court’s signed order listed no grounds.  The appellate court asserted it could not look to the oral statements in the record, only to the wording of the actual written order. By applying this policy, the courts and parties are relieved of the obligation to “parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.” Because Artuso has failed to challenge all of the grounds upon which the Town’s motion could have been granted, and failed to brief all grounds, the court of appeals affirmed the granting of the dispositive motions.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, and Justices Kerr and Womack. Memorandum Opinion by Chief Justice Sudderth. Docket page with attorney information found here.

Termination of as needed contract did not result in any damages under chapter 271, so no waiver of immunity exists

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Heath v. Robert Williamson d/b/a PCNETSYS, No. 05-20-00685-CV (Tex. App.—Dallas, May 3, 2021) (mem. op.).

In this interlocutory appeal from a trial court’s holding denying a city’s plea to the jurisdiction on a contract claim, the Fifth Court of Appeals vacated the trial court’s judgment and dismissed the case because damages falling under Chapter 271 of the Local Government Code were not part of the claim as an as-needed services contract.

The plaintiff sued the city after his contract with the city for IT services was terminated early.  The agreement provided that the plaintiff would be paid a monthly retainer for IT services “as may be required by the City.”  The agreement was set to terminate in October 2021, but the city terminated the agreement effective April 30, 2019.  Both parties agreed that the plaintiff had been paid for all services already provided.  The plaintiff sued the city for breach of contract arguing that he was owed lost profits and “loss of the benefit/expectation of the contract.”  The city argued that the contract was not properly executed and created an unconstitutional debt.  The trial court denied the city’s plea to the jurisdiction related to the claim and the city appealed.

Chapter 271 of the Texas Local Government Code waives a city’s immunity when there is a claim for certain types of damages related to a written contract including the “balance due and owed”.  Tex. Loc. Gov’t Code §A271.153.  Immunity is not waived for consequential damages.  The court of appeals held that there was no claim for recoverable damages because there was no balance due and owing as the plaintiff had already been paid for all services rendered.  Thus, immunity had not been waived.  The court also held there was no reason to allow further discovery or allow repleading because the parties were in agreement that all services had been paid for and it was only future payments that the plaintiff was seeking.

The court of appeals vacated the trial court’s denial of the city’s plea to the jurisdiction because no damages that waive contractual immunity had been pled or existed.

If you would like to read this opinion click here.   Panel consists of Justices Reichek, Schenck, and Carlyle.  Opinion by Justice Amanda L. Reichek.

Eastland Court of Appeals holds City failed to obtain ruling on special exceptions, therefore it could not complain about a lack of factual specificity in the pleadings within its plea to the jurisdiction

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City of Odessa, Texas v. AIM Media Texas, LLC d/b/a The Odessa American, 11-20-00229-CV  (Tex. App. – Eastland, May 13, 2021).

This is a Public Information Act (“PIA”) case where the Eastland Court of Appeals held the Plaintiff had properly fallen under the jurisdiction of the PIA.

AIM Media, a newspaper company, sued the City for mandamus under the PIA asserting the City failed to timely provide the information requested and improperly redacted information. The City asserted it provided all information and that AIM Media plead conclusory allegations only, with no facts. The City asserts it filed special exceptions to the bare pleadings then filed a plea to the jurisdiction, which was denied. The City appealed.

The court noted the City challenged the pleadings only, so the pleadings were taken as true for purposes of the plea. The PIA allows a requestor to sue for mandamus.  While the court appeared to acknowledge that a lack of factual allegations can be grounds for a plea, the court held the City failed to obtain a ruling on their special exceptions. As a result, whether the special exceptions properly put AIM Media on notice of any jurisdictional defects was not before the court. Taking the pleadings as true, the court held AIM Media pled the minimum jurisdictional requirements.  The plea was therefore properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Trotter and Justice Williams. Opinion by Chief Justice Bailey.