City retains immunity from sewer backup claims as not evidence existed of specific, affirmative action by the city which caused damage

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Robinson v. Gabriel and Irene Rodriguez., No. 10-21-00075-CV (Tex. App.—Waco Oct 6, 2021) (mem. op.).

In this appeal from a trial court’s denial of the city’s plea to the jurisdiction based on a takings claim, the Waco Court of Appeals reversed and rendered judgment against the plaintiff because the plaintiff had not provided sufficient evidence that a specific, affirmative act of the city had caused the sewer backup.

The plaintiffs sued the city after they experienced multiple sewer backups. The specific two backups at issue were both investigated by the city.  Both times the city stated that the issue was on the plaintiffs’ property, but this conclusion was disputed.  The plaintiffs sued under a takings claim.  The city filed a plea to the jurisdiction arguing that it was immune from suit because proof of negligent contact related to the sewer backups is insufficient for takings liability.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

To plead a takings claim under the Texas Constitution, the plaintiff has to show that the city intentionally damaged property for public use.  See Tex. Const. I, § 17; Gen’l Servs. Comm’n v. Little-Tex Insulation, Inc., 39 S.W.3d 591, 598 (Tex. 2001)(emphasis added).   This requires proof of the city knowing that a specific act would cause the damage or that that the specific damage was a consequential result of the specific action of the city.  “Evidence of a governmental entity’s failure to avoid preventable damage may be evidence of negligence, but it is not necessarily evidence of the entity’s intent to damage the plaintiff’s property.” See City of San Antonio v. Pollack, 284 S.W.3d 809, 821 (Tex. 2009).  Even finding that the sewer backup was caused by a blockage on the city side, without evidence of a specific act, the city’s immunity is not waived.  The Court of Appeals reversed and rendered on the trial court’s denial on the plea to the jurisdiction, and held that the city’s immunity was not waived.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray, and Justices Johnson and Rose.  Chief Justice Gray dissenting.  Opinion by Justice Johnson.

 

Fort Worth Court of Appeals holds dead tree which fell on trail jogger was a natural condition and City had not duty to warn

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City of Arlington v. Monique Ukpong, 02-21-00078-CV, (Tex. App – Fort Worth, Oct. 14, 2021)

This is a Texas Tort Claims Act (“TTCA”)/premise defect case where the Fort Worth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Ukpong went running on the park’s trail, as she had done “many times before.” That day, while she was running on the trail, a dead hackberry tree next to the trail fell on her, causing injury. Ukpong sued the City.  The City filed a plea to the jurisdiction and asserted a lack of waiver of immunity. The trial court denied the plea and the City appealed.

The Tort Claims Act also provides that “if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property…”  When property is open to the public for “recreation,” however, the Recreational Use Statute (“RUS”) further limits a governmental unit’s duty by classifying recreational users as akin to trespassers.  Under the RUS, a landowner has no duty to warn or protect trespassers from obvious defects or conditions.  A property owner “may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.”  Nature is full of risks and it is certainly foreseeable that human interaction with nature may lead to injuries and possibly even death. The City did not owe Ukpong a duty to protect her from obvious defects or conditions and generally did not owe a duty to warn or protect her from the dangers of natural conditions in the park, whether obvious or not.  Ukpong’s own pleadings asserted the dead tree was an obvious condition. Further, even if the dead tree was not an obvious condition, it was a natural condition, and no duty to warn existed regardless.  The City did not owe a duty to warn or protect Ukpong from the dead tree that fell on her. Therefore, the plea should have been granted.

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

 

Passenger in pickup truck injured during a car accident failed to timely sue within limitations says First District Court of Appeals

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Andre Gibbs v. The City of Houston, 01-20-00570-CV, (Tex. App – Houston [1st Dist], Oct. 12, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the First Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brannon was driving a pickup truck when she collided with a Houston Police Department SUV, driven by a City employee. Gibbs was one of six passengers riding in the pickup truck.  Brannon sued the City, which the other passengers joined, but Gibbs was not named in the amended petition. After the statute of limitations passed, Gibbs was joined in a later petition. The City filed a motion for summary judgment against Gibbs asserting the statute of limitations. The trial court granted the motion and Gibbs appealed.

The party suing a governmental entity has the burden to establish jurisdiction by pleading—and ultimately proving—not only a valid immunity waiver but also a claim that falls within the waiver. the City argued that neither it nor its employee could be liable to Gibbs under Texas law because Gibbs’ claims are barred by limitations. Thus, the City argued, Gibbs’ claims do not fall within any TTCA waiver.  Gibbs asserted the “inadvertent omission” exception which is based on excusable inadvertence or mistake.  However, the exception was created when existing parties were inadvertently dropped from suit, then added back later. In this case, Gibbs joined as a party in the suit for the first time after limitations expired.  Ordinarily, an amended pleading adding a new party does not relate back to the original pleading. Since Gibbs was not added until after the limitations expired, it was proper for the court to grant the City’s summary judgment.

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra. Affirm TC Judgement. Memorandum Opinion by Justice Rivas-Molloy can be read here. Docket page with attorney information found here.

Tyler Court of Appeals holds EEOC complainant’s deadline to file suit begins to run when his complaint is received by the EEOC, not when the appeal is perfected

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Gunter P. Coffey v. Texas Parks and Wildlife Department, 12-21-00015-CV, (Tex. App – Tyler, Oct. 6, 2021)

This is an employment discrimination, hostile work environment, and retaliation claim in which the Tyler Court of Appeals affirmed the trial court’s order granting the Texas Parks and Wildlife Department’s plea to the jurisdiction.

Coffey was employed by the Texas Parks and Wildlife Department (the Department).  Coffey submitted an intake questionnaire to the Equal Employment Opportunity Commission (EEOC) alleging a host of charges.  Coffey was later terminated. He received a “right-to-sue” letter from the EEOC. He then brought suit. The Department filed a plea to the jurisdiction, asserting, among other reasons, Coffey failed to file suit within two years of filing his EEOC discrimination charges. The trial court granted the plea and Coffey appealed.

Coffey contends that the two-year statute of limitations begins to run from the date that the charge is perfected, not the dates the relevant charges of discrimination were filed.  Under listed case law, the timeliness of the complaint shall be determined by the date on which the complaint is received by the EEOC.  The court noted the underlying record made clear the dates the complaints were filed and received by the EEOC.  Therefore, because Coffey filed this suit more than two years after the date his First and Second Charges were received by either the EEOC or TWC, the trial court properly granted the Department’s plea.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Affirmed. Memorandum Opinion by Chief Justice Worthen can be read here. Docket page with attorney information found here.

 

U.S. Fifth Circuit holds standing for First Amendment violation can be shown through chilled speech without the need for actual arrest or citation.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Anthony Barilla v. City of Houston, Tex., No. 20-20535 (5th Cir. Sept. 10, 2021).

In this appeal for dismissal for lack of standing by the district court, the U.S. Fifth Circuit reversed and remanded the district court’s order, holding that the intention to engage in busking (playing music for tips) plus the ordinance regulating the activity was sufficient to show standing on his First Amendment claim.

The plaintiff sued the city after his busking permit to play music for tips expired. He desired to busk in other parts of the city but was kept from doing so based on the need to get a permit and the ordinance that prohibits busking in most areas of the city.  He chose not to busk but instead to file suit against the city.  The city argued that the plaintiff had not proved an actual injury or standing because he had not been arrested, denied a permit, or cited for busking.  The district court granted the city’s motion to dismiss based on the plaintiff’s lack of standing.

To prove standing, a plaintiff must demonstrate an injury in fact by showing that the plaintiff: (1) has the serious intention of engaging in conduct that affects a constitutional interest; (2) that the conduct is regulated or prohibited; and (3) the threat of enforcement against the conduct is substantial.  Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).  Both music and solicitation for times are constitutionally protected.   See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).  Standing existed in this case because the plaintiff had shown a serious intention to busk as he had engaged in the activity previously, and the activity of busking is constitutionally protected.  The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s dismissal and remanded for further review on the standing issue.

The court of appeals reversed and remanded the district court’s dismissal on the basis of standing because the plaintiff provided sufficient evidence of a serious interest in engaging in constitutionally protected activity that is being regulated/prohibited by the city.

If you would like to read this opinion, click here.   Panel consists of Chief Judge Owen and Judges Clement and Higginson.  Opinion by Judge Stephen A. Higginson.

Tyler Court of Appeals holds a motion for new trial did not extend the time to perfect an accelerated appeal

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SignAd, Ltd. V. The City of Hudson, 12-21-00056-CV, (Tex. App – Tyler, Sept. 15, 2021)

This case is mainly procedural, and the Tyler Court of Appeals held SignAd failed to timely file its notice of appeal, either as an interlocutory appeal or of a final judgment.

This is a billboard construction case where the City sought injunctive relief and civil penalties asserting SignAd violated its local ordinances. SignAd asserted counterclaims for declaratory judgment, compensation for loss of the billboard if ordered to remove it, inverse condemnation, unenforceability of the ordinance against SignAd, and 42 U.S.C. § 1983. The trial court issued various orders but the order of contention is a January 19, 2021 order granting the City’s first amended motion to dismiss for lack of subject matter jurisdiction. The parties disagree as to whether the January 19th order was a final order or is interlocutory. The order contained various findings including that SignAd lacks standing to bring its counterclaim for declaratory judgment, SignAd’s billboards exceed the size limitations for commercial signs, and that SignAd cannot maintain its billboards under the ordinance even if it achieved a total victory in this case.

The court of appeals held if the order is an appealable interlocutory order, the notice of appeal was due to be filed within twenty days after the judgment or order was signed, i.e., February 8.  SignAd filed its notice of appeal on April 13th.  SignAd’s motion for a new trial did not extend the time to perfect an accelerated appeal. But even if not interlocutory a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days after the judgment is signed if any party timely files a motion for new trial. However, any motion for new trial was due to be filed by February 18. SignAd filed its motion for new trial on February 22. The certificate of service attached to the motion for new trial reflects that it was served on February 16; however, the motion is file marked February 22. Thus, the motion was late and did not extend the time for filing the notice of appeal.  And an “order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period.”  As a result, the court of appeals dismissed the appeal for want of jurisdiction.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Dismissed for Want of Jurisdiction. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

13th Court of Appeals holds City sufficiently complied with TOMA and Tax Code in 2019 when it adopted its annual tax rate

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Leftwich v City of Harlingen, 13-20-00110-CV (Tex. App. – Corpus Christi, Sep. 9, 2021).

This is a declaratory judgment suit to declare the city violated procedural requirements when it adopted its tax rate in 2019. The Thirteenth Court of Appeals held no alleged violation constituted a waiver of the City’s immunity.

Leftwich alleges the City violated several statutory requirements in 2019 when it adopted its tax rate, including (1) the published notice failed to conform to the “date, time[,] and location” requirements of Texas Local Government Code § 140.010(c),  (2) the City failed to meet the deadline to adopt the tax rate (requiring a vote on proposed tax rate “not be earlier than the third day or later than the [fourteenth] day after the date of the second public hearing”); (3) the City violated TOMA by not allowing public comment “before or during” the consideration of the of the tax ordinances and various other procedural deficiencies. The City filed a plea to the jurisdiction, which the trial court granted. Leftwich appealed.

The court first noted that TOMA’s waiver of sovereign immunity only extends to mandamus or injunctive relief for actual or threatened violations of TOMA, not to suits for declaratory relief.  Further, under TOMA, substantial compliance is sufficient. The location of a meeting may be sufficient without including the full street address, name of the city, or meeting room, so long as the notice sufficiently apprises the public of the location.  Here, the term “town hall” sufficiently put the public on notice of the location of the meeting. No general waiver of immunity exists under the UDJA.  Plaintiff sought a judgment “declaring that the[o]rdinances are invalid and void ab initio” due to appellees’ alleged TOMA and tax code violations. The alleged TOMA violation during the meeting focused on the City Council not taking public comments before voting on the first reading of the tax ordinance. However, the mayor was clearly heard on camera, prior to the final vote on the first reading of each ordinance, asking for discussion, to which no one responded. Assuming, arguendo, that the mayor’s call for discussion was not clearly directed to the public, Leftwich would remain unsuccessful as that was only the first reading. The ordinance was not adopted until the second reading. Only an action taken in violation of TOMA is voidable.  Under the tax code, no requirement exists that two publications exist for public hearings, only that two public hearings are held and that notice is published. Under § 26.06(e) of the Texas Tax Code, the City was required to hold a meeting to vote on the tax ordinances not “earlier than the third day or later than the [fourteenth] day after the date of the second public hearing.” However § 26.06(e) provides no authority for a court to enjoin the collection of taxes for failure to comply with § 26.06(e), which is what Plaintiff seeks.  Plaintiff further asserts the councilmember making the motion failed to follow the specific quoted language for the motion contained within the statute. However, after reviewing the record, the court concluded the motion followed the important parts of the statutory language, verbatim.  Leftwich next asserted the City failed to properly post the necessary tax information on the City’s website.  However, Leftwich failed to present evidence that would raise a fact issue as to whether the City previously posted the notice to the website. The court concluded the undisputed language which was present meets the requirements of Texas Tax Code § 26.05(b)(2), which requires the notice be published after the ordinance is adopted. Leftwich failed to allege jurisdiction under TOMA or the Tax Code for any alleged violation.  Finally, while Plaintiff attempts to bring a First Amendment claim, he failed to brief the claim and therefore waived it.

If you would like to read this opinion click here.  Panel consists of Justices Benavides, Hinojosa and Silva. Memorandum opinion by Justice Silva.

Trial court’s granting of City’s plea to the jurisdiction considered void because it should have issued its order in the separate case created by the plaintiff’s bill of review

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 Clayton Richter, Dorothy Richter, and Jonathan Richter v. City of Waelder, Texas,13-20-00494-CV and 13-20-00495-CV, (Tex. App – Corpus Christi – Edinburg, August 12, 2021)

This is a flooding case, but the opinion focused entirely on procedural problems where the Corpus Christi Court of Appeals dismissed the appeal, noting the court lack jurisdiction over the appeals because the ultimate merits of this case were adjudicated in the wrong trial court proceeding.

The Richters sued the City of Waelder (the City) for various causes of action after leaks in the City’s waterpipe caused multiple flooding incidents on the Richters’ property. The trial court granted the City’s plea to the jurisdiction, but the Richters later filed a bill of review. The trial court granted the bill of review, but then again granted the City’s plea under the original cause number. The Richters appealed the granting of the plea and the City cross-appealed the granting of the bill of review.

A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial. When a trial court grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on the merits must occur in the bill of review proceeding, not in the underlying case in which the judgment is vacated.  By proceeding as it did, the trial court created two jurisdictional problems: (1) the bill of review judgment does not fully adjudicate the Richters’ suit; and (2) the trial court signed the judgment in the original cause after its plenary power expired. The trial court’s bill of review judgment fails to address the merits of the Richters’ claim. Therefore, it is not a final, appealable order. The granting of the plea in the original proceeding is void because the court had lost plenary power under that cause number.    Since the court of appeals only has appellate jurisdiction over either final judgments which are timely appealed (not present here) or authorized interlocutory orders (also not present because of a lack of plenary power), the court of appeals has no jurisdiction over either appeal. Essentially, the court’s opinion results in the trial court having to consider the plea to the jurisdiction under the cause number for the bill of review and not the original case.

Panel consists of Justices Longoria, Hinojosa, and Tijerina. Memorandum opinion by Justice Hinojosa can be found here. Docket pages with attorney information found here.

Pro se appellant could not prevail on summary judgment appeal when he failed to appeal each ground for summary judgment.

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   Special contributing author Laura Mueller, City Attorney for Dripping Springs

Elezar Balli v. Officer Florentino Martinez, et al., No. 14-20-00030-CV (Tex. App.—Houston [14th Dist.] August 10, 2021) (mem. op.).

In this appeal from a trial court’s summary judgment in favor of the defendant officers, the 14th Court of Appeals affirmed the trial court’s judgment because the pro se plaintiff failed to challenge all grounds for the summary judgment and the court was required to affirm the summary judgment on the unchallenged grounds.

The plaintiff sued the officers of the Clute Police Department for tort and 1983 claims pro se after he was arrested for domestic violence and transported to jail.  While being transported the plaintiff struggled against the officers, knocked the officers down, bit the police chief, threatened the officers, hit his head on the inside of the back seat of the police car, and damaged the police car.  During the arrest, the officers tased the plaintiff.  The officers tried to use a pillow to protect the plaintiff’s head in the backseat of the car.  The defendant officers argued that: (1) the amount of force was objectively reasonable as a matter of law; (2) they were entitled to qualified immunity; and (3) the plaintiff’s conviction for assault for biting the police chief barred his claim for damages.  The trial court granted the defendant officers’ summary judgment without specifying the grounds and the plaintiff appealed the summary judgment.  The trial court also dismissed the state law claims since under Section 101.106(f) of the Texas Civil Practices and Remedies Code, the plaintiff was required to bring suit against the City rather than the officers.  The City and Police Chief were dismissed from the case because they were not properly served and the trial court had no jurisdiction over them as defendants.  The plaintiff did not appeal these holdings.

Under Texas Rule of Civil Procedure Rule 166a(c), for a summary judgment to be overturned, an appellant has to prove that any and all grounds for summary judgment were not meritorious.  If the appellant does not challenge every ground for which summary judgment was granted, then a court of appeals has to uphold the summary judgment.  The appellant in this case only appealed the issue that his conviction for assault barred his claim and failed to challenge the other two grounds.

The court of appeals affirmed the trial court’s summary judgment in favor of the defendant officers because the pro se plaintiff failed to appeal on all of the summary judgment grounds.

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

Dallas Court of Appeals holds trial court had jurisdiction for BOA appeal only, but no monetary or constitutional claims could survive the board’s plea

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City of Dallas, et al v. PDT Holdings, Inc., et al. 05-21-00018-CV  (Tex. App. – Dallas, August 24, 2021).

This is an appeal from a board of adjustment decision where the Dallas Court of Appeals reversed in part and affirmed in part.

PDT Holdings, Inc (“PDT”) applied for a permit from the City to build a duplex on its property in Dallas.  PDT submitted building plans, which were approved and began construction. However, a City inspector cited PDT and issued a stop work order on the grounds that the structure did not comply with the thirty-six-foot height restriction. PDT adjusted the plans down to 36 feet, but was then told the actual height restriction was twenty-six feet due to the residential proximity slope (RPS) ordinance after it had completed 90% of the construction.  PDT sought a variance for the height restriction (three story duplex) but the variance was denied by the board of adjustment (“BOA”).  PDT appealed to district court but also sought a variety of monetary damages caused to the project. The matter was temporarily abated by agreement and the parties resubmitted to the BOA (with all new members), which again denied the request. The BOA filed a plea to the jurisdiction which was denied. The BOA appealed.

A district court has subject matter jurisdiction only to decide whether the Board’s decision was illegal under section 211.011.  The BOA argued the original appeal to district court was timely but attempted to assert PDT had to appeal the 2nd denial and failed to do so. The Board cites no authority for this requirement other than the general requirement that a petition for writ of certiorari must be filed within ten days of the Board’s decision. The court held the second BOA decision did not change the substance of the controversy between the parties or the issues before the trial court.  Further, nothing demonstrates the trial court lost jurisdiction over the first decision, over which it would still be allowed to proceed. As a result, the trial court properly denied the plea as to the illegality question only. The court next held that it must evaluate jurisdiction based on each claim. PDT did not specify what cause of action entitled it to recover damages or cite express authority waiving governmental immunity for recovery of damages. The plain language of section 211.011(f) does not authorize an award of damages. Further, there is no implied right of action to recover money damages for violation of the due course-of-law provision of the Texas Constitution. The Texas Constitution authorizes suits for equitable or injunctive relief only. But this limited waiver of immunity exists only to the extent the plaintiff has pleaded a viable constitutional claim. The court agreed with the BOA that PDT  does not have a vested property right in obtaining a variance from the RPS ordinance.  The mere existence of a building permit does not render an ordinance unenforceable. A person does not acquire a vested right in a building permit issued in violation of an ordinance. Here, jurisdiction exists for judicial review of the Board’s decision under section 211.011 only. The plea should have been granted for all other claims.

If you would like to read this opinion click here.  Panel consists of Justices Nowell, Osborne and Pederson. Opinion by Justice Nowell.

El Paso Court of Appeals holds since city appealed denial of a plea to the jurisdiction, but not the final judgment entered at the same time, court could not hear the appeal

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The City of Brady and Brady Police Department v. William Dale Scott, 08-20-00155-CV (Tex. App. – El Paso, Aug. 16, 2021).

The El Paso Court of Appeals determined it did not have jurisdiction to hear an interlocutory appeal from a Chapter 47 suit to determine ownership of property.

This case started when City police seized $11,450.00 from Scott when searching his home. Scott was investigated for a type of fraud after complaints came that he was operating some form of scam.  Several years later, Scott filed suit specifically under the Texas Code of Criminal Procedure Art 47.01 et seq, which allows for a specific hearing to determine person with the superior right to possession of property. His Chapter 47 petition complained that although the police opened a case file in the matter and provided him with a receipt stating that it had taken $11,452 in cash from him, the police never returned the cash to him. Criminal charges were never filed. The City filed a plea to the jurisdiction. The trial court denied the plea in the same order it issued a final judgment granting Scott’s relief. The City filed an interlocutory appeal.

The City asserts the funds were not seized as part of a criminal investigation, but to determine their ownership. The City asserted it no longer has the funds as they were disposed of under article 18.17 of the Code of Criminal Procedure allowing for disposing of funds when the owner is unknown. Under that article, the police placed an advertisement in the local Brady newspaper stating that it had cash in excess of $500 in its possession, and that anyone claiming the money had 90 days to contact them. After no one responded the department obtained an order awarding the funds to the City of Brady from a Brady Municipal Court judge. The City alleged that Scott only had 30 days to appeal or otherwise contest the municipal court’s disposition order, and that doing so was a “statutory prerequisite” to filing a Chapter 47 petition.  The City also asserted that the notice setting hearing only set the plea, and not a final determination on the Chapter 47 suit. The trial court ruled on both matters in the same order. The City filed an interlocutory appeal, appealing only the denial of the plea. The El Paso court held when a trial court has already entered a final judgment, an appellate court has no jurisdiction to hear a governmental body’s interlocutory appeal from an order denying its plea to the jurisdiction, and the governmental body must instead pursue an appeal from the final judgment.  Since the City’s appeal did not timely appeal the final judgment or file an appeal bond for a Chapter 47 appeal, the court has no jurisdiction to hear the City’s arguments. The case is therefore dismissed.

If you would like to read this opinion click here. Panel consists of Chief Justice Rodriguez, Justice Palafox and Justice Alley.  Opinion by Justic Alley.

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices

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Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

If you would like to read this opinion click here. Panel consists of Justices Chapa, Rios, and Rodriguez. Memorandum opinion by Justice Rodriguez.

Inmate failed to show the County had actual notice of his claim within statutory time period

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Christopher Branch v. Fort Bend County, 14-19-00477-CV, 2021 WL 2978639 (Tex. App.—Houston [14th Dist.] July 15, 2021, no pet. h.) (mem. op.)

This is Texas Tort Claims Act (TTCA) case where the Fourteenth Court of Appeals affirmed the trial court’s granting of a dispositive motion and holding there was no evidence the County was subjectively aware of any fault in causing or contributing to Branch’s injuries.

Branch alleged that he was injured on August 1, 2016, when he slipped and fell outside of his jail cell at the Fort Bend County Jail.  Branch further alleged that his fall was caused by a puddle of water that was a result of a burst pipe in the facility that jail personnel failed to diagnose and fix.  Prior to filing suit, Branch sent the County a letter on April 21, 2017, providing notice pursuant to the Texas Tort Claims Act regarding his injuries sustained on August 1, 2016.  Branch then sued the County on July 13, 2018.  The County filed a plea to the jurisdiction which the trial court granted.  Branch appealed.

Although formal written notice of a claim is not required when a governmental entity has actual notice of a claimant’s injury, mere knowledge that an incident has occurred is not sufficient.  Actual notice means that the governmental entity is subjectively aware that it may be responsible causing or contributing to a claimant’s death, injury, or property damage in the manner alleged by the claimant. Here, the County provided undisputed evidence establishing that Branch failed to give formal written notice within six months after the day of the incident giving rise to his claim.  Although Branch alleged for the first time on appeal that the County had actual notice of his claim, the appellate court also rejected that argument.  Instead, the court determined that there was no evidence in the record, which included the incident report or Branch’s inmate medical records, that showed the County was subjectively aware it might be responsible for Branch’s injury.  Finally, there was no evidence any investigation conducted with regard to Branch’s fall was conducted much less that it showed any subjective awareness on the part of the County.

If you would like to read this opinion click here. Panel consists of Justices Spain, Hassan, and Poissant.  Memorandum Opinion by Justice Hassan.

Property owners around lake drained by GBRA had no standing to sue as they possessed no particularized injury

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Jimmy and Cheryl Williams, et al. v. Guadalupe-Blanco River Authority and its Officers and Directors, 04-20-00445-CV, (Tex. App. – San Antonio, July 7, 2021)

This is a takings case where the San Antonio Court of Appeals partially reversed and affirmed the trial court’s judgment on Guadalupe-Blanco River Authority’s (“GBRA”) plea to the jurisdiction in takings suit. The trial court granted GBRA’s plea to all claims except the property owners’ takings claims after GBRA drained lakes around their properties.

Six hydroelectric dams (“Hydro Dams”) were privately constructed between 1928 and 1932 and put in service in the Guadalupe River Valley in Comal, Guadalupe, and Gonzales Counties. Construction of the hydro dams resulted in the formation of six lakes: Meadow, Placid, McQueeney, Dunlap, Wood, and Gonzales. In 1963, GBRA acquired the six hydro dams. Spill gates at two of the hydro dams failed draining both Lake Wood and Lake Dunlap. As a result of the deterioration of the hydro dams and respective spill gates, GBRA announced its intent to perform a “systematic drawdown” of the remaining four lakes, beginning at Lake Gonzales and then moving upstream to Meadow Lake, Lake Placid, and Lake McQueeney. Appellants—owners of properties adjacent to the lakes—sued GBRA (and its officers in their official capacities) for injunctive relief to prevent the announced drawdown, declaratory relief, and damages based on diminished property values.

GBRA asserted that the property owners lacked standing because they could not demonstrate a particularized injury.  Standing requires a plaintiff to establish: (1) the plaintiff’s claimed injury is “both concrete and particularized and actual and imminent, not conjectural or hypothetical”; (2) the injury is “fairly traceable to the defendant’s challenged action”; and (3) “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

The Court of Appeals reversed the trial court’s denial of the plea as to the taking claims, finding that the property owners could not demonstrate a particularized injury apart from the community at large absent ownership of a property right in the hydro dams, the lands underneath the lakes, or the water itself. As a result, the Court of Appeals dismissed the sole remaining claim against GBRA.

Panel consists of Justices Alvarez, Chapa, and Valenzuela. Memorandum Opinion by Justice Valenzuela can be read here. Docket page with attorney information found here.

Since pedestrian plaintiff admitted he caused the accident to officers at the scene, City did not have actual notice of claim within required time period

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The City of Houston v. Michael Gantt, 14-20-00229-CV, (Tex. App – Houston, August 5, 2021)

This is a Texas Tort Claims Act (TTCA) case where the Fourteenth Court of Appeals reversed the trial court’s denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Gantt was a pedestrian who was struck by a patrol car driven by Houston police officer Young. Gantt filed suit. The City filed a plea to the jurisdiction asserting Gantt did not meet the notice of claim requirements under the TTCA and the City did not have actual notice of the claim. The plea was denied and the City appealed.

Gantt admitted he did not provide written notice of claim timely under the TTCA, but asserted the City had actual knowledge of the claim. The City must have “subjective awareness” of its fault in the situation, else actual notice does not exist. The City’s crash report indicates Gantt ran in front of the vehicle and failed to yield the right of way to the vehicle. Gantt’s statement given to police states he ran in front of the vehicle and it was his fault he was hit. The court noted that while Gantt’s statement, alone, is not dispositive, Gantt did not claim it was Young’s fault. As a result, the City did not have actual notice and subjective awareness of its fault in the accident.

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