Category Archives: Litigation

A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

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A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Edinburg Consol. Ind. Sch. Dist. V. Ayala, No. 13-20-00590-CV (Tex. App.—Corpus Christi Dec. 9, 2021) (mem. op.).

In this appeal from a trial court’s denial of the district’s no evidence plea to the jurisdiction, the district argued that there was no evidence that the plaintiff applied for a new position at the district.  The Thirteenth Court of Appeals affirmed the trial court’s judgment on the no evidence plea to the jurisdiction holding that a no-evidence motion for summary judgment was the proper avenue after discovery for the district’s arguments.

The plaintiff worked for the district but was injured in 2013.  He returned to work, but was terminated in 2015.  He filed an employment law claim for his termination but did not follow up on the claim.  Then, the plaintiff alleges that he reapplied to work at the district in 2018 and was not hired.  He sued the district for employment discrimination based on his disability and national origin for not rehiring him.  The district argued that there is no evidence that the plaintiff reapplied.  The district filed a no-evidence plea to the jurisdiction and the trial court denied the plea.  The district appealed.

A plea to the jurisdiction is used to determine a court’s jurisdiction based on what is plead, a prima facie case, not to make a determination on fact issues.  To establish a prima facie case of discrimination, the employee must show: (1) he is in a protected class; (2) he was qualified for the position he applied for;  and (3) he was not hired.  Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017); Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).   For national origin discrimination, he also must plead that the district gave different treatment to a similarly situated applicant outside the protected class.  The plaintiff stated these elements in his pleading, but the district argued that he needed to do more than plead the elements and he had provided no proof that he had applied for the position.  As a “fair notice” state, the plaintiff does only need to plead facts or elements to show jurisdiction.  Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see TEX. R. CIV. P. 45(b).  The Court of Appeals upheld the trial court’s denial of the plea to the jurisdiction because the plaintiff had plead sufficient facts to move forward with jurisdiction, although the district does have the ability to file a no-evidence motion for summary judgment.

The court of appeals affirmed the trial court’s judgment and the case was sent back to the trial court.

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

13th Court of Appeals grants mandamus relief to TxDOT – allowed TxDOT to withhold from discovery skid mark and other highway safety statistics

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In re Texas Department of Transportation, 13-21-00214-CV  (Tex. App. – Corpus Christi, Dec. 9, 2021)

In this mandamus action, the 13th Court of Appeals conditionally granted the writ, noting federal law made certain information regarding highway safety data privileged and exempt from discovery.

The Simpson plaintiffs filed suit against TxDOT for survival and wrongful death damages arising from a motorcycle accident that occurred on State Highway 361 causing the death of one individual. The decedent was driving a motorcycle when a Ford F-150 truck veered into the decedent’s lane of travel. When the decedent attempted to avoid the collision and applied his brakes his back tire locked up and he was killed. The Simpson familied sued TxDOT (and others). The Simpsons alleged the roadway was dangerous and subject to “polishing” which a special roadway defect caused by years of travel and increased traffic that results in a decrease in the coefficient road friction.  The Simpsons alleged that TxDOT knew about the defect and was aware of multiple deaths on that stretch of the highway resulting from the defect. The Simpsons sought, through discovery, to compel TxDOT to produce Pavement Management Information System (PMIS) data, including skid testing data.  TxDOT sought a protective order and the Simpsons filed a motion to compel.  The trial court granted the Simpsons’ motion to compel and ordered TxDOT to produce the data. TxDOT initiated this original proceeding.

Since TxDOT is asserting the privilege, it had the burden to establish the privilege. TxDOT asserted 23 U.S.C. § 409 is a federal statute which protects traffic-hazard data that is compiled or collected by the state pursuant to federal highway safety programs from being the subject of discovery or being used as evidence in federal and state court proceedings. This includes the Highway Safety Improvement Program in § 148. See 23 U.S.C. §§ 130, 144, 148. Congress established several federal programs to assist the States in identifying and evaluating roads and highways in need of safety improvements and to provide funding for those projects. The United States Supreme Court concluded that this section “protects not just the information an agency generates” or compiles for the stated purposes, but “also any information that an agency collects from other sources” for those purposes. However, it does not apply to information collected for a different purpose. The Simpsons asserted the information that they requested was used as part of routine maintenance, and thus, the statutory privilege does not apply. However, TxDOT operates the PMIS program through its Maintenance Division, which keeps detailed statistics used for the program.  As a result, it was an abuse of discretion for the trial court to order the release of the information.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras and Justices Benavides and Tijerina. Opinion by Chief Justice Contreras

Fort Worth Court of Appeals holds Plaintiffs properly plead constitutional challenges to City’s short-term rental ordinance

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City of Grapevine v. Ludmilla B. Muns, et al, 02-19-00257-CV (Tex. App. – Fort Worth, Dec. 23, 2021)

This is an opinion on rehearing where the Fort Worth Court of Appeals reversed in part and affirmed in part the trial court’s order regarding the validity of the City’s short-term rental ordinance. [Comment: warning, this is a long opinion – 50 pages.]

The City asserted its zoning ordinance was written in a way that prevented short-term rentals (STRs), but some “bed and breakfasts” were allowed.  However, there was sporadic enforcement. After an increase in complaints about negative effects from STRs, the City conducted a study.  At the end of the study, the City passed an ordinance banning short-term rentals (STRs) in the entire city. The City provided a 45-day grace period before enforcement would begin. Several property owners and commercial real estate services sued to invalidate the ordinance. The City filed a plea to the jurisdiction and motion for summary judgment, which were denied. The City appealed.

The City first contended the Plaintiffs failed to appeal any decisions to the board of adjustment and therefore failed to exhaust their administrative remedies. Generally, a party must exhaust the administrative remedies available under Chapter 211 of the Local Government Code before seeking judicial review of an administrative official’s decision. However, the Plaintiffs did not apply for permits or otherwise receive any enforcement notification to which they must appeal. Statements made about the City’s intent to enforce an ordinance, without more, is not the type of administrative action over which an appeal is triggered. Appealable actions are those actual determinations made in the act or process of compelling a property owner’s compliance with a City ordinance. Information-only statements are not appealable administrative determinations.  Further, the Plaintiffs challenged the constitutionality of the ordinance, which does not always require exhaustion. Generally, administrative bodies do not have the authority to rule on the constitutionality of statutes and ordinances. And while constitutional challenges are not “globally exempted” from the exhaustion requirement, if the administrative body lacked the ability to “render a relief that would moot the claim” then no exhaustion is required.  The board of adjustment lacked the authority to grant the Plaintiffs’ the right to conduct an STR, so no exhaustion is required. Next, the City argued that STRs do not fit within the definition of a “single-family detached dwelling” under its zoning code because STRs are not occupied by a single-family but are occupied by groups of people. However, the City’s code defines the word “family” in such a way that it does not require that the people living as a “single housekeeping unit” be related by blood or marriage. It also has no duration of occupancy limit. As a result, by its own wording, the code does not prohibit STRs as long as the occupancy fall within the common and ordinary meaning of “family.”  The City next argued the Plaintiffs did not directly challenge the validity of the STR ordinance (only an interpretation of whether it applied to them) so no declaratory relief can be granted.  However, the court found their retroactivity, due-course-of-law, and takings claims turn on whether the existing code allowed STRs. To that extent, they have a valid justiciable controversy. Under the takings analysis, the court held that although a property owner generally has no vested right to use his property in a certain way without restriction, they have a vested right in the real property, which includes the ability to lease. From a constitutional standpoint, that is sufficient to trigger a protected property right interest for jurisdictional purposes. This, along with the fact the court found that STRs were not expressly prohibited by the wording of the ordinance,  creates a fact issue as to whether the Plaintiffs suffered a taking. The court also noted that, contrary to the City’s arguments, lost profits are a relevant factor to consider in assessing the property’s value and the severity of the economic impact on a property owner. The Plaintiffs pled and submitted evidence to support that STRs “generate higher average rent than long-term leases, even after expenses” and that the STR Ordinance prevents them from “participating in an active, lucrative market for [STRs].” Next, the court did agree with the City that the regulation of STRs is not preempted by the Tax Code, as alleged by the Plaintiffs. Plaintiffs did not point to any provision in either the Tax Code or the Property Code that implies that the legislature meant to limit or forbid local regulations banning STRs. The court then addressed the retroactive law arguments, holding that a “settled” right is different than a vested right and the Plaintiffs asserted the STR ordinance impaired their settled property rights under the common law and under the City’s code to lease their properties on a short-term basis. The issue is not about the “property owners’ right to use their property in a certain way,” but about the owners’ “retaining their well-settled right to lease their property.” Next, in the substantive-due-process context, a constitutionally protected right must be a vested right that has some definitive, rather than merely potential existence. Property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. Thus, although the Homeowners have a vested right in their properties, they do not have a vested right under the Zoning Ordinance to use them as STRs.  However, the court found they do have a fundamental leasing right, which is sufficient to plead, jurisdictionally, a due-course-of-law claim. The court clarified in this rehearing opinion, that its holding on this point is limited to the fact a property owner has a fundamental right to lease, but the durational limits may be valid or may be invalid depending on the extent of the regulatory intrusion into that right. The intrusion goes to the merits of the case, which the court declined to address as part of the interlocutory appeal.  In short, the Plaintiffs properly plead all claims for jurisdictional purposes, except a claim under a preemption theory.

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

Fort Worth Court of Appeals holds one city was not entitled to a plea to the jurisdiction in condemnation suit brought by adjoining city

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Town of Westlake, Texas v. City of Southlake, 02-21-00241-CV  (Tex. App. – Fort Worth, Dec. 23, 2021)

This is an interlocutory appeal from the denial of the Town of Westlake’s plea to the jurisdiction in a case where the City of Southlake filed condemnation proceedings against the Town of Westlake.  The Fort Worth court of appeals affirmed the denial. [Comment: warning, this is a long opinion – 49 pages.]

The City of Southlake moved to condemn approximately 1400 feet of land owned by the Town of Westlake. In Southlake, a residential development was principally within Southlake, but abutted the boundary with Westlake. Immediately inside Westlake’s eastern town limit is a right of way owned and maintained by Westlake that abuts the lanes of Farm-to-Market Road 1938, but the actual road is owned by the State of Texas. The construction of the present configuration of FM 1938 was a cooperative effort of Southlake, Westlake, Keller, and Tarrant County.  Westlake opposed for years the developer’s requests for access across Westlake’s ROW as only one access to the development currently exists and the developer needed two. Westlake claims that the present condemnation action brought by Southlake is an attempt by Southlake to use its powers of condemnation to gain access to FM 1938 that the developer has not been able to negotiate. Southlake followed the condemnation procedures outlined in chapter 21 of the Texas Property Code and the commissioners awarded Westlake $22,000 for the condemnation. Westlake filed a motion to dismiss which was denied. Then, just before the award was filed with the district court, Westlake filed a plea to the jurisdiction in the district court. The court noted the plea was not a plea, but should have been a motion opposing the taking and denied the plea.  Westlake filed this interlocutory appeal in response. Southlake filed a motion to dismiss at the court of appeals level.

With regard to Southlake’s motion to dismiss, the trial court’s jurisdiction was triggered once the commissioners’ findings were filed, even if Westlake “jumped the gun” and filed the plea before the commissioners’ filing.  There is no consequence for filing early. As a result, the matter is properly before the appellate court. Next, regarding Westlake’s plea, Westlake first argues no waiver of immunity exists under §251.001 of the Local Government Code, however the court noted the language allows condemnation regardless of whether the property is already public or private, whether it is inside the city or outside, and possesses safeguards to prevent abuses. Because the statute allows condemnation of public property, it must, therefore include a waiver of immunity for the owning entity. Comparing the langue in §251.001 to similar provisions of the Utility Code (which the Texas Supreme Court previously ruled constitute a waiver of immunity), the court held immunity is waived for Westlake.  While case law states that when one governmental entity is condemning property owned by another governmental entity, the condemning entity must establish the “paramount importance” standards (i.e. it has a public need greater and will not destroy the public nature).  However, the paramount importance doctrine is not jurisdictional. With regards to Westlake’s argument that § 311.002 of the Transportation Code (giving cities exclusive control over streets and highways) the record has not been established enough to make the determination of whether the condemnation will interfere with such streets (since Westlake owns only the adjoining ROW). The record was also not sufficiently developed to establish whether Southlake could establish a valid public purpose.  As a result, the plea was within the trial court’s discretion to deny.

If you would like to read this opinion click here.  Panel consists of Justices Birdwell, Bassel, and Womack.  Memorandum opinion by Justice Bassel.

Texarkana holds city properly supported its summary judgment to permanently enjoin mobile home park

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Polecat Hill, LLC, et al. v. City of Longview, Texas, et al. 06-20-00062-CV (Tex. App. – Texarkana, December 2, 2021).

This is a nuisance/permit case brought under Chapter 54 of the Texas Local Government Code where the Texarkana Court of Appeals affirmed the judgment entered on behalf of the City.  [Comment: this is a long, 39-page opinion].

Polecat owned 5 acres of land within the City limits. Polecat received a notice of violation from the City asserting the property violated several health and safety ordinances and needed to be repaired. After receiving the notice, Polecat sued the City. The city counterclaimed against the corporate owners and sued the property in rem. Polecat asserted the property had operated as a location for manufactured dwellings to affix to real property and obtain connections since the 1960s. Polecat argued that the City refused to allow it to proceed with its plans to prepare the Property to be on public sewer service. Polecat argued that, instead, the City was requiring it to apply for a mobile home park license and comply with city ordinances by dedicating property to install fire hydrants, dedicating a turnaround space for fire trucks, and absorbing the cost of water flowing through the fire hydrants. The City asserted Polecat was illegally operating an unlicensed mobile home park and unlicensed travel trailer park in violation of the City’s code of ordinances.  The trial court granted the City’s traditional and no-evidence motions for summary judgment, resulting in a final judgment in favor of the City. The trial court’s order specifically found that the Polecat Defendants’ violations of city ordinances created a substantial danger of injury or adverse health impact and that a permanent injunction was necessary to prohibit the specific conduct that violated the ordinances and to require conduct necessary to comply with them. Polecat appealed.

The summary judgment evidence showed that the Property was continuously operated as a mobile home and travel trailer park. Polecat testified that the Property was a residential property that was eighty percent occupied, but admitted it housed rental mobile homes since the 1960s, as well as seven travel trailers.  The City’s appraisal district had labeled the Property as a mobile home park, and Polecat had never challenged that designation. Even the TNRCC sent notices of violations to Polecat related to improperly hooked up septic lines. The summary judgment evidence showed that the City was willing to work with the Polecat Defendants to obtain mobile home and travel trailer park licenses and would consider a site plan that complied with city ordinances, however, Polecat did not agree to comply with the ordinances.  During discovery, numerous other violations became apparent, including violations preventing fire trucks from being able to properly access or service the Property.  Polecat’s testimony established it never applied for a license to operate a mobile home park or travel trailer park.  The City’s traditional summary judgment motion established various violations of the City’s ordinances. The City also filed a no-evidence motion for summary judgment asserting that because the City was not requesting the dedication or transfer of any portion of the Property to the public for public use; the City had not deprived the Polecat Defendants of all viable use of the Property. Further, it was Polecat’s failure to apply for a site plan permit and a license that prevented the City from extending sewer services. Polecat also admitted it was not challenging the validity of any ordinances.

The court found Polecat failed to preserve its appellate points objecting to the City’s summary judgment evidence as they complained of only procedural defects and failed to obtain a ruling. Next, the court held the City was not required to prove continuing violations in order to be entitled to injunctive relief under Chapter 54. Polecat’s petition did not contain any challenge to the city ordinances themselves or allege that the ordinances did not apply to them and therefore was not entitled to any declaratory relief. The court also noted that there were multiple defendants, including the property in rem, but only Polecat responded to the summary judgment on behalf of itself alone. As a result, the other defendants could only attack the granting of the summary judgment by asserting the City failed to carry its burden of proof. The City met its burden to establish entitlement to summary judgment and permanent injunctive relief. Further, “[i]n a regulatory taking, it is the passage of the ordinance that injures a property’s value or usefulness.” Polecat does not challenge the passage of any ordinance. Instead, the petition focused on whether the City’s intentional actions resulted in inverse condemnation.  However, since the City did not destroy all economically viable use of the property, there can be no taking. Additionally, Polecat’s summary judgment evidence (which Polecat argued created a fact issue) contained mainly affidavits that were unsigned and unnotarized. As a result, Polecat failed to create a fact issue with proper summary judgment evidence. The trial court properly entered judgment for the City.

If you would like to read this opinion click here. Panel consists of Chief Justice Morris and Justices Burgess and Carter. Opinion by Justice Burgess.

Dallas Court of Appeals holds detour did not take excavation outside the normal use of the roadway, therefore plaintiff properly alleged a special defect

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City of Irving, Texas v. Edwin Muniz, 05-21-00099-CV, (Tex. App – Dallas, Nov. 19, 2021)

This is a premise defect/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

During a rainstorm at night, Muniz entered an intersection undergoing construction for sewer pipe replacements. A detour sign directed him to merge slightly to the left, but he asserts he encountered a mesh fence with no time to brake. He traveled through the mesh fence into an excavation thirty-two feet deep. The court commented the evidence was confusing as to whether the signage indicated a lane shift or that traffic was to be closed heading westbound. Non-flashing barricades were present, but Muniz testified he did not see the barricades or cones depicted in the photographs on the night of his accident.  There was also a dispute as to Muniz’s speed.  Muniz sued asserting the excavation was a special defect, or at worse a premise defect. The City filed a plea to the jurisdiction, arguing, among other things, that the excavation was not on the roadway. The trial court denied the plea and the City appealed.

The City asserted because the detour directed traffic around the excavation, removing the  excavation from being a part of the regular roadway it could not be a special defect. The court noted the Texas supreme court “has never squarely confronted whether a hazard located off the road can (or can never) constitute a special defect,” but it has recognized that some intermediate courts of appeals have held that certain conditions located off the road were special defects. It is undisputed Muniz drove into a large hole in the normal roadway. The court noted the question, in this case, turns on whether such an excavation remains a special defect when the City attempts to warn of the excavation by erecting a detour but the warning failed. Here, the detour was not a separate roadway apart from the excavation but was on the same street as the excavation, only slightly shifted by lane redirects. An ordinary user of the roadway certainly could encounter the excavation. As a result, Muniz alleged sufficient facts to establish jurisdiction under a special defect theory.  The City also contended the detour design was a discretionary function. However, according to the court, the discretionary exclusion does not apply in the case of a special defect. The plea was properly denied.

The dissent noted the court was dealing with a portion of a road being taken out of commission for a construction project with the road actually moved to accommodate. He would have concluded the re-routing took the excavation out of the normal use of the roadway analysis.

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

Dallas Court of Appeals holds commercial lease on property separated from airport was a proprietary function

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City of Dallas v. Oxley Leasing North Loop, LLC, 05-21-00241-CV, (Tex. App – Dallas, Nov. 12, 2021)

This is a breach of a lease agreement case where the Dallas Court of Appeals affirmed the denial of the City’s plea to the jurisdiction, holding the City was performing a proprietary function.

The City created a Land Use and Development Plan (“Development Plan”) for the airport. The Development Plan identified several portions of airport property for potential development, designating some as airfield operations, airfield-related development, non-aviation-related development, open space/recreational, and a commercial office park.  The City leased portions of the commercial office park (“the Property”) to First Continental Bank for an initial term of 40 years. The City agreed to construct a barrier and a road to physically separate the Property from the back of the airport. The lease was assigned several times, eventually being held by Oxley. The City and Oxley dispute whether Oxley property initiated an extension under the lease. The City, believing no renewal had occurred, moved to evict Oxley. Oxley filed suit for breach of the lease and the City filed a plea to the jurisdiction. The trial court denied the plea and the City appealed.

Leasing in a commercial park is not listed under the TTCA as a governmental function. As a result, the court must analyze the nature of the transaction under Wasson II standards. The mere fact that the City leased property located at the airport is not determinative of the nature of that activity.  Since the Property is identified by the City as nonaviation related, the court had little difficulty determining it was not related to the operation of the airport. Under Wasson II,  the City had no obligation to lease the Property to First Continental Bank, was discretionary, and the nature of the private lease necessarily excludes the general public from benefiting from the premises. The fact that a city’s proprietary action bears some metaphysical relation to a governmental function is insufficient to render the proprietary action governmental. As a result, the specific lease at issue is proprietary and the City is not entitled to immunity.

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

U.S. 5th Circuit remands inmate’s sec. 1983 claims to evaluate whether prison disciplinary decision overlaps with excessive force claims

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Gray v. White, 20-30218, (US 5th Cir – Nov. 17, 2021)

This is a §1983/excessive force case where the U.S. Fifth Circuit Court of Appeals affirmed in part and reversed in part the trial court’s granting of the county’s summary judgment motion.

Timothy Gray is an inmate at the Elayn Hunt Correctional Center. Grey asserts Captain Wells and Major White attacked Gray in his cell without provocation, pulling him from his bunk and beating him. He was sprayed with a chemical agent and not allowed to wash it off. Grey asserts after he passed out he was put into a transport van, in restraints, and was beaten en route.  The County asserts Wells approached Grey for a targeted search. Grey was intoxicated and had vomited on himself. When Grey refused orders designed to move him to the showers to clean up he was grabbed and then became violent. The prison disciplinary board found Gray guilty of various violations. When Grey sued the individual officers who allegedly beat him, the officers moved for summary judgment based on Heck v Humphry (holding a conviction precludes relitigating aspects overlapping in a civil suit). Further, the officers asserted Grey failed to exhaust his remedies under the Prison Litigation Reform Act (“PLRA”) and is therefore precluded from suit. The trial court granted the officer’s motion and Grey appealed.

Heck holds  a prisoner may not “seek[] damages in a § 1983 suit” if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Heck applies to both the validity and the duration of the confinement. A ruling by a prison disciplinary board also triggers the preclusive effects of Heck. However, Heck is not “implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.”  The court held the record was insufficient to determine whether, or which of, Gray’s claims are barred by Heck. The disciplinary reports list various factual findings but do not state which of these findings were necessary to his convictions.  As a result, the defendants failed to meet their summary judgment burden. Next, Under PLRA Grey was required to file a proper complaint about events after the shower before bringing suit. Gray failed to exhaust his administrative remedies for the claims of excessive force after he was taken from the shower area.

If you would like to read this opinion click here. Panel consists of Smith, Stewart, and Willett, Circuit Judges. Opinion by Judge Smith. Judge Willett concurred in judgement alone. Attorney for Appellee is Amber Mandina Babin, of New Orleans, Louisiana. Attorney for the Appellant is Donna Unkel Grodner, of Baton Rouge, Louisiana

Amarillo Court of Appeals holds fire marshal’s office employs firefighters who are entitled to civil service protection

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-20-00315-CV, (Tex. App – Amarillo, Nov. 18, 2021)

This is a civil service case where the Amarillo Court of Appeals affirmed in part and reversed in part a trial judgment holding the fire marshal’s office was entitled to civil service protection.

Plaintiffs sued the City and various officials trying to hold the Amarillo Fire Marshal’s Office (“FMO”) should be classified as a civil service position.  In the City, firefighters are classified positions, but the FMO is not classified.  As such, employees within the FMO are civilians who are not afforded civil service protections. The FMO performs fire prevention duties such as checking building plans, inspecting businesses, and investigating suspicious fires. FMO employees are certified by the Texas Commission on Fire Protection. Following a bench trial, the trial court entered a final order declaring that positions within the Amarillo FMO are civil service positions, but denied the promotional relief sought. The trial court ruled the firefighter’s association (“Association) was the necessary real party in interest, not the individual Plaintiffs and the claims were therefore precluded.

Both parties agree that the determination of whether a particular position is a “fire fighter” position depends on whether the position meets the definition identified in Texas Local Government Code section 143.003(4).  The City’s argument appeared to turn on whether the position was one of “fire suppression” and not other duties. The express language of section 419.032 distinguishes “fire protection personnel” from “fire suppression.”  The testimony established  FMO positions require substantial knowledge of firefighting. The trial court heard evidence that the FMO was moved within the Amarillo Fire Department in 1989, the FMO is part of the Fire Department for budgeting purposes, and the FMO is listed as part of the Fire Department within the City’s Organizational Structure. As a result, the trial court properly determined the position should be classified as a firefighter. Next, the City actively argued that the association lacked standing to participate in the case and Plaintiff’s agreed. The court did not see any basis for the trial court holding the association’s inaction established the defenses of laches, estoppel, or limitations. The trial court also made findings that the City proved that using non-classified employees in FMO positions was motivated by good faith, was more satisfactory to the public, and was based on more than monetary savings.  However, the standard requires that the City provide a good-faith reason to justify the use of non-classified personnel over civil servants, rather than assessing the qualifications of particular individuals to serve in those positions. Therefore, the City is not entitled to a good-faith defense for the use of non-classified personnel.   And while the court of appeals found the Plaintiff’s general relief was not precluded, the trial court did not consider the entitlement on the merits. As a result, certain relief matters were remanded.

Panel consists of Chief Justice Quinn, and Justices Parker and Doss. Affirmed, reversed, and remanded to trial court. Opinion by Justice Parker can be read here. Docket page with attorney information found here.

Fourth Court of Appeals upholds injunction preventing Governor from prohibiting ordinances regulating face masks – Governor’s authority does not extent to local health and safety regulations with separate grants of authority

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Greg Abbott, in his Official Capacity as Governor of Texas, and State of Texas v. City of San Antonio and County of Bexar, 04-21-00342-CV (Tex. App. – San Antonino, November 10, 2021).

This is a COVID-19 declaratory judgment (ultra vires) action brought against Texas Governor Gregg Abbott where the Fourth Court of Appeals held the Governor does not have the power to prevent certain local regulations during a disaster.

Bexar County and the City of San Antonio sued Governor Abbott after the Governor signed Executive Order GA-38, which provides, with some exceptions, that: “No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face-covering or to mandate that another person wear a face covering . . . .”  The local entities sued asserting the order exceeded the Governor’s authority. The trial court issued a temporary injunction order enjoining the enforcement of certain provisions of Executive Order GA-38 disallowing local governmental entities from requiring individuals to wear face coverings. The Governor filed an interlocutory appeal.

The City and County’s ultra vires claim requires construction of the Texas Disaster Act.  The entities have different powers, but both have the ability to adopt reasonable rules and regulations to protect public health. These powers are granted to the entities at all times and are especially relevant during times of disaster. The Governor invoked § 418.016(a) of the Texas Government Code as support for his authority. Under the section, the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”  After analyzing the language the Fourth Court held the statutes the Governor purports to suspend are not “regulatory statutes,” subject to suspension under the Act.  Regulatory statutes “prescribe the procedures” for the conduct of state business, such as procedures for the proper return of mail-in ballots.  The statutes do not address state-level procedure or business; instead, they are “grant-of-authority statute[s] giving local authorities the leeway to act in their best independent judgment within the confines of their own jurisdictions.”  Further, the Governor may only suspend regulatory statutes proscribing procedures for state business. The health and safety laws at issue are not procedural but  grant authority to local governments to act on matters of local public health and do not pertain to “state business.” It would “strain credulity to suppose the Legislature intended to abdicate its legislative prerogative, beyond the narrow regulatory and procedural matters specified, and permit the Governor to suspend all legislated grants of local authority on matters of public health without stating so directly.”  The court then examined the injury elements in the interim, the status quo elements of an injunction, and standing of the local entities. In the end, the court held the local entities were entitled to legally seek a temporary injunction and such injunction was proper under the standards indicated in the rules.

If you would like to read this opinion click here. Panel consists of Chief Justice Martinez, Justice Chapa and Justice Rios. Opinion by Chief Justice Martinez. The docket page can be found here.

 

Notice of a termination is the date on which the 180-day clock starts for claims of employment discrimination under state law regardless of internal appeals of the termination.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Monte Alto I.S.D. v. Patricia Orozco, No. 13-21-00136-CV (Tex. App.—Corpus Christi Nov. 4, 2021) (mem. op.).

In this appeal from a trial court’s denial of the school district’s plea to the jurisdiction, the school district appealed that the trial court did not have jurisdiction because the plaintiff failed to exhaust her administrative remedies and thus did not waive the school district’s immunity as it relates to an employment discrimination claim.  The Thirteenth Court of Appeals reversed the trial court’s judgment because the plaintiff was outside the 180-day window for filing a suit after the allegedly discriminatory act.

The plaintiff sued the school district after being terminated.  The plaintiff received her notice of termination (nonrenewal) by letter on May 1, 2018.   Plaintiff requested a hearing on May 14, 2018, and then participated in a hearing on August 29, 2018, where the board voted to uphold the termination.  She filed her discrimination charge with the EEOC on February 25, 2019.  In the claim, she stated that the latest date of discrimination was on August 29, 2018, but she did not state there was a continuing act of discrimination. After receiving the right to sue letter, Plaintiff filed suit on February 10, 2020.  The school district filed a plea to the jurisdiction arguing that Plaintiff did not file her charge of discrimination within 180 days after her notice of termination on May 1, 2018.  The trial court denied the school district’s plea to the jurisdiction and the school district appealed.

For a political subdivision to have its immunity waived for an employment discrimination claim, the plaintiff must exhaust all administrative remedies.  City of Waco v. Lopez, 259 S.W.3d 147, 149, 154 (Tex. 2008).  To meet this requirement under state law, a plaintiff has to file the employment discrimination claim with the EEOC or the Texas Workforce Commission within 180 days of the alleged discriminatory employment action.  Tex. Lab. Code §§ 21.201(a), (g), 21.202(a).  The exhaustion of remedies is completed when the TWC/EEOC issues a right-to-sue letter.  Continuing employment discrimination can extend this deadline, but discrete acts of discrimination, such as a termination, is not considered a continuing action.  The court of appeals held that the discrete act of the termination (nonrenewal) of the plaintiff and the accompanying notice of the termination was the last discriminatory act that triggered the 180-day deadline and that the deadline was not extended by the internal hearings seeking to overturn the termination.  Because the plaintiff did not file her EEOC claim within 180 days after her notice of termination, she had not exhausted her administrative remedies or waived the school district’s immunity.  The court of appeals granted the plea to the jurisdiction and dismissed the claim.

The court of appeals reversed the trial court’s judgment and dismissed the claim because the plaintiff failed to file her employment claim with the EEOC in the time allotted for exhausting her administrative remedies.

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

 

First Court of Appeals holds 380 development agreement was an agreement for goods and services (waiving immunity) but dismissed all other claims brought against the City by the developer

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Town Park Center, LLC v. City of Sealy, Texas, Janice Whitehead, Mayor, Lloyd Merrell, City Manager and Warren Escovy, Assistant City Manager, 01-19-00768-CV, (Tex. App – Hou [1st], Oct. 28, 2021)

In this contract dispute, the First Court of Appeals in Houston affirmed in part and reversed in part the City’s plea to the jurisdiction. This is the third lawsuit involving the parties and underlying dispute.

Town Park Center and the City executed a “380” Economic Development Agreement (“the EDA”) to develop a commercial shopping center on Town Park’s property. Town Park Center agreed to develop and construct the shopping center according to a development plan that the City had approved. The City agreed to pay annual economic development grant payments (based on sales tax collections) to Town Park Center “as an incentive to comply with this Agreement.” Town Park Center first filed suit against the City and officials, asserting breach of contract and other claims. The basis was an assertion the EDA required the City to sell stormwater detention capacity to Town Park and failed. The City filed a plea to the jurisdiction, which was granted as to the city but not the individual officials. The officials appealed but Town Park non-suited. Town Park then filed a second suit against other officials, but which was otherwise identical.  Town Park later non-suited, only to file a third suit seeking mandamus, declaratory, injunctive relief, takings, ultra vires claims and claims under the “vested rights provision” of Local Government Code chapter 245. The factual allegations were nearly identical to the first and second suit. The City filed a plea to the jurisdiction and argued immunity as well as res judicata “ish” arguments. The trial court granted the plea and Town Park Center appealed.

The court noted that res judicata is an affirmative defense and could not be raised in a plea to the jurisdiction. It declined to consider the arguments through the lens of a summary judgment noting the trial court consideration lacked the hallmarks of a true summary judgment proceeding, including the required 21 days’ notice of a hearing date. However, the City also raised immunity defenses. The court held the EDA constituted a contract for goods or services which can trigger a waiver of immunity. The EDA included a provision for Town Park Central to build and dedicate a road to the City as part of the development, which therefore constitutes a service.  The trial court therefore erred in granting the plea as to the breach of contract claim. However, as to the Chapter 245 vested rights claim, Town Park Center did not identify any City order, regulation, ordinance, rule, or other requirement in effect when its rights in the project vested that mandates the sale of the capacity at issue. With no change in order or rule, Chapter 245 is inapplicable. As to Town Park’s takings claim, it failed to establish the City’s refusal to allow the purchase of detention capacity deprived them of the beneficial use of the property. Specifically, the court noted Town Park Center finished the development and sold it to host a grocery store. The City, therefore, did not deprive it of all economic use of the property. As to the ultra vires claims, the court first chastised the parties for failing to follow proper pleadings rules, making the determination more difficult on the court, specifically by labeling various amended pleadings as supplemental pleadings. Considering the pleadings as filed, the court held the City officials ended up joining the City’s plea as part of a supplement (without objection from the other side). Merely failing to comply with a contract does not give rise to an ultra vires claim.  While Town Park Central points to a city resolution allowing for detention capacity purchases, it does not mandate the sale of detention capacity. It instead only provides that the City may sell detention capacity, which is discretionary. As a result, the ultra vires claims were properly dismissed.

In short, the court reversed the dismissal of the breach of contract claim, ultimately affirmed the dismissal of all other claims, and remanded for trial.

Panel consists of Justices Kelly, Guerra, and Farris. Opinion by Justice Farris can be read here. Docket page with attorney information found here.

The plaintiff failed to show that damages were insufficient in a condemnation case where there was sufficient evidence supporting the judgment of the trial court.  

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Castellanos v. Harris County, Texas and City of Baytown, Texas., No. 01-20-00414-CV (Tex. App.—Houston [1st Dist.] Oct 7, 2021) (mem. op.).

In this appeal from a trial court’s judgment in a condemnation case, the First Court of Appeals in Houston affirmed the trial court’s judgment because there was sufficient evidence to support the amount in their judgment as it related to the condemned property.

The plaintiffs’ property was the subject of a condemnation case including a road easement, water line easement, a temporary construction easement, and damages for the remainder of the project. After the trial court issued its judgment, the plaintiffs appealed arguing that the amount of compensation in the judgment should have been higher and that their suggested jury instruction regarding compensation to make changes to the home post-condemnation should have been given.

The Texas Constitution requires adequate compensation to any property owner whose property is taken by a governmental entity.  Tex. Const. art. I, § 17(a).  This value is determined by fair market value on the date of the taking which can take into account both the current use and the highest and best use.  See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 611 (Tex. 2016).  When only a portion of the property is taken both the value of what is taken and the damages to the remainder are both used to determine compensation.  Morello v. Seaway Crude Pipeline Co., LLC, 585 S.W.3d 1, 29–31 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).  In addition, to complain about a jury instruction on appeal, the plaintiff needs to make such objection at the trial.  Tex. R. Civ. P. 274; Tex. R. App. P. 33.1.  To properly bring a claim that a ground of recovery or defense was not considered, the avenue would have been a motion for judgment notwithstanding the verdict or a motion to disregard a jury finding. Those motions were not filed.  The Court of Appeals affirmed the trial jury’s compensation amount because the plaintiffs did not prove that the evidence presented at trial required a different fair market value for the property and did not properly object to the lack of award for changes to the house post-condemnation.

The court of appeals affirmed the trial court’s judgment because the plaintiffs failed to conclusively establish that the amount of compensation was insufficient.

If you would like to read this opinion click here.   Panel consists of Justices Kelly, Guerra, and Farris.  Opinion by Justice Kelly.

 

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.