San Antonio Court of Appeals holds city ethics commission properly ruled complainant’s filing was frivolous and could award sanctions

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Lakshmana Viswanath v. The City of Laredo, 04-20-00152-CV (Tex. App. – San Antonio, April 14, 2021)
This is an appeal from a city ethics commission determination where the San Antonio Court of Appeals affirmed the commission’s finding but reversed the award of attorney’s fees.
Viswanath is the founder of a government watchdog group known as Our Laredo, who ran for city council and was defeated by Councilman Martinez in 2018. In 2019, a member of Our Laredo, Victor Gomez, filed an ethics complaint with the City’s Ethics Commission against the Co-City Managers arguing they were required to “ensure” that Councilman Martinez forfeit his seat due to an alleged conflict of interest. They did not file a complaint against Martinez, but against the Co-Managers. Viswanath filed an additional ethics complaint against the Co-City Managers arguing they unfairly advanced the private interest of certain developers at the expense of the general population by recommending that City Council pass two ordinances. The Commission dismissed both complaints, concluding they did not allege violations of the Laredo Ethics Code and therefore did not invoke the Commission’s jurisdiction. After finding both complaints frivolous, the Commission publicly admonished Gomez and ordered Viswanath to pay the maximum civil fine—$500.00—plus $7,900.68 in attorney’s fees to the Commission’s conflicts counsel. Viswanath filed a verified petition in district court appealing the Commission’s decision and seeking a declaratory judgment. The City filed a motion for summary judgment, which the trial court granted. Viswanath appealed.
The court of appeals first held that the City’s ethics code allows an appeal to district court and requires a suit against the City. It, therefore, waived the City’s immunity from suit, but only for the limited purposes spelled out in the Ethics Code and that the proper mechanism for that is the UDJA. Under this mechanism, the trial court must review the Commission’s decision under the substantial evidence rule. At the initial hearing, Viswanath testified he was involved in filing both the complaint about Councilman Martinez and the complaint about the ordinances. Viswanath testified that the objection he raised was that the Co-City Managers “made the wrong recommendation”—a recommendation which was ultimately accepted by City Council. He was informed by several city officials that city management could not conduct the investigation he requested or provided the remedy he sought. Based on this evidence, the Commission could have reasonably determined that Viswanath was aware the Co-City Managers lacked authority to perform the investigation or grant the relief he requested, yet still filed his complaint in a groundless and harassing action. Substantial evidence supported the Commission’s decision, so the trial court was required to affirm it as a matter of law. The court also determined that the Commission was authorized to require a complainant who files a frivolous complaint to pay a civil penalty, the respondent’s fees, and any other sanction authorized by law. As a result, the Commission has the authority to aware the Commission’s attorney’s fees be paid as an “other sanction” allowed by law. However, the record does not show what evidence was presented to substantiate the fee amount. As a result, that portion is reversed and remanded for the trial court to determine a proper award amount.
If you would like to read this opinion click here. The panel consists of Chief Justice Martinez, Justice Chapa and Justice Watkins. Memorandum Opinion by Justice Watkins.

U.S. Fifth Circuit holds court can dismiss claims sua sponte when party has had ample opportunity to amend deficient pleadings

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Anokwuru v. City of Houston, et al., No. 20-20295 (5th Cir. March 16, 2021)

This is a racial discrimination/§1983 case where the U.S. Fifth Circuit Court of Appeals affirmed the district court’s Rule 12(b)(6) dismissal.

The Houston Police Department was investigating an alleged “gang rape.” The victim identified three suspects, one named “Idris” and the other two with nicknames “Jay” and “CheChe.” The suspect “Jay” provided a statement, naming Anokwuru by his first name of “Chidera” as being involved in the incident. Based on the statements of the victim and “Jay,” the Houston Police Officer M. Francis decided to proceed with charging Anokwuru with the incident. Following indictment, the victim definitively responded that Anokwuru was not one of the three assailants and the case was dismissed by the Harris County District Attorney’s Office. Via an original complaint, a series of amended complaints, and multiple motions for leave to amend, Anokwuru filed a §1983 claim against the City of Houston and Officer Francis, claiming false/wrongful arrest, malicious prosecution, racial discrimination, and that the City had a policy of “failing to train, supervise, and discipline its employees.” The City filed an original (and amended) Rule 12(b)(6) motion to dismiss. The trial court dismissed Anokwuru’s claim but did so without granting the City’s motion. Anokwuru appealed.

The Fifth Circuit first addressed Anokwuru’s substantive claims. The false arrest, equal protection, malicious prosecution, and “failure to train” claims were all dismissed due to Anokwuru’s failure to properly allege the required elements for each respective alleged violation. Addressing the procedural arguments, the Fifth Circuit’s decision to deny Anokwuru’s fourth request to amend his complaint was not an abuse of discretion when his proposed amendment presented no new allegations or claims. Finally, the Fifth Circuit affirmed the district court’s sua sponte decision to dismiss Anokwuru’s claims because Anokwuru had multiple opportunities to put forth his best case, he filed multiple responses to the City’s arguments, and was even given notice of the magistrate judge’s recommendation to dismiss his claims – to which Anokwuru responded – before the district court dismissed his claims.  Such is within the trial court’s discretion.

If you would like to read this opinion, click here. Panel consists of Circuit Judges Stewart, Higginson, and Wilson. Opinion by Circuit Judge Wilson.

The emergency exception to the Tort Claims Act preserves immunity from car accident damages and injuries caused by a fire hose falling from a fire truck en route to a fire.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Nathan White v. City of Houston, No. 01-20-00415-CV (Tex. App.—Houston  March 25, 2021).

In this appeal from a trial court’s holding that the city retained immunity under the emergency exception to the Texas Tort Claims Act, the First Court of Appeals affirmed the trial court’s judgment because the use of a fire hose on a fire truck headed to an emergency began when the truck left for the emergency invoking both the Texas Tort Claims Act and its emergency exception.

The plaintiff sued the city after his car was damaged and he was injured by a fire hose dragging behind a fire truck en route to an emergency.  The plaintiff sued the city arguing that the dragging hose was missing an integral safety component because there is equipment available that could have ensured that the hose did not fall off the truck while it was in motion.  The plaintiff also argued that because the hose was en route it was in use at the time of the dragging, but was not actually being used in the emergency, so the emergency exception did not apply.  The city argued that because the fire truck was en route that the emergency exception to the Tort Claims Act applied and preserved immunity.  The trial court granted the city’s plea to the jurisdiction m and the plaintiff appealed.

The Texas Tort Claims Act waives a city’s immunity when there are injuries or damages caused by the operation or use of a motor-driven vehicle and motor-driven equipment.  Tex. Civ. Prac. & Rem. Code § 101.021.  Immunity is not waived for non-use of property.  Once a waiver is established due to use of property, the governmental entity can retain its immunity if the use was during an emergency and the action was “not taken with conscious indifference or reckless disregard for the safety of others.” Id. § 101.055(2).  The court of appeals held that if the hose being on the truck was sufficient to invoke use under the Tort Claims Act, that use was related to the emergency where the truck carrying the hose was headed.  The court also held there was no evidence of conscious indifference or reckless disregard. The court of appeals upheld the trial court’s grant of the city’s plea to the jurisdiction.

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

U.S. Supreme Court holds officers “seized” suspect by shooting her even if the suspect was still able to flee and escape.

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Torres v Madrid, et al., No. 19–292. (U.S. March 25, 2021)

This is an excessive force/§1983 case where the U.S. Supreme Court held the proper inquiry into a “seizure” by excessive force (i.e. gunshots) is whether the challenged conduct objectively manifests an intent to restrain as opposed to force applied by accident or for some other purpose.

Four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white-collar crimes. They approached Torres in her vehicle, but she did not notice them until one attempted to open the door. Torres testified she only saw individuals had guns and believed they were carjackers. She drove off at an accelerated rate, but the officers shot at her thirteen times. She was temporarily paralyzed. She plead no contest to aggravated fleeing and other related charges. She later sued two of the officers for excessive force under §1983. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed.  They relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Torres appealed.

The Court performed a detailed analysis of the term “seizure.”  The Court held a seizure requires the use of force with intent to restrain. Accidental force will not qualify.  It stated “… the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context.” The seizure does not depend on the subjective perceptions of the seized person.  The Court held the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.  The Court emphasized this rule is narrow. There is a distinction between seizures by control and seizures by force. A seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Seizure by force is the application of force with intent to restrain (viewed from an objective standard). However, not all seizures are unreasonable, so the Court remanded the case back for a reasonableness determination.

If you would like to read this opinion click here. Chief Justice ROBERTS delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

Dallas Court of Appeals holds grading of land for sports facility is proprietary in specific situation with land lease

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The City Carrollton, Texas v. Weir Brothers Contracting, LLC, 05-20-00714-CV (Tex App. – Dallas, March 22, 2021)

This is a contractual immunity case where the Dallas Court of Appeals held the City’s lease of certain land was a proprietary function, therefore immunity did not apply.

The City advertised for proposals to bid on purchasing or leasing several acres of City owned land.  The City then executed a land lease with Blue Sky Sports Center of Carrollton, LP (“Blue Sky”) for 30 acres to “operate a multi-use sports, recreational, entertainment, and related service facility.” Blue Sky was required to use the leased premises “solely for the purpose of constructing, maintaining, and operating the Facilities.”  Blue Sky was allowed to enter into sublease agreements for the provision of food and refreshments, a pro shop, an arcade, and several other services. The Lease required the facilities to be open to the public “during reasonable times as is customary for [Blue Sky’s] type of business.” Blue Sky was further permitted to charge fees for use of the facilities. Shortly less than a year later the City and Arthur James, Inc. (“AJI”) entered into a contract for the grading of several acres which included the 30 acres that had been leased to Blue Sky. As compensation, AJI would receive 6.27 acres of the tract. However, during the grading, AJI’s contractor dug into a capped landfill. All work stopped until the City could develop a solution. The City terminated its agreement with AJI due to work not being completed within the specified time period. The City refused to pay the contractor, Weir. Weir obtained an assignment from AJI and sued the City for breach of contract, quantum meruit, promissory estoppel, and tortious interference with contract. The City filed a plea to the jurisdiction which was denied. The City appealed.

The court held the true nature of the dispute revolves around the City’s lease of property for the recreation facility and not the mere grading of a road. Recreational facilities are listed as governmental functions, but Blue Sky’s construction and operation of the facility is not a function of the City or on the City’s behalf. Although the extent to which the bidder’s use of the property would “complement” a nearby public recreational facility owned and managed by the City, nothing in the record suggests the lease with Blue Sky was essential to the City’s operation of that public facility so as to render the act governmental. As a result, the court held the actions were proprietary. The City does not enjoy immunity from suit and the plea was properly denied.

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

U.S. Fifth Circuit holds former police officer failed to establish same-sex sexual harassment by supervisor even under recent Bostock decision

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Brandy Newbury v City of Windcrest, Texas, 20-50067 (5th Cir. March 22, 2021)

This is an employment discrimination case where the U.S. Fifth Circuit Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brandy Newbury was a police officer within her first year of employment with the City. Newbury asserted during the first year she was sexually harassed by a female supervisor, Officer Jaime because Jaime was rude to her and confrontational. The City hired an outside investigator who determined Jaime was rude, but the actions did not constitute sexual harassment. Later on, during the first year, Newbury asserted she heard a rumor another officer was following her trying to catch her violating City policy. She reported her belief that was occurring, but nothing was done.  Finally, Newbury asserts the City was secretly recording her in her home by remotely activating her body-worn camera. While the manufacturer testified the cameras could not be remotely activated that way, Newbury continued to assert a §1983 claim for invasion of privacy. However, Newbury admitted she never saw a recording of herself taken and based her belief on the fact a red light on her camera would come on by itself.   Newbury asserted the treatment was so bad she felt forced to resign, but then later asserted she was terminated. The City filed a motion for summary judgment, which was granted. Newbury appealed.

The Fifth Circuit started by noting Title VII is not a general civility code for the American workplace.  Contrary to Newbury’s assertions, the panel distinguished this case from the recent U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S. Ct. 1731 (2020) holding that while the Bostock decision “expanded the groups of individuals protected by Title VII, it in no way altered the preexisting legal standard for sexual harassment.” The panel held Newbury did not receive an adverse personnel action as a supervisor’s “rudeness” was insufficient to constitute an adverse action. Additionally, the rude actions complained of did not rise to that “greater degree of harassment” that would cause a reasonable person to resign. Additionally, a shift-change, even one which has an officer on it the plaintiff does not like, is not an actionable claim. Newbury failed to provide sufficient evidence that comparable men and women were treated differently.  Newbury failed to establish a prima facie case of retaliation since no adverse employment action occurred.  Further, the evidence demonstrated she resigned and was not terminated. Therefore, all of her Title VII claims failed.  Finally, Newbury failed to establish the body-worn cameras actually recorded her or that, even if she had produced recordings, there was a policy, custom, or practice which would have caused the recordings.  As a result, the trial court properly granted the City’s summary judgment motion.

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

San Antonio Court of Appeals holds receipt of payment or exclusive use of premises are not substantial factors to determine invitee status under TTCA for premise defect case

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City of San Antonio v. Nadine Realme, 04-20-00119-CV (Tex.App.—San Antonio, March 17, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the Plaintiff alleges a premises defect claim against the City. The Court of Appeals reviewed the denial of the City’s plea to the jurisdiction, ultimately affirming the denial.

Plaintiff Realme paid to participate in a 5K run/walk that took place on the City’s streets and sidewalks. The event itself was sponsored by private entities and Realme’s participation fee was directed to the private entities. She followed the pre-designated route and, along that route, between the sidewalk and the street, she tripped on a metal object protruding from the ground, causing bodily injury. She sued the City.  The City filed a plea to the jurisdiction and argued that Realme was not an invitee, but rather a licensee under premise defect standards. As a result, the City had to have actual knowledge of the dangerous defect. The crux of the City’s argument was two-fold: that the City did not receive payment for Realme’s use of the premises, that other – nonpaying – members of the public also had access to the area and, therefore, Realme was not an invitee under the TTCA. The trial court denied the City’s plea to the jurisdiction, which the City then appealed to the Court of Appeals.

The specific TTCA provision that the Court of Appeals focused upon states that the City owes to Realme “only the duty that a private person owes to a licensee on private property unless the claimant pays for the use of the premises.” The Court of Appeals overruled the City’s argument after analyzing the plain language of that provision to come to the conclusion that the language makes no distinction between who received payment for use of the premises or even whether the payment was for the exclusive use of the premises. The fact that the City did not receive payment is immaterial.  On appeal, the City also raised a new issue that Realme’s claim is barred by immunity under the Recreational Use Statute. However, the Court of Appeals found that the City did not provide Realme the opportunity to develop the record or conduct discovery on the Recreational Use argument at the trial level, nor show how Realme would be unable to demonstrate jurisdiction through that avenue even if given the opportunity. The Court of Appeals refused to address for the first time on appeal. In construing Realme’s pleadings in her favor and considering the evidence admitted, the Court of Appeals found there was a material fact issue on the question of immunity, affirmed the denial, and remanded the case to the trial court for further proceedings.

If you would like to read this Memorandum Opinion, click here. Panel consists of Chief Justice Martinez and Justices Alvarez and Rios. Memorandum Opinion by Justice Rios.

San Antonio Court of Appeals holds City’s “Paid Sick Leave” ordinance was preempted by state law

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Washington et al. v. Associated Builders & Contractors of South Texas, Inc., et al., 04-20-00004-CV (Tex. App.—San Antonio, March 10, 2021).

In this case, the Fourth Court of Appeals considered the legality of San Antonio’s paid sick leave (PSL) ordinance. The Court held the PSL ordinance was unconstitutional because it established a minimum wage and is inconsistent with Texas Minimum Wage Act (TMWA).

In 2018, various advocacy groups and non-profits initiated a petition to adopt what was labeled the “Paid Sick Leave Ordinance.”  One of the most critical components of the PSL ordinance was that it would require many San Antonio employers to provide paid leave to their employees for sick days, doctor appointments, and for other specifically enumerated reasons.  Under the ordinance, a business’s failure to comply with the provision of paid time off could result in fines.   Instead of sending the ordinance to the electorate under the city charter, the City Council decided to adopt the PSL ordinance verbatim as submitted in the petition. In response, multiple businesses and business associations sought and obtained temporary and permanent injunctions to prevent its enforcement.  The City appealed.

While there were numerous claims asserted the court’s primary focus was to analyze whether the PSL ordinance established a minimum wage, thereby causing the ordinance to be preempted by the TMWA and/or unconstitutional.  The court’s decision turned on whether paid sick leave constitutes a “wage” under the TMWA. The court relied on dictionary definitions and the common meaning of words within the ordinance.  Ultimately, the court held the PSL ordinance was in fact a “wage” and wage regulations are governed by the TMWA. The ordinance was therefore preempted.

If you would like to read this opinion, click here. Opinion by Justice Alvarez. Panel consists of Justices Alvarez, Rios, and Watkins. For more information on San Antonio’s Sick & Safe Leave ordinance and other related items, click here.

 

Fourth Court holds plaintiff’s premise defect claims cannot be brought as tangible personal property claims

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City of San Antonio v. Nolan Anderson, 04-20-00320-CV (Tex.App.—San Antonio, March 10, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims with prejudice.

Plaintiff Anderson was on crutches and exiting a terminal at the San Antonio International Airport. There was deposition testimony that it was raining that day. He stated that he noticed a rubber mat outside the terminal door, that the ground was wet when he moved his crutches forward and fell, injuring himself. Anderson alleged both a condition/use of tangible personal property (by failing to use a slip-preventing mat) and, alternatively, a defective condition of the premises (because the City should have known it was raining and needed to have made safe an area where one would not expect to find water). During Anderson’s deposition, when asked if he had any reason to believe anyone from the City knew about the water before he fell, replied: “Not that I know of, no, sir.” The City filed a plea to the jurisdiction and a no-evidence motion for partial summary judgment. The trial court granted the summary judgment but denied the plea to the jurisdiction. The City then appealed the denial.

The Court of Appeals focused on Anderson’s apparent attempt to couch a premises defect claim as a tangible personal property claim. The TTCA clearly delineates between the two claims such that one claim cannot be both a condition/use of personal property and a premises defect. The former claim was succinctly dismissed because Anderson expressly alleges it is attributed to a failure to use a certain type of mat, which is not a valid claim under the TTCA. As to the latter, none of Anderson’s testimony created a fact issue as to whether City had any knowledge or notice of the water on the ground or mat, which is one required element for bringing forth a premises defect claim. As a result, the denial of the plea to the jurisdiction was reversed and Anderson’s claims were dismissed with prejudice.

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

Dallas Court of Appeals holds Parkland Hospital did not have actual knowledge of glass pane defect prior to it falling and injuring Plaintiff

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Dallas County Hospital District d/b/a Parkland Health & Hospital System v. Lidia Bravo and Jefrey Bravo, 05-20-00640-CV, (Tex. App – Dallas, March 4, 2021)

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

Plaintiff Bravo visited a sick family member at a Parkland hospital when as he sat in the main lobby, a large glass pane from a second-story walkway suddenly fell on him from overhead, causing him injuries. Bravo sued Parkland for a premises defect. Parkland filed a plea to the jurisdiction, which was denied. Parkland appealed.

Under a premise defect theory, a limited duty requires the owner of the premises to avoid injuring the plaintiff through willful, wanton, or grossly negligent conduct and to use ordinary care either to warn the plaintiff of, or make reasonably safe, a dangerous condition of which the owner is aware and the plaintiff is not. Parkland submitted evidence the glass pane was installed prior to October of 2015 and Parkland received no notice of any potential problems with the pane prior to Bravo’s injury. None of Plaintiff’s evidence showed Parkland had any prior actual notice of a dangerous condition or provided a basis from which such notice could reasonably be inferred. As a result, no actual knowledge is evidenced. The plea should have been granted.

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

Amarillo Court of Appeals holds Texas Attorney General immune from County’s claims regarding conceal handgun signs

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Ken Paxton, Texas Attorney General v. Waller County Texas; et al, 07-20-00297-CV, (Tex. App – Amarillo, March 4, 2021)

This is a conceal/carry notice case where the Amarillo Court of Appeals reversed the denial of the Texas Attorney General’s plea to the jurisdiction and dismissed the case.

The Waller County Courthouse has a sign noting a person cannot carry any weapons, including knives and guns, in the courthouse. Section 411.209 of the Government Code prohibits a political subdivision from posting notices barring entry to armed concealed-handgun license holders unless entry is barred by statute.  Terry Holcomb filed a complaint with the County regarding the sign. The County did not remove the sign and instead sued the Texas Attorney General seeking a declaration the signs do not violate §411.209, which was resolved in a prior case. Separate from the declaratory judgment action, the Texas Attorney General brought a mandamus action against Willer County and various county officials. Waller County filed counterclaims seeking declarations. The AG filed a plea to the jurisdiction as to the counterclaims which was denied. The AG appealed.

The Uniform Declaratory Judgments Act (“UDJA”) is not a grant of jurisdiction, but rather is a procedural device for deciding cases already within a court’s jurisdiction. The UDJA does not allow “interpretation” claims against a governmental entity or official.  The County’s counterclaims seek interpretation of §411.209, not its invalidation. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. To sue the AG for ultra vires claims, the AG must not be exercising his discretion. Because the AG has discretion to bring or not bring an enforcement claim, no ultra vires action is possible.  Section 411.209 of the Government Code authorizes the Attorney General to investigate alleged violations of the statute and decide whether further legal action is warranted. When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous; “[o]nly when these improvident actions are unauthorized does an official shed the cloak of the sovereign and act ultra vires.” As a result, the counterclaims should be dismissed.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, and Justice Pirtle and Parker. Reversed and Remanded to Trial Court. Opinion by Justice Parker. Docket page with attorney information found here.

Dallas Court of Appeals holds Plaintiffs failed to challenge all grounds on which dismissal could have been granted; therefore dismissal is affirmed

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Chris Carter and Karen Pieroni v. Dallas City Plan Commission and City of Dallas, 05-20-00190-CV, (Tex. App – Dallas, March 1, 2021)

This is a Confederate monument case where the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

After a Confederate monument was originally scheduled for removal from a City cemetery, Plaintiffs brought suit to prevent its destruction. Through asserted the City violated its own codes, violated the Texas Open Meetings Act, the Texas Monument Protection Act and a few others. The City filed a plea to the jurisdiction, which was granted, except to claims under the Texas Antiquities Act. Plaintiffs appealed after non-suiting the remaining claim.

No judgment may be reversed on appeal unless the error complained of probably caused rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). To appeal, an appellant must challenge each independent ground asserted in the plea. The City asserted three grounds in its plea to the jurisdiction: standing, governmental immunity, and the political question doctrine. The political question doctrine is not necessarily a component of or necessarily entwined with either of the other two grounds. Plaintiffs challenged standing and immunity, but not the political question doctrine. Because the Plaintiffs did not challenge each independent, standalone ground on which the dismissal of their claims could properly have been based, the court affirmed the granting of the plea.

If you would like to read this opinion click here. Panel consists of Justices Myers, Osborne, and Carlyle. Memorandum Opinion by Justice Carlyle. Docket page with attorney information found here.

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

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

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

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

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

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

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

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

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

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

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

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

Justice Smith. Memorandum Opinion by Chief Justice Byrne

 

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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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