Car accident Plaintiff failed to establish subjective awareness of fault by City, so City retains immunity

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City of Houston v. Francisco Cruz, 14-18-00080-CV (Tex. App. – Houston [14th Dist.], August 27, 2019).

This is a Texas Tort Claim Act (“TTCA”) case involving a motor vehicle accident where the 14th Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the Plaintiff’s claims.

Cruz sued Reyes for damages resulting from a car accident which occurred in November 2015. Cruz alleges Reyes ran a red light at an intersection and collided with Cruz’s vehicle. Reyes moved to add the City of Houston as a third-party defendant. Cruz amended his petition to add the City as well. The City filed a plea to the jurisdiction based on a lack of statutory notice which was denied. The City appealed.

It was not until March of 2017 that Cruz’s lawyer sent a notice letter to the City but listed the client as Francisco Lopez in parts and Cruz in other parts. However, Cruz added the City two weeks after sending the letter. The City contends Cruz was required to give it notice of the claim within 90 days of the accident under the City’s’ charter, but at most within 180 days under the TTCA.  The City submitted affidavits from various custodians noting no notice was received for either Lopez or Cruz.  Cruz responded the City had actual notice because the City was aware of a malfunctioning traffic signal at the intersection on the day the accident occurred. Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient.   Actual notice requires that a governmental unit have “subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries.” When factually the issues of communication are undisputed, the issue of subjective awareness is a question of law. Cruz merely provided information there was “a problem at the intersection” which is insufficient to establish a factual dispute on subjective awareness. Cruz failed to provide an affidavit or explanation as to why further discovery was needed. As a result, the plea should have been granted.

If you would like to read this opinion as click here. Panel consists of Justices Christopher, Bourliot, and Spain.  Memorandum opinion from Justice Bourliot. The attorenys listed for Cruz are Husein Hadimohammadabadi, Jamil Thomas and
Carnegie Harvard Mims III.  The attorney listed for the City is Fernando De Leon

 

Subcontractor did not contract directly with DFW Airport, so no waiver of immunity exists for breach of contract says Dallas COA

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Ruth Torres v. Dallas/Ft Worth International Airport et. al, 05-18-00675-CV (Tex. App. —  Dallas, August, 29, 2019).

This is a breach of contract case where the Dallas Court of Appeals held the trial court was without jurisdiction to hear the claims.

Torres was to provide human resources consulting services to Pursuit of Excellence (POE), a corporation that contracted with DFW to provide airport operations services. POE filed suit against Torres for breach of contract.  Torres answered, counterclaimed, and attempted to bring in the Dallas/Ft.Worth International Airport (DFW).  DFW filed a plea to the jurisdiction, which was granted. Torres appealed.

DFW is a special purpose governmental entity which possesses immunity as a matter of law.  As a result, Torres must establish a waiver of immunity to proceed. The Texas Tort Claims Act expressly lists the operating and regulation of an airport to be a governmental function, so no proprietary aspects are involved. Although TEX. LOC. GOV’T CODE § 271.152 provides for a

waiver of immunity in certain cases, that waiver is not absolute.  Unfortunately for Torres, she did not contract with DFW, but with an independent contractor of DFW.  The waiver under §271.152 only applies to contracts entered into directly with DFW.  The remaining arguments asserted by Torres (UDJA, TOMA, PIA, etc.) were not raised at the trial court so cannot be raised for the first time on appeal. The plea was properly granted.

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

Dallas Court of Appeals holds officer entered intersection in good faith – entitled to official immunity

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City of Dallas v. Rosa Rodriguez, 05-19-00045-CV, (Tex. App. – Dallas Texas, August 7, 2019)

In this Texas Tort Claims Act (“TTCA”)/motor vehicle accident/emergency responder case, the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rodriguez was injured when a Dallas police officer disregarded a red light and collided with her.  The officer driving the vehicle provided the accident investigation as well as her own affidavit, noting she was responding to an emergency call regarding a person who was breaking windows and threatening to shoot a woman in her home.

The officer stated she approached the intersection and came to a complete stop before proceeding through the intersection. The officer also stated that “all traffic on the northbound side had stopped and was giving [her] passage.” Rodriguez asserted the officer did not stop, and the PD had a policy requiring officers to come to a complete stop. It was discovered after the accident that the officer’s lights and sirens were not working properly, based on dash cam footage. The video’s GPS “speed” indication shows the officer’s speed at 23 mph just before she appears to come to a complete stop. The speed indicator quickly drops to 9 mph and then to 2  mph after after she stopped; the indicator immediately shows her speed at 3 mph as she slowly entered the intersection. The officer’s affidavit stated the potential danger posed by proceeding through the intersection was far less, considering all factors, than the danger posed to the officers and victims involved in the emergency at issue.  The City filed a plea to the jurisdiction arguing official immunity, which was denied.

The court first noted that Rodriguez’ objections to the officer’s affidavit (i.e., hearsay and best evidence) were not sufficiently specific. The court held that the “stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before” the officer started moving again. The video also indicates “triggers” including lights, siren, and brakes. The officer testified she understood that, in making discretionary decisions during emergency calls, she must weigh the need to respond urgently to the emergency call against the risk involved to the general public when responding to the emergency. She explained her thought process on the record.  The court held that the fact a collision occurred does not equate to a showing that the law was violated and is insufficient to raise a fact issue on recklessness.  An officer’s own affidavit can establish good faith, and an officer’s good faith is not rebutted by evidence that she violated department policy.  The record shows the need/risk analysis performed by the officer. Rodriguez failed to establish a fact issue as to recklessness. As a result, the plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices Bridges, Brown and Nowell. The attorneys listed for Dallas County are Bonnie Snell, Amy I. Messer, James B. Pinson, Jason G. Schuette, and Nicholas Palmer. The attorneys listed for Rosa Rodriguez are Susan B. Smith, Billy McGill Jr., and Briana Crozier.

Texas Supreme Court holds use of fluid during surgery can trigger waiver of immunity, irrespective of medical judgment

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THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER v. LANCE MCKENZIE, 17-0730 (June 28, 2019)

This is a Texas Tort Claims Act (TTCA)/tangible personal property case in which the Texas Supreme Court affirmed the denial of the district’s plea to the jurisdiction for its use of a carrier agent during surgery. 

Cortney McKenzie-True began treatment for cancer at M.D. Anderson. She went through a test trial for treatment. The visible cancer was first surgically removed. After a chemo drug was administered, the body was washed out with a carrier agent. The hospital used D5W. Use of the carrier agent had an adverse effect on McKenzie-True, which was a known risk but was considered to have a small probability of occurring. McKenzie-True died, and the (McKenzie) family sued. The hospital filed a plea to the jurisdiction asserting the carrier agent was properly administered, so no negligent use of the drug had occurred. The lower courts denied the plea, and the hospital appealed. 

The hospital asserts the  McKenzies’ actual claims complain of negligent use of medical judgment, not negligent use of the carrier agent.  The McKenzies asserted it was the agent that caused the death, and the hospital should have known it was the incorrect fluid to use. This case blurs the fine line between medical judgment and the negligent implementation of that judgment. The Court held that “[w]hile we agree that a complaint about medical judgment, without more, is insufficient to waive immunity, the negligence alleged here does not involve only medical judgment.”  The issue becomes whether the injury is caused by improper medical judgment in which tangible property is used or whether the use, itself, of the property caused the injury, and the fact the property was administered properly is irrelevant. The Plaintiffs alleged D5W never should have been used, due to the high levels needed for the test trial procedure. The fact that the use was preceded by medical judgment is of no consequence, since all aspects of surgery are preceded by medical judgment. From a pleading standpoint, this is sufficient to establish jurisdiction and a potential waiver.  

Additionally, the Court held this was the analysis of immunity from suit, not immunity from liability.  Essentially, the Court held the plea allegations are based not only on medical judgment, but on a direct causal connection of the use of personal property. 

The dissent asserts that a separation of the decision (medical judgment) from the use of property is important. The majority’s interpretation eliminates sovereign immunity regarding medical judgment. Noting, “If sugar water [D5W] should not have been used, neither should a scalpel have been, or the surgical apparatus, or for that matter, the building.” The dissent asserted the medical judgment should not be disregarded and that if it was based on medical judgment, there is no waiver. 

If you would like to read this opinion, click here: opinion of the Court.  Justice Lehrmann delivered the opinion in which Justices Guzman, Boyd, Devine, and Blacklock joined. Chief Justice Hecht delivered a dissenting opinion, with Justice Green and Justice Brown joining.

U.S. Supreme Court holds EEOC charge filing process is mandatory, but not jurisdictional

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Fort Bend County v Davis, 18-525, (U.S. June 3, 2019).

Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.  After several years of litigation, Fort Bend raised the issue of the trial court’s lack of jurisdiction over the religious discrimination claim because she did not properly file a charge with the EEOC. The trial court agreed and dismissed the claim. The 5th Circuit Court of Appeals reversed and the County appealed.

The U.S. Supreme Court held the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. But not all mandatory rules are jurisdictional. Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule.

GINSBURG, J., delivered the opinion for a unanimous Court. If you would like to read this opinion click here.

Texas Supreme Court holds County still retains immunity from liability after inmate fell using broken chair

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Tarrant County v Roderick Bonner, 18-0431 (Tex. May 24, 2019)

This is an inmate Texas Tort Claims Act (TTCA) claim where the Texas Supreme Court held Tarrant County (County) was immune from liability for a defective chair while treating an inmate for his medical condition.

A deputy accidently damaged the leg of a chair while working at the jail where Bonner was housed. The deputy notified his supervisor of the damaged chair, who instructed the deputy to place the chair in the multipurpose room before filling out a report. Bonner, an inmate, had diabetes and entered the multipurpose room for treatment.  When he attempted to use the chair, it collapsed. Bonner sued for injuries under the TTCA asserting the negligent use of personal property.  At the summary judgment stage, the County argued despite the waiver under the TTCA, it retained immunity under the Texas Code of Criminal Procedure (TCCP) and Texas Government Code. The trial court granted the motion, the court of appeals reversed, and the County filed a petition for review.

Under the TCCP article 42.20, certain individuals and governmental entities are not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. Similarly, under the Texas Government Code § 497.096 a county and sheriff’s department employees are not liable for damages arising from action or inaction in connection with an inmate or offender treatment activity if the action or inaction was not intentional, willfully negligent or performed with conscious indifference or reckless disregard. After analyzing the statutory sections, the Court held Bonner’s allegations are more than simply the County failed to warn of the broken chair, it was the use of the chair during treatment which caused his injury. The two statutes immunize negligent acts and omissions that are reasonably related to the covered programs or activities, even when the relationship is indirect. As a practical matter, this includes acts or omissions, which give rise to damages during covered programs and activities. The Court recognized the statutes only immunize the County from liability to the extent its corporate actions or omissions were not performed with conscious indifference or reckless disregard for the safety of others. As a result, it was an immunity to liability only, not an immunity from suit. The County must assert it qualifies for the conditions, thereby placing the burden on the County. Once the defendant establishes that those conditions exist, the burden falls on the plaintiff to establish the statute’s exception to that defense, which is expressed as a heightened liability standard. The Court referred to this as a form of statutory immunity. Under this heightened standard, a defendant must have actual subjective knowledge of an extreme risk of serious harm.  Based on the record, the Court concluded no evidence exists of conscious indifference towards Bonner. As a result, the trial court’s granting of the summary judgment was proper.

Justice Boyd concurred in the judgment, but wrote separately as he disagreed (1) conscious indifference is “the same as” gross negligence or (2) a person cannot be consciously indifferent to a risk that is less than “extreme.”

If you would like to read this opinion click here.  Opinion by Justice Devine.  Justice Boyd wrote a concurring opinion found here. The docket page with attorney information can be found here.

Texas Supreme Court holds sanctions not applicable when a defendant is asked to deny a merit-preclusive RFA that the other party bears the burden of proof.

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Medina v Zuniga, 17-0498 (Tex. April 26, 2019)

In this case, which will be primarily of interest to litigators, the Texas Supreme Court held the trial court abused its discretion when it awarded sanctions against a defendant who denied liability in discovery but conceded during trial.

In the vehicle accident case, Medina exited a parking lot without stopping or properly looking and struck Zuniga.  Zuniga sued for negligence and gross-negligence and served Medina with discovery. In admissions the plaintiff essentially asked the defendant to concede his negligence in every possible respect and confess he was the sole cause of the accident at issue. The defendant predictably denied those requests. Relying on an exception to Rule 215.4’s applicability, Medina argued that when he denied Zuniga’s requests for admissions, he had a reasonable ground to believe he might ultimately prevail in showing he was not negligent.  The case proceeded to trial at which time, Medina made the strategic decision to concede ordinary negligence but contest the plaintiff’s gross-negligence claim. The jury found for Zuniga. After the trial, Zuniga’s attorney moved for sanctions for the failure to admit negligence during discovery and to collect attorney’s fees on having to establish the facts admitted at trial. The trial court granted the sanctions.

The Court state out by asserting “[r]equests for admission are a tool, not a trapdoor.”   They primarily serve “to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove.” They address uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents. They were not intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense.  Since the plaintiff ahs the burden of proof, it cannot follow that the defendant who puts the plaintiff to his/her burden should later face sanctions for not admitting what he/she was entitled to deny.  Due process limits the extent to which sanctions can attach to denials of those requests. Just as a defendant may answer the claims against him with a general denial, see TEX. R. CIV. P. 92, he may also deny a merits-preclusive request for admission for which the other party bears the burden of proof. The very nature of the request provides the respondent “good reason” for failing to admit. As a result, the trial court abused its discretion. Medina also challenged the jury’s gross-negligence finding, arguing no evidence supports a conclusion that his actions rose above ordinary negligence. The objective gross-negligence standard must remain functionally distinguishable from ordinary negligence. As to the objective component, an “extreme degree of risk” is “a threshold significantly higher than the objective ‘reasonable person’ test for negligence.”  Viewing the evidence in favor of the jury’s verdict, no doubt exists that Medina’s driving was thoughtless, careless, and risky. But any driver knows that our roads are replete with thoughtless, careless, and risky drivers. Gross negligence can be supported only by an extreme degree of risk, which is not present here.

If you would like to read this opinion click here. Justice Brown delivered the opinion of the Court.  The docket page with attorney information can be found here.

Texas Supreme Court holds plaintiff in red-light challenge lawsuit was required to exhaust administrative remedies before filing for injunctive relief

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Garcia v City of Willis, et al., 17-0713 (Tex. May 3, 2019)

In this constitutional challenge to red-light camera case, the Texas Supreme Court held the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim.

Luis Garcia sued the City of Willis on behalf of himself and “others similarly situated” who paid a civil penalty for violating a city ordinance for red-light infractions caught on camera. He sought the invalidation of the ordinance, a refund, or a takings claim. The City filed a plea to the jurisdiction, which was denied by the trial court, but granted by the court of appeals. On appeal to the Supreme Court, the State filed an amicus brief, arguing additional authority in support of the City.

While the City did not initially challenge Garcia’s standing to bring suit, the State’s amicus brief raised the issue, and the Court felt it was required to address that first. After receiving notice from the City of his red-light violation, Garcia paid the requisite civil fine. He has no outstanding fines and does not assert that he plans to violate red-light laws in the future. And for standing purposes, we “assume that [plaintiffs] will conduct their activities within the law,” barring some stated intent otherwise. Because no pending charges exist, Garcia lacks standing for prospective injunctive relief and could not be a class member of others similarly situated who have not paid the fine.  However, he does have standing to seek a refund of his past payment. In this context, immunity is waived only if Garcia paid the fine under duress.  Here, Garcia chose to voluntarily pay a fine and forgo administrative remedies that would have entitled him to an automatic stay of the enforcement of his fine under TEX. TRANSP. CODE § 707.014(a).  Because Garcia could have invoked this automatic reprieve from payment and challenged the notice of violation administratively — but chose not to — he cannot now claim he paid his fine under duress.  Therefore, the City maintains its immunity.

Garcia additionally argues the fine imposed on him amounts to an unconstitutional taking, because the underlying is unconstitutional and because the City failed to conduct the statutorily required engineering study.  He asserts he could not challenge the constitutionality of the fine in the administrative hearing. However, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments. As a result, he failed to exhaust his administrative remedies.

If you would like to read this opinion, click here.  Justice Brown delivered the opinion of the Court.  The docket page with attorney information can be found here.

13th Court of Appeals holds building and standards commission order was final, so could not be collaterally attacked under TOMA

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Harker Heights Condominiums, LLC v. City of Harker Heights, Texas, 13-17-00234-CV (Tex. App. – Corpus Christi, March 28, 2019).

In this case the 13th Court of Appeals affirmed the granting of the City of Harker Heights’ plea to the jurisdiction dismissing a claim for injunctive relief to prevent the demolition of a building.

Harker Heights Condominiums (HHC) owns property on which thirty-three condominium units sit and that are leased to low income residents in need of housing. The City inspected the property, found defects and ordered repair.  The inspector found substandard conditions rising to such a level as to pose substantial danger to life, health and property.  The City’s Building and Standards Commission ordered certain properties repaired within ninety days or be demolished. HHC was able to bring one unit up to code, but was not able to timely repair the remaining units. After the City awarded a demolition contract, HHC sued to prevent destruction of the units. An initial temporary injunction was granted. After HHC added a claim for violating the Texas Open Meetings Act (TOMA) the City filed a plea to the jurisdiction which was granted. HHC appealed.

Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. The local government code provides for judicial review of any decision of a building and standards commission panel, but the “district court’s review shall be limited to a hearing under the substantial evidence rule.” To appeal an order of a building and standards commission, an aggrieved party must file a verified petition in district court within thirty days of the commission’s order.  HHC waited eighty days. HHC asserted the “decision” was actually the City Council decision to award the demolition contract, not the Commission’s decision. However, the City’s award was merely the granting of a contract, not an order outlined in Chapter 214 of the Local Government Code. The court noted that even if the HHC injunctive relief were interpreted to be a proper petition for review under Chapter 214, it was nonetheless untimely. This untimely filing also means HHC’s TOMA suit is untimely as holding otherwise would subject the commission order to impermissible collateral attack. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, Justice Hinojosa and Visiting Judge Dorsey. Memorandum Opinion by Visiting Judge Dorsey. The attorneys listed for the City are Charles D. Olson, Charles Alfred Mackenzie and Burk A. Roberts.  The attorneys listed for HHC are Brandy Wingate Voss,  Ryan D. V. Greene and  G. Alan Waldrop.

Texas Supreme Court holds attorney-client privilege applies even when client acts as its own expert

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In Re: City of Dickinson, 17-0020 (Tex. February 15, 2019)

This is a mandamus action of primary interest to litigators where the Texas Supreme Court held the attorney/client privilege protects expert testimony when the client is also the expert.

The City of Dickinson purchased a commercial windstorm policy from Texas Windstorm Insurance Association. In the underlying litigation, the City alleges that Texas Windstorm has not paid all it owes under the policy and sued. In the motion for summary judgment Texas Windstorm included the affidavit of its corporate representative and senior claims examiner, Paul Strickland. Strickland’s affidavit provided both factual and expert opinion testimony on Texas Windstorm’s behalf. Strickland’s affidavit had been revised in a series of emails between Strickland and Texas Windstorm’s counsel and the City sought the drafts in discovery. Texas Windstorm asserted the communications were privileged while the City asserted, as a testifying expert, the communications were not privileged. The trial court ordered Windstorm to produce the communications. The court of appeals conditionally granted a writ of mandamus. The Texas Supreme Court heard the mandamus filed by the City.

Texas Windstorm responds that the expert-disclosure rules do not override the attorney–client privilege and do not require a party to choose between defending itself and maintaining its privileges. It asserted the attorney–client privilege is substantively distinct from the work-product doctrine.  There was no dispute the communications at issue were encompassed within the attorney/client privilege.  The Court declined to create any new privileges in the opinion and confined its analysis to the rules of discovery already in place. Because the discovery rules are part of a cohesive whole, the Court considered them in context rather than as isolated provisions.  While Texas Rule of Civil Procedure 192.3 states a party may discover expert information, it does not expressly permit discovery when the information is protected by the attorney/client privilege. In fact, Rule 192.3(a) expressly contains the phrase “absent some specific provision otherwise” which the Court interpreted to include the attorney/client privilege.  Further, Rule 194.2 permits a party to seek a disclosure on expert information, but such is permissive, not mandatory and is subject to privileged communications. Additionally, the official comments to Rule 194 explain that a responding party may assert any privilege to a Rule 194.2 request except work product. The City’s supporting cases were largely based in the work-product privilege, not the attorney/client privilege. As a result, they are inapplicable. The Court reemphasized some of its more recent opinions holding the attorney/client privilege is a “quintessentially imperative” to our legal system. A lawyer’s candid advice and counseling is no less important when a client also testifies as an expert. As a result, it upheld the mandamus and allowed Texas Windstorm to withhold the communications.

If you would like to read this opinion click here. Justice Devine delivered the opinion of the Court. The docket page with attorney information is found here.

Texas Supreme Court holds election contest moot, but trial court was still in error when it awarded sanctions

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Laura Pressley v Geregorio Casar, 17-0052 (Tex. January 25, 2019)

This is an election contest case for a city council seat where the losing party and her attorney were sanctioned for bringing a frivolous claim. The Texas Supreme Court reversed the award of sanctions and dismissed the case as currently moot.

Gregorio Casar and Laura Pressley finished first and second, respectively, in the 2014 Austin City Council general election for the District 4 council seat. Pressley filed a request for recount, which included a recount of the electronic voting system information. For the manual recount, the CVR file for each voter was printed and counted by hand. The manual recount found no discrepancies with the original canvass and confirmed the original results that Casar won. Pressley next filed an election contest, arguing that CVRs are not “ballot images” or “images of ballots cast,” as the Election Code requires. She also asserted the election officials failed to allow her and the poll watchers the ability to observe the retrieving of the images from the machines. Casar filed traditional and no-evidence summary judgment motions and moved for Chapter 10 sanctions, which the trial court granted and the court of appeals affirmed.

The Court first noted Casar was reelected and began his second term in 2017. Because Pressley’s petition for review was filed after the completion of Casar’s contested term, the Court  decide is whether the election contest is moot.

Casar argued this election contest is moot because no remedy exists to contest an expired term of office. The Court agreed and no exception to the mootness doctrine applied. However, even though the election contest provision is moot, the Court still considered the sanctions holdings. Chapter 10 of the Civil Practice and Remedies Code permits sanctions for pleadings that are filed for an improper purpose or that lack legal or factual support. Pleaded claims must be warranted by existing law or a nonfrivolous argument to change existing law.  The trial court sanctioned Pressley and Rogers for three claims in which they alleged: (1) election irregularities, (2) criminal violation by election officials, and (3) voter disenfranchisement.  After analyzing each, the Court held at least some evidence exists to support the claims asserted. There is nothing frivolous about presenting a statistical analysis showing that the results were unlikely as persuasive support. Pressley’s computer-science and data expert testified that he found at least nine corruption errors in the files, which constitute irregularities and is also an indicator of potential corruption. The seals on the election machines were also broken. Pressley did not need to be right or produce enough evidence to prevail on her entire suit to avoid sanctions. These claims have some evidentiary support and that is enough to make them non-frivolous.  The sanctions order was reversed and the remainder dismissed as moot.

 

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

Austin Court of Appeals holds dog owner entitled to jury trial in appeal from municipal court of record

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In re: Linda Pool, 03-18-00299-CV (Tex. App. – Austin, January 23, 2019)

This is a mandamus case where the Austin Court of Appeals conditionally granted the writ requiring a county-court-at-law to hold a jury trial on a dangerous dog determination appeal.

Pool owns a dog named Pepper who allegedly attacked a jogger named Hoffman. An independent hearing examiner took sworn testimony and determined Pepper was a “dangerous dog” under §822.041(2) of the Texas Health and Safety Code. Pool appealed the decision to the Austin Municipal Court. The municipal judge, without a jury, held a hearing and confirmed Pepper was a dangerous dog. Pool appealed to county court at law and requested a jury trial de novo. The state argued that since the Austin Municipal Court is a court of record, any appeal is based on errors in the record and no de novo appeal is possible. The trial court held Pool was not entitled to a de novo review. Pool brought this mandamus action to compel a jury trial.

The court held this was a case of statutory interpretation. Under Chapter 30 of the Texas Government Code, appeals from a court of record are only appeals on the record. Tex. Gov’t Code §30.00014(b).  However, §822.0424 states a party “to an appeal under Section 822.0421(d)… may appeal the decision… and is entitled to a jury trial on request.”  The court noted that subsection (a) of §30.00014 states an appeal can be had from a judgement or conviction, but subsection (b) (which states an appeal is on the record only) simply references the word “conviction” and not “judgement.”  The court essentially held that a conviction equals criminal matters and a “judgment” equals civil matters for purposes of appeal. Since “judgment” was not mentioned in subsection (b) regarding the form of appeal, the form of appeal is not always on the record. Since §822.0424 states the appellate can make a jury trial request, the county court at law was required to grant the request. The court further held, in a footnote, that if the two statutes could not be harmonized, §822.0424 would still win out as the most recently passed provision. It conditionally granted the writ.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Goodwin and Justice Baker. Memorandum Opinion by Justice Goodwin. The attorney listed for Pool is Ms. Anna Eby.  The attorneys listed for the Travis County Attorney’s Office, real party in interest are David A. Escamilla, Tim Labadie,  Annalynn C. Cox.

Mandamus action: Pre-suit discovery precluded as petitioner did not support the petition with evidence and trial court failed to issue mandatory findings

In Re: City of Tatum, Texas, 12-18-00285-CV (Tex. App. – Tyler, December 21, 2018)

This is a writ of mandamus original proceeding where the Tyler Court of Appeals conditionally granted the City’s relief and precluded a potential party from taking pre-suit depositions pursuant to Rule 202.

Peterson filed a petition for a pre-suit deposition of the police chief pursuant to Texas Rule of Civil Procedure 202. The grounds for the deposition are that Peterson asserts a Tatum police officer sexually assaulted her when the officer arrived in response to a call for assistance at the home. She alleged that the City knew the officer “exhibited indicators” of this type of behavior; negligently hired, trained, controlled, supervised, and monitored the officer; did not have a policy to prevent such behavior and she anticipated being a party to a lawsuit involving the City. The City objected.  The trial court signed an order allowing the deposition and the City filed this original mandamus proceeding.

Pre-suit discovery is not intended for routine use; it creates practical and due process problems because discovery demands are made of individuals or entities before they are told of the issues. Rule 202.4 states a trial court must order a pre-suit deposition to be taken only if it finds: (1) allowing the deposition may prevent a failure or delay of justice in an anticipated suit (to be used if the purpose is to collect evidence for a lawsuit )or (2) the likely benefit to investigate a potential claim outweighs the burden or expense of the procedure (to be used in order to investigate if a claim even exists). The verified statements in a Rule 202 petition are not considered competent evidence. Peterson presented no evidence to support possible claims to investigate or collect. That a party (i.e. City) may be in possession of evidence pertinent to the subject matter of the anticipated action or to the petitioner’s potential claims does not alleviate the petitioner of her burden of providing evidence to support a Rule 202 request for pre-suit depositions. Further, the order does not contain the findings required to make it a proper order. The Texas Supreme Court has made clear that Rule 202.4 findings cannot be implied from the record and the findings are mandatory. Because the requirements of Rule 202.4 are mandatory, the City’s failure to object in the trial court does not result in waiver. The court conditionally granted the writ and stated an unconditional writ will issue only if the trial court’s order is not corrected.

If you would like to read this opinion click here. Memorandum opinion by Justice Neeley. The attorney for the City is listed as Darren K. Coleman.  The attorney for Peterson is listed as Ron Adkison.

Amarillo Court of Appeals holds no jurisdiction exists under PIA unless university “refuses” to supply information

Texas Tech University v. Dolcefino Communications, LLC dba Dolcefino Consulting, 07-18-00225-CV (Tex. App. – Amarillo, December 4, 2018).

This is a Public Information Act (“PIA”) case where the Amarillo Court of Appeals reversed the denial of a plea to the jurisdiction and held Texas Tech University properly complied with the PIA.

Dolcefino Communications, LLC (“Dolcefino”) requested various records from Texas Tech under the PIA. Texas Tech produced some but did not produce all the records requested. Dolcefino filed a petition for mandamus relief under Tex. Gov’t Code §552.321. Texas Tech filed a plea to the jurisdiction, which was denied. Texas Tech appealed.

The Legislature has prescribed that all statutory prerequisites to suit are jurisdictional in suits against governmental entities.  While the PIA waives immunity to a limited extent, the waiver is not all encompassing. Under the PIA, a requestor may file suit only upon showing that the governmental body “refuses to supply public information” or “refuses to request an attorney general’s decision.”  Such are statutory prerequisites to suit. The lion’s share of Dolcefino’s requests at issue were deemed “withdrawn as a matter of law” by Texas Tech. Dolcefino do not respond in writing to the itemized statement of costs or provide a bond within the time period. Dolcefino did not (1) accept the estimated charges, (2) modify its requests, or (3) send a complaint to the attorney general.  Dolcefino and Texas Tech did engage in what Dolcefino characterizes as a “back-and-forth” regarding the charges due.  However, an ongoing parleying over price does not provide a basis for overriding the statutory scheme for responding to an estimate of charges. The request was properly considered withdrawn. The court also dismissed Dolcefino’s argument Texas Tech waived the withdrawal language since estoppel does not run against a governmental entity.  Regarding the remaining portions of the request, Texas Tech asserts no responsive documents exist. However, a movant in a plea to the jurisdiction must assert and support with evidence the trial court’s lack of subject matter jurisdiction.  The court analyzed the emails back and forth with Dolcefino where Texas Tech asserted it did not have certain specific documents. Dolcefino asserted the statements were conclusory and not competent evidence. The court held “[a]s sparse as this additional data may be, it nevertheless insulates Texas Tech’s reply from a potential attack as conclusory.” Texas Tech produced some evidence that it was not “refusing” to provide public information to Dolcefino.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panelconsists of Chief Justice Quinn, Justice Campbell, Justice Parker. Opinion byJustice Parker. The attorneys listed for Texas Tech are Eric A. Hudson and EnriqueM. Varela.  The attorneys listed forDolcefino are Michael K. Hurst, Julie Pettit, David B. Urteago, David Coale.

Order granted County’s plea to the jurisdiction reversed by 13th Court of Appeals in Whistleblower Act case

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Leticia Perez v. Cameron County and Juan A. Gonzalez 13-17-00581-CV (Tex. App. – Corpus Christi & Edinburg, November 15, 2018).

This is a Texas Whistleblower Act case where the Thirteenth Court of Appeals reversed and remanded the order granting the County’s plea to the jurisdiction.

Perez worked as a deputy clerk in the Cameron County Clerk’s Office (“CCCO”). Perez asserts she had witnessed the elected clerk, Rivera, give kickbacks to CCCO vendors. She reported her concerns to the district attorney’s office and the FBI. Later, CCCO was audited for the problems which were the subject of Perez’s report to the district attorney and the FBI. Rivera allegedly “began a campaign of retaliation” against Perez which she believed was due to the report and her refusal to support Rivera’s successor. Perez filed a grievance against Rivera, who later terminated her. Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. She also brought suit for negligence against the county assistant attorney who advised her to file a grievance.  The County filed a plea to the jurisdiction, which was granted. Perez appealed.

First, Perez did not file a grievance after her termination, but the County’s grievance procedure was applicable only to active employees, not former employees. Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the procedure is not part of the required exhaustion of administrative remedies. The court held a terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees. Perez’s second point of error essentially stated that she properly plead a good faith reporting. In her petition, Perez claimed that she observed Rivera engaging in potentially illegal activity by awarding “improper and illegal contracts” to CCCO’s vendors. She elaborated in her affidavit that she reported in good faith that Rivera exploited his post as county clerk to engage in “kickbacks and contract rigging.”  Such meets the required elements for bribery and abuse of official capacity, which are both penal provisions. The court held Perez sufficiently alleged a good faith report of a violation of the law. Finally, Perez argued that the trial court accidentally dismissed her claims against Gonzalez (the attorney) as part of its ruling on the County’s plea to the jurisdiction. After granting the plea as to the County, the order then provided, “all requested relief not be granted herein is hereby expressly DENIED.” However, this unambiguous language does not finally dispose of Perez’s claims against Gonzalez. Because the order did not expressly dispose of Perez’s claims against Gonzalez or include a clear and unequivocal finality phrase, it did not dismiss those claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Rodriguez, Justice Contreras and Justice Benavides. The attorney listed for the County is Juan A. Gonzalez. The attorney listed for Perez is Javier Pena.