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 it 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 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.

 

5th Court of Appeals hold “City Attorney’s Office” is not a jural entity which can be sued

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Thompson v Dallas City Attorney’s Office, Cause 05-17-00847-CV (Tex. App. — Dallas, October 18, 2018)

This is an employment dispute, but the main issues center on litigation procedures where the Dallas Court of Appeals affirmed the granting of the City’s motion for summary judgment. 

Thompson is a former employee of the City.  She filed suit against the “Dallas City Attorney’s Office” for, apparently, some form of discrimination. The opinion does not focus on the underlying claims. Thompson was given an opportunity to replead and properly identify the City as the employer. Thompson failed to correct the misnomer. The court granted the City’s MSJ. Thompson filed a motion for new trial, which was denied. She filed motions to reinstate and to modify the judgment, which were denied. After judgement became final, she appealed. 

The City filed a supplemental answer, verifying a defect in the parties as the City Attorney’s Office is not a jural entity which can be sued on its own. It also asserted the claims were barred by the statute of limitations. The court agreed Thompson’s attorney make an understandable mistake in responding to the motion for summary judgment late. However, Thompson did not have a meritorious argument as the city attorney department is not a jural entity.  While a misnomer, such as naming the department instead of the city, is still effective to toll the statute of limitations, it nonetheless only tolls if the Plaintiff eventually names the proper entity as a party. Here, Thompson never added the City as the proper employer for suit. As a result, the trial court properly denied the motion for new trial and properly granted the MSJ. 

If you would like to read this opinion click here. Panel consists of Justices Meyers, Brown and Evans. Opinion by Justice Meyers. 

City and EDC established personal/specific jurisdiction over out-of-state financial institutions involved in failed EDC project

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City of White Settlement, et al. v. Benjamin S. Emmons, and Source Capital, LLC, 02-17-00358-CV (Tex. App. – Fort Worth, September 27, 2018)

While involving a governmental entity, this case is more about personal jurisdiction over an out-of-state financial institution involved in an EDC project.  It will likely only be of interest to litigators and contract drafters.

In September 2013, the City and EDC entered into a transaction with Hawaiian Parks – White Settlement, LLC (HPARKS) where the City would ground lease land to HPARKS to construct a water and adventure park and would pay up to $12.5 million for the construction, to be financed by debt obligations issued by either the City or the EDC. The ground lease agreement allowed HPARKS to encumber the leasehold interest and capital improvements but only with the City’s consent.  The owners of HPARKS mortgaged the Park in order to finance the park construction.  HPARKS ran out of money and could not meet its past due obligations or complete construction. Capital One and the Source Capital Lenders issued notices of default. As part of a financial reorganization, the City and EDC agreed that HPARKS could execute documents granting a lien on all of its right, title, and interest under the ground lease and that Capital One could foreclose on that interest in an event of default of its loan to HPARKS. Despite receiving new loans and changing ownership, HPARKS failed to make good on its obligations to the City or Bank. The City sued the owners and lenders claiming the banking entities falsely represented that the City would be provided payment in exchange for allowing the encumbrances and not declaring a default. Further instead of making the October 2015 lease payment and ensuring that the Park had enough income, the Defendants diverted HPARKS’s income to operate the other parks in other cities. The Source Capital Defendants filed a special appearance noting a lack of personal jurisdiction. The trial court granted the special appearance without holding a live hearing. The City and EDC appealed.

A Texas court may assert personal jurisdiction over a nonresident defendant only if the requirements of the Texas long-arm statute and of due process under the Fourteenth Amendment are satisfied. A trial court may exercise specific jurisdiction over a defendant only if the suit arises out of or relates to the defendant’s forum contacts. This depends on the existence of activity or an occurrence that takes place in the forum state and is therefore subject to its regulation. The court went through a lengthy listing of evidence and testimony. The evidence showed the various defendants were physically present in the state and made allegedly fraudulent representations on which the City and EDC relied. The court held the Source Capital defendants purposefully availed themselves of the privilege of conducting business and investment activity in Texas sufficient to confer specific jurisdiction on the trial court for fraud and torts. However, personal jurisdiction over the individual agents of Source Capital does not extend to the breach of contract claim. Unlike in a tort context, a corporate agent who is not individually a party to a contract may not be held liable for breaching a contract to which only his principal is a party. As a result, the trial court’s order is affirmed-in-part and reversed-in-part.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr and Justice Birdwell.  Memorandum Opinion by Justice Birdwell.  The attorney listed for the City and EDC is Robert F. Maris.  The attorneys listed for the Plaintiffs are Spencer Hamilton, Glenn A. Ballard Jr. and Mukul S. Kelkar.

Ex-employee failed to file supplemental EEOC charge, so failed to exhaust administrative remedies says Eastland Court of Appeals

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Christopher Wernert v. City of Dublin, 11-16-00104-CV (Tex. App. – Eastland, August 30, 2018).

This is an employment discrimination case were the Eastland Court of Appeals affirmed the granting of the City’s dispositive motion.

Wernert was a police officer for the City who suffered a serious knee injury on the job when he slipped and fell on an icy street while directing traffic. The injuries were listed as permanent preventing him from continuing patrol duties. However, Wernert was also an investigator and continued to perform those duties for two years. Then, the Chief of Police added patrol duties back into his job requirements. Wernert filed an EEOC/TWC charge.  Wernert was then required to exhaust his leave but was later terminated by a new Chief when he could not return to work, including patrol. Wernert filed suit but alleged acts which occurred after his EEOC charge was filed. The City filed a summary judgment motion, asserting a lack of jurisdiction for failing to exhaust administrative remedies. The trial court granted the motion and Wernert appealed.

Each discrete act of discrimination requires administrative remedy compliance. Discrete discriminatory acts are not actionable if time-barred, and each discrete discriminatory act starts a new clock for filing charges alleging that act.  The court analyzed the current state and federal law and whether Wernert was required to file a supplement charge in order to preserve acts which occurred after the first charge.  The only adverse actions taken prior to the first charge was a change in job duties, while the forced leave and termination occurred after his charge.  Adopting the reasoning from the U.S. Fifth Circuit expressed in Simmons-Myers v. Caesars Entertainment Corp., 515 F. App’x 269, 273 (5th Cir. 2013), the Eastland court held Wernert’s claims are precluded because he did not file an administrative charge for these discrete acts that occurred after his previous EEOC charge. Wernert was required to pursue administrative relief for each of these discrete acts even though they were related to the factual basis of his previous charge. And since the only acts for which he sought damages were the post-charge acts, the trial court properly granted the summary judgment.

If you would like to read this opinion click here. Panel consists of Justice Willson, Justice Bailey and Senior Justice Wright, Retired. Memorandum Opinion by Justice Bailey.  The attorney listed for the City is James T. Jeffrey, Jr.  The attorneys listed for Wernert are Robert J. Wiley and Eric P. Dama.

Texas judge’s successfully reverse injunction in federal court regarding system for setting bail for indigent misdemeanors

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ODonnell v. Harris County, et al.,  No. 18-20466 (5th  Cir. Aug. 14, 2018).

Plaintiffs brought a class action against Harris County and numerous officials, including judges and hearing officers under §1983 asserting the system for setting bail for indigent misdemeanor arrests violates their due process and equal protection rights. They obtained a preliminary injunction preventing the use of the system, which the U.S. 5th Circuit reversed in part and remanded.   On remand, the injunction was adjusted. Now the County cannot hold indigent arrestees for the 48 hours preceding their bail hearing if the same individual would have been released had he been able to post bond. The County must release, on unsecured personal bond, all misdemeanor arrestees who have not had a hearing and individual assessment within 48 hours. Fourteen Judges filed an emergency motion with U.S. 5th Circuit, requesting a stay of only four sections of the injunction dealing with these provisions.

The court analyzed the mandate rule. “[T]he mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Remand is not the time to bring new issues that could have been raised initially. Despite the district court’s diligent and well-intentioned efforts Section 7 of the injunction easily violates the mandate, which explicitly found that individualized hearings would remedy the identified procedural violations. The requirement that such a hearing be held within 48 hours is applied to those who cannot afford the pre-scheduled bond. Individualized hearings fix that problem, so immediate release is more relief than required and thus violates the mandate rule. Further, the Due Process and Equal Protection Clauses do not require the release dictated by Section 7. Sections 8, 9, and 16 are likewise not constitutionally required. The Judges have made an adequate showing to satisfy the remaining elements. They and the public are harmed by enjoining the County’s bail system. And given their likelihood of success on the merits, any harm to Plaintiffs, standing alone, does not outweigh the other factors.

If you would like to read this opinion, click here. Panel consists of Justice Smith, Justice Graves and Justice Duncan. Dissenting opinion by Justice Graves.