Mere acknowledgment a police report exists does not establish actual notice of claim because the existence of an investigation alone is insufficient to demonstrate actual notice says 13th Court of Appeals

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City of Mission, Texas v. Lucila Gonzalez, 13-20-00138-CV, (Tex. App – Corpus Christi & Edinburg, July 22, 2021)

This is a premise liability case under the Texas Tort Claims Act (“TTCA”) where the Corpus Christi & Edinburg Court of Appeals reversed a denial of the City’s plea to the jurisdiction and dismissed the claims.

Gonzalez was taking the trash out at her residence when she slipped and fell, striking her right knee on the ground. It is undisputed that the fall occurred on private property. However, Gonzalez alleges the area where she fell was muddy “because of negligent repair work to a water line rupture” by City employees. City firefighters emptied the water line across the street from her residence. Gonzalez alleges that the released water flowed across the street, causing the muddy condition and her fall. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Under the TTCA, a governmental unit must be given notice of a claim against it not later than six months after the day that the incident. The letter of representation Gonzalez sent to the City does not comply with the written notice requirements of § 101.101 because it fails to reasonably describe the incident, the injury claimed, or the time and place of the incident. Gonzalez asserted the police report established actual notice of claim; however, no police report was in the record. The City’s mere acknowledgment a police report exists does not raise a fact issue because the existence of an investigation alone is insufficient to demonstrate actual notice.  Nothing else in the record indicates actual knowledge of the claim sufficient under the TTCA. The plea should have been granted.

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

Dallas Court of Appeals holds coordination of extra-duty assignments for police officers is a governmental function – Plaintiffs required to provide proper notice of claim under TTCA

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Town of Highland Park v. Tiffany Renee McCullers, individually and for the benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, and Sonya Hoskins, et al, 05-19-01431-CV, (Tex. App – Dallas, June 29, 2021)

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

The Town had a program to provide extra-duty work to various police officers in the area, but which was at the request of private citizens. The Town offered a security service assignment to Southern Methodist University (“SMU”) police officer Calvin Marcus McCullers (“Officer McCullers”) to guard a private residence under construction. After accepting the assignment, Officer McCullers sat for just over an hour in his car on the property. The National Weather Service issued a severe thunderstorm warning. Heavy rains occurred over the property so much that water rose up the sides of his vehicle. Seconds later, Officer McCullers opened the passenger door, stepped out of the vehicle, lost his footing, and the water swept him and his vehicle over an embankment at the edge of the Property. Officer McCullers did not survive. The family sued the City under general negligence and premise liability theories. The Town filed a plea to the jurisdiction, which was denied. The Town appealed.

It is undisputed that Plaintiffs did not provide written notice to the Town of their claims within six months of the accident, however, the Plaintiffs assert the Town had actual notice of the claims. Actual notice under section 101.101(c) requires evidence that the government had knowledge of its alleged fault in causing or contributing to the claimant’s injury. The issue is not whether the City should have made the connection between injury and responsibility as alleged, but whether the City made the connection or had knowledge that the connection had been made. The Town (i) acted on and investigated Officer McCullers’s request for rescue and (ii) learned of Officer McCullers’s death. However, those acts and the knowledge of Officer McCullers’s death are not sufficient to establish actual notice under the TTCA. Further, even if the Town had knowledge of the area’s general propensity for flooding, such is insufficient. The Texas Supreme Court has held the City’s knowledge of torrential rains did not establish actual knowledge of flooding at a specific location. As a result, no notice was provided.  Further, as to the Plaintiff’s premise liability claim, the Town did not own the property. Plaintiffs assert the Town had an easement on the property. However, the record shows that (i) the Town had neither a possessory interest nor an ownership interest in the land located within the easement, (ii) the easement did not give the Town authority to control or maintain the land located within the easement, and (iii) the Town had not used the easement for some years before July 5, 2016.  Finally, the actions of the Town were not proprietary. TTCA section 101.0215 enumerates “police and fire protection and control” as the first in the statutory list of governmental functions. The extra-duty jobs were provided only to certified law enforcement officers.  Officer McCullers was serving in a police capacity at the time of his death. As a result, the plea should have been granted.

The Concurring opinion focused more on the proprietary-governmental dichotomy. Texas courts have consistently held that when a city’s police activities are aimed at crime prevention, such activities are necessarily governmental. Since such was a governmental function, Plaintiffs failed to provide proper notice.

The Dissent would hold the coordination of off-duty officers was proprietary. The Town coordinated private security services for private property owners, not the general public.

Panel consists of Chief Justice Burns, and Justices Pedersen and Goldstein. Reversed and dismissed. Opinion by Justice Pedersen can be read here. Dissenting opinion by Chief Justice Burns can be read here. Concurring Opinion by Justice Goldstein can be read here. Docket page with attorney information found here.

Tyler Court of Appeals holds Tort Claims Act notice must list specific claimants in order to waive immunity

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Leondra Leach v. The City Of Tyler, 12-21-00004-CV (Tex. App. – Tyler June 9, 2021).

This is a Texas Tort Claims Act (“TTCA”) premise defect case where the Tyler Court of Appeals affirmed the trial court’s order dismissing the case for lack of proper notice.

Leach asserts he was injured when a piece of board flew from a City “roll-off” truck as it passed Leach on the roadway. The board struck the truck he was driving and entered the driver’s side window, striking him in the head. Leach’s employer submitted a notice of claim using a Claims Notice form provided by the City, but did not fill in certain fields as to Leach. Leach did not fill out his own form. After Leach filed suit, the City filed a no-evidence motion for summary judgment as to proper notice under the City’s charter and ordinance, which the trial court granted.  Leach appealed.

Ameri-Tex (Leach’s employer) listed itself alone as the “claimant” and omitted Leach’s name from that field. Section 101.101(a) speaks to the governmental unit’s entitlement to receive a notice of a claim along with the damage or injury claimed. Ameri-Tex listed only its property damages under the provision for the amount of claim. The court noted that had Ameri-Tex made some reference to Leach’s damages in the “amount of claim” section, even if such damages were described as “unknown at this time,” its earlier omission of Leach as a “claimant” would be less critical. However, part of the purpose behind the notice provision is that the entity has an awareness of its fault as ultimately alleged and an incentive to investigate the allegations to assess its exposure to liability because it no longer is protected by the shield of immunity.  Without knowledge of the identity of a potential claimant and the knowledge this additional claimant will make personal injury claims as opposed to merely property damage claims, the entity does not have the same incentive. Notice which does not convey the “perceived peril” that would serve the notice requirement’s purpose is insufficient.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Memorandum opinion by Justice Neeley.

 

Fort Worth Court of Appeals holds oral pronouncements from bench cannot be considered when appealing a written order granting Town’s plea to the jurisdiction

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John Artuso v. Town of Trophy Club, Texas, 02-20-00377-CV, (Tex. App – Fort Worth, May 13, 2021)

This is a negligence, taking,  and declaratory judgment action where the Fort Worth Court of Appeals affirmed the granting of the Town’s plea to the jurisdiction.

Plaintiff Artuso sued the Town of Trophy Club for negligence and gross negligence with regard to his home’s placement in the Town’s Public Improvement District No. 1 (PID) and the special assessments imposed in the district. Artuso asserted he timely paid all assessments and even overpaid. He requested the Town credit his account for previously over-assessed amounts, which he characterized as a taking. He claimed that the manner in which the Town apportioned the PID costs was arbitrary and capricious, amounting to a violation of his due process rights, and he complained that the Town had not responded to his assessment-reduction petition. The Town filed two pleas to the jurisdiction, which were granted. Artuso appealed.

Artuso’s argument that the trial court’s oral statements about the grounds for granting the plea were improper. The trial court’s signed order listed no grounds.  The appellate court asserted it could not look to the oral statements in the record, only to the wording of the actual written order. By applying this policy, the courts and parties are relieved of the obligation to “parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.” Because Artuso has failed to challenge all of the grounds upon which the Town’s motion could have been granted, and failed to brief all grounds, the court of appeals affirmed the granting of the dispositive motions.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, and Justices Kerr and Womack. Memorandum Opinion by Chief Justice Sudderth. Docket page with attorney information found here.

Eastland Court of Appeals holds City failed to obtain ruling on special exceptions, therefore it could not complain about a lack of factual specificity in the pleadings within its plea to the jurisdiction

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City of Odessa, Texas v. AIM Media Texas, LLC d/b/a The Odessa American, 11-20-00229-CV  (Tex. App. – Eastland, May 13, 2021).

This is a Public Information Act (“PIA”) case where the Eastland Court of Appeals held the Plaintiff had properly fallen under the jurisdiction of the PIA.

AIM Media, a newspaper company, sued the City for mandamus under the PIA asserting the City failed to timely provide the information requested and improperly redacted information. The City asserted it provided all information and that AIM Media plead conclusory allegations only, with no facts. The City asserts it filed special exceptions to the bare pleadings then filed a plea to the jurisdiction, which was denied. The City appealed.

The court noted the City challenged the pleadings only, so the pleadings were taken as true for purposes of the plea. The PIA allows a requestor to sue for mandamus.  While the court appeared to acknowledge that a lack of factual allegations can be grounds for a plea, the court held the City failed to obtain a ruling on their special exceptions. As a result, whether the special exceptions properly put AIM Media on notice of any jurisdictional defects was not before the court. Taking the pleadings as true, the court held AIM Media pled the minimum jurisdictional requirements.  The plea was therefore properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Trotter and Justice Williams. Opinion by Chief Justice Bailey.

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.

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.

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.

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.

 

Property owner not entitled to de novo review of nuisance determination says Austin Court of Appeals

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Mark Groba v. The City of Taylor, Texas, 03-19-00365-CV (Tex. App. – Austin, Feb. 3, 2021)

In this nuisance abatement case, the Austin Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Groba, a real property owner, was subject to an enforcement action in the Municipal Court of Taylor, acting in an administrative capacity.  The court conducted a hearing and issued an order granting the City’s application to declare Groba’s property a nuisance under chapter 214 of the Texas Local Government Code. The municipal court later issued an order declaring that Groba failed to comply with its original order to clean up the nuisance. The City then filed a Chapter 54 lawsuit to enforce it’s ordinances and the orders in district court. The City sought injunctive relief related to its nuisance determination, including authorizing the City to demolish the building and charge the costs for doing so to Groba. The City also sought civil penalties.  The trial court issued an injunction order allowing the City to demolish the building, which the City did.  The day after the demolition, Groba filed a counterclaim for declaratory judgment and trespass, arguing that he was entitled to a jury trial on the nuisance determination. The City filed a plea to the jurisdiction, which the trial court granted. Groba appealed.

After receiving a copy of the municipal court order, Groba did not appeal and, thus, did not comply with the jurisdictional prerequisites for judicial review of the nuisance determination.  Groba asserted he was entitled to de novo review of the City’s nuisance determination, and even if he had failed to timely appeal the nuisance determination, the City is estopped from asserting a jurisdictional challenge to his request for a jury trial because the City “misled” him by filing “multiple proceedings” and by dismissing the criminal municipal-court case after he had requested a jury trial. A property owner aggrieved by a municipality’s order under § 214.001 may seek judicial review of that decision by filing a verified petition in district court within thirty days of receipt of the order. A court cannot acquire subject-matter jurisdiction by estoppel. The City’s enforcement of an ordinance may be estopped, but only in exceptional circumstances that are not present. But subject-matter jurisdiction is still not conferred through estoppel.  Further, contrary to Croba’s assertions, the Texas Supreme Court’s opinion in City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) does not give him an unconditional right to de novo review of a nuisance determination. A de novo review is required only when a nuisance determination is appealed, which Croba did not perform.

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

Austin Court of Appeals holds temporary injunction order need not set a specific trial date, but must place the case for trial on the court’s calendar, otherwise the order is void

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Hegar, Comptroller of Public Accounts of State of Texas, et al., v Zertuche Construction, LLC, 03-19-00238-CV (Tex. App. – Austin, Jan. 22, 2021).

This is a tax collection case, but the main thrust is the procedural ruling on injunctions where the Austin Court of Appeals held that Zertuche Construction’s temporary injunction order was void due to a lack of trial setting.

The Comptroller audited Zertuche’s sales-and-use tax report, determined it owed additional taxes, and imposed penalties and interest. After a decision upholding an assessment of approximately $2.6 million, Zertuche submitted a written protest letter and followed the procedural steps for challenging the holding. Zertuche filed suit challenging the assessment and seeking an injunction to prohibit the Comptroller from taking action to collect the taxes owed under the assessment. The Comptroller responded by filing a plea to the jurisdiction. The trial court conducted a combined hearing on the Comptroller’s plea to the jurisdiction and Zertuche’s application for a temporary injunction to enjoin tax collection. The trial court issued a temporary injunction order prohibiting tax collection, but did not rule on the plea. The Comptroller and AG appealed.

Rule 683, dealing with temporary injunction orders,  requires that an order granting a temporary injunction state the reasons for its issuance and set “the cause for trial on the merits with respect to the ultimate relief sought.” See Tex. R. Civ. P. 683. The trial court’s order stated “[t]he parties will set this matter for trial as soon as possible after the resolution of EBS Solutions [case pending in Texas Supreme Court] if Defendants’ Plea to the Jurisdiction and Motion to Dismiss for Lack of Jurisdiction is denied by this Court.” Thus, rather than set a date for trial, the order provides that the parties will set the matter for trial. Although a specific trial date need not be set in the order, the order must “set the cause for trial on the merits” and that “rule 683 implicitly requires the injunction to order the cause be calendared on the trial court’s docket.” Because the temporary injunction order does not set the cause for trial on the merits the Court of Appeals determined the order was void.

If you would like to read this opinion click here. Panel consists of e Justices Goodwin, Baker, and Kelly. Memorandum Opinion by Justice Kelly.

14th Court of Appeals holds ex-employees trigger date to file a charge of discrimination only occurs when employer’s discriminatory animus becomes sufficiently clear and he has suffered a tangible employment action

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Metropolitan Transit Authority of Harris County, Texas v. John Carter, 14-19-00422-CV (Tex. App. – Houston [14th Dist.], January 14, 2021)

This is an employment dispute where the 14th Court of Appeals affirmed the denial of a plea to the jurisdiction filed by the Metropolitan Transit Authority (Metro).

Carter worked as a bus operator for Metro. In 2014 Carter was involved in a vehicle accident that Metro categorized as “preventable.”  Carter’s union representative requested a reconsideration. Due to polio as a child, Carter walked with a noticeable limp. When reviewing the video of the accident, the superintendent (Ramirez) believed Carter did not have sufficient leg strength to lift his leg off the accelerator and instead had to use his arm to move his leg off the accelerator and onto the brakes. Cater had to submit to a fitness-for-duty evaluation and was held to be capable of performing the job. Ramirez refused to put Carter back to work. Ramirez required Carter to pass a Texas Department of Public Safety Skilled Performance Evaluation (SPE) to determine if he was capable of driving commercial vehicles, which had not been done by Ramirez before. However, Carter passed. From June 2014 to January 2016, Metro moved Carter from place to place within the agency. In January 2016, after receiving notification that Carter had not passed the January 2016 medical examination, Metro placed Carter on involuntary medical leave. However, Carter had received a 2015 medical certificate noting he could operate commercial vehicles. At this point, Carter filed a charge of discrimination.  In March of 2017, Metro terminated Carter. Carter sued for disability and age discrimination and retaliation. Metro filed a plea to the jurisdiction, which was denied. Metro appealed.

The court first held Carter’s claims were not time-barred. Even though he was on notice in 2014 that he may have been subject to discrimination, his wages did not change and he was not otherwise impacted until placed on medical leave in 2016. He timely filed his charge of discrimination in 2016 and was terminated in 2017. The court specifically stated “[i]t was only when Metro placed Carter on involuntary medical leave even though he possessed a valid, two-year CDL and DOT medical certification, that Metro’s discriminatory animus became sufficiently clear and he had suffered a tangible employment action, that Carter was required to file a charge of disability discrimination.”  As a result, he timely filed his charge and brought suit. The court then held that fact issues exist as to the remaining aspects of the disability discrimination and retaliation charges.

If you would like to read this opinion click here. Panel consists of   Chief Justice Christopher, Justice Wise and Justice Zimmerer. Memorandum Opinion by Justice Zimmerer. Docket page with attorney information found here.

El Paso Court of Appeals holds courts analyze the substance of pleadings, not the form of creative pleadings trying to reframe the claims.

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Joseph O. Lopez v. The City of El Paso, 08-19-00123-CV (Tex. App.—El Paso Dec. 9, 2020)

This is an interlocutory appeal from the trial court’s order granting the City’s plea to the jurisdiction in which the El Paso Court of Appeals affirmed.

Plaintiff, Joseph O. Lopez sued the City of El Paso, for alleged injuries he sustained as the result of an arrest by two City police officers.  Lopez alleged that during the arrest, the officers forcefully pulled him from his vehicle; flung him to the ground, pinned him and applied pressure on his torso, head, and neck.  He also asserts one of the officers struck him in the head multiple times.  Lopez further alleged that the officers negligently employed a baton while using excessive force. The City filed a plea to the jurisdiction, which was granted.

On appeal, the Eighth Court of Appeals addressed the sole issue of whether the trial court abused its discretion by deciding that Appellant had failed to allege sufficient facts to support a waiver of immunity under the Texas Tort Claims Act (“TTCA”).  First, the court noted that § 101.106(a) bars a plaintiff from suing city employees once the plaintiff has elected to sue the city first, even in cases where city employees might otherwise be solely and personally liable in their individual capacities.  The court then acknowledged Lopez had creative pleading in an attempt to avoid characterizing the officers’ conduct as an intentional tort.  It noted that when courts analyze a plaintiff’s pleadings to determine the existence of waivers of immunity, courts look at the substance of the pleadings, not to their characterization or form. The TTCA does not apply to intentional acts including assault, battery, false imprisonment, or any other intentional tort.  In this case, the police conduct alleged by Lopez, the substance of his claims, fell under the category of intentional torts, specifically assault and battery, not negligence.  As a result, the alleged tortious conduct did not sustain a waiver of immunity under the TTCA.  The plea was properly granted.

 

If you would like to read this opinion click here.  Panel consisted of Chief Justice Jeff Alley and Justices Yvonne Rodriguez and Gina Palafox.  Opinion by Justice Rodriguez.  Docket page with attorney information can be found here.

 

14th Court of Appeals holds describing the general place where an injury occurs is sufficient for Tort Claims Act notice.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Metro. Transit Auth. of Harris County v. Tracey Carr, No. 14-19-00158-CV (Tex. App.—Houston [14th]  January 12, 2021) (mem. op.).

In this appeal from a trial court’s order denying the city’s plea to the jurisdiction in a vehicle accident tort claims case, the 14th Court of Appeals affirmed the denial.

The plaintiff sued the transit authority after she was injured on a bus.  The plaintiff was injured when boarding a bus due to the driver’s sudden acceleration.  The plaintiff alleged that the injury occurred on October 25, 2017 on or around 7:15 p.m. near a specific intersection on Bus 3578.  She stated that the driver was male and either Hispanic or Caucasian.  The plaintiff injured her back, neck, and spine.  The plaintiff notified the transit authority of this information within six months of her alleged injury.  The transit authority filed a plea to the jurisdiction asserting the notice was insufficient because she gave the wrong bus number in her notice.  The trial court denied the Authority’s plea to the jurisdiction and the Authority appealed.

A plaintiff is required to present written notice to the governmental entity within six months of an injury that could give rise to a claim under the Texas Torts Claim Act.  The notice has to “reasonably” describe the injury or damage, the time and place of the incident in question, and the facts of the incident.  Tex. Civ. Prac. & Rem. Code § 101.101(a).  Whether a notice provided to the governmental entity is timely and adequate is a question of law for the court to decide.  The court of appeals upheld the trial court’s denial of the transit authority’s plea to the jurisdiction, holding that the plaintiff’s notice was sufficient because she provided notice of the location, the injury, and the facts of the injury.   The description was sufficient with the street intersection despite the allegation that the bus number of the bus where the accident occurred was incorrect.

If you would like to read this opinion click here.   Panel consists of Chief Justice Christopher and  Justices Wise and Zimmerer. Opinion by Justice Ken Wise.