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.

 

Third Court of Appeals holds church’s motion for new trial in water rate EDJA case held valid given unique and troubling circumstances in case

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City of Magnolia v Magnolia Bible Church, et al., 03-19-00631-CV (Tex. App. – Austin, Dec. 18, 2020)

This is an interlocutory appeal from an order granting a new trial and denying a plea to the jurisdiction in a water rate case in which the Austin Court of Appeals affirmed the granting of new trial and the denial of the City’s plea.

This case involves the interplay between the provisions of the Expedited Declaratory Judgment Act (“EDJA”)(which deals with public securities), the Texas Rules of Civil Procedure, and the constitutional principles of due process. The City adopted an ordinance relating to the City’s water-system rates. In addition to residential and commercial accounts, the ordinance created a new category of water user, the “Institutional/Non-Profit/Tax-Exempt accounts,” which, among others, covered churches.  The Churches opposed the new category and surcharge as being discriminatory under the Tax Code and the Texas Religious Freedom Restoration Act (“TXRFRA”).  The City preemptively filed a validation suit under the EDJA to validate the bonds and rates tied to the bonds, but only notified the public through newspaper publications. It did not expressly notify the church of the suit. The trial court granted the City’s validation of the rates. The Church later filed a regular Uniform Declaratory Judgment Act (“UDJA”) claim asserting the rates were discriminatory. When the City informed the Church of the final judgment under the EDJA claim, the church filed a motion for new trial in the EDJA trial court (under Tex. R. Civ. P. 329). The City filed a plea to the jurisdiction asserting the trial court lost plenary power over the case.  The trial court denied the plea and granted the motion for new trial. The City appealed.

Chief Justice Rose held that due process does not require personal service in all circumstances, but any use of substituted notice in place of personal notice—e.g., notice by publication—must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Notice by publication is insufficient when the name, address and interest are known.  The EDJA empowers an issuer of public securities to seek an expedited declaratory judgment concerning “the legality and validity of each public security authorization relating to the public securities,” including, as relevant here, the legality and validity of “the imposition of a rate, fee, charge, or toll.” Tex. Gov’t Code § 1205.021(2)(E). Ordinarily, notice by publication satisfies due process as to the parties bound by an EDJA judgment because the EDJA permits only in rem declarations concerning property rights and is notice to the public. However, in this case, the church challenged the application under religious freedom grounds.  Due process, therefore, requires more than notice by publication. Because notice to the Churches was constitutionally insufficient, the resulting judgment was void and can be challenged at any time. Justice Trianna took a slightly different approach, using the text of the EDJA and holding that it does not conflict with Rule 329 (allowing a new trial for persons who did not receive notice) and Rule 329 extends the plenary power of the court for a certain period of time.  Since the Church met the time periods under Rule 329, it was within the trial court’s discretion to grant or deny the motion or new trial.

Justice Baker’s dissent holds that such an interpretation undermines the intent of the EDJA which is to quickly decide the issue then preclude future claims from any other person who challenges the rate and bond applications.   He asserts Rule 329 only applies when a defendant (not an interested person) does not appear after service by publication.

If you would like to read the various opinions, Chief Justice Rose’s concurring opinion is here, Justice Trianna’s concurring opinion is here, and Justice Baker’s dissent is here.

The Sixth Court of Appeals affirmed the dismissal of TTCA case because the trial court was not required to review a late-filed amended petition in making its decision on summary judgment. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Raul Gonzales v. City of Farmers Branch, No. 06-20-00054-CV (Tex.App.—Texarkana  November 5, 2020) (mem. op.).

This is a Texas Tort Claims Act (“TTCA”)/vehicle accident case where the Texarkana Court of Appeals affirmed the trial court’s summary judgment in favor of the City.

The plaintiff was a passenger in a vehicle where a police officer shot and killed the driver of the vehicle.  The plaintiff alleged that the city negligently trained and supervised its officers and for reckless use of the firearm.   The city filed a plea to the jurisdiction and a motion for summary judgment arguing that the plaintiff’s claims were for intentional torts for which the city retains immunity.  The trial court granted the city’s plea to the jurisdiction and summary judgment, dismissing the plaintiff’s claims.  On the same day, the plaintiff filed an amended petition.  The plaintiff appealed the trial court’s judgment arguing that: (1) he should have been allowed to speak at the non-jury trial; and (2) that the trial court should have taken into consideration his late amended petition before issuing its judgment.

The court held that amended petitions must be filed within seven days of the date of a summary judgment proceedings or have leave of the court before being filed. Tex. R. Civ. P. 63;  Horie v. Law Offices of Art Dula, 560 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 2018, no pet.).  The court of appeals noted that no trial was held in this case, it was decided by summary judgment, and thus there was no trial for the plaintiff to be excluded from.  Further, the court held Gonzales did not appeal the dismissal on substantive grounds and only argued the amended petition should have been considered.  The court of appeals affirmed the trial court’s judgment dismissing the plaintiff’s claims because the plaintiff did not request leave to file the amended petition as required by the Rules of Civil Procedure.

If you would like to read this opinion click here.   Panel consists of  Chief Justice Morriss and Justices Burgess and Stevens. Opinion by Chief Justice Josh R. Morriss, III.

El Paso Court of Appeals held Governor’s executive orders control over county judge order in the event of conflicts

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State of Texas, et al v. El Paso County, Texas, et al., 08-20-00226-CV (Tex. App. – El Paso, Nov. 13, 2020).

This is an interlocutory appeal from the denial of the temporary injunction involving a conflict between the county judge’s executive order and the Governor’s executive order.  The El Paso Court of Appeals reversed the denial.

The Governor’s executive order GA-32 allows bars and open with reduced capacity in October of 2020. After the County had a surge in COVID-19 cases, El Paso County Judge Ricardo Samaniego issued an executive order including a stay at home mandate and eliminating social gatherings not confined to a single household. While it listed several permitted essential services, bars were not included and restaurants could only allow curbside pickup.  The State and a collection of restaurants sued the County and the judge asserting the order was contrary to the Governor’s order. They sought a temporary injunction to prevent enforcement of the County Judge’s order, which the trial court denied. Plaintiffs appealed.

The court first wanted to make clear that it was not deciding on the wisdom of either order, only the statutory construction provision as to which controlled over the other. The Governor’s order contains a preemption clause countermanding any conflicting local government actions, but the County order states any conflict requires the stricter order to apply. County judges are deemed to be the “emergency management director” for their county. The Texas Disaster Act contemplates that a county judge or mayor may have to issue a local disaster declaration and has similar express powers to those issued to the Governor. However, a county judge is expressly referred to as the “agent” of the Governor, not as a separate principle. Further, even if the County judge had separate authorization, the Legislature has declared the Governor’s executive order has the force of law. State law will eclipse inconsistent local law. Additionally, the Act allows the Governor to suspend the provisions of any regulatory statute within an executive order, which would include the County order.  The court then analyzed the standards for a temporary injunction and held the trial court erred in denying the injunction.  Finally, the court concluded by stating how essential the role of a county judge is when managing disasters and emergencies and that their opinion should not be misunderstood. The Governor’s order only controls over conflicts, and any provision of the County order which can be read in harmony remains enforceable.

Justice Rodriguez’s dissent opined that the Governor exceeded the authority provided by the Disaster Act. In his view, “the Governor has taken a law that was meant to help him assist local authorities by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities as a bureaucratic obstacle to…”  a once-size-fits-all coronavirus response plan.

If you would like to read this opinion click here. The dissent by Justice Rodriguez is found here. Panel consists of Chief Justice Alley, Justice Rodriguez and Justice Palafox.  Opinion by Chief Justice Alley.

Austin Court of Appeals holds that under the Civil Service Act applied to police officers, a reinstatement list must factor in seniority in the position being demoted and not seniority in the department

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Bradley Perrin v. City of Temple, et al, 03-18-00736-CV, (Tex. App – Austin, Nov. 6, 2020)

This is an employment dispute in a civil service police department with crossclaims and a host of procedural matters. The Austin Court of Appeals ultimately held the Plaintiff was entitled to the promotional position of corporal.

Perrin and Powell were serving as police officers for the City and took the written examination for promotional eligibility to the rank of corporal.  Five officers passed, including Perrin and Powell. The results were publicly posted on a certified list with Powell being third and Perrin being fifth. Then, the Director added seniority points, but made Perrin third and Powell fifth. The City Defendants and Powell contend that the Director erred in adding the seniority points and did so incorrectly. However, before the list expired, the City eliminated four corporal positions and created two new lieutenant and two new sergeant classifications. The Chief sent out a memo stating the sequence of events should have resulted in the promotion of Officers Mueller, Perrin, Powell and Hickman to corporal, and then the immediate demotion back to the rank of police officer, and placement on a Re-Instatement List for the period of one year. The reinstatement list listed Powel higher than Perrin due to seniority points being included. Perrin sued the City Defendants for a list status higher than Powell under declaratory judgment and ultra vires claims.  The City Defendants counterclaimed, seeking declaratory relief that Powell was entitled to the promotion and Powell intervened. The trial court issued an order denying Perrin’s plea to the jurisdiction and motion for summary judgment and granting the City Defendants’ and Powell’s motions for summary judgment. Perrin appealed.

The court first held the legislature waived immunity for dissatisfaction with the grading in §143.034(a) of the Texas Local Government Code, which permits an “eligible promotional candidate” who is “dissatisfied” with “the examination grading” to “appeal, within five business days, to the commission for review.” To the extent that Powell is relying on the UDJA to challenge “the examination grading” such is precluded due to the redundant remedy doctrine. Powell’s ultra vires claim is not dependent on the remedies so is permitted to move forward for prospective relief only, but since Powell sought a reevaluation of the promotion list, that is not prospective. The trial court erred in granting Powell’s summary judgment for retrospective relief to alter the list. conclude that the City Defendants’ counterclaim requesting declaratory relief did not rise to a justiciable level and therefore the district court lacked subject matter jurisdiction over the counterclaim. It is the promotional eligibility list that provided the rights and status of the parties as to their initial promotion to corporal. Whether Perrin was erroneously placed ahead of Powell on the promotional eligibility list does not affect the rights and status of the parties under that list because, on this record, there is no mechanism by which the expired list may be retroactively amended.  By providing a unilateral right of review only to officers, the Civil Service Act is not thereby permitting a declaratory judgment action through which the City Defendants may challenge the decision of the Director in making the list.  However, for the reinstatement list, the context of the statute makes clear that the reinstatement list is created by the demotion of officers who have “least seniority in a position” and that the list “shall” be “in order of seniority.” The court determined that “seniority” in section 143.085(a) refers to seniority in the corporal position, not seniority in the Department.  So, when multiple individuals are promoted to open vacancies from a promotional eligibility list at the same time and then demoted at the same time, “seniority” for the reinstatement list is determined by the order of the promotional eligibility list.

If you would like to read this opinion click here. Panel consists of Justices Goodwin, Kelly, and Smith. Memorandum Opinion by Justice Goodwin. Docket page with attorney information can be found here.

The U.S. Fifth Court of Appeals held plaintiffs had standing to challenge zombie law provision in charter despite the election being over.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Joe Richard Pool, III, et al. v. City of Houston, et al., No. 19-20828 (5th Cir.  October 23, 2020).

In this appeal from a trial court’s dismissal of an election case.   The U.S. Fifth Circuit reversed the trial court’s dismissal and held that the plaintiffs had standing to continue the suit for future petitions.

The plaintiffs are petition circulators who attempted to circulate a petition in the city where they are not registered voters.  The city stated that it had a charter provision that required petitions to be circulated or signed by registered voters, but that they were going to look into the issue.  While the city was researching the issue, the plaintiffs filed suit in federal district. The district court held that the charter provision was unconstitutional and granted the temporary restraining order preventing enforcement.  After the petition period was over, the trial court dismissed the case as moot. The plaintiffs appealed. During the litigation, the city added an “editor’s note” to its charter that it would accept petitions from anyone and had a link to a new form regarding such.  The city argues that it will not be enforcing the provision and has approved a form and notation to that effect which should preclude a permanent injunction case.

When laws are deemed unconstitutional they are not always updated or removed from documents.  These are called zombie laws.  The Houston Charter has a provision that limits petition signers to registered voters.  This type of law was deemed unconstitutional in 1999 but was not removed from the city’s charter.  See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999).  In order to show standing to overturn such a zombie law, plaintiffs must show that they are “seriously interested in disobeying, and the defendant seriously intent on enforcing, the challenged measure.” Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014).  The Fifth Circuit held that it was clear that the plaintiffs would continue to try to submit petitions despite not being registered voters and that the city’s notation and form were insufficient to prevent enforcement.  The court held that the plaintiffs have standing and could continue their suit against the city for future petitions.

If you would like to read this opinion click here.   Panel consists of  Justices Graves, Costa, and Engelhardt. Opinion by Circuit Judge Gregg Costa.

 

14th District Court of Appeals holds all elements of a circumstantial-evidence retaliation claim (including pretext) are jurisdictional, plus court lacked jurisdiction over Plaintiff’s discrimination claim

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Margaret Fields v. Houston Indep. Sch. Dist., 14-19-00010-CV (Tex. App.—Houston [14th Dist.] Oct. 15, 2020)

This is an employment discrimination and retaliation case where the Houston Court of Appeals (14th Dist.) affirmed the granting of the school district’s plea to the jurisdiction.

Fields enrolled as a teacher intern in the Houston Independent School District (“HISD”) alternative-certification program as a means of becoming a full-time teacher for HISD.  An alternative-certification committee served as the final decision-making authority.  It reviewed and evaluated Fields, who had difficulty with performance.   After exhausting several performance enhancement plans, the committee dismissed Fields from the program.  After receiving her right to sue letter, Fields sued for discrimination and later retaliation. HISD filed a plea to the jurisdiction, which was granted. Fields appealed.

The Fourteenth Court of Appeals first held Fields’ retaliation charge was factually related to her discrimination charge. Therefore, even though Fields did not file or amend her discrimination charge to include retaliation, she was not required to in order to bring suit.  Next, the court recognized NISD presented evidence of legitimate, non-discriminatory reasons for the discharge, which Fields was unable to rebut to establish pretext under her discrimination charge. Fields then argued her retaliation charge should stand because she is not required to establish pretext as a jurisdictional requirement because the jurisdictional requirement applies only to a prima facie case.   The court disagreed. When an employer presents jurisdictional evidence rebutting the prima facie case, the presumption of retaliation disappears.  The employee must present sufficient evidence of pretext to survive a plea to the jurisdiction.  All elements of a circumstantial-evidence retaliation claim are jurisdictional. Because Fields failed to present any evidence of pretext on the part of HISD, she failed to establish a waiver of immunity.  As a result, the plea was properly granted.

If you would like to read this opinion click here.  Panel consisted of Justices Tracy Christopher, Ken Wise, and Jerry Zimmerer.  Opinion by Justice Jerry Zimmerer.

 

 

U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

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U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

Ralph Clay Walsh, Jr. v. Lisa Hodge, et al., 19-10785, 2020 WL 5525397 (5th Cir. Sept. 15, 2020)

This is an appeal from Walsh’s §1983 claim alleging a violation of procedural due process in a disciplinary hearing.

Walsh, a former university professor, was accused of sexual harassment by a student at a conference. The university hired an attorney who investigated the claim and concluded that the student’s claim was substantiated. The dean of the university recommended termination. Walsh appealed and was sent a letter containing the procedure for the appeal. During the appeal, the attorney who investigated the claim was questioned but not the student. Walsh was terminated, then filed a §1983 claim against the university and various professors and school administrators asserting he was not allowed to confront his accuser. The individual defendants moved for summary judgment on grounds of qualified immunity which was partially granted and partially denied. Defendants appeal the denial.

The 5th Circuit rested their analysis on a two-pronged test: 1) whether Walsh suffered a procedural due process violation as a matter of law, then 2) whether Defendants’ conduct was objectively unreasonable in light of clearly established law at the time of the incident. The 5th Circuit found the first prong to be satisfied as, even when balancing private and public interests, Walsh had a right to have his accuser present to answer questions and raise the issue of credibility. Regardless, the 5th Circuit did not find that there was clearly established law for procedures necessary to protect a professor’s interest in avoiding career destruction after being accused of sexual harassment.   The 5th Circuit goes on to acknowledge that its sister circuits, as well as federal regulatory agencies, are split on the matter. Therefore, “[b]ecause of…conflicting, inconclusive language in past cases, [the 5th Circuit] cannot find that Defendants ‘knowingly violate[d] the law.’” The 5th Circuit ultimately reversed the district court’s denial of the qualified immunity argument in the summary judgment motion and rendered judgment in favor of the individual Defendants.

If you would like to read this opinion, click here. Panel consists of Justices Davis, Jones, and Engelhardt.

Plaintiff failed to allege breach of heightened burden under Recreational Use Statute, but should be given opportunity to amend holds Fort Worth Court of Appeals

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The City of Fort Worth v. Wesley Rust, 02-20-00130-CV (Tex. App. – Fort Worth, Oct. 22, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”)/Recreational Use Statute (“RUS”) case.

Plaintiff Rust was injured at a municipal golf course when his city-owned golf cart (Cart #60) unexpectedly accelerated, causing Rust to fall out of the cart. Rust alleges the accelerator pedal became dislodged and stuck behind the brake pedal causing the acceleration. Rust sued under the TTCA asserting a waiver of immunity due to a dangerous condition of tangible personal property—the golf cart.  The City filed a plea to the jurisdiction which was denied. The City appealed.

Texas law provides that if a landowner gives permission to another to enter his premises for recreation, the RUS limits that landowner’s liability to only those actions that were intentional or grossly negligent. The Recreational Use Statute limits the Tort Claims Act’s waiver of governmental immunity by lowering the duty of care owed to a person who enters and engages in recreation on a governmental unit’s property. While Rust argues this interplay between the RUS and TTCA is limited to claims involving motor-vehicle accidents or premise liability, the court was not persuaded. The plain language of the RUS states that it applies to governmental landowners even to the extent their immunity might be waived under the entire chapter of the TTCA, not merely a specific subsection.  Therefore Rust did not alleged a waiver of immunity.  While Rust also asserts factual questions exist which prevent granting the plea, Rust failed to meet the initial burden to properly plead a waiver. The court held “If we were to search for a fact issue on the City’s gross negligence, it would relieve Rust of his burden to allege facts giving fair notice of a waiver of immunity under the TCA as limited by the RUS.” So, it declined to review the factual evidence. However, the court noted the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, so Rust should be permitted to amend his pleadings to allege gross negligence.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr and Justice Bassel.  Opinion by Justice Gabriel.

 

The Eighth Court of Appeals dismissed a pro se appellant’s case because the appellant failed to file a reporter’s record and the appellant’s briefing was fatally inadequate. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Claudia Brown, Justice of the Peace for Precinct 4, Place #1 v. State of Texas, No. 08-19-00110-CV (Tex. App.—El Paso October 12, 2020).

In this appeal from an elected official removal case, the pro se appellant appealed from her removal by the trial court for misconduct and incompetence.  The Court of Appeals affirmed the trial court’s removal because the appellant failed to adequately brief her appeal and failed to submit a reporter’s record, which is required of all appellants, including pro se appellants.

The appellant was the Justice of the Peace for Bell County.  The Bell County Attorney filed suit against the appellant to have her removed from office for official misconduct and incompetence. The charges were upheld by a jury after a three-day trial.  The appellant appealed the decision as a pro se litigant (although the appellant was represented at the trial court).  The clerk’s office filed the clerk’s record in the appellant’s appeal, but the appellant did not file the reporter’s record although it existed and the appellate court requested it multiple times.  The appellant filed brief with attachments that either: (1) did not exist in the trial court; or (2) referenced the unfilled reporter’s record.  The court of appeals affirmed the trial court’s judgment holding that the appellant waived her issues on appeal with inadequate briefing and the lack of a reporter’s record.

“A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Hughes v. Armadillo Prop. for Lina Roberts, No. 03-15- 00698-CV, 2016 WL 5349380, at *2 (Tex.App.–Austin Sep. 20, 2016, no pet.)(mem. op.); Robb Horizon Comm. Improvement Ass’n, Inc., 417 S.W.3d 585, 590 (Tex.App.–El Paso 2013, no pet.).”  The Texas Rules of Appellate Procedure require that briefing provide the issues for review with clear arguments and references to the record.  If a reporter’s record is not filed, the court can only review those issues that can be determined by the clerk’s record.  Tex.R.App.P. 37.3(c)(1). Also, attachments that are not in the record cannot be considered by the appellate court. Tex.R.App.P. 34.1.  The appellate court gave the appellant multiple chances to cure these issues.

The Court of Appeals held that the appellant’s failure to clearly state her issues and the lack of a reporter’s record narrowed the court’s review to the clerk’s record required them to find that the trial court acted appropriately. The Court of Appeals affirmed the trial court’s order of removal.

If you would like to read this opinion click here.   Panel consists of Chief Justice Alley and Justices Rodriguez and Palafox. Opinion by Justice Yvonne T. Rodriguez.

 

San Antonio Court of Appeals holds forfeited councilmember can only seek reinstatement through quo warranto proceeding

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City of Leon Valley v. Benny Martinez, 04-19-00879-CV (Tex. App. – San Antonio, August 19, 2020, no pet. h.)

This is a council forfeiture case which the San Antonio Court of Appeals held could only be brought in a quo warranto proceeding.

Section 3.12 of the city charter describes the procedures for council investigations. Benny Martinez was a sitting city council member. After several complaints were filed against him for alleged charter violations the city council held §3.12 hearings. The city council ultimately declared he forfeited his place on the council and removed him. Martinez sued, alleging the procedures used to remove him from office violated his due process rights. He sought a declaratory judgment “to determine [his] right to be reinstated following his removal [from Place 4].”  The city filed a plea to the jurisdiction, which was denied. The city filed this interlocutory appeal.

A writ of quo warranto is an extraordinary remedy available to determine disputed questions about the proper person entitled to hold a public office and exercise its functions. See generally Tex. Civ. Prac. & Rem. Code § 66.001. The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning who may hold such office. The court held the plain and unambiguous language of the quo warranto statute confers standing exclusively on the State, not a private litigant. While Martinez asserted his removal was void (thereby trying to fall within an exception to the exclusivity), the court held none of Martinez’s factual allegations allege void acts, only voidable acts if proven. The plea should have been granted.

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

 

 

Amarillo Court of Appeals holds findings of fact and conclusions of law improper for plea to the jurisdiction and remanded annexation case for trial

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Hill, et al. v City of Fair Oaks Ranch, 07-19-00037-CV (Tex. App. – Amarillo, Sep. 16, 2020)(mem. Op).

This is an annexation dispute where the Amarillo Court of Appeals reversed the grant of the City’s plea to the jurisdiction and remanded for trial.

In 2015 and 2016, the City was a general-law municipality and it did not annex any properties during those years. In 2017 it became a home-rule city and later that year adopted eleven annexation ordinances. Property owners challenged five of the ordinances. The five annexations added 20% to the City’s geographic area. The property owners challenge one annexation for violating the 1000-ft width requirement, and all five asserting they exceeded the maximum amount allowed by law for annexations. The City filed a plea to the jurisdiction, which the trial court granted. The owners appealed.

Chapter 43 of the Texas Local Government Code (dealing with annexation) waives immunity in limited circumstances. The issue is therefore only one of standing where owners have standing to challenge void ordinances but not procedural irregularities in the adoption process. Here, the landowners challenged the City’s involuntary annexation of the five contested areas as being void ab initio.  While the court acknowledged the owners did not properly brief the 1000-ft arguments, they did properly allege the annexations exceeded the area allowed within a given year under § 43.055.  Those allegations, if proven, would establish that the City’s annexation ordinances are void, not merely voidable.  The court determined that because the plea must be analyzed “under the rubric of a summary judgment” findings of fact and conclusions of law are not proper because there has been no conventional trial on the merits and are superfluous.  In closing, the court noted the parties “would have this court drift into the merits by engaging in statutory construction of the relevant statutes and determining whether the City violated those statutes. Such an analysis would be premature and beyond the scope of a de novo review…”  As a result, the order granting the plea was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Pirtle, Parker and Doss.

Officers’ and City’s appeal dismissed by U.S. 5th Circuit because their dismissal “with prejudice” argument inapplicable when inmate could still get conviction reversed

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Kerry Max Cook v. City of Tyler, Texas, et al., 19-40144, 2020 WL 5268509 (5th Cir. Sept. 4, 2020)

This is an appeal and cross-appeal from a dismissal of Cook’s §1983 claim seeking damages suffered from a series of wrongful prosecutions, convictions, and imprisonment, which the U.S. 5th Circuit affirmed.

Kerry Cook filed a §1983 claim, alleging official misconduct via a series of wrongful prosecutions, convictions, and imprisonment. However, the district court, citing Heck v. Humphrey (512 U.S. 477 (1986)), found that a malicious prosecution §1983 claim does not accrue until his conviction is formally terminated in his favor, the Texas Court of Criminal Appeals vacates his conviction, and the State dismisses the indictment against him. The district court dismissed Cook’s suit “with prejudice to the claims being asserted again until the Heck conditions are met…” The City and officer Defendants appealed the dismissal as being without prejudice, insisting the dismissal must be with prejudice. Cook asserted the dismissal was not final, not appealable, and therefore the 5th Circuit lacked subject matter jurisdiction.

The 5th Circuit analyzed two questions: 1) whether the dismissal was with or without prejudice, and 2) whether the dismissal was final and appealable. To the first question, the 5th Circuit found that the dismissal language is taken near verbatim from non-prejudicial language recommended in Johnson v. McElveen (101 F.3d 423 (5th Cir. 1996)), when a trial court is dismissing a case under the condition that it may be reasserted if the Heck conditions are met. To the second question, the 5th Circuit held the dismissal was not final, and thus not appealable because the district court contemplated Cook satisfying the Heck conditions at a later date. The 5th Circuit contrasted this court’s Heck dismissal with other, appealable, dismissals where the issue to be determined was whether Heck was even applicable.

If you would like to read this per curiam opinion, click here. The panel consists of Justices Davis, Jones, and Willett.