Tyler Court of Appeals holds a motion for new trial did not extend the time to perfect an accelerated appeal

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SignAd, Ltd. V. The City of Hudson, 12-21-00056-CV, (Tex. App – Tyler, Sept. 15, 2021)

This case is mainly procedural, and the Tyler Court of Appeals held SignAd failed to timely file its notice of appeal, either as an interlocutory appeal or of a final judgment.

This is a billboard construction case where the City sought injunctive relief and civil penalties asserting SignAd violated its local ordinances. SignAd asserted counterclaims for declaratory judgment, compensation for loss of the billboard if ordered to remove it, inverse condemnation, unenforceability of the ordinance against SignAd, and 42 U.S.C. § 1983. The trial court issued various orders but the order of contention is a January 19, 2021 order granting the City’s first amended motion to dismiss for lack of subject matter jurisdiction. The parties disagree as to whether the January 19th order was a final order or is interlocutory. The order contained various findings including that SignAd lacks standing to bring its counterclaim for declaratory judgment, SignAd’s billboards exceed the size limitations for commercial signs, and that SignAd cannot maintain its billboards under the ordinance even if it achieved a total victory in this case.

The court of appeals held if the order is an appealable interlocutory order, the notice of appeal was due to be filed within twenty days after the judgment or order was signed, i.e., February 8.  SignAd filed its notice of appeal on April 13th.  SignAd’s motion for a new trial did not extend the time to perfect an accelerated appeal. But even if not interlocutory a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days after the judgment is signed if any party timely files a motion for new trial. However, any motion for new trial was due to be filed by February 18. SignAd filed its motion for new trial on February 22. The certificate of service attached to the motion for new trial reflects that it was served on February 16; however, the motion is file marked February 22. Thus, the motion was late and did not extend the time for filing the notice of appeal.  And an “order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period.”  As a result, the court of appeals dismissed the appeal for want of jurisdiction.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Dismissed for Want of Jurisdiction. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

13th Court of Appeals holds City sufficiently complied with TOMA and Tax Code in 2019 when it adopted its annual tax rate

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Leftwich v City of Harlingen, 13-20-00110-CV (Tex. App. – Corpus Christi, Sep. 9, 2021).

This is a declaratory judgment suit to declare the city violated procedural requirements when it adopted its tax rate in 2019. The Thirteenth Court of Appeals held no alleged violation constituted a waiver of the City’s immunity.

Leftwich alleges the City violated several statutory requirements in 2019 when it adopted its tax rate, including (1) the published notice failed to conform to the “date, time[,] and location” requirements of Texas Local Government Code § 140.010(c),  (2) the City failed to meet the deadline to adopt the tax rate (requiring a vote on proposed tax rate “not be earlier than the third day or later than the [fourteenth] day after the date of the second public hearing”); (3) the City violated TOMA by not allowing public comment “before or during” the consideration of the of the tax ordinances and various other procedural deficiencies. The City filed a plea to the jurisdiction, which the trial court granted. Leftwich appealed.

The court first noted that TOMA’s waiver of sovereign immunity only extends to mandamus or injunctive relief for actual or threatened violations of TOMA, not to suits for declaratory relief.  Further, under TOMA, substantial compliance is sufficient. The location of a meeting may be sufficient without including the full street address, name of the city, or meeting room, so long as the notice sufficiently apprises the public of the location.  Here, the term “town hall” sufficiently put the public on notice of the location of the meeting. No general waiver of immunity exists under the UDJA.  Plaintiff sought a judgment “declaring that the[o]rdinances are invalid and void ab initio” due to appellees’ alleged TOMA and tax code violations. The alleged TOMA violation during the meeting focused on the City Council not taking public comments before voting on the first reading of the tax ordinance. However, the mayor was clearly heard on camera, prior to the final vote on the first reading of each ordinance, asking for discussion, to which no one responded. Assuming, arguendo, that the mayor’s call for discussion was not clearly directed to the public, Leftwich would remain unsuccessful as that was only the first reading. The ordinance was not adopted until the second reading. Only an action taken in violation of TOMA is voidable.  Under the tax code, no requirement exists that two publications exist for public hearings, only that two public hearings are held and that notice is published. Under § 26.06(e) of the Texas Tax Code, the City was required to hold a meeting to vote on the tax ordinances not “earlier than the third day or later than the [fourteenth] day after the date of the second public hearing.” However § 26.06(e) provides no authority for a court to enjoin the collection of taxes for failure to comply with § 26.06(e), which is what Plaintiff seeks.  Plaintiff further asserts the councilmember making the motion failed to follow the specific quoted language for the motion contained within the statute. However, after reviewing the record, the court concluded the motion followed the important parts of the statutory language, verbatim.  Leftwich next asserted the City failed to properly post the necessary tax information on the City’s website.  However, Leftwich failed to present evidence that would raise a fact issue as to whether the City previously posted the notice to the website. The court concluded the undisputed language which was present meets the requirements of Texas Tax Code § 26.05(b)(2), which requires the notice be published after the ordinance is adopted. Leftwich failed to allege jurisdiction under TOMA or the Tax Code for any alleged violation.  Finally, while Plaintiff attempts to bring a First Amendment claim, he failed to brief the claim and therefore waived it.

If you would like to read this opinion click here.  Panel consists of Justices Benavides, Hinojosa and Silva. Memorandum opinion by Justice Silva.

Trial court’s granting of City’s plea to the jurisdiction considered void because it should have issued its order in the separate case created by the plaintiff’s bill of review

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 Clayton Richter, Dorothy Richter, and Jonathan Richter v. City of Waelder, Texas,13-20-00494-CV and 13-20-00495-CV, (Tex. App – Corpus Christi – Edinburg, August 12, 2021)

This is a flooding case, but the opinion focused entirely on procedural problems where the Corpus Christi Court of Appeals dismissed the appeal, noting the court lack jurisdiction over the appeals because the ultimate merits of this case were adjudicated in the wrong trial court proceeding.

The Richters sued the City of Waelder (the City) for various causes of action after leaks in the City’s waterpipe caused multiple flooding incidents on the Richters’ property. The trial court granted the City’s plea to the jurisdiction, but the Richters later filed a bill of review. The trial court granted the bill of review, but then again granted the City’s plea under the original cause number. The Richters appealed the granting of the plea and the City cross-appealed the granting of the bill of review.

A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial. When a trial court grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on the merits must occur in the bill of review proceeding, not in the underlying case in which the judgment is vacated.  By proceeding as it did, the trial court created two jurisdictional problems: (1) the bill of review judgment does not fully adjudicate the Richters’ suit; and (2) the trial court signed the judgment in the original cause after its plenary power expired. The trial court’s bill of review judgment fails to address the merits of the Richters’ claim. Therefore, it is not a final, appealable order. The granting of the plea in the original proceeding is void because the court had lost plenary power under that cause number.    Since the court of appeals only has appellate jurisdiction over either final judgments which are timely appealed (not present here) or authorized interlocutory orders (also not present because of a lack of plenary power), the court of appeals has no jurisdiction over either appeal. Essentially, the court’s opinion results in the trial court having to consider the plea to the jurisdiction under the cause number for the bill of review and not the original case.

Panel consists of Justices Longoria, Hinojosa, and Tijerina. Memorandum opinion by Justice Hinojosa can be found here. Docket pages with attorney information found here.

Pro se appellant could not prevail on summary judgment appeal when he failed to appeal each ground for summary judgment.

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   Special contributing author Laura Mueller, City Attorney for Dripping Springs

Elezar Balli v. Officer Florentino Martinez, et al., No. 14-20-00030-CV (Tex. App.—Houston [14th Dist.] August 10, 2021) (mem. op.).

In this appeal from a trial court’s summary judgment in favor of the defendant officers, the 14th Court of Appeals affirmed the trial court’s judgment because the pro se plaintiff failed to challenge all grounds for the summary judgment and the court was required to affirm the summary judgment on the unchallenged grounds.

The plaintiff sued the officers of the Clute Police Department for tort and 1983 claims pro se after he was arrested for domestic violence and transported to jail.  While being transported the plaintiff struggled against the officers, knocked the officers down, bit the police chief, threatened the officers, hit his head on the inside of the back seat of the police car, and damaged the police car.  During the arrest, the officers tased the plaintiff.  The officers tried to use a pillow to protect the plaintiff’s head in the backseat of the car.  The defendant officers argued that: (1) the amount of force was objectively reasonable as a matter of law; (2) they were entitled to qualified immunity; and (3) the plaintiff’s conviction for assault for biting the police chief barred his claim for damages.  The trial court granted the defendant officers’ summary judgment without specifying the grounds and the plaintiff appealed the summary judgment.  The trial court also dismissed the state law claims since under Section 101.106(f) of the Texas Civil Practices and Remedies Code, the plaintiff was required to bring suit against the City rather than the officers.  The City and Police Chief were dismissed from the case because they were not properly served and the trial court had no jurisdiction over them as defendants.  The plaintiff did not appeal these holdings.

Under Texas Rule of Civil Procedure Rule 166a(c), for a summary judgment to be overturned, an appellant has to prove that any and all grounds for summary judgment were not meritorious.  If the appellant does not challenge every ground for which summary judgment was granted, then a court of appeals has to uphold the summary judgment.  The appellant in this case only appealed the issue that his conviction for assault barred his claim and failed to challenge the other two grounds.

The court of appeals affirmed the trial court’s summary judgment in favor of the defendant officers because the pro se plaintiff failed to appeal on all of the summary judgment grounds.

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

Dallas Court of Appeals holds trial court had jurisdiction for BOA appeal only, but no monetary or constitutional claims could survive the board’s plea

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City of Dallas, et al v. PDT Holdings, Inc., et al. 05-21-00018-CV  (Tex. App. – Dallas, August 24, 2021).

This is an appeal from a board of adjustment decision where the Dallas Court of Appeals reversed in part and affirmed in part.

PDT Holdings, Inc (“PDT”) applied for a permit from the City to build a duplex on its property in Dallas.  PDT submitted building plans, which were approved and began construction. However, a City inspector cited PDT and issued a stop work order on the grounds that the structure did not comply with the thirty-six-foot height restriction. PDT adjusted the plans down to 36 feet, but was then told the actual height restriction was twenty-six feet due to the residential proximity slope (RPS) ordinance after it had completed 90% of the construction.  PDT sought a variance for the height restriction (three story duplex) but the variance was denied by the board of adjustment (“BOA”).  PDT appealed to district court but also sought a variety of monetary damages caused to the project. The matter was temporarily abated by agreement and the parties resubmitted to the BOA (with all new members), which again denied the request. The BOA filed a plea to the jurisdiction which was denied. The BOA appealed.

A district court has subject matter jurisdiction only to decide whether the Board’s decision was illegal under section 211.011.  The BOA argued the original appeal to district court was timely but attempted to assert PDT had to appeal the 2nd denial and failed to do so. The Board cites no authority for this requirement other than the general requirement that a petition for writ of certiorari must be filed within ten days of the Board’s decision. The court held the second BOA decision did not change the substance of the controversy between the parties or the issues before the trial court.  Further, nothing demonstrates the trial court lost jurisdiction over the first decision, over which it would still be allowed to proceed. As a result, the trial court properly denied the plea as to the illegality question only. The court next held that it must evaluate jurisdiction based on each claim. PDT did not specify what cause of action entitled it to recover damages or cite express authority waiving governmental immunity for recovery of damages. The plain language of section 211.011(f) does not authorize an award of damages. Further, there is no implied right of action to recover money damages for violation of the due course-of-law provision of the Texas Constitution. The Texas Constitution authorizes suits for equitable or injunctive relief only. But this limited waiver of immunity exists only to the extent the plaintiff has pleaded a viable constitutional claim. The court agreed with the BOA that PDT  does not have a vested property right in obtaining a variance from the RPS ordinance.  The mere existence of a building permit does not render an ordinance unenforceable. A person does not acquire a vested right in a building permit issued in violation of an ordinance. Here, jurisdiction exists for judicial review of the Board’s decision under section 211.011 only. The plea should have been granted for all other claims.

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

El Paso Court of Appeals holds since city appealed denial of a plea to the jurisdiction, but not the final judgment entered at the same time, court could not hear the appeal

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The City of Brady and Brady Police Department v. William Dale Scott, 08-20-00155-CV (Tex. App. – El Paso, Aug. 16, 2021).

The El Paso Court of Appeals determined it did not have jurisdiction to hear an interlocutory appeal from a Chapter 47 suit to determine ownership of property.

This case started when City police seized $11,450.00 from Scott when searching his home. Scott was investigated for a type of fraud after complaints came that he was operating some form of scam.  Several years later, Scott filed suit specifically under the Texas Code of Criminal Procedure Art 47.01 et seq, which allows for a specific hearing to determine person with the superior right to possession of property. His Chapter 47 petition complained that although the police opened a case file in the matter and provided him with a receipt stating that it had taken $11,452 in cash from him, the police never returned the cash to him. Criminal charges were never filed. The City filed a plea to the jurisdiction. The trial court denied the plea in the same order it issued a final judgment granting Scott’s relief. The City filed an interlocutory appeal.

The City asserts the funds were not seized as part of a criminal investigation, but to determine their ownership. The City asserted it no longer has the funds as they were disposed of under article 18.17 of the Code of Criminal Procedure allowing for disposing of funds when the owner is unknown. Under that article, the police placed an advertisement in the local Brady newspaper stating that it had cash in excess of $500 in its possession, and that anyone claiming the money had 90 days to contact them. After no one responded the department obtained an order awarding the funds to the City of Brady from a Brady Municipal Court judge. The City alleged that Scott only had 30 days to appeal or otherwise contest the municipal court’s disposition order, and that doing so was a “statutory prerequisite” to filing a Chapter 47 petition.  The City also asserted that the notice setting hearing only set the plea, and not a final determination on the Chapter 47 suit. The trial court ruled on both matters in the same order. The City filed an interlocutory appeal, appealing only the denial of the plea. The El Paso court held when a trial court has already entered a final judgment, an appellate court has no jurisdiction to hear a governmental body’s interlocutory appeal from an order denying its plea to the jurisdiction, and the governmental body must instead pursue an appeal from the final judgment.  Since the City’s appeal did not timely appeal the final judgment or file an appeal bond for a Chapter 47 appeal, the court has no jurisdiction to hear the City’s arguments. The case is therefore dismissed.

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

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices

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Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

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

Inmate failed to show the County had actual notice of his claim within statutory time period

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Christopher Branch v. Fort Bend County, 14-19-00477-CV, 2021 WL 2978639 (Tex. App.—Houston [14th Dist.] July 15, 2021, no pet. h.) (mem. op.)

This is Texas Tort Claims Act (TTCA) case where the Fourteenth Court of Appeals affirmed the trial court’s granting of a dispositive motion and holding there was no evidence the County was subjectively aware of any fault in causing or contributing to Branch’s injuries.

Branch alleged that he was injured on August 1, 2016, when he slipped and fell outside of his jail cell at the Fort Bend County Jail.  Branch further alleged that his fall was caused by a puddle of water that was a result of a burst pipe in the facility that jail personnel failed to diagnose and fix.  Prior to filing suit, Branch sent the County a letter on April 21, 2017, providing notice pursuant to the Texas Tort Claims Act regarding his injuries sustained on August 1, 2016.  Branch then sued the County on July 13, 2018.  The County filed a plea to the jurisdiction which the trial court granted.  Branch appealed.

Although formal written notice of a claim is not required when a governmental entity has actual notice of a claimant’s injury, mere knowledge that an incident has occurred is not sufficient.  Actual notice means that the governmental entity is subjectively aware that it may be responsible causing or contributing to a claimant’s death, injury, or property damage in the manner alleged by the claimant. Here, the County provided undisputed evidence establishing that Branch failed to give formal written notice within six months after the day of the incident giving rise to his claim.  Although Branch alleged for the first time on appeal that the County had actual notice of his claim, the appellate court also rejected that argument.  Instead, the court determined that there was no evidence in the record, which included the incident report or Branch’s inmate medical records, that showed the County was subjectively aware it might be responsible for Branch’s injury.  Finally, there was no evidence any investigation conducted with regard to Branch’s fall was conducted much less that it showed any subjective awareness on the part of the County.

If you would like to read this opinion click here. Panel consists of Justices Spain, Hassan, and Poissant.  Memorandum Opinion by Justice Hassan.

Since pedestrian plaintiff admitted he caused the accident to officers at the scene, City did not have actual notice of claim within required time period

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The City of Houston v. Michael Gantt, 14-20-00229-CV, (Tex. App – Houston, August 5, 2021)

This is a Texas Tort Claims Act (TTCA) case where the Fourteenth Court of Appeals reversed the trial court’s denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Gantt was a pedestrian who was struck by a patrol car driven by Houston police officer Young. Gantt filed suit. The City filed a plea to the jurisdiction asserting Gantt did not meet the notice of claim requirements under the TTCA and the City did not have actual notice of the claim. The plea was denied and the City appealed.

Gantt admitted he did not provide written notice of claim timely under the TTCA, but asserted the City had actual knowledge of the claim. The City must have “subjective awareness” of its fault in the situation, else actual notice does not exist. The City’s crash report indicates Gantt ran in front of the vehicle and failed to yield the right of way to the vehicle. Gantt’s statement given to police states he ran in front of the vehicle and it was his fault he was hit. The court noted that while Gantt’s statement, alone, is not dispositive, Gantt did not claim it was Young’s fault. As a result, the City did not have actual notice and subjective awareness of its fault in the accident.

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

Since City’s plea to the jurisdiction only challenged non-jurisdictional facts, plea was property denied in breach of contract suit

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City of Del Rio v. Henry Arredondo, 04-20-00409-CV, (Tex. App – San Antonio, August 4, 2021)

This is a breach of contract suit where the Fourth Court of Appeals held that because the City’s plea only challenged non-jurisdictional facts, the plea was properly denied.

City hired Arredondo as its City Manager. The parties entered into an Employment Agreement, which provided Arredondo served “at the pleasure of the City Council.” The City Council later voted to terminate the Employment Agreement. Arredondo then sued the City, alleging the City Council did not obtain a majority vote to terminate his employment, which constituted a breach of contract claim. He also pled an alternative breach of employment contract claim. The City filed a plea to the jurisdiction, which was denied.

Section 271.152 of the Texas Local Government Code waives governmental immunity for the adjudication of certain breach of contract claims. The City asserts the contract did not alter the employment-at-will doctrine and the City complied with the contract. The crux of this appeal is whether the facts asserted by the City are “jurisdictional facts.”  Not all facts relating to the merits are necessarily jurisdictional facts. The at-will nature and city’s compliance with the contract, in this situation, were not jurisdictional facts, so the plea was properly denied.

Panel consists of Chief Justice Martinez, and Justices Chapa and Valenzuela. Affirmed. Memorandum Opinion by Justice Chapa can be read here. Docket page with attorney information found here.

 

Amarillo Court of Appeals holds committed individual cannot challenge commitment or conditions through secondary suit

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James Richards v. Marsha McLane, in Her Official Capacity as Director of the Texas Civil Commitment Office, 07-20-00306-CV, (Tex. App – Amarillo, July 6, 2021)

This is a declaratory judgment/ultra vires type case where the Amarillo Court of Appeals affirmed the granting of the Director’s plea to the jurisdiction.

Richards sued the director of the Texas Civil Commitment Office involving his commitment orders for being a sexually violent predator. The Director filed a plea to the jurisdiction, which was granted. Richards appealed.

Section 841.082 of the Texas Health and Safety Code provides that the court civilly committing someone as a sexually violent predator “retains jurisdiction of the case with respect to a proceeding conducted under . . . subchapter [E of the statute], . . . or to a civil commitment proceeding conducted under Subchapters F and G.” TEX. HEALTH & SAFETY CODE ANN. § 841.082(d) (West Supp. 2020).  The Court examines the claims based on the nature of the facts asserted and not the labels placed upon them by the pleading party. When reviewing the pleadings, the court held Richards actually challenged the legitimacy of his confinement for inpatient services. Richards sought to obtain less restrictive housing and supervision through the suit, thereby countermining the committing court’s jurisdiction. Further, since the housing requirements apply upon the “release” of an individual, and Richards has yet to be released, the challenge is not yet ripe.

Panel consists of Chief Justice Quinn, and Justices Pirtle and Parker. Affirmed. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

Slip and fall plaintiff failed to dispute hospital’s proof of no actual notice of dangerous condition

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The University of Texas MD Anderson Cancer Center v. Courtney Simpson, 01-20-00679-CV, (Tex. App – Houston [1st Dist.], July 22, 2021)

This is an interlocutory appeal in a premise defect/Texas Tort Claims Act (TTCA)  case where the First District Court of Appeals reversed the denial of the University’s plea and dismissed the Plaintiff’s claims.

Simpson was a visitor to the University’s MD Anderson hospital when she slipped and fell “due to a wet slippery floor.”  Simpson was visiting a friend who had surgery and was in a patient room. Simpson purportedly left her friend’s patient room to get ice from the ice machine. As she walked down the hallway, she fell and broke her wrist. Simpson asserted that she slipped on a round-shaped patch of clear liquid, about three to five inches in diameter. Simpson allegedly did not know that a clear liquid had caused her to fall until she heard someone hear the nurse’s station point out the liquid and admit they should have cleaned it up. Simpson did not know the identity of any of the persons who were present at the nurse’s station. MD Anderson asserted it did not receive any reports of substances or liquids being spilled or present on the floor where Simpson fell and did not receive any reports of falls at that location before Simpson fell.  Simpson asserted that anyone who would have admitted to knowing the water was there must be an employee of MD Anderson. The hospital asserted that an unidentified person commenting on the water does not establish a fact issue that the person was an MD Anderson employee. The trial court denied the plea and MD Anderson appealed.

To prove actual knowledge, the plaintiff must show that the governmental unit actually knew of the dangerous condition at the time of the accident.  Actual knowledge of an unreasonably dangerous condition can sometimes be proven through circumstantial evidence.  However, circumstantial evidence establishes actual knowledge only when it “either directly or by reasonable inference” supports that conclusion.  MD Anderson presented evidence establishing it did not have actual knowledge of a dangerous condition prior to the fall. Simpson testified she did not know what type of medical professionals were present at the nurse’s station and did not know what the admitting person was doing at the station. She admitted she did not see any ID badge on the admitting person and could not recall race or age. She also admitted that she did not know if the person was a nurse or not. MD Anderson produced evidence that non-employees of MD Anderson can be present at a nurse’s station and wear scrubs. MD Anderson met its burden, but Simpson did not dispute MD Anderson’s facts. As a result, the plea should have been granted.

Panel consists of Chief Justice Radack, and Justices Landau and Countiss. Memorandum Opinion by Justice Countiss can be read here. Docket page with attorney information found here.

First District Court of Appeals holds inmate failed to property provide notice of claim for alleged sexual assault

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Troylencia Wolf Anderson v. Waller County, Texas, et al, 01-20-00097-CV, (Tex. App – Houston [1st Dist.], July 20, 2021)

This is an alleged sexual assault case brought under the Texas Tort Claims Act (TTCA) where the First Court of Appeals affirmed the granting of the County’s plea to the jurisdiction.

Anderson alleged that while incarcerated at the Waller County Jail, she was taken to her cell by an unknown female jailor and given a minor amount of food and water. She took mayonnaise and obstructed the security camera. After eating her food, she claims she blacked out and therefore assumed she had been drugged. She asserts she was sexually assaulted then released. Anderson brought claims against the County, the Sheriff, and several jailors for sexual assault, assault, intentional infliction of emotional distress, and negligence. She amended her pleadings indicating the misuse or malfunctioning of security cameras lead to the assaults as well as providing unsafe food. The County filed several pleas to the jurisdiction, which were eventually granted. Anderson appealed.

A plaintiff’s failure to provide the statutorily required notice deprives the trial court of jurisdiction and requires the court to dismiss the plaintiff’s case. Knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.  Further, mere investigation of an incident or injury does not show that a governmental unit had actual notice for purposes of the TTCA. Anderson’s written notice was provided four years after her incarceration and nothing in the record indicates the County was aware, for actual notice purposes, that Anderson had reported her claims to the Texas Rangers. Anderson did not allege the date on which the County received actual notice and did not allege that the County had actual notice that Anderson had received some injury within six months of the incident giving rise to Anderson’s claimed injury. Anderson’s allegations that the Texas Rangers investigated an unspecified complaint by Anderson at some unspecified time, even if taken as true, do not show actual knowledge of the claim. Finally, the court held that when a plea is granted, if it is one of pleading defects only which could be cured, the dismissal may be without prejudice, but if the petition could not possibly allege facts demonstrating a waiver of immunity, or if the Plaintiff had been given an adequate opportunity to replead and failed, then the dismissal should be with prejudice. The trial court properly granted the plea with prejudice.

Panel consists of Chief Justice Radack, and Justices Landau and Countiss. Memorandum Opinion by Justice Countiss can be read here. Docket page with attorney information found here.

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.