First Court of Appeals holds service on pro se of MSJ via email address on file with court was proper service

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Glenn Herbert Johnson v. Harris County, et al., 01-18-00783-CV, (Tex. App – Hou [1st Dist.], Feb. 27, 2020)

This is an inverse condemnation case where the First Court of Appeals affirmed the granting the defendants’ motion for summary judgment. However, it will be of interest mostly to litigators as the central issue is proper service on a pro se by email during litigation.

Johnson (pro se) alleged that Harris County’s tax sale of his property constituted a taking. The County filed a traditional and no-evidence motion for summary judgment, to which Johnson did not respond. The trial court granted the motion. Johnson filed a post-judgment motion arguing that he did not receive notice of the MSJ or hearing, but listed a different email address for notice. The County submitted evidence it served Johnson via the electronic filing email he had on file with the court.  The trial court denied Johnson’s post-judgment motion and Johnson appealed.

The court first noted that Johnson failed to provide a single citation to the record in his brief and therefore waived any arguments. When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review.  However, the court went on to say that even if he had cited to the record, he could not prevail.  The County’s MSJ was filed twenty-eight days before the date of submission and was therefore timely filed.  A nonmovant has the right to minimum notice of the summary judgment hearing. Id. “Proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment.” Rule 21a deals with service and notice requirements for pleadings, including motions for summary judgment.  Pro se litigants are not required to participate in the electronic service program.  However, the Rule also states that if no email address is on file with the electronic filing manager, the document “may be served in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” “A certificate by a party or an attorney of record . . . shall be prima facie evidence of the fact of service.” Notice properly sent pursuant to Rule 21a raises a presumption that notice was received.  No evidence in the record indicates Johnson attempted to change the email address on file with the court or to the attorney in charge for the County. Pursuant to Texas Rule of Civil Procedure 57, Johnson was required to designate an email address if he had one.  Harris County used the designated email address and Johnson presented no evidence of a change. Therefore, Johnson did not overcome the presumption that Harris County properly served him and that he received Harris County’s motion and notice via email service.   Finally, to defeat a no-evidence MSJ, a non-movant must file a response. Here, Johnson did not.  The MSJ was affirmed.

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

Texas Supreme Court holds defendant entitled to designate responsible third-party even after statute of limitations expires

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In re: Mobil Mini, Inc., 18-1200 (Tex. March 13, 2020)

This is a mandamus case that will be of interest mainly to litigators. The Texas Supreme Court granted mandamus and ordered the trial court to allow the designation of a responsible third party even though the statute of limitations had expired.

Covarrubias’s pinky finger was injured when a wind gust blew the door of a construction trailer closed on his hand. Mobile Mini owned the trailer, but had leased it to Nolana Self Storage, LLC, the owner of the construction site.  Covarrubias sued Mobile Mini just before the statute of limitations expired, but did not sue Nolana. Mobile Mini’s discovery responses identified Nolana as a potentially responsible third party. Mobile Mini filed a motion to designate Nolana as a responsible third party, but no hearing was set immediately. Meanwhile, Nolana (who had been brought in) obtained a summary judgment that claims against it were time-barred and it was dismissed. Covarrubias later objected to Mobile Mini’s attempt to designate Nolana as a responsible third-party given the time bar.  The trial court refused to allow Mobile Mini to designate Nolana. The court of appeals denied Mobile Mini’s mandamus petition without substantive comment.  Mobile Mini brought this mandamus action in the Texas Supreme Court.

The Court went through a lengthy analysis of Chapter 33 of the Texas Civil Practice and Remedies Code.  The Court held Mobile Mini’s disclosure was timely because under the Texas Rules of Civil Procedure, it was not obligated to disclose potentially responsible third parties until its discovery responses were due. Because Covarrubias waited almost two years to sue Mobile Mini, the response deadline for the disclosures fell after limitations expired. Mobile Mini did not engage in any dilatory or stall tactics to game the system, but instead filed the discovery response when it was due.  Such are deemed a timely designation. Placing the onus on a defendant to respond before the Rules of Civil Procedure obligate it to do so not only contravenes section 33.004(d)’s express language but would also be unfairly prejudicial to defendants. Covarrubias’s second argument that Nolana was “substantively” dismissed was rejected as missing a statute of limitations in this case was procedural in nature. Under the proportionate-responsibility statute, “responsibility” is not equated with “liability.” Finally, an adequate appellate remedy is ordinarily lacking because allowing a case to proceed to trial without a properly requested responsible-third-party designation “would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of the relator’s defense in ways unlikely to be apparent in the appellate record.”  As a result, the trial court had a required duty to allow the designation. The Court granted the writ of mandamus ordering Nolana be designated as a responsible third-party.

If you would like to read this opinion click here.  The docket page can be found here.

14th Court of Appeals reverses jury award in excessive force case against County, but upholds portion against deputy

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Harris County, et al, v Coats, et.al, 14-17-00732-CV, (Tex. App. — Houston [14th Dist.], February 6, 2020)

This is a § 1983/wrongful death case where the 14th Court of Appeals reversed in part a jury award against the County and its deputy. [Comment: this is a 49-page opinion].

Jamail and his girlfriend were using cocaine when Jamail felt ill.  Jamail exited through a window and called 9-1-1 from a public phone. However, when the EMTs arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Saints to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time.  However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity.  A jury trial was held against the County and Deputy Vailes. The jury found for Jamail’s family. The County and Deputy Vailes appealed.

The court first determined no policy, custom, or practice of the County existed to establish § 1983 liability on the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constable’s go, the fact a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.  As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient Vailes’ actions caused Jamail’s death.  Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death.  The fact Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.

If you would like to read this opinion click here. Panel consists of Justice Christopher Justice Wise, and Justice Jewel. Opinion by Justice Jewel.

Texas Supreme Court holds a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name.

St. John Missionary Baptist  Church, et al, v Merle Flakes, et al, 18-0228, (Tex. Feb. 7, 2020).

The Texas Supreme Court held in this case, which will be of interest to litigators and appellate practitioners, that the courts of appeals have authority to order additional briefing on issues that were not raised in the principal briefs.

This is a dispute over church assets. St. John Missionary Baptist Church held a conference and terminated pastor Bertrain Bailey’s contract. Both Bailey and the chairman of St. John’s trustee board, Merle Flakes, were notified of the vote, but Bailey refused to step down and Flakes continued to pay him. The Church began selling off assets to keep payments. St. John members sued Flake and Bailey. Flakes filed a plea to the jurisdiction based on lack of standing and the ecclesiastical-abstention doctrine. The trial court granted Flakes’s motion but did not specify whether its decision rested on the standing issue, the ecclesiastical abstention issue, or both. St. John appealed, but its appellate brief only expressly addressed the standing issue. The court of appeals, sitting en banc, affirmed in a divided decision holding the court of appeals was bound to affirm the trial court’s judgment because St. John failed to challenge all possible bases for the decision.

St. John contends that Texas Rule of Appellate Procedure 38.9 authorizes courts of appeals to order additional briefing when an appellant fails to brief all possible grounds for the trial court’s decision. Flakes responds that although Rule 38.9 gives courts of appeals discretion to order additional briefing, the court properly exercised that discretion here by declining to order supplemental briefing. The Texas Supreme Court held, generally, Rule 38.1 provides that an issue statement “will be treated as covering every subsidiary question that is fairly included.” However, a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name. Here, the ecclesiastical-abstention doctrine was not an independent basis for affirming the trial court’s judgment apart from the standing issue. Rather, based on the record before us, it appears that the standing and ecclesiastical-abstention issues are “so inextricably entwined that one cannot be mentioned without automatically directing attention to the other.” At the trial court level, Flake’s motion listed both. During a hearing on Flakes’s motion, the overlap between the standing and ecclesiastical abstention issues became even more apparent. On this record, then, the standing issue “fairly included” the ecclesiastical-abstention issue, and St. John’s purported omission did not require the court of appeals to affirm based on a lack of inclusive identification. St. John’s briefing was “sufficient to put the court of appeals on notice” of the ecclesiastical-abstention issues in the case and “invite[d] the court of appeals to correct any error of law” as to that issue. The opinion is reversed and remanded.

If you would like to read this opinion click here. Per Curiam opinion. Docket page found here.

Trial court’s denial of plea after evidentiary hearing was proper given the trial court decides disputed facts unrelated to merits of underlying claims

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City of San Antonio v. Pedro J. Arciniega, 04-19-00467-CV, (Tex. App – San Antonio, Jan 15, 2020)

This is an employment discrimination case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Arciniega sued the City alleging a claim for age discrimination after his employment was terminated. The City filed a plea to the jurisdiction asserting Arciniega failed to timely file his administrative complaint with the Texas Workforce Commission within 180 days after the date he was terminated. Arciniega asserted he filed it within 180 days after receiving the  City’s letter notifying him of his termination. When the hearing was held on the plea the City asserted it should be an evidentiary hearing on exactly when Arciniega received notice and Arciniegra’s attorney asserted his affidavit was sufficient to create a fact issue. The City’s attorney responded the trial court was required to hear evidence and resolve fact issues regarding jurisdiction when the challenged jurisdictional facts are not intertwined with the merits of the case.  The court allowed an evidentiary hearing at which witnesses were presented. After the testimony, the court denied the plea.

Legally, the 180-day period “begins when the employee is informed of the allegedly discriminatory employment decision.” A trial court “must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.”  When a defendant asserts and supports with evidence that the trial court lacks subject matter jurisdiction and the facts underlying the merits and subject matter jurisdiction are intertwined, a plaintiff is only required to show that there is a disputed material fact regarding the jurisdictional issue. A different standard applies, however, when a jurisdictional issue is not intertwined with the merits of a plaintiff’s claim. In that situation, “disputed fact issues are resolved by the court, not the jury.” Based on the applicable standard of a review the court found that the denial of the plea, was an implicit finding Arciniega timely filed his administrative complaint with the TWC.  Viewing the evidence in the light most favorable to the trial court’s finding, Arciniega’s testimony supported that finding. As a result, the plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Alvarez, Rios, and Watkins. Memorandum Opinion by Justice Rios. Docket page with attorney information found here.

U.S 5th Circuit holds Plaintiffs had a duty of diligence to inquire about the status of their case – emails mistakenly going to a spam folder was not excusable neglect

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Trevino v City of Fort Worth, 19-10414 (U.S. 5th Cir. December 10, 2019)

This is a custodial death case brought under 42 U.S.C. § 1983.  However, the opinion is one of procedure and excusable neglect in not responding to a motion.

City police stopped Alfredo Cortez and his girlfriend Alisha Trevino for an inoperable brake light. Trevino ingested two baggies of methamphetamine that she had hidden in her pants before the officers could view her in the car. She died later that night. Plaintiffs filed suit against the City and the officers involved in Trevino’s arrest. The officers were dismissed.  The City then filed a motion to dismiss to which the Plaintiffs did not respond, citing computer difficulties in receiving court notices. After the motion was granted Plaintiffs filed a motion for new trial which was denied. Plaintiffs appealed.

Plaintiffs’ counsel failed to register with the court’s electronic filing system, in violation of local rules, which is why he did not receive the notice. The Plaintiffs also concede that the failure to file was within Plaintiffs’ counsel’s “reasonable control.”  Plaintiffs had a duty of diligence to inquire about the status of their case. The fact that the case was not on Plaintiffs’ counsel’s “radar for active cases” does not free Plaintiffs of this duty.  Failure to file a response to a motion to dismiss is not a manifest error of law or fact. Rule 60(b)(1) allows for relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.” The Supreme Court has explained that the determination of what sorts of neglect will be considered excusable is “an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”  However, “[g]ross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.” In fact, a court would abuse its discretion if it were to reopen a case when the reason is one attributable solely to counsel’s carelessness.  Further, emails mistakenly going to a spam folder do not merit Rule 60(b) relief. Judgment affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Owen, and Justices Southwick and Willett.  Per curiam opinion. The attorney listed for Trevino is Jeffrey M. Wise.  The attorney listed for the City is Lynn Winter.

Texas Supreme Court holds no-evidence MSJ proper to challenge jurisdiction; TOMA waiver of immunity does not include declaratory judgment claims

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Town of Shady Shores v Swanson, 18-0413 (Tex. Dec. 13, 2019)

This is an employment case, but the focus on the opinion is a procedural one.  Importantly, the Texas Supreme Court held 1) a no-evidence motion for summary judgment was proper to raise a jurisdictional challenge and 2) the Texas Open Meetings Act (TOMA) did not waive immunity for declaratory relief, only mandamus and injunctive relief.

Swanson was the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction which was granted as to the Sabine Pilot and Whistleblower claims. The  Town later filed traditional and no-evidence summary judgment motions (on immunity grounds) as to the Texas Open Meetings Act declaratory judgment claims, which the trial court denied.  The Town took an interlocutory appeal, but Swanson kept filing motions. The trial court granted Swanson leave to file a motion for a permissive interlocutory appeal as Swanson asserted she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the Town’s notice of appeal for the summary judgments. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal the Town filed a separate mandamus action (which was consolidated for purposes of appeal). The court of appeals declined to issue the mandamus noting the trial court did not actually sign any orders and noted Swanson did not timely file an appeal and was not granted a permissive appeal. Court of appeals summary found here.

The court of appeals held allowing a jurisdictional challenge on immunity grounds via a no-evidence motion would improperly shift a plaintiff’s initial burden by requiring a plaintiff to “marshal evidence showing jurisdiction” before the governmental entity has produced evidence negating it.  It also held the entity must negate the existence of jurisdictional facts. After recognizing a split in the appellate courts, the Texas Supreme Court rejected the reasoning noting in both traditional and no-evidence motions, the court views the evidence in the light most favorable to the nonmovant.  Because the plaintiff must establish jurisdiction, the court could “see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.”  Thus, when a challenge to jurisdiction that implicates the merits is properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff will be required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact.  Such a challenge is proper using a no-evidence summary judgment motion.  Next, the Court held  the UDJA does not contain a general waiver of immunity, providing only a limited waiver for challenges to the validity of an ordinance or statute.  UDJA claims requesting other types of declaratory relief are barred absent a legislative waiver of immunity with respect to the underlying action. Under  TOMA, immunity is waived only “to the express relief provided” therein—injunctive and mandamus relief—and the scope does not extend to the declaratory relief sought. Thus, TOMA’s clear and unambiguous waiver of immunity does not extend to suits for declaratory relief against the entity. However, Swanson did seek mandamus and injunctive relief as well, which were not addressed by the court of appeals, even though argued by the Town. As a result, such claims are remanded to the court of appeals to address.

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

Former Employee Failed to Brief and ID Records Establishing Causation or Pretext in Employment Case

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Orlando Toldson v. Denton Independent School District, 02-18-00394-CV (Tex. App. – Fort Worth, Nov. 21, 2019)

This is a sexual harassment/retaliation claim where the Fort Worth Court of Appeals affirmed the employer’s motion for summary judgment.

Toldson worked for Denton Independent School District (DISD) as a paraprofessional teacher’s aide off and on from 2009 until he was terminated in February 2015. In 2014 Toldson served as an aide in the special education department at Ryan High School (RHS). Toldson complained to the assistance principle several times that the teacher (Ms. Winrow) was overly demanding and that Toldson did not know what was expected of him in the classroom. Toldson made no allegations during these meetings that Winrow had sexually harassed him.  These complaints continued for several months until Toldson eventually did mention what he felt was inappropriate sexual comments. DISD offered to move Toldson to a different classroom while investigating his complaints. The principle interviewed five witnesses,  did not find any who corroborated Toldson’s allegations of sexual harassment.  The principle concluded the investigation and offered to move Toldson to another teacher, to which Toldson objected. Toldson complained to the DISD HR department and asserted his immediate supervisors began retaliating against him by requiring him to be at department meetings where Winrow would be present. Toldson followed the grievance procedures up the process, but with no resolution he would accept. During this entire time, Toldson’s job performance at RHS was an issue including often arriving late for work, he often left early, and he was often absent, all without providing proper notification to his superiors. He also took longer breaks than allowed, as well as unauthorized breaks that left students unsupervised. Toldson was reassigned to a different campus.  While there, the record reflects Toldson sexually harassed a female teacher. Upon learning of the incidents, DISD terminated Toldson. Toldson sued for sexual harassment and retaliation. The DISD filed a motion for summary judgment, which was granted. Toldson appealed.

Regarding his retaliation claim, the court noted no evidence was identified by Toldson establishing causation. While Toldson asserts an email present somewhere in the record constitutes direct evidence of causation, Toldson failed to identify, cite, or adequately brief the email for the court. Toldson bears the burden of supporting his contentions with appropriate citations to the record. Failing that, Toldson fails to meet his burdens.  Further, the court agreed DISD presented evidence of a legitimate, non-retaliatory reason for terminating Toldson’s employment. Toldson failed to demonstrate a fact issue exists regarding pretext. The court likewise had difficulty finding Toldson had properly briefed and identified arguments and issues regarding the sexual harassment claim. The court noted the summary judgment record in this case exceeds 2,000 pages. Of the nineteen sentences of alleged facts Toldson relies upon to show a fact issue the sexual harassment charge, eight contain no citation to the record whatsoever and the rest do not explain how they are related to any form of harassment.  Toldson provided no reference to a specific place in the record where any exhibits exist, so he failed to brief his issues. The summary judgment was affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Womack and  Wallach. The attorney listed for the district is Thomas P. Brandt.  The attorney listed for Toldson is Anthony Hamilton Green.

Firefighter’s claims against City dismissed since no adverse employment actions occurred; only minor internal decisions

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Billy Fratus v. The City of Beaumont, 09-18-00294-CV (Tex. App. – Beaumont, Oct. 10, 2019).

This is an employment discrimination/retaliation/firefighter case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Fratus was a firefighter who sued for 1) free speech equitable relief and 2) race discrimination and 3) retaliation under Chapter 21 of the Labor Code.  Fratus asserted the Fire Chief, Huff, did not like Fratus was Hispanic and excluded him from meetings, denied him discretionary perks of the job, spoke bad about him, interfered with Fratus’ relationship with his physician while on disability leave, and a host of other assertions centering on personality slights. Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff’s sexual harassment of another employee, and for disagreeing with Chief Huff’s firing of one employee. The City filed a plea to the jurisdiction which was granted. Fratus appealed.

Fratus’ claims for declaratory relief centered only on past allegations.  As a result, it is actually a claim for monetary damages for which the City is immune. Further, claims for equitable relief for constitutional violations “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.” Since Fratus did not sue any individuals, the equitable relief claims are dismissed. To prevail on a retaliation claim based on protected free speech Fratus has to establish, among other things, he spoke out on a matter of public concern. Speech made privately between a speaker and his employer rather than in the context of public debate is generally not of public concern. The record shows Fratus made criticisms to other co-workers, which does not qualify. A retaliation claim is related to but distinct from a discrimination claim, and it focuses upon the employer’s response to the employee’s protected activity. The TCHRA addresses only “ultimate employment decisions” and does not address “every decision made by employers that arguably might have some tangential effect upon employment decisions.”  Actionable adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment evaluations.  The pleadings and record reflect Fratus did not allege any adverse employment decisions, only petty disagreements and internal rifts. Fratus failed to plead a prima facie claim. Fratus’s appellate brief states that he also has an issue under the Texas Open Meetings Act.  However, such does not meet briefing requirements because it lacks citations to the record or to applicable authority and therefore presents nothing for review. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson. Opinion by Justice Johnson.  The attorney listed for Fratus is Laurence Watts.  The attorneys listed for the City are Tyrone Cooper and Sharae Reed.

12th Court of Appeals holds a regulatory civil enforcement suit did not constitute a taking by a conservation district

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Neches and Trinity Valleys Groundwater Conservation District v. Mountain Pure TX, LLC  12-19-00172-CV (Tex. App. – Tyler, September 18, 2019).

This is a regulatory takings/compliance enforcement case where the Tyler Court of Appeals reversed the denial of a conservation district’s plea to the jurisdiction and dismissed the property owner’s counterclaims.

The District adopted  rules requiring all persons owning a groundwater well to obtain permits to drill and operate the well unless exempt. Mountain Pure owns a spring water bottling plant in Palestine, Texas. Mountain Pure refused to acknowledge that it owns or operates a water well, refused to apply for a permit to operate a water well, failed to file quarterly production reports or pay quarterly production fees and overall refused to acknowledge the District’s authority. Mountain Pure took the position its water came from an “underground formation from which water flows naturally to the surface of the earth.”  Therefore, the District has no authority to regulate spring water. The District filed a compliance suit against Mountain Pure to which Mountain Pure counter-claimed for tortious interference with their lucrative operating contracts and also asserted a takings claim.  The District filed a plea to the jurisdiction as to the counterclaims which was denied. The District appealed.

Governments must sometimes impose restrictions on and regulations affecting the use of private property in order to secure the safety, health, and general welfare of its citizens.  Although those restrictions and regulations sometimes result in inconvenience to owners, the government is not generally required to compensate for accompanying loss.  However, if regulations go too far, they will be recognized as a taking.

A civil enforcement procedure alone cannot serve as the basis of a regulatory takings claim. A denial of access is compensable if the denial of access is substantial and material. Mountain Pure does not contend that the District’s rules and regulations it seeks to enforce are unconstitutional or otherwise invalid. But it maintains that the District is wrongfully attempting to apply them to its property. The record shows that Mountain Pure’s Palestine plant, after the government action, retains a value of $4,090,000. Mountain Pure cannot contend that the District’s action renders its property valueless. The loss of anticipated gains or future profits is not usually considered in a regulatory takings analysis. “The existing and permitted uses of the property constitute the ‘primary expectation’ of the landowner affected by regulation.”  There is no pleading or evidence which show that the application of the groundwater rules, should they be held to apply, will interfere with production and sale of bottled water from the property. If the District is successful, the enforcement of the production reporting rules would represent a restriction on the property’s use. There is no pleading that the imposition of a three cent per 1000 gallons fee will be so onerous as to affect the present use of the property or significantly diminish its economic viability.  Neither a diminution in property value nor a “substantial reduction of the attractiveness of the property to potential purchasers’ will suffice to establish that a taking has occurred.” Neither the District’s rules nor its attempt at their enforcement has deprived Mountain Pure of any reasonable investment backed expectation for bottling water.  There is no showing that the enforcement of the reporting rules and the accompanying fee will affect production. Mountain Pure’s pleadings do not contain facts that allege a compensable denial of access, nor do they show how the District’s suit forced a cessation of operation. The operating lessee’s termination of its lease purchase operating agreement may have been influenced by the District’s civil enforcement suit. But there are no facts pleaded to show it was required by the District’s action. The District’s suit neither denied access to the spring nor prevented its operation. The court held “[i]t is impossible to avoid the conclusion that Mountain Pure’s inverse condemnation claim is no more that its dismissed tortious interference claim thinly disguised as a taking.”  However, no taking has occurred under the facts. No waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Worthen, C.J., Hoyle, J., and Bass, Retired, J., Opinion issued by Justice Bass.  The attorney listed for the district is  John D. Stover.  The attorneys listed for Mountain Pure are Danny R. Crabtree and Jeffrey L. Coe.

Since interlocutory appeal by individual officials stayed proceedings, trial court had no authority to grant or deny City’s plea to the jurisdiction

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City of Brownsville, et al.,  v. Brownsville GMS, 13-19-00467-CV (Tex.App. – Corpus Christi, September 27, 2019).

This is a governmental immunity/contract case where a temporary injunction was sought.  The Corpus Christi court out of Edinburg held the trial court’s failure to rule on the City’s plea to the jurisdiction was not a denial of the City’s plea because a simultaneous separate interlocutory appeal was filed, staying the proceedings.

Brownsville GMS, Ltd. (GMS) sued the City of Brownsville (City), the Mayor, and the city commission members complaining of the manner in which the City awarded its waste-disposal contract.  GMS obtained a temporary injunction to preclude the City from acting on the award and an order for expedited discovery.  The individuals filed motions to dismiss based on Tex. Civ. Prac. & Rem. Code Ann. § 101.06(e). The City also filed two pleas to the jurisdiction asserting immunity. The trial court scheduled multiple motions to be heard on August 13, 2019. The trial court denied the motions to dismiss during the hearing. The individuals filed an interlocutory appeal during the hearing for the denial. The trial court did not rule on any other motions during the hearing, as the proceedings were stayed.

The City also appealed and argued that the trial court’s refusal to rule on its pleas to the jurisdiction invokes the implicit ruling doctrine and cites Thomas v. Long, 207 S.W.3d 334  (Tex. 2006). In Thomas, the implicit ruling was predicated on the trial court’s grant of affirmative relief to Long while at the same time failing to rule on Thomas’s plea to the jurisdiction. The trial court did not have authority to grant the relief Long sought unless it affirmatively determined that it had jurisdiction. Here, the trial court became aware that DeLeon filed an instantaneous interlocutory appeal, thereby staying all proceedings. The trial court correctly recognized it did not have the power to rule on the pleas and adjourned the hearing. Because the trial court had no authority to rule on the pleas, it did not implicitly deny the pleas. The appellate court therefore lacks jurisdiction to hear the  City’s appeal.

If you would like to read this opinion, click here. The panel consists of Justices Benavides, Longoria and Perkes. Memorandum opinion by Justice Benavides.

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

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

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

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

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

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

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

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

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

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

DFW is a special-purpose governmental entity which possesses immunity as a matter of law.  As a result, Torres must establish a waiver of immunity to proceed. The Texas Tort Claims Act expressly lists the operating and regulation of an airport to be a governmental function, so no proprietary aspects are involved. Although TEX. LOC. GOV’T CODE § 271.152 provides for a waiver of immunity in certain cases, that waiver is not absolute.  Unfortunately for Torres, she did not contract with DFW, but with an independent contractor of DFW.  The waiver under §271.152 applies only to contracts entered into directly with DFW.  The remaining arguments asserted by Torres (UDJA, TOMA, PIA, etc.) were not raised at the trial court so cannot be raised for the first time on appeal. The plea was properly granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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