Slowing and visually observing stopped traffic was not reckless action for purposes of emergency responder doctrine of TTCA

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City of Kingsville v Dominguez, 13-19-00236-CV (May 28, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the Corpus Christi Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the plaintiff’s claims.

Dominguez alleged that Oscar Mendiola, while operating a City fire truck, failed to yield the right of way at a signal light which resulted in a collision with Dominguez’s vehicle. The record demonstrated the fire truck was traveling behind an ambulance and the truck’s siren and emergency lights were both activated.  Mendiola slowed as he approached, visually confirmed traffic had stopped, then proceeded.  According to the official accident report, the investigating officer concluded that the fire truck driver was facing a red light and failed to yield the right of way to Dominguez. The officer also concluded that Dominguez “disregarded an Emergency Vehicle while operating emergency lights.” The officer did not issue a citation to either driver. The City filed a plea to the jurisdiction based on the emergency responder exception of the TTCA. The plea was denied and the City appealed.

Part of the policy behind the emergency responder exception is because imposing “liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks” and would “allow for judicial second-guessing of the split-second and time-pressured decisions emergency personnel are forced to make.”  However, compliance with the requirements of Chapter 546 of the Texas Transportation Code does not relieve the driver of liability if they act recklessly (i.e. he understood the risks but did not care about the result).  The City argued Mendiola acted to minimize the risk to others as he entered the intersection, thereby demonstrating that Mendiola “clearly did care about the result” of his actions. Dominguez responds that Mendiola’s actions of entering the intersection against a red light without stopping were evidence of recklessness. The court held the fire truck driver slowed below the speed limit, visually confirmed stopped vehicles, had the lights and sirens on, and therefore did not act recklessly. As a result, the plea should have been granted.

If you would like to read this opinion click here.

Texas Supreme Court holds immunity waived for arbitration clauses, but only a court can decide the immunity question

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San Antonio River Authority v Austin Bridge & Road, L.P., 17-0905 (Tex. May 1, 2020)

In this construction contract dispute, the Texas Supreme Court held Chapter 271 of the Texas Local Government Code waives immunity for arbitration clauses.

The San Antonio River Authority (“Authority”) hired Austin Bridge and Road L.P. (“ABR”) to perform repairs of the Medina Lake Dam.  Disagreements about scope of work and payment arose. ABR triggered the arbitration provision in the contract. When the arbitrator denied the Authority’s assertion it was immune, it sued ABR in district court seeking a declaration the Authority lacked the ability to waive immunity for arbitration. The trial court denied the Authority’s summary judgment. The court of appeals reversed in part, holding that while the arbitration provision was enforceable, only a court could determine immunity was waived. The Authority appealed.

Until the waiver in chapter 271 existed, governmental immunity shielded a local government from enforcement of its contract obligations. Currently, § 271.154 expressly provides that arbitration agreements are enforceable. The term “Adjudication” in chapter 271 means “the bringing of a civil suit and prosecution to final judgment . . . and includes the bringing of an authorized arbitration proceeding…”  Further, an arbitration is an “adjudication procedure” under the plain meaning of the statute. However, immunity is waived only to the extent authorized by chapter 271. As a result, the Authority was authorized to agree to arbitrate disputes arising from its contract with Austin Bridge, within chapter 271’s expressed limits.  However, the Court agreed with the court of appeals and held only the judiciary has a non-delegable duty to determine whether immunity has been waived. Because immunity bears on the trial court’s jurisdiction to stay or compel arbitration, and to enforce an arbitration award in a judgment against a local government, a court must decide whether governmental immunity is waived. An agreement to arbitrate is unenforceable against a local government to the extent it purports to submit immunity questions to an arbitrator. The Court then analyzed the contract and determined that while the contract was for the benefit of the River District, it also provided a benefit to the Authority and the Authority is the entity that entered into the contract. As a result, in this situation, the Authority’s immunity is waived.  The Court held the decision of whether ABR is seeking actual damage or consequential damages is not factually developed, however, ABR at least pled some possibility the damages sought are actual damages.

If you would like to read this opinion click here. JUSTICE BLAND delivered the opinion of the Court. Dissent filed by Justice Boyd, joined by Chief Justice Hecht and Justices Guzman and Devine.

Texas Supreme Court holds 90-day statute of limitations is a jurisdictional prerequisite to filing suit under Texas Whistleblower Act

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City of Madisonville, et al., v Sims, 18-1047 (Tex. April 17, 2020)

This is a Texas Whistleblower Act case where the Texas Supreme Court held the 90-day deadline for filing suit is jurisdictional.

David Sims was a police officer in the Madisonville Police Department. Sims received information that his boss, Sergeant Jeffrey Covington, planned to plant drugs in Covington’s ex-wife’s car to assist in his ongoing child-custody dispute. Sims and Covington had a bad history, both before and during Madisonville PD.  Sims told the Chief of Police, Charles May, but Chief May dismissed the information. Sims later discovered, by using an administrator access login, that Covington was compiling an “investigative file” on Sims presumably to have him fired. Sims was “dishonorably discharged” shortly afterwards for violating the Department’s computer-use policy. The dishonorable designation  was later changed to honorable by a SOAH administrative law judge.   Sims sued under the Texas Whistleblower Act after the SOAH determination (which was past the 90 day deadline to file suit). The City filed a plea to the jurisdiction, which was granted. The court of appeals reversed, holding the deadline was not jurisdictional. The City appealed.

Texas Government Code § 311.034 of the Code Construction Act makes statutory prerequisites to suit jurisdictional as to claims against governmental entities. The Texas Supreme Court has held “the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory and must be accomplished prior to filing suit.”  When a statutory prerequisite to suit is not met, “whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit),” the suit may be properly dismissed for lack of jurisdiction.  The Whistleblower Act clearly and unambiguously waives sovereign immunity to allow plaintiffs to obtain relief. But an employee with a Whistleblower Act claim must strictly abide by the procedural limitations set out in the Act to obtain relief, including the statute of limitations. The Act states the employee “must sue” within ninety days. The ninety-day filing deadline is thus a jurisdictional statutory prerequisite to suit.  The plea should have been granted.

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

U.S. 5th Circuit adopts 1st Amendment unbridled discretion/prior-restraint standards in federal suit against Texas Governor

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Freedom from Religion Foundation, Inc. v. Greg Abbott Governor of the State of Texas, 18-50610, (5th Cir – April 3, 2020)

This is a First Amendment case regarding immunity and viewpoint discrimination where the U.S. 5th Circuit adopted a specific prior restraint test.

The Texas State Preservation Board (“the Board”) is a state agency that preserves and maintains the Texas Capitol and its grounds. Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. Such displays must have a public purpose. FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol. FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit, which was also approved. FFRF’s depiction was displayed, but the day before its final display date, Governor Abbott sent a letter to then Executive Director of the Board, Mr. Welch, urging him to “remove this display from the Capitol immediately.” The letter explained that the exhibit was inappropriate for display because “[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare,” “the exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus[.]”  This letter resulted in the removal of the FFRF display prior to its scheduled removal date. When FFRF submitted another application for the same display, it was told the display did not promote a public purpose. FFRF sued for declaratory and injunctive relief.  The district court granted FFRF summary judgment on certain grounds and denied it on others.  The parties appealed/cross-appealed.

Governor Abbott and Mr. Welsh argue that the district court’s declaratory judgment is retrospective and therefore barred by sovereign immunity (including 11th  Amendment immunity). They further asserted no prospective relief was proper because the dispute is not ongoing. A litigant may sue a state official in his official capacity in federal court as long as the lawsuit seeks prospective relief to redress an ongoing violation of federal law. FFRF alleged constitutional violations against Abbott and Welsh in their official capacities. Further, they established an ongoing violation and Abbott and Welsh did not technically appeal the viewpoint discrimination finding. Speech cannot be prohibited on the basis of offensiveness, and the defendants have only presented arguments through counsel that their behavior will change.  The district court had jurisdiction to entertain the suit, and the controversy is ongoing.  The district court did not, however, have jurisdiction to award FFRF purely retrospective relief.  The declaration that FFRF’s rights were violated in the past is prohibited to the extent it is an individual claim. The U.S. 5th Circuit remanded for the trial court to determine proper prospective relief.  Next, the court analyzed the unbridled discretion arguments regarding public purpose determinations (i.e. prior restraint arguments). Unbridled discretion runs afoul of the First Amendment because it risks self-censorship and creates proof problems in as-applied challenges. Even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment. However, in situations such as where space is limited, certain discretion should be afforded. Because discretionary access is a defining characteristic of a limited public forum, the government should be afforded more discretion to use prior restraints on speech in limited public forums than in traditional public forums. The possibility (including imposed checks and balances) of viewpoint discrimination is key to deciding unbridled discretion claims in the context of limited or nonpublic forums. A reasonableness test would be insufficient, by itself.  In a matter of first impression for the 5th Circuit, the court held that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, the issue was remanded.

If you would like to read this opinion click here. Panel consists of Davis, Graves, and Higginson, Circuit Judges. Vacated and Remanded in part; Reversed and Remanded in part. Memorandum Opinion by Higginson, Circuit Judge. Attorney for Appellant is Kyle Douglas Hawkins, of Austin, Texas. Attorney for Appellee is Samuel Troxell Grover, of Madison, Wisconsin.

 

13th Court of Appeals holds it does not have interlocutory jurisdiction to hear 2nd motion which is nothing more than reconsideration of first plea to the jurisdiction

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City of Elsa, Texas v. Jesse Diaz, 13-19-00109-CV, (Tex. App – Corpus Christi – Edinburg, April 2, 2020)

This is an interlocutory appeal (2nd for the case) in a contractual immunity case where the 13th Court of Appeals held the City’s summary judgment was merely a motion to reconsider the already denied plea to the jurisdiction, so the appellate court lacked interlocutory jurisdiction.

Diaz was appointed as interim police chief but emails stated if not selected for the permanent position, he would resume his role as the warrants officer. Later, a new city manager removed Diaz from the chief position but terminated his employment. Diaz sued for breach of contract. The City first filed a plea to the jurisdiction which was granted.  However, the 13th Court of Appeals reversed and remanded. On remand, the City filed separate no-evidence and traditional motions for summary judgment, each reasserting that the trial court lacks subject matter jurisdiction because the city council did not formally approve the contract. The motions were denied and the City took this interlocutory appeal.

Although § 54.014(a) does not expressly limit a party to one interlocutory appeal, the right to successive interlocutory appeals is not without limits. When a second motion/plea constitutes nothing more than a motion to reconsider, without any new or distinct evidence or arguments, the appellate court lacks interlocutory jurisdiction. In making this determination, courts of appeals should compare both the substance and procedural nature of the two challenges.  The court held, in this case, the original plea and the motions for summary judgment, were substantively and procedurally identical. The only change is the  City added an affidavit which implicitly refutes evidence considered in Diaz I regarding the authority to enter into the contract by the City Manager. Since the second set of motions do not contain “new and distinct” challenges to the trial court’s jurisdiction, they are mere reconsiderations. The court of appeals, therefore, dismissed the appeal for lack of interlocutory jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Longoria, and Perkes. Dismissed – Want of Jurisdiction. Memorandum Opinion by Justice Perkes. Docket page with attorney information can be found here.

 

Eastland Court of Appeals holds conclusory statements in pleadings insufficient to plead jurisdiction – facts are needed to establish City had intent to commit a taking

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City of Albany v. Diana Christine Blue and Elva Rae Sanders, 11-18-00051-CV, (Tex. App – Eastland, April 2, 2020)

This is an interlocutory appeal in a nuisance and inverse condemnation case where the Eastland court of appeals reversed the denial of the City’s plea to the jurisdiction.  It then remanded to allow the Plaintiffs the ability to replead.

The City began construction of a drainage and improvement project for the city-owned golf course next to property owned by the Plaintiffs.  The Plaintiffs assert the construction altered surface water flow and drainage resulting in the flooding of their property. They sued and the City filed a plea to the jurisdiction, which was denied. The City appealed.

The City only challenged the sufficiency of the Plaintiffs’ pleadings and did not submit any evidence contrary to the alleged facts. The City asserts that Appellees failed to allege facts that show an intentional act of the City.  However,  if the City knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged. The Plaintiffs merely allege that “[Appellant] knew that its actions would cause identifiable harm, or that specific property damage was and is substantially certain to occur.” However, conclusory statements in a pleading are insufficient to establish jurisdiction.  As a result, the Plaintiffs did not sufficiently plead an inverse condemnation claim. Likewise, they failed to allege the required intent needed to establish a nuisance claim against the City under the Texas Constitution. Again, they provide mere conclusory statements.  However, the Plaintiffs were not put on notice their pleadings were defective. The pleading defects in this case are not the type that can never be cured. As a result, the case is remanded to give the Plaintiffs the opportunity to cure the defects.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey,  Senior Justice Wright, and Justice Stretcher. Memorandum Opinion by Justice Stretcher. Docket page with attorney information can be found here.

Contractor properly complied with administrative dispute resolutions in contract, so properly exhausted administrative remedies holds Dallas Court of Appeals

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Dallas Area Rapid Transit Authority v. GLF Construction Company, 05-19-003930-CV, (Tex. App – Dallas, April 3, 2020)

This is an interlocutory appeal in a contractual immunity case where the Dallas Court of Appeals affirmed the denial of DART’s plea to the jurisdiction.

GLF and DART entered into a contract for GLF to built part of a DART light rail extension. In the contract, the parties agreed to an administrative dispute resolution process. According to GLF, DART’s inadequate project administration drove GLF’s costs up far beyond the contract price.  GLF submitted a paragraph 50 request for equitable adjustment. GLF administratively appealed the contracting officer’s decision to an administrative judge, but the judge’s decision, while finding liability, did not list which party owed any money. In January 2019, GLF sued DART for breach of contract and to hold the resolution process unconstitutional. DART filed a plea to the jurisdiction, which was denied.

DART asserts GLF failed to exhaust its remedies under the resolution process. However, the court interpreted DART’s position as essentially stating that because GLF did not sue to challenge the judge’s decision and formally list the suit as an appeal, that this lawsuit does not qualify as an appeal of that decision, and therefore GLF did not exhaust its remedies. The court noted in this lawsuit, GLF requested a trial de novo from the administrative law judge’s decision and sought damages. As a result, the petition challenges the administrative judge’s decision within the plain meaning of the regulations and contract. The plea was properly denied.

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

School district failed to establish unauthorized contract, even with TEA report declaring contract was executed in violation of procurement laws

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Harlandale Independent School District v. Jasmine Engineering, Inc, 04-19-00638-CV, (Tex. App – San Antonio, March 11, 2020)

This is a breach of contract/immunity case where the San Antonio Court of Appeals affirmed the denial of the school district’s plea to the jurisdiction.

Harlandale Independent School District (the “District”) and  Jasmine Engineering, Inc. (“Jasmine”) entered into a Professional Services Agreement (“PSA”)which was amended six times. When the District terminated the contract, Jasmine sued for breach of contract.  The District filed one plea to the jurisdiction challenging only the pleadings, which the 4th Court already considered and held Jasmine properly pled a waiver of immunity. On remand, the District filed another plea to the jurisdiction challenging jurisdictional facts. The plea was denied, and the District appealed.

Texas Education Agency (“TEA”) performed an investigation and issued a determination that the District violated state law procurement requirements by entering into the PSA and amending it. The District therefore asserts no valid contract was created. Section 271.152 of the Texas Local Government Code waives immunity for contracts for goods or services. Under chapter 271 a valid contract is one stating the essential terms for providing goods or services to the local governmental entity and that is properly executed on behalf of the local governmental entity. Jasmine Engineering asserts that the TEA cannot determine the validity of the PSA and, if the matter were properly before the trial court, Jasmine Engineering would argue waiver and other legal theories. While the District relies on the TEA report, the District did not advance that it also determined the PSA was not authorized. While it is true that the TEA has the statutory authority to initiate investigations into contracting matters, make findings, and impose sanctions pursuant to its findings, these powers do not imply that the TEA’s findings bind the trial court or are a jurisdictional bar. Tex. Educ. Code §39.057.  And while the TEA report is attached to the plea, none of the supporting documentation was included. As a result, the evidence did not negate the pleadings and the trial court properly denied the plea.

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

13th Court of Appeals holds statute of limitations properly raised in plea to the jurisdiction and “damage” to real property is limited to two-year SOL

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Danis Tucker and Beverly Tucker v. City of Corpus Christi, Texas, 13-18-00328-CV, (Tex. App – Corpus Christi, Feb. 27, 2020)

This is a takings claim where the Corpus Christi Court of Appeals affirmed the granting of the City’s plea to the jurisdiction involving junked vehicles v antique vehicles.

A City municipal court judge ordered that four vehicles located on the Tuckers’ residential property be seized and disposed of pursuant to the City’s junked vehicles ordinance.  The Tuckers sued claiming a taking under the Texas Constitution. The City filed a plea to the jurisdiction, based in part on a statute of limitations defense,  which was granted.  The Tuckers appealed.

The court first addressed whether the statute of limitations is now considered a jurisdictional defense (as opposed to an affirmative defense) which could be raised in a plea. Adopting reasoning from other districts, the court held Tex. Gov’t Code §311.034 states compliance with statutory prerequisites to suit are jurisdictional. A statute of limitations is a prerequisite to suit and is therefore jurisdictional when dealing with a governmental entity. It, therefore, can be raised in a plea. Under § 16.003 of the Texas Civil Practice and Remedies Code, a takings claim based on a physical seizure of “personal property” is governed by a two-year limitation, while a takings claim based on the actual physical seizure of real property is a ten-year period (referencing adverse possession). However, a takings claim based on “damage” to real property is governed by the two-year limitations period. The statute of limitations begins to run when a claim accrues, which occurred more than four years before the Tuckers brought suit. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Hinojosa, and Tijerina. Affirmed. Opinion by Justice Hinojosa. Docket page with attorney information can be found here.

Texas Supreme Court holds supervisor’s order to use tear-gas gun was “use” under TTCA, but riot exception preserved immunity

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Texas Dept. Crim. Justice v Cesar Rangel, 18-0721, (Tex. Feb. 7, 2020)

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Department of Criminal Justice (“Department”) retained immunity for hitting an inmate with a tear-gas shell.

Two groups of inmates were threatening each other in  The Pam Lychner State Jail.  The groups totaled approximately thirty (30) inmates. After giving orders to cease hostilities for almost an hour, which were ignored, Department officials ordered a guard to fire tear-gas (including a skat shell) at the groups.  A “skat shell” launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters. The shell hit Rangel, injuring him. Rangel sued.  The Department conducted an internal use-of-force review that “revealed several mistakes” as to how the incident was handled, noting that the skat shell was “designed for outdoor areas” only and “that chemical agents should have been administered through the door rather than in the middle of the housing area.” The official who authorized the use indoors was disciplined. The Department filed a plea to the jurisdiction, which was denied.

The Texas Supreme Court held the supervisor’s order to use the tear-gas gun was a “use of tangible personal property” under the TTCA. It was not the use by the individual guard following orders, but was a “use” by the supervisor who authorized an order the gun be put into play. The distinguishing factor is the order by the supervisor specifically to use the weapon, and not merely making the weapon available to the guard with no direction. [Comment: the Court spent multiple pages in the opinion on this distinction.] This also had an interplay with the court of appeals opinion on the intentional tort exceptions. However, the immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.” TEX. CIV. PRAC. & REM. CODE § 101.057(1). Rangel argued that the circumstances did not constitute a riot or there was a fact issue as to whether a riot existed. Using the plain and ordinary meaning of the term “riot” also includes how the term is used in other statutes, including the Penal Code. The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.” TEX. PENAL CODE § 42.02(a). While not identical, that definition is in line with the ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events but also the immediate danger.  As a result, the undisputed facts of the case constitute a riot as a matter of law. As a result, no waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Opinion by Justice Lehrmann.  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.

Knowledge of a hypothetical hazard is insufficient to waive immunity under the TTCA for premise defects says 1st Court of Appeals

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The City of Houston v. Bobby Terry, 01-19-00197-CV (Tex. App. – Houston [1st Dist.], Jan. 23, 2020).

This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the  City. Terry was employed by a contractor at the time, but he was accompanied by a City employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power.  However, when Terry touched the lightbulb which needed replacing 300 feet up the tower, he was shocked. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because (1) power immediately stops running to the tower when the control box’s faceplate is removed and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence existed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premise defects. The City filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premise defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The Tort Claims Act’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premise defect theory, the City only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premise defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premise defect analysis. Under a premise defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off.  Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Lloyd, Justice Goodman, and Justice Landau.  Memorandum opinion by Justice Goodman. The docket page with attorney information can be found here.

Fort Worth Court says under premise defect claim plaintiff paid for use of the property even though she was using public sidewalk

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The City of Fort Worth, Texas v. Dianne Posey, 02-19-00351-CV, (Tex. App – Fort Worth, Jan. 16, 2020)

This is a premise liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (“WRMC”). Posey asserts she paid for entry to the  Coliseum. The City asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the City.  After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee.  The City filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the City appealed.

If Posey was a licensee, she must show that the City had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the City should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the City. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the City to rent the premises. However, the City asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the City that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the City’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Birdwell, Bassel, and Wallach. Opinion by Justice Birdwell. Docket page with attorney information found here.

Fort Worth Court of Appeals holds no waiver of immunity for declaratory judgment relief against county for competitive bidding violation

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Tarrant County, Texas v. Jeffrey D. Lerner, 02-19-00330-CV, (Tex. App – Fort Worth, Jan. 9, 2020)

This is a declaratory judgment/immunity case where the Fort Worth Court of Appeals held the County retained immunity for declaratory claims alleging violations of the competitive bidding statute.

The County had a contract with Dispute Resolution Services of North Texas (DRS) to manage the County’s alternative dispute-resolution services and was valued at over $400,000 per year. When renewing the contract, Tarrant County did not seek competitive bids for the contract. A competitor, Lerner, sued asserting after the last renewal the contract was invalid due to the lack of bidding. The County filed a plea to the jurisdiction which was denied.

The immunity waiver contained in the competitive bidding statute is specific and narrowly drawn – “Any property tax paying citizen of the county may enjoin performance under a contract made by a county in violation of [the Act].” Tex. Loc. Gov’t Code Ann. § 262.033. The court held the Legislature intended to waive immunity for injunctive-relief claims arising from violations of the statute. However, that does not waive immunity for attorney’s fees or any other form of relief. As a result, the court found the County retained immunity for Lerner’s declaratory judgment claims. The plea should have been granted.

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

No waiver of immunity when non-profit sues to invalidate transfer of real property to city

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City of Houston and Keith W. Wade v. Hope for Families, Inc, 01-18-00795-CV, (Tex. App – Houston [1st Dist.], Jan. 9, 2020)

This is a governmental immunity case where the First  Court of Appeals held the contracting non-profit did not establish a waiver of immunity.

Hope for Families, Inc. (HFF) acquired the property for a community development project financed by the City which fell through.  HFF negotiated a transfer of the property to the City in exchange for debt forgiveness. HFF later sued to invalidate the transfer alleging the City’s negotiator, Wade, committed fraud when negotiating. The City filed a plea to the jurisdiction which was denied and the City appealed.

HFF asserts “A corporation may convey real property of the corporation when authorized by appropriate resolution of the board of directors or members.” Tex. Bus. Org. Code § 22.255, which it did not do. However, that provision does not grant HFF the right to sue to invalidate a transfer and does not waive immunity. HFF also sued Wade as an individual. While Wade is immune individually (as fraud is an intentional tort), the court held HFF should have the opportunity to replead an ultra vires claim.

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