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

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

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

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

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

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

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

If you would like to read this opinion click here.   Panel consists of Justices Goodman, Landau, and Hightower.  Opinion by Justice Richard Hightower.

The Third Court of Appeals held that no implied authority exists for actions of a state agency without a showing that the implied authority is required to effectively perform a statutorily expressed responsibility.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

University of Texas at Austin President Jay Hartzell, et al. v. S.O., et al., No. 03-19-00131-CV (Tex. App.—Austin September 4, 2020).

In this ultra virus University case, the plaintiff sued University officials for exceeding their authority in attempting to revoke her Ph.D after she had already graduated from the University.    The Court of Appeals held that the University did exceed its authority in attempting to revoke her earned degree because they do not have specific statutory authority to revoke degrees and the authority to revoke degrees is not essential to its statutory authority to award degrees.

The plaintiff was awarded a Ph.D in 2008.  In 2012, the University conducted an investigation and attempted to revoke her Ph.D for academic misconduct in 2014.  The plaintiff sued the University stating that her due process rights were violated by the University’s procedure.  The University undid its revocation and instituted a different procedure to investigate the possibility of revoking the plaintiff’s degree again.  In response to the University’s renewed efforts, the plaintiff sued the University in this suit as an ultra vires claim.  The University defendants filed a plea to the jurisdiction arguing they had the authority to revoke the degree because its rules allowed it and because the authority to revoke degrees is implied with the authority to award degrees.  This case has been through the appellate process once on the issue of ripeness.  The appellate court held that her complaint was ripe and the case was sent back to the trial court.  Upon return, the trial court granted-in-part and denied-in-part the plea.  In this appeal, the issue is whether the University has the authority to revoke degrees, the basis of the plaintiff’s ultra vires claim.

An ultra vires claim waives immunity if the plaintiff can show that an official’s conduct exceeded their granted authority.  Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).  State agencies, like the University, only have the authority that they are given by statute and may only adopt rules pursuant to their statutory authority.  Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008).  State law gives a University the authority to “award” a degree, but not to revoke one.  Tex. Educ. Code § 65.31(b).  Authority can be implied if the agency needs the power in order to allow the agency to effectively carry out the functions necessary for its expressed authority.  Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192-93 (Tex. 2007).   The Court of Appeals held that the authority to award degrees does not require the authority to revoked degrees, and therefore revoking a degree after a student has earned it and graduated is an ultra vires act waiving sovereign immunity.

The Court also affirmed the trial court’s denial of attorney’s fees from the plaintiff.  Even though the plaintiff prevailed, the legal questions were ones that needed to be decided and an appellate court gives a trial court wide discretion in determining attorney’s fees so long there is no abuse of discretion.

Justice Kelly issued a concurring and dissenting opinion stating that the University does have the authority to revoke a student’s degree, but that the claims are not ripe.

If you would like to read this opinion click here.   Panel consists of Justices Goodwin, Baker, and Kelly. Opinion by Justice Thomas Baker.  Concurring/dissenting opinion by Justice Kelly can be found here.

The First Court of Appeals held City EMS providers are “health care professionals” therefore claims related to emergency medical services must be brought as health care liability claims requiring expert reports.  

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Shirley Houston, No. 01-19-00255-CV (Tex. App.—Houston [1st Dist.] August 25, 2020).

In this medical negligence case, the plaintiff sued the City after being injured during her ambulance transport.  The Court held she had to bring a health care liability claim and dismissed the suit for failure to provide the required expert report.

The City’s emergency medical staff dropped the plaintiff from a gurney while transporting her the ambulance.  The plaintiff was injured.  The plaintiff sued the City as a negligence claim and not as a health care liability claim. The City argued the claim should be dismissed for not filing the statutorily required expert report as a health care liability claim.  The trial court denied the City’s motion to dismiss.  The City appealed.

A claim is a health care liability claim under the Texas Medical Liability Act if the injury is caused by “(1) whether the defendant is a physician or health care provider; (2) whether the claim at issue concerns treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety, or professional or administrative services directly related to health care; and (3) whether the defendant’s act or omission complained of proximately caused the injury to the plaintiff.”  See Tex. Civ. Prac. &  Rem. Code Chapter 74.  The Court of Appeals held that EMS for the City is a “health care provider” because emergency services providers are included in the definition of health care institution, regardless of the fact that the City is a political subdivision.  Id.  The Court provided a long list of health care liability claims brought against political subdivisions as examples.  Next, the Court held that the claim involves an allegation with a nexus between the injuries and the provision of medical care including that the gurney was a piece of medical equipment and she was being transported for medical care when the injuries occurred.  See  Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).  Finally, the Court held that the location of the injury does not determine whether it is a health care liability claim.  Because the Court determined that the claim is a health care liability claim, an expert report was required, but never filed by the plaintiff.  The claim should have been dismissed.

If you would like to read this opinion click here.   Panel consists of Justices Kelly, Hightower, and Countiss. Opinion by Justice Julie Countiss.

El Paso Court of Appeals holds under Texas Tort Claims Act that a proper jurisdictional analysis should “not involve a significant inquiry into the substance of the claims.”

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City of El Paso, Texas v. Joanna Cangialosi, 08-19-00163-CV (Tex. App. – El Paso, Aug. 31, 2020).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claim Act (“TTCA”) automobile accident case. The El Paso Court of Appeals affirmed the denial.

Cangialosi was approaching a red stoplight. A vehicle driven by Aaron Roacho approached Cangialosi’s car from the rear at a high rate of speed, failed to stop, and struck Cangialosi’s vehicle with enough force to drive it into two other vehicles, killing several passengers. El Paso police officers were conducting surveillance in a residential neighborhood to investigate a spate of recent house burglaries. When police began following two suspects, the suspects increased their speed to avoid apprehension.  Six other El Paso police vehicles joined the pursuit, but Plaintiffs allege only one was a marked police unit that had its lights and siren engaged. They then lost sight of the vehicle.  The suspect vehicle (who testified he was not aware he was being followed by police) struck Cangialosi’s car.  Officer Villalobos, prior to the Cangialosi’s collision, struck another car due to his speed. The petition alleges that the manner in which the officers conducted the pursuit proximately caused the collision.  The City’s police department brought disciplinary charges against Villalobos and another officer, which were sustained as violating a safety practice and excessive speed (60mph in 30 zone). After Cangialosi filed suit, the City filed a plea to the jurisdiction which was denied. The City appealed.

The City first asserted that no evidence existed a “pursuit” was underway so failing to follow the pursuit policy is irrelevant. The court held given that officers had witnessed an apparent break-in by the two-vehicle occupants, there is at least some evidence the police intended to apprehend the suspects.  Moreover, the record contains at least some evidence of a violation of department policy.  The Texas Supreme Court has agreed that a “peace officer’s flawed execution of policy gives rise to a colorable negligence claim.”  While expressing no opinion on whether negligence actually exists, the Court held sufficient pleadings and evidence creating factual disputes exists to establish jurisdiction and submit to a jury. The City next argued the suspect testified he was not aware that any vehicle was following him, so any pursuant could not have caused the accident. However, since the City did not respond to the Plaintiff’s arguments as to factual issues which may exist, the Court simply held it was not the role of the court to divine responses to well-articulated and facially plausible arguments.  Therefore, it held the Plaintiff has at least raised a fact question as to whether the suspect driver appreciated that the police were in pursuit at the time of the crash. A plaintiff is not required to “put on their case simply to establish jurisdiction.”  The plea was properly denied.

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

 

The First Court of Appeals to move forward with retaliation claim plaintiff must provide evidence of but-for causation

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Kimberley R. Trimmer-Davis, No. 01-19-00088-CV (Tex. App.—Houston [1st Dist.] August 25, 2020) (mem. op.).

In this employment retaliation case, the plaintiff sued the City when suspended after making a complaint and later terminated after failing to follow drug testing procedures.  The Court of Appeals allowed the retaliation claim related to the suspension move forward but dismissed the retaliation claim for termination due to no but-for causation evidence.

The plaintiff was a civil service employee of the City who made a complaint related to the treatment of females in her City department.  After investigating the complaint, the City determined the claim was untruthful and suspended the plaintiff for one day.  The Civil Service Commission overturned the suspension, but the untruthfulness complaint was left in the plaintiff’s personnel file.  The employee sued for retaliation for the suspension and for refusing to remove the untruthfulness complaint from her files.  Three weeks later, the employee was selected to take a random drug test and failed to follow the proper testing procedure multiple times.  She was terminated for her failure to properly follow the requirements. The plaintiff filed another complaint related to her termination.  The trial court granted the City’s plea to the jurisdiction as to the recordkeeping claim but denied the plea for the one-day suspension and the termination.  Both parties appealed.

To show retaliation, the employee has to show an adverse employment action was caused in retaliation for protected activity.  There is no disagreement that adverse employee actions occurred or that protected activity occurred prior to the actions.  The process for proving retaliation through circumstantial evidence is that: (1) the plaintiff prove that the adverse employment action and the protected activity occurred; (2) the employer then present non-retaliatory reasons for the actions; and (3) finally the plaintiff shows that the non-retaliatory reasons are pretextual.  The City argued that it had non-retaliatory reasons for the terminations.  The plaintiff argued that the non-retaliatory reasons were a pretext for all three activities (suspension, keeping the untruthfulness complaint in her file, and the termination).  The Court of Appeals held that the suspension occurred in a manner inconsistent with the City’s own policies, which provides sufficient evidence of pretext. The Court also held that the City’s arguments regarding its recordkeeping were insufficient to definitely prove there was no retaliatory intent in keeping the untruthfulness complaint in its files because the City’s policies related to recordkeeping were vague and contradictory.  Finally, the Court of Appeals held that there was sufficient evidence that the City had non-retaliatory reasons for the termination related to the drug testing and that the plaintiff had not provided sufficient evidence that her earlier complaints were a but-for cause of her termination.  The case was sent back to the trial court on the recordkeeping and suspension retaliation claims.

If you would like to read this opinion click here.   Panel consists of Justices Kelly, Hightower, and Countiss. Opinion by Justice Peter Kelly.

Dallas Court of Appeals holds City’s immunity waived when manhole cover flipped up and struck motorist

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City of Saginaw, Texas v. Brandon Cruz, 05-19-01141-CV, (Tex. App – Dallas, Aug. 27, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals affirmed in part and reversed in part.

The City had contractors working on widening a roadway.  With partial construction complete, the City opened a portion of the road.  The day the roadway portion opened, Crus started driving on the road when  a manhole cover flipped open in front of him after the preceding car drove over it.  Cruz was injured and filed suit. During litigation, the City responded to admissions, but later discovered the admissions were incorrect and based on an incomplete copy of the construction contract.  The City moved to amend its admissions and filed a plea to the jurisdiction, which was denied. The City appealed.

The court agreed with the City that the only potential claim would be a premise liability claim and thereafter dismissed Cruz’s general negligence claims. Although the TTCA imposes different standards of care depending on whether the condition is a premises defect or a special defect, the City did not contest in its plea whether the manhole cover constituted a premises defect or a special defect. Cruz had only to prove that Saginaw had constructive knowledge of any alleged special defect. While the City attempted to limit the time frame of the defect to when the preceding car caused the cover to flip up, the court found the City could have and was alleged to have constructive knowledge the manhole was not affixed property and therefore constituted constructive knowledge of a special defect. While the City argued it could not have discovered the problem with the manhole as it did not control the construction site, the contract reserved the City’s right to enter and inspect the work. Further, the City’s admissions admitted a certain level of control consistent with the contract. The admissions the City sought to amend concerned the City’s control over the manhole cover and contractor work.  After analyzing the timing of the admissions and motion to amend, and noting other admissions also establish control over the site, the court held the trial court did not abuse its discretion in denying the motion to amend admissions.

Justice Schenck’s dissent held the record contains no evidence of the nature of the defect, actual knowledge of the defect, how long the defect existed, or that a reasonable inspection would have discovered the defect. The majority opinion equates to the City being strictly liable for the alleged defect, which is contrary to the law.

If you would like to read this opinion click here. Panel consists of Justices Schenck, Partida-Kipness, and Nowell. Affirmed. Memorandum Opinion by Justice Partida-Kipness. Dissenting Opinion by Justice Schenck can be found here. Docket page with attorney information can be found here.

Fort Worth Court of Appeals holds trial court lacked jurisdiction involving school district’s disciplinary decision

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This is an interlocutory appeal from the denial of a plea to the jurisdiction filed by Northwest Independent School District.

Plaintiffs sued Northwest ISD on behalf of their minor child, C.R., seeking a temporary restraining order and injunctive relief based on the violation of C.R.’s rights to freedom of speech, freedom of association, and procedural and substantive due process. Parents allege that Northwest ISD enforced its “zero tolerance” policy when a search team found a substance in C.R.’s vehicle that was alleged to be marijuana. Parents utilized the Northwest ISD three-level appeal process. Ultimately, the consequences for C.R was assignment to an alternative school program and exclusion from drill team. Northwest ISD filed a plea to the jurisdiction asserting disciplinary decisions under Chapter 37 of the Texas Education Code could not be appealed.  The trial court granted the temporary restraining order and denied the plea to the jurisdiction.  Northwest ISD appealed.

Regarding discipline, the court held Chapter 37 expressly states such decisions are final and cannot be appealed. Therefore, the trial court lacked jurisdiction to consider Northwest ISD’s decision. The Court then held that “students do not possess a constitutionally-protected interest in their participation in extracurricular activities,” such as drill team. Parents’ claim of a constitutionally protected interest in their monetary investment in drill team was therefore invalid. Regarding the due process claims, the Court held that transferring C.R. to an alternative education program did not deprive C.R. of her right to receive an education. Further, there was no due process violation by infringing on C.R.’s right to her “good name and reputation.” Finally, the Court found the appeal process laid followed by Northwest ISD did not implicate due process violations. As a result, the plea should have been granted.

If you would like to read this opinion click here.  The panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Plaintiff’s notice was sufficient under § 101.101 of TTCA

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Metro. Transit Auth. of Harris County v. Hunter, 14-18-00822-CV, (Tex. App.—Houston [14th Dist.] Aug. 18, 2020, no pet. h.)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a slip/fall case filed against Metropolitan Transit Authority of Harris County, Texas (Metro).  The Fourteenth Court of Appeals affirmed the denial.

Metro filed a plea to the jurisdiction asserting that Plaintiff, Bridget Hunter’s (“Hunter”), personal injury suit was jurisdictionally barred because she to failed provide proper notice under the Texas Tort Claims Act. Hunter filed her personal injury suit against Metro within six months of the incident made the basis of her suit. Metro, while acknowledging a notice was filed within six months, argued it failed to have all the minimum statutory requirements. The trial court denied Metros’ plea and Metro appealed.

The court found that Hunter’s petition met all Texas Tort Claims Act (TTCA) statutory notice requirements. Specifically, she alleged (1) the damage or injury claimed, that Hunter “suffered serious personal injuries,” and that she was also seeking damages. She alleged the time and place of the incident by alleging that she sustained personal injuries on February 20, 2017, on a bus in Harris County, Texas, while the “bus driver was driving bus route 028 within the course and scope of employment for Defendant METRO. Plaintiff was picked up at Stop Id: 12198 approximately at 8:30 A.M. on February 20, 2017.” “After Plaintiff boarded the bus, she slipped and fell on a watery substance twice. Subsequently, the bus driver negligently continued driving after seeing that Plaintiff had fallen.” The court found that the language contained in Hunter’s first amended petition met the TTCA’s explicit notice requirement and affirmed the trial court’s denial of Metro’s plea.

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

Homeowners Association Had Standing to Sue Planning and Zoning Commission for Mandamus Relief

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 Escalera Ranch Owners’ Ass’n, Inc. v. Schroeder, 07-19-00210-CV, 2020 WL 4772973 (Tex. App.—Amarillo Aug. 17, 2020, no pet. h.)

This is an interlocutory appeal from the trial court’s order granting the plea to the jurisdiction.

In April of 2018, the City of Georgetown’s Planning and Zoning Commission (“Commission”) approved a plat for a new 89-home subdivision to be located adjacent to and north of an existing residential subdivision known as Escalera Ranch. The sole means of access to the new subdivision was through a residential street that provides access to and through the Escalera Ranch. The homeowner’s association of Escalera Ranch (“Association”) sued the Commission under mandamus seeking to invalidate the plat. The Association also requested a temporary injunction to halt the development of the subdivision. The Commission filed a plea to the jurisdiction which was granted and the Association appealed.

To enjoin the actions of a governmental body, an individual must plead and prove a “special injury,” by alleging how the person has been damaged beyond the same damage to a member of the general public. The Association alleged new residential subdivision would create a material increase in traffic as one street would serve as the sole inlet for both subdivisions. The association also alleged the added congestion creates a potential safety risk to the safety and welfare of neighborhood residents because the street served as the only emergency vehicle access to the neighborhood. Based upon those allegations, the court found Association’s members have an interest peculiar and distinguishable from the general public. Further, the Association alleged the Commission abused its discretion by approving a plat that did not comply with the City’s fire code. The court found the act of approving the plat was ministerial only if the plat conformed to applicable regulations, and if it does not conform, the act is not ministerial. If the Commission approved a plat that failed to comply with applicable regulations, it could constitute an abuse of discretion, subject to mandamus relief.

If you would like to read this opinion click here. The panel consists of Justices Pirtle, Paker and Doss.  Opinion by Justice Parker.

San Antonio Court of Appeals holds governmental immunity bars both suit and liability where the ‘only plausible remedy’ is invalidation of a government contract.

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City of San Antonio v. Patrick Von Dohlen, et al., 04-20-00071-CV (Tex. App.—San Antonio Aug. 19, 2020)

 This is an interlocutory appeal from the denial of a plea to the jurisdiction and Rule 91a motion to dismiss filed by the City of San Antonio.

Plaintiffs Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri sued the City of San Antonio (“City”) seeking declaratory and injunctive relief.  Plaintiffs alleged that the City violated Government Code Chapter 2400 by continuing to exclude Chick-fil-A from operating a restaurant in the City’s airport based on Chick-fil-A’s financial support for “certain religious organizations that oppose homosexual behavior.”  Section 2400.002 of the Texas Government Code specifically prohibits governmental entities from taking any adverse action against any person or business based on “membership in, affiliation with, contribution, donation, or other support provided to a religious organization.”  This legislation took effect on September 1, 2019, more than five months after the San Antonio City Council voted to implement an amended concession agreement that required Chick-fil-A to be replaced with a different vendor.  The City filed a plea to the jurisdiction, asserting governmental immunity, and a Rule 91a motion to dismiss for lack of standing, both of which the trial court denied.  The City then appealed.

The Fourth Court of Appeals determined that although a plaintiff may properly sue for declaratory and injunctive relief when the governmental entity and its officers acted without legal or statutory authority, such a suit is precluded by governmental immunity if the purpose or result is to cancel or nullify a valid contract with the entity.  In this case, the court examined the nature of the plaintiffs’ claims and held that even though the plaintiffs purportedly sought only prospective relief against the City, the only plausible remedy for their claims was nullification of the amended concession agreement.  The court agreed with the City and found that plaintiffs’ suit sought to “undo and invalidate a contract previously approved by the city council, compel the City to re-open the contract approval process, and require the City to re-award the contract to a subcontractor that will operate a Chick-fil-A restaurant in the airport.”  Furthermore, where the “only plausible remedy” for the plaintiff’s claim is invalidation of a government contract, governmental immunity bars both suit and liability.  As a result, the plea should have been granted.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Beaumont Court of Appeals holds pro se Plaintiff did not establish entitlement to injunctive relief to prevent demolition of building

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Rema Charles Wolf v. City of Port Arthur, 09-19-00047-CV, (Tex. App – Beaumont, Aug. 6, 2020)

This is an interlocutory appeal from the denial of a temporary injunction request by a pro se property owner.

Pro se Plaintiff Wolf sued the City seeking a temporary restraining order and temporary injunction relief asserting the City failed to grant her a permit to repair a building she owns after Hurricane Harvey.  According to Wolf, the building “was never hazardous for anybody[.]”  The petition made claims against the City for fraud, harassment, and trespass, and sought damages. She also sought a restraining order to prevent the City from demolishing the building. The trial court granted the TRO and set the temporary injunction for a hearing. The  City demolished the building. The City filed a plea to the jurisdiction asserting The City also alleged that § 214.0012 of the Texas Local Government Code provides the exclusive remedy and basis for judicial review of actions related to the City’s Construction Board of Adjustments and Appeals. In a second plea, the City produced evidence of a public hearing on the demolition and that Wolf signed in and presented.  After the public hearing, the Board entered a ninety-day raze-or-repair order and provided it to Wolf. According to the plea, the City sent Wolf a letter on October 25, 2018, that notified her of the upcoming demolition, demolition began on November 15, 2018, and the demolition was two-thirds completed when the City received notice of the TRO.  After a temporary injunction hearing, the trial court denied the temporary relief and finding the plea was moot.

For a temporary injunction, a review of a trial court order is limited.  In this case, several of Wolf’s issues on appeal complain about matters not within the scope of the order being appealed. The record includes no appealable ruling, order, or judgment granting or denying damages or some of the other relief requested by Wolf. As a result, the court of appeals lacks jurisdiction over such requests.  “An appeal from an order on a temporary injunction becomes moot when the act sought to be enjoined occurs.” In this case, the remainder of the building was demolished.   The trial court expressly stated at the conclusion of the hearing that it had not found sufficient evidence of irreparable loss. Deferring to the trial court as fact finder, the court of appeals held the trial court did not abuse its discretion in denying the injunctive relief.

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

Plaintiff properly alleged premise defect claim for valve cover protruding through worn roadway but failed to establish waiver under any other theory

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The City of Beaumont v. Raul Isern, 09-19-00451-CV, (Tex. App – Beaumont, Aug. 13, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a personal injury/premise defect case. The Beaumont Court of Appeals affirmed in part and reversed in part.

Plaintiff Isern asserts he was injured when he struck a water valve street cover on the roadway while riding his bicycle. Isern alleged that the City failed to properly inspect, repair, and Maintain its public streets, and had actual and/or constructive knowledge of the dangerous condition. According to Isern, the City allowed the condition of the roadway to deteriorate and become unsafe, causing the valve cover, which was once “flush” or level with the street, to protrude from the buckled, cracked, split, uneven, and unsafe pavement.  He asserted claims for premise defect, special defect, and the negligent use of tangible personal property. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The court first held tangible personal property must do more than merely furnish the condition that makes the injury possible. As such, Isern’s pleadings fail to allege facts that affirmatively demonstrate that his injuries arose from the City’s use of tangible personal property. The court then agreed with the City that the valve cover is not a special defect. “Construing the valve cover to be an excavation or obstruction which presents an unexpected and unusual danger to the ordinary user of the roadway strains the definition of those conditions.” However, regarding the premise defect claim, Isern specifically pled that the City failed to warn about the condition despite having had actual knowledge that the condition was both unreasonably dangerous and posed an unreasonable risk of harm. Isern also asserted he had no knowledge of the dangerous condition. Isern further pled the condition was not a longstanding or permanent fixture of the roadway, and that the incident was proximately caused by the City’s negligence when it repaved the area and left the valve cover above pavement grade. Isern alleged that the City had received prior reports of accidents at the location where the incident occurred. In its response, the City produced no evidence of its lack of knowledge of the condition. Finally, while Isern properly plea a premise defect claim, he cannot assert a general negligence claim with an independent waiver of immunity under the TTCA.   As a result, the plea was properly denied as to the premise defect claim but should have been granted as to all others.

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