Note: Included cases are from March 11, 2016 through April 10, 2016.
Contracts: Wasson Interests, Ltd. v. City of Jacksonville, No. 14-0645, 2016 WL 1267697 (Tex. Apr. 1, 2016). This is a proprietary-governmental dichotomy in contracts case where the Texas Supreme Court ruled the dichotomy does exist within the context of breach of contract disputes.
In the 1990s, the Wassons assumed an existing 99-year lease of lakefront property owned by the City of Jacksonville. The lease specifies, among other things, that the property is to be used for residential purposes only. After living on the property for several years, the Wassons moved and conveyed their interest in the lease to Wasson Interests, Ltd. (WIL). WIL then began renting the property for terms of less than one week, which the city asserted violated the terms of the lease. After the city and WIL entered into a settlement lease (restricting rentals to families for more than 30 days) the dispute was abated. However, in 2011, the city asserted WIL violated the lease and sent an eviction letter. WIL sued for breach of contract, seeking injunctive and declaratory relief. The city moved for summary judgment on governmental immunity grounds which the trial court granted. Following the San Antonio Court of Appeals opinion in City of San Antonio v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597 (Tex. App.—San Antonio 2012, pet. denied), the Tyler court rejected WIL’s argument the lease contract was a proprietary function not entitled to immunity protection. WIL appealed.
The court began by going back to the time Texas first joined the union and recognized sovereign immunity as a concept. It tracked immunity through the years and the changing policy reasons for it. It recognized a city is not a freestanding sovereign with its own inherent immunity, but only acts which are governmental in nature are immune. It likened the proprietary element to that of ultra vires acts, which are acts not authorized for governmental purposes or under the law. Additionally, the court utilized a two-step process for determining immunity’s attachment: 1) the judiciary determines the applicability of immunity and delineates its boundaries, and if immunity applies then 2) the judiciary defers to the legislature to waive that immunity. In other words, governmental immunity is a creature of common law and the courts define when it applies. Once the courts defined where immunity applies, then the legislature decides if it is waived. The courts previously determined immunity applies to governmental functions only and proprietary functions are not entitled to immunity. A city’s immunity can extend as far as the state’s immunity but no further. The state cannot perform proprietary functions, but a city can. By definition, proprietary functions are not those performed for the benefit of the people. This divergence exists regardless of whether one is talking about a tort or contract. Chapter 271 of the Local Government Code (waiving immunity for municipalities in certain contractual contexts) does not abrogate the common-law dichotomy. It merely waives immunity for certain contracts where immunity already exists. However, the trial court never considered whether the lease was proprietary or not. Therefore, the case is remanded to make that consideration.*
Condemnation: Caffe Ribs, Inc. v. State of Texas, No. 14-0193, 2016 WL 1267677 (Tex. Apr. 1, 2016).This is a condemnation case where the Texas Supreme Court held the property owners were entitled to admit evidence regarding the State’s interference with mitigating property to improve value.
Caffe Ribs, Incorporated (Caffe) purchased the condemned property in 1995 from Reeves and Weatherford. The property was contaminated so Reeves and Weatherford agreed to clean up the contamination. In 2000, Reeves and Weatherford identified the source of contamination and placed the property with the Texas Commission on Environmental Quality (TCEQ) for voluntary cleanup. In 2003, the State of Texas notified Caffe that it intended to condemn the property, or at least part of it, in connection with the Texas Department of Transportation’s (TxDOT) project to expand Interstate 10. However, the TCEQ kept delaying any determination the property was properly cleaned up. Essentially, the TCEQ required four additional wells be installed, but TxDOT’s condemnation required all wells be plugged and abandoned, and any new wells be installed after construction was complete. The contamination was then used by the State to argue a decreased value of the property in condemnation proceedings. When Caffe moved to admit evidence of the State’s interference with clean-up processes, the State moved to exclude which was granted. After a jury returned a verdict with a valuation of the property, Caffe appealed. The court of appeals determined the error was harmless.
In condemnation proceedings the constitution requires payment of the “market value” of the condemned property—that is, “the price which the property would bring when it is offered for sale by one who desires, but is not obligated to sell, and is bought by one who is under no necessity of buying.” An impending condemnation project, however, can distort the value of property. The inflationary effects of such a project are referred to as “project enhancement,” while the deflationary effects are referred to as “condemnation blight,” or “project diminishment.” Since neither project enhancement nor project diminishment reflects true “market value” they are subject to exclusion. However, exclusion is not mandatory and “[w]e believe the use of a proper instruction, as opposed to an evidentiary exclusion, is particularly appropriate…” when dealing with project diminishment. “In this case, the trial court enforced the project-influence rule with a sweeping evidentiary exclusion.” As the United States Supreme Court has observed, “it would be manifestly unjust to permit a public authority to depreciate property values by a threat of the construction of a government project and then to take advantage of this depression in the price which it must pay for the property when eventually condemned.” United States v. Virginia Elec. Power Co., 365 U.S. 624, 636 (1961). Because the Texas Supreme Court believed that is exactly what the State did, it concluded the exclusion was harmful error. The case was remanded for a new trial.*
Immunity: Houston Belt & Terminal Ry. Co. v. City of Houston, No. 14-0459, 2016 WL 1312910 (Tex. Apr. 1, 2016). This is an ultra-vires case where the Texas Supreme Court holds acts can be ultra-vires and without legal authority even if they involve some level of discretion.
The City of Houston enacted a drainage-fee ordinance. Charges are calculated based on a specified rate per “square [foot] of impervious surface on each benefitted property.” The ordinance gives the city’s director of public works—in this case, Daniel Krueger—authority to administer its provisions, subject to the terms of the ordinance itself. Petitioners (collectively the Railroads) received notices of proposed charges of about $3 million annually based on Krueger’s determination that all of the railroads’ properties within the city were “benefitted” and that the surfaces of nearly all of those properties were also “impervious.” Krueger made his determination based upon aerial images—looking to see if the properties appeared green or brown—rather than digital map data. Generally, under this method, if the property appeared brown, Krueger determined it was impervious; if it appeared green, he determined it was pervious. The railroads filed suit alleging ultra vires claims against Krueger and seeking prospective injunctive relief. The city and Krueger filed a plea to the jurisdiction which the trial court granted. The court of appeals affirmed in part and reversed in part. The parties cross-appealed.
The parties dispute the meaning of “exercise of discretion” and “without legal authority” as used in City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.2009) for ultra vires determinations. To the city, “exercise of discretion” means any decision made in which the officer has the authority to use his personal judgment, and “a mistake in exercising his judgment is not an ultra vires act.” The railroads assert discretion means absolute discretion—discretion where no specific, substantive, or objective standards govern the exercise of judgment. Heinrich’s claim was against the officers for acting pursuant to, yet outside the limits of, a statutory grant of authority. Heinrich alleged that the officers, making the type of determination which they had authority to make, made that determination in a way the law did not allow. That is the proper standard. The court then analyzed several cases since Heinrich and determined none could be read to shield unlawful action simple because the action was discretionary. And while “the protections of governmental immunity remain robust, they are not absolute.” Accordingly, “the principle arising out of Heinrich and its progeny is that governmental immunity bars suits complaining of an exercise of absolute discretion but not suits complaining of either an officer’s failure to perform a ministerial act or an officer’s exercise of judgment or limited discretion without reference to or in conflict with the constraints of the law authorizing the official to act. Only when such absolute discretion—free decision-making without any constraints—is granted are ultra vires suits absolutely barred.” [Comment: That gets into an “unbridled discretion” problem.] And, as a general rule, “a public officer has no discretion or authority to misinterpret the law.” However the court emphasized that this opinion is not to be interpreted as a way “to allow a new vehicle for suit to masquerade as an ultra vires claim” and that the exception still remains extremely narrow in application.
The court then analyzed the ordinance in question and determined Krueger’s determinations did not meet the definitions found in the ordinance. The railroad properties are not “benefitted properties” under the ordinance’s definition and while Krueger may have some authority with respect to determining which properties are benefitted, he does not have authority to make that determination in a way that conflicts with other provisions of the ordinance, including its definition and usage of “benefitted property.” Further, “impervious surface” is defined and Krueger’s determinations did not meet the ordinance definitions either. And while he may rely on “reliable data” to make a determination, the data must be similar to the types of data described in the ordinance. The railroads properly alleged an ultra vires claim so the case is remanded for further proceedings.*
Whistleblower: Williams v. Metropolitan Transit Auth., No. 01-15-00299-CV, 2016 WL 1128120 (Tex. App.—Houston [1st Dist.] Mar. 22, 2016) (mem. op.). This is a Texas Whistleblower Act (Act) case where the First District Court of Appeals reversed the granting of a plea to the jurisdiction by the Metropolitan Transit Authority (Metro).
Williams alleged that he worked for Metro for nine years as a maintenance worker. Williams claimed that another Metro employee, R. Ratcliff, requested him to be complicit in carrying out criminal acts while on the job. No further explanation of what they are was mentioned in the opinion. Williams claimed, among other things, that Metro employees retaliated against him by alleging that Williams had assaulted them. Ultimately Williams was terminated. Williams sued under the Act. Metro filed a plea to the jurisdiction which the trial court granted. Williams appealed.
Part of the case turns on whether Williams reported his claim to an appropriate law enforcement authority. Part of the case is procedural as the trial court granted the plea, but before notice of the order, Williams filed a Third Amended Petition and amended response asserting he reported claims to two Metro police officers. After analyzing the procedural history, the court held Williams did not need to file a motion for new trial in order to amend his pleadings and supplement his response to the plea. “Texas Courts have signaled a preference for allowing a plaintiff an opportunity to amend before dismissing a suit in response to a plea to the jurisdiction.” And while Williams could have waived the preference by not acting (as many others have done), Williams did act by filing the amended petition and response the same day as the hearing. Williams should be permitted to return to the trial court, so the order granting the plea is reversed. [Comment: while typically a party would need to file some procedural mechanism such as a motion to reconsider or motion for new trial in order to submit additional evidence or pleadings, the court seems to indicate that is not the preferred case when dealing with a plea to the jurisdiction.]*
Public Information Act: The Austin Bulldog v. Leffingwell, No. 03-13-00604-CV, 2016 WL 1407818 (Tex. App.―Austin Apr. 8, 2016). The Austin Bulldog filed Public Information Act (PIA) requests with the City of Austin requesting public information contained in emails between the mayor, council members, and the city manager. The broad requests encompassed all emails involving city business whether transmitted on a city or personal device and/or email address. The city produced some of the requested information and sought an attorney general ruling on some of the documents. After receiving an attorney general ruling that the documents be produced, the city redacted the personal email addresses of the city officials and produced the documents. The city cited the attorney general’s letter ruling’s instruction that it do so based on Section 552.137, Government Code, which excepts from disclosure the “email address of a member of the public . . . unless the member of the public consents to its release.”
The Austin Bulldog filed suit in Travis County District Court seeking a declaratory judgment that the personal email addresses of the city officials were not protected from disclosure by this exception. The parties filed cross-motions for summary judgment, with the city arguing that city officials are “members of the public.” The district court granted summary judgment in favor of the City of Austin.
The Austin Court of Appeals discussed the purposes, goals, and structure of the Public Information Act in its analysis, noting that the PIA “generally obligates the government to make public information reasonably available to whomever properly requests it.” The court noted that “member of the public” is not defined by the PIA, so the court must look at its plain and common meaning. The court provided several examples in federal case law and state statute showing that when “member of the public” is used in relation to another group, it means anyone who is not a part of the other group. In the email-address exception, “member of the public” is used with “governmental body.” Therefore, “member of the public” in Government Code Section 552.137 does not include a person who is part of the governmental body. The court reversed the district court’s summary judgment and rendered judgment in favor of the Austin Bulldog.
Public Information Act: City of Carrollton v. Paxton, No. 03-13-00571-CV, 2016 WL 1305196 (Tex. App.―Austin Mar. 31, 2016). This is a Public Information Act (PIA) case where the Austin Court of Appeals agreed that substantially all of the documents are protected from disclosure.
This case stems from a succession of ten PIA requests made to the City of Carrollton over a period of approximately four months by Steven Benzer. Most of the requests dealt with police response information. The information sought to be withheld included notes generated within a computer-aided dispatch (CAD) system that the city’s police department utilizes. The city timely requested an opinion from the attorney general who opined the “basic information” contained within the documents was subject to release. Following a hearing, the district court denied the city’s summary-judgment motion and granted the attorney general’s motion, declaring specifically that “basic information within a requested computer-aided dispatch (CAD) report is not excepted from disclosure.”
The court held the Texas Legislature has notably excepted from release information created by law-enforcement under Government Code Section 552.108. Benzer had been incarcerated for engaging in violent, threatening, and retributory behavior toward various neighbors. The liberal instructions within the PIA do not authorize the attorney general to “construe” the PIA in derogation of the statutory text the legislature has actually used. The court agreed that when records deal with law enforcement investigations that do not result in convictions, they are excepted. The release of records which would interfere with investigation or prosecution are also excepted. The two sections are exclusive and the attorney general has no discretion to decline to credit either claim, even if raised in the alternative in the same brief. The attorney general’s construction of Section 552.108 is not reasonable or consistent with the statutory text.
Further, the term “basic information” refers to information about an arrested person, an arrest, or a crime. The court explained what “basic information” is intended to be and its history after its creation in Houston Chronicle v. City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref’d per curiam, 536 S.W.2d 559 (Tex. 1976). The court noted that “[d]espite these somewhat shaky jurisprudential origins, the concept of a constitutional right of public access to certain ‘basic information’ otherwise protected by the law-enforcement exception quickly became enshrined in Attorney General open-records decisions. And subsequent decisions also expanded the concept’s scope and application beyond the parameters originally addressed in Houston Chronicle.” But since the legislature defined “basic information” for purposes of Subsection (c), there is no basic information beyond that which is defined. The “Legislature has explicitly limited the potential scope of ‘basic information’ subject to disclosure under Subsection (c) solely to that which is ‘about’ (i.e., on the subject of or concerning) either ‘an arrested person,’ ‘an arrest,’ or ‘a crime.’” If law enforcement neither makes an arrest nor determines a crime was committed, no basic information can be at issue by definition. This holding disposed of 9 out of the 10 requests.
One request did clearly indicate a crime and contained basic information about the crime. The proper focus when applying the physical-safety exception is “whether disclosure of the particular information at issue would create a substantial threat that the information could be used to accomplish physical harm.” And while the city offered evidence of Benzer’s violent criminal history, that alone does not demonstrate disclosure will create a substantial threat of physical harm to his neighbors. The city failed to establish the threat and also failed to establish the elements of the informer’s privilege. However, since 9 out of 10 requests were reversed as to release, the issue of attorney’s fees was reversed and remanded to the court to reconsider.*
Solid Waste Contracts: City of Rio Grande City v. BFI Waste Services of Texas, L.P., No. 04-15-00729-CV, 2016 WL 1298117 (Tex. App.―San Antonio Apr. 4, 2016). This is an interlocutory appeal case where the central issues are procedural issues regarding an order of injunction and an automatic stay of proceedings. This is not the final opinion, but a ruling on a motion. The Fourth Court of Appeals held the city officials must abide by the temporary injunction order even though the case is on appeal.
While the order does not go into facts, the underlying case is essentially a contract dispute for garbage collection services. In September 2015, the city voted to terminate the contract with BFI/Allied Waste (BFI). BFI asserted the termination was not authorized under the terms of the contract. The city began negotiating a new contract with Grande Garbage (Grande). BFI received a temporary restraining order (TRO) then a temporary injunction prohibiting the city from cancelling the contract or awarding a contract to Grande. The TRO was obtained in federal court but the case was remanded to state court afterwards. The city and its officials filed an interlocutory appeal of the injunction order. The injunction applied to the city as well as to city officials individually and in their official capacities. While the appeal was pending, a question arose as to whether the city and its officials were still under the injunction due to an automatic supersedes without security which applies to a city, whether an automatic stay applies to the underlying proceedings during the appeal, and whether the injunction was a de facto denial of the city’s plea.
The court first noted BFI did not get properly served with the plea to the jurisdiction at the time of the injunction hearing. The city argued that by proceeding with the injunction hearing the trial court denied the plea. The Fourth Court held the injunction was not a determination implicating the merits so it was not a denial of the plea. The plea could therefore not be addressed on appeal. And since the automatic stay of trial court proceedings under Section 51.014 (interlocutory appeals) does not apply to injunction appeals, no automatic stay is in place. Next, Texas Civil Practice and Remedies Code Section 6.002 states security for costs to obtain a supersedes of a trial court order is not necessary for a city. However, that applies only to the city and its officials in their official capacity. The individuals cannot utilize that section to avoid paying the security for the supersedes and it is not automatic. Further, the supersedes is not absolute. Neither the applicable statute, Section 6.002, nor Texas Rule of Appellate Procedure 29 removes the trial court’s historical “discretion to prevent the State’s automatic suspension of an adverse non-money judgment.” As a result, the injunction stands and must be obeyed. No stay exists in the trial court.*
Expert Witnesses: The Burrescia Family Revocable Living Trust v. City of Dallas, No. 05-14-01311-CV, 2016 WL 1393989 (Tex. App.―Dallas Apr. 7, 2016) (mem. op.). In this appeal, the Burrescia Family Revocable Trust (Trust) asserts that that trial court erred in admitting testimony of one of the city’s expert witnesses. The City of Dallas sought to acquire title to a tract of real property owned by the Trust. When it became clear that the Trust and the city could not agree on a purchase price, the city filed a condemnation proceeding in the trial court. The trial court assessed damages for the taking of the tract, and the Trust filed an objection to the award.
At the subsequent trial to determine the Trust’s adequate compensation for the taking of its property, the jury found the fair market value of the tract was less than the amount of the award the city had deposited with the registry of the trial court. Therefore, the trial court signed a judgment in favor of the city for the difference. The Trust then appealed.
One of the city’s expert witnesses, Steve Parker, a licensed professional engineer, testified on the tract’s location in the floodplain, which refuted the Trust’s appraiser expert’s testimony on comparable tract’s located in the floodplain. Following the jury’s verdict, the Trust filed a motion for a new trial alleging that the city had not disclosed Parker’s opinion as required under its request for disclosure under Rule of Civil Procedure 194.2(f). The trial court denied the motion for a new trial.
The Dallas Court of Appeals found that Parker’s testimony was harmless given that other witnesses testified regarding the location in the floodplain. Further, the jury’s determination of market value of the tract did not appear to have turned on Parker’s testimony, as it was exactly the value indicated in the Dallas Central Appraisal District’s records, which the city offered into evidence. The court affirmed the trial court’s judgment.
Employment: City of Dallas v. Groden, No. 05-15-00033-CV, 2016 WL 1367380 (Tex. App.―Dallas Apr. 6, 2016) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a malicious prosecution case. The Dallas Court of Appeals reversed the denial and dismissed the plaintiff’s claims.
Robert Groden operated a business from a portable table in the park selling his writings on the assassination of President John F. Kennedy. The park manager received complaints about vendors in the park, and Groden was arrested for violating a city ordinance on vendor activity in the park. The municipal court dismissed the charges. Groden sued various city officials for malicious prosecution and declaratory relief, then later added the city. The city and its officials filed a plea to the jurisdiction, which was denied. They appealed.
Groden first argued the court’s interlocutory appellate jurisdiction does not exist for officials sued in their individual capacity. The court held employees could utilize the interlocutory authority for appeals, regardless of capacity. The court then held that while Groden did not dismiss the city, he filed an amended petition asserting he was not suing the city for damages or torts. The court interpreted that pleading as dismissing his claims against the city so the trial court erred by not granting the city’s plea removing it from the lawsuit in name. Additionally, the declaratory judgment claims against the city (which Groden did expressly bring) do not challenge the validity of an ordinance but complain about the arrest. The city retains its immunity from claims seeking interpretations of ordinances or declarations that city employees violated the law. Additionally, Groden’s claim for injunctive relief against the city for its “unconstitutional practices” is likewise barred by immunity. Next, Groden alleged that Golbeck’s and Worden’s actions (assistant police chief and parks manager) in having him arrested and prosecuted were ultra vires and outside the scope of their employment with the city. To the extent Groden sought a declaration that Section 101.106(f) violates the open courts provision of the Texas Constitution the claims are not viable. Subsection (f) of the election-of-remedies provision states that claims asserted against an employee must be dismissed if the complained-of conduct was within the general scope of employment and the plaintiff could have sued the government. An official acts within the scope of his authority if he is discharging the duties generally assigned to him. An assistant police chief has the general duty to enforce city laws and ordinances and arrest those who violate them. Worden presented evidence that his duties as parks manager included directing complaints or issues related to the parks to the appropriate city official. Both officials were acting within the course and scope of their employment. And while the city would be immune from intentional torts, the claims he brings against the officials fall within the definitions of Section 101.106(f). Therefore, under the election of remedies provision of the Tort Claims Act, the officials are entitled to dismissal. The denial was reversed and judgment rendered for the City of Dallas.*
Municipal Court Prosecution: In Re State, No. 07-16-00052-CR, 2016 WL 1072504 (Tex. App.—Amarillo Mar. 16, 2016). This is a writ of mandamus case of interest mainly to municipal prosecutors. It holds that on appeal, a county court judge cannot provide for deferred disposition any more than a municipal judge or justice of the piece can.
Relator, the State of Texas, acting by and through the Potter County Attorney’s Office, seeks a writ of mandamus to compel a county court at law judge from issuing deferred dispositions for commercial driver’s license (CDL) holders, in particular, real party in interest, Jimmie White. White was originally convicted in Justice of the Peace Court, Precinct 3, of Potter County of the misdemeanor offense of speeding. Under Article 45 of the Code of Criminal Procedure, a justice of the peace and municipal court judge are prohibited from providing deferred disposition to CDL holders. [Comment: Some defense lawyers appeal CDL convictions to county court (which are de novo reviews) and argue the county court judge has additional authority to offered deferred disposition. Some courts believe they have such authority, some do not.] On appeal, the county court judge issued deferred disposition to White, which would potentially keep the conviction off his driving record upon completion. The county attorney’s office objected to the deferred order and sought mandamus to compel the withdrawal of the order.
Texas Code of Criminal Procedure article 42.111 authorizes the deferral of proceeding in cases appealed from a justice of the peace or municipal court to county court. The court of appeals analyzed article 42.111. It provides, among other things, that “[i]f the defendant enters a plea of guilty or nolo contendere, the court may defer further proceedings without entering an adjudication of guilt in the same manner as provided for the deferral of proceedings in justice or municipal court under Article 45.051 of this code.” The second part of the sentence is pivotal for the court. It provides the county court may defer “adjudication of guilt in the same manner” as justice or municipal court. White argues the word “manner” has many meanings, including “a mode of procedure” and “a customary mode of acting.” After utilizing statutory construction principles, the court held it was “imminently logical” that if the justice of the peace and municipal courts did not have jurisdiction to offer deferred disposition to CDL holders, a driver could not simply circumvent that by appealing to county court. As a result, the court issued a directive to the county court judge to withdraw her opinion or a mandamus would be issued to compel such compliance.*
Notice of Auto Accident: City of Beaumont v. Armstead, No. 09-15-00480-CV, 2016 WL 1053953 (Tex. App.—Beaumont Mar. 17, 2016) (mem. op.). This is an interlocutory appeal from the denial of the city’s plea to the jurisdiction in an automobile accident suit where the issue centered on statutory notice. The Beaumont Court of Appeals reversed the denial and dismissed the plaintiff’s claims.
Armstead alleged that she was a passenger in a motor vehicle which collided with a city vehicle. The police report indicated a two-vehicle accident where Armstead was a passenger. The officer narrative indicates the vehicles collided at a curve turn where lane markers appeared to stop. The collision resulted in little damage and only an ambiguous reference to a uniform injury to all drivers and passengers. Armstead’s attorney sent letters advising he represented Artmstead regarding a car accident which occurred on a specific date and that she was injured in some fashion. No further information was provided in the attorney letter. When he did not receive any response from the city, he filed suit. The city filed a plea to the jurisdiction (among other things) asserting it was not provided proper notice of the claim. Attached to the city’s plea was a report from the driver of the original city vehicle describing the accident as one so minor he was not even sure damage occurred. The trial court denied the plea and the city appealed.
Formal statutory notice requires that the notice reasonably describe: “(1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident.” Actual notice requires “knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.” The Beaumont Court of Appeals analyzed several cases on statutory and actual notice in this opinion. The court held the letters sent by Armstead’s attorney failed to do anything other than provide a name of the claimant. While there is a reference to an accident date, the letter fails to provide any time or description of the incident or the place of the incident. As a result, they were insufficient. As far as actual notice goes, the city reports do not “imply let alone expressly state, that the City was at fault.” Rather, the reports establish that Armstead was a passenger in a different vehicle, that there was another driver, and that the police officer concluded that the other driver hit the city’s vehicle. Nothing more. As a result, Armstead failed to establish the city was provided proper statutory or charter notice.*
Workers’ Compensation: Johnson v. City of Houston, No. 14-15-00176-CV, 2016 WL 1237859 (Tex. App.—Houston [14th Dist.] Mar. 29, 2016) (mem. op.). This is a wrongful death action for an officer killed in the line of duty where the Fourteenth Court of Appeals affirmed the granting of a plea to the jurisdiction.
This is the second opinion in this case with the factual background being explained in the first opinion. Essentially City of Houston police officer Rodney Johnson was patrolling alone in his patrol car when he stopped Juan Leonardo Quintero–Perez for speeding. Quintero–Perez killed Johnson after Johnson placed him in the backseat of the patrol car. Johnson’s widow, Joslyn Johnson (also a HPD officer), sued for a variety of claims. The initial court of appeals opinion dismissed her exemplary damages claims. The case went up and down to federal court with multiple amendments. Upon returning to state district court the city argued, among other things, that Johnson “cannot recast her claims to avoid an immunity bar,” and that recovery of workers’ compensation benefits was her exclusive remedy against the city for Rodney’s death. In the same document, the city also sought traditional summary judgment on the grounds of res judicata, the law of the case, and the exclusive remedy provisions of the Texas Workers’ Compensation Act. The trial court granted the city’s plea to the jurisdiction and in the alternative, granted the city’s motion for summary judgment.
Johnson argues that the City of Houston Police Department General Order No. 500-05 violates federal law, and that this alleged violation of federal law was a producing or proximate cause of Rodney’s death. The general order permitted officers to contact federal immigration authorities only regarding a person arrested on a separate criminal charge other than a class C misdemeanor, and only if the officer knew that the person was in the country illegally. Since Quintero–Perez was illegally in the country but stopped for a class C misdemeanor, Johnson would not have known of his immigration status. However, that does not state a cause of action for which immunity is waived. Further, Johnson admits that she received workers’ compensation benefits. Under the Texas Workers’ Compensation Act, recovery of workers’ compensation benefits is a legal beneficiary’s exclusive remedy against a governmental employer for the death of a covered employee on the job. Nothing in Joslyn Johnson’s pleadings state a claim against the city. As a result, the plea was properly granted.*
Tort Claims Act: Silva v. City of Pasadena, No. 14-15-00062-CV, 2016 WL 1043135 (Tex. App.—Houston [14th Dist.] Mar. 15, 2016) (mem. op.). This is a personal injury lawsuit where the Houston Court of Appeals affirmed the granting of the city’s plea to the jurisdiction. This is more of a procedural case than anything else.
Irene and David Silva were crossing an apartment complex’s parking lot when a City of Pasadena police officer struck Irene Silva with his patrol car. The city filed a plea to the jurisdiction asserting that since the officer was entitled to official immunity, the city was likewise immune from suit. The city set the plea to be heard on September 12, 2014, thirty-one days before the case was to be tried. The Silvas failed to timely respond. The plea remained pending until the docket call when the trial court signed the order granting the city’s plea. The Silvas appealed.
The Silvas assert the plea was really a motion for summary judgment and they did not get 21 days’ notice of the hearing at which it would be considered. Despite their insistence that the plea was actually a summary-judgment motion, the Silvas offer no authority, evidence, or even argument to support that position. A party may challenge the trial court’s subject-matter jurisdiction using either procedural vehicle. Here, the city filed a plea so the 21-day notice provision does not apply. Further, even if it did apply, the record does not show any basis to allow a reversal since the hearing was set 31 days out. As a result, the court, based on the record, sustained the plea.*
Employment Discrimination: City of Houston v. Proler, No. 14-16-00030-CV, 2016 WL 1047889 (Tex. App.—Houston [14th Dist.] Mar. 15, 2016) (mem. op.). This is the second suit by Proler, a certified fire fighter, regarding the city’s reassignment of him and ultimate termination for his failure to fight fires. Proler’s original suit resulted in the Texas Supreme Court holding that a fire fighter who could not fight fires was not disabled. That was an interlocutory ruling which was remanded but only involved a transfer, not termination.
Proler filed this second suit asserting that the city discovered he suffered from depression and discriminated against him by terminating his employment. Five years after “his original problem,” Proler had difficulty in responding to an emergency call regarding a traffic accident on a freeway. Proler appeared to be asleep on the fire truck even with a loud siren sounding. Proler also appeared to be unconscious at the scene and could not be aroused; he remained in that condition until the truck returned to the station. After proper administrative hearings, Proler was terminated. After he filed suit, the city sought to exclude from evidence any mention of his prior suit for discrimination, including all medical records. The trial court denied the motion but allowed a permissive interlocutory appeal.
Section 51.014(d) is not intended to relieve the trial court of its role in deciding substantive issues of law properly presented to it. The trial court first must make a substantive ruling on the controlling legal question as to which there is a substantial ground for difference of opinion before a permissive interlocutory appeal is possible. The trial court did not rule that any of this evidence was admissible at trial in this suit; rather, the trial court determined that the city’s objections to the evidence based on res judicata and collateral estoppel lacked merit. Thus, the trial court did not rule on the issue of whether, “the evidence previously adjudged and the related proceedings [may] be presented…” Because the record does not show that the trial court ruled on the purported controlling question of law identified by the trial court, the court held it could not grant the city’s petition for permissive interlocutory appeal.*
*Case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry. To sign up for the firm’s blog, go to www.rshlawfirm.com.