Recent Texas Cases of Interest to Cities

Note: Included cases are from July 11, 2017 through August 10, 2017. 

Governmental Immunity/Torts Claim Act:  City of Houston v. Southwestern Bell Tel. Co., No. 01-16-00734-CV, 2017 WL 3262131 (Tex. App.— Houston [1st Dist.] Aug. 1, 2017) (mem. op.). The City of Houston learned about a water main break in the city on March 1, 2013. The city posted notice of its intent to repair the water main with repairs starting the next day. Three city employees went to the location of the water main break to make repairs. There was a utility pole near the excavation site with a sign warning of the presence of underground cables and displayed the AT&T logo (used by Southwestern Bell) along with the universal sign for “do not dig.” The city employees did see and walked by the sign on the utility pole, but did not read it. The employees used a concrete breaker to break up the street in the area where the repairs would be made. Then, they used a backhoe to excavate the area. Two of the city employees tested the ground for utility lines with probing rods and watched the excavation to make sure that the backhoe did not hit anything. During this time, Southwestern Bell Telephone Company (SBC) suffered damage to its hard-clay duct run and cable that was in the area of the water main repair.

Once the damage was repaired, SBC sued the city for negligence arguing: (1) the city failed to provide 48 hours notice to SBC before excavating, which is required by the Texas Utilities Code; (2) the city employees had a duty to look for signs of and locate underground utilities at the excavation site before and during the excavation process; (3) SBC’s aerial cable was attached to the nearby utility pole, and therefore near the excavation site; and (4) the city’s employees were aware of and walked past, but did not read, the warning sign on the utility pole. SBC requested instructions be included that quoted two statutes regarding the notice requirement under the Texas Utility Code.  Houston objected, but the trial court overruled the objection and included it in the jury charge.

At trial, the jury found the city negligent and awarded damages. The city appealed and argued: (1) the trial court lacked subject-matter jurisdiction over the negligence claim based on governmental immunity; and (2) the trial court abused its discretion by including instructions that allowed the jury to determine liability on grounds for which immunity had not been waived.

The intermediate appellate court first reviewed the governmental immunity argument which included a challenge of the trial court’s subject-matter jurisdiction over SBC’s negligence claim and a challenge of the trial court’s subject-matter jurisdiction based on governmental immunity. The court did a de novo review since the challenge of a trial court’s subject-matter jurisdiction is a question of law.  Governmental immunity of suit defeats a trial court’s subject matter jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The city argued that SBC did not present sufficient evidence to prove that the city’s employees were negligent in their operation of the backhoe which caused the damage. In order to make a claim of negligence under the Texas Torts Claim Act (TTCA), SBC was required to establish that its damages arose from the city’s employees’ negligent operation of motor-driven equipment.  If the evidence presented was legally sufficient to support common law negligence and the TTCA, then the jury’s verdict was proper. However, if the evidence was legally insufficient, the trial court lacked subject-matter jurisdiction. The appellate court reviewed the evidence and testimony presented at trial and viewing the evidence in the light most favorable to the verdict, the court determined that the jury could reasonably have found that the city breached its duty to make reasonable inquiry as to the location of, and to avoid striking, the underground utility since the city’s employees did not read the warning sign on the utility pole next to the excavation and did not look or probe for any other underground utility lines other than the city’s utility lines.

Also, the court looked at proximate cause of the damage which requires proof of both cause in fact and foreseeability. W. Invs., Inc. v. Urena, 162 S.W. 3d 547, 551 (Tex. 2005). The court reviewed SBC’s evidence of proximate cause of the damage to the clay duct. SBC stated that damage to the clay duct could only be done by a backhoe since the duct was as hard as concrete and a shovel could not make the damage that caused the air-pressure warning system to be triggered. Also, the city’s employees knew that some underground utilities might not be marked and could expect multiple underground utilities in the right of way. The court held the evidence supported the proximate cause of the damages and that there is evidence supporting the waiver of the city’s governmental immunity. Therefore, the court held the evidence was legally and factually sufficient to support the jury’s verdict that the city was negligent and overruled the city’s first two issues.

Last, the appellate court reviewed the city’s argument concerning the trial court’s abuse of discretion by including instructions in the jury charge that allowed the jury to determine liability on grounds for which immunity had not been waived. In order for the court to determine that the trial court abused its discretion, the court had to determine that the trial court acted arbitrarily and unreasonably, without reference to guiding principles, or that it misapplied the law to the established facts of the case. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Also, when an incorrect jury instruction is given, the court can only reverse if the instruction “was reasonably calculated to and probably did cause the rendition of an improper judgment.” Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006)(quoting Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995)); see also Tex. R. App. P. 44.1(a)(1).

The court examined the entire record to evaluate whether the instruction probably caused the rendition of an improper verdict. The court looked at the inclusion of Texas Utility Code Sections 251.151(a) and 251.152(A)-(B) after the first question of the jury charge. Because of the inclusion of the statutes and the placement of statutes in the jury charge, the appellate court thought it indicated that the trial court permitted the jury to find the city liable for negligence based on failure to comply with the Utility Code instead of the operation of the equipment. The Texas Supreme Court has held that “the tortious act alleged must be related to the defendant’s operation of the [equipment] rather than to some other aspect of the defendant’s conduct.” Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 929 (Tex. 2015). Since the city did not waive its liability for any failure to provide proper notice under the Utility Code, the finding that the city was negligent for failing to give adequate notice would not waive the city’s governmental immunity. Therefore, the court held that the inclusion of the statutory excerpts in the jury charge was in error and harmful to the city since the jury could have found the city liable on the grounds for which the city’s sovereign immunity was not waived. The court reversed the trial court’s judgment on negligence and remanded the case for a new trial. 

Governmental Immunity: City of Bedford v. Apartment Assoc. of Tarrant Cty., Inc., No. 02-16-00356-CV, 2017 WL 3429143 (Tex. App.—Fort Worth Aug. 10, 2017) (mem. op.). The Apartment Association of Tarrant County, Inc. (AATC) is a trade association whose members include multifamily-property owners in Bedford, Texas.  In April 2016, AATC sued the City of Bedford for declaratory and injunctive relief, alleging that three city ordinances, two current and one repealed, regulating multifamily properties in the city were unconstitutional. The AATC is representing and advocating for its members’ interests by seeking to protect them from what it alleges are excessive fees, too-frequent inspections, and unlawful taxes imposed by the city.  The AATC sought: (1) a declaration that the fees assessed under all three ordinances were unreasonable and violated the multifamily-property owners’ substantive-due-process rights under the Texas Constitution and constituted an impermissible occupation tax under the Texas Constitution; (2) a declaration that multifamily–property owners who paid fees under the repealed ordinance were entitled to a refund; (3) an injunction against the city from enforcing the current ordinances and from spending any illegal fees it collected under the repealed ordinance; and (4) attorney’s fees under Chapter 37 of the Civil and Practice Remedies Code.

The city filed a plea to the jurisdiction and later filed a summary judgment motion and a brief in support of the plea to the jurisdiction. The city argued that its governmental immunity had not been waived because: (1) the AATC lacked standing to pursue its claims on behalf of its members; (2) the declaratory-judgments act (Act) does not waive the city’s immunity with respect to the AATC’s refund claim because it was really a request for money damages; (3) declaratory relief was inappropriate because the AATC had not alleged any actual harm and instead sought an impermissible advisory ruling; (4) the AATC had not plead any facts to support a claim for injunctive relief against the city; and (5) the AATC could not recover attorney’s fees under Chapter 37 because it had not pleaded a proper claim for relief. The trial court, after a nonevidentiary hearing, denied the city’s plea to the jurisdiction.

The court of appeals did a de novo review since the challenge of a trial court’s subject-matter jurisdiction is a question of law.  Governmental immunity of suit defeats a trial court’s subject matter jurisdiction.  See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  The city presented seven issues.

The appellate court decided to address the seventh issue first because it dealt with standing which is a component of subject-matter jurisdiction and must be established to maintain a lawsuit. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444-46 (Tex. 1993). An association has standing to sue on its members’ behalf when: (1) its members would otherwise have standing to sue in their own rights; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires each of the individual members’ participation in the lawsuit. Big Rock Investors Ass’n v. Big Rock Petroleum, Inc., 409 S.W.3d 845, 848 (Tex. App.— Fort Worth 2013, pet. denied).

There was no dispute about the first two components of the associational-standing test, but the city claimed the AATC could not meet the third prong of the test. The city argued that if the AATC was seeking money damages on its members’ behalf, then it did not have standing.  An association cannot seek money damages on behalf of its members, since doing so would require each individual member to participate in the lawsuit to establish its own damages. Id. at 849. However, associations can seek declaratory relief, injunctive relief, or some other type of prospective equitable relief on its’ members behalf.  Id. at 850. In doing so, the association was seeking remedies that benefit all of its members and thus would have standing. The court stated that AATC had plead claims for declaratory relief that benefitted its members in trying to get the ordinance determined invalid and that the multifamily-property owners in Bedford are entitled to a refund of excessive fees, and injunctive relief in preventing the city from acting under the ordinances.  AATC did not seek money damages on behalf of its members which would have required individual participation. Therefore, the court determined that AATC did have standing and could raise the claims brought in this suit.

Next, the court addressed the AATC’s declaratory-judgment claims. The first claim argued by the city was that the trial court erred when it denied the city’s plea to the jurisdiction because the city had not waived its immunity where the AATC failed to allege facts demonstrating a valid constitutional claim. The court stated that AATC did demonstrate subject-matter jurisdiction over the ATTC’s declaratory claims by challenging the validity of the ordinance and the reasonableness of the fees that were being charged by the city. Also, the city argued that the AATC had to have the ability to prove its case as a prerequisite to invoking the declaratory judgment act’s governmental-immunity waiver. The court stated that the Act does not require the plaintiff to prove liability as a condition for governmental-immunity waiver; therefore, it did not need to evaluate the AATC’s claims’ merit and overruled the city’s first issue.

The city’s second, third and fourth issues challenged the court’s jurisdiction over the AATC’s declaratory-judgment claims regarding the repealed ordinance. The city argued as its second claim that because the ordinance was repealed, immunity is not waived under the Act and that the AATC is seeking an improper advisory ruling. Also, the city argued that immunity was not waived because the AATC pleaded this declaratory-judgment claim solely to recover money damages. The court determined that the city’s argument concerning the AATC’s claim was not a justiciable controversy, but was really a mootness argument in that the ordinance has been repealed. The mootness doctrine dictates that courts avoid rendering advisory opinions by only deciding issues that present a “live” controversy at the time of the decision. Young v. Young, 168 S.W.3d 412, 416 (Tex. App.—Dallas 2005, no pet.). The repeal of the ordinance did not moot the AATC’s claim, but it removed the AATC from having to have the repealed ordinance declared void.  However, the repeal of the ordinance did not remedy any harm the ordinance might have caused the AATC’s members. The court concluded that the AATC’s claims were not moot. The court also stated that the city’s argument concerning an advisory opinion because the AATC’s is seeking money damages and speculating that any declaration that the AATC’s members are entitled to refunds will create a controversy since all members will go to the courthouse to seek a refund was merely hypothetical and any individual multifamily-property owner’s right to a refund is for a later date. The court overruled the second issue.

The city’s third issue was that the immunity waiver under the Act is limited to claims challenging the validity of ordinances currently in effect. However, the court stated that the Act does not limit the immunity waiver to only current ordinances, therefore, the third issue is overruled.

The city’s fourth issue was that the AATC’s cannot disguise a money damage claim as a declaratory-judgment claim requesting its members are entitled to a refund of excess fees under the repealed ordinance in order to circumvent governmental immunity.  However, governmental immunity will not defeat a claim for declaratory or injunctive relief seeking the refund of illegally collected taxes or fees if the plaintiff alleges that the payment were made as a result of fraud, mutual mistake of fact, or duress, whether express or implied. See Gatesco, Inc. v. City of Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The court looked over the AATC’s pleading liberally and determined that AATC did not adequately plead facts necessary to invoke the trial court’s jurisdiction under this doctrine because it did not allege its members paid fees under business compulsion, duress, implied duress, fraud, or mutual mistake of fact.  Therefore, the court sustained the fourth issue. However, the court also stated that the insufficiency in AATC’s pleading concerning the refund claim was not an incurable jurisdictional defect and AATC should be afforded the opportunity to amend its pleadings.

As to the fifth issue, the city argued that the trial court erred by denying its plea to the jurisdiction with respect to the AATC’s claim for injunctive relief because there is no immunity waiver for such claims against a municipality. Governmental entities retain immunity from claims for injunctive relief based on allegations that government officials have violated the law or have failed to perform a ministerial act and these claims must be brought against the responsible government actors in their official capacities. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009). The court stated that since AATC was challenging the validity of the ordinance rather than complaining that city officials illegally acted or failed to act, the ultra vires exception does not apply, and the city is not immune from AATC’s suit. The court overruled the city’s fifth issue.

The city’s sixth issue argued that the trial court did not have jurisdiction to award AATC attorney’s fees because the AATC did not plead a valid declaratory-judgment claim against the city. The court overruled the sixth issue concluding that other than the AATC’s refund claim, the city’s immunity from suit with respect o AATC’s declaratory-judgment claims had been waived. Therefore, the city was not immune from a claim for attorney’s fees.

Overall, the court reversed the trial court’s order denying the city’s plea to the jurisdiction when it came to the AATC’s refund claim, but ordered the trial court to allow AATC to amend its pleading on that claim, and affirmed the remainder to the trial court’s order.

Civil Service: Hopkins v. City of Austin, No. 03-16-00148-CV, 2017 WL 3044541 (Tex. App.—Austin July 13, 2017) (mem. op.). The Austin Police Department indefinitely suspended Jermaine Hopkins from his duties as a police officer for violations of the City of Austin’s civil service rules. Hopkins appealed his suspension to a hearing examiner, who denied the appeal. Then, Hopkins filed suit alleging that the hearing examiner’s order was procured by fraud and other unlawful means. The district court granted the city’s plea to the jurisdiction and dismissed Hopkin’s suit. He appealed.

Hopkins argued that the hearing examiner exceeded his jurisdiction by: (1) affirming Hopkins’ suspension for insubordination because his acts were in compliance with his rights under the Texas Public Information Act and the Civil Rights Act; and (2) considering evidence outside the Civil Service Act’s 180-day deadline. The appellate court concluded that Hopkins failed to affirmatively allege facts that would invoke the district court’s jurisdiction and affirmed the district court’s order dismissing Hopkins’s claims.

Board of Adjustment: Five Aces/SA, Ltd. v. River Road Neighborhood Assoc., No. 04-16-00781-CV, 2017 WL 2960399 (Tex. App.—San Antonio July 12, 2017).This appeal involves a piece of property purchased by Reilly Brothers Property Company (Reilly) in a historical district of the City of San Antonio that is part of the River Road Neighborhood Association (RRNA). Reilly filed an application to demolish the residence on the property and build a six-unit apartment complex. The City of San Antonio’s historic preservation officer (HPO) denied the request for failure to comply with the city’s uniform development code. Reilly appealed the decision to the city’s board of adjustment (BOA), and the BOA upheld the officer’s determination. A court later also upheld the BOA’s decision. A year later, Reilly filed a new application seeking approval to renovate the existing structure and add six apartment units. The HPO recommended approval of the project. However, the RRNA appealed the decision asserting that the project amounted to a demolition. The BOA affirmed the issuance of the certificate of appropriateness. The RRNA then sought judicial review. The trial court granted the RRNA’s motion for summary judgment, reversing the BOA’s decision. Reilly and the BOA appealed the trial court’s judgment.

Reilly and the BOA argued that the trial court erred in reversing approval for the project because it was reviewed and approved as an “alteration, restoration and/or rehabilitation,” which may include removal of later parts added to the historic structure. The court of appeals noted that the HPO and BOA applied the sections of the uniform development code dealing with “rehabilitation” and “new construction.” The court looked at the statutory language of the uniform development code and acknowledged that the BOA’s interpretation of those provisions is entitled to deference. The court was persuaded by both the BOA’s analysis, as well as the written findings of the HPO, in concluding that the certificate of appropriateness was properly issued. Thus, the court reversed the trial court’s judgment and rendered judgment instructing the BOA to issue the certificate of appropriateness for the project.   

Pension: City of Dallas v. Martin, No. 05-16-01227-CV, 2017 WL 3275527 (Tex. App.―Dallas July 25, 2017) (mem. op.). The City of Dallas, as well as certain named councilmembers, filed interlocutory appeals from orders denying their jurisdictional challenges in two lawsuits that current and former police, fire, and rescue officers filed against the city regarding the pension system. The court of appeals provided the factual and procedural background of the ongoing pension system litigation against the City of Dallas. The city and city officials argued that the trial court erred in denying their motions for summary judgment, as there is no essential term of the alleged contract that the city could have breached and no associated damages within the waiver in Chapter 271 of the Local Government Code.

The court of appeals analyzed the waiver of immunity provisions in Local Government Code Chapter 271. The court then concluded that the police, fire, and rescue officers alleged a unilateral contract that falls within Section 271.152’s waiver of immunity. Additionally, the court concluded that the officers were seeking to require the city officials to make payments that will become due in the future, not past due sums. Thus, the pension system’s claims do not constitute retrospective requests. The court affirmed the trial court’s orders denying summary judgment and pleas to the jurisdiction.

Takings: KMS Retail Rowlett, L.P. v. City of Rowlett, No. 05-16-00402-CV, 2017 WL 3048477 (Tex. App.—Dallas July 19, 2017) (mem. op.). At issue in this case is the validity of the City of Rowlett’s taking of KMS Retail’s private road easement to convert it to a public roadway. KMS constructed a private road along the southern border of its property. However, the private road only extended to part of its commercial development. The City of Rowlett entered into an economic development agreement with another company, Briarwood, to develop land nearby that required access to a road. Briarwood was unable to reach an agreement with KMS for permission to use the easement so the city sought to condemn the part of the private road easement on KMS’s tract to convert it into a public roadway. The city filed its condemnation petition, and the special commissioners awarded KMS damages of $31,662 for the taking. KMS objected to the award and moved to dismiss the action alleging that the taking was not necessary for a public use. The trial court ultimately ruled in the city’s favor awarding KMS the damages of $31,662. KMS appealed this decision.

The court of appeals recognized that cities must show that they intend to put the property condemned to public use and that the condemnation must be necessary to advance or achieve that public use. In its analysis, the court points out that the “mere fact that a particular individual, group, or enterprise may benefit will not deprive the use of its public character.” The court noted that the city passed a formal resolution stating “a public necessity exists for the welfare of the City and its citizens and it is in the public interest” for the city to acquire the private road easement for the public purpose of acquiring a right of way for construction, maintenance, and operation of a public street. The court was also persuaded by the city staff report on the benefits of the road construction. Thus, the court of appeals concluded that the summary judgment evidence established that the condemnation was necessary for a public use.

Additionally, the court looked at Section 2206.001(b) of the Government Code, which prohibits a governmental entity from using eminent domain for economic development purposes. The court recognized that in City of Austin v. Whittington, the Supreme Court of Texas acknowledged that the prohibitions of Section 2206.001(b) would not invalidate a taking for a purpose that falls within one of the statutory exceptions listed in Section 2206.001(c). Because KMS failed to provide any evidence that the city’s taking did not constitute a “legitimate transportation project,” as permitted by subsection (c), the court concluded that the city’s taking did not violate Section 2206.001 of the Government Code. Thus, the court affirmed the trial court’s summary judgment in favor of the city.

Lease of City Property: EP Hotel Partners, L.P. v. City of El Paso, No. 08-16-00031-CV, 2017 WL 3326819 (Tex. App.—El Paso Aug. 4, 2017). In this case, the Eighth Court of Appeals affirmed the trial court’s granting of summary judgment in favor the city.

Hotel operators located near the El Paso International Airport  (“operators”) filed suit claiming that the city violated the city charter by entering a lease with EP Vida for the construction and operation of a new hotel and retail center on city property located near the operators’ hotels. The city considered the long-vacant parcel of land at issue to be blighted; the lease with EP Vida contained certain incentives in the form of rent abatement during the initial years of the lease. However, over the life of the 40-year lease, the city anticipated it would receive more than fair market value rent for the property. Regardless, the operators argued that the lease violated the “reasonable fee” provision of the city charter which provided as follows: “Any ordinance providing for the conveyance, lease, or grant of a franchise regarding the property of the City shall provide for payment to the City of a reasonable fee . . . . ” The city and EP Vida file a joint no-evidence motion for summary judgment seeking dismissal of the operators’ claims, arguing the operators had no evidence that the lease violated the city charter.

The term “reasonable fee” is not defined in the city charter and the city had no written policy defining the term; thus, the court used general rules of statutory construction to conclude that the charter required the imposition of a fair or moderate fee and prohibited the city from leasing property for fees that are “grossly inadequate” or so excessively low as to shock the conscience, that are made in bad faith, or made for a fraudulent purpose. The appellate court concluded that just because the city might use different rate structures in its leases does not mean the EP Vida lease was made without “rational or reasonable basis” or that the rent was grossly inadequate.

The appellate court also concluded that the operators’ claims that the EP Vida lease was below fair market rent were conclusory in nature. The operators presented no evidence that the city’s calculation of the anticipated rent was in error, that the city faced an unreasonable risk of not recouping losses they might suffer in the first years of the lease due to the incentives, or that the decision to include rental abatement was an imprudent or unacceptable method of calculating rent in a commercial lease.  Instead, the summary judgment evidence showed that the city had structured leases in a variety of ways and had offered rental abatement to other airport hotels.

The operators also argued there was evidence that the city council did not fully understand (had not been presented with) the details of the EP Vida lease and how it might differ from previous leases.  The court concluded that what the city council knew or did not know had no bearing on the validity of the lease and whether it contained a reasonable fee.  And acting without full knowledge would not render city council actions “ultra vires” (without legal authority).  Moreover, the claims were purely speculative since the summary judgment evidence showed the city council was provided with all of the lease terms. The operators’ claims were overruled and the trial court’s entry of summary judgment affirmed.

Premises Liability: Lucker v. Texas Dep’t of Transp., No. 13-16-00380-CV, 2017 WL 3304178 (Tex. App.—Corpus Christi Aug. 3, 2017) (mem. op.). This is a premise liability case where the Thirteenth Court of Appeals affirmed the granting of a jury verdict in favor of the Texas Department of Transportation (TxDOT).

TxDOT received information water was likely to flood a number of roads in Lee County and dispatched employees to assist. Throughout the day, the assistant maintenance supervisor, Meinke, put out a number of signs at different locations. One sign was a large temporary “Watch For Water On Road” sign, which also displayed two flags on FM 1624 near a culvert referred to as the “bridge.” The sign was placed next to a smaller, permanent sign, with the same message. These signs were located about 2,500 feet from the bridge. Meinke testified that a car traveling at 60 miles per hour would reach the water in about thirty seconds after passing the two signs on that day.  Because the water was rising rapidly, at 7:15 p.m. Meinke ordered that barricades and road closed signs be brought to both sides of the bridge after a visual inspection. However, these did not arrive until after the incident. Meinke left the site to warn nearby oil workers of the danger and rising water. Upon returning to the bridge a short time later, he viewed Sally Lucker’s vehicle floating in the water. She died. Lucker’s husband sued TxDOT and the case went to a jury trial. The jury returned a verdict for TxDOT and Lucker appealed.

Over the objection of Lucker, the trial court submitted to the jury a charge containing two questions concerning the emergency exception in the Texas Tort Claims Act. Essentially, the first question asked the jury if TxDOT was reacting to a flooding emergency and the second was whether the death was proximately caused by the conscious indifference or reckless disregard of the safety of others on the part of TxDOT.  The jury answered in favor of TxDOT for these questions. The jury did find TxDOT 51% responsible for the accident and Lucker 49% responsible. TxDOT moved for entry of a take nothing judgment which the trial court granted. The Thirteenth Court of Appeals notes the language within the judgment clearly indicates the trial court considered not only the findings of the jury, but arguments of counsel and filings with the court. TxDOT submitted arguments regarding premise liability which were not substantiated with evidence during trial to which Lucker’s attorney did not respond. However, the trial court did not specify its grounds for granting the motion. The appellate court specifically noted it could not tell if the trial court found the emergency exception to apply or if the trial court found that there was no evidence on one or more of the elements of Lucker’s premise liability claim. Because Lucker briefed only the emergency exception arguments and not the lack of evidence on premise defects, he waived such argument. As a result, the judgment of the trial court must be affirmed.*

Arbitration: IOC Co., L.L.C. v. City of Edinburg, No. 13-16-00117-CV, 2017 WL 3084293 (Tex. App.—Corpus Christi July 20, 2017) (mem. op.). IOC and the City of Edinburg entered into two separate agreements regarding engineering and paving for two city streets. Disputes arose related to each of the projects, and the matters were consolidated and arbitrated by the same arbitrator pursuant to the agreements. The arbitrator found that the city materially breached both agreements and was liable to IOC for damages. The city filed a petition and application to vacate the arbitration award with the trial court and prevailed. IOC appealed.

On appeal, IOC argued that the Texas Arbitration Act (Civil Practice and Remedies Code Section 171.088) should have prevented the trial court from granting the city’s motion to vacate the arbitration award. Section 171.088(a)(1) of the Civil Practice and Remedies Code authorizes the trial court to vacate an award if “the award was obtained by corruption, fraud, or other undue means.” The court primarily examined whether the award was obtained by “undue means.” After reviewing the record, the court of appeals found that the city failed to meet its burden to establish that IOC obtained its award based on undue means, which would amount to immoral, illegal, or bad faith conduct. Even if the arbitrator made minor errors or misapplied the relevant state statute to the facts of the case, a mistake of law is not enough to amount to undue means. Further, Section 171.088(a)(3)(A) provides that the trial court may vacate an award if the arbitrator exceeded his or her powers. Because in this case the record showed that both contracts gave the arbitrator wide and full authority to decide any and all controversies, claims, or disputes, the court held that IOC’s breach of contract claims were properly before the arbitrator.

The court reversed the trial court’s orders and rendered judgment granting IOC’s motion to confirm the arbitration award.

*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.

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