Note: Included cases are from July 1, 2024, through July 31, 2024.
Tort Claims Act: City of Houston v. Zuniga, No. 01-23-00853-CV, 2024 WL 3259847 (Tex. App.—Houston [1st Dist.] July 2, 2024) (mem. op.). Zuniga sued the City of Houston for injuries she suffered in a car accident with a city vehicle. The city filed a plea to the jurisdiction and a motion for summary judgment, claiming that because Zuniga had not provided the city with the notice required under the Texas Tort Claims Act, the city’s immunity had not been waived. The trial court denied the city’s plea and motion, and the city appealed.
The appellate court affirmed, holding that although Zuniga had not provided formal notice, the city had actual notice that Zuniga believed the city was liable for her injuries based on her statements in the police report and crash investigation, despite the report and investigation determining that the city was not at fault.
Tort Claims Act: City of Houston v. Stoffer, No. 01-23-00335-CV, 2024 WL 3417137 (Tex. App.—Houston [1st Dist.] July 16, 2024) (mem. op.). Stoffer sued the City of Houston for injuries she suffered in a car accident with a city vehicle driven by Tollet. At the time of the accident, Tollet had been turning into a gas station to refuel the city-owned vehicle on her commute home from work. The city filed a motion for summary judgment, claiming that immunity had not been waived because Tollet was not acting in the course and scope of her employment when she was commuting home from work. The trial court denied the city’s motion and the city appealed.
The appellate court affirmed, holding that because Tollet had been refueling the city-owned vehicle, the city had not effectively rebutted the presumption that an employee driving a city-owned vehicle is acting in the course of scope of her employment.
Defamation: Joiner v. Wiggins, No. 01-23-00026-CV, 2024 WL 3503065 (Tex. App.—Houston [1st Dist.] July 23, 2024) (mem. op.). Joiner, mayor of the City of Kemah, sued his campaign opponent, Wiggins, for defamation after Wiggins displayed signs reading that Joiner had pleaded guilty to spending public funds for political advertising. Wiggins filed a no-evidence motion for summary judgment and the trial court granted the motion. Joiner appealed.
The appellate court reversed and remanded, holding that Joiner had raised an issue of material fact regarding: (1) whether the statement was false, because it referred to an ethics complaint rather than an actual crime; and (2) whether Wiggins had made the statement with actual malice.
Inverse Condemnation: City of Kemah v. Crow, No. 01-23-00417-CV, 2024 WL 3528440 (Tex. App.—Houston [1st Dist.] July 25, 2024) (mem. op.). Crow applied for a city building permit to build a barndominium and two cottages on her land for use as short-term rentals and as a residence for herself. The city issued the permit but then took a series of actions afterward to halt and delay construction, including requiring her to submit a drainage plan. Crow sued the city, claiming inverse condemnation because the city had made it impossible for her to use and enjoy her land. The city filed a plea to the jurisdiction, claiming the trial court had no jurisdiction because the city had not made a final determination denying Crow’s drainage plan. The trial court denied the plea and the city appealed.
The appellate court affirmed, holding that: (1) Crow’s pleading was sufficient to establish a facially valid takings claim because the pleading asserted that the city had issued a permit and then took a series of actions to prevent her from developing her property; and (2) Crow was not required to plead that the city had made a final determination with regard to the drainage plan.
Tort Claims Act: City of Houston v. Rios, No. 01-23-00794-CV, 2024 WL 3571649 (Tex. App.—Houston [1st Dist.] July 30, 2024) (mem. op.). Rios sued the City of Houston for injuries she suffered after her vehicle was hit by a city-owned vehicle driven by George, who was on her way to a work site at the time of the accident. The city filed a motion for summary judgment claiming governmental immunity which the trial court denied. The city appealed.
The appellate court affirmed, holding that the Texas Tort Claims Act’s waiver of immunity for negligent operation of a motor vehicle applied because the city had not offered evidence to rebut the presumption that George was acting in the course and scope of her employment when driving the city vehicle to a city work site.
Habeas Corpus: Kleinman v. State, No. 03-23-00708-CR, 2024 WL 3355046 (Tex. App.—Austin July 10, 2024). In late 2021, Cedar Park code compliance officers learned Michael Kleinman and AusPro Enterprises, L.P. were operating a head shop in violation of the city’s zoning ordinances. After a warning, Kleinman and AusPro failed to come into compliance with the city’s codes, and as a result were issued 15 citations over several months. The violations were Class C misdemeanors and were punishable by fines only. Kleinman and AusPro were found guilty of the violations in municipal court but later appealed. During this time, they also filed a pretrial application for writ of habeas corpus challenging the city’s zoning ordinance as unconstitutionally vague on its face and additionally alleging their prosecution was unconstitutionally selective and in violation of their rights to equal protection. Although the trial court determined Kleinman and AusPro were restrained in their liberty, the court denied their application for writ of habeas corpus.
In affirming the lower court’s order, the court of appeals concluded that Texas habeas relief could not be extended to applicants who have been charged with fine-only offenses and are not in custody or have not been released from custody on bond. As a such, Kleinman and AusPro failed to satisfy the restraint requirement for habeas relief.
Procedure: Kleinman v. State, No. 03-23-00665-CR, 2024 WL 3355069 (Tex. App.—Austin July 10, 2024). This case stems from the same shop in which Kleinman was cited multiple times by code compliance officers for violating various Cedar Park ordinances and a provision in the Texas Health and Safety Code. In 2023, Kleinman was found guilty of those violations in municipal court but appealed his convictions to the trial court. As part of the process, Kleinman filed the required appeal bonds but did not personally sign them, instead granting his attorney a limited power of attorney to do so. Because Kleinman did not personally sign them as required by Tex. Code of Criminal Procedure Art. 17.08(4), the municipal court denied the bonds. The State then filed an application for a writ of procedendo arguing the trial court lacked jurisdiction because Kleinman’s appeal bonds were insufficient to perfect the appeals and that the court should remand them to the municipal court for enforcement of the final judgments. The trial court granted the State’s application, and Kleinman appealed.
Evaluating Articles 44.14 and 45.0426 of the Code of Criminal Procedure and citing to a sister court’s decision, the Court of Appeals concluded that a court in which an appeal is taken cannot dismiss a defendant’s appeal for lack of jurisdiction for a deficient appeal bond without first providing the defendant notice and an opportunity to cure by filing a new amended bond. Because the trial court did not provide Kleinman this notice or opportunity to cure, the court of appeals reversed the trial court’s order and remanded the case for further proceedings.
Tort Claims Act: City of Dallas v. Perez, No. 05-23-00376-CV, 2024 WL 3593740 (Tex. App.—Dallas July 31, 2024) (mem. op.). Brandie Perez, individually and as next friend of her minor children, A.P., G.P., and S.P., sued the city of Dallas for damages suffered due to a vehicle collision caused by Officer Jose Gamez while in pursuit of a fleeing suspect. The city filed a plea to the jurisdiction based on official immunity and claimed the officer’s actions satisfied the emergency exception under the Tort Claims Act. After a hearing, the trial court denied the plea, and the city appealed. The court of appeals held that the city met its burden in establishing Officer Gamez was entitled to official immunity because: (1) he was performing a discretionary function as a matter of law when he was engaged in a suspect pursuit to conduct a traffic stop; (2) a reasonably prudent officer under the same or similar circumstances could have believed Officer Gamez’s actions were justified; (3) no genuine issue of material fact was raised as to whether Officer Gamez acted in good faith; and (4) he acted within the scope of his authority. Without addressing the city’s remaining issue on the emergency exception, the court of appeals reversed the trial court’s order and rendered judgment in favor of the city.
Takings: City of Buda v. N. M. Edificios, LLC, No. 07-23-00427-CV, 2024 WL 3282100 (Tex. App. July 2, 2024) (mem. op.). The city entered into a drainage easement agreement with a developer where the city was to “construct, operate, maintain, replace, upgrade, and repair” drainage improvements that convey surface water from the subject property and other nearby properties. The developer then sold the property to another developer. The second developer submitted updated plans for the property and the city instructed the developer to provide for additional drainage improvements before the application could proceed. The developer sued the city based on either an investment-backed or regulatory taking. The city filed a plea to the jurisdiction.
On appeal, the appellate court: (1) found the developer’s claims were ripe; (2) rejected the city’s arguments that the claim was really a contract dispute and not a taking; (3) rejected the city’s challenges to the takings claims based on investment-backed expectations because regulatory takings claims may involve decisions by a governmental authority that do not directly implicate a regulation; and (4) found the statute of limitations for a takings claim is ten years so the claims could proceed.
Tort Claims Act: City of Stinnett v. Price, No. 07-24-00095-CV, 2024 WL 3588589 (Tex. App. July 30, 2024) (mem. op.). The plaintiff sued the city for injuries she sustained when she was exiting city hall, ran into a glass panel abutting the glass door, and the glass panel shattered. The trial court denied the city’s plea to the jurisdiction and the city appealed. On appeal, the court found that the evidence was conclusive that the danger posed by the glass panels bracketing the door was so open and obvious that it should be known and appreciated by the plaintiff. Therefore, because the plaintiff could not prove that she did not know of the condition (it was open and obvious), she could not establish a waiver of the city’s immunity. The appellate court reversed the trial court and granted the city’s plea.
Dangerous Dogs: Jaramillo v. City of Odessa Animal Control, No. 11-23-00117-CV, 2024 WL 3362927 (Tex. App.—Eastland July 11, 2024) (mem. op.). In 2022, City of Odessa animal control officers took custody of Allie Jaramillo’s dogs after they attacked several teenage minors. The city subsequently requested a hearing in municipal court for a determination of the dogs’ dangerousness. At the hearing, the court ordered Jaramillo to comply with the dangerous dog requirements under Texas Health and Safety Code Section 822.042 before the dogs could be returned to her. After more than 30 days, the municipal court held a second hearing and determined that Jaramillo had failed to comply with the applicable requirements and ordered the dogs to be euthanized pursuant to Section 822.042(e). Jaramillo appealed to the county court at law, but the court affirmed the municipal court’s findings. Jaramillo further appealed arguing, among other things, that: (1) the municipal court lacked subject-matter jurisdiction to hear and decide the case; (2) her constitutional right to due process was violated where city animal control officers did not inform her that her dogs were considered dangerous dogs under Section 822.042(g)(3) and she did not receive notice of the hearing to determine whether her dogs would be euthanized; and (3) the municipal court erred in determining all of the dogs were dangerous under Section 822.041 because only one of the dogs was alleged to have bitten the minor-victims.
The court of appeals, overruling all of Jaramillo’s issues, first pointed out that a municipal court’s authority over the matter could be found in Section 822.042(c) and (g)(2). Second, the court noted that Section 822.042(g) only requires that the owner be notified in one of the three ways, and Jaramillo learned she was the owner of a dangerous dog when she learned of the attack and signed owner-surrender forms applicable to when dogs make unprovoked attacks. Therefore, Jaramillo’s due process rights were not violated as the record also indicated she had in fact received notice of the hearings. Lastly, the court of appeals held that neither the municipal court nor the county court at law had erred in determining Jaramillo’s were dangerous under the applicable statute because the minor-victims were attacked and reasonably believed they would suffer harm or bodily injury from all the dogs.
Immunity: Bellamy v. Allegiance Benefit Plan Mgmt., Inc., No. 11-23-00105-CV, 2024 WL 3528535 (Tex. App.—Eastland July 25, 2024). Amanda Bellamy sued the city of Midland and Allegiance Benefit Plan Management Inc., the city’s “plan supervisor,” after her initial medical claim and subsequent appeals for coverage under the city’s self-funded insurance plan were denied. Both the city and Allegiance filed a plea to the jurisdiction based on governmental immunity, and in its initial order, the trial court granted the city’s plea but denied Allegiance’s plea. After filing a motion for reconsideration, Allegiance’s plea was granted, and Bellamy appealed. Bellamy argued, among other things, that: (1) because Allegiance did not submit its motion for reconsideration within 30 days of the trial court’s initial denial, the trial court abused its discretion by reconsidering and later granting Allegiance’s plea; and (2) because Allegiance was not the city’s “plan administrator” it was not entitled to governmental immunity.
The court of appeals affirmed the trial court holding that state law contains no such requirement that a motion for reconsideration be filed within 30 days of a trial court signing an interlocutory order. It further held that the trial court did not abuse its discretion by reconsidering its interlocutory order denying Allegiance’s plea to the jurisdiction as it retained the plenary power to do so until the judgment became final. The court also concluded that the record sufficiently showed Allegiance served as a third-party administrator of the city’s plan entitling it to derivative governmental immunity.
Contracts: City of Pharr v. Garcia, No. 13-23-00120-CV, 2024 WL 3370666 (Tex. App.—Corpus Christi–Edinburg July 11, 2024) (mem. op.). Garcia sued the City of Pharr for breach of written and oral contracts, alleging the city had failed to pay for services rendered by Garcia in association with a Toby Keith concert. The city filed a plea to the jurisdiction, claiming that concerts are a governmental function rather than proprietary, and that Garcia’s claims did not fall under Chapter 271’s waiver of immunity for contract claims because the claims relied in part on alleged oral contracts. The trial court denied the plea and the city appealed.
The appellate court reversed, holding that: (1) concerts are a governmental function for the purposes of Garcia’s claims against the city; and (2) because an oral contract is not included in the definition of contract under Chapter 271, there was no applicable waiver of the city’s governmental immunity.
Employment: City of Houston v. Leslie G. Wills, No. 14-23-00178-CV, 2024 WL 3342439 (Tex. App.—Houston [14th Dist.] July 9, 2024) (mem. op.). Leslie Wills was an expert horsewoman and sergeant in the Houston Police Department (HPD) Mounted Patrol for more than a decade, where she was in charge of a number of managerial decisions concerning the training and treatment of horses within the HPD. When Lieutenant Dean Thomas was appointed as the new mounted patrol commander, he made policy changes affecting several areas of Wills’s managerial oversight. Wills complained to the chief of police alleging that Thomas subjected her to a hostile work environment and gender bias. HPD reassigned Thomas and later transferred Wills to downtown patrol, which she claimed was retaliatory and amounted to constructive discharge. After having her grievances dismissed by the city, Wills resigned her position with the HPD and filed suit, and the City of Houston filed a plea to the jurisdiction. The trial court denied the city’s plea, and the city appealed.
The appellate court held that Wills did not provide prima facie evidence of an adverse employment action necessary for her discrimination and retaliation claims. The actions she identified, including reassignment of duties, transfer out of mounted patrol, and constructive discharge, were not supported by evidence sufficient to show they were adverse employment actions under the applicable legal standards. Additionally, even if adverse employment actions had occurred, the city provided legitimate, nondiscriminatory reasons for its actions, which Wills failed to prove were pretextual. Ultimately, the appellate court reversed the trial court’s denial of the city’s plea to the jurisdiction and rendered judgment dismissing Wills’ suit for lack of subject-matter jurisdiction.
Immunity: Dahl v. Vill. of Surfside Beach, No. 14-23-00218-CV, 2024 WL 3447472 (Tex. App.—Houston [14th Dist.] July 18, 2024) (mem. op.). Todd Dahl, Ted Dahl, and Tina Dahl sued the Village of Surfside Beach after being required to pay $4,000 for a water connection to a house they were constructing, which they claimed violated the city’s ordinance mandating the city to cover costs for the first 100 feet of waterline extensions. After paying the money under protest, the Dahls sought reimbursement and a declaratory judgment, and the city asserted governmental immunity. The trial court dismissed the Dahls’ claims with prejudice for lack of jurisdiction, and the Dahls appealed.
On appeal, the Dahls argued that the Texas Tort Claims Act (TTCA) waives the city’s governmental immunity for claims related to water and sewer services and that the Uniform Declaratory Judgment Act (UDJA) likewise waives immunity from a suit to declare rights under a municipal ordinance. Unfortunately for the Dahls, the appellate court disagreed. The TTCA waives immunity only for tort claims involving property damage, personal injury, or death, none of which were claimed by the Dahls. Likewise, the UDJA waives immunity for actions that challenge the validity of an ordinance rather than its application. In this case, the Dahls challenged the city’s application of the ordinance; therefore, the city’s immunity was not waived. Ultimately, the appellate court determined that while the trial court correctly dismissed the claims, the Dahls should be given the opportunity to amend their pleadings. The trial court’s order dismissing the case was reversed, and the case was remanded for further proceedings to allow such amendments.
Tort Claims Act; Economic Development: Hitchcock Industrial Development Corporation v. Cressman Tubular Products Corporation, No. 14-23-00254-CV, 2024 WL 3447475 (Tex. App.—Houston [14th Dist.] July 18, 2024). The City of Hitchcock sued Cressman Tubular Products Corporation (“Cressman”) for breach of an economic development agreement, unjust enrichment, and fraud. Cressman filed third-party claims against Hitchcock Industrial Development Corporation (the “EDC”), a Type A economic development corporation, for breach of the development agreement, negligent misrepresentation, and fraud. The EDC filed a plea to the jurisdiction, asserting governmental immunity under Texas Local Government Code § 504.107(b). The trial court denied the plea, and the EDC appealed. While the EDC, as a Type A economic development corporation, is a governmental unit for purposes of the Texas Tort Claims Act and therefore qualifies for interlocutory appeal, economic development corporations do not enjoy governmental immunity from tort claims. The enabling legislation for economic development corporations does not confer immunity; rather, it imports the Texas Tort Claims Act’s limitations on liability and damages. Ultimately, the appellate court affirmed the trial court’s denial of the EDC’s plea to the jurisdiction, holding that Type A economic development corporations do not have governmental immunity from tort claims under the current statutory framework. Note that this opinion extends a holding the Texas Supreme Court made regarding Type B EDCs to Type A EDCs. See Rosenberg Development Corporation v. Imperial Performing Arts, Inc., 571 S.W.3d 738 (Tex. 2019).
Tort Claims Act: City of Missouri City v. Hampton, No. 14-23-00111-CV, 2024 WL 3507415 (Tex. App.—Houston [14th Dist.] July 23, 2024) (mem. op.). Allanias and Damita Hampton sued Missouri City for injuries their daughter Alaina sustained when she collided with a metal fence post while playing in a city park. They alleged negligence and premises liability claims under the Texas Torts Claims Act. Missouri City argued governmental immunity and filed a plea to the jurisdiction, which the trial court denied, prompting the city to appeal.
The appellate court focused much of its analysis on whether Alaina was an invitee, licensee, or trespasser in the city park, because a higher duty is owed by a landowner to an invitee than to either a licensee or trespasser. The Hamptons argued that Alaina should be considered an invitee. The court indicated that Alaina could be considered an invitee if: (1) she had paid for entry to the facility, or (2) the defect to the fence post was considered a legal “special defect.” Alaina had not paid for entry to the facility, and based on its location, the fence post could not be considered a special defect; therefore, as a matter of law, the court held that she was a licensee and not an invitee. If the Hamptons could establish that the city had actual knowledge of the dangerous condition, the city still could have been liable for the damages, even though Alaina was a licensee; however, they were unable to make the required showing. Therefore, the appellate court reversed the trial court’s order and dismissed the case for lack of subject matter jurisdiction.