Recent Texas Cases of Interest to Cities

Note:  Included cases are from November 11, 2016 through December 10, 2016.

Tort Claims Act: Laverie v. Wetherbe, No. 15-0217, 2016 WL 7177730 (Tex.  Dec. 9, 2016). This is a Texas Tort Claims Act case where the Texas Supreme Court reversed and rendered an order denying a motion for summary judgment and held no “subjective intent” element exists requiring an employee to establish they acted only in their employment capacity.

A University of Texas Tech professor and associate dean, Wetherbe, sued a colleague, Laverie, for defamation. Understanding the university was immune from defamation claims, Wetherbe sued the senior associate dean in charge of the committee charged with searching for a new dean for the Rawls College of Business Administration. During the search, Leverie allegedly told Texas Tech’s provost, Bob Smith, Wetherbe was using “some kind of listening device or other to eavesdrop on people’s conversations in the Rawls College.” Smith said he considered it “only a hearsay report” and denied it played any role in his decision not to appoint Wetherbe. Wetherbe was also passed over for a Horn professorship. Wetherbe sued Laverie for defamation. Laverie filed a Texas Civil Practice and Remedies Code Section 101.106(f) motion for summary judgment to dismiss her and substitute the university since she was acting within the course and scope of her employment. Wetherbe counted the defamatory statements were not uttered in the course and scope of employment but were for personally motivated reasons. The trial court denied the motion. The court of appeals affirmed noting the record “contains no direct evidence of Laverie’s intentions when she spoke with Smith about Wetherbe … and does not conclusively establish the nature of her motivation…”  Laverie appealed.

The Texas Supreme Court analyzed the language and purpose behind Section 101.106(f). The only issue is whether Laverie acted within the scope of her employment when she made the allegedly defamatory statements. Wetherbe seems to concede Laverie possibly acted within the scope of her employment—he simply argues we cannot know with certainty unless we know why she said what she said.  However, nothing in the election-of-remedies provision or the statutory definition of “scope of employment” suggests subjective intent is a necessary component of the scope-of-employment analysis. Rather, the Tort Claims Act focuses on “performance . . . of the duties of an employee’s office or employment,” which calls for an objective assessment.  An employee whose conduct is unrelated to his job, and therefore objectively outside the scope of his employment, would not be entitled to such a defense. This is not tantamount to a threshold requirement that government-employee defendants conclusively prove their subjective intent to establish they acted within the scope of their employment. Further, requiring proof of an employee’s subjective intent would burden government employees with proving a negative to attain dismissal.  Moreover, requiring such would require at least a partial analysis of the merits, where the function of the election-of-remedies provision is not to adjudicate the underlying claim but to quickly dismiss government employees when the suit should be brought against their employer. Finally, Laverie’s personal motivations, if she had any, ultimately do not change her job responsibilities and whether the statement was in performance of them. Laverie was senior associate dean of the business school and a member of the dean search committee.  Laverie did not volunteer the information but responded as a direct result of Smith’s specific inquiry on the search. Even if Laverie defamed Wetherbe, she did so while fulfilling her job duties.  As a result, Laverie is entitled to dismissal.*

Property Tax Appraisals: Cypress Creek Fayridge, L.P. v. Harris Cty. Appraisal Dist., No. 01-16-00003-CV, 2016 WL 7164032 (Tex. App.—Houston [1st Dist.] Dec. 8, 2016) (mem. op.). Cypress Creek Fayridge, L.P. (Cypress Creek) sued Harris County Appraisal District (HCAD) over the appraisal of Cypress Creek’s low income apartment.  Cypress Creek argued that the HCAD appraised the property at an excessive market value.  The trial court sided with HCAD concerning the appraised value of the property stating in its finding of facts and conclusion of law that Cypress Creek did not meet its burden of proof establishing a value different from that of HCAD’s appraisal because it did not present sufficient information to justify a reduction to the appraised value of the property.  Cypress Creek moved for a new trial, was denied, and filed an appeal.

Cypress Creek raises two issue on appeal: (1) that HCAD had the burden of proof for the market valuation of the complex; and (2) that the proof is legally and factually insufficient to support the trial court’s finding concerning the market value of the apartment complex because HCAD’s expert assumed that the complex’s operating expenses were comparable to those of other low-income apartment complexes in the same region, rather than taking into account the complex’s actual expenses for the previous years which indicated a negative net income.

The court concludes that the assignment of the burden of proof affects the standard of review for legal sufficiency. The party who challenges the legal sufficiency of a finding on which it did not bear the burden of proof must show that no evidence supports the finding.  However, a party who challenges the legal sufficiency of a finding on which it bore the burden of proof must show not only that no evidence supports the trial court’s finding but also that the evidence conclusively proved the contrary.

Cypress Creek argued that who has the burden of proof is unsettled, but the court responded that it had, on many occasions, concluded that the burden of proof was assigned to the taxpayer in a tax appraisal suit.  In this case, the burden of proof was not outcome determinative since if the court had assigned the burden of proof to HCAD, Cypress Creek had not shown that there was no evidence to support the trial court’s market-value finding.  Yet, HCAD had shown competent evidence that is legally and factually sufficient to support the trial court’s finding.

As for the sufficiency of the evidence, the court looks to Chapter 23 of the Tax Code, covering the appraisal methods and procedures that must be followed for the appraisal of property.  Cypress Creek contends that the appraisal was not based on the actual expenses of the apartment complex but was based on “the individual characteristics” affecting the property and the “available evidence that is specific” to its value.  Tex. Tax Code Ann. § 23.01(b).  Also, Cypress Creek contends that the calculation of the market value was speculative since the HCAD’s expert assumed that the complex’s expenses were similar to those of other low-income apartment complexes in the same region.  The court doesn’t agree with Cypress Creek’s argument that the statute does allow for the appraiser to “analyze comparable operating expense data available” in order “to estimate the operating expenses of the property.” Tex. Tax Code Ann. § 23.012(a)(2). Especially, since the previous market value of the apartments occurred when it did not have a single unit ready to lease; whereas, on January 1 of the disputed tax year, all the units were lease-ready and more than half of the units were leased.  After reviewing the totality of the evidence and deference due to the trial court, the court affirms the trial court’s judgment.

Governmental Immunity: Delgado v. River Oaks Police Dep’t, No. 02-15-00205-CV, 2016 WL 6900900 (Tex. App.— Fort Worth Nov. 23, 2016) (mem. op.). Delgado sued the City of River Oaks and its police department for claims arising from his arrest for driving while intoxicated and an involuntary blood draw. The city and police department filed pleas to the jurisdiction and special exceptions asserting governmental immunity and arguing that the police department couldn’t be sued because it is not a separate entity subject to suit. The trial court granted the pleas and Delgado appealed.

Delgado argues the trial court should have given him the opportunity to amend his pleadings to add additional claims before dismissing his negligence per se claims. The appellate court explains that Delgado “does not contend that, nor does he articulate how, any amendment would have cured the jurisdictional defects….” Further, Delgado did not request an opportunity to amend from the trial court. He waived the issue of an ability to file an amendment and the trial court therefore properly granted the plea.*

Employment Law:  Texas Workforce Comm’n v. Wichita Cty., No. 02-15-00215-CV, 2016 WL 7157247 (Tex. App.—Fort Worth Dec. 8, 2016). Julia White, an employee of Wichita County was on Family and Medical Leave (FMLA) for a severe depression and anxiety.  White used up all of her paid leave and was on unpaid leave, but the county continued to pay her medical insurance and retained a position for her while she was on FMLA.  White inquired to the Texas Workforce Commission (TWC) about unemployment benefits.  TWC said that she could apply and when White did, TWC’s initial decision was that she was entitled to unemployment benefits.  TWC found that unpaid leave was considered unemployed.

The county appealed TWC’s initial decision and requested an administrative hearing, at which the tribunal agreed with the initial TWC decision and ordered the county to be billed for White’s unemployment benefits. The tribunal concluded that White was entitled to unemployment benefits because TWC considered that she was separated from her last employment when she went on medical leave and the county could not make any accommodations based on White’s restrictions. The county appealed to the TWC’s commissioners, and the commissioners agreed with the tribunal. The county sought judicial review of the final decision.  The county pled that TWC’s decision was not supported by law because White was not separated from her employment and was therefore disqualified from benefits.  TWC filed a general denial and the county and TWC both moved for summary judgment.  The trial court granted the county’s motion for summary judgement and reversed TWC’s decision.  TWC appealed.

The appellate court indicates that the question of whether FMLA leave precludes simultaneous compensation under a state unemployment law is an issue of first impression.  Through the court’s de novo review of the summary judgment, it determines that an employee on FMLA cannot also receive unemployment benefits because these two laws apply to distinct groups of people.  FMLA applies to employees with serious medical conditions who cannot perform their jobs on a temporary basis, desire to return to those jobs, and need protection for the jobs until the reason for leave is resolved.  However, unemployment benefits are for people who desire new jobs and are ready and willing to perform them and need temporary income benefits in the meantime.  These two laws are mutually exclusive and the court does not think that either federal or state legislators intended for a person to be able to receive both benefits at the same time.  The court concludes that TWC’s argument, which relies on Labor Code Section 201.091, that White was “totally unemployed” because she wasn’t performing services or receiving wages during her FMLA leave was an unreasonable interpretation “when construing section 201.091(a)’s definition of ‘unemployed’ together with section 207.021’s benefit eligibility requirement and with provisions of federal law.”  Therefore, the court affirms the trial courts decision and finds that the county is not liable for the unemployment benefits because White was not qualified to receive unemployment benefits.

Whistleblower: Torres v. City of San Antonio, No. 04-15-00664-CV, 2016 WL 7119056 (Tex. App.—San Antonio Dec. 7, 2016) (mem. op.).  Stephen Torres worked in various positions at the San Antonio Fire Department. While assigned to the arson division, Torres observed what he believed was improper use of credentials by two peace officers and relayed his concerns to his supervising captain. Torres also submitted a written memo to the deputy chief detailing what he witnessed. After an investigation, the Office of Municipal Integrity (OMI) labeled Torres’s allegations as unfounded. A few years later, Torres applied for a lateral transfer that included an increase in pay. Torres and one other less experienced candidate were interviewed. The committee recommended the other individual for the position. After learning that he was not selected, Torres filed a complaint alleging that he was discriminated against due to his race/national origin. The city’s investigation did not find discrimination against Torres. Torres then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Later, Torres filed this suit claiming the city retaliated against him for the OMI complaint in violation of the Texas Whistleblower Act. The trial court granted the city’s summary judgment motion, which Torres appealed.

The court of appeals concluded that there was a disputed fact issue on the element of “good faith,” as to whether Torres’s decision to report to OMI was reasonable. The court then looked at the next necessary element of a whistleblower claim: causation. The city alleged that Torres provided no evidence showing any retaliatory action in the two years subsequent to the complaint and prior to the non-selection. Torres provided testimony from the members of the committee that Torres’s OMI report was brought up during the selection process. Thus, the court concluded there was some evidence that the fact that Torres reported the misuse of credentials was considered in whether to select him for the position. The city did not negate causation and the case was remanded to the trial court.

Employment Law: Cooper v. City of Dallas, No. 05-15-00874-CV, 2016 WL 7163831 (Tex. App.—Dallas Dec. 7, 2016) (mem. op.). The City of Dallas hired Teresa Cooper as a police officer. Fourteen years later, she requested a leave of absence and applied for short-term disability benefits for generalized anxiety disorder. Her short-term disability was approved, but when she did not return to work as scheduled, the city terminated her. Cooper appealed the termination to an administrative law judge (ALJ) who determined that her termination was improper because there had been no internal affairs investigation. The ALJ reinstated Cooper to her previous status of being on leave without pay. Cooper was unhappy with being reinstated without pay, and she appealed the ALJ decision to the district court, which affirmed the decision.

Months later, Cooper’s psychologist wrote a letter to the deputy police chief releasing Cooper to return to duty contingent upon the results of a fitness-for-duty evaluation. Cooper failed to show up to the appointment made by the police department. A second appointment was made, which she again failed to attend. Cooper finally appeared for the third appointment, but when the doctor presented her with a consent form to sign, Cooper included the phrase “under duress without giving consent” next to her signature. Since she failed to consent to treatment, the doctor terminated the appointment.

Cooper was ordered to attend another appointment with a different doctor. Instead of attending the appointment, though, she applied to the federal district court to enjoin the city from ordering her to report to a doctor of the city’s choosing. The court denied her application. Cooper failed to attend two additional appointments set by the city. The deputy chief informed Cooper that her status was changed from approved leave without pay to unapproved leave without pay. The Internal Affairs Division (IAD) then issued Cooper three separate written, direct orders to report to IAD to respond to the allegations. Cooper failed to do so. The IAD found Cooper committed six instances of insubordination, and the chief of police terminated Cooper’s employment. Cooper appealed her termination to the city manager who upheld the decision. The ALJ upheld the termination and Cooper appealed.

The city removed the lawsuit to federal court. The court dismissed all claims except the substantial-evidence review of the ALJ’s decision, which the court remanded to state district court. Before the state district judge heard arguments, Cooper’s husband filed a plea in intervention. The city moved to strike the plea, which the district court granted. The district court also found the ALJ’s decision was supported by substantial evidence. The Coopers appealed.

The Dallas Court of Appeals concluded that Mr. Cooper’s pleadings fail to allege facts to support a cause of action in his own name. Furthermore, Mr. Cooper failed to show how his interest was separate from his wife’s. Thus, the court overruled Mr. Cooper’s sole issue on appeal.

In addressing Cooper’s issues on appeal, the court found that the record contained more than a scintilla of evidence to support the ALJ’s decision and overruled Cooper’s first twelve issues on appeal. The court also found there was more than a scintilla of evidence that Cooper was an employee of the City of Dallas at all relevant times. The court then entertains other “reasons” Cooper brought forth in her pro se brief in support of her issues on appeal. The court analyzed and disposed of each of the arguments before affirming the trial court’s decision.

Eminent Domain: Bonham v. City of Corsicana, No. 06-16-00026-CV (Tex. App.Texarkana Nov. 29, 2016). This is an eminent domain proceeding where the Sixth Court of Appeals affirmed the dismissal of an appeal from a special commissioner’s assessment.

The city initiated eminent domain proceedings and a special commissioner’s panel assessed damages. The city deposited the amount into the registry of the court and the property owner corporation timely objected and filed suit. However, it did not serve the city with proper citation. More than seven years later the trial court dismissed the corporation’s objections for want of prosecution. The corporation appealed.

The corporation argues that its failure to proceed to trial was excused because the city was responsible for prosecuting the case. “[W]hen a condemnee properly contests a condemnor’s right to condemn, the condemnor bears the burden to go forward to trial on that issue.” Thus, when an objection is filed, the “proceeding converts into a normal pending cause in the court with the condemnor as plaintiff and the condemnee as defendant.” However the statute expressly states “[t]he objecting party must secure service of citation on the adverse party and try the case in the manner of other civil causes.” “While the condemnor becomes the plaintiff for the purpose of proving his right to condemn, the condemnee still must secure the service of citation on the condemnor.” Texas Civil Practice & Remedies Code Section 17.024(b), and its interpreting case law, provide service is proper against a city only by serving the mayor, clerk, secretary, or treasurer. No such service occurred in this case. And while a condemning entity has the burden to show the right and power to condemn at trial, it was under no legal obligation to do so unless and until it had been served with citation.  The trial court was within its power to dismiss the case. Further, the corporation failed to preserve its estoppel arguments.*

Standing:  City of El Paso v. Tom Brown Ministries, No. 08-16-00075-CV, 2016 WL 7155066 (Tex. App.—El Paso Dec. 7, 2016).  This is an interlocutory appeal from an order denying the City of El Paso’s plea to the jurisdiction.

This case began when then-Mayor John F. Cook, in his individual capacity, sued Tom Brown Ministries (Brown) seeking to enjoin them from circulating recall petitions against Cook (claiming that their conduct violated the Texas Election Code). Brown counterclaimed, suing the city and Cook (in his official capacity), arguing that by seeking to “enforce” the Election Code against them in an unconstitutional manner, the city violated their constitutional right to engage in core political speech in violation of 42 U.S.C. § 1983. Brown sought damages, injunctive relief prohibiting the city from interfering with the right to circulate recall petitions, and a declaratory judgment that certain provisions of the Election Code were unconstitutional. In its plea to the jurisdiction, the city alleged the trial court lacked subject matter jurisdiction in part because Brown lacked standing.

The relief that Cook sought to address by bringing his suit was strictly private in nature; he did not (and could not) bring such a lawsuit on behalf of the city.  Thus, Cook was not acting under color of law or as a city policy making official in suing Brown, but solely in his individual capacity to enforce a private right of action.  Any comments made by Cook in his petition suggesting that he was acting for the city did not transform the nature of the suit.  The city did not ratify Cook’s actions by failing to object to comments made by Cook that he was bringing the suit pursuant to his duties and oath as mayor.  And decertifying the recall petition and voting to cancel the recall election (in compliance with an earlier ruling by the El Paso Court of Appeals) did not constitute an official action or policy that would subject the city to liability.

As to Brown’s counterclaims, the court concludes they have no standing to bring a counterclaim for injunctive relief against the city.  The city did not engage in unconstitutional conduct toward Brown and there is no basis to fear the city will unlawfully enforce the Election Code against Brown in the future.  Likewise, Brown lacks standing to assert a claim for declaratory judgment against the city concerning the constitutionality of the Election Code provisions.  There is no real controversy and any opinion on this matter would constitute an advisory opinion.

In sum, the appellate court concludes that Brown lacked standing and reverses the trial court’s order denying the plea to the jurisdiction, dismissing Brown’s claims against the city and Cook.

Bribery:  Gándara v. State, No. 08-15-00201-CR, 2016 WL 6780081 (Tex. App.—El Paso Nov. 16, 2016).  This case is characterized by the court as “an example of how difficult it is to distinguish politics from bribery.”

In December 2012, the City of Socorro notified the townsfolk of San Elizario that it was proposing to annex the business area, which was made up of approximately twenty businesses, including the Licon Dairy (known for its azadero cheese and petting zoo).  Gándara solicited the Licons’ public support of the city’s annexation in exchange for his efforts as a sitting councilmember of the City of Socorro to “mediate” or “spearhead” favorable initiatives for the dairy (e.g., he offered for the city to spend $40,000 in advertising for the dairy and $40,000 for a spring break event that would bring visitors to the dairy).  Gándara was indicated on one count of bribery under Texas Penal Code Section 36.02.

Gándara raises two issues on appeal.  He claims the trial court should have granted a motion for directed verdict in his favor “because the evidence proved that [he] did not bribe the Licons.”  In his second issue, he claims his conviction “must be reversed because it violated his rights to free speech and to engage in political activity guaranteed by the United States and Texas Constitution.”

The appellate court explains that, under Section 36.02, the State must prove that:  (1)  Gándara intentionally or knowingly solicited or agreed to accept from Licon Dairies; (2) a benefit, that is a pecuniary gain or advantage, to include any benefit to any other person in whose welfare he has a direct and substantial interest; (3) as consideration for his opinion, recommendation, vote, or other exercise of discretion as councilmember.  The State argues that that the City of Socorro is the “other person.”  Thus, the question is whether the evidence is sufficient to show Gándara had a “direct and substantial” interest in the city or, stated another way, whether his interest in the city was “unbroken by any intermediary or agency, and not speculative or illusory, but of a considerable value.”

The court concludes that Gándara promised his vote in return for the Licons’ public support of the annexation.  The court assumes, without deciding, that the Licons’ public support possesses some pecuniary gain or advantage to the City of Socorro.  However, the court finds that the State presented no evidence that the city would, in fact, actually benefit.  Thus, the benefit was speculative and illusory.  Moreover, Gándara’s interest in the city is not direct or substantial and any benefit he would receive from an increased tax base would be the same benefit received by all similarly situated taxpayers.

The court concludes that the evidence is insufficient to support the jury’s finding and renders a judgment of acquittal, noting that any other conclusion would mean that “every public official that furthered the interest of his constituency of which he was a member” would be guilty of bribery.

Comprehensive Plan:  Barras v. City of Orange, No. 09-16-00073-CV, 2016 WL 6809226 (Tex. App—Beaumont Nov. 17, 2016) (mem. op.). This is an appeal from the denial of an injunctive request to prevent the City of Orange from relocating its administrative offices.

In 1996, within the city’s comprehensive plan, the city determined its administrative offices should be centralized in the City of Orange Old Town Center. In 2016, the city purchased and made plans to move some of its offices outside of the Old Town Center. Historic Orange Preservation Empowerment, Inc. (HOPE) sued for injunctive relief to prevent the move. The trial court denied the injunctive relief and HOPE appealed.

HOPE argues the city is required to amend the city charter because it requires that “[n]o subdivision, street, park, or any public way, ground or space, public building or structure or public utility, whether publicly or privately owned which is in conflict with the comprehensive plan shall be constructed or authorized by the City.” HOPE asserts this makes the comprehensive plan mandatory and not simply a guide. However, the plan expressly provides that it is “a guide to the physical development of Orange[,]” and it states that it is “a tool for elected and appointed officials and city staff to guide decision making for growth and development issues.”  After analyzing the plan, the court held it is a guiding document only. Additionally, the parts of the plan relating to the location of the city’s administrative offices were never adopted by ordinance.  The charter applies only to legislation adopted through ordinance, not resolution.  The resolution passed by the city council to move its facilities is therefore not in conflict with the comprehensive plan. As a result, the trial court properly denied the injunctive relief.*

Whistleblower:  Jones v. City of Port Arthur, No. 09-14-00442-CV, 2016 WL 6809207 (Tex. App—Beaumont Nov. 17, 2016) (mem. op.).  Jones was employed as an operator of a residential garbage truck with the City of Port Arthur. After he was terminated, he sued under the Texas Whistleblower Act. Essentially, Jones reported his truck was leaking potentially flammable hydraulic fluid to the city’s public works department and solid waste management division superintendent.  However, he was told the leak was not a problem, that a minor repair fixed it, and that he needed to drive the truck.  He refused, asserting the truck was unsafe to operate on the roadway. He was suspended until his ultimate termination. Jones asserts that during his suspension he reported the violation to the Occupational Safety and Health Administration (OSHA) and the Texas Commission on Environmental Quality (TCEQ).  The trial court granted the city’s plea to the jurisdiction and motions for summary judgment. Jones appealed.

To be a “good faith” report, an employee must not just believe the entity was an appropriate law enforcement authority under the Texas Whistleblower Act, but his belief must be “reasonable in light of the employee’s training and experience.” He must show that a reasonably prudent public employee in similar circumstances would have believed he had made the report to an appropriate authority and that the report was a violation of law. Jones testified he had obtained two associates degrees, one in management development and the other in process technology. He served in the United States Marine Corps and was assigned to a supply unit.  He does not have training as a mechanic. The court held Jones failed to present evidence that it was reasonable, in light of his training and experience and the circumstances presented, for him to believe the conduct he reported was a violation of the law.  The court held his report to the city manager did not qualify and neither did any of the internal reports made to different departments. Even if a report is made in good faith, there must be a causal link. The plaintiff must show that the person who took the adverse employment action knew of the employee’s report of illegal conduct. Both reports to outside agencies were made after his supervisor sent Jones home indefinitely and initiated termination proceedings. The start of the adverse action was the indefinite suspension, not the final date the termination letter was signed.   Further, no evidence exists the decision maker was aware of the complaints to OSHA or TCEQ prior to the termination letter. As a result, no causal connection exists.*

Water Rates: G-M Water Supply Corp. v. City of Hemphill, No. 12-16-00129-CV, 2016 WL 6876499 (Tex. App—Tyler Nov. 22, 2016) (mem. op.).  This is an injunction case where the Tyler Court of Appeals reversed an injunction requiring a purchaser of city water to make payments at a specific rate until otherwise ordered by the court.

G-M is a nonprofit water supply company which had a contract to purchase a minimum level of city water each month. The less they purchased, the more per gallon they paid. G-M later built a treatment plant and started purchasing less water. The city adjusted the rate and demanded payment.  G-M refused. In 2014-15, the city charged G-M $2.8333 per 1,000 gallons of water, but raised the rate in 2015-16 to $5.2137 per 1,000 gallons of water. The city filed an application for temporary injunction requesting that G-M pay the accrued arrearages into the trial court’s registry, along with the full amount of future monthly invoices all calculated at the higher rate. The trial court granted the injunction and G-M appealed.

To establish an irreparable injury, the applicant must make “a clear and compelling presentation that without the injunction, it would suffer an actual irreparable injury resulting in extreme hardship, or that the injunction is extremely necessary to prevent an actual irreparable injury.” The record shows G-M had sufficient funds in its accounts, so the city did not establish it would not be able to satisfy a monetary judgment if obtained. Additionally, the last, actual, peaceable, non-contested status between the parties that preceded the controversy was when the parties operated under the contract rate for 2014-2015. However, the trial courts order used the 2015-2016 rates, which altered the status quo.  And while this dispute has no doubt affected the city’s short term ability to make all the budgeted capital purchases at the preferred time, the evidence shows that the city maintains capital reserves of over $1,000,000.00, so it can negate the effects of its postponed capital expenses, and still provide all services until this matter can be resolved at trial.  Finally, the city did not establish it would be required to sue for each month of non-payment and the court believes any breach of contract suit could encompass everything in a single action. Therefore, it was error to issue the injunctive relief.*

Tort Claims Act: Castillo v. City of Edinburg, No. 13-15-00542-CV, 2016 WL 7011580 (Tex. App.—Corpus Christi Dec. 1, 2016) (mem. op.). Castillo filed suit against the University of Texas Pan-American and the City of Edinburg for injuries he sustained after he was struck by a vehicle while riding his bike in a crosswalk located in the city. Castillo alleged that that the yield signs were in a defective condition because they were placed too close to the crosswalk and the pavement markings were too faded to be clearly visible to drivers. The city filed a plea to the jurisdiction, arguing that it did not waive its governmental immunity for several reasons, including because there was nothing wrong with the condition of the crosswalk. The trial court granted the city’s plea to the jurisdiction and Castillo appealed.

On appeal, Castillo argued that a fact issue existed regarding whether the condition of the pavement markings and location of the yield sign proximately caused his injuries. Meanwhile, the city argued that Castillo failed to show any evidence that any acts or omissions by the city proximately caused his injuries, and that his injuries were caused solely by the driver’s inattention. The court of appeals cited testimony from the driver of the vehicle that struck Castillo in which the driver clearly states that he was familiar with the crosswalk and that he stopped there many times to let people walk across the street. Because of the driver’s undisputed testimony establishing that the condition of the pavement markings and location of yield signs were not substantial factors in bringing about appellant’s injuries, the court determined that Castillo failed to establish that any acts or omissions by the city caused his injuries. The court of appeals affirmed the trial court’s judgment.

Inverse Condemnation: City of Pharr v. Garcia, No. 13-15-00409-CV, 2016 WL 7011579 (Tex. App.—Corpus Christi Dec. 1, 2016) (mem. op.). Following a lawsuit in County Court at Law One in 2009, the City of Pharr and Jose Escamilla entered into a final order that contained a permanent injunction and language that prohibited Escamilla and all other assigns from using a specific property in any way inconsistent with the allowed residential uses under the city’s zoning ordinance. In 2013, Escamilla sold the property to a company, who filed for and secured a rezoning of the lot from single-family residential to office-professional. German Garcia and other property owners filed a petition to intervene in County Court at Law One, seeking compliance with the agreed final order. That case was dismissed after the city filed a motion to vacate the final order due to a change in circumstances.

Garcia also filed suit against the city in the 430th District Court, claiming inverse condemnation and seeking damages for the city’s failure to enforce the agreed final order involving the property at issue, as well as filing ultra vires claims against the city council members and members of the zoning board. Garcia also asked the trial court to issue a temporary injunction and declaratory judgment voiding the rezoning of the lot and enforcing the prior injunction issued by County Court at Law One. The court dismissed with prejudice the claims against the city officials, but denied the city’s plea to the jurisdiction relating to the declaratory judgment and inverse condemnation claims. The city appealed.

In its sole issue, the city claims the trial court erred by denying its plea to the jurisdiction regarding the declaratory judgment and inverse condemnation claims. The city argued that Garcia did not establish sufficient evidence to establish the jurisdiction of the district court to enter a declaratory judgment. The court held that, as an intervening party to the original lawsuit in County Court at Law One, Garcia cannot ask the district court to overrule the county court’s decision and reinstate an order issued by another court. Any attempt to reinstate the county court’s agreed final order should have been filed in that court. As a result, the trial court should have granted the city’s plea to the jurisdiction as to the declaratory judgment action.

On the inverse condemnation argument, the court of appeals held that Garcia raised a fact issue regarding whether or not the rezoning damaged or devalued the market value of his property without adequate compensation from the city. As a result, the court overruled the city’s issue regarding Garcia’s inverse condemnation claim.

*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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