Note: Included cases are from November 11, 2020 through December 10, 2020.
Open Meetings Act/Procurement: Carowest Land, Ltd. v. City of New Braunfels, No. 18-0678, 2020 WL 6811467 (Tex. Nov. 20, 2020). The plaintiff sued the city for declaratory relief for violations of the Texas Open Meetings Act (TOMA) and the contract-bidding provisions of Local Government Code Chapter 252. Prior to trial, the city appealed the denial of its plea to the jurisdiction against the plaintiff’s declaratory relief claims. The appellate court affirmed, permitting the plaintiff’s declaratory-judgment claims to proceed. The plaintiff then tried its claims against the city and a developer before a jury and prevailed. Based on the jury’s findings, the trial court awarded the plaintiff declaratory relief and attorney’s fees. The city again appealed on the grounds that both TOMA and the procurement laws only allow for mandamus and injunctive relief, not declaratory relief. The appellate court agreed. The Texas Supreme Court found that declaratory relief was not available to the plaintiff. It remanded the case to the trial court for further proceedings under TOMA and the procurement laws because existing precedents on which the plaintiff relied at trial had been overruled.
Texas Tort Claims Act: Ledesma v. City of Houston, No. 01-19-00034-CV, 2020 WL 6878404 (Tex. App.—Houston [1st Dist.] Nov. 24, 2020). The plaintiffs sued a city employee and the City of Houston for a car accident when the city employee, wearing her City of Houston Police Department uniform, rear-ended the plaintiffs. The city moved to dismiss the employee under the election-of-remedies provision under Section 101.106(e). The plaintiffs then non-suited the employee. The city filed a motion for summary judgment alleging the employee was not acting in the scope of her employment at the time of the accident. The trial court granted summary judgment and the plaintiffs appealed. The appellate court held that, by moving to dismiss the plaintiffs’ claims against the employee under Section 101.106(e), the city judicially admitted the employee was acting within the scope of her employment and could not later dispute that admission.
Texas Tort Claims Act: City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020) (mem. op.). The plaintiffs sued the city for negligent operation of a motor vehicle for injuries from when a city-owned ambulance struck a concrete barrier during their transport in the ambulance. The city filed: (1) a motion for summary judgment because it alleged the emergency response exception to the Texas Tort Claims Act (TTCA) applied; and (2) a motion to dismiss on the basis that the claims were healthcare liability claims for which the plaintiffs failed to serve the statutorily-required expert report. The trial court denied the city’s motions and the city appealed. The appellate court concluded there was a fact issue regarding whether the emergency response exception applied based on the facts presented, including that the ambulance did not turn on its lights and sirens for the transport. The court also concluded that one of the plaintiffs’ claims was a health care liability claim, and therefore the trial court erred in denying the motion to dismiss. The other plaintiff’s claim was not a health care liability claim and therefore the trial court correctly denied the motion to dismiss.
Texas Tort Claims Act: City of San Antonio v. Smith, No. 04-20-00077-CV, 2020 WL 6928400 (Tex. App.—San Antonio Nov. 25, 2020) (mem. op.). The plaintiff sued for injuries she sustained when a stolen, city-owned ambulance collided with her car. The city filed a plea to the jurisdiction alleging, among other things, that “operation or use” of a motor vehicle does not apply because a city employee was not using the vehicle – the thief was. The plaintiff countered that her claim also arose out of the “use or condition of tangible personal property” and that the city should have installed an anti-theft device. The appellate court found that the operation or use of a motor vehicle did not apply because a city employee was not operating or using the stolen vehicle at the time of the crash. The court also concluded the claim did not arise out of the use or condition of tangible personal property because the plaintiff’s claim was “no more than a failure to use [a particular anti-theft device], which does not fall within the waiver.” The court granted the city’s plea to the jurisdiction and rendered judgment in favor of the city.
Quo Warranto: City of Leon Valley v. Martinez, No. 04-19-00879-CV, 2020 WL 6748723 (Tex. App.—San Antonio Nov. 18, 2020). After the city council removed Martinez from his elected office as council member and appointed his replacement, Martinez sued the city seeking reinstatement. Martinez’s original term of office was set to expire after the May 2, 2020 election, which was then continued to the November 2020 election date due to the pandemic. The appellate court held that the proper proceeding was a quo warranto proceeding. Martinez filed a motion for rehearing. The court withdrew its previous decision and substituted a new decision on rehearing because Martinez’s claims were now moot. His term would have expired on November 3, 2020. Therefore, he could no longer be reinstated.
Texas Tort Claims Act/Takings: City of Blue Ridge v. Rappold, No. 05-19-00961-CV, 2020 WL 7065830 (Tex. App.—Dallas Dec. 3, 2020) (mem. op.). The Rappolds brought negligence-related claims under the Texas Tort Claims Act (TTCA) and takings claims against the City of Blue Ridge. They alleged the city’s wastewater treatment facility failed, resulting in a combination of raw sewage and storm water covering portions of their property. The city filed a plea to the jurisdiction. At this stage in the litigation (pre discovery), the court holds that the Rappolds have sufficiently alleged misuse and operation of motor-driven pumps, as well as the condition or use of the city’s tangible personal property, caused their damages. In addition, the court overrules the city to the extent it complains that the TTCA specifically precludes an award of exemplary damages. Finally, the court holds that, at this point in the proceedings, the Rappolds pleadings state a viable takings claim. The trial court’s order denying the city’s plea to the jurisdiction is affirmed.
Texas Tort Claims Act: City of Dallas v. Mazzaro, No. 05-20-00103-CV, 2020 WL 6866570 (Tex. App.—Dallas Nov. 23, 2020) (mem. op.). Mazzaro sued the city to recover damages for injuries suffered when she fell while walking on city-owned property. The city filed a plea to the jurisdiction. The court concludes that the evidence establishes Mazzaro did not meet the Texas Tort Claims Act’s form notice requirement because, although it was sent, written notice of her claim was not actually received by the city within the required timeframe. The court also holds that, although the city EMS responded to the scene of the accident, the city had no subjective awareness of its alleged fault in causing or contributing to Mazzaro’s injuries. Thus, the city had no actual notice of Mazzaro’s claims. The trial court’s order denying the city’s plea to the jurisdiction is reversed.
Emergency Management: State v. El Paso Cty., No. 08-20-00226-CV, 2020 WL 6737510 (Tex. App.—El Paso Nov. 13, 2020). Governor Abbott’s Executive Order GA-32 allows bars to open with reduced capacity. After El Paso County had a surge in COVID-19 cases, County Judge Ricardo Samaniego issued a stay-at-home order and prohibited social gatherings not confined to a single household. The State of Texas and a collection of restaurants sued the county and the judge asserting the order was contrary to the governor’s order. The governor’s order contains a preemption clause countermanding any conflicting local government actions, but the county order states any conflict requires the stricter order to apply. County judges are deemed to be the “emergency management director[s]” for their counties. The Texas Disaster Act (Act) contemplates that a county judge or mayor may have to issue a local disaster declaration and has similar express powers to those issued to the governor. However, a county judge is expressly referred to as the “agent” of the governor, not as a separate principle. Further, even if the county judge had separate authorization, the legislature has declared the governor’s executive order has the force of law. State law will eclipse inconsistent local law. Additionally, the Act allows the governor to suspend the provisions of any regulatory statute within an executive order, which would include the county order. The court concluded by stating how essential the role of a county judge is when managing disasters and emergencies, and that their opinion should not be misunderstood. The governor’s order only controls over conflicts, and any provision of the county order that can be read in harmony remains enforceable. The court appeals held the trial court erred in denying the injunction sought by the State of Texas, and reversed the denial.*
Whistleblower/First Amendment: Shobassy v. City of Port Arthur, No. 09-18-00363-CV, 2020 WL 6787522 (Tex. App.—Beaumont Nov. 19, 2020) (mem. op.). In this appeal from a trial court’s judgment dismissing the plaintiff’s retaliation-in-employment case the Beaumont Court of Appeals affirms the trial court’s summary judgment.
The plaintiff worked as an assistant city attorney for the city for five years and the city attorney was the plaintiff’s supervisor. During the plaintiff’s employment, he discussed the city’s compliance with purchasing law in the context of his employment as an assistant city attorney. He was terminated by the city attorney and given a termination notice that indicated that he was terminated because, among other things, he failed to follow-up on tasks and communicate with the city attorney and failed to complete the tasks assigned to him. Plaintiff sued the city in district court alleging a Whistleblower Act claim and that his termination violated his First Amendment rights. The city filed a plea to the jurisdiction and no evidence motion for summary judgment, which the trial court granted.
To establish a claim for retaliation under the Whistleblower Act, the plaintiff has to show that the employer’s termination would not have occurred had the plaintiff not made a good faith allegation of violation of law to an appropriate law enforcement authority. The report has to be a “but-for” cause of the termination. The plaintiff was unable to make the causal connection. To establish a claim for a free-speech retaliation claim, the plaintiff must show the plaintiff was terminated for engaging in constitutionally protected speech. The speech in question is not protected if it is spoken within the context of the employee’s official duties. The Whistleblower claim was dismissed because the claims of illegal conduct by the city were not made until after the termination. The free speech claim was invalid because his speech was performed and related to his employment position. The dismissal of both was proper.*
Texas Tort Claims Act: Texas Dep’t of Pub. Safety v. Kendziora, No. 09-19-00432-CV, 2020 WL 6494210 (Tex. App.—Beaumont Nov. 5, 2020) (mem. op.).This is an interlocutory appeal from the denial of Texas Department of Public Safety’s plea to the jurisdiction in a case involving a car accident while a DPS trooper (Chapman) was responding to an emergency. The Beaumont Court of Appeals reversed the denial.
Chapman was responding to a call reporting one hundred people fighting at a sports complex. En route, he approached a red light with his lights and siren activated, activated his air horn, and slowed to a near stop while clearing the intersection. He looked both ways while crossing the intersection and cleared multiple lanes before being struck by Kendziora. Kendziora filed suit under the Texas Tort Claims Act (TTCA) for personal injuries sustained from that collision. DPS put forth the emergency exception defense under TTCA, which preserves immunity if the employee was in compliance with applicable law or was not acting recklessly. Chapman testified that he considered the nature of the emergency in deciding to respond immediately and urgently, while still ensuring vehicles at the intersection were stopped before proceeding. Kendziora testified that she did not hear any sirens or see any police lights prior to the collision.The court of appeals held that Kendziora failed to raise a fact issue as to whether Chapman acted recklessly when he entered the intersection. She did not present any evidence showing Chapman failed to slow as necessary before entering the intersection or that he acted recklessly. Kendziora argued that the dashcam video is evidence of the reckless actions, but the video was not tendered or admitted into evidence in the lower court and was not part of the appellate record.*
Vested Rights/Takings: Bauer v. City of Waco, No. 10-19-00020-CV, 2020 WL 7253430 (Tex. App.—Waco Dec. 9, 2020) (mem. op.). Developers sued the city arguing they had a vested right under Chapter 245, Local Government Code, to build a lake on a property. The developers also raised dedicatory exaction and takings claims and a declaratory judgment claim regarding an 8-inch water line on the property. The city filed a motion for summary judgment. The developers failed to challenge the summary judgment on all the grounds asserted by the city as to the vested rights and exaction claims. The city’s summary judgment evidence established that the prior owner of the property requested the installation of the water line complained about by the developers. As for their declaratory judgment claims, the developers did not challenge the validity of a statute or ordinance. The trial court’s summary judgment is affirmed.
*Indicates 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.