Note: Included cases are from November 11, 2022 through December 10, 2022.
Contracts: Borgelt v. Austin Firefighters Ass’n, IAFF Local 975, No. 03-21-00227-CV, 2022 WL 17096786 (Tex. App.—Austin Nov. 22, 2022) (mem. op.) Mark Pulliam and Jay Wiley, as citizen taxpayers, sued the City of Austin and the Austin Firefighters Association (AFA), alleging the “shared bank of paid leave” provision of their collective bargaining agreement violated Article III, Sections 50, 51, and 52(a), and Article XVI, Section 6(a) of the Texas Constitution (gift clauses). They argued that the leave constituted an unlawful transfer of public funds to a private entity because the paid leave was not used for city purposes, but instead was used to further private interests of the AFA.
In support of Pulliam and Wiley, a third citizen, Roger Borgelt, later joined the lawsuit, as well as the Texas Attorney General. In response, the AFA filed a motion to dismiss the claims pursuant to the Texas Citizens Participation Act (TCPA), which the trial court granted in addition to awarding sanctions to the AFA. Pulliam and Wiley subsequently appealed the court’s granting of the TCPA motion and the award of sanctions, while the Borgfelt and the state appealed the court’s final judgment.
The court of appeals upheld the trial court’s judgment, concluding the paid leave provision does not violate the gift clauses of the Texas Constitution because: (1) the city’s agreement with the AFA was supported by sufficient consideration where the city obtained a policy change with regard to sick leave in exchange for the shared bank of paid leave, which saved the city between $500,000 to $600,000 a year; (2) the agreement, including the shared bank of paid leave provision, served a legitimate public purpose to facilitate labor relations between the parties, further professional standards for firefighters, and promote firefighter and public safety; (3) the city retained sufficient control over the leave provision by limiting the number of hours, proscribing the allowable purposes for the leave, retaining the ability to terminate the AFD president’s city employment, and retaining the right to manage the fire department and its workforce; and (4) the city received a return benefit from the leave provision as indicated by the cost savings from the negotiated sick leave policy change and from AFA’s use of the paid leave for purposes such as dispute-resolution, participation in cadet-hiring, and labor-management initiatives which help avoid costly safety and operational issues as well as potential lawsuits.
In addition, the appellate court held that because AFA met its burden under the TCPA, it was entitled to relief where: (1) it showed Pulliam’s and Wiley’s legal action was based on AFA’s exercise of their right of association because it relied upon AFA’s communications during their use of the paid leave; (2) Pulliam and Wiley were unable to produce sufficient evidence as a matter of law to establish the paid leave was gratuitous or that the leave provision did not serve a legitimate public purpose and did not provide a direct public benefit in return; and (3) Pulliam and Wiley failed to establish that the TCPA sanctions were a clear abuse of discretion where $75,00 was less than the attorneys’ fees and substantially less than what AFA was seeking.
Public Information Act: Tex. Comm’n on Envtl. Quality v. Sierra Club, No. 03-21-00256-CV, 2022 WL 17096693 (Tex. App.—Austin Nov. 22, 2022) (mem. op.) On July 1, 2019, the Texas Commission on Environmental Quality (TCEQ) received a public information request from the Sierra Club requesting various agency documents. Believing some of the information requested was exempted from disclosure, TCEQ sent a letter via interagency mail to the Attorney General’s Office on July 17, 2019, requesting a ruling. In its calculation, TCEQ claimed that July 5th, the day after Independence Day, was a holiday because the agency was closed, and no employees were expected to work on this day. July 5th was not a state-recognized holiday but instead was an agency observed holiday granted by TCEQ’s administration. The Attorney General’s Open Records Division, upon receiving TCEQ’s letter, determined the request was untimely and, as a result, the information must be released to the Sierra Club. TCEQ disagreed and subsequently filed a lawsuit seeking declaratory relief from compliance with the AG’s decision ordering TCEQ to disclose the information. The Sierra club intervened and sought a writ of mandamus compelling TCEQ to disclose the documents. TCEQ later appealed the district court’s granting of summary judgment in favor of the Sierra Club.
The court of appeals, upholding the district court’s summary judgment, reasoned that none of the various state statutes and their definitions of the word “holiday” contemplated “that a time period may be extended by not counting a day on which the person or entity required to meet the deadline has decided that it will be ‘closed.’” The court also noted that the Legislature did not define July 5th as an official state holiday. For those reasons, it concluded that if a state agency decides to close its office in extended observance of a national holiday, it may not count that day as a holiday to extend the 10-day deadline for requesting an open records ruling under Government Code § 552.301(b). In addition, the court held that: (1) TCEQ could not exclude the day it requested clarification from its calculation of the 10-day deadline because it did not include the statutorily mandated statement regarding the consequences for failing to respond to a written request for clarification under Government Code § 552.222; and (2) TCEQ’s argument that the responsive documents were covered by the deliberative process privilege was not a compelling enough reason to withhold the information because the deliberative process privilege is qualified and could be overcome by a sufficient showing of need, unlike the attorney-client privilege.
Contracts: Valero Dev. Corp. v. City of Laredo, No. 04-21-00226-CV, 2022 WL 17332601 (Tex. App.—San Antonio Nov. 30, 2022) (mem. op). The city signed a lease with Valero for use of city property. However, the city later discovered that the city employee who negotiated the lease was related to the owners of Valero, which violates the city’s charter. The city then notified Valero that it was terminating the lease in 2012, and Valero sued in 2020. The city filed a plea to the jurisdiction, which the trial court granted and Valero appealed. The appellate court affirmed, finding that Valero failed to sue within the requisite four-year statute of limitations, thus denying the trial court of subject matter jurisdiction.
Tort Claims Act: City of San Antonio v. Trevino, No. 04-22-00224-CV, 2022 WL 17480550 (Tex. App.—San Antonio Dec. 7, 2022) (mem. op.). Plaintiff sued the city for injuries he sustained when a city police officer hit the plaintiff while making a U-turn when the officer was responding to a “criminal mischief” call. The city filed summary judgment motions, arguing the emergency response exception, the 9-1-1 emergency exception, and official immunity, which the trial court denied. The city appealed. The appellate court concluded that plaintiff failed to show evidence that the police officer: (1) was not responding to an emergency call; (2) violated laws and ordinances applicable to emergency action; and (3) acted with conscious indifference or reckless disregard. Therefore, the appellate court reversed the trial court and rendered judgment for the city based on section 101.055’s emergency exception.
Tort Claims Act: Nelson v. City of Plano, No. 05-21-00708-CV, 2022 WL 17075883 (Tex. App.—Dallas Nov. 18, 2022) (mem. op.) After Matthew Nelson sustained injuries as a result of riding his bicycle on a sidewalk and colliding with a truck driven by a city of Plano employee, his parents, the Nelsons, sued the city claiming negligence. In response, the city filed a plea to the jurisdiction claiming governmental immunity. The trial court later granted the city’s plea and dismissed the case.
The Nelsons subsequently appealed the trial court’s ruling on the basis that the city’s governmental immunity was waived under the Texas Tort Claims Act (TTCA) and the Recreational Use Statute (RUS) did not and should not bar their claim because Matthew was not riding his bicycle for recreational purposes but instead as his only means of transportation. The city argued the RUS did apply regardless of Matthew’s reason for riding his bicycle, and cited to a Texas Supreme Court case, University of Texas v. Garner, in which the court ruled that the university’s immunity was not waived, and the RUS did apply in a similar incident.
The court of appeals, declining to adopt a different statutory construction, agreed with the city that the plain language of the RUS and the Supreme Court precedent applied in this case and upheld the trial court’s judgment.
Procedure: Stamatina Holdings, LLC v. City of Dallas, No. 05-21-00840-CV, 2022 WL 17351780 (Tex. App.—Dallas Dec. 1, 2022) (mem. op.) After the city of Dallas obtained municipal court orders for the demolition of three dangerous structures within the city, Angelos Kolobotos initiated a takings claim suit on behalf of himself and others. After eight amended pleadings by Kolobotos, the court granted the city’s motions to: (1) strike based on his unauthorized practice of law; (2) declare Kolobotos a vexatious litigant for attempting to relitigate cases that had been previously finally determined; and (3) dismiss under Rule 91a (dismissal of baseless causes of action). Kolobotos subsequently appealed arguing, among other things, that the court failed to comply with the vexatious litigant statute when it did not order Kolobotos to post security and stay the litigation before considering the motion to dismiss. However, the court of appeals concluded that because Kolobotos did not object to the court’s hearing the motion to dismiss and did not raise the issue during the nine days between the court’s vexatious litigant order and order granting the motion to dismiss, Kolobotos failed to preserve the argument for appellate review. The court further held that Kolobotos’s argument that the vexatious litigant statute violates Texas’s open courts doctrine was not preserved for review and, even if it had been, other courts have already decided the issue determining there is no constitutional right to frivolous litigation.
Economic Development: Martin v. Hopkins Cnty., No. 06-22-00022-CV, 2022 WL 16952888 (Tex. App.—Texarkana Nov. 16, 2022). Martin raised an ultra vires claim based on Texas Tax Code violations against the county relating to the county’s agreement with a private company to build a solar power plant. The trial court granted the county’s summary judgment motion and Martin appealed. The appellate court affirmed the trial court, determining that because the agreement was made under subchapter H of Local Government Code Chapter 381, the Texas Tax Code did not apply and that the county and the officials established that they were entitled to summary judgment on Martin’s ultra vires claims, which were all premised on alleged Texas Tax Code violations.
Tort Claims Act: City of Monahans v. Sw. Bell Tel. Co., No. 08-21-00088-CV, 2022 WL 17102372 (Tex. App.—El Paso Nov. 22, 2022). Southwestern Bell Telephone Company (“SBC”) sued the City of Monahans, alleging an SBC telephone cable was damaged by city employees while repairing a broken water line. Monahans filed a plea to the jurisdiction, which the trial court denied, and Monahans appealed. Generally, governmental immunity protects a city from lawsuits for money damages unless that immunity has been clearly and unambiguously waived by statute. The Texas Tort Claims Act waives this immunity in certain circumstances. One condition of the TTCA is that the governmental entity must receive notice of the claim within six months of the incident giving rise to the claim. In the absence of written notice, actual notice sufficient to (1) identify the particular loss, and (2) alert the governmental entity to something impending to allow preparations to be made can meet the notice requirement. The city did not receive formal written notice from SBC within the required six-month period, but SBC argued that a fact question existed regarding whether Monahans had actual notice of the claim. The court found that Monahans’s subjective knowledge of (1) SBC’s property damage, (2) the city’s fault that produced or contributed to the property damage, and (3) the identity of the parties involved met the actual notice standard; therefore, the court denied this claim. Monahans also argued that since it was involved in a governmental function, its immunity should be upheld. The TTCA waives immunity even for governmental actions under specific circumstances, including when damages are caused during the use of motor-driven equipment. Because the alleged damage was caused by a city employee’s use of a backhoe, the TTCA could waive Monahans’s governmental immunity. The court overruled both Monahans’s issues and affirmed the trial court’s denial of the city’s plea.
ESDs: Walker Cnty. ESD No. 3 v. City of Huntsville, No. 10-22-00009-CV, 2022 WL 17488327 (Tex. App.—Waco Dec. 7, 2022) (mem. op.). This an ultra vires case stemming from an annexation dispute in which the appellate court reversed the trial court’s denial of a motion to dismiss. The appellate court reversed and rendered judgement dismissing the underlying lawsuit.
The City of Huntsville sued the Walker County Emergency Services District No. 3 (the District), along with its officers and commissioners, a day after voters of the District, along with voters residing in a territory to be annexed, approved the District’s annexation of the territory. The city alleges that the annexed territory includes territory within the city’s extraterritorial jurisdiction (ETJ), which the city has never consented to being annexed by the District. The District and its officers and commissioners moved to dismiss the city’s lawsuit for lack of jurisdiction, which the trial court denied. The District and its officers and commissioners filed an interlocutory appeal challenging the denial of their motion to dismiss.
The appellate court determined that language “sue and be sued” in section 775.031 of the Health and Safety Code, standing alone, is unclear and ambiguous and does not amount to a waiver of governmental immunity, and that a seeking relief for ultra vires acts must be brought against state actors in their official capacity and not against the governmental entity. Additionally, the appellate court concluded that section 775.015 of the Health and Safety Code gives an ESD the authority to include within its territory a city’s limits or ETJ without the city’s consent.
Contracts: Silva, Otting & Silva, LLC v. Donna Econ. Dev. Corp. 4A, No. 13-20-00499-CV, 2022 WL 16993563 (Tex. App.—Corpus Christi–Edinburg Nov. 17, 2022) (mem. op.). Silva, Otting & Silva (SOS) sued the City of Donna, the Donna Economic Development Corporation 4A, the Development Corporation of Donna 4B, and the Donna International Bridge Corporation for breach of contract when the city terminated its agreement with SOS for consulting services and payment due from prior agreements. The trial court severed the claim against the city from the claim against the Donna Economic Development Corporation 4A, the Development Corporation of Donna 4B, and the Donna International Bridge Corporation (appellees), denied SOS’s motion for a continuance, and granted the appellees’ motion for summary judgment. SOS appealed.
The appellate court affirmed the judgment of the trial court, holding that: (1) severance of SOS’s claims against the city was proper because they were cognizable separately and the claims against the appellees had been dismissed by summary judgment; (2) the trial court’s denial of the motion for continuance was not properly preserved for appellate review because SOS did not bring it to the trial court’s attention; and (3) because the city and SOS were the only parties to the contract under which Silva was suing and the appellees were not parties, SOS had not produced evidence for its breach of contract claim, so the trial court’s grant of the no-evidence summary judgment was appropriate.
Tort Claims Act: City of Cedar Park v. Delapena, No. 13-21-00341-CV, 2022 WL 16993493 (Tex. App.—Corpus Christi–Edinburg Nov. 17, 2022) (mem. op.). The Delapenas filed survival and wrongful death claims against the City of Cedar Park for the drowning death of their daughter that occurred when the summer camp she attended went swimming at the city pool. The city filed a plea to the jurisdiction, arguing that its governmental immunity was not waived. The trial court denied the plea and the city appealed.
The appellate court reversed the judgment of the trial court, holding that the city’s immunity was not waived under the TTCA because: (1) the city’s failure to follow its policies with regard to the number of lifeguards and supervisors per swimmer did not constitute a condition or use of tangible personal or real property to support a negligent implementation of policy claim; and (2) the city’s failure to provide the child with a life jacket did not constitute the use of tangible personal property to support a claim under the integral safety doctrine.
Federal Jurisdiction: City of Port Isabel v. Brownsville Navigation Dist. of Cameron Cnty., No. 13-20-00479-CV, 2022 WL 17260509 (Tex. App.—Corpus Christi–Edinburg Nov. 29, 2022) (mem. op.). The City of Port Isabel sued the Brownsville Navigation District for injunctive relief, claiming that the district’s lease agreements for liquid natural gas production would have a detrimental impact on the environment, harming residents of the city and reducing tourism. The trial court granted the district’s plea to the jurisdiction, and the city appealed.
The appellate court affirmed the trial court’s grant of the district’s plea to the jurisdiction, holding that the federal Natural Gas Act created a consolidated regulatory process for approving liquid natural gas facilities, and therefore the case fell under exclusive federal jurisdiction.
Code Enforcement: Rhone v. City of Tex. City, No. 14-20-00854-CV, 2022 WL 17491227 (Tex. App.—Houston [14th Dist.] Dec. 8, 2022). Thomas Rhone owns real property on which he had apartment buildings constructed. The City of Texas City filed suit seeking a temporary injunction against Rhone for alleged ordinance violations, including allowing the apartments to be occupied before receiving a certificate of occupancy. The trial court ordered the temporary injunction, and Rhone appealed. The trial court was authorized to issue a temporary injunction upon a showing of substantial danger of injury or an adverse health impact to any person or to the property of any person other than the defendant, and the injunction could (1) prohibit specific conduct that violates the ordinance; and (2) require specific conduct that is necessary for compliance with the ordinance. To overturn the trial court’s ruling, Rhone needed to prove the trial court abused its discretion to issue the temporary injunction. After reviewing the lower court’s record in detail, the appellate court found that the trial court had not abused its discretion by issuing the temporary injunction and affirmed the lower court’s ruling.