Note: Included cases are from April 11, 2015 through May 10, 2015.
Zoning: City of Dallas v. TCI West End, Inc., No. 13-0795, 2015 WL 2147986 (Tex. May 8, 2015) (per curiam). The issues in this case are: (1) whether Sections 54.012 and 54.017 of the Local Government Code allow a city to sue a property owner over zoning violations; and (2) whether actual notice under Section 54.017 must be given before violation of the applicable ordinance. Section 54.012 states that a city may pursue a civil action against a property owner for various ordinance violations including a violation of a zoning ordinance. Tex. Loc. Gov’t Code § 54.012. Section 54.017 requires that the property owner have actual notice of the requirements in the ordinance and then violate the ordinance. Id. § 54.017. The trial court held for the city but the court of appeals reversed, holding that Chapter 54 of the Local Government Code could only be used for ordinances related to health and safety. The ordinance in this case was for the preservation of historical property. The Supreme Court of Texas held, through a plain language analysis, that the court of appeals erred when it inserted a health and safety requirement into Section 54.012. The court also noted that Chapter 54 and Chapter 211 are two different statutory schemes that give cities two options in enforcing their ordinances, either civil actions under Chapter 54 or civil penalties under Chapter 211. Tex. Loc. Gov’t Code chs. 54 & 211. The court also held that there was sufficient evidence of notice under Chapter 54 to move forward and remanded the case back to the court of appeals for review.
Governmental Immunity-Tort: Molina v. Alvarado, No. 14-0536, 2015 WL 2148055 (Tex. May 8, 2015) (per curiam). This case involves the election-of-remedies provisions of the Tort Claims Act. Molina is an employee of the City of McCamey who was sued by Alvarado after a vehicle Molina was driving struck Alvarado’s vehicle. Alvarado claimed that Molina was intoxicated when he struck Alvarado’s vehicle with a city vehicle. Alvarado sued the city. Alvarado then amended his pleading to sue the city if Molina was in the course and scope of his employment or, alternatively, Molina as an individual if Molina was not in the course and scope of his employment. Molina objected under Section 101.106 of the Texas Civil Practices & Remedies Code which mandates that a plaintiff must choose the defendant: either the city or the individual. It “force[s] a plaintiff to decide at the outset whether an employee acted independently . . . or acted within the general scope of his or her employment.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). The Texas Supreme Court held that Alvarado made an irrevocable election when he sued the city, and lost his chance to sue Molina in his individual capacity. He should have sued Molina in his individual capacity first.
Sexual Harassment Retaliation: San Antonio Water Sys. v. Nicholas, No. 13-0966, 2015 WL 1873217 (Tex. Apr. 24, 2015). This case concerns a sexual harassment retaliation claim by Nicholas, a former San Antonio Water System (SAWS) employee. Nicholas sued SAWS after she was terminated during a reorganization. She argued that her termination was retaliation for a counseling session she had with an executive regarding possible sexual harassment claims of two other employees three years earlier regarding unwanted lunch invitations. The trial court granted a verdict of over one million dollars in Nicholas’ favor, including over $700,000 in future compensatory damages. The court of appeals affirmed. SAWS appealed to the Supreme Court of Texas. SAWS’s main argument at the Supreme Court is that there was legally insufficient evidence of Nicholas’ belief that she was dealing with sexual harassment claims when she counseled the executive. The Supreme Court held that the elements in a retaliation claim against a governmental entity are jurisdictional, and thus, an appellate court can appropriately review the elements at any level in the proceedings. The court held that the lunch invitations of the counseled executive were not enough to constitute the pleading of an unlawful employment practice sufficient to result in a valid retaliation claim.
Billboards: State of Texas v. Clear Channel Outdoor, Inc., No. 13-0053, 2015 WL 1870306 (Tex. Apr. 24, 3015). This case involves whether a billboard is personal or real property and how to value a billboard properly. The court of appeals held that the billboards affected by the Texas Department of Transportaton’s road project were real property and allowed testimony about the billboards’ business income, increasing the valuation of the billboards to over $250,000. The Texas Supreme Court held that the value of the real property as rental property and the value of the billboard as a structure should have been considered, not the advertising revenue of the billboard as separate property. As a result, the court concluded that evidence of advertising operations was not admissible, and remanded the case back to the trial court.
Governmental Immunity-Tort: City of League City v. LeBlanc, No. 01-14-00720-CV, 2015 WL 2147964 (Tex. App.—Houston [1st Dist.] May 7, 2015). LeBlanc sued the city when she stepped into a storm drain and broke her ankle while attending a parade. The storm drain was originally constructed by the Texas Department of Transportation (TxDOT) and covered by a grate instead of a cover by TxDOT. LeBlanc argued the storm drain was a special defect in an area controlled and/or owned by the city. LeBlanc also sued TxDOT, but that suit was dismissed because of procedural problems. The city filed a plea to the jurisdiction that the control and design of the storm drain belonged to TxDOT and that the storm drain was not a special defect as a matter of law. The trial court denied the city’s plea to the jurisdiction and the city appealed. The court of appeals held that the design of the storm drain, which was the main complaint of the plaintiff, was discretionary and therefore was protected by immunity. The storm drain was not a special defect because it was being maintained as it was originally designed (with a grate rather than a cover), and therefore was a longstanding and permanent condition. The court of appeals overruled the trial court and granted the city’s plea to the jurisdiction.
Governmental Immunity-Tort: Williams v. City of Baytown, No. 01-14-00569-CV, 2015 WL 2090488 (Tex. App.—Houston [1st Dist.] May 5, 2015). In this Tort Claims Act case, the plaintiff sued the city after his child was killed during a car chase. The plaintiff’s child was at a red light when a shoplifting suspect being actively pursued by the police, ran over a police-deployed spike strip, and then rear-ended the deceased. The plaintiff sued the city arguing that the city’s use of the tangible personal property of a spike strip was sufficient to allege a Tort Claims Act case. The plaintiff also argued that it was a question of fact whether the police were reckless in their high speed pursuit of the shoplifting suspects. The trial court granted the city’s plea to the jurisdiction on the issue of whether the plaintiff had alleged a personal injury related to the use of tangible personal property or motor-driven equipment. First, the court of appeals held that the use of the police cars, motor-driven equipment, did not proximately cause the accident as a police car was not directly involved in the collision. The court then held that the use of the spike strip did not cause or contribute to the accident. The plaintiff did not produce adequate evidence that either the city’s personal property or motor-driven equipment caused the injuries in question. Thus, the court of appeals upheld the trial court’s order granting the city’s plea to the jurisdiction.
Governmental Immunity-Tort: Green v. City of Houston, No. 01-14-00808-CV, 2015 WL 1967582 (Tex. App.—Houston [1st Dist.] Apr. 30, 2015) (mem. op.). This is a Tort Claims Act (Act), trip-and-fall case. Green tripped and injured herself at the George Bush Intercontinental Airport in Houston, Texas. She told the Transportation Security Administration (TSA) that she was injured at the airport when she was at the airport and later via e-mail. Later she sued the city for premises defect. The City of Houston has a charter provision that requires that it be notified within 90 days of any personal injury claims. Notice is a jurisdictional requirement. Tex. Gov’t Code § 311.034. The Act requires that notice to a governmental entity of a claim under the Act must be “actual notice” which means the governmental entity must know about the injury and know that the governmental entity was alleged to be at fault. Tex. Civ. Prac. & Rem. Code § 101.101(c); University of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 544, 548-49 (Tex. 2010). In this case, the plaintiff notified TSA, but never contacted or notified the city directly. The court of appeals held that notice to the TSA was not imputed to the city for purposes of actual notice for Tort Claims Act claims and affirmed the dismissal of Green’s claims.
Takings: Schrock v. City of Baytown, No. 01-13-00618-CV, 2015 WL 1882190 (Tex. App.—Houston [1st Dist.] Apr. 23, 2015) (mem. op.). The City of Baytown filed a lien against Schrock’s rental property when his renters left without paying their utility bills. The city also refused to turn on water and wastewater until Schrock paid for his renters’ delinquent utility bills based on its ordinance requiring a landowner to tell the city his or her property was a rental property or pay all bills. The city argued that Schrock had neglected to follow its ordinance, even though there was evidence that the renters were required to submit their leases to the city when they opened their utility accounts. Schrock sued the city, arguing that it committed a taking of his rental property because he was unable to rent out his property without utility services. The court of appeals noted that the city’s ordinance may have violated Section 552.0025 of the Texas Local Government Code which prohibits a city from requiring a person to pay a renter’s or other utility customer’s bill. The court of appeals held that Schrock’s allegation that the city unreasonably refused to turn on the utilities to his rental properties was sufficient to allege a takings claim and avoid summary judgment. The court of appeals remanded the case to the trial court.
Civil Service: City of New Braunfels v. Tovar, No. 03-14-00693-CV, 2015 WL 2183479 (Tex. App.―Austin May 7, 2015). This is a Civil Service Act interlocutory appeal where the trial court affirmed the denial of the city’s plea to the jurisdiction arising out of a promotional exam dispute. Tovar took a Sergeant’s exam, administered to create a promotion list. None of the test-takers passed the exam with a score of 70% or above so no list was ultimately created. He subsequently ascertained that this grade represented only the percentage of his correct answers on the exam, without adjustment. Contending that he was entitled to additional points for seniority that would give him a passing grade (and eligibility for placement on the promotion-eligibility list as the sole candidate), Tovar filed an appeal with the Fire Fighters’ and Police Officers’ Civil Service Commission (Commission). He asserted Texas Local Government Code Section 143.033 provides his seniority can count for up to 10 points, but the city concluded that seniority is only added to candidates who have already passed.
The Commission denied relief. Tovar sued the city. The city filed a plea to the jurisdiction, which the trial court denied. The Austin Court of Appeals first determined that Tovar was not suing to be promoted to sergeant, but to be placed on the eligibility list. Therefore, he has standing even though no open sergeant position was currently available. The court then determined that Tovar’s claims fall within the waiver of immunity under Section 143.015. The court determined that suing the individual commissioners in their official capacity is the same as suing the Commission, so the requirements of Section 143.015 are met as to proper parties. Suing the individual commissioners for ultra-vires claims also properly triggers Section 143.015. Finally, the court states that it agrees with the merit argument that Section 143.033 gives the Commission no discretion in adding seniority points to determine whether someone passes the exam and used the different language used for fire fighters and police officers. The court noted that fire fighters’ seniority only applies to passing scores while the language for police officers is not the same, so it therefore must apply regardless of passage.*
Civil Service: City of San Antonio v. Cortes, No. 04-14-00301-CV, 2015 WL 1938695 (Tex. App.―San Antonio Apr. 29, 2015). This is a civil service/collective bargaining case involving the city’s motion to compel arbitration, which the court of appeals agreed should be granted. The Collective Bargaining Agreement (CBA) for the firefighters sets forth health benefits for employees. Gerard Cortes, a San Antonio firefighter, received a letter advising him that his dependents needed to go through the verification process for eligibility. Cortes alleges the directive for verification implied disciplinary action if he did not comply, but that such directive was contrary Texas law.
Cortes filed suit alleging the city unilaterally altered his health benefits. The city filed a motion to abate and compel arbitration, which the trial court denied. The city appealed this decision. The city asserted Cortes’ claims are identical to those already brought by the firefighter union and are related to the same CBA. In the union’s suit, the Fourth Court of Appeals previously held the claims must be submitted to arbitration. The city asserts Cortes is in privity with the union under the CBA and therefore, res judicata and collateral estoppel prevents Cortes from re-litigating the issue of compelled arbitration.
The Fourth Court held that even though Cortes added a slightly different claim, the fact he is challenging the same CBA provision and the factual context of his claims still place his suit within the issue preclusion framework. Even though the union’s suit has not resulted in a final judgment yet, the issue of compelled arbitration was procedurally defined and ruled upon in the interlocutory opinion in that case. As a result, it is a final determination on that issue for collateral estoppel purposes. Since union members are in privity with their union, Cortes is collaterally estopped from challenging the issue of compelled arbitration. The denial of the motion to abate and to compel arbitration was reversed.*
Civil Service: City of Del Rio v. Jalomos, No. 04-14-00381-CV, 2015 WL 1875940 (Tex. App.―San Antonio Apr. 22, 2015). In this civil service case, the Fourth Court of Appeals affirmed the dismissal of a suit filed by the City of Del Rio seeking judicial review of a hearing examiner’s decision. Daniel Jalomos was a police officer for the city. After a complaint was filed against Jalomos, the police chief suspended him indefinitely. Jalomos appealed and elected to have his appeal heard by a hearing examiner. After an evidentiary hearing, the hearing examiner ruled for Jalomos and reinstated him. The city filed suit to overturn the hearing examiner’s decision. However, the trial court granted Jalomos’ plea to the jurisdiction. Section 143.052 of the Texas Local Government Code states that upon suspending an officer, the department head shall, within 120 hours (5 days) file with the commission a written statement giving the reasons for the suspension and deliver a copy to the person suspended. The city waited 360 hours to file a statement and failed to provide Jalomos with notice. The “crux of the City’s argument is that the Act did not authorize the hearing examiner to reinstate Jalomos based solely on the procedural failures.” The court determined that Section 143.052 requires the department head to describe the acts which were in violation of the policy and provide a copy to the suspended employee, not simply the commission. Because the statement given to Jalomos failed to comply with Section 143.052(e), the hearing examiner was required to reinstate Jalomos under Section 143.052(f). The hearing examiner heard evidence for two days, then issued a sixteen-page decision in which he provided a thorough analysis of the law and the evidence. The hearing examiner’s actions were expressly authorized and therefore he did not exceed his authority by holding for Jalomos.*
Road Closure: Crockett Cnty. v. Klassen Energy, Inc., No. 08-14-00123-CV, 2015 WL 1963129 (Tex. App.—El Paso Apr. 30, 2015). Crockett County closed a road in 1995. Klassen Energy (Klassen) sued the county in 2013 seeking, among other things, a declaration that the 1995 closure order was invalid. The county argued that Klassen is statutorily barred from challenging the validity of the 1995 order on repose grounds. The trial court overruled the county’s plea to the jurisdiction.
The county argues that Klassen’s claim is barred under Section 16.005, Texas Civil Practice and Remedies Code, which provides as follows:
(a) A person must bring suit for any relief from the following acts not later than two years after the day the cause of action accrues:
(1) the passage by a governing body of an incorporated city or town of an ordinance closing and abandoning, or attempting to close and abandon, all or any part of a public street or alley in the city or town, other than a state highway; or
(2) the adoption by a commissioners court of an order closing and abandoning, or attempting to close and abandon, all or any part of a public road or thoroughfare in the county, other than a state highway.
(b) The cause of action accrues when the order or ordinance is passed or adopted. . . .
The appellate court agrees with the county that Section 16.005 constitutes a statute of repose (rather than a statute of limitations) and thus, acts as a hard temporal bar and a substantive limit to a plaintiff’s right to recovery. The court holds that Section 16.005 serves as a statutory bar even if the county’s order was procedurally defective. Thus, the trial court lost jurisdiction to entertain a challenge to the 1995 order two years after its issuance and the judgment is vacated for want of jurisdiction.
Temporary Injunction: Friends of the Coliseum v. City of Corpus Christi, No. 13-12-00729, 2015 WL 1956949 (Tex. App.—Corpus Christi Apr. 30, 2015). In 2010, the City of Corpus Christi opted to demolish the Memorial Coliseum. The Friends of the Coliseum (“Friends”) sought a temporary restraining order to prevent the city from proceeding with the demolition. The trial court granted Friends request for a temporary injunction and ordered Friends to file a $30,000 temporary injunction bond with the court clerk. In a separate suit, the city alleged a wrongful injunction and sought recovery of the full $30,000 bond. Ultimately, the trial granted a city motion for summary judgment and rendered a final judgment allowing the city to recover the $30,000 injunction bond, which Friends appealed.
On appeal, Friends argued that the trial court erred in granting the city’s motion for summary judgment to release the injunction bond. Rule of Civil Procedure 684 controls a temporary injunction bond, providing that as a condition to the bond, the applicant must abide by the decision made and will pay all sums of money and costs that may be adjudged against him if the injunction shall be dissolved in whole or in part. Tex. R. Civ. P. 684. Further, under equitable circumstances and for good cause shown by affidavit, the court rendering judgment on the bond may allow recovery for less than its full face amount. Id. Friends filed an affidavit from an individual who had done business with the city and opined that based upon his experience and reading of the current demolition contract, the city would have no damages based on demolition change orders or attorneys fees to recover any amount from the $30,000 bond. The court held that the affidavit and demolition contract created a genuine issue of material fact as to equitable circumstances or good cause justifying a recover of less than the full amount of the bond. The court reversed the trial court’s order granting the city’s motion for summary judgment and remanded the case to trial court for further proceedings.
Governmental Immunity: Saifi v. City of Texas City, No. 14-13-00815, 2015 WL 1843540 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015) (mem. op.). The City of Texas City hired Saifi as a firefighter in 2007, when he signed a Conditions of Employment (“COE”) Agreement. The city is governed by the Civil Service Act and the Employee Relations Act. In 2011, the city terminated Saifi’s employment when he was unable to complete a national registry test to enable him to obtain his paramedic certification as required by the COE Agreement. Saifi argued that he was not required to pass the national registry test as a condition of employment because he had not passed the prerequisite tests before he was hired, as required by the agreement. He sued the city alleging breach of contract and violation of the Civil Service Act, and requesting declaratory relief. Saifi also alleged that sovereign immunity was waived by the city. The city filed a motion to dismiss for lack of subject matter jurisdiction, which was granted by the trial court. Saifi appealed.
The central issue on appeal is whether the city’s governmental immunity bars Saifi’s claims. Saifi argued that the city’s immunity was waived under Local Government Code Section 271.152, as the COE Agreement and the Collective Bargaining Agreement, read together, constitute a contract for purposes of the statutory waiver. The court of appeals concluded that Saifi’s pleadings do not contain sufficient facts to demonstrate jurisdiction under Local Government Code Section 271.152, but also contained no incurable defects. Therefore, Saifi could amend his pleadings and develop the record with respect to his contention that his COE Agreement, read in conjunction with the CBA and incorporated Civil Service Act provisions, satisfies the requirements for waiver of the city’s immunity. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-227 (Tex. 2004). The court ruled similarly on Saifi’s claim that the city’s immunity was waived under Section 180.006 of the Local Government Code because he is a firefighter covered by Local Government Code Chapter 143 who has alleged a claim for back pay. The court reversed the trial court’s judgment granting the city’s plea to the jurisdiction and remanded the case for further proceedings.
*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.