Recent Texas Cases of Interest to Cities

Note: Included cases are primarily from October 11, 2018 through November 10, 2018.

Public Information Act: City of Houston v. Dolcefino Commc’ns, LLC, No. 01-17-00979-CV, 2018 WL 5539447 (Tex. App.—Houston [1st Dist.] Oct. 30, 2018) (mem. op.). The City of Houston appealed the trial court’s grant of a motion to compel in a mandamus proceeding under the Texas Public Information Act (PIA). Dolcefino brought a petition for writ of mandamus, seeking to have the trial court conduct an in camera review of the responsive documents from a PIA request that the city claimed were exempt from disclosure. Dolcefino filed a motion to compel, claiming that the city had not produced documents under the PIA from a request almost four months earlier.  At the hearing, the city’s attorneys represented that not all of the documents were produced yet but had previously represented it had complied in its filings with the court. The trial court granted the motion to compel and ordered the city to produce the documents that were not being withheld, produce the withheld documents to the court for in camera review, and state in writing that it had complied with the initial and subsequent PIA requests.

The city appealed and invoked the appellate court’s jurisdiction under the theory the trial court’s order was an injunction, or in the alternative, the city was entitled to a writ of mandamus. The issue before the First Court of Appeals was whether the order was an injunction, thus granting the court jurisdiction over the city’s appeal.  The First Court of Appeals determined the order requiring the city to perform an action did not rise to the level of an injunction; rather, the order attempted to clarify if the city had complied with the PIA requests because the city had given conflicting information on whether it had complied.  The order further narrowed the issues in dispute. Because the order was not an injunction, the court determined it lacked jurisdiction over the city’s appeal. The court further determined that the record would not support a writ of mandamus. Thus, the city’s appeal was dismissed.

Texas Tort Claims Act: City of Killeen v. Cheney, No. 03-18-00139-CV, 2018 WL 5832088 (Tex. App.—Austin Nov. 8, 2018) (mem. op.).  This case arises from an order of the trial court denying the City of Killeen’s plea to the jurisdiction in an automobile accident.

When a particular interchange was first opened to the public, the city was unable to obtain certain parts necessary for the installation and operation of additional traffic detection cameras. As a result, the city initially placed the traffic signals at the interchange into a four-phase signal operation. At a later date, the city reprogrammed the four-phase traffic signal operation to a three-phase signal operation. Mary Cheney’s husband was subsequently killed in an automobile accident at the interchange after allegedly assuming (based on prior experience) that there would be a “green light” at a second intersection because there had been a “green light” at the first intersection. Six days later, after several additional accidents occurred at the second intersection, the city erected a sign warning motorists to use caution because of the traffic signal timing change.

Cheney sued the city, asserting that: (1) the reprogramming of the traffic signals created an unreasonably dangerous condition for motorists based on their prior experiences at the interchange, and that the city had actual knowledge that implementing drastic change to the signals’ programming with no advance warning would likely cause traffic fatalities; (2) the city was negligent by reprogramming the signal at a peak period on a high-volume traffic weekday; and (3) the city’s governmental immunity was waived under the Texas Tort Claims Act because a negligent premises-defect claim had been sufficiently alleged. The city filed a plea to the jurisdiction and asserted governmental immunity. The trial court denied the city’s plea to the jurisdiction, and the city appealed.

First, the court considered whether the city’s immunity was waived with respect to claims arising from the “absence, condition, or malfunction” of a traffic signal.  The court concluded that Cheney’s claim did not arise from the absence, condition or malfunction of a traffic signal.

The court then considered whether Cheney pled facts demonstrating a premise-defect claim, and if so, whether that premise-defect claim was excepted from waiver, and thus immunity retained under the discretionary-function exception. To prevail on a premise-defect claim, a claimant must show that the city failed to either: (1) use ordinary care to warn of an unreasonably dangerous condition of which it was actually aware and the claimant was not; or (2) make the condition reasonably safe. The court found that: (1) the traffic signals at the intersection accurately reflected the signal under a four-phase signal operation, and therefore, there was no “condition” for the city to correct; and (2) any possible danger at the intersection created by the city’s decision to reprogram the signals would be negated by motorists’ compliance with the signals. Accordingly, the court concluded that the change in the traffic signals at the interchange does not constitute an unreasonably dangerous condition under premise-defect law, such that the city had a duty to warn motorists, regardless of when or how the change was implemented.

Expedited Declaratory Judgments Act: Ex parte City of El Paso, No. 03-17-00566-CV, 2018 WL 5815098 (Tex. App.—Austin Nov. 7, 2018).  This appeal stems from a bond-validating proceeding in which the trial court validated the bond election, the bonds, and the City of El Paso’s authority to use bond proceeds to finance the design and construction of various projects, but limited the city’s authority to use bond proceeds to build a facility “suitable for a sports arena.”

The city adopted an ordinance ordering an election on a proposed bond issue for various “quality of life” projects, including a “multipurpose performing arts and entertainment facility” (Facility).  The bond was approved by the voters.  The city thereafter, began to take steps to create the Facility and proposed the development and construction of a “Multipurpose Cultural and Performing Arts Center” describing the project as a “mid-sized arena anticipated to have between 12,000 and 15,000 seats,” and noting that it was the city’s intent to build an arena that provides a flexible and usable sports and entertainment venue for the public.

To preemptively combat potential opposition to the Facility, the city filed a suit in Travis County under Chapter 1205 of the Government Code (commonly referred to as the Expedited Declaratory Judgements Act (EDJA)), which allows the issuer of public securities to obtain declarations establishing the legality or validity of public security authorizations through an expedited process. The city asked the trial court to declare that the Facility could be used for sporting events. Multiple interested parties challenged the city’s suit, claiming that the language of the ordinance authorized the facility for “performing arts,” and that sports do not fall under this description. The trial court held that, while the ordinance was valid and the city was authorized to use bonds to finance the Facility, the plain language of the ordinance prohibited the city from constructing a facility that would be “suitable for a sports arena” and from using funds from other sources to modify the Facility for sports usage.

Near the end of the trial court’s proceedings, Max Grossman, an interested party, sued the city in a separate proceeding in El Paso County (EL Paso suit) alleging that the city’s plans for construction of the Facility were in violation of the Antiquities Code provision requiring notice to the Texas Historical Commission before ground is broken on a project taking place on state or local public land. The city asked the trial court in the underlying case to enjoin the El Paso suit under the EDJA or the court’s equitable power to issue an anti-suit injunction. The trial court held that the El Paso suit was proper in El Paso County and the trial court’s final judgement did not adjudicate or affect the claims asserted in the El Paso suit. The city and Grossman filed motions to modify the judgement, but the district court denied the motions. Grossman had asked the trial court to modify its judgement arguing that the election ordinance mandated that the city build a cultural center before it could build the Facility. The city and Grossman appealed.

The court of appeals concluded that under a plain-meaning review of the ordinance, the city may use bond proceeds to build a Facility that accommodates sports.  The court of appeals also found that the trial court’s declaration that the city could not use funds from other sources to modify the Facility for sports usage exceeded the limited scope of the district court’s authority in an EDJA suit. Finally, the court found that the trial court erred in its failure to enjoin the El Paso suit because the purpose of the EDJA is to prevent a single individual from stopping an entire bond issue by simply filing suit, and the El Paso suit prevented final resolution of the city’s EDJA suit. 

Board of Adjustment: City of Wimberley Bd. of Adjustment v. Creekhaven, LLC, No. 03-18-00169-CV, 2018 WL 5074580 (Tex. App.—Austin Oct. 18, 2018) (mem. op.).  This appeal stems from the trial court’s denial of a plea of jurisdiction filed by the City of Wimberley Board of Adjustment (Board) in a case involving a request for a variance.

Alison Campbell owns property that is adjacent to property that is owned by Creekhaven, LLC (Creekhaven).  Beginning around 2003, Campbell began constructing a pole barn on her property, which led to various disputes between her and Creekhaven regarding the location and features of the structure. Campbell requested, from the Board, a variance from the setback requirements of the city’s ordinances on the east side of the pole barn. In October 2013, the Board granted Campbell’s request for a variance on the condition that Campbell provide the city with evidence that the property was in compliance with all other applicable city ordinances, rules and regulations on or before March 1, 2014 (October 2013 Variance). Failure to comply with the condition would result in the variance automatically expiring. The Board also affirmed a decision by the city administrator that an ordinance specifying setback requirements for “alley easements” did not apply to Campbell’s pole barn. In November 2013, Creekhaven filed suit for judicial review of both the Board’s variance decision and the decision affirming the administrative determination. The trial court granted a writ of certiorari directing the Board to submit its briefing related to the challenged decisions. The Board filed documents in response to the writ in April 2014.

In the meantime, the deadline to comply with the October 2013 Variance decision expired without Campbell satisfying the required condition. Campbell continued to work on her property and in late 2014 sought variances from the setback requirements on both the east and the west side of the pole barn on her property. The Board, after conducting a hearing, granted with conditions, both requested variances in September 2014 (September 2014 Variances). Creekhaven filed a second amended petition to its judicial review, adding challenges to the September 2014 Variances, and seeking a declaration that the October 2013 Variance had expired and was no longer in force and effect. Creekhaven asserted that the Board did not have the authority or jurisdiction to act on Campbell’s September 2014 variance request because of the doctrine of “res judicata.” The trial court granted a writ of certiorari directing the Board to submit its briefing related to the September 2014 Variances. The Board filed a response in March 2015.

In January 2018, the Board filed a motion for summary judgement arguing that: (1) it did not abuse its discretion in granting the city’s administrator’s decision regarding the applicability of the “alley easement” ordinance; (2) it did not abuse its discretion when it approved the September 2014 Variances; and (3) it conceded with Creekhaven’s finding, on a different reasoning, that the October 2013 Variance was moot. In turn, Creekhaven filed a motion for partial summary judgement on its Uniform Declaratory Judgement Act (UDJA) claims.  While the summary-judgement motion was pending, the Board filed a plea to the jurisdiction arguing that the trial court lacked subject-matter jurisdiction over Creekhaven’s UDJA claims based on governmental immunity, the doctrine of redundant remedies, and mootness. The same day, Creekhaven amended its petition dropping its challenge to the Board’s September 2014 grant of a variance on the west side of Campbell’s property. The trial court denied Creekhaven’s motion for partial summary judgement, the Board’s motion for summary judgement, and the Board’s plea to the jurisdiction.  The Board then filed an interlocutory appeal of the denial of its plea to the jurisdiction.

The court of appeals first considered whether the trial court lacked subject-matter jurisdiction to entertain Creekhaven’s claims for declaratory relief under the UDJA regarding: (1) the legal effect of the October 2013 Variance; and (2) the Board’s decision to grant the September 2014 Variances. The court found that the trial court lacked subject-matter jurisdiction over these claims because they did not constitute a request for a declaration concerning the validity of any city ordinance such that the Board’s immunity is waived. Rather, the court found that the claim constituted a request for a declaration construing a statute or ordinance. The court also considered Creekhaven’s claim for declaratory relief regarding the Board’s authority to grant the September 2014 Variances. The court held that Creekhaven’s appeal of the October 2013 Variance did not deprive the Board of authority to consider Campbell’s request for a variance in September 2014.

The court then considered Creekhaven’s claim that the Board acted without authority because the doctrine of res judicata barred the Board from acting on Campbell’s September 2014 request for a variance on the east side of her property. The court found that the doctrine was inapplicable in this case because it is an affirmative defense. Finally, the court concluded that the trial court lacked subject-matter jurisdiction over Creekhaven’s challenge to the legality of the October 2013 Variance because that issue is moot. As a result, the court reversed the trial court’s order denying the Board’s plea to the jurisdiction and dismissed Creekhaven’s UDJA claims and its suit for judicial review of the October 2013 Variance.

Workers’ Compensation: Martinez v. State Office of Risk Mgmt., No. 04-14-00558-CV, 2018 WL 5808333 (Tex. App.—San Antonio Nov. 7, 2018). This case arises from a Texas Supreme Court ruling reversing the court of appeals judgment in part, and remanding the case to the court to consider the merits of Edna Martinez’s workers’ compensation claims.

Martinez was employed as a caseworker for the State of Texas, and was at her home preparing for court hearings for the following Monday when she slipped and fell, breaking her shoulder and striking her head during the fall. She reported her injury and submitted her claim for workers’ compensation benefits to the State Office of Risk Management (SORM), the claim administrator for state-agency employees.  Her claim was denied by SORM on the grounds that she had not been injured in the course and scope of her employment, was not engaged in the furtherance of her employer’s business at the time of the injury, and had not established a causal connection between her injuries and her employment.  At a benefit review conference, SORM argued that Martinez’s injuries were not compensable because she had not received prior approval to work from home in violation of her employer’s policy. Martinez argued that caseworkers like her often took work from home without prior approval. At a contested hearing, the hearing officer concluded that Martinez was furthering the business and affairs of her employer at the time of her fall, but that her injuries did not arise out of or occur in the course and scope of her employment. As a result, the hearing officer ruled in favor of SORM, holding that Martinez had not sustained a compensable injury.  Martinez appealed to the Texas Workers’ Compensation Commission’s Appeals Panel (Panel).  The Panel reversed the hearing officer’s decision, finding that Martinez had sustained a compensable injury.

SORM then appealed to the district court, and both parties moved for summary judgement.  In her motion, Martinez argued that a violation of an employer’s policy or rule that merely regulates the manner of doing work does not, as a matter of law, preclude compensability for an injury otherwise sustained in the course and scope of employment. SORM argued that Martinez’s injuries were not compensable because she had violated state law, which limits the locations where work can be performed and explicitly prohibits working from home without prior approval. The district court denied Martinez’s motion for summary judgement and granted SORM’s motion for summary judgement.  Martinez appealed.

The court of appeals found that the trial court had erred in granting SORM’s motion for summary judgement because SORM’s statutory violations argument was never presented for consideration in the administrative review process, and as such, the trial court lacked summary judgement. Finding that the trial court did not have jurisdiction over the statutory violations, the court of appeals declined to reach a decision on whether the statutory violations affected the compensability of Martinez’s injury. The court further held that the trial court did not err in denying Martinez’s motion for summary judgement. Both Martinez and SORM sought review of the court of appeal’s decision at the supreme court. The supreme court remanded the case to the court of appeal’s to determine whether the statutory violation is evidence that Martinez did not sustain a compensable injury.

The court of appeals considered the plain language of the statutes to determine whether the statutes limit the scope of Martinez’s employment. The court concluded that the statutes limit a state employee’s scope of employment by mandating that the employee obtain prior written authorization before working at home. Because Martinez did not obtain prior approval before working from home, she did not comply with the statutes. As a result, she did not sustain a compensable injury.  Accordingly, the court found that the trial court did not err in granting summary judgement in SORM’s favor.

Contractual Immunity: CHW-Lattas Creek, L.P. v. City of Alice, No. 04-18-00251-CV, 2018 WL 5623614 (Tex. App.—San Antonio Oct. 31, 2018). This appeal arises from the trial court’s order granting the City of Alice’s plea to the jurisdiction in a case involving a Chapter 380 economic development agreement.

The city and CHW-Lattas Creek, L.P. (CHW) entered into a Chapter 380 development agreement whereby CHW agreed to sell and dedicate specific real property to the city.  The city, in turn, agreed to construct a multi-use complex, including an outdoor amphitheater, an aquatic center, and a conference center, and facilitate the construction of a hotel on the property. The development agreement contained a provision making the agreement subject to the requirements of Chapter 271 of the Local Government, and specifically providing that the parties have “entered into a written contract for providing goods and services.” The agreement also contained a provision in which the city expressly waived sovereign immunity to suit for purpose of adjudicating a claim for breach of contract.

Four years after the effective date of the agreement, CHW sued the city for failing to fulfill certain requirements of the agreement alleging breach of contract, declaratory relief, and fraud. The city filed a plea to the jurisdiction asserting immunity from suit because: (1) the agreement was not a contract for providing goods and services to the city as required for immunity to be waived under Section 271.152 of the Local Government Code for a breach of contract claim; (2) Section 271.152 does not waive immunity for a claim for declaratory relief; and (3) the fraud claim is an intentional tort for which immunity is not waived. CHW asserted that immunity was waived because: (1) the agreement was a contract for services; (2) the city was engaged in proprietary functions in execution of the agreement; and (3) the city was estopped from claiming its immunity was waived. The trial court granted the city’s plea and dismissed CHW’s claims for lack of subject matter jurisdiction.

The court of appeals first considered whether the city was engaged in a governmental or proprietary function when it entered the agreement.  One of the governmental functions enumerated by the Texas Tort Claims Act (Act) is “community development or urban renewal activities undertaken by municipalities and authorized under Chapters 373 and 374, Local Government Code.” The court looked to the legislative intent of the legislation that amended the Act to add that provision, and concluded that the amendment extends to all community development activities regardless of which chapter of the Local Government Code applies. As a result, the court concluded that because the purpose of the development agreement was to promote economic development under Chapter 380 of the Local Government Code, the city was engaged in a governmental function when it entered into the agreement.

The court then considered whether the city’s immunity was waived under Section 271.152 of the Local Government Code. Section 271.152 applies only to written contracts for providing goods and services to a local governmental entity. Because the development agreement did not obligate or require CHW to provide any services to the city, and the city did not agree to pay CHW for any services, the court concluded that the agreement was not an agreement for providing services to the city. Consequently, the city’s immunity was not waived under the development agreement.

The court then addressed CHW’s assertion that courts have no authority to interfere with a city’s exercise of its legislative direction because the development agreement involves municipal legislative discretion. The court looked to case law involving the adoption of ordinances or zoning regulations by a municipality and distinguished those actions from the execution of a contract. As a result, the court found that the law relating to the exercise of municipal legislative discretion did not apply to the execution of the development agreement.

Finally, the court considered CHW’s argument that the city was estopped from asserting immunity or denying its waiver because the language in the development agreement expressly provided that the agreement was subject to Chapter 271 and the city expressly waived sovereign immunity. The court held that the city should not be estopped from asserting its immunity based on the “mistake, neglect, or intentional act,” of city officials. Instead, parties who enter into an agreement with a local governmental entity should be charged with the law regarding the entity’s immunity and enter into an agreement at the parties’ own peril.

Contractual Immunity: Harlandale Indep. Sch. Dist. v. Jasmine Eng’g, Inc., No. 04-18-00388-CV, 2018 WL 5623612 (Tex. App.—San Antonio Oct. 31, 2018) (mem. op.). This appeal arises from the trial court’s denial of a plea to the jurisdiction in a case involving a breach of contract.

Jasmine Engineering and the Harlandale Independent School District entered into a professional services agreement for consulting services. In a letter dated January 24, 2018, the district informed Jasmine Engineering that the agreement was terminated without cause. In February 2018, Jasmine Engineering sued the district asserting: (1) a cause of action because the agreement required cause to terminate; (2) the district’s immunity was waived under Section 271.152 of the Local Government Code; and (3) a declaratory judgement. In addition, Jasmine Engineering sought to recover attorney’s fees under the Texas Civil Practice and Remedies Code and Section 271.153 of the Local Government Code.

The district filed its first plea to the jurisdiction acknowledging its immunity from suit was waived under Section 271.152. However, the district asserted that its immunity was waived only for relief recoverable under Section 271.153, which did not include declaratory relief or attorney’s fees under the Texas Civil Practice and Remedies Code.  Jasmine Engineering countered with an assertion that the declaratory relief it sought was incidental to the contractual relief it sought. The trial court granted the district’s plea and dismissed Jasmine Engineering’s claim for declaratory relief and attorney’s fees.  The trial court also ordered Jasmine Engineering to replead its claim for breach of contract to expressly comply with Sections 271.152 and 271.153 of the Local Government Code.  In response, Jasmine filed its amended petition alleging only a breach of contract claim and a request for attorney’s fees under Section 271.152 and 271.153 of the Local Government Code.  Jasmine Engineering filed a motion for partial summary judgement as to liability, requesting that the trial court conclude as a matter of law that the district had breached the agreement by terminating the agreement without notice and an opportunity to cure, and by failing to pay Jasmine Engineering for all services actually performed and all expenses actually incurred prior to the termination.  The district filed a plea to the jurisdiction asserting that Jasmine Engineering’s motion for summary judgement sought the same declaratory relief that the trial court had dismissed when it granted the district’s first plea. Jasmine Engineering filed a reply asserting that it was not precluded by the Texas Rules of Civil Procedure from seeking a partial summary judgement as to liability. The trial court denied the district’s second plea, and the district filed an interlocutory appeal.

The court of appeals affirmed the trial court’s order, rejecting the district’s contention that a motion for partial summary judgment on liability is an improper procedural vehicle for determining the District’s liability for breach of contract claim.

Pre-suit Deposition: In re City of Dallas v. Dallas Companion Animal Project, No. 05-18-00453-CV, 2018 WL 5306943 (Tex. App.—Dallas Oct. 26, 2018) (mem. op.).  This is an interlocutory appeal from the trial court’s order denying the City of Dallas’ plea to the jurisdiction in a case involving a pre-suit deposition suit pursuant to Texas Rule of Civil Procedure 202.

The Dallas Companion Animal Project (DCAP) provided goods and services to the City of Dallas Department of Animal Services (DAS) for a number of years.  In December 2016, the head of DAS was replaced, and DCAP was informed by the city that there were questions regarding its activities. The city requested DCAP provided certain financial information, which they did. The city also informed DCAP that a memorandum of understanding would be required before DCAP could continue its services to the DAS. In February 2017, a reporter told DCAP that there was a purported criminal investigation into DCAP’s activities. DCAP repeatedly attempted to obtain information from the city of the alleged investigations, culminating in a December 2017 letter to the city manager requesting information about the status of the alleged investigation. After the city failed to respond, DCAP filed a Rule 202 petition seeking authorization to depose a representative of the city about the existence, focus, and current status of the investigation.

The city filed a plea to the jurisdiction arguing that the trial court did not have jurisdiction over the Rule 202 petition because DCAP failed to allege facts demonstrating a potential injury caused by the city’s action that would constitute a claim that was not barred by governmental immunity. The trial court denied the city’s plea. The city did not file an interlocutory appeal of the ruling; rather, it filed a second plea to the jurisdiction arguing that, to the extent that DCAP intended to assert claims against employees of the city, those employees were entitled to dismissal of the claims under Section 101.106(f) of the Civil Practice and Remedies Code and the city had not waived immunity for those claims.  DCAP filed an amended Rule 202 petition alleging, among other things, possible viable claims against: (1) the city for negligence and negligent defamation; and (2) city employees acting in their individual capacities or acting ultra vires. The trial court denied the city’s second plea.

The city filed an interlocutory appeal from the trial court’s denial of the second plea arguing that because the amended Rule 202 petition was a final order, it was appealing not only that order, but the trial court’s orders denying both pleas, and, alternatively, it was bringing an interlocutory appeal from an order denying a plea to the jurisdiction.  The city also filed a writ of mandamus contending that the trial court abused its discretion by ordering the city to submit to a pre-suit deposition and the city did not have an adequate appellate remedy.

The court of appeals concluded that DCAP was seeking, in part, to investigate potential claims against the city, and the trial court’s order granting DCAP’s amended Rule 202 petition is not final and appealable. Accordingly, the court dismissed the city appeal for lack of jurisdiction. The court further denied the city’s petition for writ of mandamus because DCAP alleged sufficient facts to establish the trial court had jurisdiction over the amended Rule 202 petition and the trial court did not clearly abuse its discretion by determining the benefit of the ordered deposition outweighs the burden or expense of the procedure. The court also dismissed the city’s interlocutory appeal as moot.

Pre-suit Deposition: In re City of Dallas v. Russell, No. 05-18-00289-CV, 2018 WL 5306925 (Tex. App.—Dallas Oct. 26, 2018) (mem. op.).  This is an interlocutory appeal from the trial court’s order denying the City of Dallas’ plea to the jurisdiction in a case involving a pre-suit deposition pursuant to Texas Rule of Civil Procedure 202.

Heather Russell filed a petition for Rule 202 depositions to investigate Section 1983 claims related the shooting and death of her son by a City of Dallas police officer.  She sought authorization to depose the police officer and issue a subpoena duces tecum to the city and the Dallas County Medical Examiner (Medical Examiner). Russell filed her petition after she was unable to obtain the records through the Texas Public Information Act. The city and the police officer filed a plea to the jurisdiction, and the Medical Examiner filed a separate response. The trial court issued an order that: (1) denied the city and the police officer’s plea to the jurisdiction; (2) found the likely benefit of allowing Russell to take the requested depositions outweigh the burden or expense of the procedure; (3) granted the Rule 202 petition as to the city and the Medical Examiner, but not to the officer; and (4) ordered, Russell and her counsel, to refrain from discussing or disclosing to anyone information obtained through the taking of the deposition until the earlier of either a grand jury determination to indict the officer or further order of the trial court. The city filed a petition for writ of mandamus or, in the alternative, an appeal to the trial court’s order granting the Rule 202 petition, and an interlocutory appeal arguing that the trial court erred when it denied the city’s plea to the jurisdiction.

The court of appeals first considered the appropriate remedy available to the city. The court concluded that the appropriate remedy for the city is a petition for writ of mandamus. As a result, the court dismissed the city’s interlocutory appeal.

The court then considered whether the city was entitled to mandamus relief. To be entitled to mandamus relief, a realtor must show: (1) the trial court has clearly abused its discretion; and (2) there is no adequate remedy by appeal.  The court concluded that the trial court abused its discretion because Russell failed to adequately plead a specific cause of action as required by Rule 202.2 or to state with sufficient specificity a basis for overcoming governmental immunity. The court also found that the city had no adequate remedy for appeal because the city’s only opportunity to appeal the trial court’s order would be after the deposition with subpoena duces tecum occurred, which would compromise the city’s procedural and substantive rights.  As a result, the court granted the city’s petition for writ of mandamus. Having ruled on the merits of the city’s writ of mandamus, the court found no need to address the city’s appeal of the trial court’s order denying the city’s plea to the jurisdiction.

Civil Procedure: Thompson v. Dallas City Attorney’s Office, No. 05-17-00847-CV, 2018 WL 5077795 (Tex. App.—Dallas Oct. 18, 2018) (mem. op.). This appeal arises from the trial court’s order granting the Dallas City Attorney’s Office’s motion for summary judgment and dismissing Petrina Thompson’s claims with prejudice.

Thompson, a former employee of the City of Dallas’ City Attorney’s Office (City Attorney Office), filed a complaint against the City Attorney Office with the Texas Workforce Commission alleging employment discrimination. On October 26, 2016, the commission informed Thompson that it was unable to conclude that a statutory violation had occurred and advised her that she had until December 25, 2016, to file suit on her claims. Thompson timely filed her suit against the City Attorney Office on December 8, 2016, but did not identify a person to be served. As result, the City Attorney Office was not served until December 25. Thompson filed an amended petition, again listing “Dallas City Attorney’s Office,” as the defendant, and that the defendant could be served though service on the city attorney and the mayor. The city attorney and the mayor were served on January 6, 2017.

The City Attorney Office filed an answer asserting a general denial and several affirmative defenses, including that Thompson’s claims were barred by the statute of limitations. The City Attorney Office later filed a supplement to its answer asserting that Thompson’s claims were barred by defect of parties because Thompson had sued the City Attorney Office, a department within the City of Dallas, which is a non-jural entity that has no legal capacity to be sued. Thompson did not amend her petition to allege suit against the City of Dallas, and did not file a response to the motion for summary judgement. The trial court held a hearing (at which Thompson did not appear) and eventually signed a final judgement granting the City Attorney Office’s motion for summary judgement and ordering Thompson’s claims dismissed with prejudice.  Thompson filed a motion to reinstate under Rule 165a of the Rules of Civil Procedure, which provides for reinstatement of a case that has been dismissed for want of prosecution. She also filed a motion for a new trial arguing that trial court should have denied the motion for summary judgement and the disposition of the case should have been without prejudice. She also filed a motion for leave to file a response to the summary judgment and to correct or reform the judgement.  The trial denied the motions. Thompson appealed the trial court’s judgement arguing that the trial court erred (1) by denying her motion for a new trial because she satisfied the requirements of Craddock v. Sunshine Bus Lines; (2) by denying her motion for a new trial on the grounds that she misnamed the defendant; (3) by denying her motion to reinstate; and (4) by denying her motion to modify the judgement.

The court of appeals first considered Thompson’s motions for a new trial under the provisions of Craddock v. Sunshine Bus Lines.  Under Craddock, a motion for a new trial shall be granted in any case in which: (1) the failure to answer before judgement was not intentional, or the result of conscious indifference, but was due to a mistake or accident; (2) the motion for a new trial sets up a meritorious defense; and (3) the motion is filed at a time when the granting thereof will occasion no delay or otherwise work an injury. The court found that Thompson’s motions did not satisfy the second and third elements of Craddock. Therefore, she failed to show that the trial court abused its discretion by denying her motion for a new trial.

The court then considered her motion to reinstate under Rule 165a, which governs dismissals for want of prosecution. The court concluded that Rule 165a does not apply in this case because the trial court did not dismiss the case for want of prosecution.  Instead, the trial court granted the City Attorney Office’s motion for summary judgement, and dismissed Thompson’s claims. Accordingly, the trial court did not abuse its discretion in refusing to grant Thompson’s motion to reinstate.

Finally, the court considered Thompson’s motion to modify the judgement under Rule 329b, which provides that the judgement must be filed within the time for a filing a motion for a new trial, which is 30 days from the date the trial court signs the judgement. Thompson filed her motion 69 days after the trial court signed its judgement. As a result, the court may not review the trial court’s decision to deny the motion.

Texas Recreational Use Statute: City of Conroe v. Thomas, No. 09-18-00215-CV, 2018 WL 4924849 (Tex. App.—Beaumont Oct. 11, 2018) (mem. op.). The Ninth Court of Appeals reversed the trial court’s denial of the City of Conroe’s plea to the jurisdiction on the grounds that the appellants failed to prove gross negligence under the Recreational Use Statute, and dismissed the appellants’ claims for lack of subject matter jurisdiction.

Appellants (on behalf of an injured minor) sued the city for negligence under Texas Civil Practice & Remedies Code Section 75 (the Recreational Use Statute), claiming that at a summer day camp operated by the city, a camp supervisor negligently caused the minor’s eye injury during the course of his employment. While facilitating recreational activities inside of a classroom, the counselor swung a makeshift baseball bat and struck the minor, causing him to lose sight in his left eye. The city filed a plea to the jurisdiction asserting that appellants’ claims must fail because, under the Recreational Use Statute, the city does not owe a person engaged in recreation on its premises any more care than a trespasser would be owed. The city claimed that it only owed the minor a duty to not injure him by gross negligence, and that the appellants did not prove that the city was grossly negligent because the city never parted from an ordinary standard of care as to create an extreme risk of harm. The city, therefore, argued that it retained government immunity under the statute. Appellants filed an amended petition that included a gross negligence claim, and also claimed that the case did not fall under the Recreational Use Statute because the city’s summer camp did not satisfy the statute’s definition of “camping” and that playing baseball inside of a classroom did not fall under the statute’s definition of “recreation.” Appellants argued that the city therefore did not retain governmental immunity and could be tried on the negligence and the gross negligence theories. The trial court denied the city’s plea to the jurisdiction, and held that, because the city’s activity did not fall under the Recreational Use Statute, the city could be tried for the negligence claims.

Under the Recreational Use Statute, “recreation” is defined as “any activity associated with enjoying nature and the outdoors.” The statute does apply to informal ball games, and just because the game was moved indoors due to inclement weather does not mean that the game was not associated with the outdoors. Therefore, the informal baseball game played in an indoor classroom at the city’s summer camp did fall under the Recreational Use Statute, and the statute does apply to appellants’ claims. Thus, the city only owed the injured minor the care that a trespasser would be owed. This only encompasses a duty “not to injure a person willfully, wantonly, or through gross negligence,” and gross negligence is only satisfied by “subjective awareness of an extreme degree of risk, indicating conscious indifference” to the safety of others. Appellants failed to satisfy the pleading requirements of gross negligence because they did not allege any acts or omissions that showed the city’s indifference to the consequences of a known extreme risk of danger. Appellants’ claim failed under the Recreational Use Statute and the city retained its governmental immunity.

Texas Tort Claims Act: City of Fort Worth v. Hart, No. 10-17-00258-CV, 2018 WL 4925810 (Tex. App.—Waco Oct. 10, 2018) (mem. op.).  The Tenth Court of Appeals reversed the trial court’s denial of the City of Fort Worth’s plea to the jurisdiction on the grounds that the appellee’s objections to the city’s evidence were improperly sustained and that the appellee failed to show that the city’s employee was acting in the scope of his duties at the time of the accident.

A City of Fort Worth police officer (while operating a city-owned vehicle) was involved in an accident with a car in which Jeff Hart’s son was riding. Hart’s son was injured and he sued for damages on behalf of his son. The city entered a plea to the jurisdiction, claiming that Hart had failed to demonstrate the police officer was acting in the scope of his employment duties at the time of the accident. The trial court sustained objections to the city’s evidence and exhibits, and denied the city’s plea to the jurisdiction under the Texas Tort Claims Act because there was a fact issue as to whether the officer was acting within the course and scope of his duties.

The Tenth Court of Appeals concludes that the trial court erred. The trial court incorrectly held that the officer’s deposition was hearsay; statements made during a deposition cannot count as hearsay. The trial court incorrectly held that the excerpts of the officer’s deposition were improperly authenticated because deposition excerpts do not have to be separately authenticated. Finally, the trial court abused its discretion by holding that the excerpts were “altered” simply because they were highlighted; the highlighting did not modify the evidence or make the evidence substantively different. Moreover, the trial court improperly held that there was a fact issue as to whether the officer was acting within the scope of his employment duties. Because the excerpts of the officer’s deposition should have been admitted and are sufficient to support the city’s governmental immunity, Hart could only sue the city under the immunity waiver portion of the Texas Torts Claims Act if the officer was acting within his “scope of employment.”

At the time of the accident, the officer was employed by the city and was driving a vehicle that was both owned and fully maintained by the city. The accident occurred during the officer’s usual work hours, he identified himself to the 911 operator using his job title, and he called his supervisor to advise him of the incident. However, in order to be “acting within the scope” of his employment under the Texas Tort Claims Act, the officer’s actions must have been “undertaken in furtherance of his employer’s business.” While there is a presumption that an employee was furthering his employer’s business if he was driving his employer’s vehicle, the city rebutted that presumption in this case. The city presented evidence that at the time of the accident, the officer was off-duty, not being paid for his time, and had no official duties. None of the circumstances surrounding the accident raised a sufficient fact issues as to whether the officer was within the scope of his employment. Therefore, because there was no fact issue, the city’s immunity was not waived, and appellee’s claims must fail due to lack of subject matter jurisdiction.

Contract Claims Act: City of Merkel v. Copeland, No. 11-16-00323-CV, 2018 WL 5074551 (Tex. App.—Eastland Oct. 18, 2018). The Eleventh Court of Appeals reversed the trial court’s denial of the City of Merkel’s plea to the jurisdiction on the grounds that the city did not waive its governmental immunity under the language of the Contract Claims Act at the time of the execution of its contract with appellees.

The owners of a country club contracted with the city to purchase treated wastewater to irrigate the country club’s golf course. Under the terms of the contract, the country club owners agreed to accept 100% of the city’s treated wastewater and to pay $1.50 per 100,000 gallons of wastewater delivered by the city. The city agreed to deliver the wastewater to the country club from its wastewater treatment plant. Appellees later purchased the country club and became successors in interest to the contract. Appellees and the city both fulfilled their obligations under the contract for multiple years. However, the contract was subject to state wastewater quality standards, and the city halted its delivery of wastewater to the country club in 2014 because the water did not meet the minimum quality standards. Appellees sued the city for breach of contract, and the city filed a plea to the jurisdiction asserting governmental immunity. Appellees claimed that the immunity did not apply because the city’s sale of wastewater represented a proprietary function rather than a governmental function. Appellees also claimed that the city had waived its immunity under the Contract Claims Act by entering into the contract. The city responded that the contract at issue was not subject to the Contract Claims Act, and that appellees had not sought the type of damages for which immunity is waived under the Act.

Under the Texas Tort Claims Act, “sanitary and storm sewers,” “waterworks,” and “water and sewer service” are included within the definition of “governmental functions.” The disposal of treated wastewater is necessary and essential to the city’s operation of its wastewater treatment facility. The city provided a key governmental service by disposing of treated waste. Therefore, the city did exercise a governmental function (and not a proprietary function) when it contracted to sell wastewater to appellees. Moreover, under the Contract Claims Act, a city waives its governmental immunity when it enters a contract to sell reclaimed water intended for industrial use. However, this language in the Contract Claims Act was included in 2013; the contract in this case was executed in 2011, when immunity was only waived for contracts that provided goods and services to a city. The appellees did not provide any services to the city under the contract in this case. Therefore, the contract in this case was not subject to the Contract Claims Act, and the city did not waive its governmental immunity. Appellees claim failed due to lack of subject matter jurisdiction and was dismissed.

Takings: City of South Padre Island v. La Concha Condominium Ass’n, No. 13-18-00037-CV, 2018 WL 5289720 (Tex. App.—Corpus Christi Oct. 25, 2018) (mem. op.). The Thirteenth Court of Appeals affirmed the trial court’s denial of the City of South Padre Island’s plea to the jurisdiction on the grounds that the Uniform Condominium Act authorizes condominium associations to sue on behalf of individual unit owners. The court held that La Concha Condominium Association has standing to assert its takings claims on behalf of its individual condominium owners.

The La Concha Condominium Association represented the individual owners of a condominium complex, and the City of South Padre Island erected a wooden walkway on city-owned land adjacent to the complex. The association and its owners sued the city, asserting that construction of the walkway constituted an unlawful taking and inverse condemnation without due process. The city filed a motion to dismiss the suit, claiming that the association lacked standing to bring suit. The association responded that it had authority to sue under the Uniform Condominium Act (which allows condominium owners’ associations to sue on behalf of multiple owners) and the Private Real Property Rights Preservation Act (which allows property owners to bring takings claims against government entities). The city argued that the association did not have standing to bring takings claims on behalf of condominium owners for individual units that it did not own, as the association did not own legal or equitable title over any of the subject property. The trial court denied the city’s motion to dismiss, and the city appealed.

Condominium associations are specifically authorized by Section 82.102 of the Uniform Condominium Act to sue on behalf of personally-aggrieved individual unit owners, even when the association itself is not personally aggrieved. The La Concha Condominium Association consistently identified itself as a condominium association throughout litigation, and Section 82.102 applies to all Texas condominium regimes. Additionally, Section 82.007 of the Uniform Condominium Act and article 6 of the association’s bylaws (which allow the association to litigate the “common elements” of the condominium) do not purport to restrict the manner in which the association can bring suit on behalf of its owners and do not limit the legal rights of the association. Moreover, the association asserts that all of its owners were in agreement to pursue the case and authorized the association to prosecute the suit under Section 82.102, and there is no evidence to the contrary. Therefore, the association has standing to bring the suit. This standing is not overridden by governmental immunity because the Texas Constitution waives governmental immunity for the taking, damaging, or destruction of property for public use. The city’s issues were overruled, and the denial of its appeal to the jurisdiction was 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.

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