Recent Texas Cases of Interest to Cities

Note:  Included cases are from September 11, 2016 through October 10, 2016.

Governmental Immunity/Tort Claims Act:  Rogge v. City of Richmond, No. 01-14-00866-CV, 2016 WL 5481484 (Tex. App.—Houston [1st Dist.] Sept. 29, 2016).  The Rogges sued the City of Richmond (Richmond) under federal civil rights law and the Texas Tort Claims Act (Act) after their son committed suicide in Richmond’s jail.  The Rogges’ son was arrested for driving while intoxicated. He was taken to Richmond’s jail and was placed in a holding cell while the officer did paperwork to transfer him to the Fort Bend County jail.  The son tied his shirt to a metal grate air vent in the ceiling and committed suicide.

The civil rights case was removed to federal court.  As to the other claims, the Rogges’ alleged negligence, wrongful death, and survival claims because they contended that their son’s death was caused by the use or condition of property – the metal grate – which was affixed into the ceiling and positioned directly above the toilet in the holding cell.  It was alleged that the metal grate presented an unreasonable risk of harm because it was easily accessible to a person who wants to harm himself or, in the alternative, constituted a premises defect because of the position of the vent above the toilet.  Richmond filed a plea to the jurisdiction and motion for summary judgment arguing the Rogges’ claims were barred by governmental immunity.  Richmond argued that the suicide was not caused by a condition or use of tangible personal property, and that the claims were barred by the discretionary-function exception to the limited waiver of immunity found in the Act.  The trial court granted the summary judgment in favor of Richmond and the Rogges appealed.

The Rogges’ argued four issues before the appellate court:  ( 1) their son’s death was caused by Richmond’s use of tangible personal property; (2) his death was caused by a condition of tangible property; (3) the discretionary-function exception to the waiver of immunity did not apply; and (4) the cause of action for a premises defect was not addressed by the motion for summary judgment.  The court first determined how to classify the Rogges’ claim.  The court stated that “[t]he Tort Claims Act imposes different standards of care upon a governmental entity for negligence claims based on ‘a condition or use of tangible personal property’ and claims based on a ‘premises defect’ relating to the condition or use of real property.” See Sampson v. Univ. of Tex. at Austin, No. 14-0745, 2016 WL 3212996, at *2 (Tex. June 10, 2016).  After analyzing the Rogges’ use argument (i.e., that Richmond used the metal grate by installing it in the holding cell for the purpose of preventing a prisoner’s escape through the ventilation, relying on Retzlaff v. Texas Dep’t of Criminal Justice, 135 S.W.3d 731 (Tex.App.—Houston [1st Dist.] 2003, no pet.)), the court found no factual evidence supporting this argument and concluded that the Rogges’ claim should be classified as a premises-defect claim because this claim is not a case in which liability is predicated upon any “affirmative, contemporaneous conduct” by Richmond’s employees, but instead depends upon the duty or care owed by Richmond to people held in the police station’s holding cell.  The court overruled the Rogges’ first and fourth issue.

Then, the court looked at the second issue where the Rogges’ claimed that the trial court erred by dismissing their case because immunity was waived due to the condition of the metal grate, which they contend caused their son’s death.  A condition of property may be a basis for waiver of governmental immunity when it makes the property inherently dangerous and “poses a hazard when the property is put to its intended and ordinary use.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 99 (Tex. 2012).  After analyzing the Rogges’ argument that the metal grate’s ventilation holes were “too large” and that an “integral safety component” was lacking, the court determined that there was no evidence in the appellate record that the metal grating was inherently dangerous or hazardous in its intended use as a cover for the air vent and that there were no jurisdictional facts showing that the condition of the grate actually caused the injury.  Therefore, the court overruled the Rogges’ second issue since it ruled that Richmond’s immunity was not waived by a defective condition of real property and affirmed the judgment of the trial court.

Takings: City of Floresville v. Starnes Investment Group, LLC, No. 04-16-00038-CV, 2016 WL 5398298 (Tex. App.—San Antonio Sept. 28, 2016). This accelerated appeal involves confusion over whether a parcel of land was located inside or outside the city limits.

Starnes Investment Group (Starnes) purchased property to develop a recreational vehicle park. When Starnes filed its zoning application with the City of Floresville, Starnes was informed that the property was entirely outside the city limits. Thus, the city’s zoning requirements were inapplicable; only approval by Wilson County was required. One year later, the city finished updating and digitizing its city limits map, which showed Starnes’s property to be partially inside and partially outside the city’s limits. The city informed Starnes that zoning approval was required. The city approved the zoning application in September 2013.

In June 2015, Starnes sued the city alleging several causes of action. The trial court granted special exceptions in favor of the city and allowed Starnes to replead. In the amended petition, Starnes alleged: (1) a takings/inverse condemnation claim, (2) due process and equal protection violations, and (3) a violation of the Vested Property Rights Act. The trial court denied the city’s plea to the jurisdiction, and the city then appealed arguing Starnes’s amended petition failed to allege a claim for which appellants’ governmental immunity had been waived.

The court analyzed Starnes’s takings and inverse condemnation claims and concluded that the petition alleged no facts that the incorrect information provided by the city was anything more than a mistake. There are no facts alleging that the city knew to a substantial certainty that harm would occur as a result of the delay. Thus, the trial court erred in denying the city’s plea to the jurisdiction on Starnes’s takings/inverse condemnation claim. Likewise, the court concluded that Starnes failed to allege any facts that the city deprived Starnes of its interests and business expectations in the property or treated Starnes differently from others similarly situated. The trial court erred in denying the plea to the jurisdiction on the equal protection claim.

Lastly, the court concluded that Starnes did not assert any factual allegations to support the contention that Section 245.002 of the Local Government Code was violated. The delay in approval was caused by incorrect information not a change in the city’s existing code. The court concluded that the trial court also erred in denying the city’s plea on this issue. After discussing whether to remand or render judgment, the court noted that Starnes had a fair opportunity to allege facts demonstrating the trial court had jurisdiction to hear the case. Therefore, the court concluded that if the case were remanded, Starnes would not be able to show jurisdiction. The court rendered judgment dismissing Starnes’s claims against the city.

Breach of Contract:  City of Rio Grande City v. BFI Waste Services, LP, No. 04-15-00729-CV, 2016 WL 5112224 (Tex. App.—San Antonio Sept. 21, 2016) (mem. op.). This case involves an exclusive solid waste contract between BFI Waste Services of Texas (Allied) and the City of Rio Grande City, in which Allied sued the city, city employees and councilmembers, as well as another solid waste company (Grande).

The city notified Allied that it failed to perform certain obligations of the contract and demanded that Allied cure the breaches. In September 2015, the city alleged Allied failed to cure the breaches and terminated the contract. The city then entered into a contract with Grande for solid waste services.

Allied filed suit against the city alleging breach of contract claims and requesting a temporary injunction against the city prohibiting Allied from providing services. After removing the case to federal court, the federal court remanded the case back to state court, at which time Allied filed an amended petition. The trial court granted the temporary injunction and denied the city’s plea to the jurisdiction. The city appealed.

The city contended that governmental immunity extended to Grande, the solid waste company that the city entered into a contract with after notifying Allied of the termination. However, the court noted that governmental immunity does not extend to a private contractor hired on a governmental contract and exercising independent discretion for the actions allegedly causing the loss. Thus, the court concluded that Grande was not entitled to derivative immunity. The court also concluded that Allied alleged enough evidence to provide the trial court with jurisdiction over the claims for breach of contract, restraint of trade, abuse of office, tortious interference, violations of the contracts clause and due course of law clause of the Texas Constitution, and violations of the contracts clause and Fourteenth Amendment of the United States Constitution.

Next, the court looked at alleged Texas Open Meetings Act (TOMA) violations and provided more insight into the specificity required in an agenda posting. Allied alleged the city violated TOMA by failing to provide proper notice for actions taken during two meetings. During one of the meetings, the council met with their city attorney to discuss the contract. The city argued that Allied’s letters to the city constituted a “very real threat of litigation” supporting the need for discussion in a closed session. However, the court indicated that the record before the court did not contain evidence of “actual threat of litigation, when the threat was made, or its scope.” Furthermore, the court states that since the exception is an affirmative defense, the city had the burden to conclusively show the application of the exception. The court concluded the city did not meet the burden. Additionally, the court noted that the public interest in the solid waste service was elevated, and the city was required to provide full and adequate notice. Comparing the notice given against the action taken, the court stated that they could not conclude the evidence presented did not reasonably support the trial court’s conclusion.

Therefore, the court affirmed the trial court’s order in denying the city’s plea in part and reversed and rendered in part.

Takings:  City of Socorro v. Campos, No. 08-14-00295-CV, 2016 WL 4801600 (Tex. App.—El Paso Sept. 14, 2016).  This is a takings case where the Eighth Court of Appeals affirmed the trial court’s order denying the City of Socorro’s plea to the jurisdiction.

The Valley Ridge Subdivision was built between 2000 and 2004 in the flow of the Sparks Arroyo (an arroyo is a natural watercourse or gulch that is usually dry except after rains).  In 2006, the city experienced a historic rain event and there was significant damage to Valley Ridge.  The city built a ditch (in 2009) and two embankments (in 2013) to divert water away from Valley Ridge.  Subsequently, residents of the Patti Jo Neighborhood experienced flooding (the residents asserted the neighborhood had never flooded in the 30 years prior to the construction of the ditch and embankments).  Residents of the Patti Jo Neighborhood brought a takings claim against the city arguing that the city had redirected the flow of water toward their neighborhood and was substantially certain that that its actions would cause flooding and damage to their properties.  Additionally, they argued the city created an intentional nuisance actionable under the takings clause.  The city filed a plea to the jurisdiction which was denied by the trial court.  The city appealed.

The appellate court states that a takings claim consists of three elements:  (1) an intentional act by the government under its lawful authority; (2) resulting in a taking, damaging, or destruction of plaintiff’s property; (3) for public use.  The court concludes that, at least on the face of the petition, the residents sufficiently pled the intent element.  Rejecting the city’s argument that the allegation of a single flooding event was insufficient to support a takings claim, the court explains that recurrence goes only to the merits of a claim and is not a pleading requirement to invoke the trial court’s jurisdiction. The court also concludes that, taking all of the alleged facts together, the Patti Jo residents allege an invasion and unreasonable interference with their property as of 2013.  The court notes that an important difference between this case and Harris Cnty. Flood Control Dist. v. Kerr, No. 13–0303, 2016 WL 3418246 (Tex. June 17, 2016), is that Kerr arose after a trial court ruling on a combined motion for summary judgment and plea to the jurisdiction so the Texas Supreme Court was able to consider the evidence of motive, and not merely the pled allegations.  All the parties agree that the resolution of the nuisance claim turns on the resolution of the taking claims, and because the court holds the Patti Jo residents adequately pled their takings claim, the court affirms the trial court’s refusal to dismiss the nuisance claim.

In its conclusion, the court again reiterates that its decision means no more than that the Patti Jo residents have sufficiently pled claims which allow them now to try and prove those allegations stating that “[s]kepticism over whether they will be able to meet the substantial burden that they face is simply not a justification for denying them an opportunity to meet their evidentiary burden.”

Whistleblower:  Saldivar v. City of San Benito, No. 13-15-00387-CV (Tex. App—Corpus Christi  Sept. 29, 2016) (mem. op.).  This is a Texas Whistleblower Act (Act) case where the Thirteenth Court of Appeals affirmed the granting of the city’s summary judgment motion.

Saldivar was a communications specialist for the City of San Benito Police Department. Saldivar asserts various supervisors requested Saldivar to run criminal history checks on various city employees. She refused to do so and told her supervisors that criminal histories could only be conducted on police applicants and civilian staff that worked in the police department.  Saldivar was demoted and asserts her replacement conducted what she viewed as unauthorized criminal background checks. She notified the Texas Department of Public Safety. Saldivar was then subject to an internal investigation three months later, but the opinion did not address the grounds. As a result of the investigation, the city terminated Saldivar. Saldivar inquired as to the procedures to appeal her termination internally and was provided the grievance procedures. Two years later, Saldivar sued under the Act. The city filed a summary judgment motion asserting Saldivar failed to file suit within 90 days of the termination. The trial court granted the city’s motion and Saldivar appealed.

A public employee who seeks relief under the Act must sue not later than the 90th day after the date on which the alleged violation: (1) occurred; or (2) was discovered by the employee through reasonable diligence. Tex. Gov’t Code  § 554.005. The 90-day window to file suit will normally “start to run when the cause of action accrues—in retaliation actions, when the retaliatory action occurs.” This timeframe can be tolled if the employee is pursuing relief under the appropriate grievance system. Saldivar responded that the tolling provision is triggered as soon as she gives “reasonable notice” of her intent to follow the grievance procedure but, she need not do anything else. The court disagreed. She waited more than two years after her termination to bring suit. When Saldivar asked for the grievance procedures, the city provided them but also informed her that she could not grieve or appeal a termination by the city manager. Saldivar’s only recourse at that point was to file suit. A grievance system that does not apply to an employee’s adverse employment action cannot be used to toll.  As a result, the trial court properly granted summary judgment based on the statute of limitations.*

*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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