Note: Included cases are from June 5, 2014 through July 10, 2014.
Governmental Immunity-Contract: Lubbock Cnty. Water Control & Improvement Dist. v. Church & Akin, L.L.C., No. 12-1039, 2014 WL 2994645 (Tex. July 3, 2014). The issue in this case was whether a lease requiring the lessee to use the property as a marina constituted a contract for “goods or services” under Chapter 271 of the Local Government Code, allowing a suit under the contract. Church & Akin (the lessee) sued the district after the district terminated the lease between the district and Church & Akin before the lease term was up. The district argued that it was entitled to immunity from suit because the lease was not a contract under Chapter 271 of the Local Government Code which waives immunity for government contracts for goods or services. Church & Akin made three arguments as to why the lease fell under Chapter 271 of the Local Government Code: (1) the lease required it to provide marina services; (2) a catering ticket requirement within the lease required it to operate the marina; and (3) the for-profit based rent.
First, the Supreme Court examined whether requiring that a lessee use property solely as a marina made the lease a contract for marina services. The court held that the language of the lease did not require the lessee to operate the marina but only required that the lessee not use the property for anything else. Also, any marina services that the lessee provided were given to constituents, not to the entity itself. The court noted that the damages under a Chapter 271 contract are for the goods or services provided by the private party and that this contract was for a leasehold interest and the district had no agreement to pay the lessee any amount. Next, the court analyzed whether the catering tickets mentioned in the agreement required the lessee to provide marina services. The court held that the catering tickets were not a service to benefit the district but were designed to benefit the lessee and so did not require the lessee to provide any goods and services. Finally, the court examined whether for-profit based rent, an agreement to pay the district 5% of its profits, created a contract for services to the district. The court held that, while the agreement did require the payment based on marina services, the agreement did not require that the lessee provide any services or have any profits. The court held that the contract did not require the provision of services under state law and granted the district’s plea to the jurisdiction.
Tort Claims Act: Alexander v. Walker, No. 11-0606, 2014 WL 2535949 (Tex. June 6, 2014) (per curiam). In this case, Walker sued two officers individually for actions taken during two separate incidents while the officers were on duty as Harris County officers. She also sued the county in federal court for the same incidents. The officers moved for summary judgment under Section 101.106 of the Texas Civil Practices and Remedies Code, the election of remedies provision of the Texas Tort Claims Act, because they were acting in their official capacities when the incidents occurred. Under Section 101.106(f), a suit is considered to have been brought against the employee in his or her official capacity if the actions in question were taken while the individual was in the scope of their employment and the governmental entity could have been sued under the Tort Claims Act. The section requires that the action against the employee be dismissed and the governmental entity put in their place as defendants if requested by the employee. Section 101.106 also bars a suit against a government employee in their individual capacity if suit has been filed against the governmental entity based on the actions of the employee. In this case, the court held that the action could have been brought against the governmental entity and therefore was not brought against the employees in their individual capacity. The court held that the court of appeals should have dismissed the case against the employees and the court rendered judgment in favor of the employees.
Whistleblower: University of Houston v. Casey, No. 01-13-00684-CV (Tex. App.—Houston [1st Dist.], July 3, 2014). John Casey, a professor and chairman of a department at the university, sued the university after being removed from his chairmanship. Professor Casey had been told he would be removed from his chairmanship in May 2012 because of performance issues. In late 2011, Casey was concerned that another professor had violated state law and informed various university staff members including the university’s general counsel. These individuals reported back to Casey about the legality of the professor’s actions and Casey did not pursue the issue further. In late February 2012, three months after the report, Casey was removed from his chairmanship. Casey sued the university under the Whistleblower Act. The university argued that Casey failed to allege sufficient evidence that he reported the activity to an appropriate law enforcement authority. Chapter 554 of the Texas Government Code (the Whistleblower Act) requires that the law enforcement authority to which the report is made be able to enforce and investigate criminal violations and be more than government personnel who deal with internal compliance within the entity itself. After reviewing Casey’s evidence and his argument about subjective belief, the court of appeals held that Casey failed to allege sufficient evidence that he believed he was reporting the alleged criminal activity to an appropriate law enforcement authority and the court granted the university’s plea to the jurisdiction.
Governmental Immunity: City of Houston v. Downstream Envtl., L.L.C., No. 01–12–01091–CV, 2014 WL 2619072 (Tex. App.—Houston [1st Dist.] June 12, 2014) (on rehearing). In the original opinion, the court of appeals held that the wastewater services between the city and Downstream Environmental, L.L.C. (Environmental) were a governmental function for which the city retained immunity for damages, but not for constitutional claims. On rehearing, the original disposition was kept in place. The summary in the April TCAA newsletter accurately reflects both the original opinion and the opinion on rehearing.
Nuisance: Azadpour v. City of Grapevine, No. 02–13–00323–CV, 2014 WL 2566024 (Tex. App.—Fort Worth June 5, 2014) (mem. op.). Azadpour brought this civil proceeding to determine his rights under an ordinance related to weeds and high grass. The first issue is whether the ordinance is a penal ordinance which can have a limited review in a civil proceeding. The court of appeals determined that the ordinance is a penal ordinance because: (1) its purpose is to protect the public from the health and safety issues related to high grass; (2) the ordinance has a fine; and (3) it is a misdemeanor if violated. Review of a criminal ordinance in civil cases is limited to whether the ordinance is unconstitutional and whether the individual’s rights will be irreparably harmed if the ordinance is not reviewed in a civil proceeding. In this case, Azadpour failed to allege sufficient facts that he would be irreparably harmed by the enforcement of this ordinance. Azadpour also argued that the code enforcement official should be prohibited from “trespassing” on the plaintiff’s property to place notices of violation on his door because the ordinance allows notice by mail. The court interpreted this argument as a request to enjoin the official from acting in an ultra vires manner by entering Azadpour’s property. The court allowed this cause of action to proceed. Finally, Azadpour brought a claim under the Public Information Act against the city, but the court held that it had no jurisdiction over this claim because the city had already requested a letter ruling from the attorney general.
Wastewater Permit: Texas Comm’n on Envtl. Quality v. Denbury Onshore, L.L.C., No. 03-11-00891-CV, 2014 WL 3055912 (Tex. App.—Austin July 3, 2014). This is a suit involving the granting of a permit by the Texas Commission on Environmental Quality (TCEQ) for wastewater disposal. This case involves numerous administrative and procedural matters; however, the main matter of interest to cities is the analysis of when a notice provision is considered jurisdictional. TexCom Gulf Disposal, L.L.C., submitted an application for underground injection control well permits to the TCEQ to develop a commercial non-hazardous wastewater disposal facility. As part of the application, it sought to use and construct various wells for waste. TexCom asserted it owned the mineral rights, but appellee Sabine was the actual owner. Those rights were later managed by Denbury. During a remand hearing, Denbury filed a plea to the jurisdiction asserting the State Office of Administrative Hearings (SOAH) lacked jurisdiction because notice was not sent to Sabine. The SOAH administrative judge denied the plea and ultimately the TCEQ issued TexCom’s permit. Sabine sued, alleging no notice of the application was properly given. The TCEQ filed a plea asserting the executive rights holder was aware of the hearings and did not participate, so Sabine could not bring suit. The trial court held the notice provision was jurisdictional and denied the TCEQ’s plea. The court started with a presumption that notice provisions are not jurisdictional in SOAH hearings. After an analysis of the language of both the administrative regulations and the statute, the court concluded Sabine did not establish the statute overcame that presumption and therefore the administrative judge properly denied Sabine’s plea. The court then examined Sabine’s failure to participate in the hearing even though she had actual notice through the executive rights holder. Noting she did not participate, as well as the fact she did not ask the TCEQ to revoke the permit after discovering the permit was issued in accordance with administrative regulations, the court concluded she failed to exhaust her administrative remedies. As a result, the trial court should have granted the plea.*
Public Information Act: Adkisson v. Abbott, No. 03–12–00535–CV, 2014 WL 2708424 (Tex. App.—Austin June 13, 2014). This is a Public Information Act (PIA) case where Bexar County Commissioner Tommy Adkisson sought to withhold county emails sent to him on his personal email account. [This PIA request and suit was brought prior to the 2013 amendments to the PIA which make public all emails regarding public business, regardless of whether they are on personal or entity email accounts.]
Hearst Newspapers, L.L.C., sought correspondence from Adkisson’s personal e-mail accounts related to his official capacity as a county commissioner or as chairman of the San Antonio-Bexar County Metropolitan Planning Organization (MPO), or both. The attorney general opined the emails were public and must be released. Adkisson filed suit in district court to withhold the emails, but the trial court granted the newspaper’s and attorney general’s summary judgment motions holding the emails were public. Adkisson appealed.
Adkisson argued the emails in his personal e-mail accounts, regardless of their content, are not public information as defined by the PIA because they were not collected, assembled, or maintained by the governmental body or prepared on behalf of the governmental body and the governmental body did not have a right of access to the correspondence [old statutory definition prior to amendment]. Adkisson further argued that the county could not search his personal email accounts as he had an expectation of privacy and a constitutional right not to be subject to a search without probable cause. The court went through the language of the PIA and determined the “official-capacity emails” were emails created in Adkisson’s role with the county and MPO and the emails were part of his transactions for the entities. The court then examined the records management laws and county retention policies, noting that no employee has a right of privacy in any public document. Further, the county policy specifically stated that all documents created or received by the office or any of its officers or employees in the transaction of public business were to be retained as public records.
Most significantly, though, the court held that the commissioner, as an elected officer, “is the officer for public information and the custodian, as defined by Section 201.003, Local Government Code, of the information created or received by that county officer’s office.” This provision applies to county commissioners but not to other forms of governmental officials like city council members. However, as a county commissioner, Adkisson is statutorily charged with the duty of acting for the county as the custodian of records for the county for his precinct. “In other words, as Commissioner, he is responsible for maintaining public information created or received by him or by his employees or his office—no matter where that information is physically created or received—for the County.” As a result, the emails in his personal account are owned by the county under his statutory obligation and subject to the PIA. The court was careful to qualify that the emails were owned by the county only under these specific circumstances. The court then examined Adkisson’s privacy interests but dismissed the arguments stating the commissioner never articulated the scope of privacy interest at issue. When elected, he relinquished some, but not all, of his privacy interests, at least with regards to his work as a commissioner. Finally, the court of appeals concluded that the trial court did not abuse its discretion in awarding attorney’s fees.*
Ripeness: Jabary v. City of Allen, No. 05-12-01608-CV, 2014 WL 3051315 (Tex. App.—Dallas July 3, 2014). This case involves a dispute over a building permit. Jabary applied for a commercial certificate of occupancy for a restaurant and later a building permit and certificate of occupancy for a hookah bar in the City of Allen. Jabary was issued the certificate of occupancy for the building for use as a restaurant. City officials discovered, though, that the business was primarily a hookah bar, not a restaurant. A building official issued a notice of violation to Jabary, which effectively revoked the certificate of occupancy. Jabary then sued the city in both federal and state courts, alleging both private and public takings. The City of Allen filed a motion for summary judgment stating that because Jabary had not exhausted his administrative remedies, his claim was not ripe. The trial court granted summary judgment in favor of the city, and Jabary appealed.
The court stated that the evidence established that Jabary was operating a hookah bar, instead of a restaurant. He received a notice of the revocation of his certificate of occupancy but failed to file an appeal with the board of adjustment. In his response to the city’s summary judgment motion in the trial court, Jabary failed to offer any evidence or argument as to why an appeal to the board of adjustment would have been futile. The court concluded that the city established that Jabary failed to exhaust his administrative remedies. Additionally, the court stated that the city municipal code provided a statutory remedy that was easily discoverable from public sources, so the city was under no duty to invite Jabary to appeal to the board of adjustment. Therefore, the court of appeals affirmed the trial court’s grant of summary judgment.
Tort Claims Act: Boatman v. City of Garland, No. 05-13-01232-CV, 2014 WL 2628193 (Tex. App.—Dallas June 12, 2014). This is an appeal from the grant of a plea to the jurisdiction in a Texas Tort Claims Act (TTCA) case. The Dallas Court of Appeals affirmed the dismissal of all claims. Boatman picked up a load of recycling carts from the city’s transfer station for transport to Houston. Upon arriving and opening the back of the truck, the contents fell on him. He alleged the city’s employees loaded the contents and therefore negligently used tangible personal property resulting in his injuries. The city filed a plea to the jurisdiction which the trial court granted and Boatman appealed. The court first analyzed the term “use” of personal property under the TTCA and held that a governmental unit does not use property by merely allowing someone else to use it. Additionally, it is the use which must cause the injury, not merely the existence of personal property. Once the contents were loaded into the truck and Boatman drove to Houston, the city was no longer “using” the property. Further, the injuries he sustained were “distant geographically, temporally, and causally” from the loading of the contents. As a result, the trial court properly determined the city retained immunity. The court then analyzed whether Boatman should have been given the opportunity to appeal and held that the pleadings negated the existence of jurisdiction and remanding the case to amend would serve no legitimate purpose since the defects could not be cured.*
Surface/Mineral Rights: City of Lubbock v. Coyote Lake Ranch, L.L.C., No. 07-14-00006-CV, 2014 WL 2810419 (Tex. App.—Amarillo June 17, 2014) (mem. op.). This is an interlocutory appeal from the issuance of a temporary injunction which prohibited the City of Lubbock from taking action in furtherance of its proposed well field plan. The Amarillo Court of Appeals reversed the injunction.
The city developed a well field plan for development of property owned by Coyote Lake Ranch, L.L.C. (Coyote). Coyote sued and the trial court entered an injunction prohibiting the city from proceeding with any test hole drilling or water well drilling, erecting power lines, or mowing without first consulting Coyote. The city appealed. The court first determined the record does not support any other legal theory upon which the trial court’s order could be upheld requiring consulting Coyote on potential impacts to the surface except under the accommodation doctrine. The doctrine is based on the concept of the due regard with which the dominant mineral estate owner must exercise his rights to use the surface as those rights relate to the servient surface estate owner’s rights. The principal behind this doctrine is “to balance the rights of surface and mineral owners to use their respective estates while recognizing and respecting the dominant nature of the mineral estate.” After an analysis of the different relationships, the court ultimately held the doctrine should not apply to the relationship between the owners of the severed groundwater estate and the surface estate in such a way as to alter the manner in which the groundwater estate owner may use the surface. As a result, the trial court abused its discretion in granting the injunction.*
Zoning: Anthony v. Board of Adjustment of City of Stephenville, No. 11-12-00159-CV, 2014 WL 3398139 (Tex. App.—Eastland July 10, 2014) (mem. op.). This is an appeal from a board of adjustment’s denial of a permit to operate a convenience store. Anthony wanted to open a convenience store with two enclosed drive-through lanes but such a store was not a classified use. The city placed a proposed zoning amendment on the planning and zoning commission (P&Z) agenda to clarify the use and allow the construction. The P&Z did not approve the amendment. The city council essentially kept referring the matter back to the P&Z every time it was presented. Anthony did not appeal this back and forth. However, he attempted to get building permits on two separate occasions listing the business as “Cowboy’s Convenience Store.” The permits were denied each time. The city attorney noted that the use was not permitted and the issue was already ruled upon. Finally, Anthony appealed the denial of the second building permit to the board of adjustment (BOA) which denied the appeal. Anthony appealed to district court. The BOA filed a plea to the jurisdiction and summary judgment. The trial court granted the plea and denied the motion for summary judgment. Anthony appealed.
The dispositive issue addressed by the court is whether the second building permit was materially different than the first since Anthony never appealed the first denial. Anthony argued the second application was different because, even though the name was the same (minus the “s” in Cowboys), it (1) listed the business as “retail store other than listed” and (2) the drive through lanes in the first application were listed as “covered parking” in the second. The court determined the distinctions listed by Anthony are merely the relabeling of the same information in an attempt to resubmit the same application. The footprint is the same, the store structure is substantially similar, and the covered parking could easily act as a drive through. The second application did not materially change the nature of the case under the zoning ordinance. Since Anthony did not appeal the denial of the first application, he failed to exhaust his administrative remedies and the trial court lacked jurisdiction over the appeal.*
Contractual Immunity: Wasson Interests, Ltd. v. City of Jacksonville, No. 12-13-00262-CV, 2014 WL 3368413 (Tex. App.—Tyler July 9, 2014) (mem.op.). In this case the Tyler Court of Appeals joins the San Antonio Court of Appeals in a split among the intermediate appellate courts regarding whether the proprietary-governmental dichotomy exists in contracts. The Tyler Court of Appeals agrees no such dichotomy exists and immunity is the default.
Wasson was the successor in interest of a 99 year lease of property specified for residential use. Wasson began leasing the property for one week at a time. The city sent an eviction notice holding the weekly tenancy constituted a commercial use of the property in violation of the lease. After failed attempts at clarifying through an amended lease, Wasson sued the city for breach of contract. The city filed a traditional and no-evidence summary judgment which the trial court granted and Wasson appealed.
Wasson cited the Austin Court of Appeals arguing that the proprietary distinction exists in contracts and that the lease was a proprietary function of the city. The Tyler Court of Appeals analyzed the split among the courts and agreed with the San Antonio Court of Appeals, holding no proprietary distinction exists in contracts. And since property leases are not contracts for which the waiver found in Section 271.152 of the Texas Local Government Code applies, the city maintains immunity in this case.*
Tort Claims Act: La Joya Indep. Sch. Dist. v. Villarreal, No. 13-13-00325-CV, 2014 WL 3050484 (Tex. App.—Corpus Christi July 3, 2014) (mem. op.). This is a breach of contract and Texas Tort Claims Act case. In 2005, the school district and American Administrative Group, Inc. (AAG) entered into a contract where AAG would be the third-party administrator of the district’s employee health plan and Villarreal was the broker entitled to commission for setting up the deal. In 2012, the individual defendants ran for the school board and openly expressed their intent to award contracts exclusively to campaign supporters. After winning the election, the district replaced Villarreal with Trevino, an acknowledged campaign supporter. Villarreal brought suit against the district for breach of contract and sued the individual defendants for tortious interference with a contract and civil conspiracy. The defendants filed a plea to the jurisdiction which the trial court denied and the defendants appealed.
The court first held the school district and AAG (later renamed HBS) are the only contracting parties, so Villarreal is not a party to the contract. The court noted that Chapter 271 of the Texas Local Government Code can encompass claims brought by third-party beneficiaries, and since Villarreal is named as the broker entitled to commission within the contract, she qualifies and has the ability to sue. The court also noted that the failure to plead recoverable damages is not a jurisdictional defect.
The individual defendants asserted they were immune under Section 22.0511 of the Texas Education Code, which provides immunity “for any act that is incident to or within the scope of duties” of the individual defendants’ professional positions. However, the court agreed with Villarreal’s claims that the individual defendants, aware of Villarreal’s existing contract rights, planned and decided to target her contract rights in satisfaction of an accepted bribe—conduct that would not fall within or incident to the individual defendants’ statutory duties. The court also noted Villarreal was not required to exhaust statutory administrative remedies because the tort claims were against the individuals, not the school district, and not for acts within their official duties. As a result, the trial court properly denied the plea.*
Governmental Immunity: Ochoa v. City of Palmview, No. 13-14-00021-CV (Tex. App.—Corpus Christi June 19, 2014) (mem. op.). This is an interlocutory appeal from the granting of a plea to the jurisdiction in an employment context. Ochoa was an assistant police chief with the city. He was also an incumbent on the school board. When a parent of a city council member ran for Ochoa’s school board position, he alleges he was pressured to resign from the race or suffer a demotion. Ochoa lost the school board race and was immediately under investigation for misuse of city property, causing him to resign. Ochoa filed suit under a variety of causes of action, but the trial court granted the city’s plea. Ochoa appealed.
The court first determined the facts, as alleged, do not support any claim for violations of the Texas Open Meetings Act (TOMA). While Ochoa may suspect a meeting occurred, he had no evidence a meeting occurred in violation of TOMA. Further he was not challenging an ordinance but seeking a declaration of his rights that TOMA was violated. The city maintains immunity for such declaratory judgment actions. Next Ochoa did not properly allege an ultra vires claim as he was seeking affirmative, retrospective relief through reinstatement. Further, he sued the council in their individual, not official, capacities. The city retains sovereign immunity for Ochoa’s Sabine Pilot claims. Ochoa did not allege a proper breach of contract or promissory estoppel claim. Finally, all of his claims have incurable defects and therefore cannot be cured by repleading. The trial court proper granted the plea.*
Tort Claims Act: Collins v. City of Houston, No.14-13-00533-CV, 2014 WL 3051231 (Tex. App.—Houston [14th Dist.] July 3, 2014) (mem. op.). In this case the court of appeals reversed the granting of the city’s plea to the jurisdiction in an emergency vehicle Tort Claims Act case. Brown, an officer with the city’s police department, responded to a call of a reckless motorcyclist (not Collins) and proceeded to respond. While en route, Collins’ vehicle moved in front of Brown, who proceeded to pass Collins. Brown collided with Collins when she moved back into the left lane and abruptly stopped. Brown was suspended for three days in connection with the accident. Collins sued the city but the city filed a plea to the jurisdiction noting Brown was responding to an emergency situation and was also entitled to official immunity. The trial court granted the plea and Collins appealed.
The court first analyzed Brown’s official immunity claim. While Brown was not sued, if he is entitled to official immunity, the city is not liable either since it is only liable if the employee is liable. The court noted that operation of a vehicle is discretionary in some special situations (such as a high-speed chase) but absent such special circumstances, an officer performs a ministerial act by simply driving a car in a non-emergency situation. In this case, Brown was not required to respond but evaluated the situation and concluded he was closer to the area. The court agreed this was a discretionary function. However, the city was required to demonstrate that a reasonably prudent officer could conclude that the need to respond to a speeding motorcyclist driving recklessly outweighed the risk to the public caused by the officer’s action in exceeding the speed limit while responding. The court held the testimony offered by the city to establish good faith did not analyze or examine this balance in Brown’s specific fact situation, so the city failed to establish for plea purposes, that Brown acted in good faith. Brown may be able to do so once the record is developed, but not on the present record.
With regards to the emergency response situation, the court held that while the city presented evidence its officers consider responding to a call for assistance for evading arrest an emergency, the evidence did not show the motorcyclist was evading arrest, only driving recklessly. And since the city failed to present evidence that responding to a reckless driver is an emergency, it failed to establish its entitlement to immunity. [Comment: this seems to be a hair-line thin distinction, especially given the court’s factual explanation. But it is a lesson for litigators to fully connect affidavits to the specific fact situation because you never know when a court will draw such a thin distinction.]*
Tort Claims Act: Quested v. City of Houston, No. 14-13-00516–CV, 2014 WL 2615921 (Tex. App.—Houston [14th Dist.] June 12, 2014). This case deals with the applicability of the “emergency exception” to the Tort Claims Act in Civil Practice and Remedies Code Section 101.055(2). Nancy Quested brought a negligence action against the City of Houston following an automobile accident with a police officer. Officer Erik Holland was driving his personal vehicle at a high rate of speed in responding to a “hostage stand-off situation” when he rear-ended Quested. The trial court denied Qusted’s motion to continue for jurisdictional discovery and granted the city’s plea to the jurisdiction.
In her first issue on appeal, Quested argued that the trial court abused its discretion in denying her motion to continue the hearing to conduct jurisdictional discovery on disputed fact questions regarding whether Officer Holland was “on duty, on a police emergency or driving recklessly and in compliance with police department procedures.” The court reviewed the evidence and determined that it is undisputed that Officer Holland consistently stated that he was on his way to an emergency hostage standoff situation at the time of the collision, and therefore none of the factual issues on which Quested sought discovery were material in determining the city’s plea to the jurisdiction.
Quested’s second issue on appeal was that the trial court abused its discretion in granting the city’s plea to the jurisdiction. The city argued that it was entitled to immunity under the “emergency exception” to the Tort Claims Act in Texas Civil Practice and Remedies Code Section 101.055(2). Quested had the burden of proof to establish that the emergency exception did not apply. The court concluded that Quested presented no evidence that Officer Holland was not responding to an emergency call. Further, Quested presented no evidence that Holland was driving with conscious indifference or reckless disregard for safety, specifically because the record showed that Officer Holland swerved and “almost drove off the bridge” to avoid colliding with Quested’s vehicle. The court determined that the evidence presented to the trial court conclusively established the applicability of the emergency exception to the Tort Claims Act.
(On August 7, the Court issued withdrew its previous opinion and issued a substitute opinion. The substitute opinion only contains very minor changes, and still reaches the same conclusion. It can be found at 2014 WL 3866533.)
*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.