Recent Texas Cases of Interest to Cities

Note:  Included cases are from December 11, 2013 through January 10, 2014.

Whistleblower Act:  Ysleta Indep. Sch. Dist. v. Franco, No. 13-0072, 2013 WL 6509471 (Tex.  Dec. 13, 2013) (per curiam).  This case discusses the ongoing jurisprudence about who is an “appropriate law enforcement authority” under the Whistleblower Act and holds that a school district is not an appropriate law enforcement authority for purposes of the federal Asbestos Hazard Emergency Response  Act because the school district is only responsible for internal compliance.

Tort Claims Act: City of Smithville v. Watts, No. 03-13-00173-CV, 2013 WL 6665085 (Tex. App.—Austin Dec. 13, 2013) (mem. op.). This is an appeal arising from the denial of a plea to the jurisdiction in a car accident case under the Texas Tort Claims Act (TTCA). The Austin Court of Appeals reversed the denial and dismissed Watts’ claims. Members of the Smithville Volunteer Fire Department (VFD) were returning from a call when the driver lost control of the fire truck and collided with Watts’ vehicle.  Watts sued the city only asserting claims for a failure to properly maintain and repair the truck and tires and breach of express and implied warranties of merchantability. The city responded with a plea and evidence asserting: (1) the VFD is a separate entity from the city; and (2) there is no waiver of immunity under the TTCA. The city did concede that the city maintained the truck at the request of the VFD; however, the city received no repair request for the truck’s tires. Watts countered with evidence of nominal payments, arguing the volunteers were paid employees. The trial court denied the plea and the city appealed.   Going through a phrase-by-phrase analysis of Texas Civil Practice and Remedies Code Section 101.021(1)(A) (i.e. the operation or use of motor vehicle section), the court held that failure to properly inspect, maintain, or repair a truck does not satisfy the nexus requirement for the limited waiver under Section 101.021 of the TTCA.  Since the VFD is a separate entity and the operation of the vehicle was not done by a paid city employee (nominal payments do not count), there is no connection between the tire blowout that caused the collision and the negligence of a city employee. Watts also alleged misuse of tangible personal property in his briefing.  However, the court noted the pleadings only asserted negligent maintenance, and it was the VFD, not the city, who “used” the property.  The Austin Court of Appeals reversed the denial of the plea to the jurisdiction and dismissed all claims.*

Employment: Zuniga v. City of San Antonio, No. 04-13-00142-CV, 2014 WL 60929 (Tex. App.—San Antonio Jan. 8, 2014) (mem. op.). In this retaliation case, the San Antonio Court of Appeals affirmed summary judgment for the city.  Zuniga began working for the City of San Antonio’s utility (CPS Energy or city) as a custodian and worked his way up to the position of Journeyman Carpenter. In 2009, Zuniga made a complaint against the director regarding ethnic and racial discrimination.  However, an investigation revealed no policy violations. In one incident in 2010, Zuniga threw a roll of duct tape at a foreman and was placed on a corrective action plan. Several months later, a safety inspector photographed Zuniga violating safety policies by erecting a ladder in the bed of a CPS Energy truck in order to see onto a leaky roof. His corrective action plan was amended.  Within days, Zuniga filed a complaint with the Equal Employment Opportunity Commission and the Texas Workforce Commission asserting retaliation by CPS Energy.  That same month Zuniga was injured when a table saw cut off the tip of his thumb, which rendered him impaired and disabled. An investigation revealed the injury was preventable. Since he was on decision-making leave for safety violations already, he was terminated at this point.

Zuniga filed suit against the city under Section 451.001 of the Texas Labor Code alleging that he was discriminated against because he sustained and reported his on-the-job injury.  The city filed summary judgment motions, which the trial court granted.  Zuniga appealed the trial court’s decision.  The San Antonio Court of Appeals noted, without addressing whether Zuniga made out a prima facie case, that CPS Energy established a legitimate non-discriminatory reason for its actions.  Because they had articulated a legitimate, non-retaliatory reason for the adverse employment action, the burden shifted back to Zuniga to show that the articulated reasons were pretextual.  The court stated that Zuniga did not meet the burden to  raise a fact issue from which a jury could infer that CPS Energy terminated him because he filed an internal complaint.  As a result, the court concluded that the trial court correctly granted summary judgment in favor of the city.

Contractual Immunity: Lower Colorado River Auth. v. City of Boerne, No. 04-13-00108-CV, 2014 WL 51289  (Tex. App.—San  Antonio Jan. 8, 2014). In this declaratory judgment action, the Lower Colorado River Authority (LCRA) filed a lawsuit seeking a declaratory judgment confirming it had not breached a contract with the City of Boerne for the purchase of electricity.  In its Wholesale Power Agreement (WPA) with LCRA, the city agreed to purchase 100% of its total annual electric power and energy requirements.  The WPA contained a Uniform Rate Clause by which the LCRA agreed to lower the rate available to the city if LCRA supplied electricity to another similarly-situated customer at a lower rate than was set out in the City of Boerne’s rate schedule.  Over the years, negotiations between the two parties resulted in a new agreement set to expire in June 2016, with a notice of termination required by either party by June 2011.  The City of Boerne timely provided notice that it would allow the WPA to expire in June 2016. Additionally, the city sent a breach of contract notice stating LCRA violated the Uniform Rate Clause by permitting other customers a reduction not provided to the city.  The city also stated that if the breach was not cured within 30 days, the city would terminate the WPA.

LCRA sued seeking a declaration that it did not breach the agreement.  The city filed a plea to the jurisdiction, asserting governmental immunity in relation to both the declaratory judgment and breach of contract claims.  The trial court denied the city’s plea to the jurisdiction for the breach of contract claim, but granted the plea on the declaratory judgment claim.  LCRA appealed.  LCRA argued the trial court incorrectly granted the city’s plea because the City of Boerne was engaged in a proprietary function when it entered into the WPA and, therefore, waived immunity from suit under Chapter 271 of the Local Government Code. The San Antonio Court of Appeals noted its recent decision in City of San Antonio v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597 (Tex. App.San Antonio 2012, pet. denied), where the court held that the legislature did away with the proprietary-governmental distinction in contracts in 2005 when it amended Chapter 271 of the Texas Local Government Code.  The court stated that based on the plain language of Section 271.152 of the Local Government Code, the Texas Legislature has not expressly and unambiguously waived immunity from suit for LCRA’s declaratory judgment claim.  Therefore, the court affirmed the trial court’s decision.

Economic Development:  City of Leon Valley Econ. Dev. Corp. v. Little, No. 04-12-00142-CV, 2013 WL 6858135 (Tex. App.—San Antonio Dec. 31, 2013). This opinion withdrew a prior opinion of June 19, 2013, and substituted this opinion. In the original opinion, the Fourth Court of Appeals determined that the Leon Valley Economic Development Corporation (EDC) was not a political subdivision unit and was, therefore, not entitled to take an interlocutory appeal from the denial of a plea to the jurisdiction. In this new opinion, the original panel reversed itself and held an economic development corporation’s powers, privileges, and functions are specified by statute.  Therefore, an economic development corporation falls within the broad definition of governmental unit for purposes of an interlocutory appeal.  In this case, a property owner sued the EDC for breach of contract from a failed development project. The EDC filed a plea asserting governmental immunity, which was denied, and the EDC appealed. This substituted opinion holds the EDC is not inherently protected by the common-law doctrine of governmental immunity.  However, Texas Local Government Code Section 505.106(b) statutorily invoked the common-law doctrine of governmental immunity to protect an economic development corporation for limited purposes (i.e. claims brought under Texas Tort Claims Act).  Non-tort claims are also precluded under Subsection (a), but only the immunity from liability (which is not jurisdictional). The court held that subsection (a) makes the EDC immune from liability, but since the issue was brought before them on a plea to the jurisdiction, the plea was properly denied as it is not a jurisdictional defense.*

Employment: Pena v. County of Starr, No. 04-12-00462-CV, 2013 WL 6672476 (Tex. App.—San Antonio Dec. 18, 2013) (mem. op.). This is an appeal from a grant of a summary judgment in an employment case involving disability, discrimination, retaliation, Family Medical Leave Act (FMLA), and worker’s compensation claims.  The San Antonio Court of Appeals affirmed in part and reversed in part.  Pena was hired as an animal control officer by Starr County, and he was injured on the job. While undergoing treatment, doctors discovered he had a life-threatening condition and would need to miss additional work to undergo surgery. Complications arose, and while hospitalized the county terminated his position. At the time of termination, Pena was 58 years old.  Pena filed a lawsuit against the county alleging retaliation and discrimination based on age and disability and amended his petition to add claims for violations of the FMLA and Americans with Disability Act (ADA).  The county moved for summary judgment, which the trial court granted.  Pena appealed.  Starr County argued Pena did not file a request for FMLA leave before his surgery.  However, the San Antonio Court of Appeals pointed out that filing a request is required for “foreseeable” leave. Pena’s on-the-job injury should only have kept him away from work for a week.  Unforeseeable complications during the surgery kept him away from work much longer. Pena, through his daughter, informed the county as soon as he felt practical under the circumstances.

Because Pena amended his petition to add an FMLA claim, the county raised the statute of limitations defense under the FMLA.  The court concluded that Pena’s original claims were filed within the limitations period, and because the FMLA claim asserted in his amended petition related to the same occurrence as other allegations in the petition, the county failed to establish that Pena’s FMLA claim was barred by limitations.  Thus, the trial court erred in granting summary judgment on Pena’s claim for violations of the FMLA.  As to the age discrimination claim, the court concluded that Pena did not point to any evidence he was replaced by a younger employee or that there was any kind of connection to his age.  Instead, testimony established he believed he was terminated because of his injury and condition.  The court’s grant of summary judgment was proper for the age discrimination claims.  The court noted, in relation to Pena’s disability claim, that the county may have established the back injury was not a disability; however, the life-threatening cardio disease doctors found could have been.  The county did not address this issue, so summary judgment on the disability claim was improper. Finally, the court agreed with the county that the trial court lacked subject matter jurisdiction for the worker’s compensation retaliation claim since sovereign immunity has not been waived for such claims.

Road Dedication:  Chaney v. Camacho, No. 04-12-00358-CV, 2013 WL 6533123 (Tex. App.—San Antonio Dec. 11, 2013) (mem. op.)  This is a private versus public road dedication case.  A jury determined the road at issue was private.  The San Antonio Court of Appeals affirmed. Chaney owned property on one side of the road, and the Camacho’s owned the property on the other side of the road. However, a survey revealed that the disputed road was within the Camacho’s property. In the underlying lawsuit, Chaney sued Simon, Felipe, and Medina County asking for a declaratory judgment adjudicating the public status of the disputed road. The Camachos claim the road as their private driveway, and counter-sued Chaney and Medina County for a declaratory judgment adjudicating the private status of the disputed road. The Camachos asserted the property documents established the roadway was merely an easement across their land. The jury ruled for the Camachos.  The county and Chaney appealed. The court began with an explanation of what a “public dedication” is and how it comes about.  The court analyzed whether the evidence demonstrated an express dedication. The language in the dedication of plat noted the public had an easement for use of the roadway (with a reversionary clause for profit). It also noted that the trustees reserved the right to close off from the public or to abandon the roadway to the public. The language had contradictory provisions, and it was the jury’s duty to determine the dedicating party’s intent. The jury determined, and the evidence supported a finding that, the dedication was for an easement only, not for the full dedication of the roadway. The court then analyzed an implied dedication standard, and ruled the evidence supported the jury finding that no donative intent was present or acceptance by the county. The jury determinations, including the award of attorney’s fees, were affirmed.*

Premises Liability/Negligence:  City of El Paso v. Collins, No. 08-12-00243-CV, 2013 WL 6665090 (Tex. App.—El Paso Dec. 18, 2013).  This is an interlocutory appeal arising from the denial of a plea to the jurisdiction in a premises liability/negligence case involving injuries to a minor at a city swimming pool. The El Paso Court of Appeals affirmed in part, reversed and remanded in part, and reversed and rendered in part. A six-year-old girl was at the city swimming pool. She did not know how to swim, but went unsupervised and went under water for a long period of time. She suffered substantial injuries.  The parents sued the daycare (which took her to the pool and failed to supervise) and the city. The daycare designated the city as a responsible third-party. The court first held that to the extent the plaintiff’s pleadings seek to impose liability solely on the designation, no waiver of immunity exists. The city also argued that the pleadings did not satisfy Texas Rules of Civil Procedure Section 33.004 (designation of responsible third-party), but the court held that such a challenge could not be brought in an interlocutory appeal. As to the premise defect claims (alleging faulty filtration system causing cloudy water and defective drain which could trap a child), the Recreational Use Statute limits a landowner’s liability when the plaintiff engages in recreation on the premises. Plaintiffs failed to properly allege the city was aware of any extreme risk a child could be trapped in the defective drain or that cloudy water prevented others from seeing that a child had been trapped. As a result, the city’s immunity from suit is not waived for the premises liability claim. Further, the pleadings do not factually support proximate cause. But both defects are ones the plaintiffs should be allowed to try and amend. The court then noted that a cause of action for premises liability is different from one for negligent activity, however, the plaintiffs pleadings do not sufficiently allege such a claim. They did properly allege the negligent use of personal property.*

Employment:  Moreno v. Texas Dep’t of Transp., No. 08-12-00078-CV, 2013 WL 6668714 (Tex. App.—El Paso Dec. 18, 2013). In this wrongful-termination action, Moreno appeals the trial court’s directed take-nothing judgment in favor of the Texas Department of Transportation (TxDOT).  The Eighth Court of Appeals affirmed. Moreno worked for TxDOT for 15 years. When his longtime supervisor retired, his successor was critical of Moreno. Additionally, employees on a new project accused Moreno of being abusive, which an internal audit confirmed. Moreno was terminated and he brought suit alleging age discrimination (he was 49 years old, and was replaced by a 32 year old), national origin discrimination, and due process. The court first address the exclusion of some evidence of different national origins who were not disciplined for more egregious conduct, but the court held the submission was not made within the rules of evidence or preserved. The directed verdict was proper since Moreno did not offer any evidence showing TxDOT management was motivated because of his age.  Further he did not present evidence to support his argument that his replacement, while Hispanic, was not of Mexican ancestry. Finally, Moreno did not have a property right in his at-will employment at TxDOT so no due process claim is present. As a result, the directed verdict in favor of TxDOT was affirmed.*

Employment: Wilsher v. City of Abilene, No. 11-11-00355-CV, 2013 WL 6924004 (Tex. App.—Eastland Dec. 31, 2013) (mem. op.). This is an age discrimination case brought by former city employees. The trial court dismissed all claims, but the Eastland Court of Appeals reversed and remanded for trial.

Plaintiffs allege that the city forced them to retire on the basis of their age under what the city identified as a voluntary retirement incentive program. The city first filed a plea to the jurisdiction asserting several of the plaintiffs did not exhaust their administrative remedies because they did not file a complaint with the Texas Workforce Commission. The city filed a no-evidence summary judgment as to all other plaintiffs asserting no evidence of discharge, replacement by younger employee, or pretext. The trial court granted the plea and motion for summary judgment, dismissing all claims. Plaintiffs appealed.

The court first noted that the trial court entered findings of fact and conclusions of law (“FFCL”), which have no place in a summary judgment proceeding. If a trial court makes factual findings, this indicates that a question of fact was present and that summary judgment was improper.  It noted that normally a court should not consider the FFCL but here they conflict with the general nature of the orders granting summary judgment. Therefore it reversed the summary judgment orders. As to the plea, the single-filing rule allows a plaintiff who has not filed a charge with the Equal Employment Opportunity Commission (EEOC) to piggyback on an EEOC complaint that has been filed by another person who is similarly situated. The non-filing plaintiffs were similarly situated so they can rely on the filings of the other plaintiffs and the plea should have been denied. The orders are all reversed and the matter remanded for trial.

This holding should be considered a cautionary note when a city files a plea and motion for summary judgment, especially when the plea may require an evidentiary hearing. FFCL are appropriate after an evidentiary hearing on the plea, but apparently can have adverse consequences to a summary judgment motion. A city litigator should make sure any orders signed in such situations clearly delineate what is being ruled upon, what was considered for each, what was not considered, and that there is no inconsistency in the orders.*

Takings: City of Corpus Christi v. Aguirre Props., Inc., No. 13-13-00314-CV, 2013 WL 6730052 (Tex. App.—Corpus Christi Dec. 19, 2013) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a negligence, takings, and nuisance case involving three instances of flooding. The Thirteenth Court of Appeals affirmed in part and reversed in part.

The property owners alleged in the petition that the city uncovered a damaged sewer line and initiated repairs with motor-driven equipment. A few weeks later the city ruptured a parallel line about ten feet away from the property.  As a result, the property was flooded through the lines as well as above ground flooding.  The city then “jetted” the line which the plaintiff alleges damaged the line further, exacerbating the flooding.

The court first noted that the city failed to provide any evidence to counter the pleading allegations so the court based its determination on the pleadings alone. The pleadings allege the use of motor driven equipment which ruptured the lines and proximately caused the damages for the second flooding event. As a result, the plaintiffs met the “nexus” requirement between the use of motor driven equipment and the damage. However, for the first and third flooding events, the use of equipment to merely attempt a repair is not a proper nexus. Since a pleading defect such as this could be cured, the plaintiff should be given the ability to replead and properly allege the nexus.

With respect to the taking’s claims, the court held the accidental occurrences of the three flooding events is not an “intentional” taking.  However, to the extent the city blocked access to the property for several months, created dirt banks and damaged the property while repairing the lines by tearing up the blacktop and replacing it with only dirt, such occurrences could be viewed as intentional and for public use so those claims were permitted to go forward. The nuisance claim as it related to the second flooding event was also permitted to go forward and the plaintiff should be permitted to replead with respect to the other two.*

*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