Note: Included cases are from October 11, 2013 through November 10, 2013.
Eminent Domain: City of Laredo v. Montano, No. 12-0274, 2013 WL 5763179 (Tex. Oct. 25, 2013). This is an eminent domain case involving the appeal of a jury determination that the city’s condemnation of certain property was not for a “public use” and an award for attorney’s fees and expenses to the property. This case is primarily about the attorney’s fee portion of the award. The city appealed the award, complaining about deficiencies in the property owner’s attorney’s fees proof. The Texas Supreme Court determined deficiencies existed, reversed the award, and remanded.
In December 2004, the city decided it needed the Montano’s property to widen a street and build a pedestrian plaza. The Montanos alleged no public purpose existed, but rather was merely intended to benefit El Portal Center, a private entity operating a nearby shopping center. The case was tried to a jury who agreed with the Montanos that the city had no authorized public use. The trial court rendered judgment on the jury verdict, awarding the Montanos $446,000 in attorney’s fees. The trial court awarded the fees in a lump sum, but the court of appeals divided the sums based on the representation of the three Montano attorneys. However, the lead attorney testified he did not keep time records in the case. Moreover, he apparently did not have a firm idea about what the Montanos owed him for his work before his testimony at trial (which he admitted was his first condemnation case). The city complains that the evidence of attorney’s fees is insufficient because two of the three attorneys failed to produce time records, billing statements, or even a client agreement to substantiate their fee requests. The court held that a Lodestar calculation requires certain basic proof, including itemizing specific tasks, the time required for those tasks, and the rate charged by the person performing the work. It does not have to be in the form of itemized billing records, but must meet certain standards. For two of the three attorneys (the lower amounts) sufficient time records and/or testimony was provided. The court provided some guidance as to how an attorney may enable proper fees without providing billing records, so that is something defense attorney’s need to watch out for. However, the court was pretty clear that the lead attorney failed entirely to establish an entitlement to fees. The fee award entitlement does not vanish; it merely was sent back down to the trial court with some guidance on how such fees must be proven.*
Tort Claims Act: City of Laredo v. Limon, No. 04-12-00616-CV, 2013 WL 5948129 (Tex. App.—San Antonio Nov. 6, 2013). In this Texas Tort Claims Act automobile accident case, the City of Laredo appeals a trial verdict where a treating physician was permitted to testify as to causation and to the sufficiency of the evidence. The San Antonio Court of Appeals disagreed with the city and affirmed the judgment. This case is mainly of interest to litigators. Limon’s pretrial disclosures identified the doctor as a medical expert and one who would testify as to the injuries. It did not specifically list expected testimony of causation. However, the court noted nearly every page of the doctor’s records note the accident, the lack of symptoms prior to the accident, the progression of the symptoms subsequent to the accident, and the degree of relief achieved with various treatments. The records, viewed in their entirety, provide enough information for a reasonable person to conclude the doctor would testify that Limon’s medical condition resulted from the automobile accident. The testimony and evidence were sufficient to support the verdict so the court affirmed the judgment.*
Employment Retaliation: San Antonio Water Sys. v. Nicholas, No. 04-12-00442-CV, 2013 WL 5730592 (Tex. App.—San Antonio Oct. 23, 2013). In this employment retaliation case, Debra Nicholas claimed she was terminated and then not considered for reemployment after she opposed certain discriminatory practices. A jury returned a verdict (over $750,000) for Nicholas, and the San Antonio Water System (SAWS) appealed. The Fourth Court of Appeals affirmed the jury verdict in this 34-page opinion. SAWS argued Nicholas failed to establish a “but for” causal link and for insufficiency of the evidence. Nicholas argued her prima facie case of retaliation creates a “legally mandatory inference of discrimination” that prevails unless SAWS produces a legally sufficient reason for her discharge. Nicholas argued that because SAWS provided only a generalized reason for her discharge—that her position was eliminated due to a company reorganization—it failed to rebut the presumption and, thus, the burden never shifted to her to show pretext or falsity. The court disagreed with Nicholas’ reasoning (thank goodness) but affirmed on other grounds. Instead of adopting Nicholas’ reasoning, the court cited precedent that when a case has been fully tried on the merits, the adequacy of a party’s showing at any particular stage of the McDonnell Douglas ritual is unimportant. The only analysis is to inquire whether the evidence is sufficient to support the jury’s ultimate finding. Here, Nicholas need only show that she subjectively (that is, in good faith) believed her employer was engaged in unlawful employment practices, and her belief was objectively reasonable in light of the facts and record presented. After going through the factual information presented to the jury, including a lengthy discussion of the 3-year lapse in time between protected activity and adverse action, the court determined the evidence was legally and factually sufficient to support the judgment. SAWS also challenged the judgment based on the trial court’s refusal to cap damages at $300,000 (statutory cap based on number of employees). Nicholas argued front pay was equitable and therefore not subject to the cap. The Fourth Court agreed reasoning that because front pay is an alternative to reinstatement, it is equitable in nature and not subject to the cap. As a result, the judgment is affirmed.*
Tort Claims Act: City of San Antonio v. Herrera, No. 04-13-00304-CV, 2013 WL 5653311 (Tex. App.—San Antonio Oct. 16, 2013). This is an interlocutory appeal from the denial of a plea to the jurisdiction involving an accident in which Plaintiff Joel Herrera, a motorcyclist, alleges the City of San Antonio and CPS Energy (city) failed to repair a malfunctioning traffic signal due to a lack of power. The Fourth Court of Appeals reversed the denial and dismissed the claims. Herrera essentially brought a Texas Tort Claims Act case alleging the city failed to repair the traffic device a reasonable time after receiving notice it was malfunctioning. The city’s plea asserted Herrera failed to provide the statutory notice required under Texas Civil Practice and Remedies Code Section 101.101. Herrera asserted a fact question existed as to whether or not the city had “actual notice” of the claim mooting the paper filing requirement. The court held a governmental unit has actual notice of a claim when it has knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage (i.e. subjective awareness of fault); and (3) the identity of the parties involved. Here, Herrera produced two city traffic signal management work reports and the investigating officer’s police report in an attempt to establish the subjective awareness of the city. However, the reports did nothing but identify the device was inoperative and did not expressly or implicitly refer to any fault on the part of the city. As a result, the court reversed and rendered a dismissal in the city’s favor.*
Takings: City of Celina v. Dickerson, No. 05–13–00480–CV, 2013 WL 5761369 (Tex. App.—Dallas Oct. 22, 2013). In this interlocutory appeal, the City of Celina appeals the trial court’s denial of a plea to the jurisdiction in a takings case. The City of Celina entered into an interlocal agreement with the school district, which required the city to secure easements from landowners in order for sewer lines to be extended to the new high school. The city promised to waive connection and impact fees for landowners who granted the city an easement. As “further consideration,” the city agreed to return the top soil removed during construction. The landowners alleged the city breached this provision of the contract when they failed to replace the original top soil and sued the city for inverse condemnation based on the city’s taking the easement. Because the city breached a provision of the contract, the breach rendered the easement void, so the city occupying the easement constituted a taking. The city filed a plea to the jurisdiction based on the landowners failing to plead a valid takings claim. The trial court denied the city’s plea to the jurisdiction, and the city appealed.
The Dallas Court of Appeals held that the landowners failed to show any language in the easement agreement that established the top soil “further consideration” provision was intended to operate as a condition subsequent instead of a covenant. The court also concluded that there was no language in the agreement that provided a breach of the top soil provision would render the easement void. Thus, since the landowners’ takings claim was premised on their assertion that city’s breach of a condition subsequent voided the easement, the landowners had no takings claim. The court of appeals reversed the trial court’s order and dismissed the case for want of jurisdiction.
Tort Claims Act: Creel v. Woodlands Twp., No. 09-12-00525-CV, 2013 WL 5658382 (Tex. App.—Beaumont Oct. 17, 2013). In this Texas Tort Claims Act case, the trial court granted the township’s plea to the jurisdiction and the plaintiff appealed. Plaintiff Creel alleges the township failed to maintain trees, and as a result, limbs fell onto his property damaging it. After amending his pleadings three times he continued to assert that sovereign immunity was waived for premise defects. However, property damages are not recoverable in a premises-liability claim against a governmental unit under Sections 101.021(2) and 101.022 of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code § 101.021(2). As a result the trial court properly granted the township’s plea to the jurisdiction.*
Voting Rights Act: Rodriguez v. Beaumont Indep. Sch. Dist., No. 09-13-00434-CV, 2013 WL 5651837 (Tex. App.—Beaumont Oct. 17, 2013). This opinion appears to be the first in Texas to address how the United States Supreme Court’s holding in Shelby County v. Holder, which declared section four of the Voting Rights Act of 1965 unconstitutional and rendered Section preclearance unenforceable, impacts a Texas political subdivision’s election. The Court of Appeals noted that this “is our first occasion to consider BISD’s election order requiring an election in November 2013, and to consider how the United States Supreme Court’s decision in Shelby County affects the November 2013 trustee election.”
In this case, the Beaumont Independent School District’s (BISD) Election, which had been scheduled for May 2013, did not occur on that date because it was enjoined by a federal court exercising jurisdiction over a BISD preclearance lawsuit under the Voting Rights Act. The facts of the case are complex, but suffice it to say that the election change involved a change to BISD’s single member district plan. In May 2011, BISD’s voters passed a proposition specifying that the next BISD trustee election be held using five single-member and two at-large districts (a 5–2 plan), as opposed to its current seven single member districts. Litigation involving the change ensued for more than two years.
Under the Texas Education Code, the plan approved by voters is required to be implemented beginning with the first regular election of trustees following the voter’s adoption of the proposition. Tex. Educ. Code Ann. § 11.052(e). In spite of the state law provision, the May 2013 election was enjoined by the federal court exercising jurisdiction over BISD’s preclearance litigation. Ultimately, in August 2013, after a May election was no longer possible, the United States District Court for the District of Columbia Division dismissed BISD’s preclearance litigation, following the Shelby County decision. The trial court in this case then reasoned that, because the 5-2 plan had not been precleared, the existing seven district plan should be used and that the election should be held in November 2103, rather than the usual May 2013 date.
Dismissing BISD’s preclearance litigation after Shelby County, the federal court issued an order that states the rescheduling of BISD’s trustee election “is a matter of Texas election law, which appears to have sufficient resources to resolve the matter without this court’s involvement.” Moreover, while the parties were before the federal court, that court declined a request to use its authority under the Voting Rights Act to enter an order relieving BISD of various requirements that are found in governing Texas statutes regulating BISD’s next trustee election.
Under Section 11.052(e) of the Texas Education Code, when the voters of a school district have passed a proposition requiring that trustees of a district be elected in a specific manner, the “trustees of the district shall be elected in the manner prescribed by the approved proposition[,]” beginning with the next regular election of trustees. Id. (emphasis added). Because BISD’s preclearance case was dismissed for lack of jurisdiction, the court of appeals concluded that the trial court erroneously looked to federal law and Section 11.052(e) – state law – for the controlling rules and principles in resolving the issues that were before it. For example, the trial court assessed which of the district plans/maps were likely to be the subject of future claims arising under the Voting Rights Act. Under the Voting Rights Act, Congress gave only federal courts jurisdiction to address the enforcement of the Act; it did not give state courts jurisdiction over Voting Rights Act claims. See 42 U.S.C. §§ 1973a(a); 1973b(a)(5); 1973c(a); 1973h(c); 1973j(d),(f); 1973aa.
The court of appeals concluded that the trial court disregarded that state law required the election to occur under a 5–2 plan. “While the single-member district maps at issue in the trial court are both creatures of federal statutory preclearance requirements that existed prior to the proceedings now at issue, both BISD and the putative trustees have failed to recognize that after Shelby County issued, they were operating in a new landscape.”
The bottom line holding of this opinion is that Shelby County did indeed say what it said: Section 5 preclearance is gone and only state law controls, at least for now. As such, the court of appeals held that the trial court’s order is reversed, and the matter is remanded to the trial court for further proceedings under state law.
*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.