Recent Texas Cases of Interest to Cities

Note:  Included cases are from October 11, 2014 through November 10, 2014.

Governmental Immunity—Procedural:  City of Houston v. Downstream Envtl., L.L.C., No. 01-13-01015-CV, 2014 WL 5500486 (Tex. App.—Houston [1st Dist.]  Oct. 30, 2014) (mem. op.). This is a continuation of the governmental immunity case that first appeared in the April 2014 issue of the TCAA newsletter.  Downstream argues that the city damaged its facility and overcharged it for wastewater services, and the city argues that Downstream owes it over $200,000 for wastewater services.  An agreed temporary order was entered in December of 2013 that required: (1) the city to keep providing wastewater services despite Downstream’s past due bill for services; and (2) Downstream to pay the city $7,500 for services. Between the agreed order and this appellate hearing, the city argues that Downstream has incurred an additional $80,000 in charges and now owes the city more than $300,000, but has paid nothing more towards the bill.  The city argues that the agreed order should be dissolved as it is not required to provide free wastewater service to Downstream.  The court of appeals reviewed the procedural history of the order and held that it was no longer valid because it did not state the reasons why it was issued and did not fix an amount of security.

Governmental Immunity:  Henry v. City of Angleton, No. 01-13-00976-CV, 2014 WL 5465704 (Tex. App.—Houston [1st Dist.] Oct. 28, 2014) (mem. op.).  A parent sued the city after her child died in a near drowning accident at the city pool.  The plaintiff argued that the city was liable for her daughter’s death because: (1) the city pool was a proprietary function of the city because: (a) it had additional features other than the pool; and (b) the city charged for use of the pool; or (2) immunity was waived under the Tort Claims Act due to: (a) the city’s  misuse of tangible personal property; or (b) premises defect. The city filed a plea to the jurisdiction under the Tort Claims Act.  The court first held that operating a city pool is always a governmental function under the Act even with additional features or a charge for use of the pool. See Tex. Civ. Prac. & Rem. Code § 101.0215.  The plaintiff then argued that the placement and use of the lifeguard’s chairs was a misuse of personal property that caused the incident.  Id. § 101.021. The court held that neither the location nor use of the chairs contributed to or was an instrumentality of the child’s drowning.  For the premises defect allegation, the court looked to the Recreational Use Statute for guidance. Tex. Civ. Prac. & Rem. Code § 75.003. Under the Recreational Use Statute, a landowner, including a city, only owes a duty as if an individual is a trespasser when the land is being used for recreational purposes as defined in Chapter 75 of the Texas Civil Practices and Remedies Code.  Id. § 75.002.  This means that the plaintiff must show that the city landowner engaged in gross negligence, malicious intent, or bad faith related to the property in order for the landowner to be liable for injuries occurring on its property.  The court of appeals held that the plaintiff’s allegation that the city failed to install different or elevated lifeguard chairs did not rise to the level of gross negligence under the trespasser duty.  The court also noted that the plaintiff failed to allege that the city knew of an extreme risk of harm related to its lifeguard chair design, another element of a gross negligence claim.  The court of appeals granted the city’s plea to the jurisdiction.

Tort Claims Act: City of Dallas v. Sanchez, No. 05-13-01651-CV, 2014 WL 5426102 (Tex. App.―Dallas Oct. 27, 2014). Diane and Arnold Sanchez sued the City of Dallas for negligence in the death of their son.  The city filed a motion to dismiss under Rule 91a of the Texas Rules of Civil Procedure, which the trial court granted in part and denied in part.  The parties then filed this interlocutory appeal.

The Sanchezes contend that the city’s liable under the Tort Claims Act for negligent use and misuse of their 911 computer and phone system.  The court acknowledged that operation of an emergency ambulance service is a governmental function under the Tort Claims Act.  However, the court concluded that the gravamen of the Sanchezes’ negligent use and misuse allegations were of non-use of property: the failure to use the telephone and computer systems to determine that two calls made to 911 were not redundant.  The court of appeals stated the trial court correctly concluded that there was no waiver of immunity for these claims.

The court went on to conclude that the trial court correctly denied the city’s motion to dismiss the Sanchezes’ claims asserting that equipment failed or malfunctioned.  The failure or malfunction of the equipment that allegedly cut off the caller before the call was completed contributed to the city’s failure to provide emergency medical attention to Matthew Sanchez.  Therefore, these allegations were sufficient to allege that a condition of tangible personal property caused the injury.  The Dallas Court of Appeals overruled all issues raised in the appeal and cross-appeal and affirmed the trial court’s order.

Employment Discrimination: Killingsworth v. Housing Auth. of City of Dallas, No. 05-12-00524-CV, 2014 WL 5140337 (Tex. App.―Dallas Oct. 14, 2014). This is a breach of contract, Section 1981 (race) and Section 1983 (due process) case in an employment dispute in which the Dallas Court of Appeals affirmed the granting of summary judgment for the Housing Authority of the City of Dallas (DHA). Killingsworth asserted he had a written employment contract to be the DHA president and chief executive officer; however, the DHA board retained the existing president rather than hiring him. Killingsworth asserted that even though no public vote occurred by the board to approve the contract (a term within the contract) the board chair signed the letter agreement. He also asserted that he spoke to each commissioner individually prior to any meetings who supported his retention and he was told that the board members all voted in executive session to approve the contract.

He sued, but the trial court granted the DHA’s summary judgment motion. The trial court also did not allow any discovery of disclosure of executive session information. He appealed. The Fifth Court of Appeals held the letter agreement had two primary conditions: (1) being signed by the chair; and (2) being approved by the board.  These conditions were required to occur after the contract was presented to Killingsworth to bind DHA. The summary judgment evidence conclusively established the board did not vote to approve the contract. As a result, no breach could occur.

The court rejected Killingsworth’s “law of the case” argument from an interlocutory appeal in this case. The interlocutory opinion merely held the trial court has jurisdiction to hear this type of case and whether the board properly executed the contract; it was not a determination that the contract was, in fact, properly executed.  With regards to Killingsworth’s Section 1983 due process claims, the court held his claims hinged on the validity of the contract, and the court determined the contract was not valid. As to his Section 1981 claim, the retained director was African American, but that alone cannot support a claim. Killingsworth presented no evidence to create a fact issue that race-based motives were part of the decision making.  All of the DHA evidence established race was not a factor. Finally, the trial court properly ruled on the summary judgment before the completion of discovery. The preclusion of discovery into executive session matters (to the extent limited specifically by the trial judge) was not error. As a result, summary judgment was properly granted.*

Alcoholic Beverage Permit:  Pak-a-Sak, Inc. v. City of Perryton, No. 07-14-00047-CV, 2014 WL 5796034 (Tex. App.—Amarillo Nov. 6, 2014).   This is an appeal from a trial court upholding the denial of license to sell alcohol which the Seventh Court of Appeals affirmed.

Pak-a-Sak applied for and was denied a wine and beer retailer’s off-premises permit from the city.  The application was denied pursuant to the city’s ordinance providing that “It shall be unlawful for any person to sell, dispense or deliver, or cause to be sold, dispensed or delivered, any beer, liquor, or any other intoxicating beverage within a residential area in the city.”  The ordinance was enacted under Section 109.32 of the Texas Alcoholic Beverage Code which provides, in part, that an incorporated city may prohibit the sale of beer in a residential area (the city has no zoning).   Neither the statute nor the ordinance defined the phrase “residential area.”

Pak-a-Sak argued that the city exceeded its legislative authorization (acted ultra vires) by failing to define “residential area.”  The appellate court rejected this argument because the ordinance simply reiterates the limitation specified by the statute.  Next, Pak-a-Sak argued the ordinance is void for vagueness.  The appellate court explained that the verbiage in an ordinance need only provide a reasonable degree of certainty as to what is proscribed, and reference to the common usage and understanding of a term can supply the requisite certainty.  Analyzing the common meaning of the terms “residential” and “area” in light of the facts of this case, the court overruled this issue.  Finally, Pak-a-Sak argued the city’s denial of the permit wasn’t supported by substantial evidence.  The appellate court overruled this issue because the record contained more than a scintilla of evidence that Pak-a-Sak was located in a residential area.

Personal Injury Judgment:  City of Beaumont v. Brocato, No. 09-13-00210-CV, 2014 WL 5490937 (Tex. App.—Beaumont Oct. 30, 2014) (mem. op.).  This is an appeal from the trial court by the city regarding a judgment rendered in a personal injury case which the Ninth Court of Appeal affirmed, with one modification.

The Brocato’s daughter was involved in a collision with a police officer employed by the city.  Following the first trial of the case, a jury found the police officer negligent.  After appeal by the city, the case was remanded for a new trial and the remand provided that “All costs of the appeal are assessed against the [Broactos].”  On retrial, the jury found both drivers negligent, with the Brocato’s daughter less than fifty percent responsible.  The Brocatos were awarded a judgment.  The city appealed from the judgment, raising three issues.

First, the city argued that the jury did not have legally sufficient evidence to support its award of future medical expenses.  Specifically, the city argued the Brocatos failed to show their daughter will probably need surgery on her ankle.  The court overruled this issue.  While not conclusive, the court found there was more than a scintilla of evidence to enable reasonable and fair minded jurors to conclude that she would need surgery.  Next, the city argued the jury erred in awarding past medical expenses because the issue was not submitted to the jury.  The issue is overruled because the city failed to object that the jury charge omitted this issue, which means the court must deem the element to have been “found by the court in such manner as to support the judgment.”  Tex. R. Civ. P. 279.  Finally, the city argued the trial court erred by taxing the city will all the costs of court because of the language in the remand.  The appellate court agreed and explained that the trial court could have (but did not) offset the judgment with the prior award of costs related to the appeal per the mandate.  The appellate court modified the trial court’s judgment accordingly.

Tort Claims Act: Benavidez v. University of Tex.–Pan Am., No. 13-13-00006-CV, 2014 WL 5500469 (Tex. App.—Corpus Christi Oct. 30, 2014) (mem. op.). This is an appeal from the trial court granting a plea to the jurisdiction for the University of TexasPan American (UTPA) in a Texas Tort Claims Act case which the Thirteenth Court of Appeals affirmed.

Benavidez fell from a climbing wall on the campus of UTPA. A UTPA employee testified that the figure-eight knot tied to his harness was either not tied properly or not tied at all. Before he climbed the wall, Benavidez signed a waiver/release from liability but on the backside of the form it listed several safety rules participants must follow.  Benavidez argued the safety rules applied to the UTPA belayer. UTPA filed a plea to the jurisdiction which the trial court granted.

The court went through a back and forth analysis of whether it could consider the affirmative defense of a release as part of a plea, but ultimately said since Benavidez did not object to its use that way, they would consider it without deciding if it was proper. The court held it would be improper to hold UTPA breached the release language since the safety rules on the back are not tied to the release language on the front. The separate sides of the paper constitute separate agreements. Further, the safety policies are for the attendees to follow, not UTPA staff. Violation of these safety rules is enforced by attendee’s loss of climbing privileges, which is not applicable to an employee. Since Benavidez released UTPA, the court did not address any of the other arguments on the appeal as they would not change the release. The grant of the plea is affirmed.*

Whistleblower Act: Carter v. Texas Dep’t of Motor Vehicles, No. 13-13-00596-CV, 2014 WL 5314522 (Tex. App.—Corpus Christi Oct. 16, 2014) (mem. op.). This is a Whistleblower Act case where the Thirteenth Court of Appeals affirmed the granting of a plea to the jurisdiction for the Texas Department of Motor Vehicles (DMV).

Carter was a Historically Underutilized Business Coordinator for the DMV and was on a six month probationary period. During that time, she filed several complaints against co-workers including complaints that the hearing-impaired co-worker’s proximity to her bothers her, her co-workers were unskilled, she was underpaid, and disagreed with the policy prohibiting the acceptance of free meals. Carter was terminated during the probationary period and she sued alleging Whistleblower Act violations. DMV filed a plea to the jurisdiction which the trial court granted and she appealed.

The court held Carter’s petition of fourteen different complaints did not identify any violation of law and only made vague references to “irregularities” and “abnormalities” she believed were illegal. She also did not report to an appropriate law enforcement authority before her termination.  Reporting irregular purchase authorizations to the Texas Comptroller the day after her termination is insufficient. As a result, the trial court properly granted the plea. *

Age Discrimination: City of Sugar Land v. Kaplan, No. 14-14-00292-CV, 2014 WL 5285662 (Tex. App.—Houston [14th Dist.] Oct. 16, 2014). This is an age/disability discrimination case where the court of appeals held the plaintiff was required to assert his claim in an administrative complaint filed within 180 days from the date of his termination and failed to do so.

Kaplan, a 69 year old employee with high blood pressure and diabetes, was an administrative manager of the city’s parks and recreations department who was terminated. Kaplan filed an administrative complaint within 180 days, but only asserted age discrimination. The right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) only listed age discrimination. The city filed a plea to the jurisdiction asserting a failure to exhaust administrative remedies as to disability, but Kaplan asserted it related back to his age claim and filed a new EEOC complaint as to disability. The trial court denied the plea and the city appealed.

The mandatory filing of an administrative complaint is a jurisdictional/statutory prerequisite to suit. Kaplan failed to timely file such a complaint as to disability. The charge must contain an adequate factual basis to put the employer on notice of the existence and nature of the claims against it.  The relation-back doctrine allows a plaintiff to amend facts which relate back to the original complaint, it does not permit the filing of a separate charge. The plea should have been granted so the court reversed and rendered. *

*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