Note: Included cases are from August 11, 2018 through September 10, 2018.
Drainage Fee Ordinance: Perez v. Turner, No. 01-16-00985-CV, 2018 WL 4131009 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018). The First Court of Appeals reversed in part and remanded the grant of a plea to the jurisdiction, finding that the plaintiff, Elizabeth Perez, had standing to pursue her claims for prospective and declaratory relief for a drainage fee ordinance against the City of Houston, the Director of Public Works and Engineering, and the Mayor.
Perez had previously filed a lawsuit regarding ballot language over a charter amendment (Proposition I) for dedicated drainage and street renewal. Ultimately, the election over Proposition I was held void. While the lawsuit over Proposition I was pending, Houston passed the Drainage Fee Ordinance (ordinance). Perez filed the current lawsuit challenging the ordinance, seeking: (1) a judgment declaring the ordinance invalid; (2) an injunction against the assessment, collection, and expenditure of taxes and fees pursuant to the ordinance; and (3) reimbursement, on behalf of herself and others similarly situated, of taxes and fees assessed and collected pursuant to the ordinance and paid “under duress.” The trial court granted the city’s plea to the jurisdiction.
The First Court of Appeals determined Perez did not have standing to seek reimbursement for the “illegal” drainage fee; however, Perez did have taxpayer standing to pursue her claims for prospective relief of the proposed illegal expenditures. In order for a taxpayer to have standing to sue the government for past damages, the taxpayer must show that she suffered a particularized injury distinct from that suffered by the general public. Perez failed to do so. The ordinance had not been declared void, which the court determined did not support Perez’s assertion that she had paid “illegal” fees. However, the court determined Perez could pursue her claims for injunctive and declaratory relief based on the proposed illegal expenditures. In doing so, the court reasoned that Perez had established that the city was assessing and spending money based on the ordinance.
The court also determined that Perez could sue the individual defendants in their official capacities for prospective relief under the ultra vires exception. An ultra vires action is allowed when a state officer acts without legal authority if he exceeds the bounds of his granted authority. The court held that the named city officials would be acting without legal authority in collecting taxes and spending money under the ordinance (if the ordinance were found to be unlawful). Therefore, Perez could pursue her claims to enjoin this conduct. The court also held that the City of Houston did not have governmental immunity for the injunctive and declaratory claims.
Finally, the court found that the issues were ripe for decision. The court reversed in part and remanded to the trial court on Perez’s claims for a declaration that the ordinance is invalid and an injunction on any future collection or expenditure of fees pursuant to that ordinance.
Texas Tort Claims Act: Hinojosa v. Metro. Transit Auth. of Harris Cty., No. 01-17-00824-CV, 2018 WL 4131890 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018) (mem. op.). The First Court of Appeals affirmed the grant of a plea to the jurisdiction because the court found that the driver of the bus was not a transit authority employee.
Connie Hinojosa sued the Metro Transit Authority of Harris County (Metro) because she fell when a Metro bus driver abruptly stopped while she was walking to her seat. She sued Metro based on the motor-driven vehicle waiver of sovereign immunity under the Texas Tort Claims Act. The trial court granted Metro’s plea to the jurisdiction because the bus driver was not an employee of Metro, but rather an employee of First Transit, Inc., with whom Metro contracted to operate some of its bus routes.
The court analyzed whether the bus driver was Metro’s employee using the requirements of both “control” and “paid employee” to invoke the waiver of sovereign immunity. The evidence unequivocally showed that First Transit paid the bus driver; thus, the court determined bus driver was not Metro’s employee. Likewise, the court rejected Hinojosa’s argument that the bus driver was a borrowed employee. Instead, the court found that which entity paid the bus driver was determinative. The court found that Metro had conclusively proved the bus driver was not its paid employee and affirmed the trial court’s judgment.
Texas Tort Claims Act: City of Houston v. Ellis, No. 01-17-00423-CV, 2018 WL 4087415 (Tex. App.—Houston [1st Dist.] Aug. 28, 2018) (mem. op.). The First Court of Appeals affirmed the denial of a plea to the jurisdiction on the grounds that there was a fact issue as to whether the city had notice that a stop sign was down at the time of the plaintiffs’ accident.
Lucille Ellis was in an accident with her sister, Margie Williams, as the passenger. Ellis drove through a stop sign and got into an accident with traffic from the adjacent road, which did not have a stop sign. Ellis claimed she did not see the stop sign on her road, and presented evidence that the city had notice of the downed stop sign. Ellis and Williams presented affidavit testimony from a resident of the area, who testified that the sign was down before the accident and that the stop sign was missing for approximately three weeks. The city presented testimony from a police officer who patrolled the area shortly before the accident. The officer testified that the stop sign was not down two days before the accident. The officer further testified that when she arrived on the scene of the accident, the sign was not down, only leaning. The city also presented evidence that the stop sign was repaired two days before the accident. The trial court denied the city’s plea to the jurisdiction.
Under Section 101.060(a)(2) of the Texas Tort Claims Act, a city is only liable for the “absence, condition, or malfunction” of a traffic sign or signal when the city has notice of the defect. The Texas Supreme Court has found there is a waiver of immunity only when the sign or signal was either: (1) unable to convey the intended traffic control information, or (2) conveyed traffic control information other than what was intended. The evidence presented created a fact issue about whether the city had notice of the condition of the stop sign. The court reasoned that “a factual dispute exists as to whether the sign was up or down when [the officer] patrolled the intersection two days before the accident happened.” Based on the fact issue, the court affirmed the denial of the city’s plea to the jurisdiction.
Historic Property: City of El Paso v. Grossman, No. 02-17-00384-CV, 2018 WL 4140461 (Tex. App.—Ft. Worth Aug. 30, 2018) (mem. op.). Max Grossman, an assistant professor of Art History at the University of Texas-El Paso serving on the El Paso County Historical Commission (Commission), sought a declaratory judgment to prevent the city from demolishing an older downtown area, “Duranguito” (Union Plaza), and putting up a multipurpose cultural, athletic, and performing arts facility. The city filed a plea to the jurisdiction, which was denied. During the pendency of the appeal, the court of appeals issued emergency relief to prevent demolition while the appeal was pending. The city moved the court of appeals dismiss its appeal, explaining that since its notice, the city had purchased the property in question and wished to proceed to trial. Grossman opposed the dismissal.
Texas Natural Resources Code Section 191.0525(a) requires notice to a historical commission before an entity breaks ground in order for the commission to determine historical significance. After acquiring title, the city did notify the Commission. This mooted the declaratory judgment claims. The remainder of Grossman’s claims are not yet ripe as they occur after notice and historic analysis are provided. As a result, the court granted the city’s motion to dismiss the appeal as moot and release the emergency stay.*
Inverse Condemnation: City of Crowley v. Ray, No. 02-17-00409-CV, 2018 WL 4025086 (Tex. App.—Fort Worth Aug. 23, 2018). Doug Ray (Ray) purchased 2 two-acre tracts of land (Ray’s Place II) to develop a multifamily residential subdivision in May 1999. Ray was aware that Ray’s Place II was covered by a Flood Insurance Rate Map (FIRM) and a Flood Insurance Study (FIS) from August 1995, as modified by a Letter of Map Revision (LOMR) from March and July 1999. The 1999 LOMR was based on a study by Jerry Parché Consulting Engineers and it listed the 100-year floodplain elevation where Ray’s Place II is located at 751 feet. Though Ray originally submitted a preliminary plat for the entire four acres of Ray’s Place II in October 2001, eventually he split Ray’s Place II into two phases. In October 2002, Ray submitted a final plat for Phase 1 using the 1999 LOMR for information needed for the 100-year floodplain. The city accepted the 1999 LOMR for Phase I as part of the final plat and Ray constructed Phase I.
In December 2006, Ray started developing Phase 2 and submitted a preliminary plat with 1999 LOMR to the city. The city approved the preliminary plat in April 2007. The following month, Ray submitted the proposed final plat for Phase 2, but the city required him to have a new flood study performed. Ray had a new flood study done and the results affected the city’s opinion about the minimum finished floor elevations for Phase 2. Based on the new flood study and advice from Teague Nall and Perkins, the city required Ray to have the 100-year floodplain elevation for Phase 2 at 761.5 feet. Ray thought the new elevation was arbitrary, made Phase 2 economically infeasible to develop, and left the land with no potential use without “raising the dirt.”
In 2009, Ray sued the city for declaratory relief and Teague Nall and Perkins for negligence and other claims. The city filed a plea to the jurisdiction arguing it was immune because Ray failed to allege a valid claim for declaratory relief. The trial court denied the city’s plea and the Fort Worth Court of Appeals affirmed the trial court’s first interlocutory order. Before the trial court granted the city’s summary judgment on some of Ray’s claims for declaratory relief, Ray filed an amended petition that added a claim against the city for inverse-condemnation, claiming that the city’s actions affected an unconstitutional taking of property. The city filed another plea to the jurisdiction arguing that Ray’s inverse-condemnation claim is not ripe and that the city’s governmental immunity has not been waived. The trial court denied the city’s plea and the city appealed.
In its first four issues, the city argued that the trial court lacked subject-matter jurisdiction over Ray’s inverse-condemnation claim because: (1) the claim was not ripe, (2) Ray failed to exhaust administrative remedies, (3) the city was immune from suit, and (4) the claim failed as a matter of law. In its fifth issue, the city challenged the trial court’s authority to award attorneys’ fees after summarily disposing of Ray’s claim for declaratory relief. The Fort Worth Court of Appeals did a de novo review of the trial court’s ruling on the plea to the jurisdiction.
In the city’s first issue, it argued that Ray’s inverse-condemnation claim was not ripe for judicial review because the city had not made a final decision involving Phase 2’s development. The city joined the second issue with the first and contended that Ray failed to exhaust administrative remedies or other procedures that might have alleviated the alleged regulatory taking. The court explained that for there to be a regulatory taking per se, the governmental entity has to either completely deprive an owner of all economically beneficial use of the owner’s property or an owner suffers a permanent physical invasion of her property, no matter how small. Lingle v. Chevron U.S.A, Inc., 544 U.S. 528, 538, 125 S. Ct 2074, 2081 (2005). If the regulatory taking challenge is not covered by the two categories, then the factor analysis set out in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646 (1978) is used. Id. at 538-39. An inverse-condemnation claim is not considered ripe “until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The court did not agree with the city’s argument that Ray had not considered other options for the development of Phase 2 other than the fullest extent possible similar to the case of MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348 (1986). In MacDonald, the court determined the petitioner still had a possibility of development and had not received a final decision from the county when he sued. The court determined that the city’s ripeness argument was not analogous to MacDonald. The court felt that no matter what other plans Ray submitted for Phase 2, the city would probably still insist on the same requirement concerning the 100-year floodplain elevation making the city’s decision final even if the development was scaled down. The city also argued that Ray’s regulatory-taking claim was not ripe because Ray did not file or request any administrative appeals, such as variances or flood determination appeals. But, the court, reviewing the record, felt that the city had taken a definitive position on the minimum finished floor elevations for Phase 2 and Ray pursuing a variance would have been futile. The court overruled the city’s first issue.
To support its second issue concerning exhausting administrative remedies, the city argued one of the same arguments above that Ray did not file or request any administrative appeals. For a final decision to be determined under an exhaustion of administrative remedies claim, the court has to determine “whether an agency has exclusive jurisdiction in making an initial determination on the matter in question and whether the plaintiff has exhausted all required administrative remedies before filing a claim in trial court.” Garrett Operators, Inc. v. City of Houston, 360 S.W.3d 36, 42 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Though the city argued Ray never formally appealed any administrative determination under the city’s subdivision ordinance or flood prevention regulations, the court could not conclude that Ray failed to exhaust any administrative remedies since the city did not disclose or direct the court to any remedial statutory schemes. The court did not accept the city’s argument that Ray should have sought a variance since Ray was trying to design Phase 2 according to the floodplain elevations allegedly adopted by the city. The court overruled the city’s second issue.
In its third issue, the city argued that its governmental immunity had not been waived because Ray failed to allege or produce evidence that the city intentionally and directly acted to cause a taking. “To state a cause of action for inverse condemnation under the Texas Constitution, a plaintiff must allege (1) an intentional governmental act, (2) that resulted in a taking of property, (3) for public use.” Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). The court did not accept the city’s argument that Ray’s failure to state a valid claim by seeking to hold the city liable under a taking theory based on the 1999 LOMR that set the floodplain elevation was analogous to the case of Hearts Bluff Game Ranch, Inc. v. State, 381 S.W 3d 468, 484 (Tex. 2012). In Heart Bluff, the Texas Supreme Court concluded that the plaintiff had not alleged a valid takings claim against the State because the United States Army Corps of Engineers (Corps) had denied the plaintiff a permit for a federal mitigation bank, not the State, and because the State did not directly restrict the land by merely designating the property as “unique” as a possible drinking water reservoir in a 2006 water plan issued by the Texas Water Development Board. The court found the city, not the LOMRs, was responsible for the city’s refusal of Ray’s development plan for Phase 2 since the city prohibited him from developing Phase 2 using the “effective” floodplain criteria. Also, the court stated that the city was more analogous to the Corps’ denial in Heart Bluff than the State. Thus, the court held Ray did complain of a direct, governmental action by the city and overruled the city’s third issue.
The court next examined the city’s fourth issue, that Ray’s Lucas claim failed as a matter of law because the relevant parcel for a takings analysis must include Phase 1. The city argued Phase 1 and Phase 2 should be treated as one property for the purposes of a value determination because Ray purchased the phases at the same time and initially planned to simultaneously develop the entire four acres. In Murr v. Wisconsin, 137 S. Ct. 1933, 1945-46 (2017), the United States Supreme Court explained how a court should identify the relevant parcel for purposes of determining whether a regulatory taking has occurred by utilizing a factors analysis which included the treatment of the land under state and local laws, the physical characteristics of the land, and the prospective value of the regulated land. The U.S. Supreme Court stated that “[t]he endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” Id. at 1945. The Fort Worth Court of Appeals disagreed with the city stating that Phase 1 was not relevant to Phase 2’s value determination because the court failed to see how purchasing the phases at the same time overrode the separate legal identity of each tract. The court stated though Ray initially submitted a preliminary plat for the property as a whole, he decided to develop the properties in two separate phases and submitted a final plat for only Phase 1 which he proceeded with and finished before developing Phase 2. The court also took into account that the city allowed Phase 1 to be built under the flood elevation figures in the 1999 LOMR which is the same LOMR that is disputed in this case. The court felt the Murr factors weighed against treating Phase 1 and Phase 2 as a single unit for the purposes of making an economic-value determination and overruled the city’s fourth issue.
Last, the court reviewed the city’s fifth issue which argued that the court should dismiss Ray’s still pending claim for attorneys’ fees because the trial court, by summary judgment, disposed of the request for declaratory relief upon which the fees were predicated, and in the absence of a valid waiver of immunity, attorneys’ fess are not recoverable under the Uniform Declaratory Judgment Act. However, the trial court had not made any award of attorneys’ fees either way and a final judgment had not been entered. The court overruled the fifth issue. Having overruled all of the city’s issues, the trial court’s order denying the city’s plea to the jurisdiction was affirmed.
Texas Tort Claims Act: Texas Facilities Comm’n v. Speer, No. 03-17-00244-CV, 2018 WL 4171257 (Tex. App.—Austin Aug. 31, 2018). The Texas Facilities Commission (commission) filed this appeal following a denial of its plea to the jurisdiction in a trip-and-fall case. The Austin Court of Appeals reversed the trial’s holding.
The commission manages State-of-Texas-owned properties including a surface parking lot, designated as “Lot 27.” Lot 27 was constructed with vehicle access points that included a short driveway near its northwestern corner which crosses an adjacent sidewalk. A vehicle barrier consisting of two concrete posts with a cable suspended between the posts was constructed across the driveway to address pedestrian and vehicular problems. Speers alleged that, one night, as he was walking through Lot 27, he tripped over the cable and was injured. He brought suit against the commission, asserting the cable, over time, had drooped lower than designed due to a partially uprooted post and had lost its reflectors. The commission filed a plea to the jurisdiction, which was denied. The commission appealed arguing that its duty to Speer was limited to that owed by a private landowner to a licensee with respect to an ordinary premise defect.
Section 101.021 of the Texas Tort Claims Act (TTCA) provides that immunity is waived for a premise defect. However, other TTCA provisions modify the scope and effect of the waiver. The commission asserted that Section 101.022 provides that a property owner must have actual notice of a dangerous condition in order to attribute liability as a premise defect. Speers asserted that the cable and posts were traffic control devices, and that, under Sections 101.022(b) and 101.060, a heightened standard applies to traffic control devices. As such, a heightened standard applied to the commission.
The court, putting the sections into practical context, concluded that the net effect of the TTCA provisions is that the TTCA waives immunity with respect to a premises-defect claim founded on an unreasonably dangerous condition arising from “the absence, condition, or malfunction of a traffic or road sign, signal, or warning device,” but only in instances where the governmental unit had actual or constructive notice of the “absence, condition, or malfunction” and failed to correct it within a “reasonable time” thereafter. However, the court found that such a claim is not subject to the licensee standard generally imposed by Section 101.022(a). The court then analyzed whether the cable was a “traffic control” sign, signal or warning device, which are used in connection with hazards normally connected with the use of the roadway. The court found that cable does not direct normal users of the roadway in the traditional sense, and is therefore, not a traffic control sign, signal or warning device. Taking a detailed analysis, the court held that such devices are distinguishable from special-defect-types-of- situations, which carry a higher standard of care. As such, Section 101.060 is not a standalone provision. Section 101.060 presumes a premise defect waiver under Section 101.021 and modifies that waiver. Finding that this was a premise-defect case, the court held that Speers failed to establish that the commission had actual or constructive notice of the dangerous condition. As a result, the plea should have been granted.*
Texas Tort Claims Act: Roche v. City of Austin, No. 03-17-00727-CV, 2018 WL 3978333 (Tex. App.—Austin Aug. 21, 2018) (mem. op.). Roche filed this appeal after the trial court dismissed his Texas Tort Claims Act suit for lack of jurisdiction in a case involving an automobile collision. The Austin Court of Appeals affirmed the dismissal.
Roche was involved in an after-dark automobile collision with a police car driven by a City of Austin police officer. The officer received a 9-11 call that a man brandishing a knife was threatening people in a Dollar General parking lot. Responding to the call, the officer drove eastbound with his emergency lights and siren on. As he approached an intersection, the traffic light was red, and traffic was stopped in all lanes in his direction. To proceed, the officer elected to drive over the median dividing the eastbound and westbound lanes. Roche entered the intersection under a yellow light. When the officer was almost through the intersection, Roche’s truck collided with the passenger side of the police car. Although Roche heard the emergency siren before he proceeded into the intersection, he did not see the police car until it was too late. The officer was later reprimanded for violating department policies on how to respond to such calls. Roche sued the city. The city filed a motion for summary judgment asserting immunity, which was granted. Roche appealed.
Under the emergency exception provision of the Texas Tort Claims Act, waiver of immunity does not exist if: (1) the employee was responding to an emergency; (2) the employee was acting in compliance with applicable laws and ordinances governing the employee’s response; or (3) in the absence of such a law or ordinance, the employee did not act with conscious indifference or reckless disregard to the public’s safety. The emergency exception provision is designed to balance the public’s safety with the need for prompt response from public-safety personnel. Imposing liability for a simple failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks. Additionally, the emergency exception provision is intended to prevent judicial second-guessing of split-second and time pressured decisions emergency personnel are forced to make.
The court reviewed the officer’s conduct and found that “the Officer’s timely presence at the store was crucial to protect the safety, and perhaps lives, of these people. The need to reach the Dollar General premises as quickly as possible was manifest.” The court analyzed the “laws” and “ordinances” governing the officer’s response under the Texas Transportation Code. Section 546.001 allows, among other acts, the operator of an emergency vehicle to “proceed past a red or stop signal or stop sign, after slowing as necessary for safe operations,” and to “disregard a regulation governing the direction of movement or turning in specific directions.” A police department’s internal policy or procedure is not a “law” or “ordinance” for purposes of waiver of immunity, so the reprimand is irrelevant. The evidence showed that witnesses stated no other vehicles were in the intersection when the officer entered it. The officer was driving “relatively slowly” and slowed down before he entered the intersection, the officer took his foot off the accelerator before entering the intersection, and Roche entered the intersection at a “relatively fast” pace, without hesitation. After reviewing the submitted evidence, the court held the summary-judgment record established, as a matter of law, that the officer complied with the laws applicable to the emergency situation. As a result, the trial court’s judgment was affirmed.*
Governmental Immunity: Triple BB, LLC v. The Village of Briarcliff, No. 03-17-00149-CV, 2018 WL 3863252 (Tex. App.—Austin Aug. 15, 2018) (mem. op.). Triple BB, LLC (Triple BB) filed this interlocutory appeal in response to the district court’s granting of the Village of Briarcliff’s plea to the jurisdiction in a case involving a billboard. The Austin Court of Appeals affirmed the dismissal.
A local marina owned a billboard that was located on a cliff-side property owned by the Village of Briarcliff. In 2002, the village entered into a separate contract with the owners of the marina for an easement across the marina’s land to install and maintain a raw water line in exchange for the village granting the marina, “its successors and assigns” a license to continue to display the billboard on the village’s property (2002 Contract). Several years later, the marina and the interests in the 2002 Contract was sold to Triple BB. Additionally, the village conveyed the property on which the billboard was located to a third party, who demanded that Triple BB remove the billboard. The deed from the village to the third-party was silent as to the billboard or the license granted in the 2002 Contract. Triple BB sued the third party and later added the village seeking a declaratory judgement, a permanent injunction to keep the billboard in place, and an award of attorney’s fees. The district court granted the third-parties’ motion for summary judgement. The village filed a plea to the jurisdiction asserting that Triple BB had failed to establish a waiver of its governmental immunity. Triple BB responded by amending its pleadings and asserted that it acquired a prescriptive easement to display the billboard and that the village breached the 2002 Contract by failing to convey its cliff-side property subject to its license and, therefore, the village took its property without compensation in violation of the Texas Constitution. Triple BB also sought declaratory relief based on its alternate theory that the 2002 Contract was void for failure of consideration. The district court granted the village’s plea to the jurisdiction.
First, the court briefly addressed the proprietary versus governmental function distinction and held that the contract at issue was primarily to allow water and sewer service, with the billboard being merely a form of consideration. As a result, the village acted in a governmental capacity. Next, the court addressed Triple BB’s claim that a prescriptive easement does not implicate governmental immunity because it “does not involve state action.” As a general rule, when the government “is made a party defendant to a suit for land,” immunity bars the suit absent legislative consent. The court held that an easement is a nonpossessory interest in land, and Triple BB’s claim that it gained the right to use the village’s land to display the billboard is, in substance, a suit for land that is barred by governmental immunity.
The court then addressed Triple BB’s claim that Section 271.152 of the Local Government Code waives the Village’s immunity from suit for its breach-of-contract claim. The court found that by conveying an easement, the previous owners granted the village a legal right to use their land in a certain way, but made no promise to perform an act or provide anything; therefore, the 2002 Contract was not a contract for a service and immunity was not waived. As to Triple BB’s declaratory judgment claim, except for a narrow waiver of immunity for claims challenging the validity of ordinances or statutes, the Uniform Declaratory Judgment Act generally does not waive immunity. Finally, to plead a viable inverse condemnation claim, “a plaintiff must allege an intentional government act that resulted in the uncompensated taking of private property” for public use. The court found that Triple BB’s factual allegations, taken as true, do not include an intentional act by the village which resulted in the taking of Triple BB’s land; it merely conveyed the land to a third party. As a result, the trial court properly granted the village’s plea.*
Civil Service: City of San Antonio v. Int’l Ass’n of Fire Fighters, No. 04-17-00450-CV, 2018 WL 4096397 (Tex. App.—San Antonio Aug. 29, 2018). This appeal stems from the trial court’s judgment declaring that the City of San Antonio, its fire chief, and its city manager violated Chapter 143 of the Texas Government Code by creating a new non-classified position in the fire department and filling it with a non-civil-service employee, enjoining them from maintaining the non-classified position, and awarding the International Association of Firefighters (Association) attorney’s fees.
In late 2013, the city’s fire chief asked the city to create a new civilian (non-civil-service), non-classified, position of Assistant to the Director of the Fire Department. The city manager’s office and the city’s human resources department approved the request and posted the position over the Christmas holidays. The position was funded, in part, by eliminating a civilian, non-classified position in the fire department. After conducting interviews, the fire chief recommended the hiring of an individual who had worked for the fire department for 34 years and was a deputy chief when he retired in December 2013. The individual began work in the civilian position in January 2014.
The Association sued the city, the fire chief, and the city manager, in their official capacities, alleging: (1) the position of assistant to the director is a firefighter position within the scope of Chapter 143 that must be a classified position; and (2) the fire chief and the city manager, in their official capacities, acted ultra vires by creating and filling the position in violation of Sections 143.003 and 143.021 and violated the corresponding rights of the Association members. The Association further sought prospective injunctive relief and recovery of its attorney’s fees under the Uniform Declaratory Judgement Act (UDJA).
The court first addressed whether the city was immune from suit. The court found that Chapter 143 does not provide a waiver of immunity from the claims made in the lawsuit. Additionally, the UDJA waives immunity of a city if the plaintiff challenges the validity of an ordinance, but does not waive immunity from a claim that it violated the law. As a result, the court found that the city is immune from this lawsuit, and reversed the trial court’s judgement against the city and rendered judgement dismissing the Association’s claims against the city for lack of jurisdiction.
The court then addressed the Association’s ultra vires claims against the fire chief and the city manager. The central question is whether the new position is a “firefighter” within the meaning of Chapter 143. Pursuant to Chapter 143, all of the city’s “fire fighters” must be classified. A member of a fire department is a “firefighter” if their position requires substantial knowledge of firefighting and of work in the fire department, and includes an employee who performs: fire suppression; fire prevention; fire training; fire safety education; fire maintenance; fire communications; fire medical emergency technology; fire photography; fire administration; or fire arson investigation.
The court of appeals found that the city had sovereign immunity, and reversed the trial court’s judgement and rendered a judgment of dismissal. The court further held that the new position of assistant to the director of the fire department is a “firefighter” position that must be classified, and affirmed the judgement for declaratory and injunctive relief against the fire chief and the city manager, in their official capacities. Lastly, the court found that the officials are not immune from the award of attorney’s fees in an ultra vires action under the Uniform Declaratory Judgement Act, and affirmed the award.
Texas Tort Claims Act: City of San Antonio v. Smith, No. 04-17-00572-CV, 2018 WL 3998664 (Tex. App.—San Antonio Aug. 22, 2018). The district court denied the City of San Antonio’s, by and through City Public Service Board of San Antonio d/b/a CPS Energy (CPS Energy), plea to the jurisdiction in a case involving a motorcycle accident. The San Antonio Court of Appeals reversed the district court’s ruling.
Smith alleged that while he was driving his motorcycle on an exit ramp, he struck a light pole that had fallen on the roadway. Smith also alleged that he was unable to avoid the light pole and was thrown from his motorcycle sustaining serious injuries. Smith sued CPS Energy alleging that CPS Energy was negligent in failing to timely remove the light pole blocking the roadway and in failing to warn him of the light pole blocking the roadway. He asserted negligent activity, premises liability, and gross negligence claims against CPS Energy. CPS Energy filed a plea to the jurisdiction asserting that it was entitled to governmental immunity because: (1) the Texas Tort Claim Act’s (TTCA’s) limited waiver of immunity provided by Section 101.021 of the TTCA did not apply; (2) even if Smith had alleged facts that brought his claims within Section 101.021’s limited waiver of immunity, his claims were barred by statutory exceptions for emergencies provided under Sections 101.055(2) and 101.062(b) of the TTCA; and (3) any act on its part regarding the downed light pole was a discretionary act for which the legislature had not expressly waived immunity. In his response to the plea, Smith argued that: (1) CPS Energy shared with the City of San Antonio responsibility for the maintenance and removal of downed light poles in emergency situations under a joint enterprise theory; (2) CPS Energy and the city’s light pole maintenance was a proprietary function that was not protected by immunity; (3) CPS Energy was not protected by immunity because immunity does not extend to private companies exercising independent discretion; and (4) even if immunity did apply, it would be waived because the light pole obstructing the roadway was a special defect under the TTCA. The trial court granted CPS Energy’s plea as to Smith’s negligent activity claims, but denied its plea as to Smith’s premises liability and gross negligence claims.
The court first addressed whether the activities that form the basis of Smith’s claims were proprietary in nature. A governmental entity like CPS Energy does not have immunity when it engages in a proprietary function, and a municipality’s operation of its own public utility is a proprietary function. However, the fact that CPS Energy primarily functions as a public utility does not prevent it from performing activities that are governmental in nature. The court found that the activity that formed the basis of Smith’s claims – responding to a traffic hazard either by removing the hazard from the roadway or by warning drivers of the hazard – was a governmental function. The court then addressed CPS Energy’s argument that Smith’s claims were barred by Section 101.055(2) of the TTCA (the “emergency exception”). The emergency exception provides that immunity is not waived for a claim arising from the action of an employee while responding to an emergency call or reacting to an emergency situation, if the action was in compliance with the laws and ordinances applicable to the situation. If no law or ordinance is applicable to the situation, then the emergency exception will apply if the employee’s action was not taken with conscious indifference or reckless disregard for the safety of others. Reviewing the evidence, the court concluded that Smith’s claims arose from CPS Energy’s response to an emergency call or a reaction to an emergency situation. Therefore, the emergency exception applied and the trial court did not have subject matter jurisdiction over Smith’s claims against CPS Energy. The court reversed the trial court’s order denying CPS Energy’s plea to the jurisdiction.
Economic Development: City of Lancaster v. White Rock Commercial, LLC, No. 05-17-00583-CV, 2018 WL 3968484 (Tex. App.—Dallas Aug. 20, 2018) (mem. op.). This is an appeal by the City of Lancaster of a $4.7 million judgement rendered against it for breach of a Chapter 380 economic development agreement with White Rock Commercial, LLC, (White Rock), a real estate developer. The court of appeals affirmed, in part, and reversed and remanded, in part.
In 2007, White Rock found out about an 83-acre site in the city that the city wished to develop. The city was willing to provide economic incentives to promote the development. In August 2007, White Rock entered into two separate agreements that would provide funds to help develop the property: (1) an “Incentive Agreement” with the city’s economic development corporation (EDC); and (2) an “Economic Agreement” (“380 Agreement”) with the city. In both agreements, White Rock agreed to design and construct infrastructural improvements for a 1.4 million square-foot industrial park on the site. Such improvements were to be constructed according to the city’s plans and specifications and were to include a new public regional storm drainage and detention system, a wastewater or sanitary sewer system, a water delivery system, off-site utility trunk connections, and streets. Both agreements made White Rock responsible for funding the “Project Costs” – the actual costs incurred by White Rock to construct the infrastructural improvements, plus a specified rate of interest – subject to reimbursement. Each agreement provided for a different method of reimbursement. The Incentive Agreement authorized four $450,000 payments from the EDC to White Rock, totaling $1.8 million, with the first payment to be made ten days after commencement of the project. To trigger the remaining payments, this agreement required White Rock to construct a “Qualified Building” – a building or buildings on the project totaling at least 440,000 square feet – within thirty months of the city’s final acceptance of the infrastructural improvements. White Rock would receive the remaining three payments according to a schedule, with the final payment on August 1, 2009. The 380 Agreement, implemented through an annual economic development grant, apportioned into twenty scheduled payments by the city, to begin on October 1 following the first year that any office or industrial building constructed on the property was issued a certificate of occupancy, and they were to continue for an additional 19 years.
The parties disagreed as to why there were two agreements. The city claimed that the EDC had insufficient funds to fully reimburse the projected costs budgeted for the project, which totaled in excess of $3 million. In the city’s view, the 380 Agreement’s purpose was to reimburse White Rock’s expected costs that were in excess of the $1.8 million to be paid under the Incentive Agreement. White Rock claimed that the Incentive Agreement provided additional incentives above the amounts paid under the 380 Agreement.
White Rock completed the infrastructural improvements in June 2009. The city accepted the improvements nearly two months later. White Rock also completed a 442,000 square foot distribution center (the Qualified Building). The EDC paid White Rock the four $450,000 installment payments required by the Incentive Agreement. The city issued a temporary certificate of occupancy for the building in June 2012, but did not make any annual payments under the 380 Agreement. White Rock sold the building at a loss, and its lender took the undeveloped remainder of the property through a deed in lieu of a foreclosure transaction.
In June 2014, White Rock sued the city alleging that it breached the 380 Agreement and a motion for partial summary judgement arguing that the evidence established the city’s liability for breach of contract and negated the city’s affirmative defenses. The trial court granted White Rock’s breach of contract claim except for the amount of the damages, if any, to be determined at a later date, and ruled that each of the city’s affirmative defenses failed as a matter of law. The city subsequently filed a plea to the jurisdiction, claiming that it was immune from White Rock’s breach of contract suit and that the 380 Agreement created a debt prohibited by the Texas Constitution. The court denied the plea. After a bench trial, the court awarded White Rock actual damages in the amount of $4.7 million, prejudgment interest in the amount of $413,252.69, court costs, and post judgment interest at a rate of 3.75%, compounded annually. The city appealed.
The court first reviewed the 380 Agreement, which was focused on construction of infrastructure, to determine if the agreement constituted a governmental function or a proprietary function of the city. Because “the functions expressly covered by the 380 Agreement are expressly identified in section 101.0215 [of TTCA] as governmental functions,” the court determined that it would not apply the Wasson II [4-part] test.” Instead, the court relied on the legislative language to conclude that the 380 Agreement was entered into for a governmental purpose. As a result, the 380 Agreement was subject to analysis under the waiver of immunity provisions of Chapter 271 of the Texas Local Government Code. The city asserted White Rock was already legally required to construct and dedicate the infrastructure; therefore, the city’s assistance in financing the legal obligation was not a benefit, good, or service to the city. The court found that while the contract expressly stated it was expected to benefit the city and is expected to net $12.4 million in benefits, “this benefit to the City is too attenuated for a waiver.”
However, the court found that the circumstances of this case demonstrated that White Rock’s Agreement to construct the infrastructural improvements was itself a direct benefit to the city. Additionally, the city’s agreement to pay White Rock for such construction was further evidence of a contract for services. Thus, immunity was waived under Section 271.152. Further, the court held that the 380 Agreement was not an unconstitutional debt because the constitutional provision authorizing Section 380 agreements specifically provided that 380 agreements not secured by a pledge of ad valorem taxes or financed by bonds was not a debt. The court also noted that the 380 Agreement did not include any language, such as “if,” “provided that,” or “on condition that,” that would have created a condition precedent to performance. The court then analyzed the various points of error and concluded that the evidence supported the judgment against the city. However, the court found that the evidence did not support a claim by White Rock for insurance costs and the trial court erred in the pre-judgment and post-judgment interest calculations. The court affirmed the remainder of the judgment.*
Summary Judgment Affidavits: City of Granbury v. Thunderbolt Air, LLC, No. 07-18-00027-CV, 2018 WL 3966443 (Tex. App.—Amarillo Aug. 17, 2018) (mem. op.). Thunderbolt Air, LLC (Thunderbolt) was leasing space at the City of Granbury’s airport. The lease stated the manner in which Thunderbolt was to renew the lease, including certain time parameters for notification of the intention to renew. The city believed that Thunderbolt failed to notify the city of the intent to renew in the time period dictated in the lease and informed Thunderbolt the lease would expire. Thunderbolt sued the city for declaratory judgement that the lease remained enforceable and sought temporary injunctive relief barring the city from removing Thunderbolt pending disposition of the suit. Thunderbolt moved for a traditional summary judgment. The city filed a cross-action (really a counterclaim) against Thunderbolt asking the lease be nullified because of breach. The trial court granted the motion for summary judgment and awarded attorney’s fee to Thunderbolt.
The city appealed arguing: (1) the trial court did not file a conclusion of law supporting its decision to grant the summary judgment; and (2) the trial court erred in granting the summary judgment for various reasons, including that the supporting affidavits indicated affiant’s knowledge of the facts were based upon “information and belief.”
The court quickly overruled the city’s first argument explaining that the Texas Supreme Court held, in IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997), that a party is not entitled to a finding of fact or conclusion of law following a summary judgment. Next, the court reviewed whether the trial court erred in granting the summary judgment. The court found that the trial court did err because the supporting affidavits were not valid since the affiant did not have personal knowledge of all the facts in either the original or amended affidavit. The affiant swore that the facts stated in the affidavit were within his “personal knowledge” or “based upon information and belief procured from Thunderbolt’s records of regularly conducted business activity.” A similar statement was made in the amended affidavit. That the affiant did not have personal knowledge of all the facts made both affidavits defective and incompetent summary judgment proof. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). It also left the reader to guess which facts were derived from personal knowledge and which were based on affiant’s belief. The court reversed the final summary judgment and remanded the cause back to the trial court.
Charter Amendment: In re Silsbee Police Assoc., No. 09-18-00322-CV, 2018 WL 4223257 (Tex. App.—Beaumont Sept. 5, 2018) (mem. op.). In this case, the Beaumont Court of Appeals denies a petition for writ of mandamus seeking to compel the City of Silsbee to place a proposed charter amendment on the November 2018 ballot.
Pursuant to Local Government Code Section 9.004, relators submitted a petition for a charter amendment to the city. At its August 20, 2018, meeting, the city council voted to exclude the proposed charter amendment from the November 6, 2018 ballot. Relators filed a petition of writ of mandamus asking the court to order the city to place the charter amendment on the November ballot. The city argues that the petition for writ of mandamus was filed too late for effective compliance and that the court may not order the requested relief.
Section 9.004(b) provides that the ordinance ordering the election on a proposed charter amendment “shall provide for the election to be held on the first authorized uniform election date prescribed by the Election Code[.]” The Election Code requires elections held on a uniform date be ordered not later than the 78th day before election day. Relators filed their writ of mandamus on August 23, 75 days before the uniform election date. Thus, the court concludes it may not grant the requested relief because the time has passed for ordering the proposed charter amendment to be placed on the November ballot. The petition is denied.
Texas Tort Claims Act: Henry v. City of Midland, No. 11-16-00265-CV, 2018 WL 4201461 (Tex. App.—Eastland Aug. 31, 2018) (mem. op.). This is a Texas Tort Claims Act (TTCA) vehicle collision case where the Eastland Court of Appeals upholds the granting of the city’s plea to the jurisdiction based on lack of timely notice.
Henry sued the City of Midland asserting that “a manhole cover caught the underside” of his vehicle causing a single-vehicle accident. He pleaded that the manhole cover was tangible physical property but, in the alternative, that the manhole cover was a special defect or premises defect. The city filed a plea to the jurisdiction which the trial court granted.
The TTCA requires notice of a claim within six months and the City of Midland’s charter requires written notice of claim within sixty days after the injury or damage is sustained. Henry asserted the city had the required elements of actual notice of the claim. “Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.” Whether a governmental unit has actual notice is a fact question when the evidence is disputed, but it is a question of law when the evidence is undisputed. Henry relies on a police accident report to establish notice. There is no mention in the police accident report that a manhole cover was a cause of the accident or that the city’s maintenance of the manhole cover was a cause of the accident. Furthermore, the police accident report indicates that Henry was not injured as a result of the accident. That is insufficient to establish actual notice of fault or of the injury. The plea was properly granted.*
Employment: Wernert v. City of Dublin, No. 11-16-00104-CV, 2018 WL 4137472 (Tex. App.—Eastland Aug. 30, 2018). This is an employment discrimination case were the Eastland Court of Appeals affirms the granting of the city’s dispositive motion.
Wernert was a police officer for the city who suffered a serious knee injury on the job when he slipped and fell on an icy street while directing traffic. The injuries were listed as permanent, preventing him from continuing patrol duties. However, Wernert was also an investigator and continued to perform those duties for two years. Subsequently, the police chief added patrol duties back into his job requirements. Wernert filed an Equal Employment Opportunity Commission/Texas Workforce Commission (EEOC/TWC) charge. Wernert was then required to exhaust his leave but was later terminated by a new chief when he could not return to work, including patrol. Wernert filed suit but alleged acts which occurred after his EEOC/TWC charge was filed. The city filed a summary judgment motion, asserting a lack of jurisdiction for failing to exhaust administrative remedies. The trial court granted the motion and Wernert appealed.
Each discrete act of discrimination requires administrative remedy compliance. Discrete discriminatory acts are not actionable if time-barred, and each discrete discriminatory act starts a new clock for filing charges alleging that act. The court analyzed the current state and federal law and whether Wernert was required to file a supplemental charge in order to preserve acts which occurred after the first charge. The only adverse actions taken prior to the first charge was a change in job duties, while the forced leave and termination occurred after his charge. Adopting the reasoning from the U.S. Fifth Circuit Court of Appeals, as expressed in Simmons-Myers v. Caesars Entertainment Corp., 515 Fed. Appx. 269, 273 (5th Cir. 2013), the Eastland Court of Appeals held Wernert’s claims are precluded because he did not file an administrative charge for these discrete acts that occurred after his previous EEOC/TWC charge. Wernert was required to pursue administrative relief for each of these discrete acts even though they were related to the factual basis of his previous charge. And since the only acts for which he sought damages were the post-charge acts, the trial court properly granted the summary judgment.*
Texas Tort Claims Act: Camarena v. City of Weslaco, No. 13-17-00243-CV, 2018 WL 4143764 (Tex. App.—Corpus Christi Aug. 30, 2018.) (mem. op.). In April 2015, Maria Camarena was injured after she drove her car off of West Northcross Avenue in the City of Weslaco, over approximately ten feet of dirt and grass, and into a canal. Camarena sued the city for negligence. The city pleaded that Camarena’s claim was barred by the doctrine of governmental immunity, as the city did not own the canal, and even if it did, the canal constituted neither a premises nor a special defect. Camarena maintained that even if the city didn’t own the canal, it still constituted a special defect and its close proximity to the road precluded the application of the governmental immunity bar. The trial court granted the city’s plea to the jurisdiction, and Camarena appealed.
The dispositive question on appeal was whether or not the canal constituted a special defect. Under the Texas Tort Claims Act, a special defect includes “excavations or obstructions on highways, roads, or streets.” In order for the court to determine the canal was a special defect, the court needed to consider—among other things—whether the canal presented an unexpected or unusual danger to the ordinary users of the roadway. Because Camarena admitted to traveling approximately ten feet off the roadway before driving into the canal, the court determined she was not an ordinary user of the road under the special defect analysis prescribed by the Texas Tort Claims Act. Consequently, the canal could not constitute a special defect under the Texas Tort Claims Act. The court affirmed the trial court’s order granting the city’s plea to the jurisdiction.
Texas Tort Claims Act: Davis v. City of Aransas Pass, No. 13017000455-CV, 2018 WL 4140633 (Tex. App.—Corpus Christi Aug. 29, 2018.) (mem. op.). In September 2014, Johnny Lee Davis brought suit against the City of Aransas Pass, Aransas Pass Police Department, and three named police officers (collectively, the city) alleging libel and slander due to the publication of numerous false statements made by police officers alleging his involvement in the murder of a 16-year-old girl, Jenna Hernandez. In February 2017, Davis was convicted of soliciting the murder of Hernandez. Following the conviction, the city moved for no-evidence summary judgment, asserting governmental immunity and derived immunity and that Davis’s claims were barred because the challenge was to the legality of his confinement and because the statements themselves were true. The trial court granted summary judgment in favor of the city and Davis appealed.
On appeal, Davis argued that the trial court erred in granting the city’s motion for summary judgment. The city argued that summary judgment was appropriately granted because the city is immune from tort liability and immunity was not waived under the Texas Tort Claims Act. Because Davis was alleging claims for the intentional torts of defamation, libel, and intentional infliction of emotional distress, and because the Texas Tort Claims Act does not waive governmental immunity for intentional tort claims, the court concluded that the trial court did not err in granting the city’s motion of summary judgment on the basis of governmental immunity.
Political Advertising: In re Turner, No. 14-18-00649-CV, 2018 WL 4037533 (Tex. App.—Houston [14th Dist.] Aug. 23, 2018). This is an original mandamus where the Fourteenth District Court of Appeals in Houston reversed a trial judge’s order requiring the city to remove the video and transcript of the city’s budget meeting from its website.
A Houston firefighter association (association) collected petitions to place a charter amendment on the ballot which addresses comparable compensation between the firefighters and police. The city council scheduled a council vote for August 8, 2018, to place the charter amendment on the ballot. Pursuant to the Texas Local Government Code, for a charter amendment to appear on the November 2018 general election ballot, the city must publish a fiscal impact in the paper several times. The first publication must occur, at the latest, by mid-October 2018. Relators’ petition states that the city’s Budget and Fiscal Affairs Committee scheduled a public meeting for July 26, 2018, in anticipation of the publication. Various city officials spoke at the meeting and the association’s attorney was invited to speak. Afterwards a video was posted. Four days later, the association sought a temporary injunction to prevent release of the video asserting it violated the Election Code. A judge signed a temporary restraining order (TRO) prohibiting the city from displaying on city websites or other city-funded media platforms any audio, video, or transcribed versions of the July 26 meeting.
The association alleges the city violated Section 255.003 of the Election Code, which prohibits an officer or employee of a political subdivision from knowingly spending public funds for political advertising. “Political Advertising” includes a communication supporting or opposing a measure that appears on an Internet website. The city’s Budget and Fiscal Affairs Committee scheduled the July 26 public meeting to obtain information regarding the fiscal impact of the proposed charter amendment. The fiscal impact of the charter amendment is relevant to whether voters and councilmembers may oppose or support the charter amendment. The Fourteenth Court held it was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting. However, according to Ethics Advisory Opinion No. 456, such public discussion generally does not violate Section 255.003 of the Election Code. Such section was not intended to inhibit discussion of matters pending before a governmental body. In such a situation, public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the city’s website may be to re-publish statements supporting or opposing the charter amendment. As a result, the district court judge committed error, and mandamus was issued.*
Texas Tort Claims Act: Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018) (mem. op.). This is a vehicle accident/Texas Tort Claims Act (TTCA) case where the Fourteenth District Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.
The city’s inspector for the engineering department, Rendon, was driving a city vehicle on the way back from his lunch break. He stopped at the intersection, looked both ways, and saw Molina on the sidewalk twenty feet away. Rendon believed he had time to turn, confirmed there was no on-coming traffic from his left, and took his foot off the brake. The vehicle traveled approximately one foot before impacting Molina. When Rendon inquired, Molina stated he was fine, left the scene, and proceeded home. Molina later sued the city. The city filed a plea to the jurisdiction, which the trial court granted. Molina appealed.
It is the general rule that use of public streets or highways in going to or returning from one’s place of employment is not within the scope of one’s employment. The city admitted that while traveling to a job site, which Rendon was doing, was considered “on duty.” When the vehicle involved in an accident was owned by the defendant and the driver was an employee of the defendant, however, a presumption arises that the driver was acting within the scope of his employment when the accident occurred. The court went through a burden-shifting analysis noting evidence that the employee was on a personal errand to eat at the time of the accident, such as Rendon, refutes an allegation that he was acting in the course and scope of his employment. The burden then shifts to the city to present other evidence that Rendon was in the course and scope of his employment. An employee who has turned aside, even briefly, for a personal errand is no longer in the scope of employment until he returns to “the path of duty.” However, evidence that Rendon was returning to work from a personal errand at the time of the accident rebutted the presumption that he was acting in the course and scope. He had not returned to duty and the city’s conclusory statement about him being “on duty” is not a legal determination. Because there is no probative evidence that raises a genuine issue of material fact as to whether Rendon was engaged in the city’s business at the time of the accident, there was no dual purpose to Rendon’s personal errand. As a result, the plea was properly granted.*
*Indicates 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.