Note: Included cases are primarily from August 11, 2020 through September 10, 2020.
Healthcare Liability: City of Houston v. Houston, No. 01-19-00255-CV, 2020 WL 4982675 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020). The plaintiff sued the City of Houston for her injury during her ambulance transport. The city filed a motion to dismiss because the city claimed it was a medical negligence claim requiring an expert report. The court of appeals held that emergency medical services for the city is a “health care provider” based on the definition of “health care institution” and that the claim involves a nexus between the injuries and the provision of medical care. The court held that the case should have been dismissed because the plaintiff failed to file an expert report.
Employment: City of Houston v. Trimmer-Davis, No. 01-19-00088-CV, 2020 WL 4983253 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020) (mem. op.). Trimmer-Davis sued the City of Houston for retaliation and to remove a determination from her file that she filed a false complaint of discrimination. After she filed her lawsuit, the city terminated her for failure to follow drug test procedures, which she added to her suit. The trial court granted the city’s plea to the jurisdiction as to the recordkeeping claim but denied the plea for the one-day suspension and the termination. Both parties appealed. The court of appeals found there was sufficient evidence that the city had non-retaliatory reasons for the termination, but not for the suspension or the untruthfulness finding in her file. The court of appeals sent the case back to the trial court on the recordkeeping and suspension retaliation claims.
Elections/Candidate Eligibility: Jefferson-Smith v. City of Houston, No. 01-20-00136-CV, 2020 WL 4589745 (Tex. App.—Houston [1st Dist.] Aug. 11, 2020).Jefferson-Smith sued the City of Houston to prevent her opponent from appearing on a ballot in a runoff election because she claimed the opponent had been convicted of a felony for which she had not been pardoned or relieved of the disability. The trial court dismissed her claims for failing to provide sufficient evidence to the administrative authority of whether the opponent had been pardoned or relieved of the disability. The appellate court upheld the trial court’s finding on appeal because the documents that Jefferson-Smith presented to the administrative authority regarding her opponent’s eligibility present a fact question.
Employment: University of North Tex. Sys. v. Barringer, No. 02-19-00378-CV, 2020 WL 5414973 (Tex. App.—Fort Worth Sept. 10, 2020) (mem. op.). Barringer sued the University of North Texas (UNT) for age discrimination and retaliation when she resigned her position before UNT could conduct an investigation into her alleged misconduct. The trial court denied UNT’s plea to the jurisdiction and UNT appealed. The appellate court reversed the trial court and dismissed the case for want of jurisdiction because Barringer failed to rebut UNT’s evidence that UNT did not constructively discharge her.
Non-Disclosure Agreement: Fitzsimmons v. Killeen Indep. Sch. Dist., No. 03-19-00535-CV, 2020 WL 4726697 (Tex. App.—Austin Aug. 14, 2020) (mem. op.). Fitzsimmons, a former teacher at Killeen Independent School District (district), sued the district alleging that it violated a non-disclosure clause in a settlement agreement when a district employee disclosed to another school district the reason for Fitzsimmons’s termination from the district. The district filed a plea asserting governmental immunity. The trial court sustained the plea without specifying its reasons. The court of appeals affirmed, finding that because Fitzsimmons failed to address damages that he may be entitled to under Chapter 271 of the Local Government Code, immunity from suit was not waived.
Employment: Webb Cty. v. Romo, No. 04-19-00849-CV, 2020 WL 5027389 (Tex. App.—San Antonio Aug. 26, 2020).Romo, who was running for office of county constable, sued Webb County after he was terminated from his position as chief investigator for the county attorney’s office, claiming, among other things, violation of the Texas Constitution’s first amendment rights to free speech, freedom of association, and free and due process speech claims, and breach of contract. The county argued that it was immune from Romo’s claims. The trial court denied the county’s plea to the jurisdiction. The court of appeals held that Romo’s request for money damages for the alleged violations of his free speech and association rights are barred by sovereign immunity, but the remedy of reinstatement was valid. The court also found that the county was immune from the contract claim.
Governmental Immunity: City of San Antonio v. Von Dohlen, No. 04-20-00071-CV, 2020 WL 4808722 (Tex. App.—San Antonio Aug. 19, 2020). Thecity council voted to approve a concession agreement that would exclude a subcontractor from operating a Chick-Fil-A restaurant at the city’s airport. Subsequently, the Texas Legislature passed legislation prohibiting governmental entities from discriminating against any person on the basis of its membership in, affiliation with or support provided to a religious organization. Shortly thereafter, the appellees sued the city for declaratory and injunctive relief, arguing that the city was violating state law by continuing to exclude Chick-Fil-A from operating at the airport. The city filed a plea based on governmental immunity and a Rule 91 motion to dismiss. The trial court denied the plea and the motion. The court of appeals only addressed the plea as it was dispositive, finding that a claim to effectively nullify the concession agreement, which was made prior to the enactment of the new legislation, was barred by governmental immunity.
Quo Warranto: City of Leon Valley v. Martinez, No. 04-19-00879-CV, 2020 WL 4808711 (Tex. App.—San Antonio Aug. 19, 2020). After the city council removed Martinez from his elected office as council member and appointed his replacement, Martinez sued the city seeking reinstatement. The city filed a plea, arguing that a quo warranto proceeding was Martinez’s exclusive remedy. The trial court denied the appeal. The court of appeals held the remedy to seek reinstatement was a quo warranto action.
Elections: City of Floresville v. Gonzalez-Dippel, No. 04-20-00070-CV, 2020 WL 4606902 (Tex. App.—San Antonio Aug. 12, 2020) (mem. op.). The city’s charter requires municipal elections be held on the May uniform election date, but, in 2011, the city council, adopted a resolution changing the date of its May election to November. In 2019, the city council repealed the 2011 resolution, changing the date for all future municipal elections back to May. Candidates for places 3, 4, and 5 who had filed for a place on the ballot for the November 2019 election before the 2019 resolution was passed, and the city’s mayor, Gonzalez-Dippel, in her official capacity, sued the city and each of the other city council members and the city secretary in their official capacities, seeking declaratory and injunctive relief for the 2019 resolution was allegedly passed in violation of the Election Code and the Texas Open Meetings Act (TOMA). The city filed a general denial and a plea. The trial court denied the city’s plea and granted a temporary injunction declaring the 2019 resolution void, places 3, 4, and 5 vacant, and ordering the city to hold a special election in May 2020. The court of appeals reversed in part the trial court’s order denying the plea, holding that the mayor had no standing to sue in her official capacity and the claims for declaratory and injunctive relief were improper attempts to pursue a quo warranto claim. The court remanded to the trial court the city’s mootness challenge to the TOMA claims, and affirmed the trial court’s order as to the claim that the 2019 resolution violated the Election Code.
Annexation: City of Terrell v. Edmonds, No. 05-19-01248-CV, 2020 WL 5361978 (Tex. App.—Dallas Sept. 8, 2020) (mem. op.). In response to the city’s efforts to annex 1000-foot wide strips along specific state highways, property owners residing outside the city limits sued the city alleging that the proposed annexation violated the city charter and state law, and that the notice of the proposed annexation was insufficient under the Texas Open Meetings Act (TOMA). The city argued, among other things, that the suit was not ripe as city council had yet to vote on the annexation and that an injunction to stop council from voting on the annexation ordinance based on alleged violations of TOMA may only be asserted in a quo warranto proceeding. The trial court denied the plea. The court of appeals held that appellants’ allegations were not ripe and that a quo warranto proceeding is the only proper method of attacking the validity of a city’s proposed annexation based on TOMA violations.
Whistleblower: Herrera v. Dallas Indep. Sch. Dist., No. 05-19-01290-CV, 2020 WL 5054798 (Tex. App.—Dallas Aug. 27, 2020). Herrera sued the Dallas Independent School District (district) after he was terminated at the end of his probationary period, claiming whistleblower retaliation for making complaints to Child Protective Services regarding suspected child abuse by other district teachers. The district filed a plea to the jurisdiction asserting that Herrera failed to follow the district’s grievance process before filing suit. The trial court granted the district’s plea. The court of appeals reversed and remanded, finding that a fact issue exists regarding whether Herrera complied with the jurisdictional prerequisites for a whistleblower suit.
Governmental Immunity: City of Saginaw v. Cruz, No. 05-19-01141-CV, 2020 WL 5054802 (Tex. App.—Dallas Aug. 27, 2020) (mem. op.). Cruz was allegedly injured when a manhole cover flipped open in front of the vehicle he was driving causing the vehicle to flip over and skid down the road on its roof. He sued the city for negligence and premise liability. The city filed a plea to the jurisdiction alleging governmental immunity and abuse of discretion in denying its motion to amend its admissions. The trial court denied the city’s plea. The court upheld the trial court’s order, finding that there was sufficient evidence to raise a fact question as to whether the city had constructive knowledge that the manhole did not conform to contract requirements before it was put to use, and that the trial court did not abuse its discretion in denying the motion.
Platting: Escalera Ranch Owners’ Ass’n, Inc. v. Schroeder, No. 07-19-00210-CV, 2020 WL 4772973 (Tex. App.—Amarillo Aug. 17, 2020). The Homeowner’s Association of Escalera Ranch (HOA) sued the City of Georgetown Planning and Zoning Commission (commission) seeking a temporary injunction to halt a new development and mandamus relief to invalidate the associated plat. The plat provided access to a new subdivision via a residential street that provides access to and through the Escalera Ranch neighborhood. The court of appeals held: (1) the HOA has standing to sue the commission; and (2) if the plat doesn’t comply with the applicable regulations, the commission’s actions could constitute an abuse of discretion, subject to mandamus relief.
Tort Claims Act: City of El Paso v. Cangialosi, No. 08-19-00163-CV, 2020 WL 5105217 (Tex. App.—El Paso Aug. 31, 2020). The plaintiff alleges that the manner in which police officers conducted a pursuit proximately caused an automobile collision in which plaintiff was involved. The court of appeals held the city’s plea to the jurisdiction was properly denied by the trial court because there was some evidence the officers were in pursuit at the time of the crash and that the officers had violated city policy.
Tort Claims Act: Jefferson Cty. v. Reyes, No. 09-18-00236-CV, 2020 WL 5414985 (Tex. App.—Beaumont Sept. 10, 2020) (mem. op.). Reyes sued Jefferson County and a county employee, Lawrence Flanagan, under the Texas Tort Claims Act (TTCA) for injuries and property damage resulting from an automobile collision between Reyes and Flanagan. The county filed a plea to the jurisdiction arguing that Reyes failed to comply with the presentment requirement in Local Government Code Section 89.004 which was a statutory prerequisite to suit. On remand from the Texas Supreme Court, the court of appeals holds that Section 89.004 is not a statutory prerequisite to suit contemplated by Section 311.034 of the Code Construction Act, and therefore, any failure to comply with this presentment provision did not operate as a jurisdictional bar to Reyes’s TTCA lawsuit against the county.
Premise Defect: City of Beaumont v. Isern, No. 09-19-00451-CV, 2020 WL 4680200 (Tex. App.—Beaumont Aug. 13, 2020) (mem. op.). Isern alleged he was injured when he struck a water valve street cover on a city roadway while riding his bicycle. He asserted claims for the negligent use of tangible personal property, special defect, and premise defect. The court of appeals held: (1) Isern’s pleadings fail to allege facts that affirmatively demonstrate that his injuries arose from the city’s use of tangible personal property; and (2) the valve cover is not a special defect. As to the premise defect claim, the court of appeals found the city’s plea to the jurisdiction should not have been granted because Isern’s pleadings are sufficient to meet his burden of showing a waiver of immunity.
Code Enforcement: Wolf v. City of Port Arthur, No. 09-19-00047-CV, 2020 WL 4516857 (Tex. App.—Beaumont Aug. 6, 2020) (mem. op.). Pro se Plaintiff Wolf sued the city seeking a temporary restraining order (which was granted by the trial court) and temporary injunctive relief to prevent the city from demolishing a building. The court of appeals held that the trial court did not abuse its discretion in denying the injunctive relief.
Immunity: Mclennan Cty. Water Control & Improvement Dist. v. Geer, No. 10-17-00399-CV, 2020 WL 4218085 (Tex. App.—Waco July 22, 2020) (mem. op.). The water district turned off the plaintiffs’ water after it was discovered that the plaintiffs had two buildings hooked up to the same meter. The plaintiffs’ sued for breach of contract for turning off their water and for trespass under the Tort Claims Act for entering their property without permission. The court of appeals dismissed the case against the water district because the plaintiff failed to allege a cause of action that waives governmental immunity for breach of contract (Chapter 271 of the Local Government Code) or for negligence (Texas Tort Claims Act) for actions surrounding the disconnection of plaintiffs’ water by the district.
Code Enforcement: House of Praise Ministries, Inc. v. City of Red Oak, No. 10-19-00195-CV (Tex. App.—Waco Aug. 6, 2020) (mem. op.). The plaintiff owns a piece of property in the City of Red Oak that was the subject of code enforcement actions, including a substandard building declaration in municipal court. The plaintiff initially brought claims for a regulatory taking, a procedural due process violation, and a substantive due process violation based on the municipal court case determining that the buildings on the property were substandard. In a previous ruling, the regulatory taking and procedural due process claims were dismissed, but the plaintiff was given the opportunity to replead the substantive due process claim. The plaintiff repled the substantive due process claim, including allegations that the city violated plaintiff’s substantive due process rights by offering an amortization agreement, engaging in overzealous code enforcement actions, and filing a lis pendens prematurely. The court of appeals affirmed the trial court’s grant of a plea to the jurisdiction because none of plaintiff’s allegations rise to the level of a substantive due process violation.
Accident Reconstruction Expert: Flores v. Verastegui, No. 11-18-00166-CV, 2020 WL 5057375 (Tex. App.—Eastland Aug. 27, 2020) (mem. op.). Plaintiff was injured as a result of an accident involving a City of Abilene roll-off style garbage truck. A jury determined that no negligence on the part of the city’s employee was a proximate cause of the accident, and the trial court entered judgment against another defendant (Verastegui). Plaintiff challenges the judgment asserting: (1) that the trial court abused its discretion by admitting certain expert testimony, reports, and an animation prepared by the city’s expert; and (2) that the evidence was factually insufficient to support the jury’s finding as to the city. The appellate court affirms the judgment of the trial court.
Breach of Construction Contract: City of Palestine v. LS Equip. Co., Inc., No. 12-19-00264-CV, 2020 WL 5047905 (Tex. App.—Tyler Aug. 26, 2020) (mem. op.). This appeal results from a breach of contract dispute between the City of Palestine and Lone Star Equipment (a paving company) regarding a road construction project. After numerous disputes involving the location of the road, materials, and construction methods, Lone Star sued the city for breach of contract and prevailed. The court of appeals affirmed the trial court’s decision based on procedural grounds, specifically sufficiency of the evidence and jury charges.
Constitutional Gift Prohibition: Concerned Citizens of Palm Valley, Inc. v. City of Palm Valley, No. 13-20-00006-CV, 2020 WL 4812641 (Tex. App.—Corpus Christi Aug. 13, 2020) (mem. op.). In this unreported opinion, concerned citizens sought a temporary injunction against the spending of public funds to improve a private golf course, alleging a violation of the Texas Constitution’s “gift prohibition.” The court of appeals refused to issue the injunction by concluding that the plaintiffs lacked standing because they did not allege in their petition or provide any evidence that the group or any of its members suffered or would likely suffer any particularized injury as a result of the city’s work on the golf course.
Employment Discrimination: Donna Indep. Sch. Dist. v. Castillo, No. 13-19-00395-CV, 2020 WL 4812638 (Tex. App.—Corpus Christi Aug. 13, 2020) (mem. op.). In this case, a school district police officer claimed discrimination (based on age and sex). The school district argued that she failed to exhaust her administrative remedies and, therefore, the trial court lacked jurisdiction over her claims. The court of appeals concluded that the trial court: (1) has jurisdiction over her age discrimination claims based on her transfer and her retaliation claims based on adverse actions taken in response to her administrative complaints; but (2) does not have jurisdiction over her claim for sexual harassment, hostile work environment caused by sex discrimination, and any other sex discrimination alleged in her petition that occurred after her charge was filed with the Texas Workforce Commission.
Tort Claims Act – Notice of Claim: Metro. Transit Auth. of Harris Cty. v. Hunter, No. 14-18-00822-CV, 2020 WL 4760206 (Tex. App.—Houston [14th Dist.] Aug. 18, 2020) (mem. op.). The trial court denied the transit authority’s plea to the jurisdiction in a personal injury lawsuit. On appeal, the court held that the plaintiff’s claim is not jurisdictionally barred because her pleadings provided proper notice of suit as required by the Texas Tort Claims Act.
*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.