Note: Included cases are from August 11, 2022 through September 10, 2022.
Governmental Immunity: City of Pasadena v. APTVV, LLC, No. 01-20-00287-CV, 2022 WL 3268533 (Tex. App.—Houston [1st Dist.] Aug. 11, 2022) (mem. op.). The owners of two apartment complexes sued the City of Pasadena, claiming that certain fees charged in association with an exclusive waste management contract with a third party were excessive and amounted to an illegal tax. The city filed a plea to the jurisdiction, claiming governmental immunity from suit, and the trial court denied the plea. The appellate court affirmed, holding that governmental immunity is not available for a suit that alleges an unconstitutional tax.
Tort Claims Act: City of Houston v. Denby, No. 01-21-00422-CV, 2022 WL 3588753 (Tex. App.—Houston [1st Dist.] Aug. 23, 2022) (mem. op.). Denby sued the City of Houston for wrongful death after his mother suffered fatal injuries when EMTs dropped the stretcher on which she was being transported. The city filed a plea to the jurisdiction, claiming governmental immunity, and the trial court denied the plea. The city appealed.
The appellate court reversed, holding that Denby’s claim fell under the emergency services exception to the TTCA and therefore the city’s governmental immunity was not waived.
Pensions: City of Houston v. Houston Firefighters’ Relief & Ret. Fund, No. 01-20-00710-CV, 2022 WL 3722140 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022). The Houston Firefighters’ Relief and Retirement Fund sued the City of Houston for a declaratory judgment that S.B. 2190, a 2017 legislative amendment to the statute that created and governs the Fund, violated the Texas Constitution. The legislation provided certain actuarial assumptions and processes for calculating the contributions required from the city and from the Fund, and the Fund claimed that the legislation was unconstitutional as applied because the Constitution grants exclusive jurisdiction over those actuarial methods to the Fund’s board of directors.
The city filed a plea to the jurisdiction, claiming that governmental immunity was not waived because although the city is not entitled to governmental immunity from a suit to declare a statute unconstitutional, the Fund had not stated a facially valid constitutional claim. Both parties filed a motion for summary judgment. The trial court denied the city’s plea, denied the city’s motion for summary judgment, and granted the Fund’s motion for summary judgment.
The appellate court reversed, holding that the provision in Article XVI, Section 67(f) that states that the board “shall… select… an actuary and adopt sound actuarial assumptions to be used by the system or program…” does not provide the board exclusive jurisdiction over the process used to calculate the contributions. Therefore, the Fund’s claim was not a facially valid constitutional challenge and the city’s governmental immunity was not waived.
Tort Claims Act: City of Houston, Appellant v. Branch, Appellee, No. 01-21-00255-CV, 2022 WL 3970208 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022.) (mem. op.). Branch sued the City of Houston after he was injured when a privately owned golf cart used to transport a Houston city council member moved forward unexpectedly while it was parked and struck him. Branch claimed that governmental immunity was waived under the TTCA because the council member’s failure to engage the emergency brake or ensure the golf cart did not move constitute the negligent operation of a motor vehicle. The city moved for summary judgment, claiming governmental immunity, and the trial court denied the motion.
The appellate court reversed, holding that: (1) the waiver of immunity for claims arising from the negligent operation of a motor vehicle does not extend to privately owned vehicles; and (2) the motor vehicle exception did not apply because by sitting in the passenger seat, the council member was not “operating” the golf cart at the time of the accident.
Contracts: Merrell v. City of Sealy, No. 01-21-00347-CV, 2022 WL 3970078 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022) (mem. op.). After resigning as city manager from the City of Sealy, Merrell sued the city, claiming that that the actions of the city council and mayor amounted to a termination, which entitled Merrell to certain benefits under the contract governing his service as city manager. The city filed a plea to the jurisdiction claiming governmental immunity and a Rule 91a motion to dismiss. The trial court granted both the plea and the motion, and Merrell appealed.
The trial court affirmed, holding that: (1) governmental immunity was not waived for Merrell’s breach of contract claim because his resignation was voluntary and therefore he could not show that there was a balance due and owed to him under the contract; (2) Merrell’s claim for declaratory relief was not cognizable because it was simply a recharacterization of his breach of contract claim; and (3) the facts alleged by Merrell did not assert an ultra vires claim.
Tort Claims Act: Valdez v. City of Houston, No. 01-21-00070-CV, 2022 WL 3970066 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022) (mem. op.). Valdez sued the City of Houston for negligence after an unmarked police car driven by Houston police officer Martinez struck his vehicle from the rear. The city filed a motion for summary judgment, claiming governmental immunity. The trail court granted the city’s motion, and Valdez appealed.
The appellate court affirmed, holding that because in listening to the police radio while driving home after having finished work, Officer Martinez was not acting within the scope of her employment, and therefore the TTCA’s limited waiver of immunity was not triggered.
Employment: City of Denton v. Grim, No. 05-20-00945-CV, 2022 WL 3714517 (Tex. App.—Dallas Aug. 29, 2022) (mem. op.) Michael Grim and Jim Maynard sued the city of Denton on claims arising under the Texas Whistleblower Act after being terminated in retaliation for reporting Open Meetings Act (TOMA) and Public Information Act (TPIA) violations to the city attorney that related to the release of confidential information by a councilmember. After a jury rendered a verdict in favor of Grim and Maynard and the court entered a final judgment against the city, the city moved for a new trial on the grounds that evidence presented at trial was legally and factually insufficient to support the jury’s findings. The trial court denied the city’s motion for a new trial, and the city appealed, raising four issues including: (1) that the Whistleblower Act does not apply as a matter of law because the reported violation was committed by a councilmember acting in a personal capacity who is not the employing governmental entity; (2) the evidence did not support the findings that Grim’s and Maynard’s reports caused their terminations; (3) Grim and Maynard did not have a good faith belief the conduct they reported was a violation of law; and (4) the reporting should have been made to an appropriate law enforcement authority rather than the city attorney.
In affirming the denial, the appellate court concluded: (1) the councilmember’s actions, from the record, related to public interest and were not purely personal; (2) a reasonable jury could have determined Grim and Maynard had a good faith belief the councilmember violated the TOMA and TPIA by disclosing confidential competitive public power utility information to the Denton Record-Chronicle newspaper; and (3) that although the terminations occurred ten months after reporting the incident, once the makeup of the city council changed in line with the councilmember who was reported, Grim and Maynard were treated differently than other similarly situated employees and their terminations would not have occurred but for their reporting the councilmember. Because the issue was not properly preserved, the court declined to decide the city’s issue on whether the city attorney was “an appropriate law enforcement authority” for purposes of the Whistleblower Act. As a result, the appellate court affirmed the trial court’s judgment.
Substandard Buildings: Laza v. City of Palestine, No. 06-18-00051-CV, 2022 WL 3449819 (Tex. App.—Texarkana Aug. 18, 2022) (mem. op.). The city sued Laza for violating various city ordinances, including substandard building and junked vehicle ordinances, and a jury found in favor of the city. Laza appealed pro se. The appellate court affirmed the trial court’s and jury’s findings and rejected Laza’s arguments because: (1) the trial court had jurisdiction to enter judgment and post-judgment orders; (2) the trial court did not err in denying Laza’s Rule 12 motion to show authority; (3) Laza procedurally waived any complaints regarding the trial court’s denial of his special exceptions; (4) Laza failed to preserve his claimed jury charge error; (5) the motion to recuse was properly denied; and (6) there was no basis on which to vacate the judgment.
Wastewater Treatment Permits: City of Schertz v. Tex. Comm’n on Envtl. Quality, No. 07-20-00167-CV, 2022 WL 3708134 (Tex. App.—Amarillo Aug. 26, 2022). This case involves a dispute over a permit for a wastewater treatment plant. The city and Cibolo Creek Municipal Authority (CCMA) opposed a Texas Pollutant Discharge Elimination System (TPDES) permit for a wastewater treatment facility by Green Valley at the Texas Commission on Environmental Quality (TCEQ) on the grounds that the plant was located within CCMA’s exclusive regional area. After an administrative hearing, TCEQ granted Green Valley’s TPDES permit and the district court affirmed.
The appellate court affirmed the grant of the TPDES permit, finding: (1) CCMA and the city made no argument about how their substantial rights had been violated by TCEQ’s findings and conclusions; (2) the Commission did not err by concluding that Green Valley’s proposed discharge point was not within the CCMA’s regional area because the regional area includes all of the listed cities and the air force base, not just one city in the area; and (3) TCEQ did not violate its policy promoting regionalization of waste treatment in Texas because the policy presumes it’s met if there is not an existing plant within three miles of a proposed plant, and the Green Valley plant is more than five miles from CCMA’s proposed plant.
Immunity: Sai Monahans Brother Hosp., LLC v. Monahans Econ. Dev. Corp., No. 08-21-00060-CV, 2022 WL 3646957 (Tex. App.—El Paso Aug. 24, 2022). The Monahans Economic Development Corporation (MEDC) sold property to Sai Monahans Brother Hospitality, LLC (Sai) for $280,000. The deed contained an option contract giving the MEDC the option to repurchase the property for $280,000 if Sai failed to meet several development and construction deadlines. Sai failed to meet the deadlines, and the MEDC notified Sai that it was exercising its repurchase option. Sai sued the MEDC and the City of Monahans (Monahans) asserting numerous claims basically seeking a declaration that it would be unjust and unfair to enforce the terms of the deed and the option contract. Monahans and the MEDC filed a plea to the jurisdiction with the city claiming governmental immunity and the MEDC claiming “derivative immunity.” Subject to its plea to the jurisdiction, the MEDC also countersued Sai for specific performance of the option contract. The trial court granted the pleas, and Sai appealed. Generally, a city is shielded from lawsuit by governmental immunity when performing governmental functions, unless that immunity has been waived by statute or the constitution. In this case, no allegations were made that the Monahans was a party to any of the agreements between Sai and MEDC; furthermore, Sai failed to allege any action on the part of the city that would overcome the city’s governmental immunity. Consequently, the appellate court upheld the trial court’s grant of Monahans’s plea, subject to Sai’s ability to replead facts related to jurisdiction. The appellate court, however, reversed the trial court with regard to the MEDC’s “derivative immunity” plea. The MEDC is not a political subdivision, so it does not automatically enjoy the same governmental immunity protections as a city. That said, MEDC made a fairly novel argument that it should be protected by “derivative immunity,” a legal theory that has never existed in Texas. Under a “derivative immunity” theory, MEDC argued that because it acts on behalf of the city, Monahan’s governmental immunity should extend to the MEDC. Ultimately, the level of control Monahans exerts over the MEDC was not sufficient to entitle the MEDC to derivative immunity, and the appellate court overruled the trial court’s grant of the MEDC’s plea to the jurisdiction.
Ordinances: City of Port Arthur v. Thomas, No. 09-21-00111-CV, 2022 WL 3868106 (Tex. App.—Beaumont Aug. 31, 2022). Thomas sued the City of Port Arthur to enjoin enforcement of two ordinances that prevented heavy trucks from accessing the service Thomas provided on his property, which was the disposal of water-based drilling mud. Thomas claimed tortious interference with his business, violations of the Equal Protection Clause, and regulatory taking. Thomas claimed that the city’s actions were ultra vires because the ordinances were preempted by Section 81.0523, Natural Resources Code, which provides the state with exclusive jurisdiction over certain oil and gas operations. The city filed a plea to the jurisdiction claiming governmental immunity. The trial court denied the city’s plea and the city appealed.
The appellate court held that: (1) fact issues existed as to whether the city’s actions were ultra vires and affirmed the trial court’s denial of the city’s plea to the jurisdiction claiming governmental immunity; and (2) Thomas’s claim under the UDJA for a declaratory judgment against the city and his claims against the city for alleged Equal Protection Clause violations, inverse condemnation, and regulatory takings were barred by governmental immunity.
Governmental Immunity: Weatherford Int’l, LLC v. City of Midland, No. 11-20-00255-CV, 2022 WL 3904001 (Tex. App.—Eastland Aug. 31, 2022). Weatherford International, LLC and Weatherford U.S., L.P. (Weatherford) sued the city of Midland, seeking contribution under the Solid Waste Disposal Act (SWDA) for “past and future response costs incurred to remediate the contamination of well water” on Weatherford’s property. The city subsequently filed a plea to the jurisdiction based on governmental immunity and the trial court granted the motion. Weatherford appealed, arguing the SWDA waives the city’s governmental immunity, and, therefore, the trial court erred when granting the city’s plea to the jurisdiction and dismissing its cost-recovery claims for lack of subject matter jurisdiction. However, because the language under the SWDA is unambiguous and the cost-recovery provision is only applicable when a governmental entity is responsible for the solid waste, the court affirmed the trial court’s order reasoning that the claims were not as a result of the city’s disposal of solid waste, but instead were limited to the city’s operation of a domestic sewer system that “collects domestic sewage for conveyance and subsequent treatment.”
Inverse Condemnation: Pate v. City of Rusk, No. 12-22-00118-CV, 2022 WL 3754714 (Tex. App.—Tyler Aug. 30, 2022). Pate was hired to demolish a residential structure, and as part of the consideration for this work, he was entitled to receive any building materials he was able to salvage. Pate received a demolition permit from the City of Rusk (Rusk) and began demolishing the building and salvaging materials. A few months later, with the demolition still unfinished, Rusk sent a crew to complete the work and dispose of the building materials. Rusk then sent Pate an invoice for the cost of demolition. Pate sued Rusk for a taking and a declaratory judgment that he was not liable for the cost of demolition, and Rusk filed a plea to the jurisdiction. The trial court granted Rusk’s plea and dismissed all Pate’s claims, and Pate appealed. The Texas Constitution contains an unambiguous waiver of governmental immunity from suit for inverse condemnation or takings claims. In this case, Rusk argued that Pate did not properly state a takings claim, because he was not the owner of the property at issue (the salvaged building materials) and therefore lacks standing to bring an inverse condemnation case. To have standing, a party must have a vested right to the property at issue at the time of the alleged taking.
The appellate court analyzed when Pate would have been entitled to salvage the property, ultimately reversing the trial court’s dismissal of Pate’s takings claims and allowing for further proceedings in the trial court to clarify any jurisdictional questions. The appellate court affirmed the trial court’s dismissal of Pate’s declaratory judgment claims against Rusk, because he had failed to exhaust all administrative remedies before petitioning the court.
Contracts: Tex. Mun. League Intergovernmental Risk Pool v. City of Hidalgo, No. 13-22-00250-CV, 2022 WL 3651986 (Tex. App.—Corpus Christi–Edinburg Aug. 25, 2022) (mem. op.). The City of Hidalgo sued the Texas Municipal League Intergovernmental Risk Pool for the denial of a claim for property damage arising from a hurricane. The Risk Pool filed a plea to the jurisdiction, claiming that governmental immunity was not waived under Chapter 271 of the Local Government Code because by failing to file suit in Travis County as the insurance contract between the parties required, the city had not abided by the adjudicative processes as required by Chapter 271. The trial court denied the Risk Pool’s plea and the Risk Pool appealed.
The appellate court affirmed, holding that the contract’s requirement that a party sue in a particular county in Texas was a venue selection clause rather than a forum selection clause and therefore unenforceable.
Contracts: City of Weslaco v. De Leon, No. 13-20-00561-CV, 2022 WL 3652501 (Tex. App.—Corpus Christi–Edinburg Aug. 25, 2022) (mem. op.). De Leon sued the City of Weslaco for breach of contract after the city’s termination of De Leon’s lease of an airport hangar. The city filed a plea to the jurisdiction claiming immunity from suit, and the trial court denied the plea. The city appealed.
The appellate court reversed and rendered, holding that: (1) a lease is not a contract for goods and services, so the waiver of immunity in Chapter 271, Local Government Code, did not apply; (2) the airport director’s actions in filing trespass charges against De Leon were not ultra vires; and (3) the city’s defensive declaratory judgment claim did not operate to waive the city’s immunity to suit.
Tort Claims Act: City of Houston v. Arellano, No. 14-21-00117-CV, 2022 WL 3268152 (Tex. App.—Houston [14th Dist.] August 11, 2022). Roberto Arellano sued the City of Houston (Houston) for personal injuries sustained when the vehicle he was travelling in was struck by a Houston employee driving to a fire station to perform HVAC repairs. Houston filed a motion for summary judgment asserting immunity to the claims, which was denied by the trial court. Houston appealed. Generally, cities are protected by governmental immunity from personal injury lawsuits. The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity for damages arising from the operation of a motor-driven vehicle. In this case, Houston first argued its employee was not acting within the scope of his employment rendering the TTCA waiver of immunity ineffective. Because the employee had already clocked in, swapped his personal vehicle for a city vehicle and was responding to the call for service when the collision occurred, the court held that the employee was acting within the scope of his employment and rejected Houston’s argument. Additionally, the TTCA has an “emergency exception” which can negate the TTCA waiver of immunity for damages that occur when an employee is responding to an emergency call. After analyzing the facts surrounding the need for the HVAC service, the court ruled that the emergency exception did not apply and ultimately affirmed the trial court’s denial of Houston’s motion for summary judgment.
Tort Claims Act: City of Houston v. Gilbert, et al., No. 14-21-00604-CV, 2022 WL 3589179 (Tex. App.—Houston [14th Dist.] August 23, 2022). Two children suffered electrocution injuries while participating in a little league softball practice at a City of Houston (Houston) park. The incident was witnessed at close range by several bystanders. The representatives of the children and the bystanders sued Houston for personal injuries based on negligence and premises liability. Houston filed a plea to the jurisdiction arguing that Houston should be protected from suit by governmental immunity because (1) the claimants were licensees rather than invitees, and (2) Houston had no actual knowledge of the dangerous conditions at the park, and (3) the claimants failed to establish gross negligence. The trial court denied Houston’s plea, and Houston appealed. While a city is generally immune from suit when performing a governmental function, the Texas Tort Claims Act (TTCA) waives this immunity under certain circumstances. In a premises liability case, the TTCA waives immunity for a city as to personal injury if the city would have been liable for the injury if it were a private person. After analyzing the facts, the court determined that the children were invitees on the property but that one bystander was a licensee. Licensees must show that the city acted with gross negligence to prevail on a premises liability claim, and because the licensee bystander failed to allege facts supporting gross negligence, their claims were dismissed. With regard to the invitee children, the trial court’s denial of Houston’s plea was upheld by the appellate court, because there was evidence that Houston had actual knowledge of the dangerous condition and failed to correct it or warn the invitees of its existence. The case was remanded to the trial court for further proceedings.
Tort Claims Act: Krause v. Mayes, No. 14-21-00656-CV, 2022 WL 2589270 (Tex. App.—Houston [14th Dist.] August 23, 2022). Kenneth Mayes sued the City of Houston (Houston) and Houston police officer Bradley Krause for personal injuries sustained when the vehicle he was travelling in struck Krause’s police car, which was performing an unexpected U-turn. The Texas Tort Claims Act (TTCA) contains an election of remedies section that bars recovery against an employee when the employer city is sued on the same basis. Following this section of the TTCA, Houston filed a motion to dismiss its employee Krause from the suit. In his response to Houston’s motion to dismiss, Mayes non-suited the city. Krause then filed a motion to dismiss the claims against him based on the election of remedies in the TTCA, but the trial court denied Krause’s. Krause appealed. The TTCA is clear in its language, and the Texas Supreme Court has been equally clear in its interpretation: the election of remedies under the TTCA is irrevocable. In this case, by suing both Houston and Krause, Mayes made an irrevocable election under the TTCA to pursue a vicarious liability theory against Houston, and Houston’s motion to dismiss Krause from the lawsuit triggered Krause’s right to be dismissed, regardless of Mayes’ later non-suiting of Houston. The appellate court reversed the lower court’s denial of Krause’s motion to dismiss and remanded the case back to the trial court for further proceedings.
Tort Claims Act: City of Houston v. Breckenridge, No. 14-21-00086-CV, 2022 WL 4103202 (Tex. App.—Houston [14th Dist.] September 8, 2022) (mem. op.). Christyn Breckenridge sued the City of Houston (Houston) for personal injuries sustained when she fell into a water utility hole in downtown Houston. Houston filed motions for summary judgment (MSJs) asserting immunity from the claims, which were denied by the trial court after significant back-and-forth pleading between the parties. Houston appealed. Generally, cities are protected by governmental immunity from personal injury lawsuits. In some cases, the Texas Tort Claims Act (TTCA) provides a limited waiver of governmental immunity for damages arising from premises defects. The TTCA provides different standards for “ordinary” defects and “special” defects. For an ordinary defect, a city owes a duty that a private person owes a licensee: not to injure the licensee by willful, wanton or grossly negligent conduct and to use ordinary care to warn the licensee of a dangerous condition of which the city has actual knowledge. For a special defect, the city would have the same duties a private landowner would have to an invitee, i.e, to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of which the owner should be aware. The appellate court determined that the hole in the sidewalk was a special defect, because it posed an unexpected and unusual danger to ordinary users of the sidewalk; therefore, Houston had a duty to warn pedestrians of the danger. A question of fact exists regarding whether Houston provided sufficient warning; therefore, the trial court’s denial of Houston’s MSJ was affirmed. Houston also argued that because a Houston employee had placed a cone in the hole, that that employee’s official immunity from suit would extend to the city. In some cases, an employee’s official immunity can shield a city from liability, but not in the case of a premises defect. Ultimately, the court affirmed the trial court’s denial of Houston’s MSJs.
Tort Claims Act: City of Houston v. Rodriguez, No. 14-21-00107-CV, 2022 WL 4100042 (Tex. App.—Houston [14th Dist.] September 8, 2022). Ruben Rodriguez and Frederick Okon sued the City of Houston (Houston) for personal injuries sustained when the vehicle they were travelling in was struck by a Houston police officer who was engaged in a high-speed vehicle pursuit. Houston filed a motion for summary judgment asserting immunity to the claims, which was denied by the trial court. Houston appealed. Generally, cities are protected by governmental immunity from personal injury lawsuits. Additionally, a governmental employee is entitled to official immunity for (1) performance of discretionary duties, (2) within the scope of the employee’s authority, (3) if the employee is acting in good faith. Governmental and official immunity can be constitutionally or statutorily waived. Under certain circumstances, the Texas Tort Claims Act provides a limited waiver of immunity for damages arising from the operation of a motor-driven vehicle. In a police pursuit the officer acts in good faith if a reasonably prudent officer in similar circumstances could have believed that the need for the officer’s actions outweighed a clear risk of harm to the public from those actions. After analyzing the instant fact pattern against good faith and risk factors, the court found that the need to engage in the high-speed pursuit was not reasonable in light of the risk to the public and upheld the trial court’s ruling.