Note: Included cases are from August 11, 2023, through August 31, 2023.
Tort Claims Act: City of Houston v. Ledesma, No. 01-22-00377-CV, 2023 WL 5535668 (Tex. App.—Houston [1st Dist.] Aug. 29, 2023) (mem. op.). Ledesma sued the City of Houston after she was allegedly injured in a collision with a Houston Police Department vehicle driven by Suarez, who was off-duty and travelling to her second job but was wearing an HPD uniform. The city filed a motion under the Texas Tort Claims Act’s (TTCA) election-of-remedies provision to dismiss Suarez from the suit, which the trial court granted, and then the city filed a motion for summary judgment claiming immunity under the TTCA, arguing that Suarez was not acting in the scope of her employment at the time of the collision. The trial court granted the motion for summary judgment and Ledesma appealed.
The appellate court reversed the grant of the motion for summary judgment and remanded to the trial court, holding that by moving to dismiss the claims against Suarez under the TTCA’s election-of-remedies provision, the city had judicially admitted that Suarez was acting in the scope of her employment. The city filed a motion for en banc rehearing which was denied and a petition to the Supreme Court which was also denied. The city then filed a plea to the jurisdiction in the trial court, the trial court denied the plea, and the city appealed.
The appellate court affirmed, holding that its prior decision had addressed all aspects of the city’s arguments concerning the judicial admission issue and so the law-of-the-case doctrine applied. The appellate court denied Ledesma’s request for sanctions against the city, holding that although it was a close question whether the city’s appeals was frivolous, sanctions were not appropriate under the circumstances.
Tort Claims Act: Wheeler v. Law Office of Frank Powell, No. 01-22-00479-CV, 2023 WL 5535670 (Tex. App.—Houston [1st Dist.] Aug. 29, 2023) (mem. op.). The Law Office of Frank Powell sued five employees of the city of Shenandoah alleging defamation based on statements they made during and after a city council meeting, and sued one city employee for defamation based on statements she made on a social media platform. The city employees filed a motion to dismiss under the election-of-remedies provision of the Texas Tort Claims Act (TTCA), arguing that Powell’s pleadings affirmatively demonstrated they were acting within the scope of their employment when they made the statements and were therefore entitled to dismissal of the claims. The trial court denied the motion and the city employees appealed.
The appellate court reversed the trial court and rendered judgment dismissing the claims against the five city employees, holding that Powell’s pleadings affirmatively demonstrated they were acting within the scope of their employment by making the statements during and after a city council meeting. The appellate court remanded the claim against the final city employee, holding that a fact issue remained as to whether the statements made on the social media platform were made in the scope of that employee’s employment.
Tort Claims Act: City of Houston v. Wilson, No. 01-22-00796-CV, 2023 WL 5615817 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.). Wilson sued the City of Houston after allegedly being injured in a vehicle collision with Williams, a city employee. The city filed a combined motion to dismiss and motion for summary judgment, claiming immunity under the Texas Tort Claims Act (TTCA) because the city had not received timely formal or actual notice of Wilson’s claims. The trial court denied the motion and the city appealed.
The appellate court reversed and rendered judgment dismissing the claims, holding that: (1) although Wilson’s claim letter included a date within the ninety day notice period required by the city charter, the letter was not sent in the mail until after the period expired, so the city did not receive timely formal notice of her claims; and (2) because there was no indication at the time of the collision that Wilson was injured and the existence of property damage to the vehicles does not constitute notice of a possible personal injury, the city did not have timely actual notice of Wilson’s claims.
Land Use/Tort Claims Act: Stone v. Harris County, No. 01-21-00384-CV, 2023 WL 5615812 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.). Stone sued the City of Houston and Margaret Brown in her official capacity as director of the city’s planning department, alleging the planning commission had violated Chapter 212, Local Government Code, by approving a replat that created problems on her property. Stone argued that the city’s immunity was waived because Brown’s approval of the replat was an ultra vires act. The city filed a plea to the jurisdiction alleging immunity under the Texas Tort Claims Act which the trial court granted, and Stone appealed.
The appellate court affirmed, holding that the city was immune from suit, and that Brown’s ultra vires claim failed because while a ministerial duty exists to approve a conforming plat, there is no corresponding ministerial duty to deny a nonconforming plat. Therefore, Brown had not acted without clear authority nor failed to perform a purely ministerial act as would have been required to support a claim that a government official acted ultra vires.
Civil Service Act: City of Houston v. Spann, No. 01-22-00848-CV, 2023 WL 5615801 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.). Fire fighter Spann appealed to the Firefighters’ and Police Officers’ Civil Service Commission of the City of Houston to reverse a disciplinary action taken against him by the fire department. The commission upheld the disciplinary action and Spann appealed to the district court. Spann filed a motion for summary judgment, arguing that because the commission did not provide him the required 15 days’ notice of the hearing, the commission’s order upholding the disciplinary action was void. The district court granted the motion and the commission appealed.
The appellate court affirmed, holding that: (1) the Code Construction Act’s computation of time rules applied; (2) additional days of notice from previously scheduled and continued hearings could not be counted for the statutorily required notice; and (3) Spann was not required to show prejudice to be entitled to summary judgment because he did not receive the full 15 days’ notice.
Jurisdiction: City of Kyle, et al., v. Lila Knight et al., No. 03-21-00378-CV, 2023 WL 5597360 (Tex. App.—Austin Aug. 30, 2023). This case stems from a development agreement between the city and three landowners for the development and voluntary annexation of 3,268.6 acres of land in Kyle. The individual plaintiffs in the case, Lila Knight, Timothy A. Kay, Helen Brown-Kay as well as Save Our Springs Alliance, Inc., (collectively “SOS”) sued the city of Kyle and city officials for, among other things: (1) acting ultra vires in adopting amendments to the city’s comprehensive plan and transportation plan; (2) violating statutory and procedural rights granted to SOS under Chapter 211 of the Local Government Code; and (3) unconstitutionally contracting away the council’s legislative authority under the terms of the agreement. In response, the city filed a plea to the jurisdiction, a Rule 91a motion to dismiss, and a partial summary judgment motion. With respect to the above-mentioned claims, the trial court denied the city’s motions, and this interlocutory followed.
On appeal, the city argued that: (1) the trial court erred in denying the city’s plea to the jurisdiction with respect to SOS’s claim that the city acted ultra vires in approving the development agreement; and (2) SOS lacked standing to bring the claims. On the standing claim, the city relied on the court of appeals’ decision in Save our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App.—Austin, 2010) to support its argument that, like in Dripping Springs, SOS, Inc. lacked associational standing. However, the court distinguished the cases, explaining that unlike in Dripping Springs, the evidence in the record showed that SOS, Inc.’s members owned land near, and in some cases, obtained their groundwater through wells adjacent to and near the property that would “very likely increase their exposure to water contamination and pollution.” Addressing individual standing, the court of appeals concluded that SOS pleaded sufficient facts showing the individuals also lived close to the property to be developed, and one of the individuals, Mr. Kay, served on the planning and zoning committee and would no longer have discretion over voting decisions because of specific provisions in the development agreement.
The court of appeals also concluded that SOS pleaded sufficient facts showing city officials acted without legal authority in approving the development agreement. Specifically, the agreement included provisions adopting specific amendments to the city’s comprehensive and transportation plans in violation of procedural, notice, and hearing requirements under the Open Meeting Act and the city’s charter. For those reasons, the court of appeals affirmed the trial court’s order denying the city’s motions.
Emergency Orders: Galovelho LLC v. Abbott, No. 05-21-00965-CV, 2023 WL 5542621 (Tex. App.—Dallas Aug. 29, 2023). In March 2020, Galovelho, LLC operated a restaurant in Frisco. During this time when Covid-19 was spreading throughout the state, the governor, Collin County judge, and city of Frisco issued emergency orders that encouraged patrons to avoid eating or drinking at restaurants and bars and, in some cases, limited restaurants to serving patrons via take-out, drive-through, or delivery only. As a result of the emergency orders, Galovelho alleged its restaurant suffered, and it sued the governor, county, and city. After a hearing on a joint plea to the jurisdiction by the governor, county, and city, the trial court determined that: (1) Galovelho’s claims were barred by sovereign or governmental immunity and that it lacked standing; (2) it did not have a viable takings claim; and (3) its due process and equal protection claims were moot. Galovelho appealed, but the court of appeals ultimately affirmed the trial court’s decision.
The court of appeals reasoned that, with regard to the takings claim, the effect of the emergency orders was neither a categorical (per se) taking nor a taking under the factors outlined in the Supreme Court decision Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the emergency orders were temporary and did not destroy all economic value in Galovelho’s property. In addition, the court concluded that the character of the governmental action (the third factor in Penn Central) was not akin to a physical invasion but instead an example of a regulation that “adjusts the benefits and burdens of economic life to promote the common good.”
Addressing Galovelho’s equal protection and due process claims, the court agreed that the recission of the emergency orders rendered Galovelho’s claims moot. Further, the court disagreed that the exception to the mootness doctrine (for an issue “capable of repetition, yet evading review”) applied to the issuance of the emergency orders in this manner because a mere theoretical possibility that Galovelho may be subjected to similar restrictions in the future was insufficient to claim this exception.
Extraterritorial Jurisdiction: Elliott v. City of Coll. Station, No. 06-22-00078-CV, 2023 WL 5617344 (Tex. App.—Texarkana Aug. 31, 2023). Two plaintiffs sued the city, the mayor, and the city manager under Article I Section 2, of the Texas Constitution to challenge the concept of extraterritorial jurisdiction (ETJ), arguing that unless residents of the ETJ can vote, any city regulation in the ETJ is void. The city and its officials filed a plea to the jurisdiction, asserting that the residents lacked standing, their claims were not ripe, and that the suit presented a political question. The trial court granted the plea and the plaintiffs appealed.
The court of appeals discussed in-depth the nature of Texas cities and concluded that the plaintiffs’ challenge presents a political question, which the court may not address without violating the separation of powers of doctrine. Accordingly, the court of appeals upheld the trial court’s decision.
Open Meetings Act: In re City of Amarillo, No. 07-22-00341-CV, 2023 WL 5279473 (Tex. App.—Amarillo Aug. 16, 2023) (mem. op.). Voters in Amarillo defeated a bond proposition for expansion of the city’s civic center. In response, the city created a three-step plan: (1) create a tax increment reinvestment zone (TIRZ) to fund the improvements; (2) issue tax anticipation notes; and (3) issue 30-year refunding bonds in the future to refinance the debt. The plaintiffs sued seeking to void the ordinances creating the TIRZ and the anticipation notes based on alleged violations of the Open Meetings Act. The case went to bench trial where the court invalidated the ordinances and the anticipation notes and awarded attorneys’ fees.
On appeal, the appellate court found: (1) the district court possessed jurisdiction to hear the plaintiff’s Open Meetings Act claims; (2) the city’s notice regarding the ordinance issuing the anticipation notice failed to substantially comply with the Open Meetings Act because it failed to give the reader adequate notice of the action the city sought to take and therefore the notes were void; (3) the award of attorneys’ fees was appropriate; and (4) there was no basis for reversal on the plaintiff’s issue that the ordinance did not comply with Government Code section 1431.008(b) because it would not afford plaintiff greater relief than what he had already received. The appellate court affirmed the trial court’s judgment.
Public Information Act: Johnson v. Bastrop Cent. Appraisal Dist., No. 07-23-00173-CV, 2023 WL 5628653 (Tex. App.—Amarillo Aug. 30, 2023) (mem. op.). Johnson requested records from the appraisal district. The appraisal district either failed to provide the information or notify Johnson it was requesting an attorney general opinion and Johnson filed a writ of mandamus, which the trial court denied. On appeal, the court found that the trial court did not abuse its discretion in denying the writ of mandamus.
Employment: Limuel, v. City of Austin, No. 08-23-00041-CV, 2023 WL 5761303 (Tex. App.—El Paso Sept. 6, 2023) (mem. op.). Alan Limuel was an employee in the Austin Resource Recovery Department. His tenure at the city was marked by various conflicts and corrective actions, which the city attributes to Limuel’s performance or behavioral issues, while Limuel claims they were instances of illegal retaliation. Limuel filed five discrimination charges with the Equal Employment Opportunity Commission (EEOC), alleging sexual harassment, discrimination, and retaliation and ultimately sued the city for retaliation and sexual harassment, representing himself in the action. After pretrial practice, including the dismissal of Limuel’s sexual harassment claim on summary judgment, there was a five-day jury trial on the merits of Limuel’s claims. At the conclusion of the trial, the jury affirmed some of Limuel’s claims, but awarded him zero damages related to emotional distress and other non-economic losses. Discontent with the outcome, Limuel sought to dismiss the jury’s damages verdict, arguing that there was no basis for the zero damages awarded. The trial court rejected his motion. Following this, Limuel moved for a new trial, which was also denied by the court, prompting him to appeal.
The appellate court took some time in the opinion to explain that the standards for pro se litigants who represent themselves in court without an attorney dictate that courts must interpret the pleadings of these litigants in a way that ensures they have a fair opportunity to present their case. This principle is grounded in the intention to prevent any miscarriage of justice due to a litigant’s lack of legal expertise or representation. However, these litigants must comply with procedural requirements. In his appeal, Limuel challenged a number of aspects of the city’s case, including rulings related to evidence, jury selection, disqualification of the city’s attorney, improper jury argument, post-trial motions, and overarching constitutional claims. For various reasons, each of Limuel’s arguments was overruled, and the trial court’s judgment was affirmed.
Land Use: City of Rusk, Texas, et al. v. 260 Office Park, Inc., et al., No. 12-22-00312-CV, 2023 WL 5663227 (Tex. App.—Tyler Aug. 31, 2023) (mem. op.). The Rusk Hotel in Rusk, Texas was being renovated and redeveloped. Once complete, the property was to be used for both commercial and residential uses. By September 2021, much of the work had been finished, and the city had issued a temporary certificate of occupancy for four of the second-floor residential units. Soon thereafter, the city enacted an ordinance which restricted residential use in the “Old Town Center” district, where the Rusk Hotel is located, and based on this ordinance, the city took steps to halt the redevelopment work at the hotel. The property owners filed a lawsuit in June 2022 alleging the city violated certain legal requirements in the passage of the ordinance and interfered with their vested property rights. The city filed a plea to the jurisdiction, countering that aspects of the case were either not ripe or were moot, and that the plaintiffs have not exhausted all administrative remedies. The trial court denied the city’s plea to the jurisdiction, and the city appealed. In the opinion the court analyzed alleged violations of state law related to local zoning ordinances, vesting issues, and the Texas Open Meetings Act (TOMA). After analyzing whether certain aspects of the property owners’ case were moot or ripe, the court ultimately sustained the trial court’s denial of the plea to the jurisdiction in part and overruled it in part. The court found that the owners had standing to pursue their TOMA and zoning claims, but that their vesting claims failed for lack of ripeness. Ultimately, the case was remanded back the trial court for further proceedings.
Tort Claims Act: City of Huntsville v. Valentine, No. 13-22-00528-CV, 2023 WL 5282954 (Tex. App.—Corpus Christi–Edinburg Aug. 17, 2023) (mem. op.). The Valentines sued the City of Huntsville alleging that the city negligently issued a building permit for construction that ended up flooding the Valentines’ property with stormwater runoff. The city filed a plea to the jurisdiction claiming governmental immunity and the trial court denied the plea. The city appealed.
The appellate court affirmed, holding that because issuance of a building permit is a proprietary rather than governmental function of a city, the Texas Tort Claims Act would have waived the city’s immunity only if the claim arose from property damage caused by the negligent operation of a motor vehicle.
Tort Claims Act: City of Houston v. Wilson, No. 14-22-00368-CV, 2023 WL 5368101 (Tex. App.—Houston [14th Dist.] Aug. 22, 2023) (mem. op.). Emmitt Wilson sued the City of Houston following a collision that occurred involving a city fire engine. Engine 43, being driven by Jason Carroll, was responding to a collision and needed to reverse due to heavy traffic. Wilson encountered Engine 43 at an intersection. Wilson, being behind the engine and seeing it reversing, also began reversing but had to stop to avoid hitting another vehicle. Engine 43 continued reversing and collided with Wilson’s vehicle. The city sought summary judgment, claiming Carroll was protected by official immunity as he was performing his discretionary duties in good faith at the time of the accident. Because of factual disputes between the parties, the trial court denied the city’s motion for summary judgment, resulting in this appeal.
Cites are generally immune from being held liable for an employee’s actions unless this immunity is waived. In the context of this case, a potential waiver of immunity is guided by the Texas Tort Claims Act, which stipulates that a governmental unit may be held liable for damage or injury caused by an employee’s wrongful act or negligence when operating a motor-driven vehicle, provided the employee would be personally liable according to Texas law. A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith. An action is considered discretionary if it necessitates personal deliberation, decision, and judgment, contrasted with ministerial acts which entail adhering to orders or performing a duty where the employee has no choice. The focus is on whether the employee was performing a discretionary function rather than the discretion involved in potentially wrongful acts during that function or the job description including discretionary duties. The court concluded that Carroll was indeed engaged in discretionary duties at the time of the incident, given the undisputed evidence that he was responding to an emergency and making several critical decisions while navigating to the accident site. Therefore, the appellate court held that the trial court erred in its finding that the city failed to definitively establish that Carroll was undertaking discretionary duties during the collision.
The court then moved on to analyze whether the driver acted in good faith while taking these discretionary decisions. The court outlines that good faith is to be determined based on an objective standard of what a “reasonably prudent fire engine operator” could have believed in similar circumstances, emphasizing that it is not about what any reasonable person would have done but instead focuses on the possible beliefs of a reasonable operator in that profession. The legal framework utilized mandates considering both the “need” and the “risk” aspects of the situation, encompassing factors such as the urgency of the situation, the potential for injury or loss of life, alternative courses of action, the potential for harm caused by the fire engine operator’s actions, and whether a reasonably prudent operator would have been aware of the risk of harm. After analyzing the facts, the court found that the city met its burden of proving conclusively that Carrol was acting in good faith at the time of the incident, citing the detailed account provided by Carrol in an affidavit, which clearly addressed both the need and risk sides of the legal balancing test.
Finally, the court analyzed whether Wilson had provided evidence sufficient to raise a question of fact challenging the city’s good faith evidence. While Wilson did provide an additional piece of evidence, the court concluded that it failed to rebut the city’s proof of good faith. Ultimately, the court decided to reverse the trial court’s decision and render a judgment dismissing Wilson’s action, effectively siding with the city and concluding that Carroll was protected by official immunity and acting in good faith at the time.
Tort Claims Act: City of Houston v. Gomez, No. 14-21-00761-CV, 2023 WL 5535824 (Tex. App.—Houston [14th Dist.] Aug. 29, 2023). On a cold and rainy Christmas Eve, Maria Christina Gomez was involved in a collision with a City of Houston police car driven by Officer Bobby Joe Simmons at an intersection in Houston. At the time, Simmons was responding to a robbery-in-progress call. Gomez sued the city alleging negligence, and the city filed a plea to the jurisdiction asserting governmental immunity. Conflicting testimony exists with regard to certain facts about the collision. According to Simmons, he was driving with his emergency lights activated but no siren and claimed to have been following the speed limit. Gomez disputed Simmons’s use of emergency lights. Ultimately, the trial court granted the plea to the jurisdiction dismissing the case, and Gomez appealed.
The appellate court at that time held that the city had not conclusively demonstrated that Simmons acted in good faith and that there were unresolved fact issues related to the emergency exception to waiver of immunity. The trial court’s decision was overruled, and the case was remanded for further proceedings. The lower court ultimately denied a supplemental plea filed by the city, leading to the instant appeal. In this appeal, the city raised two issues: (1) that the city established Simmons acted in good faith, and (2) that Gomez failed to raise a genuine issue of material fact regarding Simmons’s good faith.
Cities are generally protected from lawsuits by governmental immunity unless that immunity is waived. The Texas Tort Claims Act provides a waiver of governmental immunity for damage or injury caused by an employee’s negligent act during the scope of their employment, especially when it involves the use of a motor vehicle. The standard for evaluating official immunity hinges on the officer’s good faith and whether a “reasonably prudent officer” in similar circumstances might have acted the same way based on the information available at the time. This assessment considers the necessity of the officer’s response and the associated risks, evaluating the urgency and alternative actions available as well as the potential harm and likelihood of adverse outcomes. In this case, the city’s evidence failed to conclusively establish Simmons’s good faith, as the city’s position is based on a disputed fact concerning the use of emergency lights, which was a significant aspect influencing the needs and risk analysis. Given that the city did not definitively prove Simmons acted in good faith, the court upheld the trial court’s decision not to dismiss the case. Additionally, in order to reverse the court’s earlier opinion on the question of whether the emergency exception applied in this case, the city would have needed to demonstrate that the court’s earlier opinion was clearly erroneous. In the prior opinion, the court held that that Gomez, the plaintiff, successfully raised a fact issue defeating the application of the emergency exception to the waiver of governmental immunity. The court highlighted that because the city produced no new evidence to counter Gomez’s claim of recklessness by Simmons, the original decision of the court would stand.
Ultimately, the court overruled the city’s arguments on appeal and upheld the trial court’s judgment denying the plea to the jurisdiction, which essentially means that the case will continue in the trial court, with the city unable to claim governmental immunity at this time.