Airport immunity

Except for a claim based on a contract with D/FW Airport, as to which the Legislature had partially waived immunity, the Airport was otherwise immune from suit: “The parties agree that the Board hired Vizant to reduce the costs of collecting fees for processing credit card payments. The record shows that the Board collects those fees in connection with its operation of an airport, something it is expressly authorized by statute to do. he operation of an airport is expressly defined by statute as a governmental function that is exercised for a public purpose and is a matter of public necessity. And an airport is expressly designated by statute to be a nonproprietary function. A plaintiff may not split various aspects of a city’s operation into discrete functions and recharacterize certain of those functions as proprietary.” DFW Int’l Airport Board v. Vizant Technologies, No. 05-17-00090-CV (Dec. 15, 2017) (mem. op.) (citations omitted).

A living opinion: same case and different outcome

The+Living+ConstitutionIn University of Texas Southwestern Medical Center v. Munoz, the Dallas Court of Appeals for the second time considered whether sovereign immunity barred the plaintiff’s claims. At the interlocutory stage, the answer was “no.” After a trial on the merits, the Dallas Court of Appeals said “yes,” and judgment was rendered for the University.

The issue in the case was whether the University had sovereign immunity from a suit arising from an injury caused by an air handling unit. If the air handling unit was personal property, the Texas Legislature waived immunity under the Texas Tort Claims Act. If it was a fixture attached to real property, then there was no waiver and the suit was barred because the plaintiff was aware of the danger.

In the first interlocutory appeal, the Dallas Court of Appeals held that the air handling unit was personal property, and thus the trial court had jurisdiction because sovereign immunity was waived. The plaintiff argued on the appeal of the final judgment that this was the law of the case. It was, after all, the same air handling unit discussed in the opinion from the interlocutory appeal.

The Dallas Court of Appeals disagreed. Noting that “[i]f the record in one appeal on a plea to the jurisdiction differs from the record on a second appeal following trial, we review the evidence challenging the existence of jurisdictional facts.” The court held that it was logical to assume the facts were better developed by the time of trial, and so it would consider those better developed facts. After reviewing those facts, the Dallas Court of Appeals concluded that the air handling unit was actually a fixture and reversed the final judgment in favor of the plaintiff. So governmental entities, despair not if you lose your interlocutory appeal, because it may turn out that the court trying your case does not have jurisdiction after all.

University of Texas Southwestern Medical Center v. Munoz

Texas Supreme Court Update: OAG v. Weatherspoon

Last year, we reported on the Dallas Court of Appeals’ decision to affirm the trial court’s denial of the Office of Attorney General’s plea to the jurisdiction in a Whistleblower Act case. Today, the Texas Supreme Court has reversed and rendered, holding that the whistleblower’s report to her superior at OAG was not made to “an appropriate law enforcement authority,” as required by the Whistleblower Act. The plaintiff’s pleadings therefore failed to properly invoke the Act, meaning that OAG’s sovereign immunity was not waived.

Office of the Attorney Gen. v. Weatherspoon, No. 14-0582

Remind Me Again Why Anyone Would Ever Contract With a Government Body In Texas?

After a bidding process, TXU entered into a contract with Fort Bend I.S.D. in 2010 to supply electricity for one year. The following year, the parties extended the contract period to 2014. But in 2012, the school district decided not to continue purchasing electricity because the extension has not been competitively procured as required by the Texas Education Code. TXU sued, but the trial court granted the school district’s plea to the jurisdiction based on governmental immunity. The Court of Appeals affirmed. Because the extension had not gone through a competitive bidding process, it was not “authorized by statute,” and therefore there was not waiver of governmental immunity under the Local Government Contract Claims Act.

TXU Energy Retail Co. L.L.C. v. Fort Bend Indep. Sch. Dist., No. 05-14-01515-CV

Beware of Boards in Government Facilities

600 Commerce always has its eye out for trends in litigation, and a new one may now be emerging: a plague of boards falling off of government walls onto innocent members of the public. A year ago, it was a whiteboard falling off the wall of Dallas Metrocare Services (held: no sovereign immunity because plaintiff pleaded a dangerous “condition” of property with allegation of an improperly secured whiteboard). This time, the Court of Appeals sustained the Texas Health and Human Services Commission’s sovereign immunity claim after a notice board fell on plaintiff Joseph McRae. The Court agreed with the Commission that McRae’s claim was one for premises defect, not for “negligent use or condition” of the notice board. Because it was in substance a premises defect claim, McRae was required to plead, and ultimately prove, that the Commission had actual knowledge of the condition that caused his injuries. But it was not clear that McRae would be unable to cure that defect in his pleading, so the Court remanded the matter to the trial court for further proceedings.

Texas Health & Human Servs. Comm’n v. McRae, No. 05-14-00894

Taxation Is Not Proprietary

The builder of a nursing facility sued the City of Kemp for breach of contract and con-tort claims, alleging that the city had failed to honor a tax abatement deal agreed upon before construction. The city promptly obtained dismissal of the case on grounds of governmental immunity. On appeal, the builder’s first issue claimed that “the concept of governmental immunity — even if not otherwise specifically waived — simply does not apply to the proprietary actions that form the basis of [the builder’s] claims.” The Court of Appeals disagreed. While a municipality is not immune from torts committed in the performance of “proprietary functions,” the assessment and collection of taxes is a quintessentially governmental function.

Douglas v. City of Kemp, Texas, No. 05-14-00475-CV

Court Derails DART’s Attempt to Dismiss Lawsuit Based on Sovereign Immunity

In 2000, the union representing DART’s employees sued DART, alleging that it was improperly denying its employees’ grievances and requests for appeals.  As a result, the parties entered into a settlement agreement providing that DART was required to modify the employee grievance procedures in its employment manual.

Years later, in 2010, a dispute arose between DART and a former employee (who had been terminated) over DART’s grievance procedures.  The union ultimately sued DART, alleging that it had breached the prior settlement agreement.  DART filed a plea to the jurisdiction, asserting sovereign immunity, which the trial court denied.  On appeal, the Court of Appeals affirmed the trial court’s decision, noting that when “a governmental entity agrees to settle a lawsuit in which it has waived governmental immunity, it cannot claim immunity from suit for breach of the settlement agreement.”  Because DART had waived immunity in the 2000 lawsuit and the union was claiming it had breached that agreement, DART could not claim immunity from the suit.

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338

First Rule 91a Opinion From the Dallas Court of Appeals

In what appears to be only the third opinion in the state reviewing a motion to dismiss under Texas Rule of Civil Procedure 91a, the Dallas Court of Appeals has affirmed a trial court’s order that granted in part and denied in part a motion to dismiss on the pleadings. Similar to Federal Rule of Civil Procedure 12(b)(6), Rule 91a allows a party to move to dismiss a cause of action “on the grounds that it has no basis in law or fact,” based solely on the claimant’s pleadings. In this case, the plaintiffs sued the City of Dallas after emergency services failed to respond to a 911 call reporting their son’s drug overdose. The plaintiffs attempted to plead their way around governmental immunity by claiming the City had negligently used or misused the 911 system’s telephone and computer systems. The Court affirmed dismissal of negligence claims that the City had failed to properly respond to the 911 call, but also affirmed the denial of the motion as to claims that the equipment itself had failed or malfunctioned.

City of Dallas v. Sanchez, No. 05-13-01651-CV

No Governmental Immunity for Unsecured Whiteboard

Last November, the Texas Supreme Court reversed and remanded for further consideration in a case where the Dallas Court of Appeals had concluded that the plaintiff had sufficiently pleaded a waiver of sovereign immunity through the use of tangible property. The Supreme Court held that the plaintiff had not alleged a “use” of property for a whiteboard that fell on his head, because Dallas Metrocare had only made the board available for use by patients. On remand, the Court of Appeals had to consider the alternative question of whether the plaintiff’s claims alleged injury through a “condition” of property. The Court concluded that he had pleaded such a claim, based on the allegation that the whiteboard was in an unsafe condition because it was not properly secured. The case was therefore remanded to the trial court for further proceedings.

Dallas Metrocare Servs. v. Juarez, No. 05-11-01144-CV

Whistling Past Sovereign Immunity

In this whistleblower lawsuit, Ginger Weatherspoon alleged that the Office of the Attorney General (OAG) retaliated against her and ultimately terminated her employment after she reported that she was pressured to sign a false affidavit.   According to Ms. Weatherspoon, the affidavit was going to be used to support a judicial misconduct complaint against a district judge in Dallas (apparently, Judge David Hanschen).

The OAG sought to have Ms. Weatherspoon’s case dismissed based on sovereign immunity, and moved for summary judgment on that basis.  The Texas Government Code waives sovereign immunity for claims brought under the Texas Whistleblower Act, but, in order for a claim to fall within the purview of that statute, the alleged conduct must be reported to “an appropriate law enforcement authority.”  The OAG argued that Ms. Weatherspoon did not make her report to an appropriate law enforcement authority because she reported the alleged conduct only to her division head in the Child Support Division of the OAG.  The Court of Appeals disagreed, and upheld the trial court’s decision to deny the OAG’s Motion, because Ms. Weatherspoon’s division head was required to forward her report to the OAG’s Office of Special Investigations–an appropriate law enforcement authority.

Office of Attorney General v. Weatherspoon, No. 05-00632-CV