Inverse Condemnation Action Against the City of Dallas Permitted to Proceed

In this inverse condemnation action, the City of Dallas claimed that the case against it should be dismissed for lack of subject matter jurisdiction.  The Court of Appeals held that fact issues precluded dismissal because the plaintiff had alleged, among other things, that the City has: (1) prevented him from developing his property in order to reduce the City’s cost of acquiring that property in the future; (2) closed a street near his property, potentially reducing the plaintiff’s investment-backed expectation; and (3) refused to act on plaintiff’s application to build a privately funded bridge to connect to his property.

City of Dallas v. Millwee-Jackson JV


Sovereign Immunity Bars Doctor’s Retaliation Claims

A Dallas doctor brought lawsuits against UT Southwestern and Parkland Hospital, alleging that they retaliated against him after he raised concerns that some of their billing practices were running afoul of Medicaid laws.  The trial court granted the defendants’ plea to the jurisdiction and dismissed both lawsuits on the basis of sovereign immunity. In affirming, the Court of Appeals rejected the doctor’s argument that the defendants had waived sovereign immunity, and held that a state entity cannot waive sovereign immunity by its conduct.  The Court specifically noted that “the Texas Supreme Court has never ruled that a doctrine of waiver of sovereign immunity by conduct exists.”

Gentilello v. UTSW, 05-13-00149-CV

Gentilello v. DCHD, 05-13-00150-CV

Governmental Immunity Day

The Court of Appeals has issued a trio of fact-specific governmental immunity decisions. In KingVision Pay-Per-View, Ltd. v. Dallas County, the Court affirmed the county’s plea to the jurisdiction because a statute only authorized suit against a constable and his sureties for failing to execute on the plaintiff’s judgment. In Davison v. Plano Independent School District, a former teacher had her tort claims dismissed because she failed to respond to the district’s assertion that her claims were not within the scope of the waiver contained in the Tort Claims Act, while her contract claims failed because she had not exhausted her administrative remedies against the district. And in City of Sachse v. Wood, the Court reversed the trial court’s denial of a plea to the jurisdiction, holding that the plaintiff had failed to establish a violation of the Whistleblower Act because the he reported the alleged misconduct to fire department personnel, not an “appropriate law enforcement authority.”

County Whistleblower Suit Remanded to Trial Court

In this whistleblower suit against Dallas County, the County filed a plea to the jurisdiction based on sovereign immunity.  The plaintiff, a former deputy constable, complained of illegal activity and retaliation in his employment division to the Dallas County Commissions Court.  The County contended, however, that this entity does not fall within the confines of the Whistleblower Act and, therefore, the plaintiff did not have an objective good faith belief that he was reporting the misdeeds to an appropriate law enforcement body.  While the Court found that “an appropriate law enforcement authority must be actually responsible for regulating under or enforcing the law allegedly violated,” it nevertheless remanded the proceedings to the trial court because the record did not show that evidence was presented about the plaintiff’s good faith belief that the Commissioners Court was the appropriate body.  This was particularly true given that some of the County’s jurisdictional arguments were newly raised on appeal.

Dallas County v. Logan

No Governmental Immunity For Charter Schools Under Texas Whistleblower Protection Act

Kimberly Ball-Lowder brought suit against Pegasus for wrongful discharge under the Texas Whistleblower Protection Act.  Pegasus filed a plea to the jurisdiction, asserting that Ball-Lowder’s claims must be dismissed because the Whistleblower Protection Act is not applicable to a Texas open-enrollment charter school.  The Court held that the Act applies to an open-enrollment charter school, and affirmed the trial court’s order denying the plea to the jurisdiction.  Government immunity is waived for a “local government entity” respecting claims under the Act.  The Court concluded that the Whistleblower Protection Act’s definition of “local government entity” must be interpreted to include an open-enrollment charter school to be consistent with the Texas Supreme Court’s decision in LTTS Charter School, Inc. v. C2 Construction III, 342 S.W.3d 73 (Tex. 2011).

Pegasus School v. Kimberly Ball-Lowder

Supreme Court Update: Dallas Metrocare Services v. Juarez

Last year, the Dallas Court of Appeals held that a plaintiff had properly alleged a waiver of sovereign immunity for a government body’s use or condition of tangible personal property, based on the allegation that an improperly secured whiteboard had fallen on the plaintiff. Dallas Metrocare Services v. Juarez, ___ S.W.3d ___ (Tex. App.–Dallas 2012). The Texas Supreme Court has now reversed that decision, citing its more recent decision in Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012), for the proposition that the Court of Appeals should have considered Metrocare’s argument on appeal — not raised before the trial court — that the injury did not arise from the “condition” of the property. The Supreme Court also held that there was no waiver of immunity by Metrocare’s “use” of the whiteboard, since it had simply made the board available for use by patients. The case will now be remanded to the Court of Appeals for further consideration.

Dallas Metrocare Services v. Juarez, No. 12-0685

Sewer Line Spawns Takings Claim

Several landowners entered into an easement agreement with the City of Celina so the City could build a sewer to a local high school.  Among other things, the City agreed to replace the top soil along the easement after the sewer was installed.  When the original top soil was not replaced, the landowners sued for inverse condemnation.  The Court of Appeals found that the agreement’s top soil provision was not intended to act as a condition subsequent.  Because the takings claim was based on the landowners assertion that breach of a condition subsequent voided the easement, the Court found that the trial court erred in denying the City’s plea to the jurisdiction.

City of Celina v. Dickerson

Jurisdiction Unclear in Challenge to City’s Enforcement Actions

According to the operators of Hank’s Texas Grill, the City of McKinney and its police officers have been wrongfully harassing the restaurant, its employees, and its customers for the last ten years. In response, the city alleges that Hank’s violates numerous city ordinances. The city filed a plea to the jurisdiction to invoke its governmental immunity. The trial court denied the plea, and the city appealed. Summarizing the recent (and conflicting) string of cases challenging local ordinances, the Court of Appeals concluded that “the Declaratory Judgments Act waives governmental immunity against claims that a statute or ordinance is invalid,” but “does not waive a governmental entity’s immunity against a claim that government actors have violated the law.” Construing Hank’s pleadings, the Court concluded that they did not demonstrate that Hank’s claim was outside the scope of the city’s governmental immunity. However, the pleading also did not demonstrate that the claim was barred by governmental immunity, meaning that Hank’s had to be given the opportunity to amend. The Court also affirmed the trial court’s ruling that Hank’s claim for damages was not barred by immunity to the extent that it was an offset against the city’s own damage claims. Finally, the Court of Appeals rejected the city’s claim that the trial court lacked subject matter jurisdiction to enjoin its enforcement of state laws and local ordinances, ruling that the pleadings and arguments at this stage of the case were still too unclear to affirmatively demonstrate that the trial court lacked jurisdiction to issue an injunction.

City of McKinney v. Hank’s Restaurant Group, L.P., No. 05-123-01359-CV

Seizing Animals From a Puppy Mill Is Not a Constitutional Taking

Back in 2004, the State of Texas filed an animal cruelty proceeding against Marsha Chambers, who was apparently breeding the dogs for sale. The jury found that the animals had been treated cruelly, and the justice court transferred their ownership to the Dallas SPCA. Chambers has spent the years since then futilely pursuing collateral litigation challenging the justice court’s order. In March 2012, that quest led to the filing of a suit alleging a constitutional taking of the animals, seeking $575,000 in damages for the value of the animals and lost income. The State filed a plea to the jurisdiction, which was granted by the trial court and affirmed by the Court of Appeals. According to the Court of Appeals, Chambers had failed to plead a claim capable of evading the State’s sovereign immunity, because she had not adequately pleaded that the alleged taking had been made for a “public purpose.” Seizing neglected or mistreated animals serves to protect the welfare of the animals, not to confer a benefit on the public. Because the pleading did not establish a constitutional takings claim, the trial court properly dismissed the case, and that judgment was affirmed.

Chambers v. State, No. 05-12-01178-CV

Jurisdiction Upheld in Cases Pending for 19 Years

Since 1994, the City of Dallas has been in litigation with its police, firefighters, and rescue officers. The question at hand is whether a referendum and ordinance passed in 1979 amounted to a one-time salary adjustment, as the city contends, or a perpetual entitlement in all future salary adjustments. More than a decade after the lawsuits started, the city suddenly remembered that it had governmental immunity, and filed pleas to the jurisdiction on that basis. In 2011, the Texas Supreme Court held that the officers could not pursue a declaratory judgment on their interpretation of the ordinance because the only potential relief from such a declaration would be an award of money damages. City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011). In the meantime, however, the legislature had enacted a new, retroactive statute that waived local governments’ immunity from suit for certain breach of contract claims. See Tex. Local Gov’t Code § 271.151 et seq. The case was therefore remanded to the trial court to consider whether there was jurisdiction to hear the officers’ breach of contract claims. The trial court denied the city’s renewed pleas to the jurisdiction, ruling that the contract claims fell within the new statutory waiver of immunity. On interlocutory appeal, the Court of Appeals agreed.

The analysis is somewhat lengthy, but its core relies on City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2006) for the proposition that city ordinances can create a unilateral contract between the city and its employees that is within the scope of the legislature’s waiver of governmental immunity. Finding all of the elements of such a contract contained within the 1979 ordinance, the Court of Appeals concluded that it was a unilateral contract between the city and the officers. However, on the key question of whose interpretation of the ordinance would prevail, the court deferred to one of its previous rulings in the case, holding that the ordinance was ambiguous and its interpretation was therefore a question of fact to be determined at trial. The court also held there was no jurisdiction on the remaining declaratory judgment claims, concluding that the Albert decision had already established the city was entitled to governmental immunity from such claims.

City of Dallas v. Arredondo, No. 05-12-00963-CV