TCAA NEWS
(Volume 4, Issue 7 – August 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

TCAA to Fill Board Position on October 22, 2009: Those interested in applying for a place on the Board should fill out an application and return it via e-mail to Scott Houston at legalgovt@tml.org. Application forms are available on the front page of TCAA’s Web site at www.texascityattorneys.org and must be received by 5:00 p.m. on October 9, 2009. Pursuant to the TCAA Constitution, the TCAA president has appointed a three-member nominating committee to make a recommendation to the membership on the applications. The members of that committee are: (1) Jonathan Graham, City Attorney, Temple; (2) Karen Brophy, Senior Assistant City Attorney, Irving; and (3) Art Pertile, Attorney, Olson and Olson.

Bill Summaries from Regular Session and Information on Special Session: View the TML Legislative Update at www.tml.org.

Summer Conference Video Replay: Miss the South Padre Conference? Here’s your chance to get 10 hours of MCLE credit for just $50! The City of Austin is hosting a video replay of the conference on September 10-11, 2009, in the city council chambers. For more information or to register online, please go to http://www.tml.org/ed_tcaa_virtual.asp. Other times and locations are in the planning stages. Look for information shortly!

Save the Date! The TCAA Fall Seminar in conjunction with the TML Annual Conference is tentatively scheduled for October 22, 2009, in Fort Worth. Special thanks to our fall sponsor:

Taylor, Olson, Adkins, Sralla, and Elam, L.L.P.

A link to registration and hotel information is available on the front page of www.texascityattorneys.org. A separate e-mail and printed publicity will be sent to all members soon.

Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.

Articles

Waiver of Immunity: Waco Court of Appeals Broadens the Tort Claims Act in Kevin Glenn Schronk, et al. v. City of Burleson, 2009 WL 2215081, No. 10-07-00399-CV (Tex. App.—Waco July 22, 2009), Laura Mueller, Legal Counsel, Texas Municipal League. Can a city be held liable under the Texas Tort Claims Act for the death of an individual on whom a nonfunctioning Automatic External Defibrillator is used? Kevin Schronk (Schronk) called 911 when his wife Helen Schronk suffered a cardiac arrest. The city’s EMTs responded and tried to resuscitate Mrs. Schronk with an Automatic External Defibrillator (AED). The city EMTs tried several times to administer a shock with the AED but could not because of the low battery. Another AED was brought to Mrs. Schronk, but she could not be resuscitated. Read more.

TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed

City of Granite Shoals, et. al, v. Ted Winder, No. 09-0368 (Tex. 2009). In this case, the Respondents missed the Election Code’s statutory deadline when filing their challenge to the City of Granite Shoal’s population determination for its charter election. Also, the State of Texas did not bring suit in a quo warranto proceeding. TML and TCAA argued that, because the Respondents did not meet either of these procedural requirements in filing their election challenge, the challenge was not properly before the courts and should have been dismissed. This brief was filed on August 11, 2009.

Richard Frame v. City of Arlington, Nos. 08-10630, 08-10631 (5th Cir. 2009). This Americans with Disabilities Act of 1990 (“ADA”) case involves implementation of the Act’s accessibility requirements. TML and IMLA argued that the Fifth Circuit decision incorrectly attempts to apply the program accessibility standard to all facilities, including streets, sidewalks, and parking lots. The Fifth Circuit in this case held that a physical sidewalk and parking lot (and, by implication, every public building, structure, and right of way) is a “program” for purposes of enforcing Title II of the ADA and Section 504 of the Rehabilitation Act. The decision may require that the City of Arlington, and every other public entity, make all facilities accessible immediately. The amici argued that this is contrary to the statutory language and regulations at issue and imposes on public entities an extraordinary financial burden not contemplated by Congress or articulated in the statute. This brief was filed on July 24, 2009.

Recent Texas Cases of Interest to Cities
Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Eminent Domain: City of Dallas v. Pacifico Partners, Ltd., 2009 WL 2184931, No. 05-06-01191-CV (Tex. App.—Dallas July 23, 2009). In this case, the city council acquired a pedestrian easement across the side of a valet parking lot owned by Pacifico on Commerce Street in downtown Dallas. Pacifico contended that the city acted beyond the scope of the resolution authorizing the taking by condemning air rights, subsurface rights, and fixtures in addition to the walkway. Pacifico also contended that the city’s written offer to acquire the easement for the amount of $27,600 did not include an amount for fixtures and air and subsurface rights as required.

The special commissioners awarded Pacifico $65,750 at an administrative hearing. Pacifico filed objections to the award in the trial court, and the trial judge determined the city had the right to take the easement. A jury then determined that the value of the easement was $123,000. The trial judge found Pacifico was entitled to $47,629 for fees and expenses, plus pre-and post-judgment interest.

On appeal, Pacifico contended that the trial court’s judgment is void for lack of jurisdiction because the city failed to show strict compliance with statutory condemnation procedures. Specifically, Pacifico contended that, because the resolution and offer do not mention taking existing fixtures or the air and subsurface rights needed to add improvements in the easement space, the city was barred from including those rights in its condemnation statement and its authorized taking was limited to a simple ingress/egress right to walk across the surface area.

Pacifico cites Whittington v. City of Austin for the proposition that the city must prove its governing body “expressly” found the property rights were necessary for a public use and “expressly” authorized condemnation of the property sought. Based on, among other things, the testimony of a city employee who stated (based on various documents in evidence) that the walkway would include “special paving, lighting, landscaping, awnings that kind of yielded or sheltered from the sun,” the court of appeals disagreed. The city's intended use of the condemned property to construct a pedestrian walkway was stated in the resolution and repeated in the city’s operative condemnation petition. The court of appeals concluded that there was legally and factually sufficient evidence to support the trial judge’s findings of fact and conclusions of law regarding the air and subsurface rights and fixtures. “Under Texas condemnation law, the resolution is sufficient to support the presumption that the Dallas City Council ‘actually made a determination that the particular taking was necessary to advance the ostensible public use.’”

In addition, Pacifico argued the city’s pre-suit offer to purchase the easement did not satisfy the statutory prerequisite to filing suit; i.e., that the parties were “unable to agree” on damages for the proposed taking based on Hubenak v. San Jacinto Gas Transmission Co. Pacifico argued that the offer was insufficient because it did not expressly offer to purchase fixtures or air and subsurface rights. The court of appeals disagreed, noting that Hubenak holds that “exact symmetry” between a purchase offer and final condemnation judgment is not required and would be impractical “because a contract and a judgment are different animals” and could hinder the condemnation process. Hubenak rejected a bright-line “mirror image” rule and adopted the following standard:

Generally, it is sufficient that the parties negotiated for the same physical property and same general use that became the subject of the later eminent domain proceeding, even if the more intangible rights sought in the purchase negotiations did not exactly mirror those sought or obtainable by condemnation.

Based on the above, the court of appeals affirmed the condemnation and rendered a take nothing judgment against Pacifico.

Governmental Immunity-Contract: City of Corinth v. Nurock Dev., Inc., et al., 2009 WL 2356931, No. 2-07-422-CV (Tex. App.—Fort Worth July 30, 2009). This case stems from a settlement agreement reached between the City of Corinth and NuRock Development, Inc. (“NuRock”), to resolve an earlier federal lawsuit. The April 2005 settlement agreement provided that NuRock would construct an affordable housing project to certain specifications, that the city would acquire certain right-of-ways along an adjacent roadway that would be improved in specific ways by NuRock, that NuRock would place $120,000 in an escrow account as collateral, and that the city would pay NuRock $120,000.

The city sued NuRock in 2006, arguing that NuRock breached the agreement by not placing the funds in escrow. NuRock filed several counterclaims against the city, alleging that the city was interfering with and delaying construction of the apartments in breach of the settlement agreement. NuRock sought damages, injunctive relief, and a declaratory judgment. In July 2006, the trial court entered a temporary injunction for NuRock that was not appealed. In June 2007, the city filed a plea to the jurisdiction alleging sovereign immunity, which was denied by the trial court. The city appealed.

On appeal, the court first addressed whether or not the city had immunity from NuRock’s claims for breach of the settlement agreement. In determining this issue, the court relied upon Texas A&M University-Kingsville v. Lawson, which provided that when a governmental entity settles a claim for which immunity from suit has been waived, immunity from suit is also waived for a breach of the settlement agreement. See 87 S.W.3d 518 (Tex. 2002). The city contended that the rule in Lawson did not apply because NuRock did not plead any state law claim in the underlying federal action for which immunity was waived. However, the court of appeals concluded that although a state may enjoy immunity from federal claims pursuant to the Eleventh Amendment, the city has no immunity from such claims. Because the city was not deemed immune from the initial federal claim, under Lawson, the city is also not immune from a suit on the breach of the settlement agreement arising from the initial claim.

Next, the court addressed the city’s argument that the trial court did not have jurisdiction over NuRock’s inverse condemnation claim because NuRock agreed to make the improvements to the road (which are the basis of its claim). The court reasoned that because the city’s taking was pursuant to colorable contract rights in the agreement with NuRock, the taking did not constitute a compensable taking under Article I, Section 17, of the Texas Constitution. Even if it were determined that the city breached the settlement agreement, the fact remains that the improvements were agreed to prior to the alleged breach. Consequently, the court held that the trial court did not have jurisdiction over this claim.

Finally, the city asserted that the trial court should have dismissed NuRock’s claims for declaratory and injunctive relief. The court noted that the Declaratory Judgment Act provides a waiver of immunity in suits against governmental units in which a party seeks a declaration to clarify rights under a statute or regulation. However, because NuRock is seeking declaratory relief to construe a settlement agreement, not a statute or regulation, the city’s immunity is not waived as to NuRock’s Declaratory Judgments Act claim. NuRock also sought an injunction to prevent the city from “arbitrarily and capriciously applying” the city ordinances in approving certificates of occupancy for the apartments in question. The court concluded that the possibility of future arbitrary and capricious conduct concerning the apartments is too remote to support a claim for a permanent injunction, and therefore NuRock’s request was not ripe.

Zoning: G. Michael Boswell v. Board of Adjustment and Appeals of Town of South Padre Island, No. 13-08-642-CV (Tex. App.—Corpus Christi July 16, 2009) (mem. op.). The court of appeals held that Section 211.011(b) of the Local Government Code, requiring that a verified petition be filed within ten days of a zoning decision, is jurisdictional, and that noncompliance will cause an action to fail.

Property Taxes: Earl C. Stoker, Jr. v. City of Fort Worth, No. 2-08-103-CV (Tex. App.—Fort Worth July 16, 2009) (mem. op.). Property is subject to delinquent property taxes even if the owners of the property change after the time the property tax becomes delinquent, and a taxing entity may seek foreclosure of the property rather than take action against the individual who owns the property.

Governmental Immunity-Tort: City of San Antonio v. William Riley, No. 04-09-00162-CV (Tex. App.—San Antonio July 15, 2009) (mem. op.). The court of appeals held that the plaintiff did not raise a material fact issue on the question of an officer’s conduct being “reckless.” Thus, the city did not waive its governmental immunity under the Texas Tort Claims Act, Section 101.055 of the Texas Civil Practices and Remedies Code.

Land Covenant: Bret “Doc” Berkman v. City of Keene, No. 10-08-00073-CV (Tex. App.—Waco July 15, 2009). The court of appeals remanded the case back to the trial court, holding that the trial court improperly granted the city’s summary judgment because the city did not conclusively prove that the plaintiff had abandoned his rights under a property agreement that may have created a covenant running with the land.

Sales Taxes: Maria Ana Milazzo v. City of Bryan, et al., 2009 WL 2341854, No. 03-06-00603-CV (Tex. App.—Austin July 31, 2009) (mem. op.). The court of appeals affirmed the district court’s summary judgment for the State of Texas because Milazzo did not file a sworn denial specifically identifying errors in the Comptroller’s certificate, making the Comptroller’s certificate of delinquency regarding Milazzo’s unpaid sales and use taxes conclusive evidence that entitled the State to summary judgment.

Property Taxes: Willie H. & Gladys R. Goffney v. City of Houston, et al., 2009 WL 2343250, No. 01-08-00063-CV (Tex. App.—Houston [1st Dist.] July 30, 2009) (mem. op.). The court of appeals held that the Goffneys have standing to appeal the city’s and taxing units’ judgment because they had legal title to the property at the time of the city’s hearing and they were personally aggrieved by the entry of a judgment holding them liable for costs incurred. Because the plaintiffs did not present any arguments to the trial court regarding the time limit for setting emergency hearings, the court held that they do not have standing to appeal this issue. The court also held that error was not preserved under Rule 33.1 because the Goffneys’ due process arguments raised on appeal are not the same as the due process arguments they raised in the trial court.

Governmental Immunity-Tort: Lottie Hunnicutt v. Dallas/Fort Worth Int’l Airport Bd., 2009 WL 2356858, No. 2-08-297-CV (Tex. App.—Fort Worth July 30, 2009) (mem. op.). The court of appeals concluded that DFW did not have constructive knowledge of alleged defects in an escalator’s rollers, and held that the trial court did not err by granting summary judgment for DFW.

Extraterritorial Jurisdiction: Rhino Real Estate Investments, Inc., et al. v. City of Runaway Bay, 2009 WL 2196131, No. 2-08-340-CV (Tex. App.—Fort Worth July 23, 2009) (mem. op.). The court of appeals held that the purpose of the ordinance in question was to provide “for building permit fees for properties located in the city limits and the extra territorial jurisdiction of the city” but does not extend the application of the city’s building code to its ETJ.

Attorney General Opinions of Interest to Cities
Note: Included opinions are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion Number GA-0734 (Tax Abatement): Concludes that the maximum ten-year tax abatement period authorized under Tax Code section 312.204(a) may commence in a year subsequent to the year in which an agreement providing for the tax abatement is entered into by the taxing unit and the owner of the property subject to the agreement.

Opinion Number GA-0729 (Asbestos): Concludes that the term “person” in the Texas Asbestos Health Protection Act, Chapter 1954 of the Occupations Code, includes a municipality. However, the attorney general noted that it is unlikely that a court would conclude that if the definition of person includes a city that this would constitute a clear and unambiguous waiver of immunity from suit for a violation of section 1954.259(b). Even if governmental immunity is retained, it does not mean that every enforcement action is necessarily barred.

You can view attorney general opinions at www.oag.state.tx.us. On the same site, you can also sign up to receive e-mail updates of opinion requests and newly released opinions.

As a supplement to TCAA News, please check the TML Legislative Update Newsletter and TML’s Connect News Service .
Please contact Scott Houston, TCAA General Counsel, with your news, questions, and/or comments by e-mail at legalgovt@tml.org or by phone at 512-231-7400.
TCAA members may use the information herein for any purpose. No other person may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas City Attorneys Association.
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