Sosa v. City of Corpus Christi

• Decision Date: 03 September 1987
• Docket Number: No. 13-87-079-CV,13-87-079-CV
• Citation: 739 S.W.2d 397
• Parties: Buck SOSA, Appellant, v. The CITY OF CORPUS CHRISTI, et al., Appellees.
• Court: Texas Court of Appeals

Page 397

739 S.W.2d 397

Buck SOSA, Appellant, v. The CITY OF CORPUS CHRISTI, et al., Appellees.

No. 13-87-079-CV.

Court of Appeals of Texas,

Corpus Christi.

Sept. 3, 1987.

Rudy Gonzales, Jr., Chaves, Gonzales & Rodriguez, Corpus Christi, for appellant.

Carol Estes, Asst. City Atty., Corpus Christi, for appellees.

Before UTTER, SEERDEN and DORSEY, JJ.

OPINION

UTTER, Justice.

Sosa brought suit against the City of Corpus Christi and various City offices ("the City") seeking a declaration that city ordinance 18951 is "invalid, null and void to the extent that it purported to eliminate the classified, civil service position of District Fire Chief within the Fire Department for the City of Corpus Christi and create the civilian, non-civil service position of Director of Emergency Medical Services." Appellant also sought injunctive relief and a writ of mandamus ordering the Fire Chief to promote him to District Fire Chief. A take-nothing judgment was rendered against appellant by the trial court. We affirm the judgment of the trial court.

Promotions in the Fire Department are governed by Tex.Rev.Civ.Stat.Ann. art. 1269m, § 8A (Vernon Supp.1987). A list of eligible candidates for vacancies is prepared each year by the Fire Fighters' and Police Officers' Civil Service Commission according to performance on an examination. When a vacancy occurs, the Fire Chief has sixty days within which to fill the vacancy from the eligibility list. If the Fire Chief chooses to by-pass the first name on the list and fill the vacancy with a person ranked lower on the list, he must submit in writing his reasons for by-passing the first name to the Commission. Tex.Rev.Civ.Stat.Ann. art. 1269m, § 10 (Vernon 1963). If no appointment is made by the Fire Chief within sixty days from when the vacancy occurred, the person occupying the number one position on the list is, as a matter of law, entitled to the position. See McLeod v. City of San Antonio, 702 S.W.2d 279 (Tex.App.--San Antonio 1985, writ ref'd n.r.e.); Burkhart v. Moore, 580 S.W.2d 108 (Tex.Civ.App.--Eastland 1979, no writ); Kiel v. City of Houston, 558 S.W.2d 69 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.); Michna v. City of Houston, 521 S.W.2d 331 (Tex.Civ.App.--Houston [1st Dist.] 1975), aff'd on remand, 534 S.W.2d 728 (Tex.Civ.App.--Houston [1st Dist.] 1976, writ ref'd n.r.e.).

On July 30, 1985, the City Council passed Ordinance 18951, approving and adopting the city budget for the fiscal year beginning August 1, 1985. The Fire Department Budget, contained within the city budget, provided in part:

One Director of Emergency Medical Services and one Assistant Director of EMS will be added to provide additional administrative and technical support; and as vacancies occur in the ranks of District Fire Chief and Fire Captain, each position will be decreased by one.

The City Budget was attached to Ordinance 18951 and incorporated therein by reference.

The District Fire Chief eligibility list, posted January 21, 1985, listed Jose Flores as the number one man, followed by Eloy Ceballos, number two, and Buck Sosa, number three. A vacancy occurred in January 1985, and Flores was promoted to District Fire Chief.

On July 30, 1985, when Ordinance 18951 was passed, appellant occupied the number two position on the list. On September 13, 1985, another vacancy among the District Fire Chiefs occurred, and pursuant to Ordinance 19851, that position was eliminated. On September 30, 1985, another vacancy occurred and Ceballos was promoted. At this point, appellant occupied the number one position on the list. However, no more vacancies occurred in the ranks of District Fire Chief while appellant was number one on the list.

Appellant brought suit seeking a declaration that Ordinance 18951, or the provision eliminating a District Fire Chief position, is "invalid, null and void." Appellant also sought an injunction postponing the compilation of a new eligibility list, and a writ of mandamus ordering the Fire Chief to promote him to District Fire Chief.

By his second point of error, appellant contends that the trial court erred in denying him leave to file a trial amendment, offered after both sides had rested, asserting that "Budget Ordinance 18951 does not have the legal effect of eliminating the position of District Fire Chief ... since the language of the Ordinance does not specify that a District Chief position is being eliminated."

The trial court has broad discretion in granting or denying a trial amendment, and its decision will not be disturbed on appeal absent a clear abuse of discretion. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex.1986); Merit Drilling Co. v. Honish, 715 S.W.2d 87 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.).

Initially, appellant argues that his pleadings were sufficient to allege the subject matter contained in his trial amendment. We disagree. As the City points out, appellant's pleadings alleged that Ordinance 18951 was "invalid, null and void" because it was enacted in bad faith.

The City's attorney objected to the amendment, claiming surprise. She also argued that the City had not prepared any defense to this allegation that there was a defect in the form of the ordinance because it failed to specify that a District Fire Chief position was being eliminated.

Appellant's trial amendment asserting a new and separate cause of action appears to be based upon facts which were known to appellant, or in the exercise of due diligence, could have been known to him at a time which as would have enabled him to include the claim in his formal pleadings. Where it appears that the new matter was known or could have been known through the exercise of due diligence, the amendment should be denied. Merit Drilling Co. v. Honish, 715 S.W.2d at 91; Missouri-Kansas-Texas Railroad Co. v. Alvarez, 703 S.W.2d 367, 370 (Tex.App.--Austin 1986, writ ref'd n.r.e.); Wendell v. Central Power & Light Co., 677 S.W.2d 610, 619 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.).

Furthermore, the issue was not tried by consent. In order for an issue to be tried by consent, there must be evidence in the record clearly establishing that both parties understood that the issue was being tried. Wendell v. Central Power & Light Co., 677 S.W.2d at 618; Realtex Corp. v. Tyler, 627 S.W.2d 441, 443-44 (Tex.App.--Houston [1st Dist.] 1981, no writ).

Appellant points to the testimony of Assistant Budget Director Oscar Martinez as relevant to the unpled issue being tried by consent. Martinez admitted that Ordinance 18951, on its face, does not indicate that a District Fire Chief position is being eliminated. However, as we pointed out earlier, the Ordinance incorporates the entire budget by reference and the budget indicates that this position was being eliminated. In any event, this testimony was also relevant to appellant's bad faith claim. See Wendell v. Central Power & Light Co., 677 S.W.2d at 618. Appellant's second point of error is overruled.

By his first point of error, appellant alleges that Municipal Ordinance 18951 does not have the legal effect of eliminating a district fire chief position within the fire department. Since this point of error was not raised in appellant's pleadings, and since we have previously held that the trial court did not abuse its discretion in not allowing appellant to include such grounds by trial amendment, appellant's first point of error is overruled.

Appellant's third, fourth, fifth, and eighth points complain of the following conclusions of law made by the trial court:

1) The City of Corpus Christi acted in good faith in passing Ordinance 18951.

2) The City of Corpus Christi acted in good faith in creating the position of Director of Emergency Medical Services.

3) The City of Corpus Christi acted in good faith in deleting a District Chief position.

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9) Ordinance 18951 was enacted in good faith.

The City Council had the right to abolish the position of District Fire Chief and create the position of Director of Emergency Medical Services, provided it acted in good faith and by a duly enacted ordinance. McLeod v. City of San Antonio 702 S.W.2d at 281; Kiel v. City of Houston, 558 S.W.2d at 72.

Whether a civil service position was abolished in "good faith" presents a question of an abuse of discretion by the governing board of the municipality, which is a question of law for the trial court. Moncrief v. Tate, 593 S.W.2d 312, 314 (Tex.1980); City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153, 157 (Tex.1960). Contrary to the general rule, the burden of proving good faith is on the City. City of San Antonio v. Wallace, 338 S.W.2d at 158; Kiel v. City of Houston, 558 S.W.2d at 72.

Good faith is shown where the action taken by the City Council was in an effort to "effect an economy in operations or a betterment of municipal services." City of San Antonio v. Wallace, 338 S.W.2d at 156. A showing of increased efficiency will also support a finding of good faith. Id. at 157; see also Moncrief v. Tate, 593 S.W.2d at 313; McLeod v. City of San Antonio, 702 S.W.2d at 281; Burkhart v. Moore, 580 S.W.2d at 110; Kiel v. City of Houston, 558 S.W.2d at 72.

Prior to the passage of Ordinance 18951, emergency medical services were supervised by a District Fire Chief who held the title of Director of Ambulance Services. The District Chief who filled this position was not required to have any medical training or experience in administering emergency medical services. If a vacancy occurred in the Director of Ambulance Services District Fire Chief position, that position would be filled pursuant to Tex.Rev.Civ.Stat.Ann. art. 1269m, § 8A. The person selected was not required to have any medical training or administrative experience with emergency medical care as long as he or she met the general requirements for District Fire Chief.

In the early part of 1984, an Ad Hoc Committee on Emergency Medical Services was...