Opinion
01-22-00796-CV
08-31-2023
CITY OF HOUSTON, Appellant v. IESA WILSON, Appellee
On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2022-41885
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
MEMORANDUM OPINION
April L. Farris Justice
This interlocutory appeal arises from an alleged motor-vehicle collision between appellee Iesa Wilson and an employee of appellant the City of Houston (the "City"). The City filed a combined Rule 91a motion to dismiss and traditional motion for summary judgment arguing that it did not receive timely notice of Wilson's claims, and therefore the City retained its governmental immunity from suit, depriving the trial court of subject-matter jurisdiction over the case. The court denied the motion.
In a single issue with two subparts on appeal, the City argues that the trial court erred by denying the motion for summary judgment because the City did not receive timely formal or actual notice of Wilson's claims within ninety days as required by section 101.101 of the Texas Tort Claims Act ("TTCA") and a provision of the city charter. The City argues that absent timely notice, it retained its governmental immunity from suit and the trial court lacked subject-matter jurisdiction over the case. We reverse and render judgment.
On appeal, the City does not challenge the trial court's denial of its Rule 91a motion to dismiss. See Tex. R. Civ. P. 91a.
Background
On August 5, 2021, Wilson was allegedly involved in a motor-vehicle collision with Tamika Williams, a City employee. Wilson filed suit against the City under the TTCA alleging that Williams negligently used or operated her city-owned vehicle, causing personal injury to Wilson. See Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). Wilson further alleged that Williams was acting in the scope of her employment for the City at the time of the collision, and therefore the TTCA waived the City's governmental immunity and the City was vicariously liable for Wilson's claimed injury. See id. Wilson sought an award of $60,000 in monetary damages.
Wilson did not assert a claim for property damage.
The City filed an original answer generally denying liability and asserting several affirmative defenses, including governmental immunity from suit based on Wilson's failure to provide timely notice of her claims. The City also asserted its governmental immunity in a combined Rule 91a motion to dismiss and traditional motion for summary judgment. In its summary judgment motion, the City argued that it did not receive timely formal or actual notice of Wilson's claims. See id. § 101.101(a)-(c) (providing that "governmental unit is entitled to receive notice of a claim" under TTCA unless it has actual notice of claim).
The City attached several exhibits to the motion. As proof that it did not receive timely formal notice, the City attached certified copies of the city charter and ordinances. A provision of the charter requires written notice of personal injury or property damage claims against the City within ninety days after the injury or damage is sustained. An ordinance designates the city secretary's office as the filing place for such notices. The city secretary averred in an affidavit that he had reviewed the office's records, and Wilson filed a notice of her claim on January 4, 2022, more than ninety days after the August 2021 collision.
The City attached Wilson's claim letter. Although the letter was dated September 21, 2021, it contained a stamp on its face stating "received" by the city secretary on January 4, 2022. The envelope in which the letter was sent showed that postage was printed on December 29, 2021, and the letter was postmarked on December 30, 2021.
The letter requested that the City "set up a Bodily Injury and Property Damage claim" for Wilson. The City does not contend that the letter omitted any necessary information. See Tex. Civ. Prac. & Rem. Code § 101.101(a)(1)-(3) (listing required contents of TTCA claim notice).
As proof that it did not receive timely actual notice, the City relied on a crash report completed on the day of the collision by Houston Police Department Officer D. Moore. The report does not indicate whether Wilson was injured. In an affidavit, however, Moore averred that he "interacted" with Wilson and her children for more than an hour while investigating the accident, but neither Wilson nor her children "had any painful expression [or] exhibited difficulty walking or rubbing parts of their bodies [or] made verbal complaints of pain." Moore also averred that he "reported in [the] crash report that Ms. Wilson and her children had no injuries."
The City argued that the crash report showed Wilson was not injured by noting "N" in a box for "Injury Severity" associated with Wilson's name on the report. There is no evidence in the appellate record defining "N," and the report does not otherwise state that Wilson was not injured.
Wilson filed a response to the motion disputing that the City lacked both formal and actual notice of her claims. Wilson argued that she sent her claim letter on September 21, 2021, the date which appeared on the letter. Wilson attached as evidence a copy of the letter that did not include the city secretary's receipt stamp.Wilson also attached two letters from the City, both dated in January 2022, acknowledging receipt of her claim letter and denying her claims, respectively. Wilson argued that these letters established the City's timely receipt of formal notice of her claims.
The language in the version of the letter attached to Wilson's summary judgment response differed from that in the version of the letter attached to the City's summary judgment motion. Because both letters bear the same date, the difference in language is immaterial to our decision.
Wilson also argued that the crash report provided actual notice of her personal injury claims. The report stated that "Unit #1 [City employee] turned from the wrong lane, colliding with Unit #2 [Wilson]." Wilson argued that this language established the City's fault for the collision, "thereby providing the [City] with subjective awareness of fault for [Wilson's] injuries." The trial court denied the City's motion.This appeal followed.
After this appeal was submitted, this Court determined that the appellate record did not contain a signed order denying the City's motion, and we therefore questioned our appellate jurisdiction. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (stating that appellate courts generally have jurisdiction over final judgments and interlocutory orders made appealable by statute); In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) (stating that generally, all orders must be in writing, signed by trial court, and entered of record to be effective, and docket entries do not substitute for signed order); Tex.R.App.P. 34.5(a)(5) (requiring that clerk's record include "the court's judgment or other order that is being appealed"). The Court ordered the City to file a response establishing appellate jurisdiction. The City subsequently obtained a signed order from the trial court denying the City's combined Rule 91a motion to dismiss and traditional motion for summary judgment, and the district clerk filed a supplemental clerk's record in this Court containing the trial court's order. See Tex. R. App. P. 34.5(c) (authorizing supplementation of clerk's record, which "will be part of the appellate record"). Because the appellate record now contains a signed appealable order, we conclude that we have jurisdiction over this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Governmental Immunity
In a single issue with two subparts, the City argues that it did not receive timely formal or actual notice of Wilson's claims. Thus, the City contends that it is entitled to governmental immunity from suit, which deprived the trial court of subject-matter jurisdiction, and therefore the trial court erred by denying summary judgment.
Wilson did not file an appellate brief.
A. Standard of Review
Subject-matter jurisdiction is essential to a court's power to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). The plaintiff has the burden to affirmatively demonstrate a trial court's jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019).
Sovereign or governmental immunity defeats a trial court's subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A governmental unit may assert the affirmative defense of immunity, thereby challenging the trial court's subject-matter jurisdiction, in various procedural vehicles, including a motion for summary judgment. Swanson, 590 S.W.3d at 550. We review de novo the issue of whether a trial court lacked jurisdiction due to governmental immunity. Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see Worsdale v. City of Killeen, 578 S.W.3d 57, 66 (Tex. 2019) ("Notice is a prerequisite to subject-matter jurisdiction and, thus, a question of law we review de novo.").
Rule of Civil Procedure 166a governs summary judgments. A party is entitled to summary judgment on traditional grounds if the evidence establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). When considering a jurisdictional challenge, the trial court may consider evidence and must do so when necessary to resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); Tex.R.Civ.P. 166a(c). Courts take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Miranda, 133 S.W.3d at 228; City of Houston v. McGriff, - S.W.3d -, No. 01-21-00487-CV, 2022 WL 17684046, at *6 (Tex. App.-Houston [1st Dist.] Dec. 15, 2022, no pet.).
If the governmental unit meets its initial summary judgment burden to establish that the trial court lacks jurisdiction, then the burden shifts to the nonmovant to raise a fact issue concerning jurisdiction. Miranda, 133 S.W.3d at 228; McGriff, 2022 WL 17684046, at *6. "By requiring the [governmental unit] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to 'put on their case simply to establish jurisdiction.'" Miranda, 133 S.W.3d at 228 (quoting Blue, 34 S.W.3d at 554). If a fact issue exists, summary judgment must be denied. Id. at 227-28; McGriff, 2022 WL 17684046, at *6. If the evidence is undisputed or fails to raise a fact issue, however, then we may decide the jurisdictional issue as a matter of law. Miranda, 133 S.W.3d at 228; McGriff, 2022 WL 17684046, at *6.
B. Governing Law
Governmental units, including cities, are generally entitled to governmental immunity from suit unless the Legislature has consented to suit. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022); Tex. Civ. Prac. & Rem. Code § 101.001(3)(B) (defining "governmental unit" to include cities). The TTCA creates a limited waiver of immunity for claims of personal injury, property damage, or death proximately caused by a governmental employee's negligent use or operation of a motor-driven vehicle, so long as the employee would be liable personally. Tex. Civ. Prac. & Rem. Code §§ 101.021(1), 101.025 (providing that immunity to suit is waived and abolished to extent of liability created by TTCA, and person having claim under TTCA may sue governmental unit for damages); see Miranda, 133 S.W.3d at 225.
TTCA section 101.101, which is the notice provision at issue in this case, requires timely notice-formal or actual-of claims against a governmental unit:
(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.Tex. Civ. Prac. & Rem. Code § 101.101. Formal notice under subsections (a) and (b) is the general rule, while actual notice under subsection (c) is an exception to the general rule. See id.; Worsdale, 578 S.W.3d at 76 ("Structurally and lexically, the Legislature manifested its intent that section 101.101(c) serve as an exception to section 101.101(a) and (b)'s formal-notice requirements."). Notice under section 101.101 is a jurisdictional prerequisite to suing a governmental entity under the TTCA. Tex. Gov't Code § 311.034 ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."); Worsdale, 578 S.W.3d at 62.
C. Formal Notice
The collision in dispute allegedly occurred on August 5, 2021. The City argues that Wilson was required to provide notice of her claims within ninety days-or by November 3, 2021-as required by TTCA section 101.101 subsections (a) and (b) and the city charter.
The TTCA generally requires formal notice within six months of a claim. Tex. Civ. Prac. & Rem. Code § 101.101(a). However, a city may adopt by charter or ordinance other time requirements for notice of claims. Id. § 101.101(b); City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018). Here, the City's summary judgment evidence included certified copies of parts of the city charter and ordinances. The city charter reduces the notice period to ninety days:
Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or some one [sic] in his behalf, shall give the Mayor and City Council notice in writing of such injury or destruction, duly verified, within ninety days after the same has been sustained, . . . and a failure to so notify the Mayor and City Council within the time and manner specified herein shall exonerate, excuse and exempt the City from any liability whatsoever[.]Houston, Tex., City Charter art. IX, § 11 (1913). A city ordinance designates the city secretary's office as "the place of official filing of any notice" of claims against the City under the TTCA and the city charter. Houston, Tex., Code of Ordinances ch. 2, art. IV, § 2-74.
In her summary judgment response, Wilson agreed that the ninety-day claim deadline in the city charter applied to formal notice of her claims. Therefore, the uncontroverted summary judgment evidence establishes that the City was entitled to receive notice of Wilson's claims against it within ninety days of the collision. See Miranda, 133 S.W.3d at 228 (providing that when evidence is undisputed, whether evidence establishes jurisdiction is question of law). Ninety days after the collision was November 3, 2021.
The City concedes that Wilson's claim letter was dated September 21, 2021, but it contends that the letter was not sent until late December 2021 and not received by the City until January 4, 2022. The summary judgment evidence showed that Wilson's claim letter was dated September 21, 2021, which is within the ninety-day claim period under the city charter. The face of the letter, however, bears a stamp stating "received" by the city secretary on January 4, 2022, which is more than ninety days after the collision. The city secretary's affidavit confirmed that Wilson's attorney filed the claim letter on this date. The envelope in which the letter was sent indicates that postage was printed on the envelope on December 29, 2021, and the envelope was postmarked on December 30, 2021.
This evidence establishes that the City "receive[d] notice of [Wilson's] claim against it" on January 4, 2022. See Tex. Civ. Prac. & Rem. Code § 101.101(a). Under the city charter, Wilson was required to provide notice of her claims against the City within ninety days of the August 2021 collision, or by November 3, 2021. See id. § 101.101(b); Tenorio, 543 S.W.3d at 775. The City's summary judgment evidence established that it did not receive timely formal notice of Wilson's claims. See Tex. R. Civ. P. 166a(c). Thus, the burden shifted to Wilson to raise a fact issue regarding jurisdiction. See McGriff, 2022 WL 17684046, at *6.
In her summary judgment response, Wilson argued that her attorney "sent a letter of representation to the City" on September 21, 2021, referring to her claim letter bearing the same date. Wilson did not, however, provide any evidence showing that she actually sent the letter on September 21, 2021. See id. Moreover, Wilson did not rebut the City's summary judgment evidence showing that the letter was not sent until the end of December 2021 or received by the city secretary's office until January 4, 2022. See id. Wilson argues that the City acknowledged receipt of her claim letter and denied her claim in two January 2022 letters, but these letters do not establish that the City received her claim letter before November 3, 2021.
The undisputed evidence establishes that Wilson did not mail her claim letter to the City until December 30, 2021, and the City did not receive the letter until January 4, 2022. We therefore conclude that no issue of fact exists on whether the City received timely formal notice of Wilson's claims. See Tex. Civ. Prac. & Rem. Code § 101.101(a), (b).
D. Actual Notice
As stated above, actual notice is an exception to formal notice. See id. § 101.101(a), (c); Worsdale, 578 S.W.3d at 76. Actual notice requires that the governmental unit have "knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved." Worsdale, 578 S.W.3d at 63 (quoting Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam)). Actual notice must provide the governmental unit with the same knowledge that it would have had if the plaintiff had provided formal notice. Tex. Dep't of Crim. Just. v. Simons, 140 S.W.3d 338, 347 (Tex. 2004); see Tex. Civ. Prac. & Rem. Code § 101.101(a) (requiring that notice reasonably describe damage or injury claimed, time and place of incident, and incident).
The Texas Supreme Court has long held that actual notice under section 101.101(c) requires a governmental unit's "subjective awareness" of its "alleged fault producing or contributing to the death, injury, or property damage," meaning fault "as ultimately alleged by the claimant." Worsdale, 578 S.W.3d at 59 (quoting Simons, 140 S.W.3d at 347-48, and Cathey, 900 S.W.2d at 341). Mere knowledge that an accident occurred, without more, does not establish a governmental unit's subjective awareness of its alleged fault in producing or contributing to allegations of personal injury or property damage. Id. at 72 (stating that "mere knowledge that something happened somewhere to someone or something would hardly ever be enough to alert a governmental unit of alleged wrongdoing and the necessity of mounting a defense").
On appeal, the City relies on Moore's affidavit denying that Wilson was injured to support its argument that it lacked actual notice of her personal injury claims in this case. Moore averred:
I interacted with Ms. Wilson for a little more than one hour while at the accident scene and with her children for less time. Neither Ms. Wilson nor her children had any painful expression [or] exhibited difficulty walking or rubbing parts of their bodies [or] made verbal complaints of pain. In fact, Ms. Wilson was running around trying to find her insurance papers and was smiling while I was speaking with her at the scene. Ms. Wilson did appear upset about her vehicle. Based on my observations at the scene, I reported in my crash report that Ms. Wilson and her children had no injuries.
The crash report does not state whether anyone was injured.
As stated above, Moore's crash report marked "N" in a box for "Injury Severity" related to Wilson's name, but there is no evidence in the summary judgment record defining "N."
We agree with the City that the summary judgment evidence establishes that the City did not have actual notice of Wilson's claims. Moore's affidavit denied that Wilson was injured, and the crash report does not state that anyone was injured. Because there is no evidence showing any injury to Wilson, the City could not have had subjective awareness of its alleged fault producing or contributing to any injury as ultimately alleged by Wilson in this lawsuit. See Tex. Civ. Prac. & Rem. Code § 101.101(c) (providing that formal notice is not required "if the governmental unit has actual notice . . . that the claimant has received some injury"); Worsdale, 578 S.W.3d at 63 (providing that actual notice requires governmental unit to have knowledge of injury or property damage). Mere knowledge that an accident occurred does not provide actual notice of injury claims. Worsdale, 578 S.W.3d at 72.
In her summary judgment response, Wilson argued that the crash report "clearly establishe[d] that the [City] was at fault for the car accident, thereby providing the [City] with subjective awareness of fault for [Wilson's] injuries." Indeed, the report stated that "Unit #1 [City employee] turned from the wrong lane, colliding with Unit #2 [Wilson]." But while this might have provided the City with actual notice that Wilson had a claim for property damage, Wilson did not assert a claim for property damage in her petition. Knowledge that an accident occurred and caused property damage does not establish the City's subjective awareness of its alleged fault in producing or contributing to any bodily injury. See id. In any event, Wilson did not controvert Moore's affidavit denying that Wilson was injured. See McGriff, 2022 WL 17684046, at *6 (stating that once governmental unit meets initial summary judgment burden to establish lack of jurisdiction, burden shifts to nonmovant to raise fact issue on jurisdictional issue).
The uncontroverted evidence establishes that the City did not have timely actual notice of Wilson's personal injury claims asserted in this lawsuit. See Tex. Civ. Prac. & Rem. Code § 101.101(c). Because the City did not have timely formal or actual notice of Wilson's claims against it, the City was entitled to governmental immunity from suit, and the trial court lacked subject-matter jurisdiction. See Worsdale, 578 S.W.3d at 62 (providing that TTCA notice requirement is "a jurisdictional prerequisite to suit"); Miranda, 133 S.W.3d at 225-26. We therefore hold that the trial court erred by denying the City's motion for summary judgment on Wilson's claims against it. We sustain the City's sole issue.
Conclusion
We reverse the trial court's interlocutory order denying the City's traditional motion for summary judgment, and we render judgment granting the motion and dismissing the lawsuit for lack of subject-matter jurisdiction.