City of Wichita Falls v. Jenkins
| Decision Date | 04 March 2010 |
| Docket Number | No. 2-09-337-CV.,2-09-337-CV. |
| Parties | CITY OF WICHITA FALLS, Appellant, v. Alfred JENKINS, Sheila Calhoun, and Summer Calhoun, Appellees. |
| Court | Texas Court of Appeals |
R. Kinley Hegglund, Jr., Senior Assistant City Attorney, Wichita Fall, TX, for Appellant.
Loncar & Associates, P.C., Valeri Stiers Malone, Wichita Falls, TX, for Appellee.
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
The City of Wichita Falls appeals from the trial court's order denying its plea to the jurisdiction in this Texas Tort Claims Act (TTCA) case involving a City automobile. In two issues, the City contends that it did not have either actual or formal notice of appellees' injuries within forty-five days after the accident as required by the TTCA. Because we hold that the City did receive the required statutory notice, as well as actual notice, we affirm.
Appellees Alfred Jenkins, Sheila Calhoun, and Summer Calhoun sued the City on July 16, 2009, alleging that on May 8, 2008, they were involved in an accident with Officer Stephen Becknal, who was driving a City-owned vehicle. According to appellees, Summer, the driver, and Alfred and Sheila, the passengers, were in a car that was stopped at a red light with Officer Becknal's vehicle behind them. They alleged that "suddenly and without warning, Officer Becknal began to accelerate striking" appellees' vehicle. They further alleged that Officer Becknal was acting within the course and scope of his employment with the City.
The City filed a plea to the jurisdiction contending that appellees did not give the City timely, adequate notice of their injuries as required by the TTCA in that they did not "describe the nature and extent of their injuries." The City claimed that because it did not receive the required notice, it was immune from appellees' suit. The trial court denied the plea after a hearing, and the City filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008).
Governmental immunity defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Tex. Dep't of Transp. v. Andrews, 155 S.W.3d 351, 355-56 (Tex. App.-Fort Worth 2004, pet. denied). The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed. Miranda, 133 S.W.3d at 226.
We review the trial court's ruling on a plea to the jurisdiction based on immunity from suit under a de novo standard of review. Id. at 225-26, 228; Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Andrews, 155 S.W.3d at 355. Whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is a question of law. Miranda, 133 S.W.3d at 226.
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d at 227; Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.2000); Andrews, 155 S.W.3d at 355. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28; Andrews, 155 S.W.3d at 355. But if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228; Andrews, 155 S.W.3d at 355. This standard generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at 228; see Tex.R. Civ. P. 166a(c).
Although actual notice is a fact question when the evidence is disputed, in many instances it can be determined as a matter of law. Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex.2004). Here, the parties do not dispute the facts presented on the jurisdictional issue, they simply dispute the legal significance of that evidence. Accordingly, we will review the trial court's ruling as a matter of law. See id.; Miranda, 133 S.W.3d at 226.
The TTCA waives a governmental entity's immunity from suit and liability for damage and injury caused by the wrongful act or omission, or negligence, of an employee operating or using a motor vehicle within the scope of employment. Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005); City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 699 (Tex.App.-Austin 2005, no pet.). To invoke the TTCA's waiver of sovereign immunity, a claimant must provide the governmental unit with formal, written notice of the claim against it within six months of the incident giving rise to the claim, or within a different lawful period specified in a city charter and ordinance. Tex. Civ. Prac. & Rem.Code Ann. § 101.101(a)-(b) (Vernon 2005); Nat'l Sports & Spirit, Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 79 (Tex.App.-Fort Worth 2003, no pet.); see Tex. Gov't Code Ann. § 311.034 (Vernon Supp.2009) (). The City has provided for a forty-five day notice period. Wichita Falls, Tex., Code of Ordinances ch. 2, art. IX, sec. 2-1091(a) (2006), available at http://library.municode. com/index.aspx?clientId=12090&stateId= 43&stateName=Texas. However, the formal notice requirement does not apply if the governmental unit "has actual notice... that the claimant has received some injury, or that the claimant's property has been damaged." Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c); Nat'l Sports & Spirit, 117 S.W.3d at 79. The notice must reasonably describe the damage or injury claimed, the time and place of the incident, and the incident. Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a). The purpose of the notice requirement is to ensure prompt reporting of claims so that governmental units may gather information necessary to guard against unfounded claims, settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Nat'l Sports & Spirit, 117 S.W.3d at 79.
Actual notice to a governmental unit requires knowledge of injury or property damage, the governmental unit's alleged fault producing or contributing to the injury or property damage, and the identity of the parties involved. Cathey, 900 S.W.2d at 341; Nat'l Sports & Spirit, 117 S.W.3d at 80. To have actual notice, the governmental unit must have the same information it would have had if the claimant had complied with the formal notice requirements. Nat'l Sports & Spirit, 117 S.W.3d at 80; Bourne v. Nueces County Hosp. Dist., 749 S.W.2d 630, 632-33 (Tex. App.-Corpus Christi 1988, writ denied). Mere notice that an incident has occurred is not enough to establish actual notice for purposes of the TTCA. Nat'l Sports & Spirit, 117 S.W.3d at 80; see Putthoff v. Ancrum, 934 S.W.2d 164, 173 (Tex.App.-Fort Worth 1996, writ denied).
Additionally, actual notice may be imputed to the governmental unit only when an agent or representative of the entity charged with a duty to investigate and report to the governmental unit receives the three elements of actual notice outlined in Cathey. Nat'l Sports & Spirit, 117 S.W.3d at 80; see Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 252-53 (Tex.App.-Houston 1st Dist. 1995, writ dism'd w.o.j.). But governmental entities have actual notice to the extent that a prudent entity could ascertain its potential liability stemming from an incident, either by conducting further investigation or because of its obvious role in contributing to the incident. Nat'l Sports & Spirit, 117 S.W.3d at 80; City of San Angelo v. Smith, 69 S.W.3d 303, 307 (Tex.App.-Austin 2002, pet. denied).
In both of its issues, the City contends that appellees did not provide adequate notice of their personal injuries within the forty-five days required by City ordinance because, although they did send a letter indicating that they were going to a doctor for treatment of injuries sustained in the accident, they did not provide in that letter a "reasonable description" of the nature and extent of those injuries.
The City attached to its plea to the jurisdiction an affidavit from Officer Becknal, in which he averred as follows:
On May 8, 2008, I was involved in an automobile accident at the 800 block of Kell West. The other car involved in the accident had 4 occupants: 2 females, 1 male, and 1 female child. I observed these 4 people directly after the accident, and I did not see anything that led me to believe that they were injured. I spoke to both Sheila Calhoun and Summer Calhoun at the scene of the accident and neither made any statement to me indicating that they were injured.
The City also attached an affidavit from Leland Wright, a sergeant with the City's police department who investigated the accident. He averred as follows:
The only City employees present at the scene of the accident were myself, Steve Becknal and Martha Shaw. Summer Calhoun, Sheila Calhoun, and Alfred Jenkins were involved in the accident. I spoke with each of them and asked if they suffered any injuries. They each stated that they had no injuries. I also was able to observe each of these individuals and saw nothing that would indicate to me that these people were injured. This was a minor accident and no ambulance was requested nor was any one involved in the accident transported to the hospital from the scene of the accident. In the course and scope of my job, I produced a police report based on what I observed.... I used the injury code "N" for appellees. Injury Code N means NOT INJURED.
The police report...
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