Gibbs v. City of Houston, 01-20-00570-CV

CourtCourt of Appeals of Texas
Writing for the CourtVeronica Rivas-Molloy Justice.
PartiesANDRE GIBBS, Appellant v. THE CITY OF HOUSTON, Appellee
Docket Number01-20-00570-CV
Decision Date12 October 2021

ANDRE GIBBS, Appellant


No. 01-20-00570-CV

Court of Appeals of Texas, First District

October 12, 2021

On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2018-79338-A

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.


Veronica Rivas-Molloy Justice.

In this personal injury suit, appellant Andre Gibbs ("Gibbs") appeals the trial court's order granting summary judgment in favor of the City of Houston ("City") on Gibbs' negligence claims based on limitations. In one issue, Gibbs contends his claims are not barred by the applicable statute of limitations because they fall under the "inadvertent omission" exception to the Texas relation-back doctrine. We affirm.


This personal injury lawsuit arises from an auto accident involving multiple parties. On July 6, 2017, Erin Brannon ("Brannon") was driving a pickup truck when she collided with a Houston Police Department SUV, driven by a City employee. Gibbs was one of six passengers riding in the pickup truck.

Brannon sued the City on November 1, 2018, asserting negligence claims under the Texas Tort Claims Act. She alleged she sustained personal injuries when the City employee, operating a city-owned vehicle and traveling eastbound on Holly Hall Street in Harris County, Texas, struck her Ford F150 as she was traveling westbound on Holly Hall Street. Brannon alleged the City employee failed to yield the right-of-way while making a left turn, disregarded oncoming traffic, failed to control the vehicle and operate it in a prudent manner, failed to turn the vehicle to the right in a safe manner, and was inattentive. Brannon asserted the employee was in the course and scope of his employment at the time of the accident and thus the City was liable vicariously for his negligence. The City filed a general denial asserting governmental immunity among other defenses.

On January 17, 2019, Brannon filed a first amended petition in which five of the six truck passengers-Faith Barrett, Rajahnae Flemings, Shawtrella Brannon, Mary Robertson, and Shantea Tardy, as next friend of Eslynn Tunwar, a minor- joined the lawsuit as plaintiffs. Gibbs, the sixth passenger, was not named in this amended petition. On February 8, 2019, Brannon and the other five named plaintiffs filed a second amended petition changing the legal capacities for Brannon and Faith Barrett to "Erin Brannon, Individually and ANF of Faith Barrett, Minor." Gibbs was not included as a party in this amended petition either.

On July 12, 2019-days after the statute of limitations passed-Brannon and the other five named plaintiffs filed a third amended petition naming Gibbs as a plaintiff for the first time.[1] On July 15, 2019, the City filed a second amended answer asserting Gibbs' claims were barred by the two-year statute of limitations. The City then filed a motion for summary judgment seeking dismissal of Gibbs' claims based on limitations. Gibbs did not respond.

The trial court granted summary judgment in favor of the City on Gibbs' claims. One month later, Gibbs filed a motion for new trial arguing (1) his failure to file a response to the City's motion was not intentional or the result of conscious indifference but rather a calendaring mistake, (2) his motion for new trial presented evidence sufficient to raise a genuine issue of material fact on limitations because his lawsuit related back to the filing of plaintiffs' second amended petition and was thus timely, and (3) granting a new trial would not cause delay or injury to the City. The City opposed Gibbs' motion for new trial. The trial court granted Gibbs' motion for new trial and vacated its September 23, 2019 summary judgment order.

Three months later, the City again filed a motion for summary judgment seeking dismissal of Gibbs' claims for lack of jurisdiction based on limitations and immunity. The City argued that Gibbs' claims did not fall within any waiver of immunity under the Texas Tort Claims Act because they were barred by the applicable statute of limitations. Gibbs responded arguing his appearance in the lawsuit related back to the filing of plaintiffs' second amended petition on February 8, 2019, and thus his appearance was timely. The City replied arguing the relation-back doctrine was inapplicable.

The trial court granted summary judgment in favor of the City on Gibbs' claims and severed the remaining claims and parties into a new cause number. Gibbs timely appealed.

Discussion A. Standard of Review

We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the traditional summary judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). To determine whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Nixon, 690 S.W.2d at 548- 49.

A defendant is entitled to summary judgment on an affirmative defense if the defendant proves all elements of the defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Summary judgment will be affirmed only if the record establishes the movant proved all elements of its cause of action or affirmative defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). When a defendant seeks summary judgment based on limitations, it must establish that limitations expired before the claimant filed suit. Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021).

Subject matter jurisdiction is essential to a court's power to decide a case. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam); City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). The lack of subject matter jurisdiction may be raised in a motion for summary judgment. See Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); see also Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

B. Texas Tort Claims Act

Sovereign immunity and its counterpart for political subdivisions, governmental immunity, protect the State and its political subdivisions, including municipalities, from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see also Reata Constr. Corp., 197 S.W.3d at 374. The immunity doctrine includes two distinct principles: immunity from liability and immunity from suit. City of Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. City of Houston v. Nicolai, 539 S.W.3d 378, 386 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).

The City of Houston is a governmental unit generally immune from tort liability except where the legislature specifically waives that immunity. Id.; see Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998)...

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