Moreno v. City of El Paso

• Decision Date: 21 March 2002
• Docket Number: No. 08-01-00316-CV.,08-01-00316-CV.
• Parties: Alicia MORENO, Appellant, v. CITY OF EL PASO, Appellee.
• Court: Texas Court of Appeals

71 S.W.3d 898

Alicia MORENO, Appellant, v. CITY OF EL PASO, Appellee.

No. 08-01-00316-CV.

Court of Appeals of Texas, El Paso.

March 21, 2002.

Rehearing Overruled April 24, 2002.

James Darrell Lucas, El Paso, for Appellant.

James A. Mounts, III, Delgado, Acosta, Braden & Jones, P.C., Karen L. Landinger, Ray, McChristian & Jeans, El Paso, for Appellee.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Alicia Moreno appeals from a summary judgment granted in favor of the City of El Paso on the ground of limitations. The sole issue on appeal is whether the El Paso Municipal Code's requirement that a person give notice of an injury within ninety days delays the accrual of the cause of action and thus extends the running of the statute of limitations until notice is given. Because we conclude it does not, we affirm.

FACTUAL SUMMARY

On January 14, 1999, Moreno injured her ankle while attempting to board a bus owned and operated by the City of El Paso. In accordance with Section 3.28.010 of the Municipal Code, Moreno provided written notice to the mayor regarding her injury on March 4, 1999. Because the City subsequently objected that the notice had not been verified as required by another section of the Municipal Code, Moreno filed a verified notice on April 5, 1999. She filed a negligence suit against the City on February 15, 2001, two years and one month after her injury occurred. The City ultimately filed a motion for summary judgment alleging that Moreno had failed to file suit within the two-year statute of limitations applicable to negligence actions. In her response, Moreno asserted that the notice requirement is a condition precedent to filing suit, and therefore, the statute of limitations did not begin running until after she filed the notice. The trial court rejected this argument and granted summary judgment.

STANDARD OF REVIEW

In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). Thus, the defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pled or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. Id. If the movant establishes that the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

GENERAL RULES REGARDING ACCRUAL OF A CAUSE OF ACTION

Moreno's personal injury suit is subject to a two-year statute of limitations. See Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a)(Vernon Supp.2002). Ordinarily, the statute of limitations begins to run when a particular cause of action accrues. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 436 (Tex.App.-Fort Worth 1997, pet. denied). The phrase "cause of action" refers to the right to institute suit. Flores v. Lively, 818 S.W.2d 460, 461 (Tex. App.-Corpus Christi 1991, writ denied). Thus, a cause of action generally accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998). In most personal injury cases, a cause of action accrues when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998); see S.V., 933 S.W.2d at 4. Moreno, however, relies on a corollary rule: Where demand is an integral part of a cause of action, or a condition precedent to a right of action exists, the cause of action does not accrue and the statute of limitations does not begin to operate until demand is made or the condition is performed. See Martin v. Ford, 853 S.W.2d 680, 683 (Tex.App.-Texarkana 1993, writ denied); Cummins and Walker Oil Co., Inc. v. Smith, 814 S.W.2d 884, 886 (Tex.App.-San Antonio 1991, no writ); Young v. J & J Bail Bonds Co., 792 S.W.2d 484, 485 (Tex.App.-El Paso 1990, no writ); Gabriel v. Alhabbal, 618 S.W.2d 894, 896 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.). She argues that because the El Paso Municipal Code precluded the filing of her suit until she provided written notice of her injury, the statute of limitations did not begin to run until April 5, 1999—when she gave written notice—rather than on January 14, 1999, when she actually suffered the injury. Determining what rule of accrual to apply is a question of law. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Mitchell Energy, 958 S.W.2d at 436.

NOTICE OF INJURY PROVISION

The City of El Paso is a home rule city existing under Article XI, Section 5 of the Texas Constitution. See Tex. Const. art. XI, § 5; Tex.Local Gov't Code Ann. § 5.004 (Vernon 1999); City of Houston v. Torres, 621 S.W.2d 588, 590 (Tex.1981). As a home rule municipality, the City of El Paso has full power of local self-government subject to the limitation that its charter and ordinances shall contain nothing inconsistent with the Texas and United States Constitutions or with the general laws enacted by the Legislature. See Torres, 621 S.W.2d at 590. Section 51.077 authorizes a municipality to adopt rules governing the municipality's liability for damages caused to a person or property and further permits a municipality to provide for its exemption from liability. See Tex.Local Gov't Code Ann. § 51.077; Torres, 621 S.W.2d at 590, citing Article 1175, Section 6 of the Texas Revised Civil Statutes. Pursuant to this authorization, most Texas municipalities include "notice of claim" requirements in their charters. Torres, 621 S.W.2d at 590. These provisions have been construed to be mandatory and the timely filing of a written notice of claim is considered a condition precedent to maintenance of a suit against a city for injuries. Id. The Texas Tort Claims Act ratifies a city's charter and ordinance provisions requiring notice of claim for injury to person or property within a stated period. TEX.CIV.PRAC. & REM.CODE ANN. § 101.101(b)(Vernon 1997); Smith v. City of Houston, 960 S.W.2d 326, 328 (Tex. App.-Houston [14th Dist.] 1997, no pet.); see Torres, 621 S.W.2d at 590 (discussing predecessor statute).

The City of El Paso has enacted such a notice of claim provision:

3.28.010 Property Damage and personal injury suits—Notification—Information required.

The city shall not be liable to any person for injuries suffered to his person or the person of another unless the injured person, or someone on his behalf, shall within ninety days or within six months for good cause shown from the date the damage occurred or the injury was received, give notice in writing to the mayor of the following facts:

A. The date and time when the damage or injury occurred and the place where the damage occurred or where the injured person was at the time the injury was received;

B. The nature and extent of the damage or injury together with a specific and detailed statement of how and under what circumstances the injury occurred;

C. The names of all the persons who according to the knowledge or information of the claimant witnessed the happening of the damage or of the injury or any part thereof and the name of the doctors, if any, to whose care the injured person is committed.

El Paso Municipal Code, Chapter 3.28, Section 3.28.010. The purpose of a such a notice provision is to provide the municipality with an opportunity to investigate an accident while facts are fresh and conditions remain substantially the same, thereby enabling the City to guard against unfounded claims and to settle claims and to prepare for trial. Artco-Bell Corp. v. City of Temple, 616 S.W.2d 190, 192 (Tex.1981). These notice provisions are in aid of the management and control of the City's finances and property. Id., citing City of El Paso v. Nicholson, 361 S.W.2d 415, 417 (Tex.Civ.App.-El Paso 1962, writ ref'd n.r.e.). The purpose of the verification requirement is to afford the City protection against spurious and unfounded claims. Artco-Bell, 616 S.W.2d at 192.

EFFECT OF NOTICE REQUIREMENT ON THE STATUTE OF LIMITATIONS

Notice provisions are common throughout Texas and the United States. Not all of them, however, serve to extend the statute of limitations. See M.L. Cross, Annotation, Limitation Period as Affected by Requirement of Notice or Presentation of Claim Against Governmental Body, 3 A.L.R.2d 711 (1949). When examining those provisions found to extend the statute of limitations, it is observed that they essentially fall into two broad categories: (1) provisions which bar commencement of an action for a stated period of time; and (2) provisions which impose a condition precedent before suit may be filed, but only where the required procedure involves some entity other than the plaintiff and the resulting delay is beyond the control of the plaintiff. See id.; Santaniello v. De Francisco, 74 Misc.2d 229, 344 N.Y.S.2d 589, 591-92 (N.Y.Sup.1973), order aff'd. by, 44 A.D.2d 831, 355 N.Y.S.2d 569 (N.Y.A.D. 2nd Dept.1974).

Section 89.004(a) of the Texas Local Government Code is an example of a provision found in the second category. It provides that:

A person may not sue on a claim against a county unless the person has...