Roberts v. Haltom City

• Decision Date: 21 July 1976
• Docket Number: No. B--5716,B--5716
• Citation: 543 S.W.2d 75
• Parties: Audrey Mae ROBERTS et vir., Petitioners, v. HALTOM CITY, Respondent.
• Court: Texas Supreme Court

Page 75

543 S.W.2d 75

Audrey Mae ROBERTS et vir., Petitioners, v. HALTOM CITY, Respondent.

No. B--5716.

Supreme Court of Texas.

July 21, 1976.

Rehearing Denied Sept. 29, 1976.

George C. Thompson, Jr., David R. Sweat, Fort Worth, for petitioners.

Crumley, Murphy & Shrull, Franklin Moore, Fort Worth, for respondent.

SAM D. JOHNSON, Justice.

Audrey Mae Roberts instituted this action against the City of Haltom City for injuries sustained as a result of a fall on a street maintained by the City. The City filed a motion for summary judgment asserting that Mrs. Roberts failed to give the designated city officials written notice of her claim within thirty days of the occurrence as required by the city charter. The trial court granted the City's motion for summary judgment and the court of civil appeals affirmed. 529 S.W.2d 296. We reverse the judgments of the courts below and remand the case for trial.

The City's motion for summary judgment was based on Article X, Section 10.09, of the Haltom City charter, which provides in part:

'Before the City shall be liable to damage claim or suit for personal injury or damage to property, the person who is injured or whose property is damaged, or someone in his behalf, shall give the Mayor or the City Secretary notice in writing duly verified within thirty days after the occurring of the alleged injury or damage, stating specifically in such notice when, where and how the injury or damage was sustained, and setting forth the extent of the injury or damage as accurately as possible, and giving the names and addresses of all witnesses and upon whose testimony such person is relying to establish the injury or damage.'

Both the city secretary and mayor filed affidavits in support of the City's motion for summary judgment stating that they did not receive the required notice of claim from Mrs. Roberts.

Mrs. Roberts' contention is that the City was estopped by the conduct of its agents from demanding compliance with the charter provision. The actions of the City's agents forming the basis for Mrs. Roberts' claim of estoppel were summarized in her affidavit in opposition to the City's motion for summary judgment:

'On May 3, 1973, I was injured in a fall which occurred in the 5100 block of Nadine Street in Haltom City. On the evening of May 3, 1973, I was admitted to Harris Hospital where I remained for ten (10) days. After my release from the hospital, I called the offices of the following persons at Haltom City:

'Mr. Lloyd Nivens Superintendent of Public Works, Haltom City

'Mr. John Massey Assistant to City Manager for Haltom City

'Mr. James McGuire Police Chief for Haltom City on May 3, 1973

'Mr. Roger Prater Building Inspector for Haltom City

'Mr. Rex McEntire City Attorney for Haltom City

'I spoke with Mr. James McGuire, Chief of Police over the telephone. I explained to him that I had been injured in a fall and was making a claim against Haltom City. I also spoke with Mr. John Massey over the telephone and explained to him that I had been injured in a fall and was making a claim against Haltom City. This telephone conversation took place within thirty (30) days after the date of my injuries. Mr. Massey told me that Haltom City was not responsible and that the condition of the road was the responsibility of some contractors. He gave me a list of contractors to contact. He led me to believe that THE CITY OF HALTOM CITY was not responsible and that, therefore, I had no claim against it. I was unable to contact the contractors until after thirty (30) days after my injuries. Police Chief James McGuire told me that 'everything would be taken care of' and that the City Attorney's Office would let me know who was responsible for the condition of the street.

'THE CITY OF HALTOM CITY, by and through its agents, led me to believe that THE CITY OF HALTOM CITY was not the responsible party for my injuries. If I had known or if I had been informed by the agents and employees of Haltom City that no contractor was working on the street at the time of my injuries, I would have filed the required notice within thirty (30) days after the date of my injuries.'

Upon Mrs. Roberts' release from the hospital following her fall, she contacted the contractors named by the assistant to the city manager. The contractors investigated and then reported to Mrs. Roberts that they were not performing any repair or construction work on the portion of the street where Mrs. Roberts was injured. The contractors, of course, denied liability. After so learning that the contractors were not engaged in any construction on the portion of the street where she fell, Mrs. Roberts filed this suit against the City seeking damages in the amount of $13,156.37.

In affirming the trial court's summary judgment for Haltom City the court of civil appeals held that Mrs. Roberts failed to demonstrate any evidence raising the issue of estoppel. Mrs. Roberts contends that the summary judgment proof raised two genuine issues of fact: (1) whether the conduct of Haltom City's agents was sufficient to estop the City from asserting the notice of claim requirement; and (2) whether the agents of Haltom City had sufficient authority to estop the City from requiring a written notice of claim.

At the outset the City contends there are no pleadings to support Mrs. Roberts' claim of estoppel. The claim of estoppel was specifically stated for the first time in Mrs. Roberts' motion for new trial. A similar contention was made in 'Moore' Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972), where the defendants pleaded the statute of frauds in a suit to enforce a lease agreement and the plaintiff attempted to avoid the statute of frauds defense on the legal theory of promissory estoppel. The defendants insisted that the plaintiff was not entitled to claim promissory estoppel because this theory was neither pleaded in the trial court nor presented in the court of civil appeals. In response to this contention the court held that it had jurisdiction to determine the applicability of the promissory estoppel theory, and that the burden was on the plaintiff to adduce summary judgment evidence raising a fact issue concerning its promissory estoppel theory. In so holding the court relied upon Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 237 (1956), where this court held 'that when the affidavits or other summary judgment 'evidence' disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleading of the opposite party.' We hold, therefore, that the summary judgment for the City must be reversed if the evidence raised a genuine fact issue as to estoppel regardless of Mrs. Roberts' failure to specifically plead this theory.

The initial substantive issue is whether the conduct of the city officials, as presented in Mrs. Roberts' summary judgment proof, was sufficient to estop the City from asserting the notice of claim requirement. The charter provision clearly required written notice of claims. It has been held that compliance with such charter provisions is mandatory and that filing of a written notice of claim is a condition precedent to maintenance of a suit against a city for injuries. City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (1938); Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.--Eastland 1946, writ ref'd). However, in several cases Texas courts have held that a city may be estopped to demand compliance with a charter provision requiring written notice of claims, and the rule that municipalities may be estopped from asserting failure of compliance with notice of claim provisions is now well established in this state. Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App.1921, jdgmt. adopted); Dias v. City of San Antonio, 488 S.W.2d 522 (Tex.Civ.App.--San Antonio 1972, writ ref'd n.r.e.); City of Denison v. Fulce, 437 S.W.2d 277 (Tex.Civ.App.--Texarkana 1969, writ ref'd n.r.e.); City of Waco v. Thralls, 172 S.W.2d 142 (Tex.Civ.App.--Waco 1943, writ ref'd w.o.m.).

Mrs. Roberts' summary judgment affidavit stated that the assistant to the city manager informed her that the City was not responsible for the condition of the street but that others, private contractors, were responsible; she was thereby led to believe that she possessed no claim against the City. We hold that this summary judgment evidence raised a fact issue as to the existence of the necessary elements of estoppel. The City may be estopped if the assistant to the city manager falsely represented that the City was not responsible for the condition of the street and if Mrs. Roberts relied on such representation to her detriment. A mere denial of the City's liability by the assistant to the city manager would not, of course, estop the City from demanding compliance with the charter provision. An estoppel will arise against the City only if the assistant to the city manager reported information to Mrs. Roberts that he knew or should have known was false. This estoppel is based upon the principle that a party may not profit by his own or his agent's wrongful act.

Courts in other jurisdictions have recognized the applicability of the doctrine of estoppel in cases where a false representation by a city's agent prevented a claimant from filing a required written notice. In Fredrichsen v. City of Lakewood, 6 Cal.3d 353, 99 Cal.Rptr. 13, 491 P.2d 805 (1971), a case very closely in point, the claimant was injured by a fall on a defectively maintained city sidewalk. She contacted the city shortly after her accident and requested that it supply her with the necessary claim form. Instead of sending a claim form the city clerk sent a letter to the claimant stating that the city was not responsible for maintenance of the defective sidewalk. After the period for filing written notice of claims had passed the claimant's attorney...