Smith v. City of Houston, 14-96-01383-CV

• Decision Date: 18 December 1997
• Docket Number: No. 14-96-01383-CV,14-96-01383-CV
• Citation: 960 S.W.2d 326
• Parties: Myrna SMITH, Appellant, v. CITY OF HOUSTON and Terrell Declouette, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 326

960 S.W.2d 326

Myrna SMITH, Appellant, v. CITY OF HOUSTON and Terrell Declouette, Appellees.

No. 14-96-01383-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 18, 1997.

Travis Barton Terry, Sugarland, for appellant.

Kelly Ann Dempsey, Laura Anne Coats, Houston, for appellees.

Before LEE, AMIDEI and ANDERSON, JJ.

OPINION

ANDERSON, Justice.

This is an appeal from a May 28, 1996 order granting summary judgment against Myrna Smith [Smith] for failure to give formal, written notice of a claim under both the Texas Torts Claims Act ¹ and the Charter of the City of Houston [City]. Smith originally sued the City, Terrell Declouette[Declouette], a City employee, and Abdul Hussein Moosani [Moosani], her driver, for injuries sustained in an automobile accident. In one point of error, Smith argues, among other things, summary judgment was improper because her summary judgment proof showed the City and Declouette admitted receiving actual notice of Smith's injuries, the City offered no summary judgment proof raising a fact question about such admission, thus making summary judgment against Smith improper. We agree and reverse the judgment of the trial court as to the City. Because the defendants' motion for summary judgment offered no grounds supporting judgment for Declouette, we reverse the judgment as to him as well. Finally, Smith's claim against Moosani was dismissed, making the May 28, 1996 summary judgment against Smith a final and appealable order. ²

Smith asserts in her brief on appeal ³ that she and Moosani were involved in an automobile accident with Declouette. She asserts Declouette, a Public Utilities Department employee, while in the course and scope of his employment, struck the car Moosani was driving. Appellant's brief also states Smith, a front seat passenger in Moosani's car, sustained injuries due to the accident. Smith argues Declouette was negligent in the operation of his car. Additionally, Smith alleges the City was negligent in failing to maintain a stop sign at the site of the accident.

The City and Declouette filed a motion for summary judgment stating Smith failed to give formal, written notice of a claim under both the Texas Tort Claims Act and the City Charter, and that the City did not have actual notice that Smith intended to file a claim against it based on her driver's failure to stop at an intersection. In response, Smith argued she established each element of her cause of action, the defendants received proper notice, and the defendants had judicially admitted receiving actual notice of her injuries. Several documents were attached to the response including a copy of Smith's request for admissions bearing a November 3, 1995 District Clerk file stamp and a certificate of service reflecting that same date, a return receipt for certified mail reflecting a delivery date of November 8, 1995, and an affidavit swearing the attachment was a true and correct copy of the request for admissions.

To be entitled to summary judgment, the City and Declouette had the burden to establish that no genuine issue of material fact existed and it was entitled to judgment as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). All doubts are resolved against the movant, and the reviewing court must view the evidence in the light most favorable to the non-movant. See Perez, 819 S.W.2d at 471. In contrast, for a defendant to be entitled to summary judgment it must disprove, as a matter of law, one of the essential elements of each of the plaintiff's causes of action. See id. If the movant establishes it is entitled to a summary judgment on the issues expressly presented to the trial court as a matter of law, the nonmovant must "expressly present to the trial court those issues that would defeat the movant's right to a summary judgment." Clear Creek Basin Authority, 589 S.W.2d at 679. If a defendant moves for summary judgment based on an affirmative defense, the defendant's burden is to conclusively prove all elements of the affirmative defense as a matter of law, and there can be no genuine issues of material fact remaining. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). When only one party seeks summary judgment in the trial court, and summary judgment is erroneously granted, the appellate court must reverse the trial court's judgment and remand the case for trial. See Texas Stadium Corp. v. Savings of America, 933 S.W.2d 616, 618 (Tex.App.--Dallas 1996, writ denied).

The Texas Tort Claims Act waives governmental immunity for negligent acts in certain circumstances. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.025 (Vernon 1997). To comply with the Act's requirements, a claimant must notify the governmental unit of the negligent act not later than six months after the incident. See id. § 101.101(a). The City's motion for summary judgment urged, as one supporting ground, that the City Charter also required the giving of notice within ninety days after the injury had been sustained, and that Smith had failed to comply with that provision. ⁴ The Tort Claims Act ratifies a city's charter and ordinance provisions requiring notice within a charter period permitted by law. See id at § 101.101(b). These notice provisions are akin to statutes of limitation, ⁵ and suit is precluded if they are not complied with. See Blaschke v. Citizens Med. Center, 742 S.W.2d 779, 781 (Tex.App.--Corpus Christi 1987, no writ). It is undisputed that Smith failed to provide the City with formal, written notice of her claim against it pursuant to § 101.101(a), or the City Charter.

The notice must reasonably describe the damage or injury, the time and place of the incident, and the incident. See § 101.101(a). If the governmental unit has actual notice that the claimant received some injury, the formal, written notice requirement does not apply. See § 101.101(c). This waiver of the formal notice requirement applies to the six month provision in § 101.101(a) and to charter provisions ratified by the Act. § 101.101(c). Thus, if the City had actual notice of Smith's injury, neither the Act nor the City Charter would bar her claim for failing to provide formal, written notice within the applicable time limits.

While the motion for summary judgment states it is filed on behalf of the City and Declouette, our reading of that motion suggests it was in fact filed only on behalf of the City. Several manifestations of that intent are extant, with the most telling being the final paragraph which never uses Declouette's name and closes with the statement that Smith failed to comply with the notice requirements of the City Charter and the Tort Claims Act, and "thus Defendant, City of Houston is entitled to a judgment in its favor as a matter of law."

However, even if Declouette was a party to the motion for summary judgment, neither of the two grounds set forth in the motion provide any basis for summary judgment on Smith's claims against him. First, the City Charter requirement stating that for the City to be liable for damages for personal injuries of any kind it must receive notice of the injury within ninety days of the incident does not apply to Declouette. Second, the notice provision in § 101.101(a) of the Act applies only to a governmental unit, and the definition of that term in § 101.001(2) does not include an employee, which term is defined in § 101.001(1). The City offered no grounds for its apparent assumption that Declouette was within the scope of the City Charter or the Tort Claims Act. We hold, therefore, that because defendant Declouette failed to bring forward any grounds in the motion for summary judgment defeating Smith's claims against him, summary judgment for Declouette was error. See Hall v. Harris County Water Control and Improvement Dist. No. 50, 683 S.W.2d 863, 867 (Tex.App.--Houston [14 th Dist.] 1984, no writ) (holding a summary judgment cannot be affirmed on any grounds not presented in the motion for summary judgment).

The City moved for summary judgment claiming Smith failed to give...