Strickland v. City of Houston

• Decision Date: 22 October 1980
• Docket Number: No. A2468,A2468
• Citation: 608 S.W.2d 285
• Parties: Charlotte STRICKLAND, Appellant, v. CITY OF HOUSTON et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 285

608 S.W.2d 285

Charlotte STRICKLAND, Appellant, v. CITY OF HOUSTON et al., Appellees.

No. A2468.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Oct. 22, 1980.

Judy K. Hatfield, Law Offices of Robert J. Kern, Houston, for appellant.

Edward A. Cazares, City Atty., W. Torrance Fiddes, Jr., Asst. City Atty., Houston, for appellees.

Before J. CURTISS BROWN, C. J., and PRESSLER and JUNELL, JJ.

PRESSLER, Justice.

This is an appeal from a take nothing judgment holding that Appellant's claim against the City of Houston was not duly verified as required in the City Charter's notice provision. Appellant sued for damages resulting from a collision in which a City truck driven by a City employee struck the car of the Appellant from the rear. At trial it was stipulated that on September 18, 1978 the employee of the City of Houston, was in the course and scope of his employment at the time of the collision. Appellant testified that immediately after the incident she telephoned the City to advise it of the accident and was informed by an individual purporting to be a member of the City Legal Department that the City was not responsible for the acts of its employees but that a form would be sent to the Appellant which should be completed and returned to the City's Legal Department. The Appellant then turned her claim and the form which she received from the City over to Ms. Karen Williams, a claims adjuster for the Appellant's insurer. On October 17, 1978, Ms. Williams wrote to the City informing them of the accident and the claim of Appellant. While it contained all the pertinent facts about the accident, this letter was not duly verified as required by Art. IX, Section 11 of the City of Houston Charter. By a letter dated October 27, 1978, the City Secretary, Ms. Anna Russell, acknowledged receipt of the claim filed in behalf of the Appellant and informed Ms. Williams that the claim had been referred to the City Legal Department for recommendation. On December 19, 1978, ninety-one days after the accident and one day after the expiration of the ninety day period within which a verified written notice of claim must be filed, the City notified Ms. Williams by letter that the claim of the Appellant was denied, but did not state why.

Trial was to the court and it held that the material allegations in the Appellant's pleadings were true. But, the court further held that the requirements of Article IX, Section 11 of the City of Houston Charter had not been complied with because a "duly verified" written notice of claim was not filed within 90 days of the accident. Judgment was thus rendered in favor of the City.

The single issue before the court is whether, after substantial compliance with all of the substantive requirements of the City Charter notice provision, the failure to verify her written notice of claim should be fatal to Appellant's cause of action where the City delayed until immediately after the notice period had run to advise Appellant of the rejection of the claim. Notice requirements such as that of the Charter of the City of Houston have been consistently held to be a condition precedent to a right of action by a claimant. City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (Com.App.1938, opinion adopted); Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App.1921, opinion adopted); McDonald v. City of Houston, 577 S.W.2d 800, 801 (Tex.Civ.App.-Houston (14th Dist.) 1979, writ ref'd n. r. e.).

As we noted in McDonald, recent cases show that although a notice requirement might be constitutional, the facts of a particular situation can waive the strict application of the requirement. City of Houston v. Black, 571 S.W.2d 496 (Tex.1978); City of Texarkana v. Nard, 575 S.W.2d 648 (Tex.Civ.App.-Tyler 1978, writ ref'd n. r. e.); McDonald v. City of Houston, 577 S.W.2d at 801. In Dancer v. City of Houston, 384 S.W.2d 340 (Tex.1964) the court indicated that the Appellant substantially complied with the Charter notice requirements, but gave no explanation or description of the manner in which the claimant allegedly failed to comply with the requirements of the notice provision. In Schultz v. City of Houston, 551 S.W.2d 494 (Tex.Civ.App.-Houston (14th Dist.) 1977, no writ) the issue was whether the notice filed by the claimant was verified in that claimant's attorney swore that the information given in the notice was "true and correct to the best of (the attorney's) knowledge and belief" rather than on personal knowledge as required by the Charter notice provision. This Court held that the verification substantially complied with the requirements. In Ostrewich v. City of Houston, 419 S.W.2d 247 (Tex.Civ.App.-Houston (14th Dist.) 1967, no writ) the notice of claim was sworn to and timely filed but it was asserted by the city that the notice failed to comply with the "when",...