Tammy Howlett v. Tarrant County ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-373-CV
TAMMY HOWLETT APPELLANT
V.
TARRANT COUNTY APPELLEE
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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OPINION ON REHEARING
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After reviewing Tarrant County’s motion for rehearing, we deny the
motion. We withdraw our August 29, 2008 opinion and judgment and
substitute the following.
Appellant Tammy Howlett appeals from the trial court’s order dismissing
her tort claim against Appellee Tarrant County for failure to serve notice of suit
on the county judge and district attorney under local government code section
89.0041. Tex. Loc. Gov’t Code Ann. § 89.0041 (Vernon 2008). We reverse
and remand.
I. Background
Howlett sued the County, alleging she sustained personal injuries when
a vehicle driven by a deputy sheriff collided with the vehicle in which Howlett
was a passenger. 1 The County concedes that Howlett served presuit notice on
the County within the six-month period prescribed by the Tort Claims Act. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005). The County filed
an original answer and a motion to dismiss, alleging that Howlett had failed to
serve notice of her lawsuit on the county judge and the district attorney under
local government code section 89.0041. See Tex. Loc. Gov’t Code Ann.
§ 89.0041. After a hearing, the trial court granted the motion to dismiss on
August 17, 2007.
On September 6, 2007, Howlett filed a “Motion to Reinstate.” The trial
court denied the motion on October 5, 2007. Howlett filed a notice of appeal
on October 31, 2007.
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 Howlett also sued the deputy sheriff. The trial court dismissed her
claims against the deputy upon the County’s motion under the election of
remedies provision of the Tort Claims Act, and Howlett has not appealed that
dismissal. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2005).
2
II. Did the motion to reinstate extend the deadline to file a notice of appeal?
In her second issue, Howlett argues that her motion to reinstate was
really a misnamed motion for new trial and as such extended the deadline for
filing her notice of appeal.
To perfect an appeal, a party must file a written notice of appeal with the
trial court within thirty days after the trial court signs the judgment. Tex. R.
App. P. 26.1. But if any party timely files (1) a motion for new trial, (2) a
motion to modify the judgment, (3) a motion to reinstate under rule of
procedure 165a, or (4) a request for findings of fact and conclusions of law,
then the notice of appeal is not due until ninety days after the trial court signs
the judgment. Tex. R. App. P. 26.1(a). A timely-filed notice of appeal confers
jurisdiction on this court, and absent a timely filed notice of appeal, we must
dismiss the appeal. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
The trial court signed the order dismissing the case on August 17.
Howlett filed her notice of appeal October 31, more than thirty days later.
Thus, unless Howlett filed a motion that extended the deadline for filing a
notice of appeal under rule 26.1(a), her notice is untimely, and we lack
jurisdiction over the appeal. See id. On the other hand, if she filed a deadline-
extending motion under rule 26.1(a), then her notice of appeal, filed within
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ninety days of the date the trial court signed the dismissal order, was timely,
and we have jurisdiction.
Howlett filed a verified “motion to reinstate” “pursuant to Texas Rules of
Civil Procedure, Rule 165a(3)” twenty days after the trial court signed the order
dismissing her claims against the County. The motion cited a recent case in
which the Dallas court of appeals held that local government code section
89.0041 does not apply to a claim brought under the Tort Claims Act and
asked the trial court to “reinstate” Howlett’s claim.
Rule 165a concerns dismissal for want of prosecution. Tex. R. Civ. P.
165a. Section 3 of the rule provides that a party may file a verified motion to
reinstate a claim dismissed for want of prosecution within thirty days after the
trial court signs the order of dismissal. Tex. R. Civ. P. 165a(3).
The trial court did not dismiss Howlett’s claim for want of prosecution.
Therefore, the reinstatement procedure set forth in rule 165a(3) was
inapplicable, and her motion to reinstate under that rule was inapposite. Under
the circumstances, a motion for new trial would have been the appropriate
instrument to file.
But the explicit provision in rule 26.1(a), providing that a timely-filed
motion to reinstate extends the deadline for filing a notice of appeal, does not
limit the deadline-extending effect of a timely motion to reinstate to only those
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circumstances where the motion is meritorious or even appropriate. Thus,
under the plain language of the rule, the filing of a motion to reinstate that
meets the requirements of rule 165a will extend the deadline to file a notice of
appeal, even if the trial court did not dismiss the underlying claim for want of
prosecution under rule 165a. See Tex. R. App. P. 26.1(a).
Under rule 165a, a motion to reinstate must (1) be filed within thirty days
of the date the trial court signed the order and (2) be verified. Tex. R. Civ. P.
165a(3). Howlett filed her motion within thirty days of the date the trial court
signed the dismissal order, and her counsel verified the motion. Therefore, her
motion met the requirements of rule 165a, and while the motion was not the
appropriate or best procedure to bring recent case law to the trial court’s
attention, it was sufficient to extend the deadline to file her notice of appeal
under rule 26.1(a). Thus, for purposes of determining whether Howlett timely
filed her notice of appeal, we need not decide whether her motion to reinstate
was really a misnamed motion for new trial.
The County cites Butts v. Capitol City Nursing Home, Inc., for the
proposition that a motion to reinstate under rule 165a is not a motion for new
trial and will not extend the deadline for filing a notice of appeal. See 700
S.W.2d 628 (Tex. App.—Austin 1985), writ ref’d n.r.e., 705 S.W.2d 696 (Tex.
1986). In Butts, the trial court dismissed the plaintiff’s claims for want of
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prosecution. Id. at 629. The plaintiff filed a timely but unverified motion to
reinstate and later filed a notice of appeal more than thirty days after the trial
court signed the order of dismissal. Id. On appeal, the plaintiff suggested that
the court of appeals treat the unverified motion to reinstate as a motion for new
trial. Id. at 630. The court of appeals dismissed the appeal for want of
jurisdiction, stating, “Without treating every motion to reinstate as a motion for
new trial, it is difficult to see how the motion in question could be other than
a motion to reinstate.” Id. In denying writ, no reversible error, the supreme
court noted that if the plaintiff’s motion to reinstate had been verified as
required by rule 165a, it would have extended the time for perfecting appeal.
Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986).
Butts is distinguishable from this case because Howlett filed a timely,
verified motion under rule 165a that extended the time for perfecting appeal
under rule 26.1(a). Therefore, unlike the court of appeals in Butts, we need not
decide whether Howlett’s motion to reinstate should be treated as a motion for
new trial. But even if we approach the question from that angle, it is clear that
Howlett’s motion sought a “substantial change” in the judgment and, as such,
it qualified as a motion to modify, correct, or reform the judgment that
extended the appellate timetable. See Tex. R. App. P. 26.1(a)(2); Tex. R. Civ.
6
P. 329b(g); Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 314
(Tex. 2000).
In light of the foregoing discussion, we hold that Howlett’s motion to
reinstate extended the deadline for filing her notice of appeal, that she timely
filed her notice of appeal, and that we have jurisdiction over the appeal. We
sustain Howlett’s second issue.
III. Does section 89.0041 apply to claims filed under the Tort Claims Act?
In her first issue, Howlett argues that local government code section
89.0041’s postsuit notice requirement does not apply to claims brought under
the Tort Claims Act.
Section 89.0041 provides as follows:
(a) A person filing suit against a county or against a county official
in the official’s capacity as a county official shall deliver written
notice to:
(1) the county judge; and
(2) the county or district attorney having jurisdiction to
defend the county in a civil suit.
(b) The written notice must be delivered by certified or registered
mail by the 30th business day after suit is filed and contain:
(1) the style and cause number of the suit;
(2) the court in which the suit was filed;
(3) the date on which the suit was filed; and
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(4) the name of the person filing suit.
(c) If a person does not give notice as required by this section, the
court in which the suit is pending shall dismiss the suit on a motion
for dismissal made by the county or the county official.
Tex. Loc. Gov’t Code Ann. § 89.0041.
Howlett concedes that she did not give the notice required by section
89.0041, but she argues that the section does not apply to claims brought
under the Tort Claims Act, which requires a claimant to provide a governmental
defendant presuit notice of the claim. Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101 (Vernon 2006).
Howlett relies solely on a case so holding from the Dallas court of
appeals, Dallas County v. Coutee, 233 S.W.3d 542 (Tex. App.—Dallas 2007,
pet denied). Coutee sued Dallas County under the Tort Claims Act, alleging
that a vehicle driven by a deputy sheriff collided with a vehicle in which Coutee
was traveling. Id. at 543. The county did not dispute that Coutee gave presuit
notice under the Tort Claims Act, but it moved to dismiss her claims for failing
to give postsuit notice under section 89.0041. Id. The trial court denied the
motion, and the county appealed. Id.
The Dallas court noted that the Tort Claims Act is a unique statutory
scheme that specifically addresses all aspects of tort claims against
governmental units, including notice of claims, venue, identification of the
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governmental unit against which liability is to be established, and service of
citation. Id. at 547 (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004)). Section 89.0041, on the other hand, generally
addresses notices of suits against counties without reference to tort suits. Id.;
Tex. Loc. Gov’t Code Ann. § 89.0041. Applying the rule of construction
codified in section 311.026 of the Code Construction Act that specific statutes
control over general statutes, also called the doctrine of in pari materia, the
court held that the specific notice provision of the Tort Claims Act applies to
the exclusion of the general notice provision of section 89.0041. Coutee, 233
S.W.3d at 547; see Tex. Gov’t Code Ann. § 311.026 (Vernon 2008). In other
words, a claimant pursuing a tort claim against a county must comply with the
Tort Claims Act’s notice provisions and not those of section 89.0041. 2 See id.
We disagree with the conclusion reached by the Dallas court in Coutee
that the doctrine of in pari materia applies to our interpretation of section
89.0041. Section 311.026 of the code construction act provides as follows:
2
 In reaching this conclusion, the Dallas court relied on its holdings in
two earlier cases, Raymond v. Hanson, 970 S.W.2d 175 (Tex. App.—Dallas
1998, no pet.), and Parsons v. Dallas County, 197 S.W.3d 915 (Tex.
App.—Dallas 2006, no pet.). Raymond and Parsons both held that a Tort
Claims Act claimant was not required to comply with the presuit notice-of-claim
provision of a different section of the local government code, section
89.004(a). Parsons, 197 S.W.3d at 919–20; Raymond, 970 S.W.2d at 178.
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(a) If a general provision conflicts with a special or local provision,
the provisions shall be construed, if possible, so that effect is given
to both.
(b) If the conflict between the general provision and the special or
local provision is irreconcilable, the special or local provision
prevails as an exception to the general provision, unless the general
provision is the later enactment and the manifest intent is that the
general provision prevail.
Tex. Gov’t Code Ann. § 311.026 (Vernon 2008). That rule applies only if
two statutes share a common purpose or object. Strickland v. State, 193
S.W.3d 662, 666 (Tex. App.—Fort Worth 2006, pet. ref’d). If the statutes
share a common purpose or object, they must be harmonized if possible. Id.;
Tex. Gov’t Code Ann. § 311.026(a); see also La Sara Grain Co. v. First Nat’l
Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984) (“Generally, courts are
to construe statutes so as to harmonize with other relevant laws, if possible.”).
Only if the statutes irreconcilably conflict and cannot be harmonized does the
specific statute apply to the exclusion of the general. Tex. Gov’t Code Ann. §
311.026(b); Strickland, 193 S.W.3d at 666.
Section 311.026 does not apply to the two statutes at issue here
because the statutes do not share a common purpose or object. Tort Claims
Act section 101.101 concerns presuit notice of a claim, whereas local
government code section 89.0041 concerns postfiling notice of the suit itself.
The purpose of notice under section 101.101 is “to ensure prompt reporting of
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claims in order to enable governmental units to gather information necessary to
guard against unfounded claims, settle claims, and prepare for trial.” Cathey
v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The apparent purpose of section
89.0041 is to ensure that the person responsible for answering and defending
the suit—the county or district attorney—has actual notice of the suit itself.
See Loc. Gov’t Code Ann. § 89.0041. Thus, the two statutes do not share a
common purpose or object, and the doctrine of in pari materia and Code
Construction Act section 311.026 do not apply.
Even if we assume that the statutes share a common purpose or object,
they do not conflict and can be harmonized. Giving presuit notice of a claim
under section 101.101 does not preclude a party from giving postfiling notice
of suit under section 89.0041. Nothing prevents a party like Howlett who
asserts a tort claim against a county from complying with the requirements of
both Tort Claims Act section 101.101 and local government code section
89.0041.
Because Tort Claims Act section 101.101 and local government code
section 89.0041 do not share a common purpose, and because even if they did
share a common purpose, they can be harmonized, we hold that a party
asserting a Tort Claims Act claim against a county must furnish both the presuit
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notice required by Tort Claims Act section 101.101 and the postsuit notice
required by local government code section 89.0041.
IV. Did substantial compliance with section 89.0041 suffice?
Howlett allegedly sustained personal injuries on April 26, 2005. The
County concedes that it received presuit notice of Howlett’s claims for damages
by a letter from her attorney on May 10, 2005, within the six-month period set
by the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.101 (Vernon
2005).3 The receipt of that letter was acknowledged in a response letter from
the Tarrant County District Attorney, dated August 8, 2005, and signed by
Christopher W. Ponder, Assistant District Attorney, in which he advised
Howlett’s attorney to direct any future telephone calls or correspondence to
that office.
Howlett filed suit on April 16, 2007, and served the county judge with
her petition. Her original petition specifically alleges that “Defendant,
TARRANT COUNTY, a county in Texas, may be served with process by serving
the county judge, B. Glen Whitley” and sets forth the address for service. The
3
 The record also establishes presentment by Howlett of her claim and
its denial by the commissioner’s court on February 1, 2006. See Tex. Local
Gov’t Code Ann. § 89.004 (providing suit may not be filed against county or
elected or appointed county official unless claim is presented and
commissioners court neglects or refuses to pay all or part of claim before 60th
day after presentment).
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unty acknowledges that it received service on May 1, 2007. Thus, the ty judge
County Judge of Tarrant County was served with written notice of Howlett’s
suit before the 30th day after suit was filed (by serving the original petition on
the county judge) as directed by section 89.0041(a)(1). Tex. Loc. Gov’t Code
Ann. § 89.0041(a)(1).
The Tarrant County District Attorney’s Office answered on behalf of the
County and its employee thirty-six days after suit was filed. Thus, the County
and its employee received actual knowledge of each item required to be
included in the postsuit notice under local government code section 89.0041(b):
the style and cause number of the case, the court in which it was filed, the
date suit was filed, and the name of the person filing suit. Id. § 89.0041(b).
Applying the rule of construction that we are to consider the objective of
the statute, which is “to ensure that the person responsible for answering and
defending the suit—the county or district attorney—has actual notice of the suit
itself,” we find that this objective is accomplished by substantial compliance
and that such compliance was achieved here. See Ballesteros v. Nueces
County, 286 S.W.3d 566, 570 (Tex. App.—Corpus Christi 2009, pet. filed) (op.
on reh’g) (holding substantial compliance with section 89.0041 by proof of
actual notice sufficient); Dallas County v. Autry, 251 S.W.3d 155, 158 (Tex.
App.—Dallas 2008, pet. denied) (same); Dallas County v. Coskey, 247 S.W.3d
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753, 756 (Tex. App.—Dallas 2008, pet. denied) (same); but see Roccaforte,
281 S.W.3d at 236–37 (refusing to find substantial compliance exception to
section 89.0041 under circumstances where plaintiff made no attempt to
comply). Having concluded that Howlett substantially complied with the
postsuit notice requirement of local government code section 89.0041, we
sustain her first issue.
V. Conclusion
Having sustained Howlett’s first and second issues and held that she
timely filed her notice of appeal and substantially complied with local
government code section 89.0041, we reverse the judgment of the trial court
dismissing her suit and remand this cause for further proceedings consistent
with this opinion.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
WALKER, J. filed a concurring opinion.
DELIVERED: December 3, 2009
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-373-CV
TAMMY HOWLETT APPELLANT
V.
TARRANT COUNTY APPELLEE
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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CONCURRING OPINION ON REHEARING
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I concur with the majority’s opinion on rehearing denying Appellee Tarrant
County’s motion for rehearing in this appeal. The majority correctly holds that
Appellant Tammy Howlett substantially complied with section 89.0041 of the
Texas Local Government Code if that section is applicable to her suit. See Tex.
Loc. Gov’t Code Ann. § 89.0041 (Vernon 2008). I write separately, however,
because I disagree with the majority’s analysis of Dallas County v. Coutee, 233
S.W.3d 542, 543 (Tex. App.—Dallas 2007, pet. denied), and analysis of the
scope of applicability of section 89.0041; in light of the majority’s holding that
Howlett substantially complied with section 89.0041, I believe that the
majority’s analysis of Coutee and of the scope of applicability of section
89.0041 are dicta. See Black’s Law Dictionary 409 (5th ed. 1979) (defining
dictum as an observation or remark made concerning some rule, principle, or
application of law suggested in a particular case, which observation or remark
is not necessary to the determination of the case); see generally Cont’l Cas. Ins.
Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 400 n.6 (Tex. 2000)
(noting dicta is not binding); Pierre N. Leval, Judging Under the Constitution:
Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1261–63 (2006) (discussing
reasons that “disfavor lawmaking through dictum”). Because I agree with the
majority’s ultimate holding that, in any event, Howlett substantially complied
with section 89.0041, I respectfully concur.
SUE WALKER
JUSTICE
DELIVERED: December 3, 2009
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