the City of Houston v. Michael Gantt ( 2021 )

Motion for Rehearing Denied; Reversed and Rendered and Substitute
Memorandum Opinion filed December 16, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00229-CV
THE CITY OF HOUSTON, Appellant
V.
MICHAEL GANTT, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2019-33962
SUBSTITUTE MEMORANDUM OPINION
We issued our opinion in this case on October 14, 2021. The City of Houston
has filed a motion for rehearing. We deny the motion, withdraw our previous
opinion, vacate our previous judgment, and issue this substitute opinion and
judgment.
This appeal is brought from the denial of a plea to the jurisdiction brought by
the City. At issue is whether the trial court lacks subject matter jurisdiction due to
the failure of notice required by Texas Civil Practice and Remedies Code section
101.101.1 For the reasons set forth below, we reverse the trial court’s order and
render judgment dismissing the case.
BACKGROUND
Appellee was a pedestrian on Westheimer Road when he was struck by a
patrol car driven by Houston Police Department officer Andrew Young. Appellee
filed suit against the City. The City filed a plea to the jurisdiction on the ground that
Gantt did not comply with the notice requirement of the Texas Tort Claims Act
(TTCA). See Tex. Civ. Prac. & Rem. Code § 101.101. The trial court denied the
plea, giving rise to this interlocutory appeal. Id. § 51.014(a)(8). The City argues the
trial court erred by denying its’ plea to the jurisdiction because: (1) appellee failed
to provide written notice of his claim; and (2) the City did not have actual notice of
appellee’s claim.
STANDARD OF REVIEW
Subject matter jurisdiction is a question of law we review de novo. See Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When a
plea to the jurisdiction challenges the plaintiff’s pleadings, we determine whether
the pleadings, construed in the plaintiff’s favor, allege facts sufficient to
affirmatively demonstrate the trial court’s jurisdiction to hear the case. Id. If the
plaintiff pleaded facts establishing a prima facie case and the governmental unit
instead challenges the existence of jurisdictional facts, we consider the relevant
evidence submitted. Id. When reviewing a plea to the jurisdiction in which the
pleading requirement has been met and evidence has been submitted to support the
plea that implicates the merits of the case, we take as true all evidence favorable to
1
Tex. Civ. Prac. & Rem. Code § 101.101(a), (c).
2
the plaintiff. Id. We indulge every reasonable inference and resolve any doubts in
the plaintiff’s favor. Id.
APPLICABLE LAW
The City of Houston is entitled to governmental immunity from suit unless
that immunity is waived. See Worsdale v. City of Killeen, 578 S.W.3d 57, 62 (Tex.
2019) (citing Tex. Civ. Prac. & Rem. Code §§ 101.025, .101). Under the TTCA, a
governmental unit is entitled to receive notice of a claim against it “not later than six
months after the day that the incident giving rise to the claim occurred.” Id. §
101.101(a). The Act provides, in pertinent part:
(a) A governmental unit is entitled to receive notice of a claim against
it under this chapter not later than six months after the day that the
incident giving rise to the claim occurred. The notice must reasonably
describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident. . . .
(c) The notice requirements . . . do not apply if the governmental unit
has actual notice that death has occurred, that the claimant has received
some injury, or that the claimant’s property has been damaged.
Id. § 101.101(a), (c). Claimants must also comply with any time requirements for
notice that a city has adopted by charter or ordinance. Id. § 101.101(b). The City of
Houston’s charter requires written notice of claim within 90 days after the injuries
or damages were sustained. Charter of the City of Houston art. IX, § 11.
Either formal or actual notice is required as a jurisdictional prerequisite to suit.
Worsdale, 578 S.W.3d at 62, 77. In his brief, appellee concedes timely written notice
was not provided. Accordingly, we sustain the City’s first issue that the requirements
of subsection (a) were not satisfied. See Tex. Civ. Prac. & Rem. Code § 101.101(a).
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Thus, unless the City received actual notice, immunity was not waived. See Tex.
Civ. Prac. & Rem. Code § 101.101(c).
Actual notice exists only when the governmental unit has “knowledge of (1)
a death, injury, or property damage; (2) the governmental unit’s alleged fault
producing or contributing to the death, injury, or property damage; and (3) the
identity of the parties involved.” Cathey v. Booth, 900 S.W.2d 339, 341-42 (Tex.
1995). To satisfy the second element, the governmental unit must have “subjective
awareness of its fault, as ultimately alleged by the claimant, in producing or
contributing to the claimed injury.” Tex. Dep’t of Crim. Justice v. Simons, 140
S.W.3d 338, 347 (Tex. 2004), superseded by statute on other grounds as stated in
Worsdale, 578 S.W.3d at 74 n.113 (noting that legislature altered the holding in
Simons that section 101.101 is not jurisdictional). This means “there must be
subjective awareness connecting alleged governmental conduct to causation of an
alleged injury to person or property in the manner ultimately asserted.” Worsdale,
578 S.W.3d at 65. The standard is subjective because lack of formal notice is
excused only by actual, not constructive, notice. Id. Knowledge that an injury has
occurred, standing alone, is not sufficient to put a governmental unit on actual notice
for purposes of waiving immunity under the TTCA. City of San Antonio v. Tenorio,
543 S.W.3d 772, 776 (Tex. 2018). To satisfy actual notice requirements, the
governmental unit must have acquired the same knowledge it is entitled to receive
under the TTCA’s formal notice provisions. Id.; Tex. Civ. Prac. & Rem. Code §
101.101(a). Actual notice is a fact question when the evidence is disputed but when
the facts are undisputed, courts may determine whether actual notice exists as a
matter of law. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324
S.W.3d 544, 549 (Tex. 2010); Simons, 140 S.W.3d at 348.
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THE EVIDENCE
The Texas Peace Officer’s Crash Report reflects appellee was taken by
ambulance to Memorial Hermann Medical Center. The report states the “crash”
occurred when appellee, “running south of Westheimer Road . . . failed to yield row
to vehicle and was struck.” The report identifies “GANTT, MICHAEL,” his age,
ethnicity, gender, and provides that he suffered a non-incapacitating injury. The
records of the City of Houston Fire Department, which transported appellee to the
hospital, state the patient had “R shoulder deformity and pain. Pt stated that he was
walking across the street when he was struck by a HPD patrol vehicle. Pt denied
LOC at time of accident and stated that he was ambulatory on-scene. Pt noted with
bruising and swelling to R shoulder and abrasions (approx. 2 in. in diameter) to L
and R shoulder area and another abrasion to L elbow (approx. the size of a dollar
bill). R shoulder also resting lower than L shoulder. Pt was placed on a sling for
pain/comfort.”2 Young wrote on his Houston Police Department Crash
Questionnaire that he was enroute and “had passed the intersection of S. Shepherd
and vehicles were stopped in the left lane[.] I was driving in the right lane when the
pedestrian darted out in the street not at a crosswalk and I struck him.” Young
reported in a supplement, “I was driving on Westheimer Road in the right lane. All
suddenly [sic] he darted in the front left of my vehicle, and I hit him.” The
supplement also reported that according to appellee, “I was trying to get to the YMC
[sic] off of Bell Street. I ran crossing Westheimer Road and got hit by the vehicle. It
was my fault.” A witness reported, “I turned around and see a man flying up in the
air, all his thing [sic] flying. The police car had hit him. The man [tried] getting up
to get out of the street, then end up just laying back on the ground.”
2
The City contends that the EMS records can never be used as notice to the City due to their confidential nature and
because an EMT is not a governmental agent who is charged with a duty to investigate facts. It is unnecessary to
resolve these issues because the records do not support notice.
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ANALYSIS
Actual notice may be imputed to a governmental entity by an agent or
representative who receives notice of the Cathey elements and who is charged with
a duty to investigate the facts and report them to a person of sufficient authority. See
Guadalupe Blanco River Auth. v. Schneider, 392 S.W.3d 321, 325 (Tex. App.—San
Antonio 2012, no pet.); City of Wichita Falls v. Jenkins, 307 S.W.3d 854, 858 (Tex.
App.—Fort Worth 2010, pet. denied); Angleton Danbury Hosp. Dist. v. Chavana,
120 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2003, no pet.). There is no
evidence in the record that the City was subjectively aware that appellee was
claiming Young was at fault for the collision. See Reyes v. Jefferson County, 601
S.W.3d 795, 798 (Tex. 2020) (per curiam) (concluding the County had actual notice
because the county claims administrator knew about plaintiff’s claims the County
was responsible). The records appellee relies upon to raise a fact issue on actual
notice reflect appellee failed to yield the right of way, ran out in front of Young’s
vehicle, and in his statement, appellee did not claim Young was at fault. Appellee’s
statement that it was his fault is not determinative, but he made no claim of Young’s
negligence. As the court noted in Worsdale, “[w]hen the facts do not even imply the
governmental unit’s fault, they are legally insufficient to provide actual notice.” 578
S.W.3d at 64.
There is no evidence the City was subjectively aware of allegations that
Young was responsible for or contributed to appellee’s claimed injuries. See
Tenorio, 543 S.W.3d at 778 (crash report listing “Fleeing or Evading Police” as a
factor and condition contributing to vehicular collision did not imply the officers or
the City were at fault); City of Dallas v. Carbajal, 324 S.W.3d 537, 539 (Tex. 2010)
(report that plaintiff drove her vehicle onto an excavated road through a gap that was
not properly blocked did not constitute actual notice of plaintiff’s subsequent claim
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that the City was at fault). Therefore, we must conclude that appellee did not
establish actual notice under section 101.101(c) and the City’s immunity from suit
was not waived. The City’s second issue is sustained.
CONCLUSION
Because appellee did not provide the required notice to the City under
subsection (a) and there is no evidence the City had actual notice under subsection
(c), the trial court erred by failing to dismiss appellee’s claims for lack of subject
matter jurisdiction. We reverse the trial court’s order denying the City’s plea to the
jurisdiction and render judgment dismissing the case.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Poissant.
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