COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-337-CV
CITY OF WICHITA FALLS APPELLANT
V.
ALFRED JENKINS, SHEILA APPELLEES
CALHOUN, AND SUMMER
CALHOUN
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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OPINION
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The City of Wichita Falls appeals from the trial court’s order denying its
plea to the jurisdiction in this Texas Tort Claims Act (TTCA) case involving a
City automobile. In two issues, the City contends that it did not have either
actual or formal notice of appellees’ injuries within forty-five days after the
accident as required by the TTCA. Because we hold that the City did receive
the required statutory notice, as well as actual notice, we affirm.
Procedural Background
Appellees Alfred Jenkins, Sheila Calhoun, and Summer Calhoun sued the
City on July 16, 2009, alleging that on May 8, 2008, they were involved in an
accident with Officer Stephen Becknal, who was driving a City-owned
vehicle. According to appellees, Summer, the driver, and Alfred and Sheila, the
passengers, were in a car that was stopped at a red light with Officer Becknal’s
vehicle behind them. They alleged that “[s]uddenly and without warning,
[Officer] Becknal began to accelerate striking” appellees’ vehicle. They further
alleged that Officer Becknal was acting within the course and scope of his
employment with the City.
The City filed a plea to the jurisdiction contending that appellees did not
give the City timely, adequate notice of their injuries as required by the TTCA
in that they did not “describe the nature and extent of their injuries.” The City
claimed that because it did not receive the required notice, it was immune from
appellees’ suit. The trial court denied the plea after a hearing, and the City filed
this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (Vernon 2008).
Standard of Review
Governmental immunity defeats a trial court’s subject matter jurisdiction
and thus is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of
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Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex. Dep’t
of Transp. v. Andrews, 155 S.W.3d 351, 355–56 (Tex. App.—Fort Worth
2004, pet. denied). The trial court must determine at its earliest opportunity
whether it has the constitutional or statutory authority to decide the case
before allowing the litigation to proceed. Miranda, 133 S.W.3d at 226.
We review the trial court’s ruling on a plea to the jurisdiction based on
immunity from suit under a de novo standard of review. Id. at 225–26, 228;
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002); Andrews, 155 S.W.3d at 355. Whether undisputed evidence of
jurisdictional facts establishes a trial court’s jurisdiction is a question of law.
Miranda, 133 S.W.3d at 226.
If a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is required to
do. Miranda, 133 S.W.3d at 227; Bland ISD v. Blue, 34 S.W.3d 547, 555
(Tex. 2000); Andrews, 155 S.W.3d at 355. If the evidence creates a fact
question regarding the jurisdictional issue, then the trial court cannot grant the
plea to the jurisdiction, and the fact issue will be resolved by the factfinder.
Miranda, 133 S.W.3d at 227–28; Andrews, 155 S.W.3d at 355. But if the
relevant evidence is undisputed or fails to raise a fact question on the
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jurisdictional issue, the trial court rules on the plea to the jurisdiction as a
matter of law. Miranda, 133 S.W.3d at 228; Andrews, 155 S.W.3d at 355.
This standard generally mirrors that of a traditional summary judgment.
Miranda, 133 S.W.3d at 228; see Tex. R. Civ. P. 166a(c).
Although actual notice is a fact question when the evidence is disputed,
in many instances it can be determined as a matter of law. Tex. Dep’t of
Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004). Here, the
parties do not dispute the facts presented on the jurisdictional issue, they
simply dispute the legal significance of that evidence. Accordingly, we will
review the trial court’s ruling as a matter of law. See id.; Miranda, 133 S.W.3d
at 226.
Notice Under TTCA
The TTCA waives a governmental entity’s immunity from suit and liability
for damage and injury caused by the wrongful act or omission, or negligence,
of an employee operating or using a motor vehicle within the scope of
employment. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005);
City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 699 (Tex.
App.—Austin 2005, no pet.). To invoke the TTCA’s waiver of sovereign
immunity, a claimant must provide the governmental unit with formal, written
notice of the claim against it within six months of the incident giving rise to the
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claim, or within a different lawful period specified in a city charter and
ordinance. Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a)–(b) (Vernon 2005);
Nat’l Sports & Spirit, Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 79 (Tex.
App.—Fort Worth 2003, no pet.); see Tex. Gov’t Code Ann. § 311.034
(Vernon Supp. 2009) (providing that notice is a jurisdictional requirement). The
City has provided for a forty-five day notice period. Wichita Falls, Tex., Code
of Ordinances ch. 2, art. IX, sec. 2-1091(a) (2006), available at
http://library.municode.com/index.aspx?clientId=12090&stateId=43&state
Name=Texas. However, the formal notice requirement does not apply if the
governmental unit “has actual notice . . . that the claimant has received some
injury, or that the claimant’s property has been damaged.” Tex. Civ. Prac. &
Rem. Code Ann. § 101.101(c); Nat’l Sports & Spirit, 117 S.W.3d at 79. The
notice must reasonably describe the damage or injury claimed, the time and
place of the incident, and the incident. Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(a). The purpose of the notice requirement is to ensure prompt
reporting of claims so that governmental units may 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); Nat’l Sports &
Spirit, 117 S.W.3d at 79.
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Actual notice to a governmental unit requires knowledge of injury or
property damage, the governmental unit’s alleged fault producing or
contributing to the injury or property damage, and the identity of the parties
involved. Cathey, 900 S.W.2d at 341; Nat’l Sports & Spirit, 117 S.W.3d at
80. To have actual notice, the governmental unit must have the same
information it would have had if the claimant had complied with the formal
notice requirements. Nat’l Sports & Spirit, 117 S.W.3d at 80; Bourne v.
Nueces County Hosp. Dist., 749 S.W.2d 630, 632–33 (Tex. App.—Corpus
Christi 1988, writ denied). Mere notice that an incident has occurred is not
enough to establish actual notice for purposes of the TTCA. Nat’l Sports &
Spirit, 117 S.W.3d at 80; see Putthoff v. Ancrum, 934 S.W.2d 164, 173 (Tex.
App.—Fort Worth 1996, writ denied).
Additionally, actual notice may be imputed to the governmental unit only
when an agent or representative of the entity charged with a duty to investigate
and report to the governmental unit receives the three elements of actual notice
outlined in Cathey. Nat’l Sports & Spirit, 117 S.W.3d at 80; see Dinh v. Harris
County Hosp. Dist., 896 S.W.2d 248, 252–53 (Tex. App.—Houston [1st Dist.]
1995, writ dism’d w.o.j.). But governmental entities have actual notice to the
extent that a prudent entity could ascertain its potential liability stemming from
an incident, either by conducting further investigation or because of its obvious
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role in contributing to the incident. Nat’l Sports & Spirit, 117 S.W.3d at 80;
City of San Angelo v. Smith, 69 S.W.3d 303, 307 (Tex. App.—Austin 2002,
pet. denied).
Issue on Appeal
In both of its issues, the City contends that appellees did not provide
adequate notice of their personal injuries within the forty-five days required by
City ordinance because, although they did send a letter indicating that they
were going to a doctor for treatment of injuries sustained in the accident, they
did not provide in that letter a “reasonable description” of the nature and extent
of those injuries.
Evidence Attached to City’s Plea to the Jurisdiction
The City attached to its plea to the jurisdiction an affidavit from Officer
Becknal, in which he averred as follows:
On May 8, 2008, I was involved in an automobile accident at
the 800 block of Kell West. The other car involved in the accident
had 4 occupants: 2 females, 1 male, and 1 female child. I
observed these 4 people directly after the accident, and I did not
see anything that led me to believe that they were injured. I spoke
to both Sheila Calhoun and Summer Calhoun at the scene of the
accident and neither made any statement to me indicating that they
were injured.
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The City also attached an affidavit from Leland Wright, a sergeant with
the City’s police department who investigated the accident. He averred as
follows:
The only City employees present at the scene of the accident
were myself, Steve Becknal and Martha Shaw. Summer Calhoun,
Sheila Calhoun, and Alfred Jenkins were involved in the accident. I
spoke with each of them and asked if they suffered any
injuries. They each stated that they had no injuries. I also was
able to observe each of these individuals and saw nothing that
would indicate to me that these people were injured. This was a
minor accident and no ambulance was requested nor was any one
involved in the accident transported to the hospital from the scene
of the accident. In the course and scope of my job, I produced a
police report based on what I observed. . . . I used the injury code
“N” for [appellees]. Injury Code N means NOT INJURED.
The police report attached to Sergeant Wright’s affidavit contains the
following description of the accident:
Unit #2 was stopped behind Unit #1 at a red light on Kell W. @
Scott Street. The driver of Unit 2 looked down to adjust his police
radio. When the driver of Unit #2 looked back up, the vehicles to
his left were proceeding (turning left). Unit #2 proceeded forward,
striking its FD to Unit 1’ s BD.
Sergeant Wright also noted no property damage that required towing of either
car and that both were “driven away.”
The City attached a third affidavit from its Risk/Safety Manager, Martha
Shaw. She averred that she went to the accident scene, that she observed all
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four occupants of the vehicle that Officer Becknal struck, and that she did not
observe anything that led her to believe that they were injured.
Another affidavit attached to the plea is from the City Clerk, Lydia Ozuna.
She averred as follows:
On May 15, 2008, my office received a letter from William
E. Hymes of Loncar & Associates. This letter was dated May 13,
2008, and regarded Summer Calhoun, Sheila Calhoun, and Alfred
Jenkins. This letter is attached to this affidavit as Attachment
1. This was the only letter my office received regarding
[appellees]. This letter does not describe or identify any of the
injuries allegedly sustained by [appellees]. This letter does not
state where these people reside, nor does it identify monetary
damages or the amount for which the lawyer’s clients are willing
to settle their claims. This letter also does not identify the names
and addresses of eyewitnesses to the incident that the clients claim
caused the unidentified injuries.
The attached letter identifies appellees as clients and lists the loss date
as May 8, 2008. It contains the following:
Please be advised that this firm has been retained to represent
[appellees] with regards to personal injuries and other damages that
they sustained in the above-referenced loss. The accident occurred
on 5/8/08 at Kell West. Our client was stopped at a red light when
Officer Stephen Becknal looked up to see the vehicle in the left lane
was turning left, Mr. Becknal then proceeding forward, sticking
[sic] our client.
Our clients are still in the process of receiving medical treatment;
upon completion, I will forward documentation of their injury claim
to you for consideration.
....
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Please acknowledge receipt of this claim. I look forward to working
with you towards the resolution of this claim.
In their response to the plea to the jurisdiction, appellees attached a crash
report completed by Sergeant Wright on the day of the accident. In response
to the question, “IN YOUR OPINION, DID THIS CRASH RESULT IN AT LEAST
$1,000.00 DAMAGE TO ANY ONE PERSON’S PROPERTY?,” the “YES” box
was checked. “NONE” was listed under “DAMAGE TO PROPERTY OTHER
THAN VEHICLES.” Also attached is an affidavit from Sandie Stewart, who
receives all mail delivered to Loncar & Associates at the Wichita Falls office.
She averred that the office received a letter on May 29, 2008 from Shaw; a
copy of the letter was attached. The caption identifies a claim number, the
date of loss as 5-8-08, the type of loss as “Vehicle,” and the amount of claim
as $4,040.17. The letter reads as follows:
We have completed our investigation of the facts related to the
incident and will agree to honor your claim in the amount of
$4,040.17.
I have requested a check from our accounting department in the
amount of $4,040.17 made payable to you. Please stop by our
office any time before 4:00 p.m. on or after June 02, 2008, and by
signing a release of claim, secure the check. . . .
Analysis
The May 13, 2008 letter from appellees’ attorney states that appellees
sustained “personal injuries and other damages” in the accident. It also
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describes the accident and names each appellee. This is sufficient notice of the
elements required in section 101.101(a). See Tex. Civ. Prac. & Rem. Code
Ann. § 101.101(a); Harris County v. Luna-Prudencio, 294 S.W.3d 690,
698–99 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Bosler v. Riddle, No.
07-05-00283-CV, 2007 WL 686645, at *3–4 (Tex. App.—Amarillo Mar. 7,
2007, pet. denied) (mem. op.) (on reh’g). The City contends that a more
detailed description of the nature and extent of appellees’ injuries is required to
put it on notice but does not provide any authority requiring more than what
appellees provided. According to the City, mere notice that a person has
sustained a personal injury is not enough; it needs more information about the
injury to properly triage and prioritize claims. But that is not the purpose of the
notice requirement; all that is required is enough information for the City to
investigate for the purpose of guarding against unfounded claims, settle claims,
and prepare for trial. The letter has enough information to allow the City to
effect this purpose. See Richardson v. Allen, No. 05-96-00018-CV, 1997 WL
242812, at *3 (Tex. App.—Dallas May 13, 1997, no pet.) (not designated for
publication) (holding that “there is no requirement that a claimant describe in
full medical detail the nature and extent of her injury”); Black’s Law Dictionary
856–57 (9th ed. 2009) (defining personal injury, in a negligence action, as “any
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harm caused to a person, such as a broken bone, a cut, or a bruise; bodily
injury” and defining bodily injury as “[p]hysical damage to a person’s body”).
The City cites Casanover v. Tomball Regional Hospital Authority in
support of its position that a letter referencing only “injuries” is insufficient to
provide notice under section 101.101(a). No. 01-04-00136-CV, 2006 WL
23407, at *3 (Tex. App.—Houston [1st Dist.] Jan. 5, 2006, no pet.) (mem.
op.). But in that case, a patient had been to the hospital on March 22, 2001
for kidney dialysis, had fallen and injured her hip while leaving that same day,
was admitted for surgery due to her injuries, was placed in a gurney in the
emergency room overnight, and then died the next day from a “sudden cardiac
death.” Id. at *1. Three days after the patient died, counsel for the appellants
(her family and estate) sent two letters to the hospital informing it that he was
representing the appellants for “injuries sustained” on or about March 23,
2001. Id. at *3. The first letter requested the patient’s medical records, and
the second letter requested the patient’s billing records. Id. Attached to the
first letter was a blank medical records affidavit, and attached to the second
letter was a blank hospital bill affidavit to be signed by the hospital’s records
custodian. Id. The court of appeals held that these letters were not sufficient
statutory notice, not only because they did not reasonably describe the damage
or injury claimed—they did not even mention the patient’s death—but also
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because they did not provide any description of the incident or any indication
of the hospital’s responsibility. See id.
In Casanover, the patient had suffered more than one injury at the
hospital: a hip injury and death. Thus, there were multiple injuries and
incidents that occurred there. The letters simply informed the hospital that the
appellants had hired an attorney and wanted the patient’s medical and billing
records. Thus, the letters, in that factual scenario, did nothing more than
inform the hospital that an attorney was investigating what had occurred at the
hospital. But, here, the May 13, 2008 letter clearly describes the car accident
and faults the City’s employee, Officer Becknal, for causing it. Moreover, it
clearly indicates that the driver and passengers had sustained personal injuries
for which they were all receiving medical treatment. We conclude and hold that
the May 13, 2008 letter was sufficient to provide the required statutory notice
of suit under section 101.101(a). Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(a).
Moreover, even if the letter were not sufficient statutory notice, the
evidence supports the conclusion that the City had actual notice of appellees’
claims. Sergeant Wright’s crash report lists Summer’s driver’s license number
and address and notes property damage to vehicles of at least $1,000; his
police report provides a detailed description of the incident and contains the
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names of each occupant of Summer’s vehicle. Thus, on the date of the
accident, a City representative had notice that a City-owned vehicle was at
fault in an accident that caused at least $1,000 of vehicle damage and also
knew the identities of all the persons involved in the accident. See Harris
County v. Dillard, 841 S.W.2d 552, 557–58 (Tex. App.—Houston [1st Dist.]
1992) (holding that accident report can suffice as notice to municipality), rev’d
on other grounds, 883 S.W.2d 166 (Tex. 1994); Rosales v. Brazoria County,
764 S.W.2d 342, 343–45 (Tex. App.—Texarkana 1989, no writ) (same); City
of Galveston v. Shu, 607 S.W.2d 942, 945–46 (Tex. Civ. App.—Houston [1st
Dist.] 1980, no writ) (same). This, too, meets the purpose of the notice
requirement of the statute to put the City on notice to investigate, settle, and
prepare for trial. That the occupants did not appear to be injured and drove
away from the accident, although possibly relevant for trial purposes (subject
to an evidentiary determination by the trial judge), does not negate the City’s
notice that an on-duty officer driving a City-owned vehicle rear-ended the car
in front of him, causing visible property damage. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.101(c) (providing that statutory notice requirements do not
apply if the governmental unit has actual notice “that the claimant has received
some injury, or that the claimant’s property has been damaged” (emphasis
added)). We conclude and hold that the City had actual notice of appellees’
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claims sufficient to invoke the trial court’s jurisdiction over appellees’ TTCA suit
against the City.
Accordingly, we overrule both of the City’s issues.
Conclusion
Having overruled both of the City’s issues, we affirm the trial court’s
order.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
DELIVERED: March 4, 2010
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