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City of Corpus Christi v. Resendez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 28, 2018

CITY OF CORPUS CHRISTI, Appellant,
v.
OFELIA RESENDEZ A/N/F OF ESMERALDA RAMIREZ, MINOR CHILD, Appellee.

          On appeal from the County Court at Law No. 2 of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Justice Rodriguez

          MEMORANDUM OPINION

          NELDA RODRIGUEZ Justice

         Appellant City of Corpus Christi appeals the denial of its plea to the jurisdiction, which challenged the suit filed by appellee Ofelia Resendez as next friend of Esmerelda Ramirez. By two issues, the City asserts that Resendez failed to timely provide a required statutory notice of her claim, and that the City did not have any actual awareness of fault that might otherwise excuse Resendez's failure to provide the notice. We reverse and render.

         I. Background

         This suit arises from a traffic accident that occurred on May 26, 2015. Resendez and her daughter Ramirez were passengers in an SUV that collided with a City garbage truck.

         On May 18, 2016, Resendez sent a formal notice of her claim to the City. The notice explained that Resendez and her daughter had sustained injuries as a result of the collision. The notice declared that the collision was proximately caused by the negligence of the driver of the garbage truck, a City employee named Gilbert Garza Jr., as well as the negligence of the SUV's driver, Roy Heysquierdo. Resendez later filed suit against the City and Heysquierdo for negligence.

         The City filed a plea to the jurisdiction. In it, the City alleged that Resendez's formal notice was not filed within six months of the collision, as required by the Texas Tort Claims Act ("TTCA"). See Tex. Civ. Prac. & Rem. Code § 101.101(a) (West, Westlaw through 2017 1st C.S.). Instead, Resendez delayed nearly a year after the collision before providing notice.

         The City's plea acknowledged that "actual notice" may serve as a substitute for formal notice in some circumstances, but only if the City had actual awareness of its employee's probable fault in causing the accident or injuries. The City asserted that it had no actual awareness that its employee Garza caused the accident and that, in all likelihood, Heysquierdo was solely to blame.

         As support, the City submitted the police report for the accident, which attributed fault for the collision exclusively to Heysquierdo. According to the report, the City's garbage truck was three quarters of the way through an intersection when Heysquierdo approached in the cross-bound lane. The report stated that the collision occurred because Heysquierdo "failed to control [his] speed."

         In its brief, the City explains that Resendez never filed a response to its plea to the jurisdiction with the trial court, but that she did submit a response, including various exhibits, directly to the City. The City describes the exhibits as documents detailing the City's investigation into the collision. Resendez's response and its exhibits do not appear in the appellate record.

         Following a hearing, the trial court granted the City's plea to the jurisdiction with respect to Resendez individually, which Resendez did not appeal. However, the trial court denied the plea with respect to Resendez as next friend of Ramirez. The City filed this interlocutory appeal challenging the denial of its plea as to Resendez's claim on behalf of Ramirez.[1]

         II. Notice

         By its first issue, the City contends that Resendez failed to provide a notice of claim to the City within six months of the collision, as required by the TTCA. By its second issue, the City asserts that the lack of notice is not excused because the City had ...


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