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Houston v. Cruz

Court of Appeals of Texas, Fourteenth District

August 27, 2019

THE CITY OF HOUSTON, Appellant
v.
FRANCISCO CRUZ, Appellee

          On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2016-12554

          Panel consists of Justices Christopher, Bourliot, and Spain.

          MEMORANDUM OPINION

          Frances Bourliot, Justice.

         Francisco Cruz sued Jailene Reyes for damages arising from a November 2015 car accident. In April 2017, Reyes moved to add the City of Houston as a third-party defendant. Cruz filed an amended petition asserting a cause of action against the City and contending the City waived governmental immunity under the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann. ch. 101. The City filed a plea to the jurisdiction on the ground that Cruz did not comply with the notice requirement under TTCA section 101.101. The trial court denied the plea to the jurisdiction, and the City appealed that interlocutory order. Id. § 51.014(a)(8). We reverse the order and render judgment dismissing Cruz's claims against the City.

         Background

         According to Cruz's original petition, filed in February 2016, Reyes ran a red light at an intersection and collided with Cruz's vehicle on November 2, 2015. Reyes filed a motion in mid-March 2017 seeking leave to name the City as a third-party defendant. The trial court granted the motion about a month later.

         Meanwhile, Cruz's counsel sent a letter to the City near the end of March 2017 about the accident on behalf of "our client Mr. Francisco Lopez." The letter also refers to "our client Mr. Francisco Cruz." Cruz filed an amended petition two weeks later alleging the City was negligent and grossly negligent under various theories related to the red light.

         The City filed special exceptions and an answer to the amended petition in mid-May 2017. Six months later, in November 2017, the City filed a plea to the jurisdiction and motion to dismiss as to Cruz's claims. The City contended Cruz was required to give it notice of the claim within 90 days of the accident under the City's charter or, at most, within six months of the accident under the TTCA. The City attached two affidavits to its plea to the jurisdiction. Both were executed by Anna Russell, the City Secretary and Custodian of Records for the City Council of the City of Houston. In both affidavits, Russell states it is in the regular course of business for the City to make a record at or near the time or reasonably soon thereafter of any claim against the City. The first affidavit then states in relevant part:

After a review of the records in my custody after November 2, 2015, I found that my office received a notice of claim for damages. . .on behalf of Francisco Lopez on March 31, 2017.

(Boldface in original.) The second affidavit states:

After a review of the records in my custody, I found that my office did not receive a notice of claim for damages for Francisco Cruz on or after November 2, 2015, to the present date [September 26, 2017].

(Boldface in original.)

         Cruz's response did not dispute that his lawyer's letter failed to timely provide the requisite notice. Instead, he contended a fact issue remained regarding whether the City had actual notice, in which case he was not required to provide notice. He alleged documents already produced in discovery showed the City was aware of a malfunctioning traffic signal at the intersection on the day the accident occurred. Cruz attached 18 pages of documents he characterized as "311 Lagan Service Requests, Infor/EAM Service Requests, Crew Job Tickets" regarding the intersection where the accident occurred. The documents indicate reports were made on November 2, 2015-the day of the accident-about the faulty traffic light. The reports include the following statements:

• "Well, it is happening again. The light stays green for sometimes 3-5 minutes with no traffic from Brisbane, so semis and cars are running the light. It is not doing anything consistently, but when it does change, it stays that way for way too long. With that loading company here at the intersection, this light needs to work. Why ...

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