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City of Houston v. Miller

Court of Appeals of Texas, First District

December 31, 2019

CITY OF HOUSTON, Appellant
v.
ELVIN D. MILLER, Appellee

          On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2017-24358

          Panel consists of Justices Keyes, Goodman, and Countiss.

          MEMORANDUM OPINION

          Evelyn V. Keyes Justice

         The City of Houston appeals the trial court's order denying its plea to the jurisdiction in Elvin Miller's suit to recover damages for injuries he suffered when he was thrown from his motorcycle after riding over a pothole.[1] In two issues, the City contends that it is immune from Miller's suit because Miller did not timely serve it with the statutorily-required notice of his claims and he did not plead or prove that the City had actual notice of his claims.

         Miller filed a motion asking this Court to order the trial court to supplement the appellate record. We deny Miller's motion.

         We reverse the trial court's order and render judgment dismissing Miller's suit for lack of subject-matter jurisdiction.

         Background

         According to his petition, on November 9, 2015, Miller was traveling on Scott Street in Houston, Texas, when he struck a pothole and lost control of his motorcycle, causing him to be "thrown into the air before colliding violently onto the street." Emergency medical personnel arrived on the scene and drove Miller to the hospital, where he was treated for a broken leg, a shattered ankle, lacerations, avulsions, and road rash to his arms, legs, and torso. Miller's injuries required multiple surgeries and skin grafts.

         On March 3, 2016, Miller sent the City a "pre-suit notice of claim" letter apprising it of his negligence claims against it, and, on April 10, 2017, he filed suit against the City, alleging that an improperly repaired, unbarricaded pothole caused his accident and injuries. Miller's petition alleged that the City failed to maintain the road in a reasonably safe condition, to properly inspect and repair the defects on the road that created the dangerous condition, and to adequately warn of the dangerous condition. The petition also stated that "[p]re-suit notice of the claims w[as] provided to Defendant as required by the Texas Tort Claims Act." See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (setting forth notice requirement).

         The City filed a plea to the jurisdiction and motion to dismiss Miller's petition, arguing that Miller had, in fact, failed to provide the City with timely written notice of his claims and that that failure deprived the trial court of subject-matter jurisdiction. The City attached an affidavit stating that it received Miller's notice of claim letter on March 8, 2016, which was outside the 90-day notice deadline for personal injury claims established by the City Charter. See City of Houston Charter, art. IX, § 11 (establishing 90-day deadline to provide notice of claim pursuant to Tort Claims Act); Tex. Civ. Prac. & Rem. Code Ann. § 101.101(b) (stating that governmental unit may establish notice deadline); see also Needham Fire & Rescue Co. v. Balderas, No. 14-16-00211-CV, 2017 WL 1416219, at *3 (Tex. App.-Houston [14th Dist] Apr. 18, 2017, no pet.) (mem. op.) (stating that controlling date is date governmental unit receives notice, not date claimant sends notice).

         In his response to the plea, Miller did not claim to have timely served the City with written notice. Instead, he argued that the City had actual notice of his claims and, therefore, he was excused from having to serve it with formal written notice. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c) (stating that Tort Claims Act's 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"). In support of his argument, Miller attached an EMS Patient Care Report from his accident. The report identified the "cause of injury" as a motorcycle accident, and stated a time and date of 3:26 p.m., November 9, 2015. It also noted that Miller stated that he was travelling at approximately 30 miles per hour when he "hit a pothole and lost control of the bike and was thrown from it." Miller also attached work orders for repairs to a water main in the area of the street where he was injured, indicating that work was being done on the road between October 28, 2015 and November 12, 2015.

         Miller also argued that a local television news report about his accident, entitled "Poorly repaired pothole sends motorcyclist to the hospital," which aired several days after his accident, established that the City had actual notice of his claims. He stated that the news report was attached to his response as Exhibit B, but our review indicates that it was not made part of the appellate record and it does not appear on the list of items on file in the Harris County District Clerk's electronic database for this case.

         The trial court signed an order denying the City's plea to the jurisdiction and motion to dismiss, and the City appeals that order.

         Motion to Supplement Appellate Record

         After the parties filed their appellate briefs, Miller filed a "Motion for Delivery of Documents," asking this Court to direct the Harris County District Clerk's Office to supplement the appellate record with the video of the news report he referenced in his response to the City's plea to the jurisdiction as Exhibit B and claims to have filed with the clerk separately by ...


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