Opinion=20
issued January 26, 2006=20
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-05-00079-CV
__________
ALVIN =
CHARLES=20
DUNCAN, Appellant
V.
CITY =
OF HOUSTON,=20
Appellee
On =
Appeal from=20
the 133rd District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2003-45152
MEMORANDUM=20
OPINION
<=
/SPAN>We=20
deny appellant=E2=80=99s motion for rehearing. Tex. R. App. P. 49.3. We =
withdraw=20
our December 8, 2005 opinion, substitute this opinion in its =
place, and=20
vacate our December 8, 2005 judgment.=20
<=
/SPAN>Appellant,=20
Alvin Charles Duncan, challenges the trial court=E2=80=99s =
rendition of summary=20
judgment in favor of appellee, the City of Houston (the =
=E2=80=9CCity=E2=80=9D), in his=20
suit alleging that the City was negligent in failing to maintain =
its=20
sidewalks and keep them =E2=80=9Cfree, clean and inspect[ed] from =
defect[s].=E2=80=9D In=20
two issues, Duncan=20
contends that the trial court erred (1) in granting the =
City=E2=80=99s summary=20
judgment motion on the ground that Duncan failed to satisfy the =
notice=20
requirements of the Texas Tort Claims Act, ![3DFootnote](3D"")
and (2) in failing =
to rule=20
on his motion for appointment of counsel, motion to compel =
discovery, and=20
various post-judgment motions, including his motion for =
appointment of=20
appellate counsel, motion to obtain copy of trial court=E2=80=99s =
order, motion to=20
reinstate, motion for extension of time to file motion for new =
trial, and=20
motion for new trial. We affirm.
Factual and=20
Procedural Background
=
Duncan=20
alleged that on September 19, 2001, while riding a bicycle on a =
sidewalk=20
in the 3600 block of Des Chaumes Street in =
Houston, he sustained =
personal=20
injuries when he fell head first onto the sidewalk after striking =
a guy=20
wire, which was installed in the middle of the sidewalk and =
connected to a=20
pole.
<=
/SPAN>On=20
October 15, 2001, Duncan sent a letter to the claims department of =
Reliant=20
Energy/Houston Lighting & Power Co. =
(=E2=80=9CReliant=E2=80=9D), stating that he was=20
injured when he was riding his bicycle and struck a guy wire, =
which was=20
supporting a utility pole. The letter further stated that the wire =
=E2=80=9Cposed=20
a substantial tripping hazard=E2=80=9D and that the installation =
of the wire was=20
=E2=80=9Cgrossly negligent.=E2=80=9D On January 31, 2002, Reliant =
sent a letter to Duncan=20
stating that it was investigating Duncan=E2=80=99s =
claim. On June 28,=20
2002, Reliant sent Duncan a letter stating that the wire was not =
installed=20
by Reliant and that it belonged to Time Warner Communications =
(=E2=80=9CTime=20
Warner=E2=80=9D).
Reliant informed Duncan that it would be =
unable to=20
assist him with his claim. On November 5, 2002, apparently after =
Duncan=20
contacted Time Warner, Time Warner=E2=80=99s insurer sent Duncan a =
letter denying=20
his claim and suggesting that Duncan submit his claim to the =
City=E2=80=99s=20
liability carrier.
<=
/SPAN>Duncan filed suit =
against=20
the City on August 11, 2003, almost two years after Duncan =
sustained his=20
injuries. The City moved for summary judgment on the ground that =
Duncan=20
failed to comply with the notice provisions in section 101.101(a) =
of the=20
Texas Tort Claims Act, which provides that the City is entitled to =
receive=20
notice of a claim against it not later than six months after the =
day that=20
the incident giving rise to the claim occurred. Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7 101.101(a) (Vernon 2005).
The City also moved for summary judgment =
on the=20
ground that Duncan failed to comply with the notice provisions in =
the City=20
charter, which requires a person who is injured to provide the =
City=20
written notice of such injury within ninety days after sustaining =
the=20
injury. City of Houston=20
Charter art. IX, =C2=A7 11. The City attached to its summary =
judgment motion a=20
copy of the City charter and an affidavit from Anna Russell, the =
City=20
secretary, stating that she reviewed the City=E2=80=99s records =
and that Duncan=20
did not provide the City with any notice of a claim for damages.=20
<=
/SPAN>Duncan=20
filed an =E2=80=9Cobjection=E2=80=9D to the City=E2=80=99s summary =
judgment motion, and attached=20
what appears to be a copy of a page from a Southwestern Bell =
telephone=20
book, labeled =E2=80=9CGovernment Offices-City,=E2=80=9D which =
provides a listing, under=20
the subheading =E2=80=9CPublic Works & Engineering =
Department,=E2=80=9D for =E2=80=9CStreet=20
Light Repair HL&P Customer Service.=E2=80=9D The City =
responded to Duncan=E2=80=99s=20
objection by presenting the trial court with an assumed name =
certificate=20
for =E2=80=9CHouston Industries Incorporated, doing business as =
Reliant Energy=20
HL&P.=E2=80=9D The trial court granted the City=E2=80=99s =
summary judgment motion=20
based on Duncan=E2=80=99s =E2=80=9Cfailure to satisfy the =
mandatory requirements of=20
Article IX, Chapter 11 of the Charter, City of Houston, and =
section=20
101.101 of the Texas Tort Claims Act.=E2=80=9D
Standard of=20
Review
To=20
prevail on a summary judgment motion, a movant =
has the=20
burden of proving that it is entitled to judgment as a matter of =
law and=20
that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); =
Cathey v.=20
Booth, 900=20
S.W.2d 339, 341 (Tex. 1995). We may affirm a =
summary judgment only when the =
record shows=20
that a movant has disproved at least one element of each of the=20
plaintiff=E2=80=99s claims or has established all of the elements =
of an=20
affirmative defense as to each claim. Am. Tobacco Co. v. =
Grinnell, 951 S.W.2d =
420, 425=20
(Tex. 1997). We must accept as =
true=20
evidence in favor of the nonmovant and indulge every reasonable =
inference=20
and resolve all doubts in favor of the =
nonmovant. Cathey, 900 S.W.2d at=20
341.=20
Notice =
Requirements
In his first issue, Duncan argues that =
the trial=20
court erred in granting the City=E2=80=99s summary judgment motion =
because he=20
provided the City with timely formal notice and that the City had =
actual=20
notice of his claim.
A plaintiff must provide a =
governmental=20
unit with notice of a claim against it not later than six months =
after the=20
day the incident giving rise to the claim occurred, and such =
notice must=20
reasonably describe (1) the damage or injury claimed, (2) the time =
and=20
place of the incident, and (3) the incident. Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 101.101(a). Section=20
101.101(b) provides that =E2=80=9C[a] City=E2=80=99s charter and =
ordinance provisions=20
requiring notice within a charter period permitted by law are =
ratified and=20
approved.=E2=80=9D Id. =C2=A7=20
101.101(b). The City=E2=80=99s =
charter provides=20
that before the City may be held liable for personal=20
injuries,
the person injured =
. . . or=20
some one in his behalf, shall give the Mayor and City Council =
notice in=20
writing of such injury or destruction, duly verified, within =
ninety days=20
after the same has been sustained, stating in such written notice =
when,=20
where and how the injury or destruction occurred, and the apparent =
extent=20
thereof, the amount of damage sustained, the amount for which =
claimant=20
will settle, the actual residence of the claimant by street and =
number at=20
the date the claim is presented, and the actual residence of such =
claimant=20
for six months immediately preceding the occurrence of such =
injuries or=20
destruction, and the names and addresses of the witnesses upon =
whom he=20
relies to establish his claim . . . .
City of Houston Charter =
art. IX, =C2=A7=20
11; see also City of Houston v. Torres, 621 S.W.2d 588, 589 =
n.1,=20
592 (Tex. 1981).
<=
/SPAN>Notice=20
of a claim against a governmental unit, as mandated by either =
section=20
101.101(a) or the City charter, is not required if the =
governmental unit=20
has =E2=80=9Cactual notice=E2=80=9D that the claimant has received =
some injury. Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7 101.101(c). =
=E2=80=9C[A]ctual =
notice under=20
section 101.101(c) requires that a governmental unit have knowledge =
of the=20
information that it is entitled to be given under section =
101.101(a)=20
and a subjective =
awareness that=20
its fault produced or contributed to the claimed =
injury.=E2=80=9D Tex. Dep=E2=80=99t of =
Criminal Justice v.=20
Simons, 140 S.W.3d 338, 348 (Tex. 2004). Actual notice may =
be imputed=20
to the governmental unit by an agent or representative of the =
entity=20
charged with a duty to investigate the facts and report them to a =
person=20
of sufficient authority. See McDonald v. State, 936 S.W.2d =
734, 738=20
(Tex. App.=E2=80=94Waco 1997, no pet.); Dinh v. Harris County Hosp. =
Dist., 896=20
S.W.2d 248, 253 (Tex. App.=E2=80=94Houston [1st Dist.] 1995, writ =
dism=E2=80=99d w.o.j.).=20
Whether an entity has actual notice is generally a question of =
fact.=20
Dinh, 896 S.W.2d at 252=E2=80=9353. However, where the evidence is =
insufficient to=20
raise a fact issue, the existence of =
actual=20
notice may be determined as a matter of law. Simons, 140 =
S.W.3d at=20
348; McDonald, 936 S.W.2d at 738.
<=
/SPAN>In=20
regard to Duncan=E2=80=99s assertion that he provided the City =
with timely notice,=20
we note that the only notice contained in the record is =
Duncan=E2=80=99s October=20
15, 2001 letter to Reliant and that the City presented an =
affidavit=20
stating that Duncan did not provide the City with timely notice of =
his=20
claim. Thus, the summary judgment evidence establishes that Duncan =
did not=20
provide the City with notice of his claim in compliance with =
section=20
101.101(a) or the City charter.
<=
/SPAN>In=20
support of his contention that the City had actual notice of his =
claim,=20
Duncan asserts that Reliant is =
=E2=80=9Can agent or=20
representative of governmental unit of City engineer.=E2=80=9D =
Here, Duncan does=20
not allege, or present any argument or supporting evidence, that a =
City=20
employee charged with a duty to investigate and report facts to a =
person=20
of sufficient authority had any knowledge of Duncan=E2=80=99s =
injury=20
or had a subjective awareness that the =
City=E2=80=99s=20
fault produced or contributed to Duncan=E2=80=99s =
injury. Duncan=E2=80=99s mere reference =
to an =
unauthenticated page=20
of a phone book does not provide any evidence that Reliant, or any =
of=20
Reliant=E2=80=99s employees, served as a representative or agent =
of the=20
City.
Conversely, the =
City=20
presented testimony that it did not receive notice of =
Duncan=E2=80=99s=20
injuries and also presented evidence that =
=E2=80=9CReliant Energy=20
HL&P=E2=80=9D was an assumed name for Houston Industries =
Incorporated, a=20
distinct corporate entity.
Duncan=E2=80=99s argument that the City =
had actual notice=20
because the guy wire was removed from the sidewalk after he was =
injured is=20
also misplaced. Here, even if Duncan had presented competent =
summary=20
judgment evidence showing that the guy wire was removed by the =
City, which=20
he did not, there is no evidence that the City, or any of its =
agents or=20
representatives, was aware that Duncan was injured as a result of =
tripping=20
over the guy wire or that =
the City=E2=80=99s=20
fault produced or contributed to Duncan=E2=80=99s =
injury.
Accordingly, we hold that the =
trial court=20
did not err in granting the City=E2=80=99s summary judgment motion =
on the ground=20
that Duncan failed to satisfy the notice requirements of section =
101.101=20
of the Texas Tort Claims Act.
We overrule Duncan=E2=80=99s first =
issue.Trial Court=E2=80=99s Failure to Rule =
on Various=20
Motions
<=
/SPAN>In=20
his second issue, Duncan argues that the trial court erred in =
failing to=20
rule on his various pretrial and post-judgment motions because a =
trial=20
court must rule on such motions within a reasonable time. In the =
body of=20
his argument, Duncan also complains about the trial =
court=E2=80=99s failure to=20
rule on his motion to compel further response to =
plaintiff=E2=80=99s second set of=20
interrogatories.
<=
/SPAN>The=20
City=E2=80=99s only response to Duncan=E2=80=99s argument about =
the trial court=E2=80=99s failure=20
to rule on these motions is that the trial court lacked subject =
matter=20
jurisdiction over the case. =
However,=20
as recognized by the City in its brief,=20
the Texas Supreme Court has recently held that =E2=80=9Cthe =
failure to give notice=20
of a claim as required by section 101.101 does not deprive a court =
of=20
subject matter jurisdiction over an action on the claim.=E2=80=9D =
Univ. of Tex.=20
Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 364 =
(Tex.=20
2004).
<=
/SPAN>The record reveals =
that=20
Duncan filed the following motions: (1) a motion for appointment =
of=20
counsel, (2) multiple motions to compel, (3) a motion to =
reinstate, (4) a=20
motion for extension of time to file motion for new=20
trial, and (5) a motion for new =
trial.
The record also reveals that Duncan =
filed notices=20
of submission and/or hearing on his motion for appointment of =
counsel,=20
motions to compel, =
motion to reinstate, motion for =
extension of time=20
to file motion for new trial, and motion for new trial. There is =
no=20
indication in the record that the trial court ruled on these=20
motions.
=
It is true that a trial court is =
generally=20
required to consider and rule upon a motion within a reasonable =
time.=20
Safety Kleen=20
Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.=E2=80=94San =
Antonio 1997,=20
orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1992, orig. =
proceeding). =
However, in light of the circumstances =
presented=20
as demonstrated below, we hold that the trial court=E2=80=99s =
failure to rule on=20
Duncan=E2=80=99s motions did not probably cause the rendition of =
an improper=20
judgment. Tex. R. App. P. =
44.1(a).
=
First,=20
in regard to Duncan=E2=80=99s motion to =
appoint counsel,=20
we would ordinarily review a trial =
court=E2=80=99s refusal to=20
appoint trial counsel in a civil case for an abuse of discretion.=20
Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003); =
Wigfall v.=20
Tex. Dep=E2=80=99t of Criminal Justice, 137 S.W.3d 268, =
274=E2=80=9375 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2004, no pet.). =
The Texas Supreme =
Court has=20
suggested that a trial court could appoint counsel to an indigent =
civil=20
litigant in exceptional circumstances. Id. =E2=80=9CIn =
evaluating what might=20
constitute exceptional circumstances, we are to consider the =
=E2=80=98unique=20
circumstances=E2=80=99 of the case and determine whether the trial =
court had =E2=80=98no=20
reasonable alternative but to appoint =
counsel.=E2=80=99=E2=80=9D Wigfall, =
137 S.W.3d=20
at 274=E2=80=9375 (quoting Tolbert, 102 S.W.3d at =
713).
<=
/SPAN>Duncan=20
contended he was without sufficient funds to hire =
an attorney and =
that he had=20
made several attempts to hire an attorney, but was unsuccessful. =
Duncan=20
also contended that the case was complex and that, because of =
conflicting=20
testimony, =E2=80=9Cskill in presentation and cross =
examination=E2=80=9D would be=20
required. Like the supreme court in Tolbert and this Court =
in=20
Wigfall, we note that indigent plaintiffs routinely obtain =
legal=20
representation through contingent fee contracts, and =
Duncan=E2=80=99s indigence=20
should not have prevented him from obtaining legal counsel, =
provided that=20
his claims were meritorious. Tolbert, 102 S.W.3d at 713;=20
Wigfall, 137 S.W.3d at 275. We conclude that =
the=20
circumstances presented by Duncan=E2=80=99s case are not =
exceptional, and that the=20
trial court=E2=80=99s denial of Duncan=E2=80=99s motion for =
appointment of counsel would=20
not have been in error. Accordingly, we further hold that the =
trial=20
court=E2=80=99s error, if any, in failing to rule on =
Duncan=E2=80=99s motion to appoint=20
counsel did not =E2=80=9Cprobably cause[] the rendition of an =
improper judgment.=E2=80=9D=20
Tex. R. App. P.=20
44.1(a).
<=
/SPAN>Second,=20
in regard to Duncan=E2=80=99s motions to compel, we note that the =
record=20
establishes, as a matter of law, that Duncan failed to satisfy the =
notice=20
requirements of section 101.101. It is undisputed that the only =
notice on=20
which Duncan relies is a letter he sent to Reliant, a distinct =
corporate=20
entity. The City presented uncontradicted testimony that it did =
not=20
receive timely notice of Duncan=E2=80=99s claim. Duncan does not =
allege, much less=20
present argument supported by competent summary judgment evidence, =
that=20
the City, or any of its agents or representatives, was aware that =
Duncan=20
was injured as a result of tripping over the guy wire. There is =
also no=20
evidence that a City employee, agent, or representative=20
charged with a duty to investigate and =
report=20
facts to a person of sufficient authority had any knowledge of =
Duncan=E2=80=99s=20
injury or had a subjective awareness that the =
City=E2=80=99s=20
fault produced or contributed to Duncan=E2=80=99s =
injury. We hold that, to the extent that the =
trial court=20
committed error in failing to rule on Duncan=E2=80=99s motions to =
compel, such=20
error did not =E2=80=9Cprobably cause[] the rendition of an =
improper=20
judgment.=E2=80=9D Id.
<=
/SPAN>Finally,=20
in regard to Duncan=E2=80=99s motion to reinstate, motion for =
extension of time to=20
file motion for new trial, and motion for new =
trial, the trial court =
granted the=20
City=E2=80=99s summary judgment motion on December 20, 2004. =
On January 18, 2005, less than thirty =
days from=20
the date of the judgment, Duncan filed a =
=E2=80=9Cmotion to=20
reinstate.=E2=80=9D This motion was, in substance, a motion for =
new trial and was=20
timely filed. Tex. R. =
Civ. P.=20
329b(a).
Duncan=E2=80=99s motion was overruled by =
operation of=20
law and his =
complaint=20
concerning the trial court=E2=80=99s refusal to rule on his motion =
to reinstate,=20
motion for extension of time to file motion for new trial, and =
motion for=20
new trial lacks merit. =
Tex. R.=20
Civ. P. 329b(c).
<=
/SPAN>Accordingly,=20
we overrule Duncan=E2=80=99s second=20
=
issue. &=
nbsp; &n=
bsp;
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Terry=20
Jennings
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
Higley.
|