Sharon King, Individually and as Representative of the Estate of Harrison Hughes, and Carl Hughes v. City of Houston

• Court: Court of Appeals of Texas
• Decided: December 21, 2004
• Docket: 14-03-01186-CV
• Status: Published

Opinion

Reversed and Remanded and Memorandum Opinion filed December 21, 2004

Reversed and Remanded and Memorandum Opinion filed December 21, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01186-CV

SHARON KING, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HARRISON HUGHES, DECEASED, AND CARL HUGHES, Appellants

V.

CITY OF HOUSTON, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 99-18889

M E M O R A N D U M   O P I N I O N

Sharon King, individually and as representative of the estate of Harrison Hughes, and Carl Hughes sued the City of Houston for damages under the wrongful death and survival statutes^[1] for the death of their father, Harrison Hughes.  The City of Houston moved to dismiss their claims based on a plea to the jurisdiction, alleging that the trial court lacked jurisdiction over the claims because King and Hughes failed to comply with the notice requirements of section 101.101 of the Texas Tort Claims Act.^[2]  Because the Texas Supreme Court has recently held that a plaintiff’s failure to comply with the Act’s notice requirements does not deprive a trial court of subject-matter jurisdiction, we reverse and remand.

Background

King and Hughes allege that, in April of 1997, Harrison Hughes was staying at the home of his stepdaughter in Houston, Texas.  One afternoon, several City of Houston police officers came to the home to arrest another individual, and carried with them a battering ram known as a “Moby” to knock the door down if necessary.  When Harrison Hughes opened the door, an officer pushed him aside and dropped or threw the Moby on his foot.  Mr. Hughes suffered an open fracture of his big toe as a result of the incident.  The toe became infected, and several days later, Mr. Hughes went into septic shock.  On April 29, 1997, he died.

King and Hughes filed suit, alleging wrongful death and survivor claims against the City.  They alleged the City’s sovereign immunity was waived under the Tort Claims Act.  The City answered and filed a motion for summary judgment based on the qualified immunity of its officers.  The trial court denied the motion, and the denial was upheld on appeal.^[3]  After the case was returned to the trial court, the City moved to dismiss the claims for lack of jurisdiction, on the basis that it did not receive actual notice of the claims.  A trial judge in another court granted the motion during a time when no judge was assigned to the court.  The trial court later granted King and Hughes a new trial.  The City then resubmitted its plea to the jurisdiction and the parties submitted additional briefing.  King and Hughes also filed a third amended petition in which they specifically alleged that the City had actual notice of their claims.  On September 10, 2003, the trial court granted the City’s plea and dismissed the claims against it.  This appeal ensued.

Analysis

In two issues, King and Hughes contend the trial court erred in dismissing their wrongful death and survival claims for lack of jurisdiction based on a failure to comply with the Tort Claims Act’s notice provision.  See Tex. Civ. Prac. & Rem. Code § 101.101.  King and Hughes admit they did not give written notice to the City, but contend the City had actual notice of Harrison Hughes’s injury because the officers were aware of Harrison Hughes’s injury to his toe and a police report was prepared describing the incident.^[4]  See id. § 101.101(c) (providing that statute’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).  The City responds that it did not have actual notice of Harrison Hughes’s death or King’s and Hughes’s identities as wrongful death claimants.  Therefore, the City asserts, the trial court properly dismissed King’s and Hughes’s claims for lack of jurisdiction because they failed to comply with the Act’s notice provision.

However, recent authority from the Texas Supreme Court instructs our resolution of this appeal.  On July 9, 2004, the Texas Supreme Court held in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser that “the failure to give notice of a claim as required by section 101.101 does not deprive a court of subject-matter jurisdiction over an action on the claim.”  140 S.W.3d 351, 362 (Tex. 2004).  Because lack of notice cannot deprive the trial court of subject-matter jurisdiction, it cannot be made the basis for a plea to the jurisdiction in the trial court.  Accordingly, the trial court erred in dismissing King’s and Hughes’s claims for lack of jurisdiction based on a failure to comply with the Act’s notice provision.  Id; see also Riston v. City of Houston, No. 14-03-01135-CV, 2004 WL 274915, *2 (Tex. App.—Houston [14th Dist.] December 2, 2004, no pet. hist.) (not designated for publication) (holding trial court erred to extent it sustained City’s plea based on plaintiff’s failure to satisfy Act’s notice requirements).

We reverse the trial court’s judgment and remand for further proceedings.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed December 21, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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^[1]  Tex. Civ. Prac. & Rem. Code §§ 71.002, 71.004, 71.021.

^[2]   Tex. Civ. Prac. & Rem. Code §§ 101.001‑.109 (the “Tort Claims Act” or “Act”).

^[3]  See City of Houston v. King, No. 01‑00‑01278‑CV, 2002 WL 1041174 (Tex. App.—Houston [1st Dist.] May 23, 2002, no pet.) (not designated for publication). 

^[4]  King and Hughes also contend that, in its briefing below, the City conceded that it had notice of the survival claim and that its plea was directed only to the wrongful death claim.  However, the City does not address this assertion.  In any event, because we reverse and remand both claims to the trial court, it is unnecessary to resolve this contention.