Opinion
01-21-00703-CV
06-21-2022
CITY OF HOUSTON, Appellant v. SHADI M. SUKHTA, Appellee
On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2019-07703
Panel consists of Chief Justice Radack and Justices Goodman and Hightower.
MEMORANDUM OPINION
Sherry Radack Chief Justice.
In this appeal, the trial court applied Texas Rule of Civil Procedure 4 to extend the notice period required by the Texas Tort Claims Act ["TTCA"] by one day because the last day for giving notice fell on a Sunday. See Tex. R. Civ. P. 4; Tex. Civ. Prac. & Rem. Code § 101.101(b). Accordingly, the trial court denied the City of Houston's Plea to the Jurisdiction, which asserted that the notice given by appellee, Shadi M. Sukhta, was untimely. Because we hold that Rule 4 applies to extend the time-period for giving notice under the TTCA when the last day of the notice period falls on a weekend-even when the governmental entity is a home-rule city-we affirm the trial court's denial of the City's Plea to the Jurisdiction.
BACKGROUND
We begin with a recitation of facts that are supported by the record and considered in the light most favorable to the trial court's ruling.
We must defer to the trial court's express or implied factual findings so long as they are supported by sufficient evidence. Worsdale v. City of Killeen, 578 S.W.3d 57,66 (Tex. 2019).
The Accident
On March 20, 2017, Sukhta was involved in a traffic accident with Houston Police Officer C. Weiche, who was driving a marked police unit at the time. Officer Weiche's vehicle struck Sukhta's vehicle on the right, rear side. Sukhta reported to police that he was "stopped and another police car behind [him] hit [his] car in the back." Sukhta was taken from the scene of the accident in an ambulance. At the hospital, medical personnel determined that Sukhta had fractured his left arm in the accident.
A Houston police officer questioned Sukhta at the hospital and then cited him for an "unsafe change of lanes." A Houston Municipal Court later dismissed the citation, noting that the "Complaining Witness [was] Absent."
Evidence Regarding Notice to the City
Because the accident occurred on March 20, 2017, Sukhta's notice to the City was required 90 days later, on June 18, 2017, a Sunday. On Friday, June 16, 2017, counsel for Sukhta made several attempts to fax Sukhta's notice letter to the City, but she did not receive a confirmation. So, Sukhta's counsel called the City, and an employee verified that the notice letter had been received.
The City Charter, which is incorporated into the Texas Tort Claims Act via section 101.101(b), provides:
Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or someone on his behalf, shall give the Mayor and City Council notice in writing of such injury or destruction, duly verified, within ninety days after the same has been sustained, stating in such written notice when, where and how the injury or destruction occurred, and the apparent extent thereof, the amount of damage sustained, the amount for which claimant will settle, the actual residence of the claimant by street and number at the date the claim is presented, and the actual residence of such claimant for six months immediately preceding the occurrence of such injuries or destruction, and the names and addresses of the witnesses upon whom he relies to establish his claim, and a failure to so notify the Mayor and City Council within the time and manner specified herein shall exonerate, excuse and exempt the City from any liability whatsoever, provided that nothing herein shall be construed to effect or repeal Section 12 of Article IX of this Charter.Houston, Tex., Charter, art. IX, § 11
Because Sukhta's counsel never received a fax confirmation on Friday, June 16, 2017, she faxed another copy of the notice letter on Monday, June 19, 2017. The notice letter is addressed to both the City Secretary's Office and the City Attorney's Office, indicates that it was sent by both priority mail and fax, and has an electronic date stamp showing that it was received by the City of Houston Legal Department on June 19, 2017 at 9:49. It is also hand-stamped "received" by "Liability Claims" on June 21, 2017. Counsel for the City averred in her affidavit in support of the City's Plea to the Jurisdiction that this notice "is a true and correct copy of the earliest correspondence from plaintiff in the claims file."
The Lawsuit
On January 31, 2019, Sukhta filed suit against the City. On October 8, 2021, two weeks before the case was set for trial, the City filed a Plea to the Jurisdiction, alleging that the notice Sukhta sent on Monday, June 19, 2017, was untimely.
Sukhta responded, arguing that the City's own evidence-the June 19, 2017 notice letter-showed that the City received the notice on Monday, June 19, 2017. Sukhta also argued that, because the period for giving notice expired on Sunday, June 18, 2017, Rule 4 extended the period for filing that until the end of the day on Monday, June 19, 2017.
In its Reply in Support of Its Plea to the Jurisdiction, the City argued that (1) the June 19, 2019 notice was insufficient because Sukhta did not prove that it was filed with the City Secretary as required by the City Charter, and (2) Texas Rule of Civil Procedure 4 did not apply to extend the 90-day notice requirement that originated with the City Charter. The City also supplemented its Plea to the Jurisdiction with an affidavit from Joe Martinez, a System Support Analyst for the City, in which he averred that he conducted a search for all faxes filed in the City's Legal Department on Friday, June 16, 2017, but that he did not find any faxes from Sukhta's counsel's office on that date. The City did not contest receipt of Sukhta's notice by the City Attorney's Office on Monday, June 19, 2017.
After permitting additional briefing on the applicability of Rule 4, the trial court denied the City's Plea to the Jurisdiction, noting that "[t]he Court FINDS that the 90th day after the accident was a Sunday, and therefore Plaintiff's notice of claim filed on the following Monday was timely."
This interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7) (authorizing interlocutory appeal from order that grants or denies jurisdictional plea by governmental unit).
DENIAL OF PLEA TO THE JURISDICTION
In two related issues on appeal, the City contends that the trial court erred (1) "in denying the City's Plea to the Jurisdiction based on its conclusion that Texas Rule of Civil Procedure 4 extended [Sukhta's] deadline to serve the City with pre-suit written notice of his claims," and, alternatively, (2) "[e]ven if Rule 4 could extend [Sukhta's] deadline for written notice . . . [Sukhta] still failed to demonstrate that written notice of his claims was received by the City on or before June 19, 2017, as required under the City's Charter and relevant ordinances." We address each, respectively.
Standard of Review
We review de novo a challenge to a trial court's ruling on subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); see also Reyes v. Jefferson Cty., 601 S.W.3d 795, 798 (Tex. 2020) ("Notice is a prerequisite to subject-matter jurisdiction under the TTCA, and as such, presents a question of law we review de novo."). When a defendant challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues raised. See Miranda, 133 S.W.3d at 227. A jurisdictional challenge based on sovereign immunity may be raised by a plea to the jurisdiction or by other procedural vehicles, such as a traditional motion for summary judgment-the procedural vehicle used here. See State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). When the facts underlying the merits of the claims and subject matter jurisdiction are intertwined-and the procedural vehicle used is either a plea to the jurisdiction or a traditional motion for summary judgment-we apply the standard of review for a traditional motion for summary judgment to determine the jurisdictional challenge. See Miranda, 133 S.W.3d at 228. That is, "after the [governmental unit] asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Id. If the evidence shows disputed jurisdictional fact issues intertwined with the merits, then the trial cannot grant a plea to the jurisdiction or traditional motion for summary judgment but must await resolution of the fact issues by the fact finder. See id. at 227-28.
When, as in this case, the jurisdictional issue is not intertwined with the merits of the claims, disputed fact issues are resolved by the trial court, not by the fact finder, see Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015), and we must defer to the trial court's express or implied factual findings so long as they are supported by sufficient evidence. Worsdale, 578 S.W.3d at 66.
Applicable Principles of Law
Generally, governmental entities, such as the City, are immune from suits seeking to impose tort liability on them. See City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018). That immunity deprives trial courts of subject-matter jurisdiction over such suits, absent a waiver of the immunity. Id. The TTCA contains such a waiver if notice, as prescribed by statute, is given. Id.
Under the TTCA, a governmental unit must be given notice of a claim against it "not later than six months after the day that the incident giving rise to the claim occurred." Tex. Civ. Prac. & Rem. Code § 101.101(a). This formal notice of claim must describe "(1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." Id. Claimants must also comply with any time requirements for notice that a city has adopted by charter or ordinance. Id. § 101.101(b).
The notice provision of the TTCA provides:
(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) 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.Tex. Civ. Prac. & Rem. Code § 101.101.
Here, the City's charter requires that written notice of a claim be provided to the City within 90 days after the injuries or damages were sustained. See Houston, Tex., Charter, art. IX, § 11. Formal notice of a claim under subsections (a) or (b) is not required "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." Tex. Civ. Prac. & Rem. Code § 101.101(c). But one of these forms of notice-formal or actual-is required as a jurisdictional prerequisite to suit. Worsdale, 578 S.W.3d at 77. The purpose of the notice requirement is to ensure the prompt reporting of claims to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Failure to comply with the notice provision requires dismissal. Tenorio, 543 S.W.3d at 775-76.
Rule 4, entitled "Computation of Time," provides:
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays, and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by mail.Tex. R. Civ. P. 4.
Applicability of Rule 4
In issue one, the City contends that the trial court erred "in denying [the City's] Plea to the Jurisdiction based on its conclusion that Texas Rule of Civil Procedure 4 extended [Sukhta's] deadline to serve the City with pre-suit written notice of his claims." Specifically, the City contends that, because the 90-day notice requirement is created by the City's Charter, and the City's Charter does have an equivalent statute for computing time limits, the City's notice requirement cannot be extended, even if the deadline falls on a weekend. The City notes that, as a home-rule city it may exercise all powers not denied it by the Constitution or state law, see Powell v. City of Hous., 628 S.W.3d 838, 842 (Tex. 2021), and that, because the City Charter does not have a Rule 4 equivalent, one cannot be imposed upon it.
In support of this contention, the City relies on Nunn v. New, 226 S.W.2d 116 (Tex. 1950). In Nunn, the plaintiff-seeking to recall three city officials from office-attempted to file a petition with the City Secretary of Texas City, a home-rule city. See id. at 117. The City's charter, which was the source of the right to file a recall petition, required such a petition to be filed within 30 days of filing a recall affidavit. Id. Because the plaintiff had filed her recall affidavit on December 3, 1948, her petition was due to be filed by January 2, 1949, which was a Sunday. Id. When the plaintiff filed her petition on Monday, January 3, the City Secretary invalidated it as untimely. Id. Both the trial court and this Court found the petition timely, after applying Rule 4. Id. The Texas Supreme Court reversed, and in doing so noted:
This court, in promulgating rules of civil procedure, was not attempting to prescribe rules for the government of any procedure except that pertaining to judicial proceedings. It was acting under a statute which conferred upon it the authority to promulgate rules of practice and procedure in civil actions only.
* * * *
The filing of a petition for the recall of city officials in a home rule city under the powers conferred in the charter of such city is not a civil action, and is, therefore, not regulated by the Rules.Id. at 117-18.
This language makes Nunn distinguishable from the present case. Nunn did not involve a civil case arising from a Texas civil statute. The plaintiff in Nunn was seeking to file a recall petition, i.e., she was seeking to exercise a right created by the home-rule city's charter, not a right created by a Texas civil statute. Here, Sukhta's lawsuit against the City is based on rights created by the TTCA, a Texas civil statute. While it is true that the TTCA incorporates the City's 90-day notice period as an additional requirement, see Tex. Civ. Prac. & Rem. Code § 101.101(b), Sukhta's suit against the City is a civil action asserting rights created by a civil statute. Rule 4 very clearly applies to "any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute." Tex.R.Civ.P. 4 (emphasis added).
To hold otherwise would make Rule 4 applicable to the notice requirement of section 101.101(a), but not to the additional notice requirement of section 101.101(b). Other than the differing time periods subsections (a) and (b) create, we will not apply Rule 4 in an inconsistent manner such that "notice" in subsection (a) is extended when it falls on a Sunday, but "notice" under subsection (b) is not. See Beeman v Livingston, 468 S.W.3d 534, 539 (Tex. 2015) (noting that "when a word is used throughout a statute, we generally construe the statute to provide consistent meaning to that word"). The Texas Code Construction Act would also require such an extension when interpreting a Texas statute. See also Tex. Gov't Code § 311.014(b) ("If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday").
Accordingly, we hold that the trial court properly applied Rule 4, and we overrule the City's first issue.
Sufficiency of Notice
The City also contends that, "[e]ven if Rule 4 could extend [Sukhta's] deadline for written notice to Monday, June 19, 2017, [Sukhta] still failed to demonstrate that written notice of his claims was received by the City Secretary on or before June 19, 2017, as required under the City's Charter[.] The trial court made an implied finding that Sukhta's Monday, June 19, 2017 notice to the City was proper, thus we must defer to that implied factual findings so long as it is supported by sufficient evidence. Worsdale, 578 S.W.3d at 66.
The City's charter requires written notice to the "Mayor and City Council," see Houston, Tex., Charter, art. IX, § 11, and the City Ordinances describe how to give such notice as follows:
The city secretary's office is hereby designated as the place of official filing of any notice that is required or permitted to be given to the city under section 101.101 of the Texas Civil Practice and Remedies Code or section 11 of article IX of the city Charter, or both. The city secretary shall maintain a record of the date and time that each notice is filed and shall forward each notice or a copy thereof to the city attorney or his designee for disposition. Any notice that is not filed with the city secretary's office in accordance with this section shall be presumed not to have been received by the city.See Code of Ordinances: City of Houston, Tex. No. 94-957, § 1, 9-14-94.
Here, Sukhta's petition alleged that "all condition precedent to Plaintiff's claims for relief have been performed or have occurred. Specifically, on June 17, Plaintiff presented Defendant City of Houston, through the City Secretary's Office and the City Attorney's Office, a 'Notice of Claims for Damages[.]" (Emphasis added.)
When the City filed its Plea to the Jurisdiction, it attached as Exhibit B, the notice that Sukhta sent to the City on Monday, June 19, 2017. The notice is addressed to both the City Secretary's Office and the City Attorney's Office and indicates that was sent on June 19, 2017 by both priority mail and fax. The electronic stamp at the bottom shows that at least one copy was received by the City's Legal Department on Monday, June 19, 2017 at 9:49. The City's legal counsel in this case confirmed that "Exhibit B to the City of Houston's Plea to the jurisdiction is a true and correct copy of the earliest correspondence from plaintiff in the claims file."
The City's Legal Department's website instructs claimants for damages to file their documents with the City Secretary's Office, with a copy provided to the City Attorney's Office. Here, there was sufficient evidence for the trial court to conclude that Sahkta did both. Although the copy of the notice letter that Sukhta's counsel retained has only the electronic stamp of receipt from the City Attorney's office, it is addressed to both the City Attorney and the City Secretary. Sukhta pleaded that all conditions precedent had been met. The only evidence presented by the City on the issue, was the affidavit from Joe Martinez, a System Support Analyst from the City, who averred that he "did not find any faxes received from the office of Jill Yaziji on June 16, 2017." There is no contradictory evidence to support the City's assertion that the City Attorney did not receive Sukhta's notice on Monday, June 19, 2017.
Because there is some evidence that Sukhta gave notice to the City Attorney on June 19, 2017 and no contradictory evidence, the trial court's implied finding that Sukhta properly gave notice is supported by the record. Accordingly, we overrule issue two.
Having decided that Sukhta gave timely written notice of his claim, we need not decide whether the City also had actual notice, and we decline to do so. See Tex. R. App. P. 47.1.
CONCLUSION
Because Rule 4 applies to extend the time period for the notice required by Texas Civil Practices and Remedies Code section 101.101(b), and because Sukhta properly filed his notice on the Monday after a Sunday deadline, we hold that Sukhta's notice was timely and that the trial court properly denied the City's Plea to the Jurisdiction. We affirm the trial court's interlocutory order doing so.