City of Houston v. Michael Moore

Reversed and Rendered and Memorandum Opinion filed August 1, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00316-CV

CITY OF HOUSTON, Appellant
V.

MICHAEL MOORE, Appellee

On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2022-50330

MEMORANDUM OPINION

Michael Moore sued the City of Houston for injuries he sustained after
allegedly tripping over a steel groundcover/ground plate while working for
Southwest Airlines at William P. Hobby Airport, which is owned by the City. The
City filed a motion for summary judgment arguing, among other things, that it did
not receive timely notice of Moore’s claims, and therefore the City retained its
governmental immunity from suit, depriving the trial court of subject-matter
jurisdiction over the case. The trial court denied the motion. The City brings an
interlocutory appeal, arguing in three issues that (1) it did not receive timely notice
of Moore’s claims as required by section 101.101 of the Texas Tort Claims Act
(TTCA) and a provision of the city charter, (2) Moore failed to demonstrate a fact
issue concerning his premises liability claim, and (3) the trial court erred in
admitting Moore’s summary-judgment evidence. We reverse the trial court’s order
and render judgment dismissing the lawsuit for want of subject-matter jurisdiction.

Background

Moore was working for Southwest Airlines at Hobby Airport. It is undisputed
that Hobby Airport is owned by the City. In February 2022, Moore alleged that he
was marshalling a flight into the gate when he tripped over a “flawed, steel
groundcover/ground plate.” As a result of tripping, Moore claimed that he sustained
extensive and severe injuries, including injuries to his back, left hip, left leg, left
knee, and left hand. After sending written notice of his claim to the City’s secretary
on July 6, 2022, Moore filed suit against the City on August 15, 2022.

The City filed an original answer generally denying liability and asserting a
variety of affirmative defenses, including governmental immunity from suit based
on Moore’s failure to provide timely notice of his claim. The City also argued its
governmental immunity in a motion for summary judgment, contending that Moore
failed to comply with the pre-suit notice requirements set forth in the TTCA. See
Tex. Civ. Prac. & Rem. Code § 101.101(a)–(c) (providing that “governmental unit
is entitled to receive notice of a claim” under TTCA unless it has actual notice of
death, injury, or property damage).

As proof that it did not have timely notice of Moore’s injuries, the City relied
on Moore’s petition and his notice-of-claim letter dated July 6, 2022. In his petition,
Moore stated that he sustained personal injuries as a result of the accident on
February 2, 2022; whereas, his notice alleged that the accident occurred on February
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19, 2022. The City emphasized that Moore did not send notice of his aforementioned
injuries until July 6, which was too late based on a provision of the charter requiring
written notice of personal injury claims against the City within ninety days after the
injury is sustained. Moore filed a response to the motion but did not discuss whether
the City had timely notice of his claim. Moore instead argued that the condition of
the steel groundcover/ground plate presented a special defect under the TTCA,
waiving the City’s governmental immunity. To support his position that the steel
groundcover/ground plate constituted a special defect, Moore attached an
unauthenticated photograph.

The trial court signed an order denying summary judgment with respect to the
City’s lack-of-notice claim. This interlocutory appeal followed. See Tex. Civ. Prac.
& Rem. Code § 51.014(a)(8); see also Harris Cnty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004) (“If the trial court denies the governmental entity’s claim of no
jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for
summary judgment, or otherwise, the Legislature has provided that an interlocutory
appeal may be brought.”).

Discussion

As stated, the City raises three issues on appeal. In its first two issues, the City
asserts that the trial court erred in denying summary judgment because Moore failed
to raise a fact issue concerning (1) the timeliness of his notice of claim or (2) his
premises liability claim under the TTCA. In its third issue, the City argues that the
trial court erred in admitting Moore’s summary-judgment evidence.

We will begin our analysis by considering the City’s first issue challenging
the denial of summary judgment on the timeliness of Moore’s notice of claim and
then turn to the City’s second issue, arguing that Moore failed to demonstrate a fact
issue concerning his premises-liability claim. Because we sustain the City’s first two
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issues, we need not reach the City’s remaining issue. See Tex. R. App. P. 47.4.

A. Standard of Review

Subject matter jurisdiction is essential to a court’s power to decide a case. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). The plaintiff
has the burden to affirmatively demonstrate a trial court’s jurisdiction. Town of
Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (citing Heckman v.
Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012)). Sovereign or governmental
immunity defeats a trial court’s subject matter jurisdiction. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A governmental unit may
challenge the trial court’s subject matter jurisdiction in various procedural vehicles,
including a plea to the jurisdiction or motion for summary judgment. Swanson, 590
S.W.3d at 550. We review de novo the issue of whether a trial court lacked
jurisdiction due to governmental immunity. See Tex. Nat. Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also Worsdale v. City of
Killeen, 578 S.W.3d 57, 66 (Tex. 2019) (“Notice is a prerequisite to subject-matter
jurisdiction and, thus, a question of law we review de novo.”). We also review de
novo the issue of whether a condition is a special defect. Denton Cnty. v. Beynon,
283 S.W.3d 329, 331–32 (Tex. 2009).

Texas Rule of Civil Procedure 166a governs summary judgments. See Tex. R.
Civ. P. 166a. The two forms of summary judgment are distinct and invoke different
standards of review. Compare Tex. R. Civ. P. 166a(c) with Tex. R. Civ. P. 166a(i).
Ordinarily, we must make an initial determination regarding which type of motion
for summary judgment was filed before we can reach the merits of the trial court’s
ruling. See Phillips v. Am. Elastomer Prod., L.L.C., 316 S.W.3d 181, 185 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied). When, as here, a motion does not
clearly and unambiguously state that it is being filed under rule 166a(i), the

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nonmovant has no notice that the movant is seeking a no-evidence summary
judgment, and we construe such motion as a traditional motion under rule 166a(c).
See id.; see also J.M.K. 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 195 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (treating ambiguous summary judgment
motion as traditional because the motion failed to specify whether it was brought
under traditional or no-evidence grounds, thus providing non-movant with
insufficient notice that movant sought no-evidence summary judgment). Thus, we
construe the City’s motion as seeking summary judgment on traditional grounds
under rule 166a(c). See Tex. R. Civ. P. 166a(c).

A party is entitled to summary judgment on traditional grounds if the evidence
establishes that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. Id. We take as true all evidence favorable
to the nonmovant, indulging every reasonable inference and resolving any doubts in
the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). The nonmovant has no burden to respond to a traditional motion for
summary judgment unless the movant conclusively establishes each element of its
cause of action or defense as a matter of law. Rhone–Poulenc, Inc. v. Steel, 997
S.W.2d 217, 222–23 (Tex. 1999).

If the governmental unit meets its initial summary judgment burden to
establish that the trial court lacks jurisdiction, then the burden shifts to the
nonmovant to raise a fact issue concerning jurisdiction. Miranda, 133 S.W.3d at 228.
“By requiring the [governmental unit] to meet the summary judgment standard of
proof in cases like this one, we protect the plaintiffs from having to ‘put on their case
simply to establish jurisdiction.’” Id. If a fact issue exists, the motion for summary
judgment must be denied. Id. at 227–28. However, if the evidence is undisputed or
fails to raise a fact issue, then we may decide the jurisdictional issue as a matter of

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law. Id. at 228.

B. Governing Law

Governmental units, such as the City, are generally entitled to governmental
immunity from suit unless the Legislature has consented to suit. See Dohlen v. City
of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022); see also Tex. Civ. Prac. & Rem.
Code § 101.001(3)(B) (defining “governmental unit” to include cities). The TTCA
creates a limited waiver of immunity for claims of personal injury and death caused
by a condition or use of tangible personal or real property if the governmental unit
would be liable to the claimant. Tex. Civ. Prac. & Rem. Code §§ 101.021, 101.025
(“A person having a claim under this chapter may sue a governmental unit for
damages allowed by this chapter.”); Miranda, 133 S.W.3d at 225.

Section 101.101, the TTCA notice provision at issue in this case, requires
timely notice—formal or actual—of claims against a governmental unit:

(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. Formal notice under subsections (a) and

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(b) is the general rule, while actual notice under subsection (c) is an exception to the
general rule. See id.; Worsdale, 578 S.W.3d at 76 (“Structurally and lexically, the
Legislature manifested its intent that section 101.101(c) serve as an exception to
section 101.101(a) and (b)’s formal-notice requirements.”). Actual notice requires
that the governmental unit have “knowledge of (1) a death, injury, or property
damage; (2) the governmental unit’s alleged fault producing or contributing to the
death, injury, or property damage; and (3) the identity of the parties involved.”
Worsdale, 578 S.W.3d at 63 (quoting Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995) (per curiam)). Actual notice must provide the governmental unit with the same
knowledge that it would have had if the plaintiff had provided formal notice. Tex.
Dep’t of Crim. Just. v. Simons, 140 S.W.3d 338, 347 (Tex. 2004); see also Tex. Civ.
Prac. & Rem. Code § 101.101(a) (requiring that notice reasonably describe damage
or injury claimed, time and place of incident, and incident).

Notice under section 101.101 is a jurisdictional prerequisite to suing a
governmental entity under the TTCA. Code Construction Act, Tex. Gov’t Code §
311.034 (“Statutory prerequisites to a suit, including the provision of notice, are
jurisdictional requirements in all suits against a governmental entity.”); Worsdale,
578 S.W.3d at 62.

C. Analysis

In its first issue, the City maintains that the trial court lacks subject matter
jurisdiction over this case because Moore’s notice of claim was untimely. For the
reasons set forth below, we agree that Moore was required to notify the City of his
claim no later than ninety days after his accident. See Tex. Civ. Prac. & Rem. Code
§ 101.101(a), (b).

As stated, the TTCA generally requires formal notice within six months of a
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claim. Id. § 101.101(a). However, a city may adopt by charter or ordinance other
time requirements for notice of claims. Id. § 101.101(b); City of San Antonio v.
Tenorio, 543 S.W.3d 772, 775 (Tex. 2018). Here, the City’s charter reduces the
notice period to ninety days:

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 in 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[.]

Houston, Tex., City Charter art. IX, § 11 (1913). Because Moore does not refute that
the City’s ninety-day claim deadline is applicable to this case, the City was entitled
to receive notice of his claim within ninety days of the alleged accident.1 As
mentioned, there is a discrepancy on the date of the alleged accident. Assuming that
Moore was injured on February 19, 2022—the date identified in his notice of
claim—the deadline for the City to receive notice of his claim was May 20, 2022.

The undisputed evidence establishes that Moore’s notice of claim is dated
July 6, 2022, which is not within the ninety-day claim period. See Miranda, 133
S.W.3d at 228 (providing that when evidence is undisputed, whether evidence

1
In his appellee’s brief, Moore does not respond to the City’s argument that his notice was
untimely.

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establishes jurisdiction is a question of law). The City alleges that it did not receive
Moore’s notice until July 28, 2022, but there is no evidence in the record
corroborating the City’s assertion. However, based on the summary judgment
evidence, the earliest date the City could have received Moore’s notice of claim was
July 6, 2022—the date he mailed his notice to the City’s secretary. Moore’s notice
was therefore untimely because the deadline for the City to receive notice was May
20, 2022. See Tex. Civ. Prac. & Rem. Code § 101.101(a), (b).

We therefore sustain the City’s first issue and address the City’s second issue,
contending that the City did not have actual knowledge of the alleged defect.

On appeal, Moore suggests that he was not required to provide formal notice
to the City because the steel groundcover/ground plate was a condition that
constituted a special defect. See Tex. Civ. Prac. & Rem. Code § 101.022(b)
(providing that the limitation of a duty owed by a governmental unit does not apply
to the duty to warn of special defects). Moore’s briefing focuses on whether the steel
groundcover/ground plate was a special condition. A majority of his argument
centers around several factors outlined by the supreme court in determining whether
a condition is a special defect. See City of Denton v. Paper, 376 S.W.3d 762, 765
(Tex. 2012) (providing that helpful characteristics in determining whether a
particular condition is a special defect include: (1) the size of the condition, (2)
whether the condition unexpectedly and physically impairs an ordinary user’s ability
to travel on the road, (3) whether the condition presents some unusual quality apart
from the ordinary course of events, and (4) whether the condition presents an
unexpected and unusual danger). The City argues that Moore failed to plead and
prove, among other things, that his injury was caused by a special defect, specifically
asserting that section 101.022(c) does not apply to premises defects located outside
a toll highway, road, or street. Although the City urges otherwise, we will assume
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for sake of analysis that this argument was preserved for our review.

The supreme court has analyzed whether defects located outside of the
roadway constitute a special defect. See Fraley v. Tex. A & M Univ. Sys., 664 S.W.3d
91, 100 (Tex. 2023) (providing “off-roadway obstructions are different in kind than
those on the roadway, as the statute expressly contemplates.”) (emphasis in original);
Beynon, 283 S.W.3d at 330–332 (addressing whether a hazard located off the road
can constitute a special defect and concluding that the seventeen-foot floodgate arm
located approximately three feet off a two-lane rural roadway, which was unsecured
and improperly pointed toward oncoming traffic, was not the same kind or class as
an excavation or obstruction, nor did it pose a threat to “ordinary users.”); State
Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 239 n. 3 (Tex. 1992)
(providing that some off-road conditions can be special defects and whether on a
road or near one, conditions can be “special defects such as excavations or
obstructions on highways, roads, or streets” only if they pose a threat to the ordinary
users of a particular roadway”).

In this case, Moore has not cited any authority that the steel
groundcover/ground plate on the airport tarmac was located on a toll highway, road,
or street as contemplated by section 101.022(c). See Tex. Civ. Prac. & Rem. Code §
101.022(c). A court cannot “classify as ‘special’ a defect that is not like an
excavation or obstruction on a roadway.” Beynon, 283 S.W.3d at 331–32 (quoting
Payne, 838 S.W.2d at 239 n.3). We therefore find that the exception in section
101.022(c) is inapplicable to the facts of this case. Having concluded that section
101.022(c) does not apply, Moore does not offer any other explanation concerning
the City’s subjective awareness of his injuries nor does he contest the City’s
assertion that it did not know of Moore’s alleged injuries.

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We conclude that the trial court erred by denying the City’s motion for
summary judgment because Moore failed to raise a fact issue concerning the
timeliness of his notice of claim or his premises-liability claim under the TTCA.
See Tex. Civ. Prac. & Rem. Code § 101.101(a)–(c). Accordingly, we sustain the
City’s second issue and need not reach the City’s third issue challenging the trial
court’s evidentiary ruling. See Tex. R. App. P. 47.4.

Conclusion

We reverse the trial court’s interlocutory order denying the City’s motion for
summary judgment, and we render judgment granting the motion and dismissing the
lawsuit for want of subject-matter jurisdiction.

/s/ Frances Bourliot
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain. (Spain, J., concurring
without opinion).

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