In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.
Brown v. Corpus Christi Regional Transportation Authority, No. 13-15-00188-CV (Memorandum Opinion by Justice Benavides; Dissenting Opinion by Chief Justice Valdez; Additional Panel Member: Justice Hinojosa)
In this appeal from an order granting a plea to the jurisdiction, the Thirteenth Court of Appeals discussed the requirements for a plaintiff to establish that the government has “actual notice” of a claim such that formal notice is no longer required under the Texas Tort Claims Act.
On May 4, 2012, a bus operated by the Corpus Christi Regional Transportation Authority (“RTA”) stopped at a bus stop on South Alameda Street. Two individuals were at the bus stop, but only one boarded the bus. Within moments of boarding, the passenger asked to exit the bus and returned to the bus stop. However as the bus began to depart again, the second individual—Donnie Doyle Brown—ran after the bus and attempted to board. Brown’s arm was caught in the door as the bus began to move, and Brown was dragged for 10 feet. Brown then lost his balance, fell, and the bus ran over Brown’s arm.
The police investigated the accident and determined that Brown was at fault. RTA also conducted an investigation and did not find any fault on the part of the bus driver. However, the bus driver stated that he was aware that Brown was attempting to board the bus as it departed from the bus stop.
Brown sued RTA for negligence. RTA responded with a plea to the jurisdiction, claiming Brown failed to provide notice of the claim as required under the Texas Tort Claims Act. Brown did not deny that he failed to provide formal written notice, but he argued such formal notice was unnecessary because RTA had actual notice of his claim. The trial court granted RTA’s plea to the jurisdiction and dismissed the case. Brown appealed.
The Thirteenth Court of Appeals initially issued an opinion in March 2017, then withdrew its opinion sua sponte and issued a new opinion on June 29, 2017.
Held: The trial court properly granted the defendant’s plea to the jurisdiction because Brown did not provide notice of his claim under the TTCA and could not show that the government had actual notice of its alleged fault in causing the injury. The trial court’s judgment was affirmed.
Plea to the Jurisdiction
The Texas Tort Claims Act (“TTCA”) provides that a governmental entity is entitled to notice of a claim against it within six months after the events underlying the claim occur. The failure to provide notice in accordance with the TTCA deprives the court of subject-matter jurisdiction. However, a litigant need not provide formal notice if the governmental entity has actual notice.
The Texas Supreme Court has interpreted this “actual notice” to require more than simply notice of an injury, but also subjective awareness of the parties involved and the governmental entity’s alleged fault in causing the injury. A governmental entity has actual notice only if it has the same information it would have had if the plaintiff had given formal written notice under the TTCA. Actual notice is technically a question of fact, although it is often determined as a matter of law.
In his sole issue, Brown claimed the government had actual notice of its fault in causing Brown’s injury within six months of the accident.
Reviewing the record, the Thirteenth Court noted that RTA’s Director of Safety and Security testified that RTA’s internal investigation and discussions with witnesses indicated that Brown was solely at fault, and that RTA had not contributed to the accident in any way. The police report similarly found that Brown was at fault. Specifically, the police report stated that Brown had fallen asleep at the bus stop and—after missing his chance to timely board—attempted to board the bus when it was too late. The bus driver’s firsthand account of the incident was consistent with the police report, stating that when Brown woke up he ran behind the bus and tripped on the curb.
In contrast, Brown’s only evidence of the government’s alleged actual notice was photographs from the police department showing the exterior of the bus and the view from the driver’s seat. The Thirteenth Court rejected Brown’s comparison of his case to others in which the government explicitly acknowledged its errors and contributions to the plaintiff’s injury. Moreover, Brown’s attempts to rely on the manual for bus drivers and records of past accidents involving the same bus driver did nothing to demonstrate the government’s subjective awareness of its fault. Finally, an affidavit filed by Brown after he filed his lawsuit and more than two years after the incident could not operate as notice under the TTCA. Thus, the Thirteenth Court overruled Brown’s sole issue on appeal and affirmed the trial court’s judgment.
Chief Justice Valdez filed a dissenting opinion. Justice Valdez emphasized that the witness accounts and the bus driver’s own statement acknowledged that the driver saw Brown attempt to board the bus, knew that Brown was dragged 10 feet, and knew that the bus ran over Brown’s arm. Since the purpose of the TTCA notice requirement is to allow the government to investigate, settle, and prepare for trial, the bus driver’s awareness was sufficient to at least raise a fact issue regarding whether RTA had actual notice of its alleged fault.
Moreover, Justice Valdez emphasized that—although Brown’s affidavit did not constitute formal timely notice under the TTCA—Brown’s affidavit could be considered as evidence of the events that led to his injury. The affidavit stated that Brown ran after the bus, Brown banged on the bus to get the driver’s attention, and the bus passengers yelled for the driver to stop. Taken as true and indulging every inference in the non-movant’s favor, Brown raised a fact issue regarding whether the bus driver—and thus RTA— had subjective awareness of their fault.
Lucio d/b/a Lighthouse Credit Solutions v. State, No. 13-15-00349-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Longoria and Hinojosa)
In this restricted appeal from a default judgment for contempt, the Thirteenth Court of Appeals discussed the requirements for substitute service under Texas Rule of Civil Procedure 106(b).
Marcos Lucio operated Lighthouse Credit Solutions, which advertised services to improve customers’ credit ratings. However, not only did Lighthouse fail to deliver on these promises, but it was not registered as a credit services organization. In February 2011, the State sued Lucio, and Lucio agreed to a judgment and permanent injunction against him. Specifically, the injunction prohibited Lucio from advertising or engaging in credit services without a valid registration certificate and from misrepresenting his services to the public.
On March 11, 2015, the State filed a motion for contempt and petition for violation of the permanent injunction. On April 27, 2015, the State moved for and the trial court granted substitute service based on the State’s alleged attempt to serve Lucio five times. The State then executed substituted service on Lucio, serving a copy of the court’s show cause order, an order setting a hearing to show cause, and the State’s amended motion and petition for contempt. The hearing was held on May 27, 2015, and Lucio failed to appear. The trial court entered a default judgment of contempt against Lucio, and Lucio filed a restricted appeal.
Held: The trial court did not have personal jurisdiction to issue its judgment of contempt against Lucio because the affidavit filed in support of the State’s motion for substituted service was conclusory and insufficient as a matter of law.
On appeal, the Thirteenth Court of Appeals analyzed whether the trial court had personal jurisdiction over Lucio. The court noted that, for purposes of a restricted appeal, a jurisdictional defect is apparent on the face of the record and will void a judgment if the personal jurisdiction deficiencies violate due process. Service of process is necessary for personal jurisdiction. If a party cannot meet the standard personal delivery requirements in Rule 21, the party may move for substitute service. Pursuant to Rule 106(b), a motion for substitute service must be supported by an affidavit that states the location of the defendant’s usual place of business or abode, among other facts. However, a conclusory affidavit is invalid and has no effect.
The Thirteenth Court then applied these rules. The State’s motion for substitute service provided an address for Lucio’s usual place of business and usual place of abode, while also stating that the State had unsuccessfully attempted to personally serve Lucio five times. However, the affidavit in support of the State’s motion merely listed attempts to serve Lucio at these two addresses; it did not clarify the significance of these addresses—i.e., that they were Lucio’s usual place of business and usual abode. The State’s motion was unsworn and could not make up for the lapses in the affidavit. Thus, the affidavit was conclusory and did not authorize substitute service. As such, the trial court did not have personal jurisdiction to enter a default judgment against Lucio.
The trial court’s judgment was reversed and remanded.