Court of Appeals of Texas, Houston (1st Dist.).

Richard F. REEL, Jr. Individually and as Attorney in fact for Annetta P. Reel and Patrick Darrell Reel, Appellant.

v.

The CITY of HOUSTON, Appellee.

No. 01-98-00520-CV.

|

June 3, 1999.

COHEN, O’CONNOR, and WILSON, JJ.

OPINION

O’CONNOR.

*1 Richard F. Reel, Jr., individually and as attorney for Annetta P. Reel and Patrick Darrell Reel, the plaintiff below and appellant here, appeals from a take-nothing summary judgment rendered in favor of the City of Houston, the defendant below and appellee here. We affirm.

Background Facts

On April 14, 1994, Richard F. Reel, Sr. (the decedent) was driving westbound in the 1900 block of Bay Area Boulevard. He was attempting to turn from the westbound lane, across the eastbound lane, into the driveway of his apartment complex at University Green when his truck was hit by a car driven by Tina Shults. The decedent had just moved into the apartments about three weeks before the accident. He died from his injuries on May 11, 1994; he was 87 years old.

The decedent’s son, Richard F. Reel, Jr. (Reel), individually and as attorney for Annetta P. Reel and Patrick Darrell Reel, sued Tina Shults and the City of Houston (the City). Reel settled with Shults. The City moved for summary judgment, asserting Reel’s claims against it were barred and it was immune from suit under the Texas Tort Claims Act. The trial court rendered summary judgment in the City’s favor, and this appeal followed.

Summary Judgment Standard

A defendant is entitled to summary judgment if it pleads and conclusively establishes each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Casey v. Methodist Hosp., 907 S.W.2d 898, 900 (Tex.App.-Houston [1st Dist.] 1995, no writ). Once the defendant produces evidence that entitles it to summary judgment, the plaintiff must present evidence that raises a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

We will affirm the summary judgment if any of the grounds advanced in the motion for that summary judgment is meritorious and the movant preserved those grounds for appellate review. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996). We will not consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Tex.R.Civ.P. 166a(c); Clear Creek, 589 S.W.2d at 675-77.

Notice to the City

In point of error six, Reel asserts the trial court erred in finding that the City did not have actual knowledge of his claim within 90 days of the accident.

A governmental entity is entitled to notice of a claim no later than six months after the date that the incident giving rise to the claim occurred. Tex.Civ.Prac. & Rem.Code § 101.101(a). Section 101.101 ratifies notice provisions established by city charters and ordinances. Id. § 101.101(b). The City’s charter provides that notice must be received within 90 days of the incident.

*2 The City provided the affidavit of Anna Russell, City Secretary, who stated that the City did not receive notice of Reel’s claims until May 31, 1996, two years after the decedent’s death. Reel contends notice under Section 101.101 was not required because the City had actual notice of the decedent’s injuries and death. See id. § 101.101(c) (notice requirements of subsections (a) and (b) do not apply if governmental unit has actual notice that death has occurred or claimant has been injured).

Actual notice to a governmental unit requires 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. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex.App.-El Paso 1997, no writ). Actual notice may be imputed to the governmental unit only when an agent or representative of the entity charged with a duty to investigate and report to the governmental unit receives the three elements of actual notice outlined in Cathey. See Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 253 (Tex.App.-Houston [1st Dist.] 1995, writ dism’d w.o.j.) (actual notice is not limited to a particular governmental official, but may be imputed when agent with notice has duty to gather facts and investigate); Gonzalez, 940 S.W.2d at 795-96 (same). The existence of actual notice is a question of fact. Dinh, 896 S.W.2d at 253.

Reel contends the City had actual notice because a City police officer prepared and filed an accident report. Reel relies on Collier v. City of Texas City, 598 S.W.2d 356 (Tex.App.-Houston [14th Dist.] 1980, no writ). His reliance is misplaced because the facts in that case are different. In Collier, the plaintiff was injured while he was working at the Texas City landfill. Several co-workers, the City Landfill Supervisor, and the City Public Works Director (George Stapleton) were all witnesses to the accident. Id. at 357. Collier sued the city after he discovered it did not have workers’ compensation insurance. The city was granted summary judgment on the ground that Collier did not provide it with statutory notice of his claim.

On appeal, Collier asserted the city had actual notice of the accident sufficient to satisfy the statutory requirements. The Fourteenth Court of Appeals agreed with Collier, noting that the evidence showed more than sufficient knowledge. Stapleton, in whose area of responsibility the entire operation fell, witnessed the accident; therefore, the time, manner, and place requirements were met. Id. at 358. Collier had told Stapleton about the inadequate machinery, which indicated Stapleton had notice of the city’s possible culpability. Stapleton and other city officials knew Collier’s injuries were serious because they knew he missed work, could not perform his regular duties, and incurred medical bills that the city paid. Id. 358-59. The Court held that these facts constituted overwhelming evidence that the city had actual notice as required by the Tort Claims Act. Id. at 359.

*3 Unlike in Collier, the City did not have actual notice here. The accident report states the investigating officer thought the accident was caused because the decedent did not yield the right of way. Nothing in the report indicates the City may have been at fault. Because the report does not convey to the City its possible culpability, it does not meet the second prong of Cathey.

Reel also contends the City received actual notice because a copy of a letter from the decedent’s insurance company concerning the accident was forwarded to the City on May 16, 1994. The insurance company’s May 12, 1994 letter to the Clear Lake City Community Association states, “Mr. Reel’s view of the oncoming traffic was obstructed by the bushes located in the median…. Mr. Reel’s family is concerned that if this problem is not corrected other accidents may occur and other people may be injured or killed…. This problem deserves immediate attention and I would appreciate your assistance.” A May 16, 1994 letter from the community association to the insurance company states that the insurance company’s letter was forwarded to the City. However, there is nothing in the record proving the City received a copy of either letter within 90 days or six months of the accident.¹ Nor does the letter convey to the City its possible culpability; therefore, it does not meet the second prong of Cathey.

Reel’s summary judgment evidence does not raise a fact issue on whether the City had actual notice of any alleged culpability on its part producing or contributing to any injury to the decedent. Therefore, Reel’s suit against the City was barred.

We overrule point of error six.

Because we overrule point of error six, we need not reach Reel’s other points of error.

We affirm the trial court’s judgment.

	Footnotes
1		Copies of the letters were attached to the notice letter received by the City on May 31, 1996.