City of Beaumont v. Armstead

Full title: CITY OF BEAUMONT, TEXAS, Appellant v. CHIQUITA ARMSTEAD, Appellee

Court: Court of Appeals Ninth District of Texas at Beaumont

Date published: Mar 17, 2016

NO. 09-15-00480-CV (Tex. App. Mar. 17, 2016)

Opinion

NO. 09-15-00480-CV

03-17-2016

CITY OF BEAUMONT, TEXAS, Appellant v. CHIQUITA ARMSTEAD, Appellee

LEANNE JOHNSON Justice

On Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-197,427

MEMORANDUM OPINION

This is an interlocutory appeal by the City of Beaumont (City or Appellant) from the trial court's denial of its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2015). Chiquita Armstead (Armstead or Plaintiff) filed this personal injury lawsuit against the City, alleging she had been injured in a two-car accident in which one of the cars was owned by the City and operated by a City employee at the time of the accident. The City filed a plea to the jurisdiction arguing that the trial court lacked jurisdiction to hear the matter because Armstead had failed to provide the City with adequate pre-suit notice under section 101.101 of the Texas Civil Practice and Remedies Code and of the City Charter, that Armstead's claim was minor and that no one could have been injured, that as a matter of law she was not entitled to damages in excess of the statutory cap, and that Armstead failed to specify the name of the City employee who caused her injuries and therefore may not assert a general negligence claim against the City. The trial court denied the City's plea to the jurisdiction, and the City appealed. We reverse and render judgment for the City.

BACKGROUND

Armstead contends that she was injured in a car accident that occurred on or about November 21, 2013. In her Original Petition, filed on August 11, 2015, Armstead alleged that she was a passenger in a motor vehicle that was traveling on Magnolia Avenue in Beaumont that "collided with" the Defendant's vehicle.

According to a Texas Peace Officer's Crash Report (the Accident Report) that appears in the appellate record, the Beaumont Police Department sent a patrol officer to the scene of the accident several minutes after the alleged accident. The Accident Report indicates a two-vehicle accident occurred on November 21, 2013. In the Accident Report, Unit 1 is described as a 1994 Isuzu Rodeo, driven by Brittany Cuney, and the report lists two passengers, Chiquita Armstead and Latisia Breaux. Unit 2 is described as a 2000 Ford Expedition, owned by the City of Beaumont, and driven by Corey Pinckney (Pinckney), and it also lists the names of two passengers. The Accident Report indicates an injury code of "C" for all three occupants of Unit 1.¹ The Accident Report also reflects that Unit 1 was driven away, and that the occupants were taken to Memorial Hermann Baptist by private automobile. The Accident Report also provides an "Investigator's Narrative Opinion of What Happened[,]" which states as follows:

1 Nothing on the face of the Accident Report or otherwise in the record before us defines the injury code "C." The Accident Report gives no further information concerning injuries. --------

I was told that Unit 1 was s/b 1900 Blk Magnolia in the right lane. Unit 2 was s/b 1900 Blk Magnolia in the left lane. Both Units approached the curve at about the same time, with Unit 2 slightly ahead of Unit 1. When the road curves the only markings on the roadway are yellow strips to divide the northbound and southbound lanes, and the road narrows. The white stripped [sic] lines to divide the two lanes stop just before the curve and then start back up just after the curve. The units collided in the curve where there are no lane markings.

A diagram is also attached to the Accident Report which is consistent with the narrative. The Accident Report reflects that the driver in Unit 1 was charged with having an expired driver's license, but the report reflects no other charges, violations, or tickets. The officer that completed the Accident Report also indicates that the accident did not result in at least $1000 damage to any one person's property.

Prior to filing her lawsuit, Armstead's attorney sent the City a letter dated December 23, 2013 (December 2013 Letter), addressed to "Matt Mortin[,] City of Beaumont[,]" regarding "Client: Chiquita Armstead[,] Date of Incident: 11/21/2013." In the December 2013 Letter, the attorney for Armstead stated:

To Whom It May Concern:

Chiquita Armstead (hereinafter sometimes referred to as "Plaintiff") hired The Payne Firm, P.C. to assert this claim against the City of Beaumont Police Department (hereinafter sometimes referred to as "Defendants"). This letter is notice that my client plans to file suit under the Texas Tort Claims Act. Under Texas Civil Practices & Remedies Code Section 101.101(a), our client is required to provide you with notice of (1) the damage or injury claimed, (2) the time and place of the incident, and (3) the incident itself. Plaintiff previously notified Defendants of her claim at or near the time of the basis of this claim.

On or about November 21, 2013, Plaintiff was a passenger in a motor vehicle that collided with Defendants. Plaintiff was injured and incurred damages as a result of the aforementioned accident. These damages represent medical expenses, pain, suffering, mental anguish, and lost wages. Should this claim reach litigation we reserve the right to adjust the amount of damages to conform to the evidence.

Our client wishes to resolve this matter without the necessity of court intervention. My client is currently seeking medical treatment and we will update you with the status of her treatment at the proper date and time. I look forward to your anticipated cooperation.

Armstead's attorney sent a second letter dated March 10, 2014 (March 2014 Letter), addressed to "Matt Martin" with the City of Beaumont that stated as follows:

My law firm previously forwarded a Texas Tort Claims Act notice letter to your office on December 23, 2013; however, we have not received a response from your office regarding our correspondence. Please contact my office upon receipt of this letter in order that I may properly advise my client regarding the potential litigation of this matter. If you need any additional information in order to evaluate this claim, please feel free to contact my office. I look forward to your anticipated cooperation.

Armstead filed her Original Petition on August 11, 2015, naming the City and Pinckney as defendants, wherein she alleged that she was a passenger in a motor vehicle that was involved in an automobile accident on November 21, 2013. She alleged that the vehicle she was riding in "collided" with the vehicle that was driven by the City's agent, police officer Pinckney. Therein she stated that both vehicles were proceeding down Magnolia Avenue when the vehicle driven by Pinckney "failed to stay in the proper traffic lane as both vehicles navigated a curve." Armstead further alleged that she was injured in the accident and that the injuries were caused by the negligence of the City and its agents. She sought a recovery of actual and punitive damages, and also claimed the defendants were grossly negligent.

On September 16, 2015, in separate documents the City filed a Plea to the Jurisdiction, a Motion to Dismiss, an Answer, a Notice of Hearing, a Motion for Leave to Designate Responsible Third Parties, and a Certificate of Written Discovery. In its plea to the jurisdiction, the City argued that Armstead failed to give proper notice of her claim as required under section 101.101 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (West 2011). According to the City, under section 311.034 of the Government Code, Armstead's failure to give proper notice under the statute deprived the trial court of jurisdiction and dismissal was required. See Tex. Gov't Code Ann. § 311.034 (West Supp. 2015). The City also argued that the City's charter requires written notice of injury or damage to the City Council before the City may be liable for personal injuries. See Charter of the City of Beaumont, Tex., art. XVII, § 15 (2003) [hereinafter City Charter].

One of the exhibits attached to the City's Plea to the Jurisdiction is a copy of a document dated March 25, 2014, entitled "Case Supplemental Report" that appears to be a statement by or from "Pinckney, C.L." about the accident. This report states that

. . . As I entered the curve, I heard [a passenger] alert me to the fact that a vehicle was in the right hand lane moving toward my vehicle. I looked in my rear view mirror and I observed the vehicle make contact with the right back quarter panel of my vehicle. The

impact was so minor that I asked [the other passengers] if the second vehicle just hit us.

In the report, Pinckney also states that he did not exit his vehicle or speak with the occupants of the other car involved in the accident. However, according to the report, one of the passengers riding with Pinckney did exit the Pickney vehicle and spoke with the occupants of the other vehicle. Pickney's passenger told Pickney that the other vehicle made minor contact with the vehicle Pickney was driving, and told Pickney that the passengers in the other vehicle stated they were not hurt.

On October 2, 2015, Armstead filed a dismissal without prejudice as to defendant Pinckney and also a Response to Defendant's Plea to the Jurisdiction that argued the letters sent to the City by her attorney were sufficient notice and that the City had actual notice of her claims. And, on that same date, the City filed a Supplemental Plea to the Jurisdiction. According to the docket sheet, the trial court held a hearing on the Plea to the Jurisdiction and Motion to Dismiss and took the matter under advisement. On that same date, the trial court granted the City's Motion for Leave to Designate Responsible Third Parties, in which the City sought to name "Brittney Cuney[]," who was driving the vehicle in which Armstead was a passenger when the accident occurred, and Jama Breaux, alleged to be the owner of the vehicle Cuney was driving, as responsible third parties.

On November 9, 2015, the trial court signed an Order Denying Defendant's Plea to the Jurisdiction without issuing findings of fact and conclusions of law. On November 16, 2015, Plaintiff filed her Second Amended Petition. The City timely filed a Notice of Appeal on November 25, 2015, appealing the trial court's denial of the City's plea to the jurisdiction.

ISSUES ON APPEAL

In its first issue, the City argues the trial court erred in denying the City's plea to the jurisdiction and in failing to dismiss the suit because Armstead failed to comply with the pre-suit notice required by the City Charter and section 101.101 of the Texas Civil Practice and Remedies Code. In its second issue, the City argues that in the alternative, the trial court erred in failing to dismiss individual claims for damages in excess of the $250,000 statutory cap, and in failing to dismiss the general negligence claim against the City.

STANDARD OF REVIEW

Appellate courts do not have jurisdiction over interlocutory appeals in the absence of a statutory provision permitting such an appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). Section 51.014 designates civil orders that may be appealed on an interlocutory basis, and it is strictly construed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014; Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). Section 51.014(a)(8) permits an appeal of a grant or denial of a plea to the jurisdiction by a governmental unit under the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(8), 101.001 (West Supp. 2015).

A plea to the jurisdiction challenges the court's authority to decide a case. Bland Indep. Schl. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). We review de novo a trial court's disposition of a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We also review a challenge to the trial court's jurisdiction de novo. Id. at 228. When the municipality challenges the existence of jurisdictional facts, we consider relevant evidence when necessary to resolve jurisdictional issues. See id. at 227. If the jurisdictional challenge implicates the merits of the case and the evidence creates a fact question, then it is for the fact-finder to decide. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) ("If that evidence creates a fact issue as to the jurisdictional issue, then it is for the fact-finder to decide."). When we review a plea to the jurisdiction in which the plaintiff has met her burden of pleading a proper case and evidence has been submitted to support a plea to the jurisdiction that implicates the merits of the case, we take as true all evidence favorable to the nonmovant, and resolve all doubts in the nonmovant's favor. Id.

STATUTORY REQUIREMENTS OF PRE-SUIT NOTICE

The Texas Tort Claims Act (TTCA) requires a plaintiff to give the governmental unit timely formal notice that "reasonably describe[s]: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a). The pre-suit notice provision under the TTCA serves the purpose of providing "prompt reporting of claims to enable the municipality to investigate" claims and "gather the information needed to guard against unfounded claims, settle claims and prepare for trial." City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex. 1981). The notice provisions are jurisdictional in cases brought under the TTCA. See Tex. Gov't Code Ann. § 311.034 (West 2013).

The City of Beaumont operates under a City Charter which expressly requires that:

Before the City of Beaumont shall be liable for personal injuries of any kind, the person injured or someone in his behalf shall give the City Council notice in writing of such injury within six (6) months after the same has been sustained, stating specifically in such notice when, where and how the injury occurred and the extent thereof, and the names and addresses of any person or persons, if any, witnessing the same[] . . . ."

City Charter, art. XVII, § 15. The TTCA expressly ratifies and approves city charters and ordinances requiring notice within a charter period permitted by law. Tex. Civ. Prac. & Rem. Code Ann. § 101.101(b). The notice requirements in subsections 101.101(a) and (b) do not apply if the City has "actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged." Id. § 101.101(c). Actual notice is a fact question when the evidence is disputed but may be determined as a matter of law when the pertinent facts are undisputed. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 549 (Tex. 2010); Tex. Dep't of Crim. Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004).

The Texas Supreme Court has examined the actual notice requirement on several occasions. For example, in Cathey v. Booth, the Texas Supreme Court held that for a governmental unit to have actual notice under section 101.101(c), 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." 900 S.W.2d 339, 341 (Tex. 1995). The Court considered whether a hospital had actual notice of a claim against it from its own medical records. Id. at 340. The Booths urged the Court to impute actual notice to the Hospital because the Hospital had knowledge Ms. Booth received treatment and her child was delivered stillborn. Id. at 340-41. The Booths offered an affidavit from their expert, wherein he opined that the records showed a cesarean section was not performed until more than a half hour after it should have been performed. Id. at 342. According to the Court, even if the hospital was aware of such information as contained in the hospital's medical records, as a matter of law, the information failed to adequately convey to the Hospital its possible culpability for mental and physical injuries to the plaintiffs. Id.

In Texas Department of Criminal Justice v. Simons, the Texas Supreme Court again examined the actual notice provision and indicated that mere notice that an accident has occurred or even the fact that a municipality conducts an investigation after the accident does not mean the municipality has "actual notice" under the TTCA, which requires a subjective awareness of fault. 140 S.W.3d at 343-48. The Court stated:

What we intended in Cathey by the second requirement for actual notice was that a governmental unit have knowledge that amounts to the same notice to which it is entitled by section 101.101(a). That includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury.

Id. at 347.

Subsequently, in City of Dallas v. Carbajal, the Texas Supreme Court examined whether the particular language in a police report was sufficient to provide "actual notice" of fault. 324 S.W.3d 537, 539 (Tex. 2010) (per curiam). In Carbajal, the Court concluded that even when an initial police report after the accident noted the injured person drove "her 'veh[icle] into [a] gap in [the] street [that] was not properly blocked[,]'" the report did not give the City actual notice under section 101.101(c) because it did not "imply, let alone expressly state, that the City was at fault." Id. at 538-39. The Court noted that a private contractor, as compared to the City, could have been responsible for the road's condition. Id. at 539. The Court declined to decide "whether the City would have had actual notice if the report had expressly stated that the City was at fault." Id. at 539 n.1.

In University of Texas Southwest Medical Center at Dallas v. Estate of Arancibia, the claimant argued that the hospital's own documents showed the surgeon and his supervisors were subjectively aware that his medical error contributed to Arancibia's death. 324 S.W.3d at 550. The trial court denied the plea to the jurisdiction and motions to dismiss, and the court of appeals affirmed. Id. at 546. On review, the Texas Supreme Court again examined the subjective awareness of fault element of "actual notice" and affirmed the decision of the court of appeals. Id. at 548-50, 552. Therein, the Supreme Court explained that "[f]ault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed." Id. at 550. The majority emphasized that the medical facility's internal emails that were exchanged between the surgeon and his supervisor showed they were subjectively aware of their fault in producing or contributing to Arancibia's death. Id. at 549-50. The surgeon's supervisor concluded that "a 'technical error' was made, that clinical management contributed to Arancibia's death, and that the care 'was not necessarily consistent with established standards.' His ultimate conclusion that those errors were acceptable does not detract from his subjective awareness that medical error contributed to Arancibia's death." Id.

This Court examined whether a fact issue regarding actual notice existed under the TTCA in Texas Department of Transportation v. Cash, No. 09-12-00463-CV, 2013 WL 3853385 (Tex. App.—Beaumont Apr. 18, 2013, no pet.) (mem. op.). Cash sued the Texas Department of Transportation (TXDOT) and APAC-Texas, Inc. (APAC) after Cash fell and broke her ankle. Id. at *1. TXDOT's plea to the jurisdiction argued that Cash had failed to give notice as required under the TTCA. Id. at *2. Cash did not argue she had provided formal written notice, but rather she claimed that TXDOT had actual notice. Id. at *3. Cash's husband Victor testified in his deposition that, after Cash fell, he called APAC

. . . because he wanted them to come fix the area. He could not recall the names of the people he spoke with at APAC, but recalled that a man told him he needed to "call the State" and that the man gave him a number to call. Victor testified that he called the State. He

did not recall with whom he spoke when he called the State. Victor testified that he called the State because he wanted to get his mailbox area fixed. There is nothing in the record that indicates what additional information, if any, Victor provided the State when he called TXDOT to get his mailbox fixed.

Victor testified that the Friday after his wife's injury, the State sent a crew out to his house to put asphalt down in front of the mailbox area. Victor testified that he spoke with TXDOT's crew and told them that he was glad they were fixing the area because his wife had broken her ankle on Monday. Victor testified that one of the crewmembers responded that the area was "'a mess'" and that "'APAC should have fixed this right to start with and we wouldn't be out here.'"

Id. at 3.

APAC's division president testified in his deposition that to his knowledge APAC did not notify TXDOT of Cash's injury after receiving the call from Victor, and that TXDOT only became aware of Cash's injury after someone associated with Cash called TXDOT. Id. We concluded that the evidence failed to demonstrate that TXDOT had subjective awareness that its fault produced or contributed to Cash's alleged ankle injury and that TXDOT's notice of Cash's injury alone was insufficient to enable TXDOT to "'gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.'" Id. at **3-4 (quoting Cathey, 900 S.W.2d at 341). Accordingly, we held that it was error for the trial court to deny TXDOT's plea to the jurisdiction. Id. at *4.

By contrast, in Porter Municipal Utility District v. Moore, No. 09-10-00569-CV, 2011 WL 4537972 (Tex. App.—Beaumont, Sept. 29, 2011, no pet.) (mem. op.), this Court concluded that the evidence raised a fact issue regarding whether the Utility District had actual notice. In Moore, the plaintiff sued the Porter Municipal Utility District (District) and its employee Ronald Lee (Lee) under the TTCA for injuries allegedly arising out of a motor vehicle accident. Id. at *1. The accident report indicated that Lee's failure to yield the right-of-way at a stop sign was a factor and condition that contributed to the accident. Id. at *3. Lee's supervisor testified that Lee told her that the plaintiff's car had to be towed away after the accident and that the plaintiff indicated she was going to the hospital to be checked out. Id. The supervisor also testified in her deposition that she had reviewed the police report, including the police officer's opinion that Lee's conduct was a factor that had contributed to the accident. Id. The supervisor testified that, after reviewing the report, it "crossed her mind" that the District might have potential responsibility or liability for the accident. Id. Lee's supervisor further stated in her affidavit that she is the person designated to receive notice of process and, should anyone choose to notify the District of a potential claim or complaint, she is the person who accepts the notice. Id. at *4. This Court concluded that the plaintiff had raised a fact issue precluding summary judgment on actual notice. Id. at *5.

ANALYSIS

In this appeal, the City argues that the December 2013 Letter and the March 2014 Letter were inadequate and did not comply with the statutory requirements under section 101.101(a) or the requirements outlined in the City Charter in several respects. According to the City, the TTCA and City Charter together require that the claimant give timely notice to the City Council of "(1) the name of the person injured; (2) specifically when the injury occurred; (3) specifically where the person was injured; (4) specifically how the injury occurred; (5) specifically the extent of injuries; and (6) names and addresses of witnesses." The City argues that the letters sent by Armstead's attorney failed to do anything other than provide a name of the claimant. The City further contends that the "actual notice" exception in section 101.101(c) would not apply and that the Accident Report did not provide any notice that the City had any fault in causing or contributing to the accident or Armstead's injuries.

Armstead argues that her December 2013 Letter was sufficient under the TTCA. She contends that "many other courts throughout the State of Texas" have determined a letter such as hers is sufficient to meet requirements under the TTCA. She specifically cites to City of Wichita Falls v. Jenkins, 307 S.W.3d 854, 860 (Tex. App.—Fort Worth 2010, pet. denied); Bosler v. Riddle, No. 07-05-0283-CV, 2007 WL 686645, at *4 (Tex. App.—Amarillo Mar. 7, 2007, pet. denied) (mem. op.); and Richardson v. Allen, No. 05-96-00018-CV, 1997 WL 242812, at *3 (Tex. App.—Dallas May 13, 1997, no writ) (mem. op.). She also argues the notice she provided "was within the guidelines stated in the city charter adopted by the City of Beaumont." We find Jenkins, Bosler, and Richardson distinguishable from our facts. Armstead's December 2013 Letter lacks the same detail as contained in the letters that were examined by the courts therein, and none of the cited cases discuss compliance with a City Charter's notice requirements. In Jenkins, the pre-suit notice letter specified the name of the city employee, a police officer who was driving the vehicle that hit the claimant's vehicle, and briefly describes how the accident occurred. 307 S.W.3d at 859. The pre-suit notice letter in Bosler specifically stated the accident "involved a police cruiser" and specified that the matter concerned injuries to the driver and her two children (identified by name), including the death of one child. 2007 WL 686645, at *3. And in Richardson, the court of appeals concluded that the claimant had raised a fact issue concerning whether the city had actual notice by virtue of the fact that it had settled a claim concerning the damage to the claimant's car. 1997 WL 242812, at **2-3. The Richardson court did not decide whether the claimant's notice letter complied with the TTCA requirements. Id.

We agree with the City that the December 2013 Letter fails to meet the pre-suit notice requirements as outlined in section 101.101(a) because it fails to "reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a); see also Carbajal, 324 S.W.3d at 537-38 (failure to comply with TTCA notice requirements deprives the trial court of subject-matter jurisdiction); Simons, 140 S.W.3d at 344-47 (explaining the notice requirements). While there is a reference to an accident date, the letter fails to provide any time or description of the incident or the place of the incident. See e.g., Tex. Dep't of Crim. Justice v. Thomas, 263 S.W.3d 212, 218 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (a letter that described the injury and date thereof but did not describe the incident was insufficient notice under § 101.101(a)). Additionally, the December 2013 Letter fails to meet the requirements as outlined in the City Charter, in that it fails to state "when, where and how the injury occurred and the extent thereof, and the names and addresses of any person or persons, if any, witnessing the same . . . ." City Charter, art. XVII, § 15. See Torres, 621 S.W.2d at 590 (explaining that "Texas authorities have consistently recognized that compliance with charter provisions is mandatory and that timely filing of a written notice of claim is a condition precedent to maintenance of a suit against a city for injuries[]") (citing Artco-Bell Corp. v. City of Temple, 603 S.W.2d 384, 387 (Tex. Civ. App. 1980); LaBove v. City of Groves, 608 S.W.2d 162, 162 (Tex. 1980); Roberts v. Haltom City, 543 S.W.2d 75, 76 (Tex. 1976); McCrary v. City of Odessa, 482 S.W.2d 151 (Tex. 1972) (compliance with city charter notice provisions is required but compliance may be excused by lack of capacity); City of Waco v. Landingham, 157 S.W.2d 631, 632-33 (1941); Phillips v. City of Abilene, 195 S.W.2d 147, 148 (Tex. Civ. App.—Eastland 1946, writ ref'd)); see also Bowling v. City of Port Arthur, 522 S.W.2d 270, 272 (Tex. App.—Beaumont 1975 writ ref'd n.r.e.)).

Even though we conclude the December 2013 Letter did not provide the pre-suit notice as required by the TTCA and the City Charter, we nevertheless must also determine whether the City had "actual notice" of the information required under section 101.101 and under the City Charter. Armstead argued in her response to the City's plea to the jurisdiction that her December 2013 Letter notified the City she had a claim for injuries and that the City already knew about the accident and had conducted its own investigation, as evidenced by the Accident Report and by Pinckney's "written statement" (i.e., the Case Supplemental Report).

According to Armstead, the Accident Report "alone, in this instance, signifies that [the] City of Beaumont was subjectively aware of its contributing fault[,]" and that the City was subjectively aware of its implied responsibility. Finally, she contends the City cannot deny it had subjective awareness of fault because the City was the "[s]ole [i]nstrumentality [c]reating the [h]arm to Chiquita Armstead." We disagree with her conclusions.

Neither the Accident Report nor the Case Supplemental Report "impl[ies], let alone expressly state[s], that the City was at fault." See Carbajal, 324 S.W.3d at 538-39. Although Armstead argues that the City was "the sole instrumentality causing the harm[,]"neither the Accident Report nor any other exhibits in the record establish that the City was the "[s]ole [i]nstrumentality [c]reating the [h]arm to Chiquita Armstead." Rather, the Accident Report establishes that Armstead was a passenger in a different vehicle, that there was another driver, and that the police officer concluded that the other driver hit the City's vehicle. Id. (explaining that, where a police report did not assign fault, other actors or conditions could have caused the accident); see generally Moore, 2011 WL 4537972, at **4-5; cf. Ortiz-Guevara v. City of Houston, No. 14-13-00384-CV, 2014 WL 1618371, at **3, 5-6 (Tex. App.—Houston [14th Dist.] Apr. 22, 2014, no pet.) (mem. op.) (Where a police report lists a city employee's actions as "the sole factor or condition contributing to the accident" and "expressly assigns fault" to a city employee involved in the accident, such a report may raise a fact issue on the issue of "actual notice.").

We sustain the City's first issue. The December 2013 Letter was inadequate on its face to provide notice under the TTCA, and there is no evidence in the record now before us that would raise a fact issue concerning whether the City had subjective awareness of its fault, as alleged by Armstead, in producing or contributing to her claimed injury. See Arancibia, 324 S.W.3d at 548-49. Accordingly, the trial court lacked subject matter jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101; Tex. Gov't Code Ann. § 311.034; Arancibia, 324 S.W.3d at 548-49; see also City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) ("Evidence is conclusive only if reasonable people could not differ in their conclusions[.]"). Therefore, we hold that the trial court erred in denying the City's plea to the jurisdiction, and we render judgment dismissing Armstead's claim. See Miranda, 133 S.W.3d at 228; City of Galveston v. Murphy, No. 14-14-00222-CV, 2015 WL 167178, at *2 (Tex. App.—Houston [14th Dist.] Jan. 13, 2015, pet. denied.) (mem. op.).

We need not address the City's second issue on appeal because a favorable disposition on that issue would not afford any greater relief. See Tex. R. App. P. 47.1; see Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 583. n.5 (Tex. App.—Beaumont 2008, pet. denied). We reverse the order of the trial court denying the City's plea to the jurisdiction and render judgment granting the plea and dismissing Armstead's claim against the City with prejudice.

REVERSED AND RENDERED.

/s/_________

LEANNE JOHNSON

Justice Submitted on February 5, 2016
Opinion Delivered March 17, 2016 Before McKeithen, C.J., Kreger and Johnson, JJ.