Larry Howard v. Cathy Harrell, Mavis Harrell, Derek Darnell, Austin Bridge and Road Inc., and Texas Department of Transportation

Citation: Not availableDocket: 07-08-00013-CV

Court: Court of Appeals of Texas; March 31, 2009; Texas; State Appellate Court

Original Court Document: View Document

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Larry Howard, proceeding pro se, appeals a judgment that denied his negligence claims against multiple appellees, including Mavis and Cathy Harrell, Farmers Insurance Group, Austin Bridge and Road, Derek Darnell, and the Texas Department of Transportation (TxDOT). The appeal follows a jury trial where it was found that both Howard and Mavis Harrell were negligent in a January 20, 2004, car accident, with Howard deemed 51% at fault. The trial court had previously granted summary judgments in favor of Farmers Insurance Group, on the grounds that it was not the correct insurer for Mavis Harrell, and TxDOT, citing governmental immunity and lack of notice of the claim. Darnell and Austin also obtained summary judgment on the basis of insufficient evidence of negligence. Howard's appeal raises 16 issues, including claims of negligence against Mavis Harrell, challenges to the dismissal of claims against TxDOT, and errors in the summary judgments granted to Darnell, Austin, and Farmers Insurance Group. He contends the clerk’s record on appeal is incomplete. The court affirmed the trial court's decisions.

Howard is appealing pro se, and Texas courts require pro se litigants to adhere to the same procedural rules as those represented by counsel. He presents 16 issues in his appellate brief but fails to provide specific arguments for most, leading to waiver of inadequately briefed issues. His first point alleges that Mavis Harrell was negligent and that her negligence proximately caused the accident, which the jury confirmed. However, the jury found Howard 51 percent responsible, which, under Texas law, bars him from recovering damages since his percentage of responsibility exceeds 50 percent. 

Despite Howard's arguments regarding Harrell's negligence, the key issue is the jury's finding of his own negligence. He contends that a driver can justifiably stop in certain conditions, but the jury has broad discretion in assigning responsibility. Even if alternative allocations could be supported by evidence, appellate courts do not substitute their judgment for the jury's. The evidence presented indicated that Howard was distracted by construction activities and did not see the flagman until he was very close. Howard's sudden stop and his own testimony did not demonstrate that he acted prudently. Consequently, the appellate court finds no basis to overturn the jury's determination regarding the allocation of responsibility, leading to the overruling of Howard's first point.

Howard argues that the trial court incorrectly dismissed his negligence claims against TxDOT, asserting that TxDOT had actual notice of his claim and that a premises defect claim is permitted under the Texas Tort Claims Act. He relies on an incident report from a City of Cleburne Police Officer to claim actual notice. According to Texas law, a governmental unit must receive notice of a claim within six months of the incident, detailing the damage, time, place, and facts. However, if the governmental unit has actual notice of the injury or damage, formal notice is not needed. 

Howard did not provide formal notice to TxDOT, nor is there evidence he did so. He argues that the police incident report suffices for actual notice but fails to clarify how it would do so for a state agency. The incident report reveals no injuries or property damage to Howard, only suggesting potential property damage without indicating that TxDOT was at fault. For actual notice to exist, TxDOT must have had subjective awareness of its contribution to the injury or damage, which was not demonstrated.

Consequently, the trial court was correct in dismissing Howard's claims for lack of required notice. Although Howard's failure to provide notice was initially considered non-jurisdictional, a legislative amendment effective September 1, 2005, made notice a jurisdictional requirement for suits against governmental entities. Since the incident occurred on January 20, 2004, Howard needed to notify TxDOT by July 20, 2004, which he did not do.

Howard’s notice was due before the September 1, 2005, effective date of the amendment to Texas Government Code section 311.034. TxDOT's claim of insufficient notice could have been a valid defense in a summary judgment motion; however, it did not strip the trial court of subject matter jurisdiction and was not a proper basis for granting a plea to the jurisdiction. The trial court erred in dismissing Howard’s claims against TxDOT based on a lack of compliance with section 101.101, which it incorrectly deemed a jurisdictional issue. TxDOT also argued that governmental immunity had not been waived for Howard’s claims, asserting that Howard failed to plead sufficient facts demonstrating the court's jurisdiction. The sufficiency of pleadings regarding subject matter jurisdiction is reviewed de novo, with a liberal interpretation in favor of the plaintiff, and the facts pled are taken as true. In Texas, sovereign immunity limits a trial court's jurisdiction over lawsuits involving the state unless consent is given. It is the plaintiff's responsibility to plead and prove governmental immunity has been waived, as outlined in the Texas Tort Claims Act, which allows limited waivers for specific actions, including premises defects under section 101.021(2). To establish a claim for premises defects, the plaintiff must show that the condition created an unreasonable risk of harm, that the owner failed to exercise ordinary care, and that this failure caused the injury. Howard claimed TxDOT was liable for a premises defect due to inadequate warning signs and supervision during roadwork, asserting that these omissions created a dangerous condition and were the proximate cause of his injuries. However, Howard’s allegations were largely legal conclusions lacking factual support necessary to establish jurisdiction. Consequently, it was determined that Howard did not adequately plead facts to demonstrate the court's jurisdiction, leading to the conclusion that the trial court did not err in dismissing his claims against TxDOT. Howard’s second point was thus overruled.

Howard argued that the trial court incorrectly granted summary judgment in favor of Austin, claiming insufficient evidence to establish that Austin breached a duty of care, was a proximate cause of the accident, or that Howard incurred damages due to Austin's actions. Under Texas Rule of Civil Procedure 166a(i), a party may seek summary judgment if there is no evidence for essential elements of a claim on which the opposing party bears the burden of proof. The court reviews evidence favorably for the non-movant and determines if any evidence exists to create a genuine issue of material fact. In this case, the only evidence before the court was a police accident report that did not implicate Austin, failing to demonstrate any negligence. Howard's attempt to counter with a deposition transcript was ineffective as it was not part of the record before the court. Consequently, the court upheld the summary judgment for Austin.

Regarding Farmers Insurance Group, Howard's appeal lacked citation of authority or substantive argument, leading the court to deem this point waived. 

Howard also claimed issues with the clerk’s record, alleging it was missing or hidden; however, the court confirmed that a complete clerk's record had been filed, and Howard did not specify his complaints. 

Ultimately, the court found no error in the trial court's decisions and affirmed the judgment.