Opinion issued December 31, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-19-00450-CV
                            ———————————
                        CITY OF HOUSTON, Appellant
                                        V.
                         ELVIN D. MILLER, Appellee


                    On Appeal from the 281st District Court
                             Harris County, Texas
                       Trial Court Case No. 2017-24358


                          MEMORANDUM OPINION

      The City of Houston appeals the trial court’s order denying its plea to the

jurisdiction in Elvin Miller’s suit to recover damages for injuries he suffered when
he was thrown from his motorcycle after riding over a pothole.1 In two issues, the

City contends that it is immune from Miller’s suit because Miller did not timely

serve it with the statutorily-required notice of his claims and he did not plead or

prove that the City had actual notice of his claims.

      Miller filed a motion asking this Court to order the trial court to supplement

the appellate record. We deny Miller’s motion.

      We reverse the trial court’s order and render judgment dismissing Miller’s

suit for lack of subject-matter jurisdiction.

                                      Background

      According to his petition, on November 9, 2015, Miller was traveling on

Scott Street in Houston, Texas, when he struck a pothole and lost control of his

motorcycle, causing him to be “thrown into the air before colliding violently onto

the street.” Emergency medical personnel arrived on the scene and drove Miller to

the hospital, where he was treated for a broken leg, a shattered ankle, lacerations,

avulsions, and road rash to his arms, legs, and torso. Miller’s injuries required

multiple surgeries and skin grafts.

      On March 3, 2016, Miller sent the City a “pre-suit notice of claim” letter

apprising it of his negligence claims against it, and, on April 10, 2017, he filed suit

against the City, alleging that an improperly repaired, unbarricaded pothole caused

1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (authorizing appeal of
      interlocutory order denying governmental unit’s plea to the jurisdiction).

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his accident and injuries. Miller’s petition alleged that the City failed to maintain

the road in a reasonably safe condition, to properly inspect and repair the defects

on the road that created the dangerous condition, and to adequately warn of the

dangerous condition. The petition also stated that “[p]re-suit notice of the claims

w[as] provided to Defendant as required by the Texas Tort Claims Act.” See TEX.

CIV. PRAC. & REM. CODE ANN. § 101.101 (setting forth notice requirement).

      The City filed a plea to the jurisdiction and motion to dismiss Miller’s

petition, arguing that Miller had, in fact, failed to provide the City with timely

written notice of his claims and that that failure deprived the trial court of subject-

matter jurisdiction. The City attached an affidavit stating that it received Miller’s

notice of claim letter on March 8, 2016, which was outside the 90-day notice

deadline for personal injury claims established by the City Charter. See CITY       OF

HOUSTON CHARTER, art. IX, § 11 (establishing 90-day deadline to provide notice of

claim pursuant to Tort Claims Act); TEX. CIV. PRAC. & REM. CODE ANN. §

101.101(b) (stating that governmental unit may establish notice deadline); see also

Needham Fire & Rescue Co. v. Balderas, No. 14-16-00211-CV, 2017 WL

1416219, at *3 (Tex. App.—Houston [14th Dist.] Apr. 18, 2017, no pet.) (mem.

op.) (stating that controlling date is date governmental unit receives notice, not

date claimant sends notice).




                                          3
      In his response to the plea, Miller did not claim to have timely served the

City with written notice. Instead, he argued that the City had actual notice of his

claims and, therefore, he was excused from having to serve it with formal written

notice. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c) (stating that Tort

Claims Act’s notice requirements “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”). In support of his argument, Miller

attached an EMS Patient Care Report from his accident. The report identified the

“cause of injury” as a motorcycle accident, and stated a time and date of 3:26 p.m.,

November 9, 2015. It also noted that Miller stated that he was travelling at

approximately 30 miles per hour when he “hit a pothole and lost control of the bike

and was thrown from it.” Miller also attached work orders for repairs to a water

main in the area of the street where he was injured, indicating that work was being

done on the road between October 28, 2015 and November 12, 2015.

      Miller also argued that a local television news report about his accident,

entitled “Poorly repaired pothole sends motorcyclist to the hospital,” which aired

several days after his accident, established that the City had actual notice of his

claims. He stated that the news report was attached to his response as Exhibit B,

but our review indicates that it was not made part of the appellate record and it




                                         4
does not appear on the list of items on file in the Harris County District Clerk’s

electronic database for this case.

      The trial court signed an order denying the City’s plea to the jurisdiction and

motion to dismiss, and the City appeals that order.

                     Motion to Supplement Appellate Record

      After the parties filed their appellate briefs, Miller filed a “Motion for

Delivery of Documents,” asking this Court to direct the Harris County District

Clerk’s Office to supplement the appellate record with the video of the news report

he referenced in his response to the City’s plea to the jurisdiction as Exhibit B and

claims to have filed with the clerk separately by certified mail. The City opposes

the motion and maintains that it was never served with the exhibit.

      We begin by noting that Miller could have requested a supplemental record

directly from the trial court. See TEX. R. APP. P. 34.5(c)(1) (“If a relevant item has

been omitted from the clerk’s record, the trial court, the appellate court, or any

party may by letter direct the trial court clerk to prepare, certify, and file in the

appellate court a supplement containing the omitted item.”); see also, e.g.,

Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 726 (Tex. App.—Houston [1st

Dist.] 2003, no pet.) (“Nothing in [Rule 34.5(c)] requires that parties seek

permission from any court before directing the clerk to prepare the supplemental

clerk’s record and file it with the court of appeals . . . [or] obtain a ruling from any


                                           5
court before the supplemental clerk’s record will be included in the appellate

record.”).

      In the motion, Miller contends that this Court cannot adequately assess the

merits of this appeal without reviewing the video. We cannot agree, as we may not

consider evidence, such as the video, that was not before the trial court when it

made its ruling. See Fryday v. Michaelski, 541 S.W.3d 345, 352 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied) (“We do not consider evidence that was

not before the trial court at the time it made its ruling in the case.”); Fox v. Alberto,

455 S.W.3d 659, 668 n.5 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(holding that appellate court may not consider documents that were not filed in

trial court–and thus are not part of reporter’s record or clerk’s record–because

appellate court “may not consider matters outside the appellate record”); see also

In re E.W., No. 05–01–01463–CV, 2002 WL 1265541, at * 3 (Tex. App.—Dallas

June 7, 2002, pet. denied) (not designated for publication) (“Nor does rule 34.5(c)

permit the clerk’s record in an appeal to be supplemented unless it is clear that the

item to be considered was on file when the trial court rendered judgment.”).

      Here, there is no indication that the video exhibit, which does not appear in

the Harris County District Clerk’s electronic database for this case, was actually

filed with the district court clerk or that the trial court considered it when it denied

the City’s plea to the jurisdiction. See Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373


                                           6
(Tex. 1984) (per curiam) (declining to consider hearing transcript on review of

summary judgment because record did not establish that trial court considered

transcript at time it ruled on motion). Nor has Miller made any showing that the

trial court’s clerk’s office ever received the video exhibit.2 The onus was on Miller

to ensure that exhibits he relied upon were successfully filed.3 See, e.g., Battarbee

v. Transp. Ins. Co., No. 05-99-00294-CV, 2000 WL 45921, at *1 (Tex. App.—

Dallas Jan. 21, 2000, pet. denied) (not designated for publication) (“[T]he rules of

appellate procedure are to ensure that the record, as it existed in the trial court, is

properly filed in this Court. It is the litigant’s burden to ensure a proper record is

made in the trial court in the first instance.”). Having failed to do so, Miller cannot

now complain.

      We deny Miller’s motion.



2
      Miller states in his motion that he received return receipts from the certified
      mailing of the video exhibit from both the trial court and the City, but he does not
      attach the receipts or provide any other evidence to show that the video exhibit
      was mailed or that the trial court or the City received it.
3
      Miller did not file a designation of additional items to be included in the appellate
      record. See TEX. R. APP. P. 34.5(b) (permitting party to designate additional items
      to be included in appellate record); cf. In re K.M.L., 443 S.W.3d 101, 119 (Tex.
      2014) (pointing out that respondent, who knew petitioner alleged lack of notice of
      trial setting with his motion for new trial, failed to request inclusion of return
      receipt of citation in clerk’s record). Nor did he invoke the procedure for
      correcting the record if an item is lost or destroyed. See TEX. R. APP. P. 34.5(e)
      (providing means to have missing or destroyed item that was designated for
      inclusion in clerk’s record placed into clerk’s record when party can provide
      accurate copy).

                                            7
                             Plea to the Jurisdiction

      Under the common law, municipalities like the City of Houston are immune

from suit and liability for money damages unless the legislature has clearly and

unambiguously waived immunity. Worsdale v. City of Killeen, 578 S.W.3d 57, 62

(Tex. 2019). Absent a valid statutory waiver of immunity, a trial court may not

assume subject-matter jurisdiction over a suit against a governmental unit. City of

Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011) (quoting Tex. Dep’t of Transp. v.

Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam).

A.    The Tort Claims Act

      The Texas Tort Claims Act waives the City’s governmental immunity in

certain limited circumstances, including for personal injury caused by a condition

or use of personal or real property. TEX. CIV. PRAC. & REM. CODE ANN. §

101.021(2) (providing for waiver of immunity for personal injury or death caused

by condition or use of tangible personal or real property). To take advantage of the

Act’s limited waivers of immunity, a claimant must comply with the notice

requirements set forth therein. See id. § 101.101(a) (requiring notice to be given to

governmental entity within six months of injury in order to bring claim against

governmental entity).

      The Act’s notice provision “allows governmental entities to investigate

claims while the facts are fresh, to guard against unfounded claims, to settle


                                         8
claims, and to prepare for trial.” Metro. Transit Auth. of Harris Cty. v. Garza, No.

01-18-00408-CV, 2019 WL 1523186, at *4 (Tex. App.—Houston [1st Dist.] Apr.

9, 2019, no pet.) (mem. op.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.

1995) (per curiam)). Section 101.101(a) provides that a governmental unit is

“entitled to receive notice of a claim against it . . . not later than six months after

the day that the incident giving rise to the claim occurred.” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.101(a). Such formal notice, which must be in writing, must

reasonably describe (1) the damage or injury claimed, (2) the time and place of the

incident, and (3) the incident. Id.

      Although the Act states that a claimant must provide written notice within

six months of his injury, it also provides that a city can establish a different notice

deadline in its charter. Id. § 101.101(b) (“A City’s charter and ordinance provisions

requiring notice within a charter period permitted by law are ratified and

approved.”). The City of Houston’s charter establishes a 90-day deadline to

provide it with notice of a claim for damages for personal injuries. CITY           OF

HOUSTON CHARTER, art. IX, § 11; see Duncan v. City of Hous., No. 01-05-00079-

CV, 2006 WL 181399, at *2 (Tex. App.—Houston [1st Dist.] Jan. 26, 2006, pet.

denied) (mem. op.).

      The written notice requirements in subsections (a) and (b) do not apply if a

governmental unit has actual notice. TEX. CIV. PRAC. & REM. CODE ANN.


                                          9
§ 101.101(c) (“The notice requirements . . . 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.”). However, knowledge

that a death, injury, or property damage has occurred, standing alone, is not

sufficient to put a governmental unit on actual notice as required under the Tort

Claims Act. City of San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018). To

have actual notice, a governmental unit must have the same knowledge it is

entitled to receive under the written notice provisions of the Act. Id. Thus, the

actual notice provision requires that a governmental unit have subjective awareness

that its fault, as ultimately alleged by the claimant, produced or contributed to the

claimed injuries. Worsdale, 578 S.W.3d at 63. The Texas Supreme Court has

clarified that a governmental unit has actual notice under the Act only if it has

subjective knowledge of (1) a death, injury, or property damage; (2) the

governmental unit’s alleged fault that produced or contributed to the death, injury,

or property damage; and (3) the identity of the parties involved. Id.

      Failure to provide required notice deprives the trial court of jurisdiction and

requires the court to dismiss the case. See TEX. GOV’T CODE ANN. § 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 59 (stating that notice under Tort Claims Act is “a jurisdictional


                                         10
prerequisite to suit”). The initial burden is on the claimant to affirmatively

demonstrate the trial court’s subject-matter jurisdiction. Worsdale, 578 S.W.3d at

66 (citing Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)).

B.    Standard of Review

      Because notice under the Tort Claims Act is a prerequisite to subject-matter

jurisdiction, whether a governmental unit had notice of a claim is a question of law

we review de novo. Worsdale, 578 S.W.3d at 66. Where, as here, the jurisdictional

evidence is undisputed, actual notice can be determined as a matter of law. See id.

(citing Texas Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004));

Tenorio, 543 S.W.3d at 776 (“Whether a governmental unit has actual notice is a

fact question when the evidence is disputed, but it is a question of law when the

evidence is undisputed.”). Accordingly, we review de novo whether the City had

actual notice of Miller’s claims. See Worsdale, 578 S.W.3d at 66.

C.    Notice

      As stated above, the Act requires that either formal or actual notice precede

the filing of any lawsuit against a governmental unit. TEX. CIV. PRAC. & REM.

CODE ANN. § 101.101(a), (c); Worsdale, 578 S.W.3d at 62. The City argues that it

had neither.




                                        11
1.    Formal Notice

      In its first issue, the City argues that its governmental immunity is not

waived because Miller did not timely serve it with formal notice of his claims. The

record shows that Miller’s accident occurred on November 9, 2015. Because the

City has established in its charter a 90-day deadline to provide notice of a claim,

Miller was required to give the City notice of his claim no later than February 7,

2016. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a)–(b) (providing that

claimant must give notice of incident to governmental unit within six months of

incident, but governmental unit may, in its charter, provide for different notice

period); CITY OF HOUSTON CHARTER, art. IX, § 11 (establishing 90-day deadline to

provide notice to recover damages for personal injury). The City presented

affidavit testimony showing that it received no formal written notice of Miller’s

claims before it received the notice of claim letter on March 8, 2018. See Duncan,

2006 WL 181399, at *3 (holding that claimant’s letter sent outside of 90-day

deadline stated in City of Houston’s charter and City’s affidavit stating that

claimant did not provide timely notice of claim met City’s summary-judgment

burden to establish lack of notice under Tort Claims Act).

      Miller did not argue or present evidence in his response to the City’s plea to

the jurisdiction that he met the Act’s formal notice requirement. We conclude that

Miller did not meet the Act’s formal notice requirement.


                                        12
      We sustain the City’s first issue.

2.    Actual Notice

      In its second issue, the City argues that Miller failed to establish that it had

actual notice of his claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c)

(stating that Tort Claims Act’s notice requirements “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”);

Worsdale, 578 S.W.3d at 66 (stating that initial burden is on claimant to

affirmatively demonstrate trial court’s subject-matter jurisdiction).

      We agree with the City that Miller’s evidence falls short under the second

prong of the actual notice test, which requires that the City have “subjective

awareness” of its “alleged fault producing or contributing to” the injury. See

Worsdale, 578 S.W.3d at 59; see also id. at 63 (“[A]ctual notice exists only when

the governmental unit has ‘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.’”) (quoting

Cathey, 900 S.W.2d at 341). Neither the EMS report nor the work orders that

Miller attached as evidence to his response indicate that the City bore possible




                                           13
responsibility for causing Miller’s injuries.4 See Worsdale, 578 S.W.3d at 66

(considering evidence attached to response to plea to jurisdiction where claimants

failed to plead facts about actual notice).

      The emergency medical technician’s notation that Miller stated that he lost

control of his motorcycle after hitting a pothole says nothing about fault. The same

is true of the work orders, which show only that, at the time of Miller’s accident, a

water main near the area of the road where he was injured was under repair. The

work orders do not mention the pothole, Miller, or anyone having been injured.

This evidence “did not even imply, let alone expressly state, that the City was at

fault” for the accident. See City of Dall. v. Carbajal, 324 S.W.3d 537, 539 (Tex.

2010) (per curiam) (holding that police report concluding that claimant drove “into

[a] gap in [the] street [that] was not properly blocked” only described “what

apparently caused the accident” but did not say who had failed to erect or maintain

barricades, and was therefore insufficient to put city on actual notice); accord

Tenorio, 543 S.W.3d at 778 (holding that city did not have actual notice that it was

at fault in connection with collision as required by Tort Claims Act because

“nothing in the crash report, witness statements, or case report indicates, either


4
      We do not consider Miller’s argument concerning the news report that was not
      made part of the record in determining whether the City had actual notice of
      Miler’s claims. See Fryday v. Michaelski, 541 S.W.3d 345, 352 (Tex. App.—
      Houston [14th Dist.] 2017, pet. denied) (“We do not consider evidence that was
      not before the trial court at the time it made its ruling in the case.”).
                                              14
expressly or impliedly, that the [city’s police department] subjectively believed its

officers acted in error . . . such that they were in some manner responsible for the

injuries”).

       Miller argues that the City had actual notice because it “had to be aware of

the defective street condition.” But it is not enough that a governmental unit should

have known it might have been at fault. See Tenorio, 543 S.W.3 at 776 (“The

actual notice requirement is not met just because the governmental unit . . . should

have investigated an accident as a prudent person would have” or “should have

known it might have been at fault based on its investigation.”). As the Texas

Supreme Court recently explained, the proper inquiry “is not whether the City

should have made the connection between injury and responsibility as alleged, but

whether the City made the connection or had knowledge that the connection had

been made.” Worsdale, 578 S.W.3d at 66; compare Carbajal, 324 S.W.3d at 539

(holding, in suit alleging accident was caused by defective road conditions, that

police report stating that claimant’s vehicle drove into excavated road that lacked

proper barricades did not establish actual notice, because it “[did] not say who

failed to erect or maintain the barricades”), with Worsdale, 578 S.W.3d at 67

(holding, in suit involving allegations that defective road conditions caused traffic

accident,     that   evidence   of   “wide-ranging    post-accident   investigation”

demonstrating effort “among various City departments to track down whether the


                                         15
City was charged with maintaining the road and remediating the hazard”

established actual notice by showing City’s “knowledge connecting its alleged

ownership and control of the road to the road conditions identified as contributing

to” accident). Thus, even if the City should have been aware of its potential

liability, this did not relieve Miller of his duty to timely inform it of his claims. See

Worsdale, 578 S.W.3d at 63–64; Tenorio, 543 S.W.3d at 778. To hold otherwise

“would ‘eviscerate’ the purpose of requiring prompt reporting of claims, which

‘enable[s] governmental units to gather information necessary to guard against

unfounded claims, settle claims, and prepare for trial.’” Worsdale, 578 S.W.3d at

63 (quoting Cathey, 900 S.W.2d at 341); see also id. at 64 (“If a governmental unit

is not subjectively aware of its fault [as ultimately alleged], it does not have the

same incentive to gather information that the statute is designed to provide, even

when it would not be unreasonable to believe that the governmental unit was at

fault.”) (quoting Simons, 140 S.W.3d at 348).

      Accordingly, we hold that Miller has not demonstrated that the City was

subjectively aware of its fault in producing or causing his injuries such that it had

actual notice of his claims prior to the jurisdictional deadline for giving notice of

his claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c); Worsdale, 578

S.W.3d at 63. Therefore, the trial court lacked subject-matter jurisdiction over this

suit. See TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to a suit,


                                           16
including the provision of notice, are jurisdictional requirements in all suits against

a governmental entity.”).

      We sustain the City’s second issue.

                                     Conclusion

      We deny Miller’s Motion for Delivery of Documents, and we reverse the

trial court’s denial of the City’s plea to the jurisdiction and render judgment

granting the plea and dismissing Miller’s claims with prejudice. See Harris Cty. v.

Sykes, 136 S.W.3d 635, 639–40 (Tex. 2004) (holding that after governmental

entity files plea to jurisdiction and plaintiff fails, after reasonable opportunity, to

cure defective pleadings, case should be dismissed with prejudice “because a

plaintiff should not be permitted to relitigate jurisdiction once that issue has been

finally determined”).




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Goodman, and Countiss.




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