                                   NO. 07-08-0013-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                    MARCH 31, 2009

                         ______________________________


                            LARRY HOWARD, APPELLANT

                                            v.

       MAVIS HARRELL, CATHY HARRELL, FARMERS INSURANCE GROUP,
           AUSTIN BRIDGE AND ROAD, INC., DEREK DARNELL, AND
           TEXAS DEPARTMENT OF TRANSPORTATION, APPELLEES

                       _________________________________

                FROM THE 66TH DISTRICT COURT OF HILL COUNTY;

                    NO. 44104; HON. A. LEE HARRIS, PRESIDING

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                 Memorandum Opinion


      Appellant, Larry Howard, pro se, appeals a take nothing judgment entered against

him in a negligence claim brought against appellees, Mavis and Cathy Harrell; summary

judgments granted in favor of appellees, Farmers Insurance Group, Austin Bridge and

Road, Inc., and Derek Darnell; and a dismissal based on a plea to the jurisdiction in favor

of appellee, Texas Department of Transportation. We affirm.
                                        Background


       On January 20, 2004, a two-car accident occurred in which Mavis Harrell’s vehicle

rear-ended Howard’s vehicle. The accident occurred at a point on Highway 171, near

Cleburne, Texas, where construction was being performed. As Howard approached the

construction area, he did not see the flagman, Derek Darnell,1 until he was about 15 feet

away. At about that same time, Howard noticed that vehicles were coming toward him

from the other direction, so he slammed on his brakes to avoid hitting the oncoming traffic.

The vehicle being driven by Mavis Harrell collided with the back of Howard’s vehicle.


       On January 18, 2006, Howard filed suit against the appellees to this appeal alleging

that each was negligent and that the negligent acts of each defendant was a proximate

cause of damages he sustained. After all defendants answered, Farmers Insurance Group

filed a motion for summary judgment alleging, inter alia, that it was not a proper party to the

suit because Harrell was insured by Farmers Texas County Mutual Insurance Company,

rather than Farmers Insurance Group, at the time of the accident. On April 24, 2006, the

trial court granted Farmers Insurance Group’s summary judgment. TxDOT filed a plea to

the jurisdiction and motion for summary judgment alleging, inter alia, that Howard had

failed to state a claim for which governmental immunity has been waived and had failed

to provide notice of his claim, as required by statute. Darnell, Austin, and TxDOT then filed

a no-evidence motion for summary judgment alleging that Howard could provide no



       1
         Darnell was an employee of appellee, Austin Bridge and Road, Inc. (Austin), at the
time of the accident. Austin was doing contract work for appellee, Texas Department of
Transportation (TxDOT), on Highway 171 at the time of the accident.

                                              2
evidence that any of these defendants breached a legal duty owed to Howard, any breach

of duty proximately caused the accident, or Howard sustained damages as a result of the

negligence of these defendants. On August 8, 2007, the trial court granted TxDOT’s plea

to the jurisdiction. On August 15, 2007, the trial court granted summary judgment in favor

of Darnell and Austin. Thus, by the time Howard’s suit was called for trial on September

10, 2007, the only remaining claims were Howard’s claims of negligence against Mavis and

Cathy Harrell.


       Following trial of these remaining claims, a jury found that Cathy Harrell was not

negligent, but that both Howard and Mavis Harrell were. The jury also found that Howard’s

negligence was 51 percent of the cause of the accident and that Mavis Harrell’s negligence

was 49 percent of the cause. On September 24, 2007, the trial court entered judgment on

the verdict, ordering that Howard take nothing by his claims. Howard filed a motion for new

trial, which was denied by the trial court on October 15, 2007. Howard timely filed his

notice of appeal.


       By his appeal, Howard presents 16 issues and 5 points of error. Howard’s “points“

are: (1) Mavis Harrell was negligent, (2) the trial court erred in dismissing Howard’s claims

against TxDOT on the basis of governmental immunity, (3) the trial court erred in granting

summary judgment in favor of Darnell and Austin, (4) the trial court erred in granting

summary judgment in favor of Farmers Insurance Group, and (5) the clerk’s record on

appeal is not complete.




                                             3
                                         Analysis


      We start our analysis by noting that Howard is appealing pro se. Texas courts do

not maintain separate sets of procedural rules for litigants with counsel and for litigants

representing themselves. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.

1978); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex.App.–Amarillo 2000, no pet.). Pro se

litigants are held to the same standards as licensed attorneys and must comply with

applicable laws and rules of procedure. Greenstreet v. Heiskell, 940 S.W.2d 831, 834-35

(Tex.App.–Amarillo 1997, no writ).


      As noted above, Howard presents 16 “issues” in his appellate brief. However,

Howard presents no specific argument relating to the 16 issues presented. As such, those

issues that are not otherwise raised within his five “points” are waived as inadequately

briefed. See TEX . R. APP. P. 38.1(h); Lewis v. Deaf Smith Elec. Coop., Inc., 768 S.W.2d

511, 512-13 (Tex.App.–Amarillo 1989, no writ).


1. Mavis Harrell’s Negligence


      By his first “point,” Howard contends that Mavis Harrell was negligent and that her

negligence was a proximate cause of the accident at issue in this appeal.2 The jury agreed

with Howard and found that Mavis Harrell was negligent. The jury further found that Mavis

Harrell’s negligence was a cause of the accident. However, the jury found that Howard’s

negligence was 51 percent responsible for causing the accident. Under the doctrine of


      2
       Nothing in Howard’s appellate brief challenges the jury’s finding that Cathy Harrell
was not negligent.

                                            4
proportionate responsibility, a claimant may not recover damages if his percentage of

responsibility is greater than 50 percent. TEX . CIV. PRAC . & REM . CODE ANN . § 33.001

(Vernon 2008).3 According to the judgment, it is on this basis that the trial court ordered

that Howard take nothing by his claim against Mavis Harrell.


       The majority of Howard’s argument concerning his first point argues that Mavis

Harrell was negligent and that her negligence was a proximate cause of the accident.

However, as previously noted, the jury made findings that Mavis Harrell was negligent and

that her negligence was a proximate cause of the accident. Howard’s only challenge to the

dispositive jury finding, that his negligence was 51 percent responsible for the accident, is

that “It has been held that a driver may be justified in stopping his vehicle on a road way

(sic) if he acts prudently, as where[,] under existing conditions[,] he is compelled to stop

to avoid conflict with traffic or to comply with traffic control signals[.]”4


       The jury is afforded wide latitude in allocating responsibility for an accident under

section 33.003.       N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 126

(Tex.App.–Beaumont 2001, pet. denied). Even if the evidence could support a different

percentage allocation of responsibility, an appellate court may not substitute its judgment

for that of the jury. Id. Thus, even if this Court may think that a different allocation is more




       3
        Further reference to provisions of the Texas Civil Practice and Remedies Code will
be by reference to “section ___” or “§ ___.”
       4
        We will presume that, by this argument, Howard is contending that he was not
negligent because he acted prudently in the manner in which he stopped his vehicle.

                                                5
reasonable, we will not disturb the jury findings unless we find that there is insufficient

evidence to support the findings. Id.


       In the present case, evidence was presented to the jury that, upon approaching the

construction site, Howard was distracted by the construction activities and that he was not

paying attention to the road ahead of him because he was watching bridge beams being

set. Howard testified that he did not see the flagman until his vehicle was approximately

15 feet from the flagman. The flagman testified that he was signaling for Howard to stop

his vehicle at that time. Evidence was presented to the jury that Howard stopped suddenly,

including Howard’s own testimony that he hit his brakes as hard as he could.


       We cannot conclude that this evidence establishes, as a matter of law, that Howard

acted prudently in the manner in which he stopped his vehicle in the roadway on the

occasion in question.     Further, we cannot conclude that the jury’s allocation of

responsibility is so against the great weight and preponderance of the evidence as to

require reversal. As such, we cannot say that there was insufficient evidence to support

the jury’s finding of the allocation of responsibility between the parties. Therefore, we

overrule Howard’s first point.


2. TxDOT’s Governmental Immunity


       By his second point, Howard contends that the trial court erred in dismissing his

negligence claims against TxDOT because TxDOT had actual notice of the claim and a

premises defect claim is authorized under the Texas Tort Claims Act. Howard contends

that TxDOT had actual notice of his claims because an incident report was prepared by a

                                            6
City of Cleburne Police Officer. Howard also contends that his pleadings asserted a claim

for liability for a premises defect against TxDOT.


       A governmental unit is entitled to receive notice of a claim against it no later than

six months after the day that the incident giving rise to the claim occurred. § 101.101(a).

The notice must reasonably describe the damage or injury claimed, the time and place of

the incident, and the facts of the incident. Id. However, such notice is not required if the

governmental unit has actual notice of the death of, injury to, or damage to property owned

by the claimant. See § 101.101(c).


       Howard does not contend that he gave formal notice of his claim to TxDOT and the

record includes no evidence that Howard gave formal notice of his claim to TxDOT, as

required by section 101.101(a). Rather, Howard contends that the incident report prepared

by the City of Cleburne Police Officer was sufficient to provide TxDOT with actual notice

of his claim. Howard, however, does not explain how a city police incident report could be

said to have provided actual notice of a claim to TxDOT, a state agency. Further, even if

the incident report were deemed to have provided actual notice to TxDOT, it does not

notice a death, injury to Howard, or damage to Howard’s property. The incident report, a

copy of which is contained in the record, indicates that no party to the accident was killed

or injured and further indicates that both vehicles were driven from the scene. In fact, the

report’s only indication that property damage was sustained is that the “yes” box is checked

beside the question, “In your opinion, did this accident result in at least $1,000.00 damage

to any one person’s property?” At best, this indicates that there was property damage

caused by the accident, but nothing in this statement can be said to provide TxDOT with

                                             7
actual notice that the claimant’s property had been damaged. Further, notice of injury or

property damage is insufficient to provide actual notice of a claim unless the governmental

unit also has “a subjective awareness that its fault produced or contributed to the claimed

injury [or damage].” Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 347-48 (Tex.

2004). Thus, we conclude that the trial court did not err in dismissing Howard’s claim

against TxDOT for his failure to provide the statutorily required notice.


       However, because the trial court dismissed Howard’s claims against TxDOT by

granting a plea to the jurisdiction, we must consider whether, at the applicable time,

Howard’s failure to give TxDOT notice was jurisdictional. In 2004, the Texas Supreme

Court held that a claimant’s failure to comply with section 101.101's notice requirement

does not deprive the trial court of subject matter jurisdiction and cannot be properly

asserted in a plea to the jurisdiction. See Univ. of Tex. Sw. Med. Ctr. at Dallas v.

Loutzenhiser, 140 S.W.3d 351, 364 (Tex. 2004).            This holding was subsequently

superseded by statute when the legislature amended section 311.034 of the Texas

Government Code to provide that, “Statutory prerequisites to a suit, including the provision

of notice, are jurisdictional requirements in all suits against a governmental entity.” See

TEX . GOV’T CODE ANN . § 311.034 (Vernon Supp. 2008). However, the amendment did not

become effective until September 1, 2005 and the legislature did not provide for retroactive

application.   Tex. Tech Univ. Health Scis. Ctr. v. Lucero, 234 S.W.3d 158, 165-66

(Tex.App.–El Paso 2007, pet. denied).


       In the present case, the “day that the incident giving rise to the claim occurred” was

January 20, 2004. § 101.101(a). Thus, Howard was required to give notice of his claim

                                             8
within 6 months of that date, or July 20, 2004. Because Howard’s notice was due prior to

the September 1, 2005 effective date of the amendment to Texas Government Code

section 311.034, TxDOT’s assertion of a lack of proper notice was a defense to the suit

that could have been properly asserted in a motion for summary judgment, but the lack of

notice did not deprive the trial court of subject matter jurisdiction and was an improper

basis for granting a plea to the jurisdiction. Thus, to the extent that the trial court dismissed

Howard’s claims against TxDOT on the basis of his failure to comply with section 101.101

depriving the trial court of jurisdiction, the trial court erred.


       However, in its plea to the jurisdiction, TxDOT also asserted that governmental

immunity has not been waived as to the claims asserted by Howard and that this would

justify the trial court’s granting of the plea. TxDOT contends that the trial court lacked

subject matter jurisdiction because Howard failed to plead facts that affirmatively

demonstrate the trial court’s subject matter jurisdiction. Whether a pleading alleges facts

sufficient to demonstrate the trial court’s subject matter jurisdiction is a question of law that

is reviewed de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). In reviewing the granting of a plea to the jurisdiction, we must liberally

construe the pleadings in favor of the plaintiff and take the facts pled as true. See

Westbrook v. Penley, 231 S.W.3d 389, 405 (Tex. 2007).


       In Texas, the doctrine of sovereign immunity deprives a trial court of subject matter

jurisdiction for lawsuits in which the state or certain governmental units have been sued

unless the state consents to the suit. Miranda, 133 S.W.3d at 224. It is the plaintiff’s

burden to plead and prove that governmental immunity has been waived. See Liberty Mut.

                                                9
Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.–Austin 1994, writ denied). The Texas

Tort Claims Act provides a limited waiver of governmental immunity for certain causes of

action. § 101.025. One such cause of action for which a waiver has been granted is

certain claims for premises defects. See § 101.021(2). The elements of proof for a claim

asserted under section 101.021(2) are determined by whether the condition is a premises

defect or a special defect. § 101.022. However, whether the claim is for a premises or

special defect, the plaintiff must prove that the condition of the premises created an

unreasonable risk of harm, the owner failed to exercise ordinary care to protect the

claimant from danger, and the owner’s failure was a proximate cause of injury to the

claimant. See Wharton County v. Genzer, No. 13-06-078-CV, 2007 Tex.App. LEXIS 9873,

at *9 (Tex.App.–Corpus Christi 2007, no pet.) (memo. op.) (citing State Dep’t of Highways

& Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992)).


       In the present case, Howard pled that TxDOT is liable for a premises defect

because it failed to properly post warning signs about the roadwork and supervise Austin

and Darnell in the performance of their duty to warn motorists of the roadway obstruction.

Howard contends that the construction area constituted an unreasonably dangerous

condition for which TxDOT owed a duty to use reasonable care, caution, and prudence in

warning motorists of the danger. Howard also contends that TxDOT’s breach of this duty

was the proximate cause of his physical injuries and property damage sustained as a result

of the accident.


       Nothing in Howard’s pleading identifies facts that would, if taken as true, subject

TxDOT, a governmental agency, to suit. Each of Howard’s allegations relating to TxDOT

                                           10
are legal conclusions unsupported by facts which would allow this Court or the trial court

to assess whether the premises created an unreasonable risk of harm, TxDOT failed to

exercise ordinary care to protect Howard from danger, and TxDOT’s failure to exercise

reasonable care was a proximate cause of Howard’s injuries.5 Thus, we conclude that

Howard has failed to “allege facts that affirmatively demonstrate the court’s jurisdiction to

hear the cause.” Miranda, 133 S.W.3d at 226. Accordingly, we conclude that the trial

court did not err in dismissing Howard’s claims against TxDOT for want of jurisdiction. As

such, we overrule Howard’s second point.


3. Austin’s Negligence


       By his third point, Howard contends that the trial court erred in granting summary

judgment in favor of Austin.6 Austin’s motion for summary judgment contended that there

was no evidence that Austin breached a duty of care, Austin was a proximate cause of the

accident, and Howard sustained damages as a result of any act or omission of Austin.


       After adequate time for discovery, a party may move for a summary judgment as to

all or any part of a lawsuit on the basis that there is no evidence of one or more essential


       5
         Our holding on this point is limited to a review of the pleadings and jurisdictional
evidence before this Court. Our opinion is not intended to imply that pleadings must
identify every factual detail relating to a claim. However, in a suit against a governmental
agency, the pleadings must plead facts that, if taken as true, would enable the trial court
to determine that the claimant has stated a claim for which immunity has been waived.
See Miranda, 133 S.W.3d at 226.
       6
        While Howard mentions Darnell as an employee of Austin in his argument of this
point, Howard does not challenge, either generally or specifically, the trial court’s grant of
summary judgment in favor of Darnell. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119,
120 (Tex. 1970).

                                             11
elements of a claim or defense on which an adverse party would have the burden of proof

at trial. TEX . R. CIV. P. 166a(i). A no-evidence summary judgment is essentially a pretrial

directed verdict and we apply the same legal sufficiency standard in reviewing a no-

evidence summary judgment as we apply in reviewing a directed verdict. See Roth v. FFP

Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.–Amarillo 1999, pet. denied). We

review the evidence in the light most favorable to the respondent against whom the no-

evidence summary judgment was rendered, disregarding all contrary evidence and

inferences. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997);

Roth, 994 S.W.2d at 195. A no-evidence summary judgment is improperly granted if the

non-movant presents more than a scintilla of probative evidence to raise a genuine issue

of material fact as to the element on which the motion is based. Id. More than a scintilla

of evidence exists when such evidence rises to a level that would enable reasonable and

fair-minded persons to differ in their conclusions. Id. Less than a scintilla of evidence

exists to support a fact when the evidence is so weak as to do no more than create a mere

surmise or suspicion of the fact. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983).


         In the present case, the only evidence admitted prior to the trial court’s ruling on

Austin’s motion was the City of Cleburne Police accident report. Nothing in this document

establishes that Austin owed Howard a duty, Austin breached this duty, Howard sustained

injuries or property damage, or Austin’s negligence caused any damages suffered by

Howard. In fact, the accident report makes no reference to Austin. In response to Austin’s

motion for summary judgment, Howard filed a “motion to quash” defendants’ summary


                                              12
judgment. In this motion to quash, Howard repeatedly cites a transcript of a deposition of

Darnell. However, the deposition transcript cited by Howard is not part of the appellate

record and does not appear to have been filed with the trial court before it ruled on the

summary judgment motion.


       Because there was no evidence presented to the trial court, after adequate time for

discovery, that Austin breached a duty of care, Austin was a proximate cause of the

accident, and Howard sustained damages as a result of any act or omission of Austin, we

affirm the trial court’s grant of summary judgment in favor of Austin and overrule Howard’s

third point.


4. Farmers Insurance Group’s Negligence


       By his fourth point, Howard appears to contend that the trial court erred in granting

summary judgment in favor of Farmers Insurance Group. This point, however, fails to cite

any authority nor provide any substantive discussion of how the trial court erred.7 As a

result, we deem this point to have been waived. See Knie v. Piskun, 23 S.W.3d 455, 460

(Tex.App.–Amarillo 2000, pet. denied); Lewis, 768 S.W.2d at 512-13.


5. Completeness of Clerk’s Record


       By his fifth point, Howard contends that the clerk’s record was not filed, is missing,

or the judge is hiding it. Howard contends that he has filed three requests for files to be

       7
       The entire argument for this point is “Summary judgment of Farmers Insurance
Group’s. The Medicare secondary payer provisions of statute, 42 CER 11395Y(B) (2) can
reasonably be expected to be made — under no-fault insurance.”

                                             13
sent to this Court. However, the clerk’s record in this case was filed on January 9, 2008.

Further, a supplemental clerk’s record was filed on June 6, 2008. Because the appellate

record includes what appears to be a complete clerk’s record and because Howard has not

specified the nature of his complaint regarding the clerk’s record, we overrule Howard’s

fifth point.


                                         Conclusion


        Having found no error in the trial court’s rulings in this cause, we affirm the trial

court’s judgment.




                                    Mackey K. Hancock
                                         Justice




                                             14
