Has anyone sought mandamus after a trial court's refusal to dismiss for a plaintiff's non-compliance with local gov't code �89.0041 (post-filing notice)?

I've had one case dismissed pursuant to this statute, and it's stuck in the 13th COA. The next judge I'll be making the argument before may not be as receptive. Thanks.

But we have filed several interlocutory appeals in the Dallas court of appeals on the issue.

Except in two cases, the trial courts here have denied the motions to dismiss under 89.0041 on the grounds that they apply only to contractual claims. We have argued that the plain language of the statute is not as limited as that and that it applies to all cases, even Tort Claims Act cases. Combining 89.0041 with Government Code 311.034, which states that failure to give notice is jurisdictional, we have filed our motions to dismiss as alternate pleas to the jurisdiction.

Email me at tsellars@dallascounty.org and I will send you some of the briefs we have filed. I have oral argument set for next week on one of these cases; Grant Brenna of our office did one a couple of weeks ago, and Greg Long here also has another 89.0041 case winding its way up on appeal.

[This message was edited by Todd Sellars on 02-21-07 at .]

Some questions: On what was your motion to dismiss based? And what was your evidence proving 89.0041 wasn't satisfied? Did the court just not like the statute (which we've run into when the suit was filed near the end of limitations)? Did the court think it didn't apply (ie., to a tort case even though the statute on its face makes it apply to all cases)?

Some thoughts... If you took the position that it was jurisdictional then you may take it up on interlocutory appeal pursuant to CPRC 51.014. For that matter, you can take the jurisdictional argument to the COA whether or not you took it up with the trial court. We've been aggressively using 89.0041 alleging it is jurisdictional because of the recently amended 311.034 of the Govt Code. I suspect that ultimately a COA, the SCT, or the legislature will tell us its not jurisdictional simply because 89.0041 is too big a hammer. But until that time we've chosen to allege it. However, we alternatively argue that the court can dismiss without prejudice based on the statute's authority alone. Your risk is that the COA decides its not jurisdictional and affirms the court without going into the court's reasoning.

But without looking at it in great detail, I would suspect that mandamus would be tough. In reviewing the trial court a COA cannot substitute its judgment for the trial court's when it come to fact issues. Without knowing more of your case I'd suggest an interlocutory appeal if you can make it fit 51.014, or as a grounds for appeal after a final judgment.

By the way, what's the citation for your COA decision on 89.0041?

EDIT: Little did I know that Todd was answering at the same time I was.

The causes of action are salient from a jurisdictional standpoint because of the occasionally-invoked rule CoAs like to use that, if there's jurisdiction over just one of the claims, there's jurisdiction over the lawsuit. I say that because the only clear-cut case we've had where there was neither pre-suit nor post-filing notice carried a section 1983 claim, which the big Supremes have said is not subject to state law notice provisions. (For all arm-chair lawyers out there, there's a background story about why I didn't immediately remove. It's a sad tale best told over something in which I can drown my sorrows.)

Armstrong County and the Amarillo court of appeals get it.

Yesterday, this opinion came out:

http://www.7thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=11824

Whoever handled this for Armstrong County did a great job.

I wonder how long it will take for the plaintiff's bar to wise up and start sending out these notices? And how much longer will it be before the Legislature takes away this manna from heaven?

Please restrain all comments about the Legislature until sine die.

Armstrong 1-0. Nueces 1-0, but rehearing is pending. Bexar 0-1, don't know current status
Dallas--well, all we can say is that they continue the valiant fight against all odds up there. Does anyone else have a pending 89.0041 case in a court of appeals? If so please let me know the court and case #. Thanks.

Chris Ponder is handling this one.

http://www.2ndcoa.courts.state.tx.us/opinions/case.asp?FilingID=21594

Good result on an 89.0041 case from the Jefferson County District Attorney's office. The 9th Court of Appeals held that section 1983 does not preempt section 89.0041. Roccaforte v. Jefferson County, 2009 Tex. App. LEXIS 1613.