Michael Ganey and Joanne Ganey v. Guadalupe Valley Hospital Foundation, Inc. and Two "Jane Doe" Nurses--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-04-00192-CV
Michael GANEY and Joanne Ganey,
Appellants
v.

GUADALUPE VALLEY HOSPITAL FOUNDATION, INC.

and Two "Jane Doe" Nurses,

Appellees
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 04-0235-CV
Honorable Dwight Peschel, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 30, 2004

REVERSED AND REMANDED

This is an appeal from an order dismissing Michael Ganey and Joanne Ganey's suit against the Guadalupe Valley Hospital. The Ganeys bring two issues on appeal: (1) the trial court erred in granting the hospital's motion to dismiss; and (2) the trial court erred in denying the Ganeys' oral motion for continuance. We reverse and remand.

Discussion

The hospital filed a motion to dismiss on the ground that the Ganeys failed to give notice to the hospital pursuant to section 101.101 of the Texas Civil Practice & Remedies Code. That section provides that a governmental unit (1) is entitled to notice of a claim against it not later than six months after the incident giving rise to the claim occurred. Tex. Civ. Prac. & Rem. Code Ann. 101.101(a) (Vernon 1997). This notice requirement, however, does 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." Id. 101.101(c).

The Ganeys concede that they did not give the hospital written notice of the claim, but contend that the hospital had actual notice of the injury. The hospital argues, however, that the Ganeys pleadings were not sufficient to allege that actual notice was timely given to the hospital. The hospital states in its brief that its motion to dismiss was properly construed by the trial court as a plea to the jurisdiction. In fact, both the Ganeys and the hospital briefed this appeal as if the trial court's dismissal was a dismissal for lack of subject-matter jurisdiction. Both the Ganeys and the hospital focused their arguments on whether the Ganeys properly pled actual notice, believing that the answer to this question would determine whether the trial court had subject-matter jurisdiction. We cannot, however, consider this as a jurisdictional issue on appeal.

The Texas Tort Claims Act's six-month notice requirement is not jurisdictional, but rather is an affirmative defense. Univ. of Tex. S.W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 362 (Tex. 2004); Martinez v. Val Verde County Hosp. Dist., 110 S.W.3d 480, 484-85 (Tex. App.--San Antonio 2003), aff'd, 140 S.W.3d 370 (Tex. 2004). As such, the issue should not be raised in a plea to the jurisdiction; rather, summary judgment is the appropriate procedural vehicle. Martinez, 110 S.W.3d at 485.

Thus, the trial court erred in granting the hospital's motion to dismiss. We need not reach the Ganeys' second issue regarding the denial of their oral motion for continuance. We reverse the trial court's order granting the hospital's motion to dismiss and remand the cause to the trial court for proceedings consistent with this memorandum opinion.

Karen Angelini, Justice

1. It is undisputed that Guadalupe Valley Hospital is a government unit entitled to notice under section 101.101.