John LaBOVE et ux., Petitioners, v. The CITY OF GROVES, Respondent, 608 S.W.2d 162

PER CURIAM. This cause was filed by John LaBove and wife to recover damages from the City of Groves as a result of their automobile striking a manhole cover in a city street. The trial court granted City’s motion for

summary judgment because of the failure of petitioners to give the notice required by the City Ordinance. The court of civil appeals affirmed. 602 S.W.2d 395. In Roberts v. Haltom City, 543 S.W.2d 75 (Tex.1976), we held that a city may be estopped by the conduct of its officials from asserting failure of compliance with the notice of claim requirement of the city ordinance. That issue is not presented here because petitioners did not plead or otherwise raise the issue of estoppel in a written answer or response to City's motion for

summary judgment. See Rule 166-A(c), Texas Rules of Civil Procedure, as amended effective January 1, 1978; City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). The application for writ of error is refused, no reversible error.