Opinion
No. 05-11-01285-CV
02-14-2012
CEDAR HILL INDEPENDENT SCHOOL DISTRICT, Appellant v. ADELA CHRISTINA SANTANA, Appellee
REVERSE and RENDER; Opinion issued February 14, 2012
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-13266
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Fillmore
Opinion By Justice Bridges
Appellant Cedar Hill Independent School District appeals the trial court's denial of its motion for summary judgment as to the claims of appellee Adela Christina Santana and the denial of its plea to the jurisdiction. In a single issue, the District alleges the trial court erred in denying its motions because appellee did not give notice of her claims against it within six months after the accident in question as mandated by section 101.101 of the civil practice and remedies code. We reverse.
Background
This suit arises out of an October 6, 2008 auto accident between Luis Santana, appellee's husband and co-plaintiff below, and a District-owned vehicle that was driven by a District employee at the time of the accident. Appellee was not involved in the accident as a passenger or bystander, but filed suit on October 5, 2010 against the District, bringing claims for loss of consortium and loss of household services.
The District filed its motion for summary judgment as to appellee's claims or, in the alternative, its plea to the jurisdiction, asserting that its immunity from suit had not been waived because appellee failed to provide the District with notice of her claims against it within the six-month period mandated by section 101.101(a) of the civil practice and remedies code and that it did not have actual notice of same. The trial court denied the District's motions.
Analysis
We first consider the trial court's denial of the District's plea to the jurisdiction. A plea to the jurisdiction can be utilized to challenge whether the plaintiff has met her burden of alleging jurisdictional facts, but it can also raise a challenge to the existence of jurisdictional facts. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). If the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties. Id. at 227. If the evidence creates a fact question regarding jurisdiction, then the trial court must deny the plea, and the fact issue will be resolved by the fact finder. Id. at 227-28. However, when the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
It is the plaintiff's burden to plead and prove a waiver of immunity from suit. See City of El Paso v. Hernandez, 16 S.W.3d 409, 414 (Tex. App.-El Paso 2000, pet. denied); Hampton v. Univ. of Tex.-M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 629 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (plaintiff must bring forth facts affirmatively showing the trial court has subject matter jurisdiction). Compliance with a notice of claim provision is mandatory and a condition precedent to the maintenance of a suit against a governmental entity. See, e.g., City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex. 1981); City of Beaumont v. Fuentez, 582 S.W.2d 221, 222 (Tex. Civ. App.-Beaumont 1979, no writ). We review the trial court's ruling on a plea to the jurisdiction de novo. Id. at 226.
In its plea to the jurisdiction, the District alleged appellee failed to give notice as required by section 101.101(a) of the civil practice and remedies code. The District further alleged it did not have actual notice of appellee's claims as provided in section 101.101(c). The District argued because appellee failed to establish compliance with the notice requirements of the civil practice and remedies code, the trial court lacked jurisdiction over appellee's claims.
Section 101.101of the civil practice and remedies code provides, in pertinent part, as follows:
(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) The damage or injury claimed;...
(2) the time and place of the incident; and
(3) the incident.
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that . . . the claimant has received some injury. . . .
Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (West 2010). The record before us includes appellee's discovery responses, attached to the District's motions, in which appellee concedes she did not provide notice, written or otherwise, to the District of her claims. The record also includes an affidavit of Michael B. McSwain, custodian of records for the District, in which he confirmed the District never received written notice of appellee's claims. He attested to the District's policy that all written notices of claims are to be forwarded to him for keeping. In addition, he testified that if the District receives oral notice of a claim, he makes a record of such notice. He further stated: "My search of the records I maintain, or that are maintained under my supervision, revealed that no written notice of claim was ever filed by, or on behalf of, Adela Christina Santana, as a result of an accident that occurred on October 6, 2008." Based on the record before us, we conclude appellee failed to provide notice as required by section 101.101(a).
Although appellee concedes she failed to provide notice of her claim to the District, she argues that such notice was unnecessary because the District had notice of her husband's claims and her claims were derivative of his claims. To support her argument, appellee cites this Court to a footnote in a recent memorandum decision, Sullivan v. Aransas County Navigation District, No. 13-10-00135- CV, 2011 WL 61846, at *6 n. 7 (Tex. App.-Corpus Christi Jan. 6, 2011, no pet.) (mem. op.). In footnote 7 of that opinion, the Corpus Christi court noted the loss of consortium claim of the husband was derivative of his spouse's personal injury. Id. (citing Rosenzweig v. Dallas Area Rapid Transit, 841 S.W.2d 897, 898 (Tex. App.-Dallas 1992, writ denied)). The footnote went on to state that "because a fact issue as to whether the District received actual notice of [wife's] injury exists, summary judgment as to [husband's] loss of consortium claim would be improper." We conclude Sullivan is distinguishable from the case before us.
This Court stated loss of companionship, mental anguish, and loss of services are derivative claims. Rosenzweig, 841 S.W.2d at 898.
In Sullivan, there was evidence that (1) the District was aware of the wife's injury, (2) the District was at fault, and (3) the District was aware of the identities of both the wife and husband since a possible representative of the District questioned them both immediately following the wife's injury. See Sullivan, 2011 WL 61846 at *6. Here, there is no evidence in the record that the District was aware of appellee or her potential claims. As noted by Michael B. McSwain in his affidavit: "Further, my search of the records revealed that the District did not have actual notice of any claim being asserted by or on behalf of Adela Christina Santana as a result of said accident before it was served with a copy of the Plaintiffs' Original Petition on October 15, 2010." The mere fact that a governmental entity had notice that an accident took place does not provide it with "actual notice" of a claim sufficient to meet the "actual notice" requirements of section 101.101(c). Putthoff v. Ancrum, 934 S.W.2d 164, 173 (Tex. App.-Fort Worth 1996, writ denied). We conclude the District did not have actual notice of appellee's claims as required by section 101.101(c).
As we have already noted, compliance with a notice of claim provision is mandatory and a condition precedent to the maintenance of a suit against a governmental entity. See, e.g., Torres, 621 S.W.2d at 591; Fuentez, 582 S.W.2d at 222. Without proof of compliance, appellee has failed to prove and plead a waiver of the District's immunity from suit. See City of El Paso, 16 S.W.3d at 414. Thus, we conclude the District's governmental immunity defeated the trial court's subject matter jurisdiction over appellee's claims. See Tex. Dept. of Trans. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). We affirm appellant's sole issue with regard to its plea to the jurisdiction.
Having affirmed appellant's issue with regard to its plea to the jurisdiction, we need not address the denial of appellant's motion for summary judgment. We reverse the decision of the trial court which denied the District's plea to the jurisdiction and render judgment dismissing appellee's claims.
DAVID L. BRIDGES
JUSTICE
111285F.P05