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City of San Antonio v. Cervantes

Court of Appeals of Texas, Fourth District, San Antonio

February 22, 2017

CITY OF SAN ANTONIO, Appellant
v.
Charles CERVANTES, Appellee

         From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-03566 Honorable Laura Salinas, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice.

          OPINION

          LUZ ELENA D. CHAPA, JUSTICE.

         The City of San Antonio appeals the trial court's order denying its plea to the jurisdiction in a suit for personal injuries arising from an accident involving a City automobile. The City contends it is immune from the suit because appellee, Charles Cervantes, failed to give formal notice of his claim within six months of the accident, and the City did not have actual notice that Cervantes received some injury. We agree with the City and therefore reverse the trial court's order and render judgment dismissing Cervantes's suit for lack of subject matter jurisdiction.

         Background

         Cervantes filed suit against the City on March 2, 2015, seeking damages for personal injuries alleged to have been suffered in an automobile accident that occurred on March 5, 2013. The petition alleged that at the time of the accident, Cervantes worked for the Bexar County Sheriff's Office and was on duty and driving a county-owned vehicle in a private parking lot owned by the City. Cervantes alleged a City of San Antonio police officer, driving a city-owned vehicle, failed to yield the right of way and struck the car Cervantes was driving. Cervantes sued the City for the personal injuries allegedly caused by the police officer's negligence. The petition asserted the City had both formal and actual notice of the claim, as required by section 101.101 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (West 2011).

         The City filed a plea to the jurisdiction, asserting its governmental immunity from suit had not been waived because Cervantes failed to give the formal notice required by section 101.101(a) of the Texas Civil Practice and Remedies Code and the City did not have actual notice Cervantes was injured. The trial court held a nonevidentiary hearing, and the issue was submitted to the trial court on the evidence attached to the plea and Cervantes's response. The trial court denied the plea, and the City filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016).

         Waiver of Right to Appeal

         As a preliminary matter, we must address Cervantes's contention that the City consented to the trial court's order because its attorney signed the order beneath the notation "Approved as to form and substance." Cervantes contends the City thus agreed the plea to the jurisdiction was correctly denied and waived its right to appeal the order.

         A party generally may not attack a judgment to which it has agreed. Oryx Energy Co. v. Union Nat'l Bank of Tex., 895 S.W.2d 409, 416 (Tex. App.-San Antonio 1995, writ denied). However, "[t]he phrase 'Approved as to Form and Substance', standing alone, is insufficient to establish a consent judgment." Id.; Baw v. Baw, 949 S.W.2d 764, 766-67 (Tex. App.-Dallas 1997, no pet.). In the absence of some indication in the record the case was settled or something in the body of the judgment indicating it was rendered by consent, that phrase above a signature on the form of judgment "is too indefinite to justify declaring as a matter of law that the judgment was a consent judgment" and that the right of appeal has been voluntarily relinquished. First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex. App.-Corpus Christi 1992, writ denied); see Andrew Shebay & Co. v. Bishop, 429 S.W.3d 644, 647-48 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (holding where record plainly indicated party disagreed with verdict and record contained no evidence of actual agreement between parties, party's submission of proposed judgment conforming to trial court's intended judgment and containing notation that party approved it as to both form and substance did not create consent judgment).

         Here, the trial court's order was signed eleven days after a contested hearing on the City's plea to the jurisdiction. Nothing in the record or the body of the order suggests the City agreed it had received the statutorily required notice of Cervantes's claim or that it would forego its plea to the jurisdiction. Nevertheless, Cervantes contends that a series of emails attached as exhibits to his brief show substantive consent to the trial court's denial of the plea. In the emails between counsel, an attorney for the City requested that a clause in Cervantes's proposed order stating that the City's "plea is not well-taken" be removed from the order, but otherwise approved the order. The City's attorney did not agree that the plea to the jurisdiction was correctly denied. In fact, the email communications clearly reflect all counsel understood the City was taking an interlocutory appeal from the order.

         It is evident from the record the trial court's order was not rendered by consent. We decline to unnecessarily elevate form over substance based on the inclusion or omission of "magic words." See Oryx Energy, 895 S.W.2d at 416. The City did not consent to the order and did not waive its right to appeal it.

         Failure to Disclose

         Cervantes also asserts the City failed to adequately disclose "lack of notice" as a basis for its claim of immunity, in violation of Texas Rule of Civil Procedure 194.2(c), and argues we should therefore affirm the trial court's ruling. See Tex. R. Civ. P. 194.2(c). Cervantes refers to the City's original disclosures, in which it generally asserted it was relying on "the governmental defenses and immunities to which it is entitled." However, six months before filing the plea to the jurisdiction, the City amended its answer to plead Cervantes failed to give notice of his claim for personal injuries as required by section 101.101 of the Texas Civil Practice and Remedies Code. The City also specifically denied "that it had actual notice of [Cervantes's] claims that he sustained damages for personal injuries in the accident in question." And two months before the plea to the jurisdiction was filed, the City served amended disclosures, stating its contention that immunity had not been waived because Cervantes failed to give notice of his personal injury claim and the ...


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