Court of Appeals of Texas, Fourth District, San Antonio
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-CI-03566 Honorable Laura Salinas, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice, Luz Elena D. Chapa, Justice.
ELENA D. CHAPA, JUSTICE.
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.
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).
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).
of Right to Appeal
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.
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).
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
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.
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 ...