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La Joya Independent School District v. Gonzalez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 2, 2017

LA JOYA INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
TANYA GONZALEZ, INDIVIDUALLY AND A/N/F of JOSUE ROGELIO URANGA, DECEASED MINOR, Appellees.

         On appeal from the 430th District Court of Hidalgo County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          OPINION

          DORI CONTRERAS JUSTICE

         This is an appeal from the trial court's denial of a plea to the jurisdiction filed by appellant La Joya Independent School District (the District). Appellee Tanya Gonzalez, individually and as next friend of Josue Rogelio Uranga, a deceased minor, sued the District after an accident that resulted in Uranga's death. By three issues, the District contends the trial court erred in denying its plea to the jurisdiction because: (1) it did not receive timely notice of the claim as required by the Texas Tort Claims Act (TTCA); (2) there was no operation or use of a motor vehicle and therefore no waiver of immunity under the TTCA; and (3) there was no causal nexus between any alleged operation or use of a motor vehicle and Uranga's death. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .101 (West, Westlaw through 2017 1st C.S.). We affirm.

         I. Background

         Gonzalez alleged the following in her live petition. On October 23, 2012, a District school bus driven by District employee Salvador Rodriguez Jr. stopped at a designated bus stop at the intersection of Santos Ramirez Street and U.S. Expressway 83 in La Joya, Texas. Uranga, a 13-year-old student who was usually picked up at that location, was not at the bus stop, and the bus departed. Rodriguez turned the bus into the crossover between the expressway's main lanes, but when he saw Uranga approaching the bus stop on foot, Rodriguez stopped the bus and activated its flashing warning lights. Gonzalez claims the bus's flashing warning lights signaled to Uranga that it was safe to cross the expressway. As Uranga crossed the expressway, he was struck by a vehicle driven by Jaime Venecia; Uranga died at the scene. Gonzalez sued Venecia and the District. As to the District, Gonzalez alleged that Rodriguez, while in the course and scope of his employment, acted negligently by failing to follow protocols and procedures for the safe loading of students "by creating a non-designated bus stop" and activating the bus's flashing lights. Gonzalez alleged that Uranga's death was proximately caused by Rodriguez's wrongful acts and omissions, and that the District was vicariously liable.

         The District filed a plea to the jurisdiction arguing that it was immune to suit as a governmental entity and that its immunity was not waived by the TTCA because: (1) the accident did not arise out of the operation or use of a motor vehicle; and (2) Gonzalez failed to provide the District with notice as required under the statute. See id. § 101.101. The District attached no evidence in support of its plea. In response, Gonzalez argued that Rodriguez's actions of driving the bus into the crossover, stopping it there, and activating its flashing warning lights were affirmative acts involving the operation or use of a vehicle, and the District's immunity was therefore waived. See id. § 101.021. Further, although Gonzalez conceded that no written notice had been provided to the District, she asserted that the District had actual notice of her claim.

         Following two hearings, the trial court denied the District's plea to the jurisdiction. This accelerated interlocutory appeal followed. See id. § 51.014(a)(8) (West, Westlaw through 2017 1st C.S.) (allowing a governmental unit to immediately appeal an interlocutory order denying a plea to the jurisdiction).

         After the parties filed their initial briefs, we noted that the jurisdictional evidence before the trial court included a video recording containing conversations in Spanish, but that the recording was not part of the appellate record. Therefore, we abated the appeal and remanded for supplementation of the appellate record with a transcription and translation of the recording. The supplemental record was filed with this Court on August 3, 2017, the parties filed supplemental briefs, and we reinstated the appeal.

         II. Discussion

         A. Standard of Review

         A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's subject matter jurisdiction. Id.; see Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

         The plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.-Fort Worth 2003, pet. denied). Whether a trial court has subject matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court's subject matter jurisdiction are questions of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226, 228.

         When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, even when the evidence implicates the merits of the cause of action. Id. at 227; Blue, 34 S.W.3d at 555; see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). If the 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. Miranda, 133 S.W.3d at 228. But if the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. In considering the evidence, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id.

         A defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). In other words, a defendant may not advance a "no-evidence" plea to the jurisdiction. See id.; cf. Tex.R.Civ.P. 166a(i) (allowing for no-evidence motion for summary judgment).

         B. Applicable Law

         The doctrine of sovereign immunity provides that "no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent." Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State such as school districts. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

         The TTCA waives governmental immunity for, among other things, claims of "property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment" if "the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). The TTCA also includes a notice provision which must be complied with in order for jurisdiction to be properly invoked. See id. § 101.101; Tex. Gov't Code Ann. § 311.034 (West, Westlaw through 2017 1st C.S.) ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.").

         C. Actual Notice

         The District contends by its first issue that the trial court erred in denying its plea to the jurisdiction because it was not provided with notice of Gonzalez's claim.

         Under the TTCA, a governmental entity "is entitled to receive notice of a [TTCA] claim against it . . . not later than six months after the day that the incident giving rise to the claim occurred." Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a). The notice must "reasonably describe . . . (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." Id. But this formal notice requirement "do[es] 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 Texas Supreme Court held in Cathey v. Booth that "actual notice" in this context means that the governmental unit has "knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved." 900 S.W.2d 339, 341 (Tex. 1995); see Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548-59 (Tex. 2010).[1] To satisfy the second requirement for actual notice, a governmental unit must have "knowledge that amounts to the same notice to which it is entitled by section 101.101(a), " which "includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury." Tex. Dep't of Crim. Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004). "Fault, as it pertains to actual notice, is not synonymous with liability; rather it implies responsibility for the injury claimed." Estate of Arancibia, 324 S.W.3d at 550. Although actual notice is a fact question when evidence is disputed, in some instances, actual notice can be determined as a matter of law. See Simons, 140 S.W.3d at 348.

         "Actual notice may be imputed to the governmental entity by an agent or representative who receives notice of the Cathey elements and who is charged with a duty to investigate the facts and report them to a person of sufficient authority." Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen, 431 S.W.3d 750, 755 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 339-40 (Tex. App.-San Antonio 2010, no pet.)). That is, actual notice "is not limited to only a particular government official or employee, such as a director of risk management." McQueen, 431 S.W.3d at 755 (citations omitted).

         1. Pleadings and Evidence

         In her live petition, Gonzalez alleged that the District "had actual notice of [her] claim . . . in that the District was aware of [Uranga]'s death, the time and place of his death, the facts surrounding the incident, [and] that their fault contributed to [Uranga]'s death, such that written notice would not be required." Gonzalez specifically asserted that the District was "notified of an auto pedestrian accident involving a [District] student and appeared at the scene the morning of the incident and conducted their own investigation through its Police Department and assisted the other authorities" and that, "[t]hrough [the District]'s Police Department's investigation and assistance, [the District] had knowledge of all the details surrounding the incident, including the death of its student [Uranga], the parties involved, as well as knowledge that [the District] was subjectively aware of its fault that contributed to the accident . . . ." Gonzalez further asserted that the District's "subjective awareness of fault occurred when" Rodriguez underwent a mandatory post-accident drug test the day of the accident, was suspended without pay that same day, and later resigned; and she contended that drug testing and suspension without pay is required under District policies only when there is a preponderance of evidence that a District-owned vehicle contributed to an accident.

         Gonzalez asserted the same arguments in her response to the District's plea to the jurisdiction. Her response was accompanied by evidence including two incident reports regarding the accident-one prepared by a La Joya Police Department officer and a second report prepared by two District police officers-neither of which attributes fault to Rodriguez.

         Gonzalez also attached a copy of a District employee handbook dated 2013 which included a section regarding "Accidents Involving District-Owned Vehicles." That section states in relevant part as follows:

All accidents involving District-owned vehicles occurring within the District's boundaries will be investigated by the District police department. All accidents involving District-owned vehicles outside the District's boundaries will be reported to proper law enforcement for investigation.
Drug testing for the driver of a District-owned vehicle is mandated if there is a preponderance of the evidence that the District-owned vehicle contributed to the accident. Drug testing for the driver of a District-owned vehicle will not be mandated if there is a preponderance of the evidence that the District-owned vehicle did not contribute to the accident. (Preponderance of the evidence will be assessed by the employee's immediate supervisor after speaking to the law enforcement officer investigating the accident). Drug testing is mandated if it is unclear if the driver of a District-owned vehicle ...

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