Fadumo Osman, Individually and as Personal Representative of the Estate of Yasmin Abdillahi, Ahmed Abdillahi Ahmed, and Anab Ahmed v. City of Fort Worth and Dallas/Fort Worth International Airport Board ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00117-CV
___________________________
FADUMO OSMAN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF YASMIN ABDILLAHI, DECEASED; AHMED ABDILLAHI
AHMED; AND ANAB AHMED, Appellants
V.
CITY OF FORT WORTH AND DALLAS/FORT WORTH INTERNATIONAL
AIRPORT BOARD, Appellees
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-317281-20
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
This is an interlocutory appeal from trial court orders granting two pleas to the
jurisdiction—one in favor of Appellee City of Fort Worth, and the other in favor of
Appellee Dallas/Fort Worth International Airport Board (together, the Governmental
Entities). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). The underlying case
involves the tragic death of 20-year-old Yasmin Abdillahi, who was struck by a train in
a right-of-way owned by the City after allegedly crossing adjacent property owned by
the Airport Board. Appellants, who are members of Abdillahi’s family (collectively,
the Family Members), sued the Governmental Entities and alleged that the Texas Tort
Claims Act waived the Governmental Entities’ sovereign immunity. But the
Governmental Entities argued that they were not given the presuit notice required by
the Act, thereby depriving the trial court of subject matter jurisdiction. When the
Governmental Entities filed pleas to the jurisdiction on this basis, the Family
Members initially moved for continuance to allow additional time for discovery,
although they subsequently told the trial court that they were “fine” to proceed with
the pleas after all. The trial court denied the continuance and granted the
Governmental Entities’ pleas.
On appeal, the Family Members argue that the trial court’s refusal to allow
additional discovery was an abuse of discretion and that the trial court erred by
granting the Governmental Entities’ pleas because the Family Members raised a
2
genuine issue of material fact regarding the Governmental Entities’ actual, presuit
notice.
Even assuming that the Family Members did not waive their motions for
continuance, they failed to explain the nature and materiality of the yet-to-be-
discovered information they sought. And when the trial court proceeded with the
pleas, the Family Members failed to produce evidence that raised a fact issue on each
of the three required elements of presuit notice. Instead, the Family Members
disputed the legal standard for such presuit notice. Because the trial court did not
abuse its discretion by denying the Family Members’ continuance and did not err by
granting the Governmental Entities’ pleas, we affirm.
I. Background
On June 8, 2018, while in the throes of a mental health incident, Abdillahi fled
the apartment she was visiting, passed through holes in a fence that separated the
apartment complex from nearby railroad tracks, and ran into the path of an oncoming
train.
A. The Family Members’ Lawsuit
In June 2020, the Family Members (individually and on behalf of Abdillahi’s
estate) filed suit against the City and the Airport Board, among others. The Family
Members asserted numerous causes of action against the Governmental Entities,
generally claiming that they failed to restrict, limit, or prevent pedestrian access to the
railroad right-of-way.
3
Nearly a year later, in April 2021, the Governmental Entities filed pleas to the
jurisdiction based on the Texas Tort Claims Act’s notice requirement. See id.§ 101.101. The Governmental Entities alleged that they did not receive formal, or
have actual, presuit notice of the Family Members’ claims. Their pleas were
supported with affidavits from their relevant employees who averred that no presuit
notices were received.
Conceding that they had not provided formal notice, the Family Members
argued that the Governmental Entities had actual notice, relying on incident and call
reports from the Fort Worth Police Department, as well as reports from the Tarrant
County Medical Examiner’s Office—documents that the Family Members claimed
showed imputed, actual knowledge of Abdillahi’s death.1 See id. § 101.101(c). The
Family Members also pointed out that there were three months left in the agreed-
upon discovery period, and they filed verified motions for continuance, arguing that
1
The Fort Worth Police Department initially responded to the incident as a
domestic disturbance after receiving calls that Abdillahi was running and screaming in
the apartment complex due to mental illness. By the time the police arrived at the
location, Abdillahi had been hit by the train. The Medical Examiner’s Office later
arrived to take custody of the body.
In addition to filing the police and medical examiner reports, the Family
Members also attached incident, track inspection, and equipment inspection reports
from Herzog Transit Services, Inc., another named defendant in the underlying
litigation. Neither party has alleged that the Herzog reports are relevant to the
Governmental Entities’ actual notice of their alleged fault in producing or
contributing to Abdillahi’s death.
4
they should be permitted to conduct additional discovery—specifically, to depose the
Governmental Entities’ corporate representatives—before the trial court resolved the
jurisdictional issues. See Tex. R. Civ. P. 251. But the Family Members’ motions did
not specify what they expected the corporate representatives to say in their
depositions that would be material to the jurisdictional issues raised in the
Governmental Entities’ pleas.2
B. Hearing on the Family Members’ Motions for Continuance
Soon thereafter, the trial court held a hearing on the Family Members’ motions
for continuance.3 At the hearing, the trial court repeatedly asked the Family Members
what notice-related evidence they sought to discover by deposing the Governmental
Entities’ corporate representatives. Initially, the Family Members argued that they
needed to depose the corporate representatives because the Governmental Entities’
2
The Family Members attached to their motions copies of e-mail and letter
exchanges between the parties’ counsel regarding the corporate depositions and the
deposition topics. The noticed deposition topics included “[w]hen and how [the City
or Airport Board] became aware of the incident made the basis of this lawsuit,” “[i]f
[the City or Airport Board] conducted any investigation regarding the incident,” and
“[c]ommunication pertaining to the incident or the property with any other current or
former defendant.”
3
The hearing encompassed not only the Family Members’ two continuance
motions, but also a third motion in which the Family Members sought a continuance
of another defendant’s motion for summary judgment. The trial court granted the
Family Members’ motion for a continuance of the summary judgment motion to
allow additional time for discovery but denied a continuance of the pleas.
5
pleas relied on affidavits from corporate employees4 and because the pleas raised
issues “directly [related] to the merits of plaintiffs’ claims.” 5 But when the
Governmental Entities clarified that their pleas were just “based on the lack of
statutory notice,” the trial court asked the Family Members to clarify why, if the issue
raised in the pleas was “just that [the Family Members] didn’t send [their] statutory
notice, why would [they] need to take somebody’s depo on that?” The Family
Members offered no explanation.
Rather, they shifted their argument by claiming that the notice issue was not
jurisdictional, that it had to be raised in a motion for summary judgment instead of a
plea to the jurisdiction, and that the Family Members were entitled to take their time
in discovery and “figure out down the road” whether any discovered evidence was
relevant to the actual-notice issue.6 The Governmental Entities disagreed that notice
4
It is unclear from the record whether the Governmental Entities’ anticipated
corporate representatives were the same employees who executed the affidavits
supporting the Governmental Entities’ pleas. The Family Members’ continuance
motions indicated that the Governmental Entities had not identified their corporate
representatives, and at the continuance hearing, the Family Members did not clarify
the relationship between the affiants and the Governmental Entities’ anticipated
corporate representatives.
5
The Family Members acknowledged, though, that “when you’re talking about
a plea and subject-matter jurisdiction, yeah, normally, you wouldn’t need a deposition,
you wouldn’t need an extensive discovery in order to address those issues
specifically.”
6
The Family Members’ counsel argued:
6
was a nonjurisdictional issue; they argued that the notice requirement was a statutory
prerequisite to filing suit and to subject matter jurisdiction. The Family Members’
counsel then summarized the dispute by characterizing it as a question of law for the
trial court to decide: “You know, Your Honor, . . . what plaintiffs have been able to
gather with respect to how notice -- the notice requirement is supposed to be
evaluated by the court, we have conflicting case law.”
The trial court—recognizing that the Family Members’ characterization of the
issue as a question of law contradicted their motions for continuance based on the
need for factual discovery—commented that, “if it’s just case law that we’re going
Well, Your Honor, . . . . quite frankly, the notice argument under a plea
to the jurisdiction is an improper . . . avenue for bringing up that -- that
issue.
The notice requirement is with respect to immunity [from]
liability. That is not something that should be brought up under a plea
to the jurisdiction. A proper avenue for bringing up that issue is under a
motion for summary judgment. So if [each Governmental Entity’s] plea
includes -- if it’s just on notice, then that’s completely improper and has
to be done through a motion for summary judgment and it will fail.
So if you’re asking me why I need depositions in order to talk
about immunity from liability, that’s something that I’ll figure out down
the road and use my time in -- with discovery, which I have until July
19th, in order to be able to do that.
On appeal, the Family Members do not reassert their argument that the notice
requirement is a liability issue rather than a jurisdictional issue. Cf. Worsdale v. City of
Killeen, 578 S.W.3d 57, 77 (Tex. 2019) (recognizing that “[t]he Tort Claims Act’s notice
requirement is a jurisdictional prerequisite, not a shield against liability”).
7
over on that, then I would think [the Family Members] could go ahead and
do . . . those two [notice-based pleas] tomorrow” without a continuance. The trial
court indicated, though, that it would grant a continuance if the pleas involved issues
other than notice. In response, the Governmental Entities waived their alternative
arguments to allow the notice-based pleas to proceed, and after confirming this
waiver, the Family Members agreed that they were indeed “fine” to proceed on the
notice-based pleas without a continuance:
[Family Members’ counsel]: [C]an I be -- just make sure I’m clear on
this? DFW Airport Board and City of Fort Worth are claiming that their
pleas to the jurisdiction . . . are only with respect to notice, the notice
requirement under the Texas --
....
[Governmental Entities’ counsel]: It is based on the lack of notice.
DFW’s plea to the jurisdiction does contain in the alternative arguments
[regarding] waiver of immunity.
....
[But] I’m willing to waive the alternative argument.
....
[Court]: [S]o tomorrow we’re going to move forward with the plea[s] to
the jurisdiction just for the City of Fort Worth and the DFW Airport
Board.
....
[Family Members’ counsel]: Okay. All right. And then as long as that’s
on the record that they’re waiving their other arguments, I’m fine with that.
8
[Emphasis added.] At the conclusion of this hearing—after the Family Members had
conceded on the record that they did not need a continuance of the notice-based
pleas—the trial court denied the motions for continuance. But in doing so, the court
expressly warned that, “if [the Governmental Entities] come in and . . . start trying to
talk about [another, non-notice-related] argument in the [plea] hearing, I’m going to
grant the continuance.”
C. The Hearing on the Governmental Entities’ Pleas to the Jurisdiction
The following day, the trial court held a hearing on the Governmental Entities’
notice-based pleas to the jurisdiction.
The trial court began by reiterating its understanding that “there’s some
disagreement between you two on whether a plea to the jurisdiction is the right way to
dismiss the case.” The Family Members confirmed that this was partially correct, and
they reasserted their argument from the day before: that the Governmental Entities
should have raised the notice issue in a motion for summary judgment. But the
Family Members also argued that the police reports attached to their response raised a
fact issue regarding the Governmental Entities’ imputed, actual, presuit notice of
Abdillahi’s death, claiming that notice of the death was all that was required by the
Texas Tort Claims Act. 7 In addition, the Family Members resurrected their discovery-
7
The Family Members’ written responses to the pleas to the jurisdiction
focused on and only offered evidence of the Governmental Entities’ notice of
Abdillahi’s death. These responses alleged that (1) the Governmental Entities’
9
related complaints and argued that the pleas should be denied because they needed to
conduct additional discovery to explore alleged holes in the affidavits supporting the
pleas.
Again, the Governmental Entities disagreed with the Family Members on the
applicable law. As to the three elements of the actual-notice requirement—notice of
the death, notice of the Governmental Entities’ alleged fault in producing or
contributing to the death, and notice of the identity of the parties—the Governmental
Entities focused on the second element. Specifically, they argued that there was no
evidence that they had actual, presuit notice of their alleged fault in causing Abdillahi’s
death and that the police reports and medical examiner’s reports did not speak to this
issue. When the trial court asked if “the only [evidence the Family Members had
showing] notice of the claim . . . [wa]s the police report and the medical examiner’s
report and the 911 call log [included in the police reports],” the Family Members
conceded that “that’s the only information [they were] able to obtain.” At the
conclusion of the hearing, the trial court took the notice issue under advisement.
affidavits were insufficient to conclusively disprove their actual notice of Abdillahi’s
death; (2) regardless, the pleas were premature because they were effectively no-
evidence motions for summary judgment and discovery was ongoing; (3) the City’s
notice-related argument should have been raised in a motion for summary judgment;
(4) to the extent the City attacked the Family Members’ pleadings, the Family
Members should be granted leave to amend; and (5) the Airport Board waived its
immunity because Abdillahi died as a result of a condition or use of the Airport
Board’s real property.
10
D. The Orders Granting the Pleas
Later that day, the trial court granted the Governmental Entities’ pleas to the
jurisdiction and dismissed the claims against them with prejudice.8 This interlocutory
appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
II. Discussion
In two issues, the Family Members argue that (1) the trial court abused its
discretion by denying their motions for continuance, and (2) the trial court erred by
granting the Governmental Entities’ pleas to the jurisdiction.
A. Motions for Continuance
The Family Members first argue that the trial court abused its discretion by
“abruptly” terminating discovery and proceeding with the pleas rather than allowing
additional discovery on the jurisdictional facts relevant to the Governmental Entities’
actual notice. The Family Members point out that three months remained in the
agreed-upon discovery period when the trial court issued its ruling, and they contend
that up until that point, the Governmental Entities had refused to provide them
discovery on the actual-notice issue.
But the Family Members waived their motions for continuance, and even if
they had not, the trial court did not abuse its discretion by denying the motions
8
The trial court did not specify the basis for its rulings.
11
because the Family Members did not enunciate what they anticipated discovering that
would have been material to the jurisdictional actual-notice issue.
1. Waiver
First, the Family Members waived their motions for continuance. Although
the Family Members filed written, verified motions for continuance, see Tex. R. Civ. P.
251, during the hearing on those motions, the Family Members advised the trial court
that they were “fine with” moving forward on the notice-related pleas. Having made
that representation to the court, they cannot reverse that position on appeal; the
Family Members waived their motions for continuance.9 See Tex. R. App. P.
33.1(a)(1); cf. In re B.K., No. 02-21-00175-CV, 2021 WL 5848769, at *12 (Tex. App.—
Fort Worth Dec. 9, 2021, pet. filed) (mem. op.) (recognizing that the appellant’s
announcement of “ready” waived his right to seek a subsequent continuance based on
facts that were or should have been known at the time of his announcement); Coffman
9
Furthermore, although the Governmental Entities do not raise the
preservation issue in their brief, “[p]reservation of error is a systemic requirement on
appeal,” and “a court of appeals should review preservation of error on its own
motion.” Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 44 (Tex. App.—Texarkana
2017, pet. denied); see Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012)
(“When a party fails to preserve error in the trial court . . . an appellate court may not
consider the unpreserved or waived issue.”); Alikhan v. Alikhan, No. 03-19-00515-CV,
2021 WL 3085844, at *3 (Tex. App.—Austin July 22, 2021, pet. filed) (mem. op.) (“To
protect th[e] important prudential considerations [behind error preservation]—
including those of judicial economy—we may review the record sua sponte for
preservation of error.”); cf. Mitchell v. Wilmington Sav. Funds Soc’y, FSB, No. 02-18-
00089-CV, 2019 WL 150262, at *4 (Tex. App.—Fort Worth Jan. 10, 2019, no pet.)
(mem. op.) (“[B]efore we consider whether an abuse of discretion has occurred, the
error must be preserved for our review.”).
12
v. Coffman, No. 13-12-00303-CV, 2014 WL 7465596, at *3 (Tex. App.—Corpus
Christi–Edinburg Dec. 30, 2014, no pet.) (mem. op.) (recognizing that “the
announcement of ‘ready’ will waive a motion for continuance”); Markham v. Diversified
Land & Expl. Co., 973 S.W.2d 437, 441 (Tex. App.—Austin 1998, pet. denied)
(holding continuance was not preserved for appellate review where the appellant
initially asked for a continuance but “then withdrew the motion for a continuance and
agreed to proceed to the merits of her claim”). We cannot fault the trial court for
denying continuance in the face of a representation by the Family Members that they
were ready to move forward. Cf. Stone v. Stone, No. 02-18-00163-CV, 2020 WL
3410502, at *6 (Tex. App.—Fort Worth May 28, 2020, pet. denied) (mem. op.)
(holding that the court did not err by denying the appellant’s motions seeking
continuance to hire an attorney because, when the appellant appeared in court after
filing the motions, she “stated that she wished to proceed [to trial] without an
attorney”); Acker v. Denton Publ’g Co., 937 S.W.2d 111, 118 (Tex. App.—Fort Worth
1996, no writ) (“We are not persuaded that the trial court erred in denying an oral
motion for continuance after [the movant’s] announcement that he was ready for the
hearing . . . .”).
2. No Abuse of Discretion
For much the same reason, and even if the Family Members had not waived
their motions for continuance, the trial court could have reasonably concluded that
additional discovery was unnecessary because the Family Members did not articulate
13
what additional discovery might reveal that would be material to the jurisdictional
actual-notice issue.
Generally, “courts should allow [a] ‘reasonable opportunity for targeted
discovery’ if necessary to illuminate jurisdictional facts in a plea to the jurisdiction.”
Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012). 10 A trial court
abuses its discretion by denying a discovery-based motion for continuance if the
court’s ruling is arbitrary or unreasonable. Joe v. Two Thirty Nine Joint Venture, 145
S.W.3d 150, 161 (Tex. 2004). But it is not arbitrary or unreasonable for a trial court to
deny such a motion if the court “reasonably could have concluded that additional
discovery was unnecessary and irrelevant to the legal issues in the case.” Quested v. City
of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
To determine whether the trial court abused its discretion by denying a
continuance, we consider three nonexclusive factors: (1) “the length of time the case
ha[d] been on file,” (2) “whether the party seeking the continuance ha[d] exercised
due diligence to obtain the discovery sought,” and (3) “the materiality and purpose of
the discovery sought.” Joe, 145 S.W.3d at 161–62 (listing and applying factors where
10
Even so, a trial court has the discretion to grant or deny a motion for
continuance seeking time to conduct additional discovery. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Sayles v. Senior Care Res., Inc., No. 02-20-
00124-CV, 2021 WL 62130, at *4 (Tex. App.—Fort Worth Jan. 7, 2021, no pet.)
(mem. op.); Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).
14
trial court denied motion for continuance to allow additional immunity-related
discovery); see Quested, 440 S.W.3d at 280–83 (reciting and applying factors where trial
court denied continuance of pleas to the jurisdiction); Barron v. Vanier, 190 S.W.3d
841, 847–53 (Tex. App.—Fort Worth 2006, no pet.) (op. on reh’g) (reciting and
applying factors where trial court denied motion for continuance seeking additional
time for discovery on personal jurisdiction).
Even assuming that the Family Members met the first two factors, they wholly
failed to meet the third factor, which weighs decisively in favor of the trial court’s
ruling. The only discovery items the Family Members mentioned in their verified
motions for continuance were the upcoming depositions of the Governmental
Entities’ corporate representatives. The Family Members’ motions stated that “[t]he
[corporate] deposition testimony [wa]s material to the legal and factual questions at
issue in the Plea[s],” without explanation as to why or how.
To obtain a continuance due to “the want of testimony,” the Family Members’
verified motions were required not only to state “that such testimony [wa]s material,
[but also to] sho[w] the materiality thereof.” Tex. R. Civ. P. 252 (emphasis added)
(providing requirements for a continuance based on “the want of testimony,”
including a “showing [of] materiality” and a demonstration of due diligence, among
other items). The motions’ generalized, conclusory declarations of materiality were
insufficient to “sho[w]” materiality. See id.; Gibson v. Stonebriar Mall, LLC, No. 05-17-
01242-CV, 2019 WL 494068, at *2–3 (Tex. App.—Dallas Feb. 8, 2019, no pet.) (mem.
15
op.) (holding trial court did not abuse its discretion by denying continuance where
movant sought additional time to conduct depositions but “the motion d[id] not
explain the materiality, relevance, and purpose of the discovery sought” apart from a
“global statement” regarding the witnesses’ alleged materiality); Cardenas v. Bilfinger
TEPSCO, Inc., 527 S.W.3d 391, 404–05 (Tex. App.—Houston [1st Dist.] 2017, no
pet.) (holding trial court did not abuse its discretion by denying continuance where
movant sought to depose six witnesses regarding the defendant’s “true motives,” but
movant did not identify the relevance or materiality of the witnesses’ potential
testimony). Although the Family Members attached the deposition notices and topic
lists as exhibits to their motions, they did not highlight any specific deposition topics
that they considered significant, much less explain why those topics were vital to the
jurisdictional issues or how they would potentially change the outcome of the pleas.
Cf. Joe, 145 S.W.3d at 162 (holding trial court did not abuse its discretion by denying
continuance for immunity-related discovery where “none of the discovery described
could have raised a fact issue as to whether” the conditions for official immunity were
satisfied); Quested, 440 S.W.3d at 282 (holding trial court did not abuse its discretion by
denying continuance of pleas to the jurisdiction where the appellant “ha[d] not
explained how obtaining the requested information could [have] help[ed] her
overcome the [appellee’s] plea to the jurisdiction”); Bowen v. Bowen, No. 02-10-00297-
CV, 2011 WL 3426233, at *2–3 (Tex. App.—Fort Worth Aug. 4, 2011, pet. denied)
16
(mem. op.) (“A trial court does not abuse its discretion by denying a motion for
continuance that does not meet the requirements of [R]ule 252.”).
Nor did the Family Members clarify the need for the corporate depositions at
the hearing on their motions for continuance.11 They initially argued that the
corporate depositions were vital “so that we can get the knowledge that we need,” but
again, such generalized, conclusory statements were insufficient to demonstrate
materiality. And despite being pressed by the trial court to cure this deficiency and to
explain why, if the issue raised in the pleas was “just that [the Family Members] didn’t
send [their] statutory notice, why would [they] need to take somebody’s depo on
that,” they offered no explanation.12
Even on appeal, the Family Members have not identified what material
information they expected to discover during the corporate depositions. They claim
11
At the plea hearing—the day after the Family Members had agreed to proceed
with the notice-based pleas and the continuance had been denied—the Family
Members indicated that the pleas should be denied because they needed additional
discovery to explore the interactions between the Governmental Entities’
departments. The Family Members noted that each of the Governmental Entities’
affidavits represented a single department within their respective entities, and they
speculated that there may have been departments within the Governmental Entities
that had actual notice.
12
Because the Family Members insisted that the actual-notice issue was not
jurisdictional, they argued that they were entitled to “figure out down the road and use
[their] time in . . . discovery” to determine why the depositions were necessary. Even
when addressing the issues they considered jurisdictional, though, the Family
Members simply gave the global explanation that they “need[ed] more discovery in
general to be able to develop those facts and answer those jurisdictional issues.”
17
that they needed additional discovery “on the topic of notice” to determine “whether
[the Governmental Entities] had actual notice of Abdillahi’s death,” 13 but they do not
explain what they expected the corporate representatives to testify to that would have
changed the jurisdictional outcome. Cf. City Of Kemah v. Vela, 149 S.W.3d 199, 205
(Tex. App.—Houston [14th Dist.] 2004, pet. denied) (holding trial court erred by
denying the appellant’s plea to the jurisdiction to allow additional discovery where the
only information the appellee claimed he could gain from the discovery, even
assuming it showed what appellee claimed, did not change the outcome of the
immunity issue).
Because the Family Members did not identify “the materiality and purpose” of
the information they sought—either in their verified motions or in their presentation
of the motions at the corresponding hearing—the trial court did not abuse its
discretion by denying the motions. See Joe, 145 S.W.3d at 161–62; Quested, 440 S.W.3d
at 280–83; Bowen, 2011 WL 3426233, at *2–3.
We overrule the Family Members’ first issue.
B. Pleas to the Jurisdiction
The Family Members next contend that, even without additional discovery,
genuine issues of material fact precluded dismissal on the actual-notice issue.
Claiming that actual notice of the relevant death is all the Texas Tort Claims Act
13
As we discuss below, the Governmental Entities needed actual notice not
only of the death but also of their alleged fault in causing or producing the death.
18
requires, the Family Members argue that the Fort Worth Police Department’s reports
raise a fact issue regarding the Governmental Entities’ actual knowledge of Abdillahi’s
death. But the Family Members’ argument is premised on a misunderstanding of the
actual-notice standard.
1. Applicable Law and Standard of Review
Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction.
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637–38 (Tex. 1999). Generally, a
governmental unit, 14 such as a city or other unit of local government, has sovereign
immunity unless it is waived by the legislature.15 City of Dallas v. Reed, 258 S.W.3d 620,
622 (Tex. 2008); Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006);
Jones, 8 S.W.3d at 638.
The legislature provides a limited waiver of immunity in the Texas Tort Claims
Act, but this waiver is subject to conditions. Reed, 258 S.W.3d at 622; see generally Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.001–.109. As relevant here, “[a] governmental
unit is entitled to receive [either formal or actual] notice of a claim against it” before
The Family Members do not dispute that the City and Airport Board are
14
governmental units.
15
Technically, the immunity enjoyed by a political subdivision is referred to as
“governmental immunity” while the immunity enjoyed by the State is “sovereign
immunity.” Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). For
ease of reference, we use the phrase “sovereign immunity” for both concepts. See id.at 374 n.1 (doing similarly).
19
such a claim can be brought. Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a), (c).
Although formal notice is the default option under the Act, see id. § 101.101(a), actual
notice can replace formal notice if the governmental unit has subjective awareness of
three things: “(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.” Reyes v. Jefferson Cnty., 601 S.W.3d 795, 798
(Tex. 2020); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Univ. of N. Tex. Health
Sci. Ctr. v. Jimenez, No. 02-160-0368-CV, 2017 WL 3298396, at *4 (Tex. App.—Fort
Worth Aug. 3, 2017, pet. denied) (mem. op.); see Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(c). Unless the governmental unit has all three elements of actual notice, or
unless it receives formal notice, the Texas Tort Claims Act does not waive the
governmental unit’s immunity from suit, and the trial court lacks subject matter
jurisdiction. See Reyes, 601 S.W.3d at 798 (“Notice is a prerequisite to subject-matter
jurisdiction under the TTCA . . . .”).
A governmental unit may challenge the trial court’s lack of subject matter
jurisdiction by filing a plea to the jurisdiction. Jones, 8 S.W.3d at 638. Because subject
matter jurisdiction is a question of law, we review a trial court’s ruling on such a plea
de novo. Reyes, 601 S.W.3d at 798; Worsdale, 578 S.W.3d at 66; Jimenez, 2017 WL
3298396, at *3. When, as here, the plea to the jurisdiction challenges the existence of
jurisdictional facts, “the standard of review mirrors that of a traditional summary
judgment: ‘[I]f the plaintiffs’ factual allegations are challenged with supporting
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evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal
plaintiffs must raise at least a genuine issue of material fact to overcome the challenge
to the trial court’s subject matter jurisdiction.’” Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 771 (Tex. 2018) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 221 (Tex. 2004)). The trial court may rule on the plea as a matter of law
if the relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue. See Miranda, 133 S.W.3d at 221, 227–28; Preston v. M1 Support
Servs., L.P., 628 S.W.3d 300, 312 (Tex. App.—Fort Worth 2020, pet. granted) (mem.
op.).
2. Actual-Notice Standard
Before we can determine whether the Family Members raised a genuine issue
of material fact on the jurisdictional notice issue, we must address a threshold dispute:
the legal standard for actual notice.
The Family Members argue that the Texas Tort Claims Act’s actual-notice
requirement—unlike the formal-notice alternative—does not have three elements.
Compare Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a), with id. § 101.101(c).
According to the Family Members, the Act waives immunity when a governmental
unit has actual notice of the death, and neither actual notice of the governmental
unit’s alleged fault nor actual notice of the identity of the parties is required. We
disagree.
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More than a quarter of a century ago, in Cathey v. Booth, the Texas Supreme
Court construed the Texas Tort Claims Act’s actual-notice provision to require
“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 at 341. All three elements are
required; “[s]tanding alone, knowledge that an injury has occurred does not establish
actual notice.” Jimenez, 2017 WL 3298396, at *4 (quoting Univ. of Tex. Health Sci. Ctr.
at Houston v. Cheatham, No. 14-14-00628-CV, 2015 WL 3878111, at *3 (Tex. App.—
Houston [14th Dist.] June 23, 2015, no pet.) (mem. op.)). Cathey is still the law of the
land, and it is binding precedent on this court. See Worsdale, 578 S.W.3d at 68–77.
The Family Members invite us to disregard Cathey because it contradicts the
plain language of the Texas Tort Claims Act, and they point to the concurring opinion
in Worsdale v. City of Killeen for support. Id. at 77–82 (Boyd, J., concurring) (explaining
why he would overrule Cathey). But the majority opinion in Worsdale reaffirmed
Cathey’s three-element standard, and the majority expressly rejected the Family
Members’ interpretation of the actual-notice requirement. Worsdale, 578 S.W.3d at 77
(“Cathey has long been settled law, no compelling reason necessitates overturning it,
and . . . we reaffirm today [that] it was correctly decided in the first instance.”); see also
Jimenez, 2017 WL 3298396, at *4–5 (citing Cathey and reiterating three-element notice
requirement). Although the concurring opinion in Worsdale may have agreed with the
Family Members’ interpretation of the Texas Tort Claims Act, this court is not free to
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disregard the Texas Supreme Court’s binding majority opinions in favor of
concurrences. To the extent that the Family Members ask this court to depart from
Cathey’s “settled” three-element standard, we decline to do so. See Worsdale, 578
S.W.3d at 77.
3. No Actual Notice of the Governmental Entities’ Fault
Applying Cathey’s three-element actual-notice standard, we find no evidence
raising a genuine issue of material fact on element two: the Governmental Entities’
knowledge of their alleged fault in producing or contributing to Abdillahi’s death. Cf.
Jimenez, 2017 WL 3298396, at *4–7 (holding that motion to dismiss should have been
granted on lack-of-notice grounds where there was no evidence that the defendant
was actually aware of its alleged fault in producing or contributing to the relevant
injuries).
Each of the Governmental Entities supported its plea to the jurisdiction with
an affidavit from a manager or vice president working in the “sole department within
the [City or Airport Board] that is responsible for the investigation of a claim once
written notice is received or in the event the [City or Airport Board] obtains actual
notice of a claim.” The Governmental Entities’ employees averred that neither the
City nor the Airport Board had been “provided with any notice, written, actual[,] or
otherwise, including actual or subjective knowledge of Plaintiffs’ claim[,] until the
[City or Airport Board] received Plaintiffs’ Original Petition from its attorney of
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record.” Absent contradicting evidence, these affidavits were sufficient to effectively
negate all three elements of actual notice.
While the Family Members attempted to rebut these affidavits and raise a fact
issue on each of the three actual-notice elements, they failed to provide any evidence
of element two: the Governmental Entities’ notice of their alleged fault.16 See
Miranda, 133 S.W.3d at 227–28. Even assuming that the Governmental Entities could
be imputed with knowledge of the documents that the Family Members produced in
response to the pleas—the police reports and the medical examiner’s reports 17—this
evidence gave no indication that the Governmental Entities had notice that they were
allegedly at fault for producing or contributing to Abdillahi’s death. And because, on
appeal, the Family Members continue to deny that the actual-notice standard contains
16
On appeal, the Family Members cite statements from their petition to rebut
the Governmental Entities’ affidavits, but the relevant portions of the Governmental
Entities’ pleas challenge the existence of jurisdictional facts rather than the sufficiency
of the Family Members’ pleadings. See generally Miranda, 133 S.W.3d at 226–27
(distinguishing between the standards for the two challenges). Although the Airport
Board’s plea initially included an alternative argument challenging the Family
Members’ pleadings, the Airport Board waived such alternative arguments on the
record so the trial court could proceed with the notice issue.
To the extent that the Family Members rely on the allegations in their petition
as evidence, pleadings are not evidence. See Regency Field Servs., LLC v. Swift Energy
Operating, LLC, 622 S.W.3d 807, 818–19 (Tex. 2021) (reiterating that “pleadings
generally do not qualify as summary-judgment ‘evidence’”); Hidalgo v. Sur. Sav. & Loan
Ass’n, 462 S.W.2d 540, 543 (Tex. 1971) (similar).
17
The Family Members’ counsel confirmed that the documents were their “only
[evidence of] notice of the claim.”
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a fault requirement, they still have not pointed to or identified any evidence that the
Governmental Entities had actual, presuit notice of their alleged fault in producing or
contributing to Abdillahi’s death.
Consequently, we hold that the trial court—without any evidence that the
Governmental Entities had actual notice of their alleged fault and presented only with
evidence negating this element of actual notice—properly concluded that it lacked
jurisdiction under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(c). We overrule the Family Members’ second issue.
III. Conclusion
Because the trial court did not abuse its discretion by denying the Family
Members’ motions for continuance, and because it properly granted the
Governmental Entities’ pleas to the jurisdiction, we affirm the trial court’s orders.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: January 20, 2022
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