Icy Wade v. Beaumont Municipal Transit and CCL Management Inc. ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00048-CV
__________________
ICY WADE, Appellant
V.
BEAUMONT MUNICIPAL TRANSIT AND
CCL MANAGEMENT INC., Appellees
__________________________________________________________________
On Appeal from the County Court at Law No. 1
Jefferson County, Texas
Trial Cause No. 0132308
__________________________________________________________________
MEMORANDUM OPINION
The issue in this appeal is whether Beaumont Municipal Transit is immune
from Icy Wade’s suit for damages. Wade based his suit on an injury he claims he
suffered from a fall at a bus station operated by Beaumont Transit. Beaumont Transit
asserted it was immune from Wade’s suit. The trial court granted its plea to the
1
jurisdiction and signed an order dismissing Wade’s claims against Beaumont
Transit. 1
Wade appealed, arguing the trial court erred in dismissing his case after
finding he failed to place Beaumont Transit on notice of his claim within six months
of the date that he fell. According to Wade, Beaumont Transit acquired sufficient
information about his fall within six months of when it occurred to place Beaumont
Transit on actual notice of his claim. No party disputes Beaumont Transit’s claim
alleging it is a governmental unit that he must show is subject to his suit based on a
waiver that allows the trial court to hear the suit under the Texas Tort Claims Act
(the Act).2
We conclude Wade’s arguments lack merit, so we affirm.
Background
On August 23, 2017, Icy Wade fell at a bus stop while boarding a city bus.
Eight months later, Wade’s attorney sent Beaumont Municipal Transit a “Notice of
Injury and Claim for Damages.” The notice describes the incident, where it occurred,
and the damages that Wade claimed resulted from his fall.
In June 2018, Wade sued Beaumont Transit and CCL Management Inc.
alleging the defendants were negligent and responsible for the damages that resulted
1
Tex. Civ. Prac. & Rem. Code Ann. § 101.101.
2
Id.2
from his fall. CCL Management did not answer Wade’s suit. Wade obtained a default
judgment against that company. CCL Management did not appeal.
As to Beaumont Transit,3 Wade alleged it “is a municipal entity subject to the
Texas Tort Claims Act[.]” Wade also alleged he placed Beaumont Transit “on notice
of his claim.” The only notice referenced in Wade’s petition is the “Notice of Injury
and Claim for Damages,” the notice Wade’s attorney sent Beaumont Transit about
eight months after the incident that Wade alleged caused him to fall.
Beaumont Transit filed a plea to the jurisdiction in response to Wade’s suit.
In its plea, Beaumont Transit alleged it is immune under the Act from Wade’s suit
because Wade did not provide it with the “Notice of Injury” referred to in his petition
within six months of his fall.
When Wade responded to the plea, he asserted Beaumont Transit was on
actual notice of his claim within six months of the date he fell at a Beaumont
Transit’s bus station. Wade alleged he called someone named “Mr. Munson with
3
From Wade’s pleadings, we conclude both Beaumont Transit and Wade
viewed Beaumont Transit as a transit department. Transit departments are municipal
departments created by municipalities under Chapter 453 of the Texas
Transportation Code. See Tex. Transp. Code Ann. § 453.001(3) (defining transit
department). Since Wade alleged Beaumont Transit is a municipal entity and
Beaumont Transit did not dispute that claim, we review the evidence by assuming
Beaumont Transit is a transit department, created and operated by the City of
Beaumont. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
2003) (when no one has disputed that the Tort Claims Act applies, the reviewing
court determines from the pleadings and evidence before the trial court whether the
“claim comes within a statutory waiver of immunity”).
3
CCL, informing him of the fall and claim” by telephone. Wade also attached two
exhibits to his response. One is an undated letter, addressed and allegedly faxed to
“Sherman Lajner” in September 2017. The other is a document Wade titled as a
“Check List.” The checklist describes how and where Wade claims he fell and
contains information about where Wade could be reached. Wade testified he faxed
these documents to Lajmer because Lajmer handled another, earlier claim that he
filed against the City of Beaumont. According to Wade, he sent copies of the
documents to Lajmer by fax, and he also faxed copies to an elected official (the
City’s mayor), and two City employees (the City Attorney and a “Mr. Boone”). We
note that Wade misspelled Lajmer’s name when he addressed the undated letter by
spelling it “Lajner” rather than Lajmer, which the record shows is the proper spelling
for Lajmer’s name. 4
The trial court conducted two hearings on Beaumont Transit’s plea. In the first
hearing in April 2019, Wade acknowledged he had no receipts to prove the letters
(the undated letter and the checklist) he claims to have faxed were received by those
to whom they were faxed. That said, Wade testified he “[could] get all of [the fax
receipts]” from the person whom he claimed had faxed the letters at his request.
4
We know Lajmer spells his last name based on the affidavit Lajmer signed
that is in the record before us in the appeal. Lajmer’s affidavit reflects he spells his
last name Lajmer. We use that spelling and assume that Wade misspelled Lajmer’s
name when creating and addressing the documents marked in the hearing as Exhibits
A and B.
4
The undated letter and check list, attached to Wade’s response as Exhibits A
and B, have numbers by four of the five names mentioned in the letters, the numbers
are beside the names of Lajmer, the mayor, the City Attorney, and Boone. But the
numbers besides the mayor and Boone in the first letter, Exhibit A, differ from the
numbers Wade placed beside those same names on his checklist, Exhibit B. In one
of the hearings, Wade also testified he had a letter with him at the hearing from
Lajmer in response to the letters he had faxed. He claimed that letter shows that
Lajmer received the letters. Still, Wade never produced the letter from Lajmer in any
of the hearings. He also never filed the letter from Lajmer as a supplemental exhibit,
assuming it exists. For those reasons, there is no letter from Lajmer in the record
Wade filed in his appeal.
When the April hearing concluded, Beaumont Transit argued that Wade’s
testimony, without more, did not prove it received the letters Wade included with
his response. Yet, Beaumont Transit asked the trial court, given Wade’s testimony
about faxing the letters to people to leave the record open so it could respond to
Wade’s testimony claiming to have faxed the two letters. The trial court granted the
request, which left the record open. At the end of the April hearing, the trial court
also told Wade he needed “proof that not only [did he] sen[d] the document[s], but
that the entity [he] addressed [them] to had received [them].”
The second hearing occurred in May 2019. The day before that hearing,
Beaumont Transit supplemented the record with two affidavits, one from Jonathan
5
Clegg, the other from Sherman Lajmer. Clegg swore he is the Assistant General
Manager for Beaumont Transit. He acknowledged that Wade called him in
September 2017. According to Clegg, during that call Wade told him he was injured
in a fall at the Dannenbaum Bus Station in August 2017.5 Clegg’s affidavit also
states he asked Wade to provide information about the fall, information such as
Wade’s address, the names of any witnesses, exactly where he fell at the station, and
how the fall occurred. Clegg explained Wade refused to provide any details and
“hung up.” Clegg’s affidavit also describes the search he had conducted for the
letters Wade claims he had faxed to the mayor and City of Beaumont employees.
According to Clegg, his search revealed the City first received a written notice
describing Wade’s fall in March 2018, referring to the notice the City had received
from Wade’s attorney more than six months after the alleged fall.
The City also filed an affidavit signed by Lajmer. In his affidavit, Lajmer
states he is an independent adjuster for a claims service in Houston. Lajmer also
stated he is not employed by or an agent of Beaumont Transit. Lajmer described his
recollection about Wade’s prior claim that he was hired to handle by the City,
explaining that claim arose two years earlier against Beaumont Transit. Even so,
Lajmer stated, he no longer has Wade’s prior claims file. Lajmer recalled that claim
arose from an injury Wade suffered “on a bus.” Lajmer concluded that he, nor the
5
The Dannenbaum Bus Station is close to the federal courthouse, a downtown
area in the City of Beaumont.
6
claims service he works for, were hired to adjust Wade’s claim for “an injury that
allegedly occurred in August or September of 2017.”
No witnesses testified in the second hearing in May 2019. Beaumont Transit’s
attorney appeared for the hearing, but Wade and Wade’s attorney did not. Beaumont
Transit’s attorney argued Wade failed to establish that Beaumont Transit was on
formal or actual notice of his claim based on an alleged fall in August 2017. The
failure to provide notice, according to Beaumont Transit’s attorney, deprived the
trial court of jurisdiction over the claims Wade included in his lawsuit. In response,
the trial court said: “I believe you’re correct. The motion is granted.” The order the
trial court signed dismissing Wade’s claims against the City fits its conclusion that
Wade failed to plead and prove that the City of Beaumont was on notice of his claim
as required by the Act. The order of dismissal, however, was interlocutory because
it did not dispose of Wade’s claims against CCL Management, the other defendant
in the suit.
Four months later, Wade supplemented his response to Beaumont Transit’s
plea. His supplemental response includes an affidavit, which Wade signed. Wade
swore in his affidavit that the documents he attached to his affidavit are records that
he keeps in his business involving the lawsuit. The documents Wade attached to his
affidavit consist of a two-page letter that he claims he sent to the State Board of
Insurance, a fax-verification report, and three pages of documents. The fax-
verification report reflects Wade sent five pages of documents to a number at a 512-
7
area code, a number we presume to point to someone associated with the State Board
of Insurance. Even so, a 512-area code differs from the area codes for officials or
employees with the City of Beaumont, since those individuals would have 409-area
codes. Nothing in the documents Wade filed reflect Wade ever sent the documents
attached to his affidavit to anyone employed by or associated with the City of
Beaumont or its transit department.
After Wade filed his supplemental response and affidavit, Beaumont Transit
moved to dismiss Wade’s claims with prejudice. In December 2019, the trial court
conducted a hearing on the motion to dismiss. The attorneys for Wade and Beaumont
Transit appeared for the hearing. Beaumont Transit argued the evidence did not
support Wade’s allegations about formal or actual notice to prove Beaumont Transit
was on notice of Wade’s claim based on the requirements of the Act, six months
from the date Wade fell. The trial court advised the attorneys it would take the case
under advisement, “read the pleadings again” and then decide Beaumont Transit’s
motion seeking a dismissal of Wade’s claims with prejudice. Later that month, the
trial court signed an order granting the motion, dismissing Wade’s claims with
prejudice but only as to his claims against Beaumont Transit, not CCL Management.
Once again, the trial court’s order remained interlocutory because the order of
dismissal did not dispose of all of Wade’s claims against all defendants that he had
sued.
8
Just one month later, in January 2020, the trial court signed a final judgment
in which it disposed of all of Wade’s claims. The final judgment awards Wade
damages against CCL Management and dismisses Wade’s claims against Beaumont
Transit. Wade filed a timely notice perfecting his right to appeal from the final
judgment dismissing the claims at issue here.
Standard of Review
“[W]hen the jurisdictional issue is not intertwined with the merits, we must
defer to the trial court’s express or implied factual determination that are supported
by sufficient evidence.” 6 The trial court in exercising its discretion about whether to
grant Beaumont Transit’s plea chose not to believe Wade’s testimony that he faxed
copies of letters to Lajmer and others in September 2017. To resolve the appeal, the
question we must answer is whether the trial court’s implied findings, which favor
Beaumont Transit on formal and actual notice, are reasonable given the evidence
before the trial court when it signed the final judgment.
When before the trial court, Wade bore the burden of proof on his claim
alleging notice.7 On appeal, we review rulings dismissing lawsuits for lack of
jurisdiction de novo. 8 When the evidence of notice is disputed (the situation here)
fact questions arise.9 The fact questions—whether Wade faxed letters to the mayor
6
Worsdale v. City of Killeen, 578 S.W.3d 57, 66 (Tex. 2019).
7
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
8
Id.9
Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004).
9
and City of Beaumont employees in September 2017 and whether Lajmer, in August
or September 2017, was an agent or employee of the City or its transit department
for purpose of notice of a claim under the Act—are not intertwined with the merits
of Wade’s case. That’s because the issues about the merits of Wade’s injury claim
involve whether Wade fell at a bus station, whether he was injured in the fall, and
whether Beaumont Transit’s negligence, if any, caused the fall. But the questions of
notice—whether the City of Beaumont or its transit department were on formal or
actual notice of a claim subject to the Act—are not intertwined with the questions
needed to be resolved in a trial about whether the City or its transit department were
negligent and whether they caused Wade’s fall.10
Analysis
The Act requires a person who is injured by the negligence of a governmental
unit or its employees to provide the governmental unit with notice (formal or actual)
of a claim alerting the governmental unit of its need to investigate the circumstances
of the claim. 11 Under the Act, governmental units are entitled to either formal or
actual notice of the claim within six-months of the date an injury occurred before the
Act authorizes governmental units to be sued for personal injury claims arising from
a defect that exists on property owned or controlled by a governmental unit.12 Here,
10
Worsdale, 578 S.W.3d at 66.
11
Id. at 64.
12
See Tex. Civ. Prac. & Rem. Code Ann. § 101.101.
10
both parties produced evidence addressing whether Wade gave Beaumont Transit
the required notice in the letters Wade testified he had faxed to the City of
Beaumont’s mayor and two its employees in September 2017, which is within six
months of the date Wade claims he fell.
The trial court examined Wade’s evidence and the evidence produced by
Beaumont Transit to decide Beaumont Transit was notified of Wade’s claim based
on the requirements in the Act. The trial court found the evidence of formal and
actual notice was lacking, so we must imply the trial court determined Wade did not
fax copies of letters to the City as he claimed. That finding is reasonable based on
the evidence the parties provided in the court below. For instance, Clegg’s affidavit
shows he searched but failed to locate the letters Wade claimed he faxed to the mayor
and other City of Beaumont employees.13 The decision is reasonable for many
reasons, including that Wade failed to produce the fax-transmittal reports to show
the documents were received by those to whom he testified he sent them.
While Wade testified he faxed the letters to various individuals, the trial court
heard him testify and could have decided he was mistaken about having faxed the
documents given his testimony that he is not the person who faxed them. And the
fact the letters list different numbers for the several individuals Wade included in
13
See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (trial
court determined jurisdictional issue after an evidentiary hearing at which witnesses
testified); Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015);
Miranda, 133 S.W.3d at 226.
11
the letters creates even more doubt on whether the letters were received by those to
whom Wade claims they were sent. Clegg’s affidavit states he searched for letters
but located only one document, the “Notice of Injury” Wade’s attorney sent the City
in March 2018. Lajmer’s affidavit reinforces the trial court’s finding that Lajmer
was not an agent or employee of the City or its transit department when the fall Wade
alleged occurred in August 2017.
The rest of the evidence does help Wade on formal or actual notice to the City
of Beaumont or its transit department. Of course, we concede Clegg was aware of
Wade’s injury in September 2017, as the only evidence in the record is that Wade
telephoned Clegg and informed Clegg he fell. But Wade never testified about his
conversation with Clegg in any of hearings. Wade also never provided the trial court
with an affidavit contradicting Clegg’s affidavit stating Wade hung up on him when
he was asked for information about the fall. Clegg swore Wade told him nothing
more than he had fallen and injured himself at the Dannenbaum Bus Station. But
Wade, Clegg stated, refused to provide any other information about the fall. Under
Texas law, nothing more than knowledge of a reported injury is not enough evidence
to prove actual notice of a claim.14 In other words, the information Wade gave Clegg
in the telephone call fails to show that Beaumont Transit was subjectively aware that
See Worsdale, 578 S.W.3d at 64 (“When the facts do not even imply the
14
governmental unit’s fault, they are legally insufficient to provide actual notice.”).
12
Wade would later claim that Beaumont Transit negligently failed to warn or to repair
the premises and prevent the injury he suffered in his August 2017 fall. 15
Wade also argues the trial court erred by failing to consider the judgment he
took against CCL Management by default in resolving whether the City of Beaumont
and its transit department were on notice of his claim. We infer Wade is referring to
the fact CCL Management admitted the allegations of fact in Wade’s petition
because it failed to answer the suit. According to Wade, CCL Management’s
admissions amount to evidence the trial court should have but failed to consider
when deciding whether his proof showed Beaumont Transit was on actual or formal
notice of his claim.
We recognize the factual allegations in Wade’s pleadings as to CCL
Management operate as admissions. Even so, Wade is mistaken about the effect of
admissions by one party on other parties to a case. Under Texas law, admissions by
a party establish a matter only “as to the party making the admission[.]” 16 So while
the admissions CCL Management made when it failed to file an answer were binding
on it, they are irrelevant to the claims Wade made against Beaumont Transit. The
Texas Supreme Court explained that, under Rule 192 of the Texas Rules of
15
City of San Antonio v. Tenorio, 543 S.W.3d 772, 778 (Tex. 2018) (holding
that evidence that a vehicle being pursued by the police was involved in a collision
and an occupant in the vehicle was killed or seriously injured “is not, by itself,
sufficient to raise a fact question about whether the City . . . had subjective awareness
that it was in some manner at fault in connection with the collision”).
16
Tex. R. Civ. P. 198.3.
13
Procedure, “admissions are binding only against the party making the admission.”17
We conclude Wade’s argument claiming the trial court erred in failing to consider
CCL Management’s admission in deciding whether to grant Beaumont Transit’s plea
to the jurisdiction have no merit and is overruled.
Conclusion
In short, the trial court found Wade failed to prove he gave Beaumont Transit
formal or actual notice of his claim as required by the Act. Under the Act, Wade
bore the burden of pleading and proving Beaumont Transit was on notice of his
claim. 18 Because the trial court’s findings on the jurisdictional issues are reasonable,
the judgment is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on May 18, 2021
Opinion Delivered October 21, 2021
Before Golemon, C.J., Kreger and Horton, JJ.
17
U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008)
(cleaned up).
18
See Tex. Civ. Prac. & Rem. Code Ann. § 101.101.
14