Sheree Freeman and Phillip Freeman v. City of Waxahachie, Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00379-CV
SHEREE FREEMAN AND PHILLIP FREEMAN,
Appellants
v.
CITY OF WAXAHACHIE, TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 97575
OPINION
In one issue, appellants, Sheree Freeman and Phillip Freeman, contend that the
trial court erred when it granted appellee City of Waxahachie, Texas’s (the “City”) plea
to the jurisdiction. We affirm.
Background
In their live pleading, appellants alleged negligence and gross-negligence claims
against the City, noting the following, in relevant part:
9. Plaintiffs Sheree Freeman and Phillip Freeman (“Plaintiffs”) . . . are
residents of Waxahachie, Texas. On December 31, 2016[,] at approximately
11:30 a.m., Mrs. Freeman sustained serious bodily injuries as the result of a
defective and dangerous condition existing on Buffalo Creek Drive in
Waxahachie, Texas, a roadway owned, controlled and maintained by the
City (the “Roadway”) when she stepped on the side of the Roadway that
was covered over with leaves and her foot slid into the curb opening and
drainage inlet at that location.
10. The Roadway in question has a storm gutter, concrete throat, curb
opening and drop inlet located on the northern edge of Buffalo Creek Drive
immediately south of the intersection with Indian Trace Lane that is used
for drainage purposes (the “Drainage System”). The Drainage System was
supposed to be constructed by the City in accordance with design detail for
a standard drainage inlet approved by the City[ 1]. . . .
11. The Drainage System, as built, did not conform to the applicable design
detail and plans but contained construction defects. . . .
12. The City was responsible for the construction and maintenance of the
Roadway and Drainage System to ensure that it was built and maintained
in accordance with a standard inlet design detail approved by the City.
13. However, the City failed to construct the Roadway and Drainage
System in accordance with its approved inlet detail and plans and/or failed
to comply with its responsibility to ensure that it was so constructed and
maintained in accordance with such design and plans. As a result of such
failure, the as-built Roadway surface and Drainage System had several
construction defects, including but not limited to the concrete throat along
the front of the drainage inlet was not built as designed and had improper
dimensions, such throat was improperly built with a crowned surface, and
the inlet opening was too steep and built to improper dimensions. Such
defects in the construction of the Drainage System posed an unreasonable
danger and risk of serious injury and harm to members of the public using
the Roadway, including Plaintiffs. Such defective and dangerous
conditions were apparent to and known by the City at the time of its
construction and/or when performing maintenance on the Roadway and
Drainage System and prior to the incident made the basis of this lawsuit.
1 The record reflects that the drainage inlet in question was constructed in 1979.
Freeman, et al. v. City of Waxahachie, Tex. Page 2
...
17. The unreasonably dangerous conditions existing on the premises at
issue herein were created and/or caused by the City’s own conduct and
knowledge before the incident in question occurred, and the City had actual
knowledge of the defective and dangerous conditions at issue herein a
sufficient time prior to the incident made the basis of this lawsuit that it
could have remedied such conditions or provided an adequate warning of
the danger to Plaintiffs.
Appellant further asserted that the City’s sovereign immunity was waived under sections
101.021 and 101.0215(a) of the Texas Tort Claims Act (the “Act”). See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 101.021, 101.0215(a).
The City responded to appellants’ suit by filing a plea to the jurisdiction, original
answer, and assertion of defenses, including, among other things, governmental
immunity and lack of pre-suit notice. In support of its plea to the jurisdiction, the City
filed a brief contending that the City is entitled to governmental immunity; appellants’
claims are jurisdictionally barred due to lack of timely pre-suit notice; that the design and
construction of the drainage inlet in question are discretionary matters for which the
City’s immunity is not waived; the City did not have actual knowledge of the alleged
defects; and the alleged dangerous condition, if any, was open and obvious such that the
City did not owe a legal duty to appellants. The City also attached an affidavit of City
Secretary Lori Cartwright, appellants’ pre-suit notice letter dated March 24, 2017, and an
affidavit of Public Works Director Jeff Chambers to its plea to the jurisdiction. Appellants
Freeman, et al. v. City of Waxahachie, Tex. Page 3
filed a response to the City’s plea to the jurisdiction and attached numerous documents
to their response.
The trial court granted the City’s plea to the jurisdiction.
Notice
We review the disposition of a jurisdictional plea de novo. Suarez v. City of Tex.
City, 465 S.W.3d 623, 632 (Tex. 2015). The plaintiff bears the initial burden of affirmatively
demonstrating the court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area
Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). If 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. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 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 factfinder. Id. at 227-28. If the
relevant 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. Id. at 228.
In general, governmental entities are immune from suits seeking to impose tort
liability on them. City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018). Absent
a waiver, immunity deprives trial courts of subject-matter jurisdiction. Id. The TTCA
provides a waiver of immunity for certain personal injuries “so caused by a condition or
use of tangible personal or real property if the governmental unit would, were it a private
Freeman, et al. v. City of Waxahachie, Tex. Page 4
person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021(2). A prerequisite for that waiver of immunity is timely providing the
governmental unit with a notice of claim. Tenorio, 543 S.W.3d at 775 (citing City of Dallas
v. Carbajal, 324 S.W.3d 537, 537-38 (Tex. 2010)). Under the TTCA, a governmental unit
must be given written notice of a 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). However, claimants must also comply with any proper time requirements for
notice that a city has adopted by charter or ordinance. See id. § 101.101(b) (“A city’s
charter and ordinance provisions requiring notice within a charter period permitted by
law are ratified and approved.”); see also Tenorio, 543 S.W.3d at 775. The purpose of the
notice requirement is to ensure prompt reporting of claims in order to enable
governmental units to gather information necessary to guard against unfounded claims,
settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per
curiam).
The City’s charter requires written notice of claim within sixty days after the injury
or damage is sustained. See WAXAHACHIE, TEX., CITY CHARTER art. 10, § 10.05,
https://library.municode.com/tx/waxahachie/codes/code_of_ordinances?nodeId=CH_A
RTXGEPR; see also DEFENDANT THE CITY OF WAXAHACHIE’S BRIEF IN SUPPORT OF ITS PLEA
TO THE JURISDICTION, Exhibit A. 2 It is undisputed that appellants did not provide written
2 Specifically, article 10, section 10.05 of the City’s charter provides that:
Freeman, et al. v. City of Waxahachie, Tex. Page 5
notice of their claims within sixty days after Mrs. Freeman sustained her injuries. 3
Instead, appellants contend that the City’s sixty-day notice provision violates the Open
Courts Clause of the Texas Constitution, see TEX. CONST. art. I, § 13; that the evidence
demonstrates that Mrs. Freeman was incapable of providing notice of her claim within
sixty days of the incident; and that notice was not necessary because the City of
Waxahachie had actual notice of her claim.
We first address appellants’ contention that the notice provision in the City’s
charter violates the Open Courts Clause of the Texas Constitution and, thus, is
unconstitutional. See TEX. CONST. art. I, § 13 (providing that “[a]ll courts shall be open,
and every person for an injury done him, in his lands, goods, person or reputation, shall
have remedy by due course of law”). In support of this argument, appellants rely heavily
on three cases. See generally Fitts v. City of Beaumont, 688 S.W.2d 182 (Tex. App.—
The city shall not be held responsible on account of any claim for damages to any person
or property unless the party making such complaint or claiming such damages shall,
within sixty days after the time at which it is claimed such damages were inflicted, file
with the city secretary a true statement under oath as to the nature and character of such
damages or injuries, the extent of same, the date, time and place where same happened,
the circumstances and conditions causing same, with a detailed statement of each item of
damages and the amount thereof; and it if be for personal injuries, a list of the witnesses
who witnessed such occurrence.
See WAXAHACHIE, TEX., CITY CHARTER art. 10, § 10.05,
https://library.municode.com/tx/waxahachie/codes/code_of_ordinances?nodeId=CH_ARTXGEPR; see also
DEFENDANT THE CITY OF WAXAHACHIE’S BRIEF IN SUPPORT OF ITS PLEA TO THE JURISDICTION, Exhibit A.
3Appellants alleged that Mrs. Freeman sustained the complained-of injuries on December 31, 2016, and the
record shows that appellants did not notify the City of the injuries until March 24, 2017—eighty-three days
after the incident.
Freeman, et al. v. City of Waxahachie, Tex. Page 6
Beaumont 1985, writ ref’d n.r.e.); Schautteet v. City of San Antonio, 702 S.W.2d 680 (Tex.
App.—San Antonio 1985), writ ref’d n.r.e., 706 S.W.2d 103 (Tex. 1986) (per curiam); Borne
v. City of Garland, 718 S.W.2d 22 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). Each of these
cases held that notice periods contained in city charters that are shorter than the six-
month notice period established in section 101.101(a) of the TTCA are unreasonable and
unenforceable. See Fitts, 688 S.W.2d at 184-85; Schautteet, 702 S.W.2d at 682; Borne, 718
S.W.2d at 24.
However, Fitts, Schautteet, and Borne all pre-date amendments made in 2005 to
section 311.034 of the Texas Government Code, which conclusively established that pre-
suit notice requirements are jurisdictional requirements in all suits against a
governmental entity. See TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to a
suit, including the provision of notice, are jurisdictional requirements in all suits against
a governmental entity.”); see also Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 511
(Tex. 2012) (stating that the 2005 amendments to section 311.034 of the Texas Government
Code “evinces the Legislature’s intent that all statutory prerequisites are now
jurisdictional requirements as to governmental entities and are properly asserted in a plea
to the jurisdiction”). And given that section 101.101(b) of the TTCA statutorily ratifies
and approves of notice provisions contained in a City charter, appellants’ reliance on
Fitts, Schautteet, and Borne is misplaced. See TEX. CIV. PRAC. & REM. CODE ANN. §
101.101(b); see also Tenorio, 543 S.W.3d at 775 (citing section 101.101(b) of the TTCA and
Freeman, et al. v. City of Waxahachie, Tex. Page 7
noting that “[c]laimants must also comply with any proper time requirements for notice
that a city has adopted by charter or ordinance”).
With respect to appellants’ contention that Mrs. Freeman was incapable of
providing notice of her claim in compliance with the City’s charter, appellants direct us
to their response to the City’s plea to the jurisdiction. Attached to appellants’ response is
a declaration from Mrs. Freeman, wherein she stated that
I was injured on December 31, 2016, at approximately 11:30 A.M. in
the City of Waxahachie (the "City") at or near the intersection of Buffalo
Creek Drive and Indian Trace Lane in the Indian Hills subdivision when I
slipped or fell on a drainage inlet opening (the "Incident"). As a result of
the Incident, I sustained very serious and debilitating injuries, including a
broken tibial plateau and crushed knee cap [sic] on my right leg. Following
the Incident I underwent medical treatment at Methodist Hospital in
Mansfield, Texas, followed by surgery on or about January 8, 2017 at Baylor
University Medical Center in Dallas, Texas. I remained hospitalized for two
days following surgery before returning home. I was unable to walk again
on my own power for approximately nine months following the Incident.
Upon returning home after my surgery, I was completely immobile
and homebound until mid-March 2017. During that time I was also
experiencing intense pain, swelling, and tenderness in my leg and was
under the influence of pain medication. During such time I was totally
dependent on my husband Phillip Freeman to help me perform my normal
activities of daily living, which made it physically impossible to obtain legal
advice or notify the City concerning my claim within sixty days following
the Incident. . . . I was not physically capable of leaving my house until
March 10, 2017, and on that date I did so to consult with an attorney
concerning the Incident. At that time I was still in significant pain due to
my injuries and was wheelchair-bound, and only with great difficulty was
my husband able to assist me in leaving the house for the consultation.
Upon the completion of such consultation and preliminary investigation
into the Incident, written notice regarding the Incident was provided to the
City on my behalf on March 24, 2017.
Freeman, et al. v. City of Waxahachie, Tex. Page 8
When considering evidence presented in response to a plea to the jurisdiction, a
court must “take as true all evidence favorable to the nonmovant” and “indulge every
reasonable inference and resolve any doubts in the nonmovant's favor.” Miranda, 133
S.W.3d at 228. If evidence does create a fact question on a jurisdictional issue the trial
court cannot grant the plea to the jurisdiction. Id. at 227–28. The fact issues will then
need to be resolved by the finder of fact. Id. at 228. However, if the relevant 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. Id.
The fact that Mrs. Freeman sustained a broken tibial plateau and crushed knee cap;
underwent surgery; was unable to walk under her own power for approximately nine
months; was completely immobile and homebound until mid-March 2017 during the
notice period; was under the influence of pain medication during the notice period; was
not physically capable of leaving her home until March 10, 2017, after the notice period
had expired; and was totally dependent on her husband; even when taken as true Mrs.
Freeman's declaration does not raise a fact question on the jurisdictional issue of notice
because she was not required to do “an impossible thing.” 4 See Yancy v. United Surgical
Partners, Int’l, Inc., 236 S.W.3d 778, 785-86 (Tex. 2007).
4To the extent that Barnes v. City of Hillsboro, 504 S.W.2d 939, 942 (Tex. Civ. App.—Waco 1973, no writ), and
City of Waxahachie v. Harvey, 255 S.W.2d 549, 551 (Tex. Civ. App.—Waco 1953, writ ref’d n.r.e.), could be
considered inconsistent with this holding, they are overruled. In doing so, we note that these cases
predated the Legislature’s amendments to the statute in 2005, that changed the landscape with regard to
notice provisions in City Charters and ordinances, and the 2007 decision of the Texas Supreme Court in
Yancy interpreting those legislative changes.
Freeman, et al. v. City of Waxahachie, Tex. Page 9
Furthermore, there is no evidence in this record suggesting that appellants’ failure
to comply with the sixty-day notice provision of the City’s charter was due to any act or
omission by the City such that equitable estoppel would apply. See City of White
Settlement v. Super Wash, Inc., 198 S.W.3d 770, 774-75 (Tex. 2006) (stating that equitable
estoppel to pre-suit notice provisions applied only when the City made misleading
statements).
Regarding appellants’ actual-notice contention, we note that, under section
101.101(c) of the Texas Civil Practice and Remedies Code, the written notice requirements
in the TTCA do not apply if a governmental unit has actual notice. Tenorio, 543 S.W.3d
at 776. “Knowledge that a death, injury, or property damage has occurred, standing
alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.”
Id. (citing Cathey, 900 S.W.2d at 341). To have actual notice, a governmental unit must
have the same knowledge that it is entitled to receive under the written notice provisions
of the TTCA. Id. (citing Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex.
2004)). “A governmental unit has actual notice under the TTCA if it has subjective
knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s fault
that produced or contributed to the death, injury, or property damage; and (3) the identity
of the parties involved.” Id. (citing Cathey, 900 S.W.2d at 341). “[T]he actual notice
provision requires that a governmental unit has subjective awareness that its fault, as
ultimately alleged by the claimant, produced or contributed to the claimed injuries.” Id.
Freeman, et al. v. City of Waxahachie, Tex. Page 10
Whether a governmental unit has actual notice of a death, injury, or property
damage is a fact question when the evidence is disputed, but it is a question of law when
the evidence is undisputed. Id. (citing Simons, 140 S.W.3d at 348).
In this case, even if the City could be said to have notice that the drainage opening
was potentially dangerous as built, a holding we expressly decline to make, there is
nothing to suggest that the City was aware of Mrs. Freeman’s injuries or that the
appellants attributed those injuries to the alleged defective condition of the City’s
drainage opening until the March 24, 2017 notice letter, which came too late to provide
the required notice.
Appellants have failed to present evidence that the City had timely received the
required notice of their claim. See Tenorio, 543 S.W.3d at 776-78; Carbajal, 324 S.W.3d at
538-39; Simons, 140 S.W.3d at 347-48. Therefore, we conclude that the trial court did not
err in granting the City’s plea to the jurisdiction. Appellants’ sole issue on appeal is
overruled. 5
Conclusion
We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
5Our resolution of this argument makes it unnecessary for us to reach appellants’ remaining arguments
regarding waiver of governmental immunity.
Freeman, et al. v. City of Waxahachie, Tex. Page 11
Before Chief Justice Gray,
Justice Johnson,
and Justice Rose 6
Affirmed
Opinion delivered and filed October 20, 2021
[CV06]
6The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
Freeman, et al. v. City of Waxahachie, Tex. Page 12