the City of Arlington v. Christopher Evans ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00160-CV
___________________________
THE CITY OF ARLINGTON, Appellant
V.
CHRISTOPHER EVANS, Appellee
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-331331-22
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
In a single issue, Appellant The City of Arlington challenges the denial of its
plea to the jurisdiction directed at a suit filed by Appellee Christopher Evans. Evans
sued the City for property damage and personal injuries that he claims resulted from a
collision in which his vehicle was struck by a vehicle owned by the City. The City
responded to the suit by filing a plea to the jurisdiction in which it argued that the trial
court lacked subject-matter jurisdiction because Evans failed to give the City timely
formal notice of his claim and because the City also lacked actual awareness that
Evans claimed that he was injured in the accident. The trial court denied the City’s
plea to the jurisdiction. That denial was error.
Under the statutory scheme mandated by the Civil Practice and Remedies
Code, a jurisdictional prerequisite to a suit against a governmental unit is either timely
formal notice of a claim or timely actual notice—with actual notice requiring
subjective awareness of the claim by the governmental unit. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.101. There is no dispute that Evans did not provide the City
with timely formal notice of his claim. The evidence that the City attached to its plea
to the jurisdiction established that there was no evidence that it had actual, subjective
awareness that Evans claimed that he was injured. Evans responded with his own
evidence, which he claims should establish actual awareness of his injuries at the time
of the accident or when he was later arrested by an Arlington police officer. But that
2
evidence failed to carry Evans’s burden. This record—whether viewed through the
prism of presenting a legal or a factual issue—fails to support the conclusion that the
City had timely actual awareness of Evans’s injury claim. Without timely notice to the
City that Evans claimed that he was injured, the trial court lacked subject-matter
jurisdiction over his personal-injury claim. Thus, we reverse the trial court’s order
denying the City’s plea to the jurisdiction, and we render judgment dismissing solely
the portion of Evans’s suit seeking personal-injury damages.1
II. Factual and Procedural Background
The procedural background of this matter is straightforward. Evans filed suit
against the City claiming property and personal-injury damages as the result of a
motor-vehicle collision caused by the allegedly negligent operation of a truck owned
by the City.2 The City answered and asserted that it did not have statutory notice of
1
We do not dismiss the portion of Evans’s suit seeking property damages. The
City had actual notice of damage to Evans’s vehicle. The Texas Supreme Court has
held that
it is proper for a trial court to dismiss claims over which it does not have
subject[-]matter jurisdiction but [to] retain claims in the same case over
which it has jurisdiction. A trial court is not required to deny an
otherwise meritorious plea to the jurisdiction or a motion for summary
judgment based on a jurisdictional challenge concerning some claims
because the trial court has jurisdiction over other claims.
Thomas v. Long, 207 S.W.3d 334, 338–39 (Tex. 2006) (citations omitted).
2
Evans’s petition describes various acts of negligence allegedly committed by
Texas Pest Elimination Services, LLC. We assume that the reference to Texas Pest is
a typographical error.
3
Evans’s personal-injury damage claim and thus that the City’s “governmental
immunity ha[d] not been waived.” The City then filed pleas to the jurisdiction
reemphasizing that it had neither formal notice nor actual awareness of Evans’s
personal-injury claim within the period required by statute or the City’s charter and
attached evidence supporting the assertion that no actual notice existed. Evans
responded to the City’s plea to the jurisdiction and attached evidence. The trial court
denied the City’s plea. The City perfected an interlocutory appeal from the order.3
Factually, it is undisputed that a Ford F-450 and a trailer owned by the City and
operated by a City employee struck and damaged the back of Evans’s car.4 It is also
undisputed that a City police officer who investigated the collision filed a report
opining that the driver of the City vehicle had “failed to control the speed of [his]
vehicle.” Finally, there is no dispute that Evans failed to give formal notice of his
claim within the time period required by statute and the City’s charter.5
3
This court has jurisdiction over an interlocutory appeal when the trial court
“denies a plea to the jurisdiction by a governmental unit as that term is defined in
Section 101.001” of the Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(8).
4
The City’s brief describes the accident as minor based on notations contained
in the police report: See “Defendant City of Arlington’s Plea to the Jurisdiction,
Exhibit 5, Texas Peace Officer’s Crash Report, C.R. 65 (describing the damage to
Plaintiff’s vehicle as ‘1’ and the damage to Arlington’s vehicle as ‘0’).” Because the
City’s evidence failed to provide any means of deciphering the notations on the
report, we are unable to independently interpret the various codes used in it.
5
The City’s Charter in Article X, entitled “Miscellaneous Provisions,” provides,
4
Instead, the parties’ dispute centered on whether the facts established that the
City had actual awareness that Evans was physically injured in the accident. That
dispute focused on events that occurred at the accident scene or some weeks after the
accident when the same officer who investigated the accident arrested Evans for
outstanding warrants.
With respect to what occurred at the scene, a “crew leader” from the City’s
department that is responsible for supervising the driver of the City vehicle that was
involved in the accident signed an affidavit (which was attached to the City’s plea to
the jurisdiction) stating that he was called to the scene of the collision on the morning
that it occurred. The crew leader’s affidavit recounted that he had made certain
observations and had taken certain actions at the scene:
5. When I arrived at the scene of the accident, my crew member and
Christopher Evans were away from their vehicles and talking inside the
nearby gas station. Neither my crew member nor Christopher Evans
appeared injured.
Section 6. Claims of Damages: The City shall not be liable on
account of any claim for death, injury[,] or damages to any person or
property unless the person asserting such claims, or their representative,
shall give the City written notice of such claim by filing such written
notice with the City Secretary within one hundred eighty (180) days from
the time the incident causing such death or damages occurred, with a
statement of facts reasonably sufficient to form a basis of an intelligent
investigation, and no suit shall be instituted or maintained on any such
claim until the expiration of ninety (90) days from the time such notice
shall have been filed. (Adopted by Charter Amendment, May 10, 1988)
City of Arlington, https://www.arlingtontx.gov/city_hall/documents___permits/
city_charter (last visited on Sept. 29, 2022).
5
6. As part of safety procedures, I asked if anyone was injured. Neither
my crew member nor Christopher Evans reported any injuries to me.
7. I informed the parties that safety procedures required me to call a
Police Accident Investigator to the scene. Upon hearing this,
Christopher Evans stated that he needed to leave and left the scene.
8. I called 911 to report the accident. I informed the Emergency
Dispatcher that no one reported injuries at the accident. [Quotation
marks omitted.]
The officer who was called to the scene filed a report of his investigation of the
accident. The report also included a narrative that stated in part,
When I arrived[,] the driver of Unit 3 [Evans] left the scene and had a
fake license plate on the vehicle. The driver of Unit 3 and the VIN from
Unit 3 was determined two weeks later when I arrested the driver of
Unit 3 driving the same vehicle for outstanding warrants. The driver of
Unit 3 did not claim injury.
In Evans’s response to the City’s plea to the jurisdiction, he countered with his
own unnotarized affidavit in which he stated that he had remained at the accident
scene and had spoken with the driver of the City vehicle and had then remained “at or
near” the scene for fifteen minutes until the crew leader arrived. Evans’s affidavit
continued,
5. No employee of the City of Arlington asked me if I had sustained any
bodily injuries after the incident.
6. To the contrary, I exhibited signs of physical injury to m[y] knees,
neck, and back to employees of the City of Arlington while on scene of
the incident on January 13, 2020.
7. Both the driver of the F[-]450 and [the] Crew Leader for the City of
Arlington told me that they did not have the “blue card” or insurance
6
information card required to be given to me to report facts and details
surrounding the incident. [Quotation marks omitted.]
The trial court’s order denying the City’s plea to the jurisdiction contains the
following language describing what the court had considered in deciding the City’s
plea and making its dispositive finding:
After due consideration of the arguments of the parties and their
counsel, and the pleadings and affidavits on file herein, the [c]ourt finds
that [Evans] gave proper notice under Texas Civil Practice and Remedies
Code 101.101(c) and as such this [c]ourt has jurisdiction over the
Defendant City of Arlington with respect to [Evans’s] claims.
III. Analysis
A. The City is immune from suit, and the trial court lacks subject-
matter jurisdiction to hear Evans’s claim if the City did not receive
appropriate notice of his claim; in this case, the notice that was
required was actual subjective awareness on the part of the City
that Evans had suffered some injury in the accident.
Governmental immunity is the long-established common-law doctrine that
categorically bars suits for money damages against municipalities unless the legislature
has consented to suit. See City of Austin v. Leggett, 257 S.W.3d 456, 460 (Tex. App.—
Austin 2008, pet. denied) (first citing City of Galveston v. State, 217 S.W.3d 466, 469
(Tex. 2007); then citing Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); and
then citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (op. on
reh’g)). The municipality derives its immunity from the State because it is a political
subdivision of the State:
Political subdivisions of the state—such as counties, cities, and school
districts—are not sovereign entities, but under the governmental-
7
immunity doctrine, they share the state’s immunity when performing
governmental functions as the state’s agent. Governmental immunity
applies to municipalities . . . because they are quasi-public in nature with
powers “pertaining to the administration of general laws made to
enforce the general policy of the state.” And when enforcing the state’s
laws, municipalities “stand as does sovereignty, whose agents they are.”
Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019)
(footnotes omitted).6 But immunity is waived under the Tort Claims Act for
automobile accidents because a “governmental unit in the state is liable” for “property
damage” and “personal injury” caused by the negligence of the unit’s employees
arising “from the operation or use of a motor-driven vehicle.” Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(1)(A).
However, the Tort Claims Act also contains a notice provision, and notice of a
claim is a jurisdictional prerequisite for a trial court to have subject-matter jurisdiction
over a suit asserting a claim for which a municipality holds immunity. Worsdale v. City
of Killeen, 578 S.W.3d 57, 77 (Tex. 2019); 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.”).
The notice provision of the Tort Claims Act envisions notice in one of two
ways—either formal notice of the claim within six months after the incident at issue
occurred or actual notice of the same type of information that formal notice would
have provided and within the same time frame:
Evans does not challenge the fact that the City’s employee who struck him was
6
performing a governmental function at the time of the accident.
8
(a) A governmental unit is entitled to receive notice of a claim against it
under this chapter not later than six months after the day that the
incident giving rise to the claim occurred. The notice must reasonably
describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city’s charter and ordinance provisions requiring notice within a
charter period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by
Subsections (a) and (b) do 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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.101. The notice provision carries out a vital
purpose because it ensures “the prompt reporting of claims to enable governmental
units to gather information necessary to guard against unfounded claims, settle claims,
and prepare for trial.” City of San Antonio v. Rocha, No. 04-18-00367-CV, 2018 WL
6517169, at *2 (Tex. App.—San Antonio Dec. 12, 2018, no pet.) (mem. op.) (citing
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)).
As noted, Evans does not contend that he gave the City formal notice of his
claim within the six-month deadline prescribed by Section 101.101(a). Instead, he
argues that the facts establish that the City had actual notice that he had “received
some injury” when he was hit by the City’s vehicle. What constitutes actual notice is
a fact-based inquiry. Worsdale, 578 S.W.3d at 77. When a claimant fails to give formal
9
notice and instead relies on the fact-intensive determination of actual notice, the
claimant “must live with the uncertainty that is inherent in the actual-notice
exception.” Id. at 76.
To impart actual notice, a municipality must know more than that an incident
has occurred. Id. at 72 (“But mere knowledge that something happened somewhere
to someone or something would hardly ever be enough to alert a governmental unit
of alleged wrongdoing and the necessity of mounting a defense.”); City of Houston v.
Musyimi, No. 01-21-00670-CV, 2022 WL 2919724, at *5 (Tex. App.—Houston [1st
Dist.] July 26, 2022, no pet.) (mem. op.) (“But it is well-established that a
governmental unit’s awareness of an accident, without more, is not sufficient to show
that it had subjective knowledge of any personal injuries sustained in the accident.”).7
7
A prior opinion by this court suggested that notice of the incident may impart
notice of injury. See City of Wichita Falls v. Jenkins, 307 S.W.3d 854, 861 (Tex. App.—
Fort Worth 2010, pet. denied). As another court of appeals has pointed out, our
statement regarding notice of injury from the fact of an accident was dicta, and our
statement is contrary to a later holding by the Texas Supreme Court:
Jenkins is also inapposite because the Jenkins court held that the city clerk
was actually provided timely formal notice of the claim in that case. Id.at 858–61. Therefore, the Jenkins court’s statements regarding actual
notice are not necessary to the disposition of the appeal and are obiter
dicta. See id. [Appellee] cites Jenkins for the proposition that actual
notice includes notice “to the extent that a prudent entity could ascertain
its potential liability stemming from an incident, either by conducting
further investigation or because of its obvious role in contributing to the
incident.” Id. at 858. But, we may not follow this legal standard because
it has been disapproved by the Supreme Court of Texas. See [Tex. Dep’t
of Crim. Justice v.] Simons, 140 S.W.3d [338,] 346–48 [(Tex. 2004)].
10
Nor is the standard of actual notice met by claiming that if the governmental
unit had initiated an investigation, the investigation would have revealed the same
elements that formal notice would have provided—constructive notice is not
sufficient. See Simons, 140 S.W.3d at 347–48 (“It is not enough that a governmental
unit should have investigated an incident as a prudent person would have, or that it
did investigate, perhaps as part of routine safety procedures, or that it should have
known from the investigation it conducted that it might have been at fault.”); Musyimi,
2022 WL 2919724, at *5 (stating that “in assessing actual notice, the Supreme Court
of Texas has expressly rejected a standard that would require a governmental unit to
engage in further inquiry or investigation, recognizing that such a broad interpretation
would defeat the purpose of the notice provision” and that “‘[p]otential or
constructive notice is not enough’ for actual notice”).
What is required is “actual, subjective awareness” of the claimed injury. City of
San Antonio v. Cervantes, 521 S.W.3d 390, 394 (Tex. App.—San Antonio 2017, no pet.).
The First Court of Appeals described the characteristics of the awareness of injury
that the governmental entity must have as follows: “[T]he governmental unit must
have subjective awareness of the claimed injury. Potential or constructive notice is
not enough. To have actual notice, the governmental unit not only must have
knowledge of some injury but also [must have] information sufficient to identify the
City of Houston v. McGowen, No. 14-13-00415-CV, 2014 WL 2039856, at *7 (Tex.
App.—Houston [14th Dist.] May 15, 2014, no pet.) (mem. op.).
11
loss ultimately alleged.” Jones v. Bd. of Trs. of Galveston Wharves, 605 S.W.3d 641, 643
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (citations omitted); see also City of
Houston v. Villafuerte, No. 01-21-00517-CV, 2022 WL 2976233, at *4 (Tex. App.—
Houston [1st Dist.] July 28, 2022, no pet. h.) (mem. op.) (stating that “a governmental
unit has actual notice . . . if it has subjective awareness of ‘(1) a death, injury, or
property damage; (2) the governmental unit’s alleged fault that produced or
contributed to the death, injury, or property damage; and (3) the identity of the parties
involved’” (quoting City of San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018))).
This subjective awareness need not rise to an absolute certainty of the nature and
extent of the injury, and circumstantial evidence may be relied on to prove the
existence of subjective awareness. Rocha, 2018 WL 6517169, at *4.
B. We set forth the path we must follow to determine the standard of
review that applies to the resolution of this appeal.
After having given an overview of the requirements under Section 101.101(c)
that Evans must meet to establish that the City had actual subjective awareness of his
injury claim, we set out the standards that govern our review of this appeal. This
requires an examination of the somewhat byzantine decision tree for the review of
jurisdictional issues. We will ultimately conclude that whether decided as a legal issue
or a factual issue, the trial court erred by finding and concluding that the City had
subjective awareness of Evans’s personal-injury claim.
12
The City’s plea to the jurisdiction was a proper vehicle to raise its jurisdictional
challenge. See Musyimi, 2022 WL 2919724, at *5. It is a plaintiff’s burden to
demonstrate that the trial court has jurisdiction. City of San Antonio v. Smith, 562
S.W.3d 75, 81 (Tex. App.—San Antonio 2018, pet. denied) (citing Heckman v.
Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012)); see also Town of Shady Shores v.
Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (“A plaintiff has the burden to affirmatively
demonstrate the trial court’s jurisdiction. That burden encompasses the burden of
establishing a waiver of sovereign immunity in suits against the government.”
(citations omitted)).
When, as here, it is necessary for the trial court to review evidence in making
the jurisdictional determination, the court may do so and is not limited to a review of
the pleadings. Smith, 562 S.W.3d at 81 (“When a plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court considers the relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised.”
(citing Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, no
pet.))).
But the scope of the evidence introduced affects how a plea to the jurisdiction
should be resolved and who functions as the factfinder. The effect of the evidence’s
scope depends on whether it falls into one of two categories, which are described as
follows: “(1) those in which the jurisdictional issue or facts do not substantially
implicate the merits of the plaintiff’s case, but rather are, for the most part, separate
13
and distinct from the merits; and (2) those in which the jurisdictional issue or facts
implicate the merits of the plaintiff’s case.” Poindexter, 306 S.W.3d at 806. The
overarching test to determine whether the facts fall into the latter category is that
“many if not most of the challenged jurisdictional facts will also determine whether
the plaintiff is entitled to relief on the merits of her case.” Id. at 807.
Which of the two slots the facts fall into determines who will determine their
effect. When the evidence does not implicate the merits, the trial court acts as
factfinder—if a fact question is presented. Id. at 806. Facts that implicate the merits
of the plaintiff’s claim take a different path:
[In] cases in which the jurisdictional issue or facts do implicate the merits
of the plaintiff’s case, the trial court does not act as a factfinder. Instead,
the defendant is put to a burden very similar to that of a summary[-]
judgment movant. 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 at trial.
Smith, 562 S.W.3d at 81 (citations omitted).
And the treatment of the facts that do not implicate the merits obviously varies
depending on whether they are disputed or not. Id. “[W]hen the relevant
jurisdictional facts are undisputed, the trial court makes the jurisdictional
determination as a matter of law based solely on those undisputed jurisdictional
facts.” Id. Again, a plaintiff may rely on circumstantial evidence to prove notice;
“actual notice can be determined as a matter of law, even ‘when subjective awareness
must be proved, if at all, by circumstantial evidence.’” Worsdale, 578 S.W.3d at 66
14
(citing Simons, 140 S.W.3d at 348). We review legal determinations based on
undisputed evidence de novo. Musyimi, 2022 WL 2919724, at *4 (“Because the
jurisdictional evidence is undisputed, we review the actual-notice issue de novo as a
question of law.”); see also Tenorio, 543 S.W.3d at 776 (“Whether a governmental unit
has actual notice is a fact question when the evidence is disputed, but it is a question
of law when the evidence is undisputed.”).
When the facts are disputed, the trial court makes express or implied fact
findings that determine the plea to the jurisdiction. Musyimi, 2022 WL 2919724, at *4.
We review the trial court’s express or implied resolution of disputed facts to
determine whether they are supported by sufficient evidence. Worsdale, 578 S.W.3d at
66 (stating that “when the jurisdictional issue is not intertwined with the merits, we
must defer to the trial court’s express or implied factual determinations that are
supported by sufficient evidence”). Thus, we apply the usual standards of legal- and
factual-sufficiency review to determine whether the evidence supports the trial court’s
express or implied fact findings. Villafuerte, 2022 WL 2976233, at *2 (“On appeal, the
trial court’s jurisdictional fact findings may be challenged for legal and factual
sufficiency.”); City of San Antonio v. Hurón, No. 04-19-00570-CV, 2020 WL 3065426, at
*3 (Tex. App.—San Antonio June 10, 2020, pet. denied) (mem. op.) (“[O]n appeal,
any fact findings made to resolve the jurisdictional issue may be challenged, as any
other fact findings, for legal and factual sufficiency.”).
15
Here, the evidence does not implicate the merits of Evans’s claim; whether the
City had notice of his injury does not implicate facts that are determinative of whether
he can recover on the merits. And, ultimately, we conclude that agonizing over the
question of whether to resolve this appeal as a matter of law or as a factual matter is
of little consequence. The City made an initial showing that there was no evidence
that it had subjective awareness that Evans was injured. Evans—ineffectually—
attempted to offer evidence to rebut that state of the evidence. His evidence did not
materially rebut that the City lacked awareness, or stated differently, his evidence of
the City’s awareness did not rise above a scintilla. Thus, we can view the evidence as
undisputed and resolve this appeal as a matter of law or view it as a factual dispute in
which Evans failed to rebut what the City had established, with the latter approach
producing a failure of the evidence to support the trial court’s implied finding that the
City had awareness. Both paths lead to the same end—an absence of the notice
required by Section 101.101(c) for the trial court to have subject-matter jurisdiction.8
8
The City’s opening brief addresses an argument that Evans made in the trial
court but has now abandoned; the City notes Evans’s change of position in its reply
brief. The City addresses the argument that so long as a governmental unit has
knowledge of property damage, it has actual knowledge of any other claim—such as a
personal-injury claim—later made by a plaintiff. This argument turns on the fact that
Section 101.101(a) and (c) are phrased in the disjunctive, i.e., requiring formal notice
of “the damage or injury claimed” or actual notice “that the claimant has received
some injury[] or that the claimant’s property has been damaged.” Tex. Civ. Prac. &
Rem. Code Ann. § 101.101(a), (c). We agree with the City that a host of cases reject
the argument that notice of one is notice of the other. See Cervantes, 521 S.W.3d at 397(when personal-injury claim is alleged, Section 101.101 requires notice of claim being
made); Oswalt v. Hale Cnty., No. 07-21-00050-CV, 2022 WL 93613, at *3 (Tex. App.—
16
C. Based on the record before us, the trial court erred by denying the
City’s plea to the jurisdiction challenging that court’s jurisdiction
to hear Evans’s personal-injury claim.
We begin by briefly re-summarizing the evidence before the trial court. The
City offered the affidavit of the crew leader of the City employee who had operated
the truck that struck Evans’s car. When the crew leader arrived at the scene, he
observed both his crew member and Evans; neither appeared injured. The crew
leader asked if either his crew member or Evans were injured; neither “reported any
injuries” to him. When he mentioned that the police would have to be called to the
scene, Evans “stated that he needed to leave and left.” The crew leader then called
911 and stated that “no one [had] reported injuries at the accident.” Additionally,
though we do not know whether the investigating officer reported what he had been
told at the scene after Evans left or what Evans told the officer when he arrested him
some weeks later, the officer’s report stated, “The driver of Unit 3 [Evans] did not
claim injury.”
Amarillo Jan. 10, 2022, no pet.) (mem. op.) (“As the Cervantes court points out, it is the
claim about which the governmental unit is entitled to notice and the claim in Cervantes
as well as in the present case is a claim for personal injuries. . . . As such, actual notice
of a claim for property damage does not equate to actual notice of personal injury.”);
see also Musyimi, 2022 WL 2919724, at *6 (“We agree with the Oswalt court that, not
only does [S]ection 101.101’s language require notice of both a plaintiff’s property[-
]damage and personal[-]injury claim, but such a construction also serves the notice
requirement’s purpose.”); Villafuerte, 2022 WL 2976233, at *6 (“Because a
governmental unit is entitled to a reasonable description of the damage or injury
claimed, notice of one type of claim does not constitute notice of another, different
claim.”).
17
If this were the extent of the record, we would conclude this appeal as a matter
of law because there is no evidence that the City had a subjective awareness of
Evans’s claimed injury. As an analogy, we look to the First Court of Appeals’s
opinion in Jones. 605 S.W.3d at 644. In Jones, the plaintiff fell due to the presence of
water on the surface that she was walking on. Id. A security guard told the
investigating officer that the plaintiff’s knee and leg were red after the fall, but when
the officer then contacted the plaintiff, she “told the officer that she was ambulatory,
was not injured, and did not need medical assistance.” Id. Jones summarized why it
had concluded that the record did not impart subjective awareness of any personal
injury to the governmental unit:
On this spare record, we hold that the officer’s investigation did not
provide the Port with actual notice of Jones’s claim as a matter of law.
Standing alone, the fact that Jones’s fall was investigated does not
establish notice. The investigation did not make the Port subjectively
aware that Jones had been injured, let alone give the Port information
sufficient to identify the loss that she eventually asserted in her lawsuit.
Jones affirmatively disclaimed injury. The investigation showed no more
than that Jones fell, got back to her feet and departed, disavowed any
injury, and declined medical assistance. That’s not enough to give the
Port actual notice of an injury. As the Supreme Court has observed,
“mere knowledge that something happened somewhere to someone”
does not satisfy the Tort Claims Act’s actual-notice requirement.
Id. (citation omitted).
Though the evidence offered by the City is also spare, it shares the same
characteristics as that in Jones: (1) there was an automobile accident; (2) Evans
displayed no injuries and reported none; and (3) when he was informed the police
18
would be called, he left the scene. Thus, the City’s evidence shows that though there
was an accident, the City had no subjective awareness of an injury to Evans because
he manifested and reported none.
But here, we are dealing with a different situation than Jones because Evans filed
his own affidavit in opposition to the City’s plea to the jurisdiction. Though the
parties do not put it in these terms, the question is whether Evans offered more than
a scintilla of evidence to create a fact issue on the question of the City’s subjective
awareness, which in turn would make the issue a fact question for the trial court and
thus support its implied finding that the City was aware of Evans’s alleged personal
injury.9 To accomplish all of these tasks, Evans’s affidavit stated that no City
employee “asked [him] if [he] had sustained any bodily injuries after the incident” and
that he had “exhibited signs of physical injury to [his] knees, neck, and back to
employees of the City of Arlington while on scene of the incident.” 10
We will sustain a legal sufficiency challenge if (1) there is a complete absence
9
of evidence of a vital fact, (2) the court is barred by rules of law or evidence from
giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168
S.W.3d 802, 810 (Tex. 2005). “Evidence does not exceed a scintilla if it is ‘so weak as
to do no more than create a mere surmise or suspicion’ that the fact exists.” Akin,
Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp., 299 S.W.3d 106, 115
(Tex. 2009) (quoting Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).
10
Evans’s affidavit also stated that “[b]oth the driver of the F[-]450 and [the]
Crew Leader for the City of Arlington told [him] that they did not have the “blue
card” or insurance information card required to be given to [him] to report facts and
details surrounding the incident.” We are left in the dark about what Evans hoped to
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Even if we accept as true that no one asked Evans if he was injured, the City’s
evidence still stands that he did not appear injured, that he reported no injury, and
that he left the scene when informed that the police were being called to the accident
scene. So the question becomes whether Evans’s assertion—that he “exhibited”
injuries—carries the day. It was Evans’s choice to use a word as vague as “exhibit” in
his affidavit. The definition of “exhibit” is merely “to present to view.” See Merriam-
Webster, https://www.merriam-webster.com/dictionary/exhibit (last visited Sept. 30,
2022). We do not know how Evans presented his alleged injuries because he does not
tell us. Did he limp; was a portion of his body red; or did he state to the City’s
employees, “I am hurt”? Evans’s choice to use a word so vague as “exhibit” leaves us
without any means to determine whether the form of exhibition that he made created
the subjective awareness of an injury that is required to meet the standards of Section
101.101(c). For this reason, Evans’s assertion does not constitute more than a
scintilla of evidence of the level of notice that he allegedly gave the City.
Thus, from one perspective, the record lacks sufficient evidence to create a
factual dispute, and we may conclude as a matter of law that the City lacked actual,
subjective awareness of Evans’s personal-injury claim. Or from a factual perspective,
the record does not contain sufficient evidence to support the trial court’s implied
finding that the City had the same type of notice that it would have received had
establish with this statement. Nothing in Section 101.101 or the Arlington City
Charter requires the City to provide a plaintiff with the means to report an injury.
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Evans sent the City a timely formal notice of his personal-injury claim. Evans finds
himself in the unfortunate situation of those who fail to give formal notice of a claim
and instead leaves the fate of the litigation to the uncertain—and in this case,
unavailing—effort to establish that a governmental unit had subjective awareness.
For the sake of completeness, we also address Evans’s arguments suggesting
that circumstantial evidence supports a finding that the City had subjective awareness
of his personal-injury claim. This argument appears to take two forms. First, Evans
argues that the City intentionally avoided asking him if he was injured, that we should
infer that the City knew that he was injured, and that the City was attempting to turn a
blind eye to that fact. 11 This argument is, in essence, that the City had a duty to
investigate and to determine whether Evans was injured. A governmental unit has no
such duty. See Musyimi, 2022 WL 2919724, at *5.
Evans’s next circumstantial argument is that we should infer awareness from
the fact that the police report, apparently written after Evans’s arrest some weeks after
the accident, mentions that he did not claim an injury. To quote Evans’s brief,
Furthermore, the crash report completed by Officer J. Hawthorne is
evidence that the City of Arlington was aware of the connection made as
they made it a point to mention that Mr. Evans [“]did not claim
11
Evans specifically argues that
[t]he City of Arlington’s reluctance and failure to directly ask Mr. Evans[]
about his physical injuries in conjunction with his Affidavit stating [that]
he exhibited signs of physical injury to City of Arlington Employees
provide for circumstantial evidence of their subjective awareness of
Mr. Evans’[s] ultimate claims for personal injury.
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injury[.”] The City of Arlington had multiple opportunities to ask Mr.
Evans directly if he had any injuries stemming from the incident[] but
willfully refrained from doing so. Mr. Evans had received medical
treatment five (5) times from the date of the incident to his subsequent
arrest in February by Officer J. Hawthorne of the Arlington Police
Department.
If the City of Arlington had no subjective awareness of
Mr. Evans’[s] connection between the incident in question and his
personal injuries, why would [it] make a note of it in [its] crash report for
an arrest that occurred roughly three (3) weeks [after] the incident? The
City of Arlington, in [its] effort[] to turn a blind eye to Mr. Evans’[s]
personal[-]injury claim, provided [its] knowledge and subjective
awareness of Mr. Evans’[s] ultimate claim for personal injury. [Footnote
omitted.]
Again, Evans turns to the willful-blindness argument that we have already rejected.
He then augments that argument with evidence of medical treatment that, even if
helpful to his argument, we cannot consider because it is not part of the appellate
record. See Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572 (Tex. App.—
Fort Worth 2003, pet. denied) (“We cannot look outside the record in an effort to
discover relevant facts omitted by the parties; rather, we are bound to determine this
case on the record as filed.”).
We also reject the inference that Evans attempts to draw with his question:
“[i]f the City of Arlington had no subjective awareness of Mr. Evans’[s] connection
between the incident in question and his personal injuries, why would [it] make a note
of it in [its] crash report for an arrest that occurred roughly three (3) weeks [after] the
incident?” A sneaking suspicion does not carry Evans’s burden that the City had
subjective awareness of an injury. See Hanson v. Fort Worth & Western R.R. Co., No. 02-
22
21-00244-CV, 2022 WL 1043130, at *8 (Tex. App.—Fort Worth Apr. 7, 2022, no
pet.) (mem. op.) (stating that circumstantial evidence, which supports multiple
inferences or which is too meager to support that an inference should be drawn, is no
evidence). There are a number of inferences that can be drawn from the timing of the
report, such as that the officer was reminded by Evans’s arrest of the need to prepare
the report or that the officer had a certain time period in which to prepare the report
and that such period had not lapsed by the time he made the report following Evans’s
arrest. And Evans attempts to draw an inference that contradicts the evidence he
cites, that is, the City had awareness because it stated that it did not have awareness.
That inference is too attenuated to do the lifting that Evans wants it to do—the City
must be lying because it said that it did not have awareness.
IV. Conclusion
It is undisputed that the City did not receive timely formal notice of Evans’s
personal-injury claim. We conclude as well that the City did not have timely
subjective awareness of that claim. The trial court erred by denying the City’s plea to
the jurisdiction challenging its subject-matter jurisdiction to hear Evans’s personal-
injury claim based on that court’s finding that Evans “gave proper notice under
Texas Civil Practice and Remedies Code [Section] 101.101(c).” We therefore reverse
the trial court’s order denying the City’s plea to the jurisdiction and render judgment
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dismissing the portion of Evans’s suit seeking personal-injury damages for lack of
subject-matter jurisdiction.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: October 6, 2022
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