City of Monahans v. Southwestern Bell Telephone Company D/B/A AT&T Texas ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
CITY OF MONAHANS, TEXAS, No. 08-21-00088-CV
§
Appellant, Appeal from the
§
v. 143rd Judicial District Court
§
SOUTHWESTERN BELL TELEPHONE of Ward County, Texas
COMPANY d/b/a AT&T TEXAS, §
(TC# 19-11-25253-CVW)
Appellee. §
OPINION
Appellant the City of Monahans (the City) brings this interlocutory appeal of the trial
court’s denial of its plea to the jurisdiction. Appellee Southwestern Bell Telephone Company d/b/a
AT&T (AT&T) filed suit alleging that employees of the City negligently damaged a buried cable
owned by AT&T while they worked on a water line. In two issues, the City asserts the trial court
erred in denying the plea to the jurisdiction because (1) undisputed evidence established the City
did not have “actual notice” of AT&T’s claim within six months of the incident as required for a
waiver of immunity under the Texas Tort Claims Act (TTCA); and (2) the City performed an
activity—emergency repair of a water main—for which governmental immunity was fully
retained. 1 We affirm.
I. BACKGROUND
On Sunday, November 12, 2017, at 10:58 a.m., a 911 caller reported a fire hydrant was
leaking and spraying water at 200 S. Betty Avenue in the City of Monahans. After the call was
referred to the City’s Water Department, Stephen Lario, a field service technician and backhoe
operator, was notified of the problem. When Lario arrived on scene, he saw the fire hydrant was
missing and water was coming out of the ground.2 Lario next called his supervisor, Keith Mitchell,
who soon arrived on site. After Mitchell determined that emergency repairs 3 were needed, he put
in a request to the Police Department to make a Texas 811 locate request (811 request). 4 At
approximately 11:58 a.m., the Police Department issued such request.
The City’s utility crew described the area where the water was leaking as a hole in the
ground “big enough for a car to fit in.” As a crew began digging in the area, they could not see any
buried utility lines because the hole was full of water and concrete. At approximately 1:30 p.m.,
the crew struck AT&T’s underground telephone line, damaging the line. Mitchell contacted the
Police Department to report the damage and to notify AT&T. Up to that point, the City had not
received a response to their request asking for the location of AT&T’s lines. USIC—a company
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101, 101.0215(a)(11), (32).
2
The City later learned the cause of the leak was a car hitting the fire hydrant.
3
In its brief, the City’s describes that “emergency repairs required the City’s utility crew to excavate at a depth greater
than sixteen inches.” Such emergency excavation “triggered Texas’ one-call laws under Chapter 251 of the Texas
Utility Code.” See TEX. UTIL. CODE ANN. § 251.002(5), .151.
4
The City is a member of the “Texas 8-1-1” service which is called anytime digging into the ground occurs in order
to obtain line locates. The “lines” can be gas lines, electric lines, phone lines, water lines, etc.
2
that contracts with utilities to respond to 811 requests for location of underground lines—showed
up on scene at approximately 1:36 p.m.
On December 5, 2017, Mitchell prepared an incident report. A report of this nature, he
explained, is prepared “only if there’s any damages,” such as “if . . . guys strike a . . . a buried
line[.]” The one-page report appeared in part as follows:
Under the “How Damage Occurred,” Mitchell handwrote the following:
I got a phone call from Steven 11-12-17 about 11:00 a.m. He told me we had a leak
at Betty and Second Street. When I got there[,] I called [the] police department and
asked them to call 811. That was about 11:45 a.m. At about 1:30 p.m.[,] we hit a
phone line. At about 1:36 p.m.[,] USIC showed up. We continued fixing the leak
till about 6:00 p.m. The phone lines were still not marked when we left.
The face of the report includes a stamp indicating, “Received,” “Dec. 05, 2017,” “City of
Monahans.” Mitchell testified he filed the report in a room called “the map room.” When such a
report is prepared, he further described that Bobby Sinclair—Director of Public Utilities—would
sometimes “look at it,” but he could not recall whether that occurred with this report.
Months later, on May 29, 2018, AT&T faxed a letter to the City making a demand for
payment pursuant to a claim for damages caused to AT&T’s property located at 2nd Street and
3
Betty, Monahans, Texas, on or about November 12, 2017. The letter indicated the City had caused
$42,615.66 in total damages to AT&T’s property located at 2nd Street and Betty.
On November 11, 2019, AT&T filed suit against the City alleging employees of the City
were negligent in the operation of motor-driven equipment such that immunity was waived under
the TTCA. The suit alleged the City had full, complete, and actual knowledge of the occurrence
giving rise to AT&T’s cause of action. The City filed a plea to the jurisdiction in response,
asserting AT&T sent written notice of its claim more than six months after the incident. The City
contended such written notice was the first notice, written or otherwise, that AT&T provided to
the City regarding its claim for alleged damages to a buried cable line. The City further contended
it retained its immunity, subject to the limited waiver provisions of the TTCA, because it was
acting in furtherance of its governmental function at the time the incident occurred. The City
supported its plea with multiple exhibits including the affidavit of Rex Thee, the City Manager, a
copy of the 811-request response sheet, and AT&T’s demand letter. The City also filed
supplemental affidavits from David Mills, the former City Manager, and Lorena Marquez, the
former City Secretary. AT&T responded to the plea, attaching the depositions of Thee, Mitchell,
Lario, and Brandon Navarro—a meter technician with the City.
The trial court denied the City’s plea to the jurisdiction. This interlocutory appeal followed.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (allowing interlocutory appeals from the
granting or denial of plea to jurisdiction by a governmental entity.)
II. STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a suit for lack of subject
matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Because immunity
from suit defeats a trial court’s subject matter jurisdiction, such immunity is properly asserted in a
4
plea to the jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26
(Tex. 2004). A plea challenging the trial court’s jurisdiction raises a question of law reviewed de
novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).
A plea to the jurisdiction can challenge either the pleadings or the existence of
jurisdictional facts. See Miranda, 133 S.W.3d at 226-27. When a plea to the jurisdiction challenges
a plaintiff’s pleadings, the determination turns on whether the pleader has alleged sufficient facts
to demonstrate the court’s subject matter jurisdiction over the matter. Id. We construe the pleadings
liberally in favor of the plaintiff and look to the pleader’s intent. City of Waco v. Kirwan, 298
S.W.3d 618, 621 (Tex. 2009). If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the
opportunity to amend. Miranda, 133 S.W.3d at 226-27. If the pleadings affirmatively negate the
existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to amend. Id. at 227.
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, even where those facts may implicate the merits of the cause of action. Kirwan, 298 S.W.3d
at 622. If the evidence creates a fact issue as to the jurisdictional issue, then it is for the fact finder
to decide. Id. 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. In
considering this evidence, we take as true all evidence favorable to the nonmovant and indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.
5
III. SUBJECTIVE AWARENESS OF FAULT
In its first issue, the City contends the trial court erred in denying its plea to the jurisdiction
because the undisputed evidence fails to establish the City had notice of AT&T’s claims within
six months of the incident. The City argues that AT&T failed to show either that it provided the
City with timely, formal notice of a claim or that the City had subjective awareness that its fault
caused or contributed to AT&T’s damage such as to establish actual notice of a claim under the
TTCA. 5 Although AT&T does not contest whether it provided timely, formal notice of its claim
to the City, it nonetheless contends the trial court correctly denied the City’s plea because the
evidence raises at least a fact question regarding the City’s actual notice of such claim. AT&T
points to the extensive evidence before the Court reflecting the City’s knowledge of the incident
on the date it occurred, as well as evidence establishing the filing of an incident report nearly a
month later.
A. Controlling law
As a political subdivision of the State of Texas, the City is generally immune from suits
for money damages unless immunity has been clearly and unambiguously waived by statute.
Worsdale v. City of Killeen, 578 S.W.3d 57, 62 (Tex. 2019); City of El Paso v. Viel, 523 S.W.3d
876, 882 (Tex. App.—El Paso 2017, no pet.). Such governmental immunity defeats a trial court’s
subject matter jurisdiction, and thus, it is properly asserted in a plea to the jurisdiction. Miranda,
133 S.W.3d at 225-26; see also City of El Paso v. Waterblasting Techs., Inc., 491 S.W.3d 890, 894
(Tex. App.—El Paso 2016, no pet.) (a plea to the jurisdiction based on governmental immunity
challenges a trial court’s subject matter jurisdiction). The TTCA waives governmental immunity
5
On appeal, the City does not advance an argument based on the notice provision included in its City Charter. Thus,
we consider any such argument abandoned on appeal. To that extent, we do not consider AT&T’s argument included
in its briefing which otherwise addressed the City’s charter.
6
for property damage, personal injury or death, but only in limited circumstances, and only if the
claimant gives notice as prescribed by law. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021,
.101. A claimant must give the governmental entity notice within six months of the incident which
gives rise to the claim. Id. § 101.101(a).
In section 101.101 of the TTCA, two types of notice are provided—formal notice and
actual notice. Id. §§ 101.101(a) - (c). These two notice provisions work in tandem. Worsdale, 578
S.W.3d at 70. The formal-notice requirements appear in subsection (a) and (b), while the actual-
notice is provided for in subsection (c). Id. Together, the relevant provisions appear as follows:
(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.
Id. § 101.101. A failure of adequate notice within the appropriate time deprives a trial court of
subject-matter jurisdiction and requires the dismissal of the case. 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.”).
7
B. Analysis
Absent formal, written notice, a claim may proceed against a governmental unit only if the
entity had actual notice of a claim. See Worsdale, 578 S.W.3d at 77. Here, it is undisputed that
AT&T did not provide the City with formal notice within the prescribed period. Instead, AT&T
relies on subsection (c)’s actual notice to show the required notice was met. See id. § 101.101(c).
Interpreting subsection (c), the Supreme Court of Texas has held that this provision requires not
only knowledge of some harm but also information sufficient to (1) identify the particular loss
ultimately alleged, and (2) to alert the governmental unit to something impending to allow
preparations to be made. Worsdale, 578 S.W.3d at 70-71; City of San Antonio v. Tenorio, 543
S.W.3d 772, 776 (Tex. 2018); see also See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c).
The record demonstrates, as of November 12, 2017, the City received notice of the
following: (1) a 911 caller reported a fire hydrant leaking and spraying water; (2) the police
department next notified the City’s Utility Department, which soon issued an emergency 811
request; (3) after issuing the request, a work crew of the City began excavations to repair the
damaged water main; (4) at approximately 1:30 p.m., city workers hit a buried telephone line
belonging to AT&T; (5) the backhoe operator told the on-scene supervisor that AT&T’s buried
line was damaged after the backhoe struck the line; (6) on December 5, 2017, the supervisor filed
an incident report with the City describing, “[a]t about 1:30 p.m. we hit a phone line.”
The City contends the undisputed facts establish the City did not have actual notice as a
matter of law. First, the City explains, as an excavator, it was required to provide forty-eight hours’
notice of its intent to excavate through the Texas 811 notification center. See TEX. UTIL. CODE
ANN. § 251.151. An exception applies when the excavator is performing an emergency excavation,
to which the excavator can begin “immediately and shall take reasonable care to protect
8
underground facilities.” Id. § 251.155(b). Due to the emergency situation, the City contends it
began excavation immediately and that neither AT&T, nor USIC, responded to the emergency 811
request to warn of its underground telecommunication line. Considering the subject of this
proceeding and the current stage of the litigation, we conclude this argument is not relevant.
Here, reliance on the emergency nature of the situation is irrelevant to whether the City
had actual notice of the claim. Any disagreements on the timing of the City’s actions, its authority
to act, and the circumstances revolving about its actions are all factual disagreements that would
be resolved by the fact finder if subject matter jurisdiction is otherwise conferred. Furthermore,
the City’s reliance on the emergency nature of the situation more aptly supports its position that it
should not be held liable on the merits. As noted by the Supreme Court of Texas, however,
“[w]hether the City believed it was liable or not is not the standard” applied for whether a
governmental entity had actual notice of a claim under the TTCA. Worsdale, 578 S.W.3d at 67.
Next, the City argues there is no evidence it had actual notice because AT&T cannot cite
to any communication between AT&T and the City about the incident within the six-month period
following the occurrence, other than Mitchell’s request to the Police Department to notify AT&T
of the damaged telecommunication line, which it asserts was required by law. Id. TEX. UTIL. CODE
ANN. § 251.159(a). The City contends the incident report demonstrates its lack of subjective
awareness of fault. Specifically, it argues the report affirmatively points to USIC’s failure to mark
the location of the buried telecommunication line as the only cause or contributing factor for the
incident. At their respective depositions, the City employees testified that USIC was at fault
because they did not initially respond or took too long to respond to the City’s 811 request.
The City relies on two cases to assert it did not have actual notice as required by the TTCA.
First, in City of Dallas v. Carbajal, the plaintiff sued the City for injuries she sustained after driving
9
onto an excavated road. 324 S.W.3d 537, 538 (Tex. 2010). The responding police officer filed a
written report where he described “there were no barricades blocking the gap in the road.” Id. The
Dallas Court of Appeals concluded the report provided actual notice to the City. Id. Noting that
“merely investigating an accident is insufficient to provide actual notice,” the Supreme Court
reversed. Id. at 538. The Supreme Court held that the report “did not provide the City with
subjective awareness of fault because it did not even imply, let alone expressly state, that the City
was at fault.” Id. at 539. The Court noted that the report did not note who failed to erect or maintain
the barricades and such report was no more than a routine safety investigation. Id.
Second, in City of San Antonio v. Tenorio, the Supreme Court of Texas also found a police
report’s description of an incident to be insufficient to support actual notice of a claim. 543 S.W.3d
at 778. There, a head-on car collision severely injured a woman and killed her husband. Id. at 774.
The collision occurred after a motorist entered the highway going the wrong way. Id. Police
officers were in active pursuit of the motorist as a suspect in an armed robbery. Id. The police
report listed “Fleeing or Evading Police” as a factor and condition contributing to the crash. Id. at
778. However, the Supreme Court held that such information included in a police report did not
amount to an express statement or even an implication of the City being at fault regarding the head-
on collision. Id. The Court held the City did not have actual notice because “nothing in the crash
report, witness statements, or case report indicate, either expressly or impliedly, that the [Police
Department] subjectively believed its officers acted in error by initiating or continuing the pursuit
such that they were in some manner responsible for the injuries.” Id.
We view the record of this case as distinguishable from the facts presented in Carbajal and
Tenorio. Here, Mitchell testified that incident reports are not prepared every time there is a water
leak, but rather only “if there’s any damages.” The incident report then states, “we hit a phone
10
line,” and further identifies: “ Charges for Damages to: AT&T phone line.” The City attempts to
argue that Mitchell’s statement in the report that “[t]he phone lines were still not marked when we
left,” affirmatively shows “USIC’s failure to mark the location of Appellee’s buried
telecommunication line as the only cause or contributing factor for the Incident.” The City asserts
actual notice is lacking because AT&T ignores, like in Carbajal, “the possibility of USIC’s
responsibility for the City striking its underground telecommunication and, thus, ignored that the
City did not have subjective awareness that its fault caused or contributed” to AT&T’s damages.
We disagree.
The Supreme Court has held the critical inquiry for actual notice involves “the
governmental unit’s actual anticipation of an alleged claim rather than subjective confirmation of
its actual liability.” Worsdale, 578 S.W.3d at 68. In Worsdale, after plaintiffs were injured when
their motorcycle collided with a large dirt mound, the police report stated the road was currently
blocked by a dirt pile that closed the roadway and there were no signs, barricades, or cones present
to indicate the closed roadway. Id. Additionally, as part of the investigation, the officer spoke with
city officials regarding responsibility for road maintenance and warning signs. Id. at 60. Although
jurisdiction between the City and the county were disputed, the City removed the dirt pile and
installed permanent road-closure signs and barricades, two days after the accident. Id. The Court
held “a dirt pile completely obstructing an otherwise open road is itself a defect, or a ‘fault,’ that
is necessarily attributable to someone,” and that the “investigation went beyond the direct cause
of the collision and instead delved into whether the City was charged with maintaining the road.”
Id. at 68.
Differing from the reports in Carbajal and Tenorio, Mitchell’s incident report filed with
the City plainly acknowledges “we hit a phone line.” And based on deposition testimony, there is
11
no question here that workers of the City knew they struck AT&T’s phone line while working the
day of the incident. The City claims there is no showing that it “made the connection or had
knowledge that the connection had been made” between damages and responsibility as alleged by
AT&T. The incident report itself, however, shows Mitchell, acting in the capacity as the on-site
supervisor of the city’s work crew, made a connection between AT&T’s damaged telephone line
and the crew’s activities during the repair of a water leak. Moreover, the work crew clearly
understood the backhoe had struck and damaged the line during the crew’s excavation of the hole.
Rather than having a lack of awareness of fault, the City had such knowledge but shifted the blame
or responsibility to another party. Essentially, the City argues the lines were not timely marked by
USIC. The applicable standard for actual notice, however, is not whether the City believes it is
liable or not. Tenorio, 543 S.W.3d at 776; Worsdale, 578 S.W.3d at 68. Rather, the standard is
whether the City “has subjective awareness that its fault, as ultimately alleged by the claimant,
produced or contributed to the claimed injuries.” Tenorio, 543 S.W.3d at 776. Here, all three
elements of actual notice under the TTCA were established by undisputed evidence of the City
subjective knowledge of: (1) AT&T’s property damage; (2) the City’s fault that produced or
contributed to the property damage; and (3) the identity of the parties involved. Id. Viewing the
evidence favorable to the nonmovant and indulging every reasonable inference and resolving any
doubts in the nonmovant’s favor, as we must, we conclude the City failed to establish as a matter
of law that it lacked actual notice of AT&T’s claim for property damages.
We overrule the City’s first issue.
IV. THE WAIVER OF GOVERNMENTAL IMMUNITY
In its second issue, the City asserts the trial court erred in denying its plea to the jurisdiction
because its utility crew was performing an activity—emergency repair of its water main—which
12
is closely related to or necessary to services and functions expressly designated as “governmental”
under the TTCA. As compared to proprietary functions, the City argues waterworks and water and
sewer related services are classified as governmental functions. Based on that classification, it
further argues that full immunity is afforded for its performance of such activities. Although we
agree in general terms that a municipality engaged in a governmental function is entitled to
governmental immunity to the extent not waived, we disagree with the City to the extent it broadly
argues the limited waiver afforded by the TTCA does not apply in this instance.
The Texas Constitution authorizes the Legislature to “define for all purposes those
functions of a municipality that are to be considered governmental and those that are proprietary,
including reclassifying a function’s classification assigned under prior statute or common law.”
Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006) (citing Tex. Const. art. XI, § 13); see
also Gay v. City of Wichita Falls, 457 S.W.3d 499, 504 (Tex. App.—El Paso 2014, no pet.)
(recognizing the 1987 Texas constitutional amendment gave the Legislature authority to define
governmental and proprietary functions, including the authority to reclassify definitions already
existing at common law). Based on this grant of authority, governmental functions include
waterworks and water and sewer service. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(11),
(32). When performing governmental functions, municipalities derive governmental immunity
from the state’s sovereign immunity. See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex.
2007). Like sovereign immunity, governmental immunity can be waived by the Legislature. Id.The TTCA waives governmental immunity in limited circumstances. Texas Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Relevant to this claim, section 101.021
of the TTCA provides that a governmental unit in the state is liable for “(1) property damage, . . .
proximately caused by the wrongful act or omission or the negligence of an employee acting within
13
his scope of employment if: (A) the property damage, . . . arises from the operation or use of . . .
motor-driven equipment; and (B) the employee would be personally liable to the claimant
according to Texas law[.]” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A), (B).
Here, the City is a governmental unit as defined by the TTCA. Id. § 101.001(3)(B). In
seeking property damages, AT&T’s live pleading asserted causes of action for negligence,
negligence per se, or both. Specifically, it asserted that damages were proximately caused by
employees of the City failing to control the motor-driven construction equipment such as to avoid
cutting or otherwise damaging AT&T’s buried cable. Lastly, AT&T asserted that the City’s
immunity was otherwise waived under the TTCA based on city employees’ negligent operation of
motor driven equipment.
To support these allegations, AT&T relies on testimony of city utility workers who were
working on scene to repair a broken water line. These witnesses testified consistently that, while
engaged in excavating a hole to repair a broken water line, an employee operating a motor-driven
backhoe directly struck and damaged AT&T’s buried line. Moreover, the testimony is
corroborated by an incident report submitted to the City by supervisor Keith Mitchell, wherein he
reported “we hit a phone line.” Courts have held that a motor-driven backhoe qualifies as “motor-
driven equipment” allowing for the application of the limited exception to immunity provided by
the TTCA. See City of Houston v. Sw. Bell Tel. Co., No. 01-16-00734-CV, 2017 WL 3262131(Tex. App.—Houston [1st Dist.] 2017, no pet.) (mem. op.); Kilburn v. Fort Bend Cnty. Drainage
Dist., 411 S.W.3d 33, 41 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Here, AT&T has alleged facts supporting its claim that its damages arise from a city
employee’s use of motor-driven equipment, i.e., a backhoe, and that there is proximate causation
between the employee’s alleged negligence and the damage to AT&T’s line. Accordingly, we hold
14
the trial court did not err in denying the City’s plea to the jurisdiction based on lack of subject
matter jurisdiction.
We overrule the City’s second issue.
V. CONCLUSION
We affirm the trial court’s order denying the City’s plea to the jurisdiction.
GINA M. PALAFOX, Justice
November 22, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
15