                                                                                           ACCEPTED
                                                                                       06-15-00090-CV
                                                                            SIXTH COURT OF APPEALS
                                                                                  TEXARKANA, TEXAS
                                                                                  12/4/2015 8:57:19 AM
                                                                                      DEBBIE AUTREY
                            NO. 06-15-00090-CV                                                  CLERK


                   IN THE SIXTH COURT OF APPEALS
                        AT TEXARKANA, TEXAS
                                                              FILED IN
                                                       6th COURT OF APPEALS
                                                         TEXARKANA, TEXAS
                                                       12/4/2015 8:57:19 AM
            TEXAS DEPARTMENT OF           TRANSPORTATION
                                                           DEBBIE AUTREY
                                            Appellant,         Clerk
                                     V.

                             HALEY BROWN
                                       Appellee.


    On Appeal from the 62nd Judicial District Court, Lamar County, Texas,
           Cause No. 82395, The Honorable Will Biard, Presiding


BRIEF OF APPELLANT TEXAS DEPARTMENT OF TRANSPORTATION


KEN PAXTON                GARLAND WILLIAMS
ATTORNEY GENERAL OF TEXAS State Bar No. 24079580
                          Assistant Attorney General
CHARLES E. ROY            P. O. Box 12548
FIRST ASSISTANT ATTORNEY  Austin, Texas 78711-2548
GENERAL                   Telephone:(512) 463-2004
                          Facsimile: (512) 472-3855
JAMES E. DAVIS            Garland.Williams@texasattorneygeneral.gov
DEPUTY ATTORNEY GENERAL
FOR CIVIL LITIGATION

RANDALL K. HILL
ASSISTANT ATTORNEY GENERAL
CHIEF, TRANSPORTATION
DIVISION

                   ATTORNEYS FOR APPELLANT
           THE TEXAS DEPARTMENT OF TRANSPORTATION

ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Parties to the Trial Court’s Order

Texas Department of Transportation Defendant/Appellant
(“TxDOT”)

Haley Brown                          Plaintiff/Appellee

Counsel

Garland Williams                     Trial and Appellate Counsel for the Texas
Assistant Attorney General           Department of Transportation
Transportation Division
P. O. Box 12548
Austin, Texas 78711-2548

Dale Henley                          Trial and Appellate Counsel for Haley Brown
Mayo Mendolia & Vice LLP
5368 State Highway 276
Royse City, Texas 75189-5738




                                        ii
                                        TABLE OF CONTENTS

                                                                                                              Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

        I.       Whether Plaintiff’s suit should be dismissed for lack of notice of
                 claim and lack of actual notice under the Texas Tort Claims Act.

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

        I.       Plaintiff’s suit should be dismissed for lack of notice of claim and
                 lack of actual notice under the Texas Tort Claim’s Act. . . . . . . . . . . 6

                 A.       Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                 B.       Sovereign immunity bars Plaintiff’s suit unless Plaintiff
                          proves a waiver under the Texas Tort Claims Act . . . . . . . . . . 8

                 C.       Lack of notice of claim under the Texas Tort Claims Act
                          prevents a waiver of sovereign immunity. . . . . . . . . . . . . . . . . 9

                 D.       There is no evidence TxDOT received formal notice of
                          Plaintiff’s claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                 E.       There is no evidence that TxDOT had actual
                          notice of Plaintiff’s claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


                                                         iii
                           1.         The Attorney General Letter Opinion is no
                                      evidence of actual notice . . . . . . . . . . . . . . . . . . . . . . . 13

                           2.         The RK Hall Incident Report is no evidence
                                      of actual notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

                           3.         The testimony Michael Cody Reeves is no
                                      evidence of actual notice . . . . . . . . . . . . . . . . . . . . . . . 15

                           4.         The Police Accident Report is no evidence of
                                      actual notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

APPENDIX

Order Denying Texas Department of Transportation’s Motion to Dismiss for Lack of
Jurisdiction and No Evidence Motion for Summary Judgment . . . . . . . . . . . Tab A




                                                           iv
                                  INDEX OF AUTHORITIES

Cases                                                                                                 Page

Cathey v. Booth,
     900 S.W.2d 339 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

City of Dallas v. Carajal,
       324 S.W.3d 537 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Davis v. Mathis,
      846 S.W.2d 84 (Tex. App.—Dallas 1992, no writ) . . . . . . . . . . . . . . . . . . 10

Gonzalez v. El Paso Hosp. Dist.,
     940 S.W.2d 793 (Tex. App.—El Paso 1997, no pet.) . . . . . . . . . . . . . . . . . 10

Merrell Dow Pharms., Inc. v. Havner,
     953 S.W.2d 706 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Dep’t of Crim. Justice v. Simons,
      140 S.W.3d 338 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Tex. Dep’t of Transp. v. York,
      284 S.W.3d 844 (Tex. 2009) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9

Univ. of Tex. Sw. Med. Ctr. v. Arancibia,
      324 S.W.3d 544 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser,
      140 S.W.3d 351 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitutional Provisions, Statutes, and Rules

TEX. CIV. PRAC. & REM. CODE §101.025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. CIV. PRAC. & REM. CODE §101.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


                                                     v
TEX. GOV’T CODE §311.034 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Tex. R. Civ. P. 93(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                         vi
                         STATEMENT OF THE CASE

Nature of the Case:     This is a personal injury/premises liability case brought by
                        Plaintiff Haley Brown for injuries sustained when she
                        collided with construction equipment parked on the shoulder
                        of a State Highway.

Trial Court:            The Honorable Will Biard, Presiding Judge, 62nd Judicial
                        District Court, Lamar County, Texas.

Trial Court Disposition: The trial court entered an Order denying Defendant Texas
                         Department of Transportation’s Motion to Dismiss for Lack
                         of Jurisdiction and No Evidence Motion for Summary
                         Judgment. CR 1045 (App. A).




                                       vii
                             ISSUES PRESENTED

I.   Whether Plaintiff’s suit should be dismissed for lack of notice of claim and lack
     of actual notice under the Texas Tort Claims Act.




                                        viii
                               NO. 06-15-00090-CV

                      IN THE SIXTH COURT OF APPEALS
                           AT TEXARKANA, TEXAS


              TEXAS DEPARTMENT OF TRANSPORTATION
                                    Appellant,

                                         V.

                                 HALEY BROWN
                                           Appellee.


     On Appeal from the 62nd Judicial District Court, Lamar County, Texas,
            Cause No. 82395, The Honorable Will Biard, Presiding


BRIEF OF APPELLANT TEXAS DEPARTMENT OF TRANSPORTATION


TO THE HONORABLE COURT OF APPEALS:

      The Texas Department of Transportation (“TxDOT”) submits this Brief

requesting that the order denying TxDOT’s motion to dismiss for lack of jurisdiction

and no evidence motion for summary judgment be vacated and that this case be

dismissed with prejudice.

                            STATEMENT OF FACTS

      Plaintiff injured herself while driving a vehicle under the influence of alcohol.

CR 956–57. In the early morning hours of March 17, 2012, Plaintiff drove into a

roadway construction zone and collided with parked construction equipment. CR 6, 29,
956–57. The equipment was located off of the roadway’s main travel lanes on the

shoulder. CR 6, 17, 29. While on her way home, Plaintiff approached the intersection

of Highway 82 and FM 2121, in Lamar County, Texas. CR 6, 17, 28. As she made a

left off of FM 2121 onto Highway 82, Plaintiff crossed the striped travel lanes and

turned into the construction zone. CR 6, 17, 28. In doing so, Plaintiff disregarded

warning devices on the roadway. CR 956–57. She continued driving through the area

along the shoulder until she collided with a piece of construction equipment, often

referred to as a “shuttle buggy.” CR 6, 17, 28, 906. As a result, Plaintiff sustained

injuries. CR 6, 17, 28. The construction zone was delineated with reflective barrel

markers that separated it from the travel lanes. CR 957.

      On April 13, 2013, Plaintiff filed suit against TxDOT’s general contractor, RK

Hall Construction, Ltd. (“RK Hall”). CR 5. On July 5, 2013, Plaintiff amended her

pleadings to include RK Hall’s sub-contractor, Lyon Barricade & Construction, LLC

(“Lyon”). CR 16. On November 18, 2013, Plaintiff amended her petition again to

include TxDOT as a Defendant. CR 27. Plaintiff named TxDOT over a year and a half

after her accident. At no time has Plaintiff ever pleaded that TxDOT received notice

of claim for Plaintiff’s accident. At no time has Plaintiff ever represented she sent

notice of claim to TxDOT.

      On December 16, 2013, TxDOT answered Plaintiff’s lawsuit. CR 36. In

TxDOT’s Original Answer, it alleged multiple affirmative defenses and denials

                                          2
including sovereign immunity, both as a bar to liability and as a bar to suit, along with

various defenses under the Texas Tort Claims Act (“TTCA” or “Act”). CR 36–37.

Among those listed provisions, TxDOT specifically pleaded lack of notice of claim.

CR 37.

      On July 9, 2014, and pursuant to Tex. R. Civ. P. 93(12), TxDOT amended its

Answer and set out a verified denial asserting lack of notice of claim. CR 43–50. In its

amended pleading TxDOT included an additional paragraph that specifically discussed

the notice of claim requirement and included an affidavit from Laura Joy, TxDOT’s

Director of the Workers Compensation, Tort, and Liability Section of TxDOT. CR 45,

50. That Section is the Division of TxDOT that receives notices of claims for potential

Texas Tort Claims Act suits against TxDOT. CR 50. Joy stated in the verification that

“After reviewing the records of [her Section], [she has] discovered and determined that

no written notice of claim has ever been received by [her Section] for the subject

accident.” CR 50.

      On January 23, 2015, Plaintiff filed her Third Amended Petition. CR 52. Over

a year after TxDOT answered Plaintiff’s lawsuit, Plaintiff still failed to plead that she

sent a written notice of claim to TxDOT.

      On August 25, 2015, TxDOT filed a Motion to Dismiss for Lack of Jurisdiction

and No Evidence Motion for Summary Judgment. CR 889–96. TxDOT attached the

affidavit of Laura Joy as evidence to support its motion to dismiss for lack of

                                           3
jurisdiction. CR 896.

       On September 8, 2015, Plaintiff filed her response and attached several

documents as summary judgment evidence. CR 899–996. Among those, Plaintiff

attached a letter opinion from the Office of the Attorney General that purportedly

shows TxDOT received a notice of claim about Plaintiff’s accident. CR 933, 943.

TxDOT replied, on September 15, 2015, and attached its own evidence in support of

its Motion to Dismiss for Lack of Jurisdiction and to controvert Plaintiff’s summary

judgment evidence. CR 1004–39. That evidence shows that the notice of claim

discussed in the letter opinion relates to a different accident that occurred on a different

day, in a different location, involved another driver, and another motor vehicle. CR

1015–16.

       On September 17, 2015, a hearing was held on TxDOT’s motion. Prior to the

hearing, the trial court granted summary judgment motions in favor of RK Hall and

Lyon. CR 1002–03. On the same day, the Court signed an order severing RK Hall and

Lyon into a separate numbered cause.1 CR 1044. As a result, TxDOT is the only

remaining defendant in this cause. On September 23, 2015, the trial court signed an

order denying TxDOT’s Motion to Dismiss for Lack of Jurisdiction and No Evidence

Motion for Summary Judgement. CR 1045. (App. A). TxDOT appeals from the entry


1
 The severed cause is Haley Brown v. Defendants RK Hall Construction, Ltd. and Stacy Lyon d/b/a
Lyon Barricade; Cause No. 84841, in the 62nd Judicial District Court of Lamar County, Texas. CR
1044.

                                              4
of the order denying its Motion to Dismiss for Lack of Jurisdiction and No Evidence

Motion for Summary Judgment.

                        SUMMARY OF THE ARGUMENT

      In order to prevail against TxDOT, an agency of the State of Texas, Plaintiff

must plead and prove a waiver of sovereign immunity under the TTCA. As a

jurisdictional prerequisite to suit under the TTCA, TxDOT is entitled to receive notice

of claim within six months of the incident giving rise to Plaintiff’s claim. Absent

written notice from the Plaintiff, the trial court has no jurisdiction unless TxDOT had

actual notice of Plaintiff’s claim.

      There is no evidence in the record that TxDOT received formal written notice

of claim from Plaintiff within the statutory six month period because there is no

evidence Plaintiff sent notice to TxDOT in writing.

       There is also no evidence that TxDOT had actual notice. Notice under the

TTCA requires a governmental unit to have a subjective awareness of fault in

contributing to Plaintiff’s injury. The elements of actual notice must also be received

by an agent of TxDOT who is charged with a duty to investigate liability claims and

accidents. There is no evidence that TxDOT had any subjective awareness of fault in

contributing to Plaintiff’s accident. And, there is no evidence that any employee

charged with a duty to investigate claims had any awareness of TxDOT’s fault. For

these reasons, the court lacks jurisdiction over TxDOT in this matter, and Plaintiff’s


                                          5
suit should be dismissed with prejudice.

                                     ARGUMENT

I.    Plaintiff’s suit should be dismissed for lack of notice of claim and lack of
      actual notice under the Texas Tort Claim’s Act.

      This appeal raises one question. That is, should this case be dismissed for lack

of jurisdiction where there is no evidence that TxDOT received formal notice of

Plaintiff’s claim and there is no evidence that TxDOT had actual notice within six

months of Plaintiff’s accident. This case should be dismissed with prejudice because

Plaintiff has not met her burden to plead and prove a waiver of sovereign immunity

under the TTCA.

      A.     Standard of review.

      This appeal concerns the trial court’s subject matter jurisdiction and whether

Plaintiff has presented sufficient evidence to raise a fact issue as to whether TxDOT

received notice of claim within six months of Plaintiff’s accident. Whether a trial court

has subject matter jurisdiction and whether a pleader has alleged facts that

affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law

reviewed de novo. Tex. Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). Whether undisputed evidence of jurisdictional facts establishes a trial court’s

jurisdiction is also a question of law reviewed de novo. Id. But, where disputed

evidence of jurisdictional facts also implicates the merits of the case resolution by the



                                            6
fact finder may be required. Id.

       When a plea to the jurisdiction challenges the pleadings, the appellate courts

determine if the pleader has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause. Id. However, if a motion to dismiss for lack of

jurisdiction challenges the existence of jurisdictional facts, the appellate courts

consider “relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised.” Id. at 227.

       “When the consideration of the trial court’s subject matter jurisdiction requires

the examination of evidence, the trial court exercises its discretion in deciding whether

the jurisdictional determination should be made at a preliminary hearing or await fuller

development of the case.” Id. “[I]n a case in which the jurisdictional challenge

implicates the merits of plaintiffs’ cause of action and the plea to the jurisdiction

includes evidence, the trial court reviews the relevant evidence to determine if a fact

issue exists.” Id. 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 fact finder. Id. at 227–28. But, if the evidence is undisputed or fails

to raise a fact question on the jurisdictional issue, the trial court rules as a matter of

law. Id. at 228.

       The evidence fails to raise a fact question and is “no evidence” if there is (1) a

complete absence of evidence of a vital fact, (2) the court is barred by rules of law or

                                              7
of 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. Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

      B.     Sovereign immunity bars Plaintiff’s suit unless Plaintiff proves a
             waiver under the Texas Tort Claims Act.

      The TTCA provides a limited waiver of immunity from suit “to the extent of

liability created by [the Act].” TEX. CIV. PRAC. & REM. CODE §101.025(a). Any claim

of waiver is subject to the requirement that legislative consent to waive sovereign

immunity must be by “clear and unambiguous language.” Tex. Dep’t of Transp. v.

York, 284 S.W.3d 844, 846 (Tex. 2009) (per curiam). That is, when construing a statute

that purportedly waives sovereign immunity, a court must generally resolve any

ambiguity by retaining immunity. Id. This is based on the clear legislative directive

contained in section 311.034 of the Government Code, which states:

      In order to preserve the legislature’s interest in managing state fiscal
      matters through the appropriations process, a statute shall not be
      construed as a waiver of sovereign immunity unless the waiver is effected
      by clear and unambiguous language.

TEX. GOV’T CODE §311.034.

      When a governmental entity challenges the plaintiff’s jurisdictional allegations,

the plaintiff must adduce some evidence to support jurisdiction. See Miranda, 133




                                          8
S.W.3d at 227. The court then considers the relevant evidence submitted by the parties.

Id.

      If the evidence creates a fact question regarding the jurisdictional issue, the plea

to the jurisdiction cannot be granted, and the fact issue must be resolved by the fact

finder. Id. at 227–28. However, if the relevant evidence is undisputed or fails to raise

a fact question on the jurisdictional issue, the plea to the jurisdiction will be ruled on

as a matter of law. Id. at 228.

      C.     Lack of notice of claim under the Texas Tort Claims Act prevents a
             waiver of sovereign immunity.

      This appeal concerns the notice provision of the TTCA. TEX. CIV. PRAC & REM.

CODE §101.101. That provision provides that the governmental entity must have notice

of the act or omission which forms the basis of a claim against the entity within six

months from the date of such occurrence. TEX. CIV. PRAC. & REM. CODE §101.101(a).

The notice must reasonably describe the injury claimed, the time and place of the

incident, and the incident. Id. However, the requirements of formal written notice do

not apply if the governmental unit has actual notice of the claim. Cathey v. Booth, 900

S.W.2d 339, 340 (Tex. 1995).

       Actual notice requires that governmental unit have knowledge that amounts to

the same notice to which it is entitled by §101.101(a). Tex. Dep’t of Crim. Justice v.

Simons, 140 S.W.3d 338, 347 (Tex. 2004). That includes a subjective awareness of



                                            9
fault as ultimately alleged by the claimant, in producing or contributing to the claimed

injury. Id.

         Further, for actual notice to be imputed on a governmental unit, that notice must

be received by an agent or representative of the entity who is charged with the duty to

investigate claims and report to the governmental unit. See Davis v. Mathis, 846

S.W.2d 84, 87 (Tex. App.—Dallas 1992, no writ) (finding that where there is no

evidence that an agent with a duty to gather facts and report to governmental unit

investigated the accident, actual knowledge is not imputed to governmental unit). See

also Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793 (Tex. App.—El Paso 1997, no

pet.).

         In 2004, the Texas Supreme Court ruled that the TTCA notice requirement was

mandatory, but not jurisdictional, meaning that there was no interlocutory appellate

jurisdiction over an order that denied a governmental unit’s jurisdictional plea based

on a claimants failure to provide notice. See Univ. of Tex. Sw. Med. Ctr. v.

Loutzenhiser, 140 S.W.3d 351, 365–66 (Tex. 2004). The Legislature later amended the

Government Code to provide that “[s]tatutory prerequisites to a suit, including the

provision of notice, are jurisdictional requirements in all suits against a governmental

entity.” TEX. GOV’T. CODE §311.034.




                                             10
       Thus, if Plaintiff failed to provide notice of claim within six months of the

accident and TxDOT did not have actual notice of Plaintiff’s claim, the trial court is

deprived of jurisdiction.

                D.   There is no evidence that TxDOT received formal notice of
                     Plaintiff’s claim.

      “The [TTCA] requires a claimant to provide a governmental unit with formal

written notice of a claim against it within six months of the incident giving rise to the

claim.” Cathey, 900 S.W.2d at 340 (emphasis added). Therefore, such notice must be

provided by a claimant and in writing. Plaintiff has never stated, and cannot dispute

that neither she, nor anyone else on her behalf, has ever sent TxDOT a written notice

of her claim.

      TxDOT also presented the affidavit of Laura Joy as evidence in support of its

Motion to Dismiss for Lack of Jurisdiction. CR 896. In that affidavit Joy states that

“[she is] the Director of the Worker’s Compensation, Tort, and Liability Section of

[TxDOT], which is the Section that receives notices of claims for potential Texas Tort

Claim Act suits against TxDOT.” CR 896. “After reviewing the records of [her]

Section, [she has] discovered and determined that no written notice of claim has ever

been received by [her] Section for the subject accident.” CR 896. Plaintiff has neither

asserted nor offered evidence to dispute Joy’s affidavit. Accordingly, there is no

evidence TxDOT received written notice of claim from the Plaintiff in this case.



                                           11
             E.     There is no evidence that TxDOT had actual notice of
                    Plaintiff’s claim.

      Plaintiff submitted the following as summary judgment evidence: (1) a Letter

Opinion from the Office of the Attorney General to Ms. Sharon Alexander, Associate

General Counsel, TxDOT, dated August 5, 2013 (“Letter Opinion”); (2) an Incident

Detail Report prepared by Chad Stone for RK Hall dated March 17, 2012 and related

email correspondence between agents of RK Hall; (3) testimony of Michael Cody

Reeves, TxDOT’s Construction Inspector; and (4) a copy of the police accident report

describing Plaintiff’s accident. CR 943–7, CR 956–7, CR 959–96, CR 949–57. None

of the documents/testimony listed above, whether considered separately or together,

constitute any evidence that TxDOT had actual notice.

      The burden to establish actual notice is hard to meet. Arancibia illustrates an

example of the type of fact scenario necessary for actual notice to be imputed to a

governmental unit. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Arancibia, 324 S.W.3d 544

(Tex. 2010). However, as discussed below, the facts of that case are far more indicative

of a subjective awareness of fault than the facts are here.

      In Arancibia, an attending doctor observed a laparoscopic hernia surgery

performed by two resident physicians. Id. at 545. The day following the patient’s

death, the attending physician emailed his supervisor, beginning, “I wanted to give you

a heads up on a terrible outcome with a Surgery A patient.” Id. at 549. Upon reviewing

the patient’s case, the supervisor concluded that a technical error occurred during the
                                          12
surgery resulting in a through-and-through small bowel injury, and that “clinical

management contributed to the patient’s death.” Id. Based on the supervisor’s

knowledge that clinical management contributed to the patient’s death, the court found

that the actual notice was imputed to the governmental unit. Id. at 550.

      Unlike Arancibia, there is no evidence that any employee of TxDOT was aware

that TxDOT contributed to Plaintiff’s accident. There is no evidence that a TxDOT

employee charged with the duty to report and investigate claim had, within six months,

been made aware of TxDOT’s alleged fault in contributing to or causing Plaintiff’s

accident. There is no evidence that any such employee even knew about the accident.

And, there is no evidence that any TxDOT employee actually investigated Plaintiff’s

accident. Therefore, TxDOT did not receive actual notice as a matter of law and

Plaintiff’s claim should be dismissed.

                   1.     The Attorney General Letter Opinion is no evidence of
                          actual notice.

      In an attempt to put forth some evidence that TxDOT received notice of

Plaintiff’s claim, Plaintiff filed, as summary judgment evidence, the Letter Opinion.

CR 943–47. TxDOT requested the issuance of that opinion in response to a Public

Information Act Request made by RK Hall. CR 943–47. That opinion is no evidence

that TxDOT received either formal or actual notice of Plaintiff’s claim. It states that

TxDOT received a notice of claim related to “a motor vehicle accident,” but provides

no evidence of (1) the damage or injury claimed or by whom, (2) the time and place
                                          13
of the incident, or (3) that the incident even refers to Plaintiff’s accident. CR 946. The

Letter Opinion, therefore, is no evidence that TxDOT had a subjective awareness of

its fault in contributing to Plaintiff’s claim.

       In addition, the evidence in the record shows the opposite—that the notice of

claim referenced in the Letter Opinion is unrelated to the incident from which

Plaintiff’s claim arises. CR 1014–39. The incident giving rise to the claim referenced

in the Letter Opinion occurred on December 30, 2011, approximately three months

before Plaintiff’s incident. CR. 1015. That incident involves a person other than

Plaintiff. CR 1015–16. That incident does not involve bodily injury, but instead

involves damage to property. CR 1016. That incident involves a different vehicle. CR

1015. That incident occurred in a different location. CR 1015.

                     2.     The RK Hall Incident Report is no evidence of actual
                            notice.

       Plaintiff attached and incident report prepared for RK Hall as summary judgment

evidence to show that TxDOT had actual notice of Plaintiff’s claim. CR 949–50, 954.

That report was authored by Chad Stone, an agent of RK Hall. Id. Stone is not an

agent or employee of TxDOT. According to Plaintiff, “[TxDOT’s Contract Inspector,

Michael Cody Reeves], was told about the allegations by Plaintiff’s father regarding

the insufficiency of the traffic control and the marking and location of the shuttle

buggy.” CR 906. This is not correct.

       Stone’s report describes hearsay statements made by the Plaintiff’s father to
                                            14
Cody Gose, an employee of RK Hall. CR 949, 954. Gose is not an employee of

TxDOT. It appears from the report that neither Reeves nor Stone were present at the

time the statements were made. CR 949, 954.

      It also appears that Stone spoke to Reeves about the accident at a later time. CR

949, 954. While Stone’s report describes the Plaintiff’s father making those

accusations, and describes the latter discussion with Reeves, nothing in that report

suggests that Reeves was ever made aware of the father’s allegations. CR 948–50, 954.

In order to conclude that Reeves knew of TxDOT’s alleged fault, one must make a

conclusory leap and assume that Reeves learned of Plaintiff’s father’s accusations.

Plaintiff has no evidentiary support for her assumption that Reeves learned of any

allegations of fault.

      As explained below, Reeves is also not a person charged with the duty to

investigate claims for TxDOT. As such, any knowledge of fault on his part cannot

impute actual notice to TxDOT. Therefore, there is no evidence that TxDOT had a

subjective awareness of fault in contributing to Plaintiff’s injury.

      3.     The testimony of Michael Cody Reeves is no evidence of actual notice.

      Plaintiff filed excerpts from the oral deposition of Michael Cody Reeves as

summary judgement evidence. CR 959–96. While Reeves’ testimony establishes that

he knew about the accident and knew the identity of the Plaintiff, it fails to establish

that he knew about TxDOT’s alleged faults. And, even if he did, there is no evidence

                                           15
that Reeves is an employee of TxDOT whose duty it is to investigate liability claims.

In fact, the evidence conclusively establishes that Reeves is not a person charged with

that duty. Accordingly, any awareness of fault on his part cannot impute actual notice

to TxDOT.

      Nowhere in Reeves’ deposition does he make any mention that he ever believed

TxDOT was at fault in causing Plaintiff’s accident. In fact, Reeves testified that he did

not do anything differently on the Monday following the accident that he would

normally do. CR 980. When Reeves drove the project that Monday, he couldn’t recall

that anything needed to be corrected. CR 981. Reeves further did not participate in any

investigation of the accident. CR 984.

      “It is not enough that a governmental unit should have investigated an incident

as a prudent person would have, or that it did investigate . . . or that it should have

known from the investigation it conducted that it might have been at fault.” Simons,

140 S.W.3d at 347–48.

      Plaintiff points out that Reeves testified he heard about the accident, and that

other employees of TxDOT knew about it as well. CR 988–89. However, this is not

enough. Instead TxDOT must actually be aware of its own fault in contributing to or

causing Plaintiff’s accident. Id. Reeves’ testimony, even when read in conjunction with

the RK Hall report, fails to establish that Reeves, or any other TxDOT employee, was

made aware of TxDOT’s alleged fault within six months of Plaintiff’s accident. And,

                                           16
even if he were, there is no evidence that Reeves is a person charged with the duty to

investigate potential claims and report to TxDOT.

       On the contrary, Reeves’ testimony establishes that he is not a person charged

with such a duty. Reeves did not participate in any investigation of the accident. CR

984. When asked whether TxDOT did an investigation into this accident, Reeves

replied that he didn’t know whether TxDOT would even do that. CR 984. When asked

about his duties as a TxDOT inspector, Reeves discussed what his responsibilities

are—he is responsible for checking the location of the traffic control barricades to

make sure everything is correct. CR 966–67. Nowhere does Reeves testify or otherwise

indicate that he is responsible for investigating potential claims for TxDOT.

                    4.    The Police Accident Report is no evidence of actual
                          notice.

       Plaintiff provided the police accident report as summary judgment evidence. The

police accident report is no evidence that TxDOT had actual notice because nothing

in the report suggests that TxDOT might be at fault in contributing to Plaintiff’s

injuries.

       “When a police report does not indicate that the governmental unit was at fault,

the governmental unit has little if any incentive to investigate its potential liability

because it is unaware that liability is even at issue.” City of Dallas v. Carajal, 324

S.W.3d 537, 539 (Tex. 2010). The police accident report contains the following

narrative:
                                          17
      Unit 1 was traveling WB on US 82 in Lamar Co., Texas. Unit 2 was piece
      of road construction machinery parked in the barricaded area on US 82.
      Unit 1 then drove into the barricaded area on US 82. Unit 1 then drove
      into the barricaded area and Disregarded Warning Sign at Construction
      [sic]. Unit 1 then struck (FD) Unit 2. The driver of Unit 1 was under the
      influence of alcohol at the time of the crash.

CR 956–57. Not only is there a complete absence of any statement of fault on the part

of TxDOT, but the narrative attributes fault to the Plaintiff. First, Plaintiff disregarded

the warning signs. Second, Plaintiff was under the influence of alcohol at the time of

the accident. Based on this narrative and the contributing factors, TxDOT would have

no incentive to investigate its liability in this case. The police accident report,

therefore, is no evidence that TxDOT had actual notice of Plaintiff’s claim.

      Plaintiff has failed to put forth any evidence that TxDOT had a subjective

awareness of its fault in contributing to Plaintiff’s injury. Accordingly, Plaintiff’s case

should be dismissed because actual notice cannot be imputed to TxDOT.

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant, Texas Department of

Transportation, prays for reversal of the denial of Defendant Texas Department of

Transportation’s Motion to Dismiss for Lack of Jurisdiction and No-evidence Motion

for Summary Judgment and dismissal of this matter with prejudice, and all other relief

to which it may be entitled, including costs of court, both below and on appeal.




                                            18
Respectfully submitted,

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

CHARLES E. ROY
FIRST ASSISTANT ATTORNEY GENERAL

JAMES E. DAVIS
DIRECTOR OF CIVIL LITIGATION

RANDALL K. HILL
ASSISTANT ATTORNEY GENERAL
CHIEF, TRANSPORTATION DIVISION




/s/ Garland Williams
GARLAND WILLIAMS
State Bar No. 24079580
Assistant Attorney General
P. O. Box 12548
Austin, Texas 78711-2548
512/ 463-2004; FAX 512/ 472-3855
garland.williams@texasattorneygeneral.gov
ATTORNEYS FOR APPELLANT
TEXAS          DEPARTMENT              OF
TRANSPORTATION




  19
                           CERTIFICATE OF SERVICE

        This is to certify that on the 4th day of December, 2015, a true and correct copy
of the foregoing Brief of Appellant the Texas Department of Transportation has been
sent to the following:

Via Facsimile and Email.
Dale H. Henley
Mayo Mendolia & Vice, L.L.P.,
5368 State Highway 276
Royse City, Texas 75189-5738

                                                /s/ Garland Williams
                                                GARLAND WILLIAMS
                                                Assistant Attorney General

                       CERTIFICATE OF COMPLIANCE
       This is to certify that this Brief contains 4,231 words, and is in compliance
with the Texas Rule of Appellate Procedure 9.4(2)(B).

                                                /s/ Garland Williams
                                                GARLAND WILLIAMS
                                                Assistant Attorney General




                                           20
APPENDIX A
'                                                                                                                             Filed 9/18/2015 3:17:29 PM
                                                                                                                                         Shawntel Golden
                                                                                                                                             District Clerk
                                                                                                                                     Lamar County. Texas

                                                                                                                                       Jennifer Frazier

                                                     CAUSE NO: 82395

    HALEY BROWN                                              §   IN THE DISTRICT COURT
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            Plaintiff,                                       §                           :<.                 (j)
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    V.                                                       §   OF LAMAR COUNTY, ~"ExtiS                                     N
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    '"'-"''-~   .uu.n    U/U/a LIVl'                         9                             ,,,
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    BARRICADE & CONSTRUCTION, and                            §                                 ....,.)       :.:.:..~ ;o"l
                                                                                                                                  Cl
    TEXAS DEPARTMENT OF                                      §
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                                                                                                                    :JO
                                                                                                                                   .-
    TRANSPORTATION                                           §                                  ~
        Defendants.                                          §   62'" .IIJDICIAI. DISTRICT

                ORDER DENYING DEFENDANT TEXAS DEPARTMENT OF
         TRANS.PORTA TION'S MOTION TO DISMISS FOR LACK OF JURISDICTION
                AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

            en      tl!e li'' da:y of :'>ep!emoer, came on !o 6e fieara De!enaant 'I exas Department of

    Transportation's Motion to Dismiss for Lack ofJurisdiction and No Evidence Motion for Summary

    Judgment (the "Motion"). All parties appeared through counseL After considering the Motion,

    Plaintiffs' R espouse, the summary judgm~nt ~vid~nG~ befure tb~ Court, and arguntents ofconnse!,

    Court is of the opinion that the Motion should be, in all things, DENIED.

            It is, therefore, ORDERED, ADJUDGED and DECREED that Defendant Texas Department

    of Transportation's Motion to Dismiss for Lack of Jurisdiction and No Evidence Motion for

    Summary Judgment is DENIED in all respects.

                      S!Gl'JED this   '# ;:2        day of
                                                             ~
                                                                   A  \       , ;JQI3.
                                                                          '

                                                             ~-
                                                             (~s~
                                                                                                               --




    ORDER DENYING DEFENDANT TEXAS DEPARTMENT OF TRANSPORTATION'S
    MOTION TO DISMISS FOR LACK OF JURISDICTION AND NO EVIDENCE
    MOTION FOR SUMMARY JUDGMENT                                                                                               PAGE I




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