

Opinion filed June 7, 2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00157-CV
                                                    __________
 
                                  JAMIE
IDA CORNER, Appellant
 
                                                             V.
 
                                COUNTY
OF EASTLAND, Appellee

 
                                    On
Appeal from the 91st District Court
 
                                                          Eastland
County, Texas
 
                                               Trial
Court Cause No. CV-07-40953
 

 
                                            M E M O R A N
D U M   O P I N I O N
 
            This
appeal arises from the dismissal of a personal injury action asserted by a
former inmate of the Eastland County Jail for injuries she allegedly received
while incarcerated.  Jamie Ida Corner alleges that she fell off a bucket while
painting in the jail as a trustee.  She subsequently filed suit against Eastland
County under the Texas Tort Claims Act, alleging that her injuries arose “from
the condition and/or misuse of tangible personal property.”  See Tex. Civ. Prac. & Rem. Code Ann. ch.
101 (West 2011 & Supp. 2011).  The County filed a plea to the jurisdiction
alleging, among other things, that appellant had failed to provide the
requisite notice under the Act.  The trial court granted the plea to the
jurisdiction and dismissed appellant’s suit.  We affirm.
Background
Facts
            Appellant
stated in her deposition that she and other female jail trustees were asked to
paint a laundry room and cleaning closet at the jail.  She contends that she
fell while standing on a five-gallon plastic bucket while reaching to paint an
upper corner of the cleaning closet.   Appellant stated that jail personnel did
not tell her to use the bucket for reaching the upper areas to be painted. 
However, she contends that she had previously expressed concerns about using
the bucket and that she had requested to use a stepladder.  Appellant stated in
her deposition that a jailer had advised her that the stepladder was not
available for the trustees’ use because he was using it.
            Regarding
the issue of notification, appellant stated that she informed a female jailer
of her fall a few minutes afterwards when the jailer asked her why she was
holding her back.  The County does not dispute that jail personnel had actual
notice of appellant’s alleged injury on the day it occurred.  As set forth
below, the question at issue is whether or not the County had sufficient notice
of appellant’s claim under the Tort Claims Act.
Issues
            Appellant
brings two issues on appeal.  In her first issue, she asserts that the trial
court erred in determining that the County did not possess sufficient notice
under the Act.  Appellant contends in her second issue that the trial court
erred in determining that she failed to allege a claim under the Act.  We agree
with the trial court’s resolution of the notice issue.  Accordingly,  we do not
reach appellant’s second issue.
Analysis
A plea to the jurisdiction challenges a trial court’s subject-matter jurisdiction.  City
of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010); Tex. Dep’t of Transp.
v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).  Whether a court has subject-matter
jurisdiction is a question of law that we review de novo.  See Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Absent a waiver, governmental entities are generally immune from suits for damages. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544,
546 (Tex. 2010); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
374 (Tex. 2006).  The Texas Tort Claims Act waives immunity from suit “to the
extent of liability created by [the Act].” Section 101.025(a).  To take
advantage of this waiver, a plaintiff must notify the government of a claim
within six months.  Section 101.101(a); Arancibia, 324 S.W.3d at 546.  By
statute, the claimant’s provision of notice is a jurisdictional requirement in
a suit against a governmental entity.  Tex.
Gov’t Code Ann. § 311.034 (West Supp. 2011); Arancibia, 324
S.W.3d at 546.  The notice must reasonably describe the injury, the time and
place of the incident, and the incident itself.  Section 101.101(a); Arancibia,
324 S.W.3d at 546.  But this formality is not required “if the governmental
unit has actual notice that death has occurred [or] that the claimant has
received some injury.”  Section 101.101(c); Arancibia, 324 S.W.3d at
546.  Actual notice is a fact question when the evidence is disputed.  Tex.
Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004).  In
many instances, however, actual notice can be determined as a matter of law.  Id.
Appellant
does not assert that she provided formal notice to the County pursuant to
Section 101.101(a). Instead, she asserts that the County had actual notice
under Section 101.101(c).  In Cathey v. Booth, 900 S.W.2d 339, 341
(Tex. 1995), the Texas Supreme Court held that governmental entities have
actual notice when they have “knowledge of (1) a death, injury, or property damage;
(2) the governmental unit’s alleged fault producing or contributing to the
death, injury, or property damage; and (3) the identity of the parties
involved.”  Carbajal, 324 S.W.3d at 538.
As
noted previously, there is no dispute that jail personnel had knowledge of
appellant’s identity or that she allegedly suffered an injury.  Accordingly, we
direct our focus on the second requirement of Cathey.  The Texas Supreme
Court clarified the meaning of the second requirement in Simons, wherein it stated:
What we intended in Cathey by the second requirement . . . was that a
governmental unit have knowledge that amounts to the same notice to which it is
entitled by section 101.101(a).  That includes subjective awareness of its
fault, as ultimately alleged by the claimant, in producing or contributing to
the claimed injury. . . .  It is not enough that a governmental unit should
have investigated an incident . . . , 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.  If a governmental
unit is not subjectively aware of its fault, it does not have the same
incentive to gather information that the statute is designed to provide, even
when it would not be unreasonable to believe that the governmental unit was at
fault.
 
140 S.W.3d at
347–48; see Carbajal, 324 S.W.3d at 539.  Thus, the governmental unit
must have subjective awareness of its fault, as ultimately alleged by the
claimant, in producing or contributing to the claimed injury.  Arancibia,
324 S.W.3d at 549; Simons, 140 S.W.3d at 347.
            The
evidence pertaining to notice consists of appellant’s deposition testimony and
affidavits from appellant and her mother prepared in response to the County’s
plea to the jurisdiction.  As a preliminary matter, the trial court entered an
order striking appellant’s affidavit from consideration as a sham affidavit.  
Appellant challenges this ruling by the trial court in conjunction with her first
issue.  
Under the sham affidavit doctrine, a party cannot file an
affidavit to contradict his own deposition testimony without any explanation
for the change in testimony. Pando v. Sw. Convenience Stores, L.L.C.,
242 S.W.3d 76, 79 (Tex. App.—Eastland 2007, no pet.) (citing Farroux v.
Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.]
1997, no pet.)).  If a party’s own affidavit contradicts his earlier testimony,
the affidavit must explain the reason for the change.  Id.  A sham affidavit must be disregarded by the court. Cantu v. Peacher, 53 S.W.3d
5, 10–11 (Tex. App.—San Antonio 2001, pet. denied).
An
allegation that an affidavit is a sham generally occurs when a party files an
affidavit to avoid a summary judgment and the affidavit testimony is in direct
and total contradiction with the affiant’s deposition testimony.  Farroux,
962 S.W.2d at 111.  We conclude that the sham affidavit doctrine is applicable
when a plea to the jurisdiction challenges the existence of jurisdictional
facts.  A court may consider evidence in addressing the jurisdictional issues. Miranda,
133 S.W.3d at 227.  If the evidence reveals a question of fact on the
jurisdictional issue, the trial court cannot grant the plea, and the issue must
be resolved by a factfinder.  Id. at 227–28.  However, if the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea to the jurisdiction as a matter of
law.  Id. at 228.  This standard of review generally mirrors that of a
summary judgment under Tex. R. Civ. P.
166a(c).[1]
 Id.


 
A
trial court’s decision to strike an affidavit under the sham affidavit doctrine
is reviewed under an abuse of discretion standard.  See First State Bank of Mesquite v. Bellinger & Dewolf, LLP, 342 S.W.3d 142, 146–47
(Tex. App.—El Paso 2011, no pet.).  With regard to the issue of notice,
appellant stated as follows in her affidavit:
As
far as Eastland County being told about this event, my mother Dee and I made
multiple requests for medical treatment, and when Rachel, one of the jailers,
was escorting me on one of the visits by the doctor, we had a conversation that
the doctor told me I needed to see a specialist.  I asked her if that was going
to happen.  She informed me that they would not likely take me because I didn’t
have money on my books.  I told her in response that should not be the case
since it was their fault for not giving me the ladder.
 
During her
deposition, the County’s attorney asked appellant to detail all of her
conversations with jail personnel.  Appellant did not include this purported
comment about fault to “Rachel”[2]
in her deposition responses.  When specifically asked in the deposition about
her conversations with Rachel, appellant only replied that she had discussed
seeing a specialist with Rachel without any mention of discussing the issue of
fault on the part of the County.  Thus, appellant’s affidavit contradicts her
previous deposition testimony on the issue of notice without any explanation
for the discrepancy.  Accordingly, the trial court did not abuse its discretion
in striking appellant’s affidavit as a sham affidavit.
            We
next consider the contents of the affidavit supplied by appellant’s mother that
was executed after the County filed its plea to the jurisdiction.  Appellant’s
mother stated that, on an occasion when she was visiting the jail, she had a
conversation with Rachel as follows:
I went to see
[appellant] at the Jail in late 2005 because I was on my way to Andrews,
Texas.  When I visited the Eastland County Jail, I had a conversation with a
jailer named Rachel about getting her treatment.  Rachel indicated that that
would not likely occur as she had no money, and that she or I was responsible. 
I informed her that I would pay for the meantime so [appellant] could treatment
[sic], but I wanted to see itemizations of what I was paying for.  I told her
that in the end they should be responsible for the bills, as they were at fault
for not giving her better equipment.
 
Despite
appellant’s mother’s purported statement to “Rachel,” there is no evidence this
person had a duty to investigate the accident or make a report of the accident
to the County.  “[A]ctual notice may be imputed to the governmental unit only
when an agent or representative of the entity charged with a duty to
investigate and report to the governmental unit receives the three elements of
actual notice outlined in Cathey.”  Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex. App.—El Paso 1997, no writ).
            In
many respects, the facts in this case are analogous with the facts in Crane County v. Saults, 101 S.W.3d 764, 769 (Tex. App.—El Paso 2003, no pet.),
wherein jail personnel, including the county sheriff, were aware that an inmate
had suffered a fall yet they did not possess actual notice under Cathey.[3] 
Accordingly, the trial court did not err in determining that the County did not
have actual notice of appellant’s fault allegation.  Appellant’s first issue is
overruled.  As noted previously, we do not reach appellant’s second issue in
light of our disposition of the first issue.
This
Court’s Ruling
             The
judgment of the trial court is affirmed.
            
                                                                                    
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
June 7, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




[1]We note that the County couched its plea to the
jurisdiction as an alternative motion for summary judgment and that the order
granting the plea to the jurisdiction additionally granted the County’s motion
for summary judgment.
 


[2]In her deposition, appellant identified “Rachel” as
Rachel Price, “the one that’s over the doctor’s visits and stuff.”


[3]Appellant cites Parsons v. Dallas County, 197
S.W.3d 915, 919 (Tex. App.—Dallas 2006, no pet.), in support of her actual
notice contention.  We decline to follow Parsons, primarily because the
court’s statements pertaining to actual notice under Section 101.101(c)
constituted dicta in light of the court’s previous determination that the
claimant had provided formal notice under Section 101.101(a).


