## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00011

- CV

LATISHA BUCHANAN , Appellant

V.
CITY OF BOGATA , Appellee s

On Appeal from the 102nd District Court Red River County, Texas Trial Court No. CV05177

Before Stevens , C.J., van Cleef and Rambin , JJ. Opinion by Chief Justice Stevens2 

### O P I N I O N

La Tisha Bucha nan sued the City of Bog a ta ( the City) for injuries she alleged ly received
when a vehicle operated by an employee of the City collided with a vehic l e in which she was a
passenger. In response to the lawsuit , the City filed a plea to the jurisdiction claiming it did not
receive notice of Bucha nan’s claims in accordance with the Texas Tort Claims Act (TTCA) and

was , therefore , immune from suit. T he t ria l court agreed and granted the City’s plea to the jurisdiction. Because we conclude that the City did not receive formal notice of Buchanan’s
claims and did not have actual notice of her claims, we affirm the tria l court’s order.
I. Factua l and Procedu ral Background In July 2020, City employee David Lee Kays was operating a vehicle on Bogata’s 3 rd NE
Street while performing roadwork on behalf of the City. Kay s ’s vehicle stopped in the roadway,
ba c ked up, an d collided with a Jeep Che rokee operated b y K rystal Lynn Swartz

. Buchanan was a backseat passenger in the Cherokee at the ti me of the accident. Nothing in the record indicates
that Buchanan was taken to the hospital by a mbulance or otherwise following the accident.
Buchanan su ed the City for inj uries allegedly received in the accident

. In respon se, the City filed a p lea to the jurisdiction, claiming it was immune f rom suit because Buchanan failed to compl y with the TTCA’s notice requirements. The City attached the affidavi t o f Jennifer Boyd

as an exhibit to its plea to the jurisdiction. 1 Boyd, the City s ecretary , testified in her affidavit that
she made a “ t horough sear ch of the records of the City of Bogata and [had] not found any notice
of a cla im or i njury by the Plain tiff, LaTisha Buchanan. ” The affidavit continued,

1 The City al s o attached plaintiff’s resp onses t o the City’s discover y requests as an exhibit to its plea t o the ju risdic tio n.3

Specifically, there is no notice of any damage or injury and no notice of a related incident by or on behalf of Plaintiff, La Ti sha Buchanan , in the six (6) months following the a ll eged date of accident of July 1 5 , 2020. In this r e gard, I have not found any notice letter by Plaintiff or any attorney or person representing her providing notice of a claim or injury to the City of Bo gata, Texas. [ 2 ]
Buchanan ’s respon se to the City’s plea to the jur i sdiction tacitly acknowled g ed lack of compliance with S ection 101.101(a) of the TTCA , but instead claim ed that the City had act ual
notice under S ection 101.101(c) of the A ct. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 101. 101(a) , (c)

. Her r es ponse relied o n t he p eace o fficer ’s c rash r epor t o f the accident

. According to the report, the vehicle driven by K a y s backed into a Jeep Cherokee operated by
Swartz , in which Buchanan was a backseat pass enger. Although t he report indicat ed that the
crash resulte d i n at least $1,000 .0 0 damage to any one person’s property, it did not indicate that Buchanan, Swartz, or the vehicle’s other two occupants were injured in the accident. In fact, the report indicate d that none of the Cherokee’s occupants

— inclu ding Buchanan

— w e r e injured in
the accident. The resp onse also relied on the August 12, 2020 , witness statement of Dee Wood

. 3
Wood ’s state me nt indicated that two City employees were resurfacing the street when a driver of
the C ity truck “ b umped into the c ar immediately be hind him. ” Wood ’ s statement contin u ed,
The c ar was much smaller than the truck and was very close to the bumper. The hazard lights of the city truck we re turned on, and evidently the driver of the car either did not realize the truck was stopped and because the ca r was so close behi nd the truck, it would not have been visible from the rear view mirror.

2 On a p peal, Buchanan argues that , “ [ t ] o the exten t the City reli ed on Boyd’s assertion that ‘ ther e is no notice, ’ this is a legal conclu sion an d , as a matter of law, ‘ no t ev i dence. ’” Because this complaint was not r aised in the t ria l court, we do not consider i t. See T EX

. R. A PP

. P. 3 3.1

. That said, we read Boyd’s affidavit as addre ssing lack of notice pursuant to S ectio n 10 1.1 0 1(a) of the TTCA. We do not read her affida v it as ad dressing actual notice pursu ant to S ec tion 101 .101(c ) o f the TTCA

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 101 .101(a) , (c).

3 Buchanan also attached a cop y of the City’s initial disclosures in a dd itio n to an “ August 7, 2020, acknowledgment lett e r (Texas Association of Counties), ” “ a No vember 9, 2020 , Stat uto ry Notice Letter to Red R i ver County, ” a February 17, 2021, demand lette r , a “ March 23, 2021, S ettlement O ffer (Texas Association of Counties), ” pl aintif f ’ s first supplemental responses to the City ’ s request for producti o n , and p lainti ff’ s third amended petition.4

Mr. Case [sic] immediately exited the vehicle and the police were s ummoned. The car drove off aft er that and honked at me as they sped down the str eet. Following a hearing, the t rial cou rt found that Buchanan “failed to provide statutory
notice to the City of Bogata.” As a result , the trial court granted the City’s plea to the jurisdiction and dismi ssed Buchanan’s cla im s against th e City.
II. The Trial Court Di d Not Err in Gra n ting the City’s P lea to the Jurisdictio n
In her sole appellate issue, Buchanan c laims tha t , because the City had actual knowledge
of her claims , the trial court erred in gra nting the City’s ple a to the juris d iction.
A. Standard of Revie w

“ Governmenta l units, includin g cities, are immune fr om suit unless the state consents. ”
Werner t v. City of Dublin , 557 S.W.3d 868, 872 (Tex. App.

— Eastland 2018, no pet.) ( citing
Alamo H e ights Indep. Sch. Di st. v. Clark , 5 44 S.W.3d 755, 770 (Tex. 2018) )

. “ Sovereign
im m unity f

rom suit defeats a trial court’s subject matter jurisdiction and thus is p roper ly asserted in a plea to the jurisdiction.” Tex

. Dep ’ t. of Parks & Wildlife v. Mirand a , 133 S.W.3d 217 , 225

– 26 ( Tex. 2 0 04) (plurality op.) (citing Tex. Dep ’ t of T r ansp. v. Jone s , 8 S.W. 3d 636, 63 7 (Tex. 1999) (per curiam ) ). “Whether a court has subject [

- ] matter jurisdiction is a que stion of law” that
we review de novo. Id

. at 226 , 228 (citing Tex. Na t

. Res. Conserva tion Comm ’ n v. IT

- Davy , 74
S. W. 3 d 849, 855 ( Te x. 2002)) ; see R eyes v. Je fferson Cnty

. , 601 S.W.3 d 795, 798 (Tex. 2020) (p er curiam) (“Notice is a prerequisite to subject

- matt er jurisdiction under the TTCA, and as such, p r esents a question of law we review de novo.”).5

B. Notice of a C laim

“ To sec u r e the TTCA ’ s limit ed waiver of governmental immunit y, claimants must timely provide ‘ notice of a claim ’ to the gover nmental unit

. ” Reyes , 601 S.W.3d at 797 (quoting T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 101.101 ) ; see Worsdale v. City of Killeen , 578 S.W.3d 5 7 , 59 (T ex. 2019)

. Section 1 01.101 of the TT C A stat e s: (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six mont hs af ter the day that the incident giving rise to the claim occur red. The not i ce must r easonably d escribe: (1) the damage or inj u ry clai med; (2) the time and place of the incident; and (3) the incident. (b) A city’s charter and ordinance provisio n s requiring notice within a charter period permitted by law are ratif i ed and approv ed

. (c) The no tice requir ements provided o r ratif i ed and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurre d, that the claimant has received some injury, or that the claimant’ s pr operty has been damaged.
T EX

. C IV

. P R AC

. & R EM

. C ODE A N N . § 1 0 1.101. “ Section 101.101 requires ‘notice of a claim’ to include specific information, unless the governmental unit has ‘ ac tual notice tha t death has occurred, that the claim ant ha s receiv ed some injury, or that the clai mant’s property has been
dam a ged. ’” Reyes , 601 S.W.3d at 797 (quoting T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 10 1. 101 (a), ( c ) )

.

“ When a plaintiff sues a gove rnmental entity, the plaintiff bears the burden to
af firmat ively es tab lish the tri a l court ’ s jurisdi ction by asserting a valid w aiver o f immunity. ” Cypress

- Fairbanks Indep. Sch

. Dist. v. Parra , N o . 01

- 22

- 00 59 6

- CV , 2023 WL 4003303 , at *26

(Tex. App.

— Houst on [1st Dist.] June 15, 2023, no pet.) (mem. op.) ( citing Hec kman v. Williamson C

nty. , 369 S.W.3d 137, 150 (Tex. 2012)). 4 “Wh e n assessing a plea to the jurisdiction, our analysis begins with the live pleading s. ” Heckman , 369 S.W.3d at 150

. Even

so, we are “ not r equired to loo k s olely to t he pleading s but may cons ider evidence and must d o

so w h en necessa ry to resolve the jurisdictional issue s raised .” Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2 000 )

. “W e must gr ant the plea to the jurisdiction if the plaintiff’ s
p leadings a ffirmativel y negate the e xistence of jurisdictio n , ” Heckman , 369 S .W.3d at 150 (citing Mirand

a , 133 S.W.3d at 2 27) , and a ls o when “ the defendant presents undisputed evidence

t hat negates the ex istence of the court’s jurisdiction , i d

. (citin g M irand a , 133 S.W.3d at 226 )

. In
this c ase, it is undisputed th at the Ci ty did n ot re ceive notice in accordance with S ection
101. 1 01 (a) of the TTCA. 5 We , therefore , limit our analysis t o the question of whether the City
received actual not ice under su b section (c) of Section 101.10 1

. “When actual

- notice evidence is di sputed, a fact question a rises.” Worsdale , 5 78 S.W.3d

a t 6 6 (citing Tex. Dep’t of Crim. Just

. v. S im ons , 140 S.W .3 d 338, 348 (Tex. 2004 )

. “ When a jurisd ictional fact issue is intertwined wi th the meri ts, the court cannot gr ant the plea, but when the juri sdictional iss ue is not i ntertwine d with the merits, we must defer to the trial court ’ s
express o r implied factua l determinations that are supported by su fficient evidence. ” Id

. (citing
Mi ran da , 133 S.W .3d at 226

– 28 ).

4 In her brief, B uchanan asserts tha t the City failed to conclusively establish that it did not have actual n otice o f the collision. This is an incorrect s t atement of the bu rde n of proof. See Heckman v. Williams on C nt y. , 369 S.W.3d 13 7, 150 (Tex. 2012) (citing Miranda , 1 33 S.W.3d at 2 26)

.
5 Buchanan did not controvert t h e affidavit of Boyd and does no t a rg u e on appeal that she provided timely forma l no t ice of her claims pursuant to S ection 101.101( a) of the TTCA. S ee City of San Antonio v. Cervantes , 521 S.W.3d 390, 395 (Tex . App.

— San Antonio 2017, no pet.) ( ci ty lacked formal notice of plaintiff ’ s cl ai ms a l legedly resulting from motor

- vehicle acc i de nt based on city claims manager ’ s uncontr overted affida vit stating he reviewed notices of claims received by city, searched city ’ s records for notice of plaintiff ’ s claims, and found no timely , formal noti ce )

.7

Here, t he jurisdictional issue is not intertwined w ith the mer its , and t he evidence upon
wh ich the parties rely is undispute d. The par t ies only dispu te whether the evidence is sufficient

to s how actual notice. We decide this is sue as a ma tte r of law , giving defe rence to the trial
court’s imp lied factual determinatio ns that a re supported by suf ficient evidence. Id

. 6 For a g overnmental u nit to have ac tu al notice, “there must be subjective awa reness connecting alleged governme nta l conduct t o c ausation of an allege d injury to person or property
in the manne r ultimately asserted .” Id. at 65. “[A]ctual notice exi sts only whe n the governmental unit has ‘k no wledge of (1) a dea th, injury, or property damage; (2 ) t he
governme nta l unit’s alleged fault prod ucing or contributing to the death, injury, o r property
da mage; and (3 ) the ide ntity of the parties involved

. ’” Id

. at 63 ( q u oting Cathey v. Booth , 900
S.W. 2 d 339, 34 0 (Tex. 1995) (per curiam) ). This means “ tha t a governm ent al unit [ must ] have knowledge that amounts to the same notice to which it is entitled by sect ion 101.1 01(a).” T ex . Dep ’ t of C rim

. Just

. v. Simons , 140 S .W.3d 338, 3 4 7 (Tex. 2004) , superse de d b y statute on other grounds , T EX

. G OV ’ T C ODE A NN

. § 311.034

. T o make this de termination , w e first look to Buc hanan’s live pleading at the ti m e of th e he a r ing on the City’s plea t o the jurisdiction

. In her pleading, Buchana n alle ged that she suffered personal injuries as a result o f “a motor

- vehicle collision on or a bout July 15, 2 020, in Bo gota [sic] , Red River C ounty, Texas.” Sh e alleged th a t “[t]he cr ash report was prepared by Bogata Police Department Investigato r Ray Wa de Hil l ” and that “David Lee Kays failed to k eep a

6 I t is undisputed that the C ity is a gove rn ment a l unit under the TTCA and is immune fr om Bucha nan’s sui t unless the statutory waiver of immunity applies. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 101.001(3)(B) (d efining

“ [ g ] overnmental unit” to include a city) ; Miranda , 133 S.W.3d at 224 ( “ sovereig n imm u n ity deprives a trial court of subject [

- ] matter juris dic tion

. . . unless the [ S ] tate consents to suit ” ); Dallas Area Rap i d Transit v. Whitley , 10 4 S.W.3d 540, 542 (Tex. 2003) (discus sing governmental immu nity and statutor y waive r of immunity under t he TTC A ).8

proper look out, stopped, was inattentive, b a cked without safety, and collided into Plaintiff.”
Buchanan fu r t her alleged t ha t “ [ t ] he force of the collision cau sed [ her ] to suffer severe neck,
ba ck, and other bod ily injury.” Sh e sought recovery for her injuries from the City ba sed on the alleged ne gligence of it s empl oyee, Kays

. We next examine the ev i d ence to d et ermine whether
the Cit y was aware that Buchanan was claiming the City was at f ault i n c ausing her inj uries in the manner alleged in her lawsuit. See Reyes , 601 S.W.3d at 798.
A crash re port of the acciden t was prepared by Ray Wade Hill. The report li st s the
accident date of July 15, 20 20 , and indicates that u nit o ne , a 2 009 red Chevro let C2500 pickup
truck , was operated by Kays

. According to the report, u nit t wo , a silve r Jeep Cherokee, was operated b y Swartz. There were th ree passengers in the Jeep, including b ackseat pas s enger Buchanan

. Hill de scribed the ac cid ent in his report as follows:
UNIT ONE WAS TRAVELLING EAST ON 3 RD NE ST WHILE PERFORMING ROAD W ORK. UNIT TWO WAS TRAVELLING EAST BEHIND UNIT ONE. UNIT ONE STOP PE D IN THE ROADWAY AND REVERSED AND STRUC K UNIT TWO. DRIVER OF UNIT TWO ADVI SED SHE STOPPE D A ND HONKED THE HORN AND THE DRIVER OF UNIT ONE STILL CONTINUED BACK AND COLLIDED WITH HER VEHICLE

. The report attributed two c o nt r ibuting factors to u nit o ne ( i n the investigator’s opinion ) 7 and n o
contr ibuting fac t or s to u nit t wo. In the s ect ion of the report entitled “ I njury S everity , ” Swartz

an d the th ree Jeep passengers, i ncluding Buchanan, were listed as having n o i njuries. Kays was
also listed has havin g no injuries.
Even assuming th e City

— based on this re p ort

—h ad not ice that an allegation of negligence could have been made against K ays for causing the acci dent , it does not provide

7 The contri buting factors are list ed as “3 ” and “20 .” The report does not include a key to decode the contributing f actors.9

actua l notice of B u chanan’s claims to t he City . N othing in the report pr ovides the City with
notice (1) that Buchanan was in ju r ed an d (2) tha t her injuries were caused by Kays’s alleged negligenc e. In fact, the police report af firmatively indicates that B uch a nan was not i njured. As a result, the report does not provide “ ac tu al notice

. . . that the claimant has received som e in j ury

. . . .” See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 101.101(c ) ; Wor sdale , 578 S.W.3d at 63 (actual n otice requires knowledge o f injury). 8
Bec a use the crash r eport does not impart information su fficient to provide the City with “subjective awa reness c o n nect ing ” Kays’s alleged negligence to causation of Buchanan’s allege d injuries “ in the manner ultimat ely asserted ” or otherwise , it is insuf ficie n t to provide th e City
with actual notic e under the TTCA. W orsdale , 5 78 S.W.3d at 65 , 7 2 ( “mere knowled ge tha t

s omething happened somewhere t o someone or something would hardl y ever” constitute actual
notice ) ; see Cervantes , 521 S.W.3 d at 395

– 97 ( polic e report of car accident stating that prope rt y damage resulted fro m accident but that no injur ies were susta ined d id not c ons titute actual notice of perso nal injury claim).
After having re viewed Wood’s witness statement , the remaining piece of evi dence on
whic h Buc h anan relies to establish actual no tice in compliance with S e ction 101. 101(c) of the TTCA, we reach the s am e conc lus ion. Wood’s statement indica ted that , although a City truck

8 Buchanan rel ies on City of Wichita Falls v. Jenki ns , 307 S.W.3d 854, 86 1 (Tex. App.

— Fort Worth 2 0 10, pet. denied) , i n whic h the court found a letter sufficient f or statu tory n oti ce under S ection 101.101(a) of the TTCA. The court went on to say , in dicta , that , “even i f the letter were not sufficient stat utory notice, the ev idence supports the conclu s i on that the City had actu a l notice of appe llees’ claims ” based o n a poli ce rep ort that failed to indicate any injury to the appellee. Id. at 861. We disagree with that conclusion. As our sister court observed, “A gove rnmenta l unit receiving notice that an a cc iden t occurred and that it might be at fault for property damage does n ot enable the governmental unit to gather information necessary to gu a rd against unfounded claims, settle claims, and prepare for trial relatin g to cl aims of personal injury.” Oswalt v . Hal e C nty. , No. 07

- 21

- 00050

- CV , 2022 WL 93613 , at * 4 (Tex. App.

— Ama rillo, Jan. 10, 2022, no pet.) (mem. op.) (citing Cathey v. Booth , 900 S .W.2d 339, 341 (Tex. 1995) (per curiam) ).10

“bu mped into the car ” behind it, the truck had its hazard li ghts on, “and b ecaus e the car was so
close behind t he truck, it would not have b een visible from the rear view mirror. ” An d , after the police were finished at the scene , Wood stated , “ T he ca r drove off

. . . and honked at [him] as they sped down the street.” This statement is somewha t ambiv al ent regarding fault and does not recount any inj uries to any of t he Jee p’s occupants , including Buchanan

. As a result, we
conclude that it di d not provide the City with actua l notice under the TTCA.
B ecause the City d id not receive formal notic e of Bu ch anan’s claims in ac cordance with
S ection 101.101 (a) of th e TTCA, and be cau se it did n ot have actual noti ce of her claims in
accordance with S e ction 101.101(c) of the Act, we a ffirm the trial court’s or der granting the
C i ty’s plea to the jurisdicti on an d dismissing the case f or want of jurisdiction. See T EX

. C IV

. P RAC

. & R EM

. C O DE A NN

. § 1 01.101(a), (c).

Scott E. Stevens Chief Justi ce Date Submitted: July 14, 2023 Date Decided: August 4 , 2023