Osman v. City of Fort Worth

Decision Date20 January 2022
Docket Number02-21-00117-CV
PartiesFADUMO OSMAN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF YASMIN ABDILLAHI, DECEASED; AHMED ABDILLAHI AHMED; AND ANAB AHMED, Appellants v. CITY OF FORT WORTH AND DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD, Appellees
CourtTexas Court of Appeals

FADUMO OSMAN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF YASMIN ABDILLAHI, DECEASED; AHMED ABDILLAHI AHMED; AND ANAB AHMED, Appellants
v.
CITY OF FORT WORTH AND DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD, Appellees

No. 02-21-00117-CV

Court of Appeals of Texas, Second District, Fort Worth

January 20, 2022


On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-317281-20

Before Sudderth, C.J.; Bassel and Womack, JJ.

MEMORANDUM OPINION

Bonnie Sudderth Chief Justice

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This is an interlocutory appeal from trial court orders granting two pleas to the jurisdiction—one in favor of Appellee City of Fort Worth, and the other in favor of Appellee Dallas/Fort Worth International Airport Board (together, the Governmental Entities). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). The underlying case involves the tragic death of 20-year-old Yasmin Abdillahi, who was struck by a train in a right-of-way owned by the City after allegedly crossing adjacent property owned by the Airport Board. Appellants, who are members of Abdillahi's family (collectively, the Family Members), sued the Governmental Entities and alleged that the Texas Tort Claims Act waived the Governmental Entities' sovereign immunity. But the Governmental Entities argued that they were not given the presuit notice required by the Act, thereby depriving the trial court of subject matter jurisdiction. When the Governmental Entities filed pleas to the jurisdiction on this basis, the Family Members initially moved for continuance to allow additional time for discovery, although they subsequently told the trial court that they were "fine" to proceed with the pleas after all. The trial court denied the continuance and granted the Governmental Entities' pleas.

On appeal, the Family Members argue that the trial court's refusal to allow additional discovery was an abuse of discretion and that the trial court erred by granting the Governmental Entities' pleas because the Family Members raised a

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genuine issue of material fact regarding the Governmental Entities' actual, presuit notice.

Even assuming that the Family Members did not waive their motions for continuance, they failed to explain the nature and materiality of the yet-to-be-discovered information they sought. And when the trial court proceeded with the pleas, the Family Members failed to produce evidence that raised a fact issue on each of the three required elements of presuit notice. Instead, the Family Members disputed the legal standard for such presuit notice. Because the trial court did not abuse its discretion by denying the Family Members' continuance and did not err by granting the Governmental Entities' pleas, we affirm.

I. Background

On June 8, 2018, while in the throes of a mental health incident, Abdillahi fled the apartment she was visiting, passed through holes in a fence that separated the apartment complex from nearby railroad tracks, and ran into the path of an oncoming train.

A. The Family Members' Lawsuit

In June 2020, the Family Members (individually and on behalf of Abdillahi's estate) filed suit against the City and the Airport Board, among others. The Family Members asserted numerous causes of action against the Governmental Entities, generally claiming that they failed to restrict, limit, or prevent pedestrian access to the railroad right-of-way.

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Nearly a year later, in April 2021, the Governmental Entities filed pleas to the jurisdiction based on the Texas Tort Claims Act's notice requirement. See id. § 101.101. The Governmental Entities alleged that they did not receive formal, or have actual, presuit notice of the Family Members' claims. Their pleas were supported with affidavits from their relevant employees who averred that no presuit notices were received.

Conceding that they had not provided formal notice, the Family Members argued that the Governmental Entities had actual notice, relying on incident and call reports from the Fort Worth Police Department, as well as reports from the Tarrant County Medical Examiner's Office—documents that the Family Members claimed showed imputed, actual knowledge of Abdillahi's death.[1] See id. § 101.101(c). The Family Members also pointed out that there were three months left in the agreed-upon discovery period, and they filed verified motions for continuance, arguing that

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they should be permitted to conduct additional discovery—specifically, to depose the Governmental Entities' corporate representatives—before the trial court resolved the jurisdictional issues. See Tex. R. Civ. P. 251. But the Family Members' motions did not specify what they expected the corporate representatives to say in their depositions that would be material to the jurisdictional issues raised in the Governmental Entities' pleas.[2]

B. Hearing on the Family Members' Motions for Continuance

Soon thereafter, the trial court held a hearing on the Family Members' motions for continuance.[3] At the hearing, the trial court repeatedly asked the Family Members what notice-related evidence they sought to discover by deposing the Governmental Entities' corporate representatives. Initially, the Family Members argued that they needed to depose the corporate representatives because the Governmental Entities'

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pleas relied on affidavits from corporate employees[4] and because the pleas raised issues "directly [related] to the merits of plaintiffs' claims."[5] But when the Governmental Entities clarified that their pleas were just "based on the lack of statutory notice," the trial court asked the Family Members to clarify why, if the issue raised in the pleas was "just that [the Family Members] didn't send [their] statutory notice, why would [they] need to take somebody's depo on that?" The Family Members offered no explanation.

Rather, they shifted their argument by claiming that the notice issue was not jurisdictional, that it had to be raised in a motion for summary judgment instead of a plea to the jurisdiction, and that the Family Members were entitled to take their time in discovery and "figure out down the road" whether any discovered evidence was relevant to the actual-notice issue.[6] The Governmental Entities disagreed that notice

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was a nonjurisdictional issue; they argued that the notice requirement was a statutory prerequisite to filing suit and to subject matter jurisdiction. The Family Members' counsel then summarized the dispute by characterizing it as a question of law for the trial court to decide: "You know, Your Honor, . . . what plaintiffs have been able to gather with respect to how notice -- the notice requirement is supposed to be evaluated by the court, we have conflicting case law."

The trial court—recognizing that the Family Members' characterization of the issue as a question of law contradicted their motions for continuance based on the need for factual discovery—commented that, "if it's just case law that we're going

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over on that, then I would think [the Family Members] could go ahead and do . . . those two [notice-based pleas] tomorrow" without a continuance. The trial court indicated, though, that it would grant a continuance if the pleas involved issues other than notice. In response, the Governmental Entities waived their alternative arguments to allow the notice-based pleas to proceed, and after confirming this waiver, the Family Members agreed that they were indeed "fine" to proceed on the notice-based pleas without a continuance:

[Family Members' counsel]: [C]an I be -- just make sure I'm clear on this? DFW Airport Board and City of Fort Worth are claiming that their pleas to the jurisdiction . . . are only with respect to notice, the notice requirement under the Texas --
[Governmental Entities' counsel]: It is based on the lack of notice. DFW's plea to the jurisdiction does contain in the alternative arguments [regarding] waiver of immunity.
[But] I'm willing to waive the alternative argument.
[Court]: [S]o tomorrow we're going to move forward with the plea[s] to the jurisdiction just for the City of Fort Worth and the DFW Airport Board.
[Family Members' counsel]: Okay. All right. And then as long as that's on the record that they're waiving their other arguments, I'm fine with that.
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[Emphasis added.] At the conclusion of this hearing—after the Family Members had conceded on the record that they did not need a continuance of the notice-based pleas—the trial court denied the motions for continuance. But in doing so, the court expressly warned that, "if [the Governmental Entities] come in and . . . start trying to talk about [another, non-notice-related] argument in the [plea] hearing, I'm going to grant the continuance."

C. The Hearing on the Governmental Entities' Pleas to the Jurisdiction

The following day, the trial court held a hearing on the Governmental Entities' notice-based pleas to the jurisdiction.

The trial court began by reiterating its understanding that "there's some disagreement between you two on whether a plea to the jurisdiction is the right way to dismiss the case." The Family Members confirmed that this was partially correct, and they reasserted their argument from the day before: that the Governmental Entities should have raised the notice issue in a motion for summary judgment. But the Family Members also argued that the police reports attached to their...

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