IN THE SUPREME COURT OF
TEXAS
════════════
No.
02-0894
════════════
The
University of
Texas
Southwestern
Medical
Center at Dallas,
Petitioner,
v.
Donna Loutzenhiser, as
Next Friend
of
Stephen Luke
Loutzenhiser, a Minor, Respondent
════════════════════════════════════════════════════
On Petition for
Review from the
Court of Appeals for
the Fifth District of Texas
════════════════════════════════════════════════════
Argued January 7, 2004
Justice Hecht delivered the
opinion of the Court, joined by Chief Justice Phillips, Justice Owen,
Justice Jefferson, Justice Wainwright, and Justice Brister.
Justice O=Neill filed a concurring opinion,
joined by Justice
Schneider and Justice Smith.
The
Texas Tort Claims Act provides that A[s]overeign immunity to suit is waived and abolished to
the extent of liability created by [the Act].@ Section 101.101(a) of the Act
states:
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.
Section
101.101(c) makes this requirement inapplicable Aif
the governmental unit has actual notice . . . that the claimant
has received some injury@. In this case we hold that the
plaintiff did not give notice within the six-month period as required,
that lack of notice is a complete defense to suit but does not deprive the
court of subject matter jurisdiction, and that the defendant did not waive
its complaint of no notice by delaying to raise it. Accordingly, we modify the
judgment of the court of appeals and affirm.
I
Donna
Loutzenhiser=s
son Stephen was born with a severely deformed left hand which she claims
was caused by a prenatal diagnostic test performed by a governmental unit
C
the University of Texas Southwestern Medical Center at
Dallas
C
more than six months earlier in her pregnancy. The test, a chorionic villus sampling
(CVS), involves inserting a needle
through the uterus into the chorion C
the section of the placenta providing the fetus with nutrients via its
blood supply C
and removing a part of it for chromosomal testing. Limb reduction is a known risk of
this procedure, particularly if performed early in a pregnancy. The first attempt, on January 21, 1992, did
not collect the proper tissue, but a second procedure performed a week
later did. Stephen was born
on August 15, and seventeen days later, his father notified the Medical
Center of Stephen=s
birth defect. In December
1994, Loutzenhiser and two other mothers,
individually and on behalf of their respective children, sued the
Medical
Center alleging that its
CVS testing caused birth defects.
In
August 1996, one year and eight months after suit was filed, the Medical
Center moved for summary judgment in part on the ground that its immunity
from suit had not been waived under the Tort Claims Act because the
plaintiffs had failed to give the six-month notice required by section
101.101(a), and therefore the court lacked jurisdiction over the
case. Several months later,
the trial court granted the motion as to all of the plaintiffs except
Stephen. At the time, the
Medical
Center could not appeal a
refusal to dismiss a suit for want of jurisdiction based on sovereign
immunity,
but two individual defendants could and did take an interlocutory appeal
from the denial of their motion for summary judgment based on immunity. That appeal ended in April 2001. In July, the trial court set a
trial date in February 2002.
In
December 2001, seven weeks before trial and seven years after suit was
filed, the Medical
Center filed a plea to the
jurisdiction, asserting as it had in its earlier motion for summary
judgment that the court lacked jurisdiction because Loutzenhiser had not given notice as required by
section 101.101(a). The
Medical
Center also asserted that Loutzenhiser had not pleaded a claim involving the use
of tangible personal property within the Tort Claims Act=s
waiver of immunity. The
Medical
Center cited new authority but
also candidly acknowledged that it had filed the plea so that it could
take an interlocutory appeal from an adverse ruling C
a right created in 1997
that it did not have when its motion for summary judgment was denied C
further delaying trial of the case.
The trial court treated the notice argument as a motion to
reconsider its denial of the motion for summary judgment, which it denied,
and treated the no-use-of-property argument as a special exception, which
it sustained. Alternatively,
the court held that the Medical
Center had waived both
arguments by waiting until the eve of trial to raise them and ordered that
the plea be struck.
As
promised, the Medical
Center appealed. The court of appeals affirmed,
holding as it had previously that the lack of notice required by section
101.101(a) does not deprive a court of jurisdiction over a claim. The court of appeals also held
that the trial court had properly treated its no-use-of-property argument
as a special exception and did not address the
Medical
Center=s
contention that it had not waived its notice argument by delay.
The
Medical
Center filed a petition for
review limited to the notice and waiver issues, which we granted. We have jurisdiction over this
interlocutory appeal
because the courts of appeals are in conflict over whether a court has
jurisdiction over a claim, notice of which has not been given as required
by section 101.101(a).
II
We
first consider whether Loutzenhiser gave notice
as required by section 101.101(a).
The
Medical
Center argues that Loutzenhiser was required to notify it of Stephen=s
claim that he had been injured by the
CVS within six months of the date the
procedure was performed, while Stephen was still in utero.
Loutzenhiser argues that to require
notice on behalf of a fetus would violate constitutional guarantees of due
process, equal protection, and open courts. Loutzenhiser, according to her brief, Atakes
no position with respect to the rights of minors in general regarding the
notice provisions of the [Tort Claims] Act,@
and thus we limit our consideration to the effect of the notice
requirement on the rights of the person injured in utero.
We need not reach Loutzenhiser=s
constitutional arguments because we disagree with the
Medical
Center=s
reading of the statute.
Section
101.101(a) requires Anotice
of a claim . . . not later than six months after the day that
the incident giving rise to the claim occurred.@
As we have stated, Athe
longstanding common law rule [is] that the rights of a fetus [are]
contingent on live birth.@ Under this rule, Stephen legally
had no claim against the Medical
Center before he was born, even
if his injury had been manifest when the
CVS was performed (it was not). The
Medical
Center argues that Athe
incident giving rise to the claim@
was the CVS, but the
CVS was only an incident C
one of two C
giving rise to the claim. The
other such incident, and one equally necessary to the existence of the
claim, was Stephen=s
live birth. If the notice
period ran from the CVS, the statute
required notice of a nonexistent claim. ACourts
should not read a statute to create such an absurd result.@ We decline to do so here when
there is a reasonable alternative construction of the statutory
language. Because
Stephen=s
live birth was an incident giving rise to his claim, and one essential to
the existence of the claim, we hold that the six-month period for giving
notice began when Stephen was born.
The
Medical
Center argues that this
construction of section 101.101 is inconsistent with our decision in
Brown v. Schwarts, where we held that
limitations on a claim for negligent prenatal treatment began to run when
the treatment was completed. But the controlling statute in
Brown was materially different. There, the statute of limitations
prescribed that a claim for negligent medical or health care treatment be
brought within two years of the date the treatment was completed A[n]otwithstanding any other law@. The statute did not require the
claim to be in existence when limitations began to run, something that we
acknowledged could yield harsh results in certain circumstances. But the two-year limitations
period, even though it began
running when prenatal care was rendered, could not operate to bar the
child=s
claim before it came into existence because the limitations period was
much longer than the gestation period.
The
Medical
Center argues that even if the
notice period did not begin to run until Stephen was born, it did not
receive notice of his claim until more than two years later when Loutzenhiser filed suit. Loutzenhiser argues that Stephen=s
father=s
telephone call to the Medical
Center provided the required
notice, but it clearly did not.
The only evidence of the substance of that call was Stephen=s
father=s
testimony as follows:
I called after he was born to inform them that he had
C
the situation with his hand C
he had no fingers, thinking that they would want to be made aware of
that. The reason that I
thought they may want to be made aware of that is because I thought it
would be relevant to them, and that I had read in June or July a
Newsweek article that said that CVS
possibly causes limb reduction C
is, I believe, the term that it used. And since it happened to my son, I
thought that they would want to know about it. . . . [A]nd at
that time I was told that it didn=t
have anything to do with the test, and they didn=t
act interested in finding out about it. And I said, AWould
you like some information for your records?@,
and they never followed up on it.
Stephen=s
father thought the call lasted about five minutes, and he could not recall
with whom he spoke. The most
that can fairly be said from his testimony is that the
Medical
Center received notice from
Stephen=s
father that Loutzenhiser had had a
CVS procedure and that Stephen had been
born with a limb reduction.
It is not clear that the
Medical
Center was told that it had
performed the CVS procedure; certainly
it was not told the time.
More importantly, the
Medical
Center had no Anotice
of a claim@,
as section 101.101(a) requires.
Stephen=s
father stated only that he thought Athey
would want to be made aware@
of Stephen=s
deformity Afor
[their] records@.
Loutzenhiser argues that even if the
Medical
Center did not receive the
notice required by section 101.101(a), it had actual notice which, under
section 101.101(c), made the notice requirement in section 101.101(a)
inapplicable. But actual
notice that an injury has occurred is not enough to satisfy section
101.101(c); as we hold today in another case, a governmental unit must
also have Aa
subjective awareness that its fault produced or contributed to the claimed
injury.@ There is no evidence that before
suit was filed the Medical
Center was ever subjectively
aware, either from Stephen=s
father=s
telephone call or otherwise, that it was at fault for Stephen=s
deformity, as Loutzenhiser eventually
alleged. Stephen=s
father=s
testimony suggests that the
Medical
Center had no such subjective
awareness.
We
therefore conclude that Loutzenhiser was
required to give notice under section 101.101(a) and did not do so.
III
The
Medical
Center argues that notice of a
claim under section 101.101(a) is a condition of the waiver of the
government=s
immunity from suit under the Tort Claims Act. We have held that a court lacks
subject matter jurisdiction over a suit barred by immunity. Thus, the
Medical
Center argues, the notice
required by section 101.101(a) is jurisdictional. As noted above, the courts of
appeals are divided on whether this notice provision is jurisdictional.
In
Dubai Petroleum Co. v. Kazi, we concluded
that any inquiry into whether the Legislature intended a particular
statutory requirement to be jurisdictional as opposed to mandatory
must be conducted in light of Athe
longstanding principle that subject-matter jurisdiction is a power that
>exists
by operation of law only, and cannot be conferred upon any court by
consent or waiver=@. Not only may an issue of
subject matter jurisdiction Abe
raised for the first time on appeal by the parties or by the court@,
a court is obliged to ascertain that subject matter jurisdiction
exists regardless of whether the parties have questioned it. Even after all proceedings have
long ago come to an end:
a judgment will never be considered final if the court
lacked subject‑matter jurisdiction.
AThe
classification of a matter as one of [subject‑matter] jurisdiction
. . . opens the way to making judgments vulnerable to delayed
attack for a variety of irregularities that perhaps better ought to be
sealed in a judgment.@
The
failure of a non-jurisdictional requirement mandated by statute may result
in the loss of a claim, but that failure must be timely asserted and
compliance can be waived. The
failure of a jurisdictional requirement deprives the court of the power to
act (other than to determine that it has no jurisdiction), and ever to
have acted, as a matter of law.
Since the Legislature is bound to know the consequences of making a
requirement jurisdictional, one must ask, in trying to determine
legislative intent, whether the Legislature intended those
consequences. In
Dubai, we held that the
Legislature did not intend the statutory requirements for suing in
Texas for an injury or death
that occurred in a foreign country to be jurisdictional and therefore
subject to being raised at any time. We follow the same analysis
here.
We
start with the statutory language.
The language of section 101.101(a) is clearly mandatory, stating as
it does that A[a]
governmental unit is entitled to receive notice@. The Code Construction Act
instructs that A>[i]s entitled to=
creates or recognizes a right.@ Given this meaning, section
101.101(a) gives governmental units a right to notice on which they can
insist, but it does not specify the consequences if that right is
denied. Can a governmental
unit waive its right to notice, or is notice essential to a waiver of
immunity? Before recodification of the Tort Claims Act in 1985,
which was intended to be Awithout
substantive change@,
the six-month notice provision required that Aany
person making a claim hereunder shall give notice@,
thereby indicating that the claimant had a duty to give notice. But like the recodified version, the former statute did not state
the consequences for breach of the duty to notify. By contrast, according to the
conventions of the Code Construction Act, A>[m]ust=
creates or recognizes a condition precedent@,
at least suggesting that a requirement could be jurisdictional. The use of Ais
entitled to@
rather than Amust@
C
which was surely an intentional choice by the codifiers in deciding to
abandon Ashall@
C
is therefore some indication that the Legislature did not intend notice to
be either a condition precedent to waiver of immunity or
jurisdictional.
One
indicator of legislative intent is a statute=s
purpose. As noted above, the purpose of the
notice requirement in section 101.101 is Ato
ensure prompt reporting of claims in order to enable governmental units to
gather information necessary to guard against unfounded claims, settle
claims, and prepare for trial.@ We do not see how this purpose is
served by allowing lack of notice to be raised at any time, for the first
time on appeal, or even later, long after the litigation has ended. On the contrary, it appears that
if a governmental unit is to avoid litigation to which it should not be
subjected because of lack of notice, it should raise the issue as soon as
possible. Moreover, if in a
particular case a governmental unit were not prejudiced by lack of notice
and chose to waive it, we do not see how the statutory purpose would
thereby be impaired.
But
the Medical
Center argues that it is the
right to take an interlocutory appeal from a trial court=s
refusal to dismiss the case, not the right to raise lack of notice at any
time, that avoids the burden of litigation when immunity from suit has not
been waived. In creating the
right of a governmental unit to appeal from the denial of a plea to the
jurisdiction, the Legislature clearly assumed that at least some
requirements of the Tort Claims Act=s
waiver of immunity are jurisdictional, but we find nothing to indicate
that the six-month notice requirement was one of them. Certainly, not all requirements
are jurisdictional. For
instance, section 101.102(a), adjacent section 101.101, mandates that
A[a]
suit under this chapter shall be brought in state court in the county in
which the cause of action or a part of the cause of action arises.@ We have previously held in
Brown v. Owens that filing suit in the wrong county does not
deprive the court of subject matter jurisdiction. The
Medical
Center does not challenge our
holding in Brown but attempts to distinguish it by arguing that if
the failure of a statutory requirement can be cured C
in Brown, by transfer of venue C
the requirement should not be jurisdictional. Only if the failure of a statutory
requirement cannot be cured C
giving notice within six months after the six months has passed C
should the requirement be jurisdictional. While the distinction the
Medical
Center draws is a salient one,
we think it is better applied with the purpose of the requirement in
mind. Although timely notice
cannot be given after the stated time for it has passed, prejudice from
lack of notice may be cured or may never arise at all. While the government need not show
prejudice to obtain dismissal for want of notice, if it chooses to try a
case to judgment without complaining of a lack of notice, it suffers no
impairment of right that would entitle it to complain of no notice for the
first time on appeal. In this
regard, lack of notice should no more be jurisdictional than improper
venue. Thus, even using the
curable/incurable distinction, we cannot tell that the Legislature
intended a ruling on notice to be subject to interlocutory appeal when a
ruling on venue is not.
The
Medical
Center argues that notice
should be jurisdictional, even though venue is not, because notice
implicates substantive rights and venue does not. We are not convinced of the
premise. The Legislature
itself included both the notice and venue provisions in a subchapter
entitled AProcedures@,
along with provisions relating to the legal representation of governmental
units, evidence of insurance coverage, settlements, payment and collection
of judgments, and other seemingly non-substantive matters. Although the Code Construction Act
cautions that A[t]he
heading of a . . . subchapter . . . does not limit or
expand the meaning of a statute@,
the heading gives some indication of the Legislature=s
intent to group what it considered to be procedural matters together.
The
Medical
Center argues that we have
construed provisions similar to the notice requirement in section
101.101(a) to be jurisdictional.
But the three cases cited by the
Medical
Center all involve the failure
to exhaust administrative remedies. In Essenburg v. Dallas County, we said that
a Afailure
to exhaust administrative remedies may deprive courts of subject matter
jurisdiction in the dispute . . . because the Legislature in
conferring jurisdiction upon an agency expresses its will to have the
agency resolve disputed issues of fact and policy.@ Indeed, an Aexhaustion
requirement seeks to assure that the appropriate body adjudicates the
dispute C the hallmark of a jurisdictional
statute.@ By contrast, we held that a
statute providing that A>a
person may not sue on a claim against a county unless the person has
presented the claim to the commissioners=
court and the commissioners
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