text:
    Glenn COLQUITT, Petitioner, v. BRAZORIA COUNTY, Respondent.
    No. 09-0369.
    Supreme Court of Texas.
    Oct. 1, 2010.
    Rehearing Denied Dec. 3, 2010.

      James T. Liston, Marc Evan Kutner, Spagnoletti & Co., Houston TX, Brenton Joel Allison, Douglas Travis Gilman, Gil-man & Allison LLP, Pearland TX, for Petitioner.
    Raethella Jones, Brazoria County District Attorney’s Office, Jerilynn Yenne, Criminal District Attorney, Angleton TX, for Respondent.
    Andrew T. McKinney, McKinney & Cooper, L.L.P., Houston TX, for Fluor Daniel Corp.
    Mary M. Markantonis, Dean Pappas & Associates, Houston TX, for Amicus Curiae American Home Insurance.
   PER CURIAM.

The Texas Tort Claims Act requires that a governmental unit obtain notice of a claim against it within six months of the incident giving rise to the claim. Tex. Crv. Prac. & Rem.Code § 101.101. We have construed this provision as entitling a governmental unit to formal, written notice of a claim within six months of the incident unless it has actual notice. Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 339 (Tex.2004) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995)) (per cu-riam). This written notice “must reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident.” Tex. Civ. Prao. & Rem.Code § 101.101(a).

The issue in this case is whether the lawsuit itself, served on the governmental unit within six months of the incident and containing all the requisite information, constitutes proper notice under the Act. The court of appeals concluded it did not and dismissed the case. 282 S.W.3d 582, 587. We conclude that it does and, accordingly, reverse and remand to the trial court.

Glen Colquitt was injured in a fall while working for a private contractor at the Brazoria County jail. Within two months of his accident, Colquitt filed suit against Brazoria County alleging negligence and premises liability. Colquitt served the County with his petition, but he did not otherwise provide separate written notice of his claim.

About two years later, the County filed a plea to the jurisdiction, contending that Colquitt’s failure to provide written notice deprived the trial court of jurisdiction under the Tort Claims Act. The trial court disagreed and denied the County’s plea. The County elected to take an interlocutory appeal rather than proceed to trial. In that appeal, the court of appeals agreed •with the County, reversing the trial court’s interlocutory order and rendering judgment that Colquitt’s lawsuit be dismissed. 282 S.W.3d 582, 587. The court reasoned that section 311.034 of the Code Construction Act modified the notice provisions of the Tort Claims Act, creating a jurisdictional requirement that formal or actual notice precede the filing of any lawsuit against the governmental unit, even those lawsuits filed within six months of the injury-producing incident. Id. (citing Tex. Gov’t Code § 311.034).

This is an interlocutory appeal over which we have limited jurisdiction. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8) (authorizing an appeal from an order denying a governmental unit’s plea to the jurisdiction). Our appellate jurisdiction generally extends only to final judgments that dispose of all parties and issues in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Interlocutory orders are typically not appeal-able, and those that can be appealed ordinarily go no further than the court of appeals unless there is a dissent or conflict. See Tex. Gov’t Code § 22.225(b)(3), (c). Here, we have a conflict, see Cavazos v. City of Mission, 797 S.W.2d 268, 271 (Tex.App.-Corpus Christi 1990, no writ), but even if that were not the case, we would have appellate jurisdiction to review the court of appeals’ judgment because its disposition of the case on jurisdictional grounds is a final judgment. Hoff v. Nueces Cnty,, 153 S.W.3d 45, 47 n. 1 (Tex.2004) (per curiam); see also Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex.2010) (noting that this Court always has jurisdiction to determine whether court of appeals correctly applied its jurisdiction).

In Cavazos, the court of appeals held that a lawsuit, served on the governmental unit within six months of the incident, constituted actual notice under the Tort Claims Act. Cavazos, 797 S.W.2d at 271. Formal notice is not required when the government has obtained timely actual notice of the incident. See Tex. Civ. Prac. & Rem.Code § 101.101(c). The court accordingly reversed the government’s summary judgment based upon the claimant’s failure to give notice and remanded the case for trial. Id. The County argues that Cava-zos is distinguishable because it predates the 2005 amendment to the Code Construction Act that now makes statutory prerequisites to suit, such as notice, jurisdictional. See Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”). The County contends then that the County had to have actual or formal notice of the incident before Col-quitt filed his lawsuit, even though Col-quitt filed the suit within the Tort Claims Act’s six-month notice period. See Tex. Civ. Prac. & Rem.Code § 101.101. The court of appeals agreed, holding that the 2005 amendment to section 311.034 also operated to amend the Tort Claims Act’s notice provision, making “pre-suit notice of a claim under the Texas Tort Claims Act [ ] jurisdictional.” 282 S.W.3d at 587. We disagree.

The Tort Claims Act’s notice provision provides in pertinent part:

§ 101.101. Notice
(a) 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.
(b) ⅝ * *
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.

Tex. Civ. Prac. & Rem.Code § 101.101. In University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351, 364 (Tex.2004), we concluded that this notice provision, while mandatory and a potential bar to any action under the Tort Claims Act, was not a condition of the Act’s waiver of immunity. After our decision in Loutzenhiser, the Legislature amended section 311.034 of the Code Construction Act to make notice, and other statutory prerequisites, jurisdictional, that is, a condition of the Act’s waiver of immunity from suit. See Act of June 1, 2005, 79th Leg., R.S. ch. 1150, 2005 Tex. Gen. Laws 3783 (adding the last sentence to Tex. Gov’t Code § 311.034).

Before this amendment, a failure to comply with the Tort Claims Act’s mandatory notice requirement resulted in a bar to liability; after the amendment, a similar failure operated to preserve the government’s immunity. In other words, the 2005 amendment to section 311.034 changed the character of the government’s defense from a plea in bar to a plea to the jurisdiction, making the Tort Claims Act’s six-month notice requirement a condition for the governmental unit’s waiver of immunity from suit under the Act. The court of appeals, however, takes the analysis one step further, suggesting that the amendment also potentially shortened the Tort Claims Act’s notice period by requiring that notice precede the lawsuit’s physical filing -without regard to whether section 101.101’s six-month notice period had expired.

While we agree that section 311.034 of the Code Construction Act makes compliance with the notice provisions jurisdictional, City of Dallas v. Carbajal, 324 S.W.3d 537, 537-38 (Tex.2010), we do not agree that the former otherwise modifies or changes the latter. Section 311.034 is not a notice provision; it does not express any particular period for notice different from that in the Tort Claims Act. It merely states that statutory prerequisites to suit, like notice, are jurisdictional. Thus, the notice requirement of the Tort Claims Act is a statutory prerequisite to the government’s immunity waiver and is, according to the Code Construction Act, now jurisdictional.

The Tort Claims Act, however, does not require that notice be given before filing suit. It requires instead that the government obtain notice within six months of the incident. Tex. Civ. Prac. & Rem.Code § 101.101. As a practical matter, pre-suit notice may be required if the lawsuit is filed more than six months after the incident. But when as here the lawsuit is filed a mere 55 days after the incident, imposing a pre-suit notice requirement is contrary to the text of section 101.101, which aims “to ensure a prompt reporting of claims to enable the [government] to investigate while facts are fresh and conditions remain substantially the same.” City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex.1981). The notice provision also aids the government in the management and control of its finances and property. Artco-Bell Corp. v. City of Temple, 616 S.W.2d 190, 192 (Tex.1981); see also Tex. Gov’t Code § 311.034. Serving a lawsuit within the six-month notice period satisfies the Act’s notice requirements by alerting the government of the need to investigate.

The court of appeals accordingly erred in reading Texas Government Code section 311.034 and Texas Civil Practice and Remedies Code section 101.101 together to impose pre-suit notice as a condition to the government’s waiver of immunity under the circumstances here. The Tort Claims Act does not require pre-suit notice when the claimant’s lawsuit provides all the requisite information and is served within six months of the incident. Because the suit here provided the requisite notice under section 101.101, we grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. Tex.R.App. P. 59.1.

      . This is the second interlocutory appeal in this case. In the previous appeal, the County argued that Colquitt failed to plead facts sufficient to establish a waiver of governmental immunity under the Tort Claims Act. The court of appeals concluded that the trial court had properly denied the County's jurisdictional challenge because it implicated the merits of the underlying cause of action. See Brazoria Cnty. v. Colquitt, 226 S.W.3d 551 (Tex.App.-Houston [1st Dist.] 2007, no pet.)

      . § 311.034. Waiver of Sovereign Immunity
      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. In a statute, the use of ''person,” as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory 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 (emphasis added). The highlighted language was added to the statute in 2005.


source: Caselaw Access Project

author: Chief Justice JEFFERSON Justice JOHNSON,

license: Public Domain

text:
    UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Petitioner, v. The ESTATE OF Irene Esther ARANCIBIA by its Beneficiary Victor Hugo VASQUEZ-ARANCIBIA, Victor Hugo Vasquez-Arancibia, Individually, and Cecilia Vasquez-Arancibia, Individually, Respondents.
    No. 08-0215.
    Supreme Court of Texas.
    Argued Sept. 10, 2009.
    Decided Oct. 22, 2010.

      Attorney General Greg W. Abbott, Attorney General of Texas, Kent C. Sullivan, David S. Morales, Office of the Attorney General of Texas, Deputy First Assistant Attorney General, Nelly R. Herrera, Office of the Attorney General, John P. Giberson, Assistant Attorney General, Tort Litigation Division, Elsa Giron Nava, Office of the Attorney General, James C. Ho, Solicitor General of Texas, Daniel L. Geyser, Asst. Solicitor General, Office of the Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, Austin, TX, for Petitioner.
    Stephen A. Khoury, Lance Eric Caugh-field, Kelsoe Anderson Khoury & Clark, Dallas, TX, for Respondent.

      Todd K. Sellars, Dallas County Asst. Atty., Dallas, for Amicus Curiae.
   Chief Justice JEFFERSON

delivered the opinion of the Court,

joined by Justice HECHT, Justice MEDINA, Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice LEHRMANN.

This appeal turns not on the merits of the underlying claim but on whether prerequisites to suit have been satisfied, and if not, whether an interlocutory appeal is available. Because the relevant requirements were met here, and because interlocutory appeal was appropriate, we affirm the court of appeals’ judgment.

I. Background

Irene Arancibia underwent laparoscopic hernia surgery at Parkland Memorial Hospital on September 4, 2003. The procedure was performed by two resident physicians, Drs. Curtis and Yau, and attended by Dr. Watson, an assistant professor of surgery in the gastrointestinal/endocrine division, Department of Surgery, at U.T. Southwestern in Dallas. Arancibia was discharged later that day. Two days later, she presented to Parkland’s emergency room with severe abdominal pain. Emergency surgery revealed that, during the hernia repair, her bowel had been perforated in two places, leading to acute peritonitis with sepsis. She died the following day.

Her family initially sued the operating physicians but later nonsuited them, naming Southwestern and Parkland in their stead. Southwestern moved to dismiss the case, contending that the trial court lacked jurisdiction because the Arancibias failed to provide timely notice of their claim. The trial court denied the plea, and the court of appeals affirmed. 244 S.W.3d 455, 462. We granted the petition for review, 52 Tex. Sup.Ct. J. 910, 911 (June 26, 2009), and now affirm.

II. The 2005 amendment to Government Code section 311.034 applies.

Absent a waiver, governmental entities, like Southwestern, are generally immune from suits for damages. 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].” Tex. Civ. Prao. & Rem.Code § 101.025(a). To take advantage of this waiver, the plaintiffs must notify the government of a claim within six months. Id. § 101.101(a). The notice must reasonably describe the injury, the time and place of the incident, and the incident itself. Id. 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.” Id. § 101.101(c).

In 2004, we concluded that the notice requirements were mandatory, rather than jurisdictional, and that there was no interlocutory appellate jurisdiction over an order that denied a governmental unit’s jurisdictional plea based on a claimant’s failure to provide notice. See Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 365-66 (Tex.2004). Shortly thereafter, the Legislature amended the Government Code to provide that “[statutory 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. The 2005 amendment did not change those statutory prerequisites; it merely stated the consequence of a failure to comply with them. The amendment took effect September 1, 2005. Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 2, 2005 Tex. Gen. Laws 3783, 3783.

Southwestern then filed a plea to the jurisdiction, contending that it had no pre-suit notice (formal or actual) of the Aranci-bias’ claim. The court of appeals did not reach this issue, because it held that this case, filed years before the 2005 amendment, was not governed by its terms — an issue that has led to considerable disagreement among our courts of appeals (including a split between Houston’s First and Fourteenth Districts).

If the amendment applies, a lack of notice would be jurisdictional, meaning that the trial court could dispose of the case on a plea to the jurisdiction, and a governmental unit would have a statutory right of interlocutory appeal if the plea failed. Tex. Civ. Prac. & Rem.Code § 51.014(a)(8); Loutzenhiser, 140 S.W.3d at 359. If the requirement is merely mandatory, a governmental unit would be entitled to summary judgment, but the trial court’s denial of that motion could not be immediately appealed, and the governmental unit could waive the issue. Loutzenhiser, 140 S.W.3d at 359.

The Legislature did not state whether the amendment applied prospectively or retroactively, nor did the act contain a savings clause for pending suits. The amendment merely provided that it “takes effect September 1, 2005.” Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 2, 2005 Tex. Gen. Laws 3783, 3783. We presume the statute is prospective unless expressly made retrospective. See Tex. Gov’t Code § 311.022.

But the prospectivity presumption does not necessarily answer whether the amendment governs this suit. Another rule provides that a court is to apply the law in effect at the time it decides the case. See Bradley v. Sch. Bd. of the City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Tex. Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 198 (Tex.2007) (explaining that jurisdictional statutes should be applied as they exist at the time judgment is rendered); see also Landgraf v. USI Film Prods., 511 U.S. 244, 264, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (noting the “apparent tension” between these two maxims). On closer examination, however, these two rules can be reconciled. See Landgraf, 511 U.S. at 273, 114 S.Ct. 1483 (noting that “[e]ven absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations”). A statute does not operate retroactively merely because it is applied in a case arising from conduct predating the enactment. Id. at 269, 114 S.Ct. 1483.

The prohibition against retroactive application of laws does not apply to procedural, remedial, or jurisdictional statutes, because such statutes typically do not affect a vested right. Tex. Mun. Power Agency, 253 S.W.3d at 198. Because application of a new jurisdictional rule generally takes away no substantive right but simply impacts a tribunal’s power to hear the case, present law normally governs in such situations. Landgraf, 511 U.S. at 273, 114 S.Ct. 1483 (“When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.”). Thus, the Supreme Court of the United States has “regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Id. at 274, 114 S.Ct. 1483. Statutes — like section 311.034 — that do not deprive the parties of a substantive right and “speak to the power of the court rather than to the rights or obligations of the parties” may be applied to cases pending at the time of enactment. Id. at 274-75, 114 S.Ct. 1483 (noting that “[cjhanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity”) (citations omitted). We agree that it is appropriate to do so here, and such a construction is not retroactive. See Quick v. City of Austin, 7 S.W.3d 109, 132 (Tex.1999).

Because the amendment applies, the purported failure to provide notice would deprive the trial court of jurisdiction, an issue that may be raised on interlocutory appeal. We now turn to Southwestern’s contention that it lacked actual notice under the Act.

III. Southwestern had actual notice under Government Code section 101.101(c).

The Tort Claims Act states that formal notice is not required “if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.” Tex. Civ. Prac. & Rem.Code § 101.101(c). But we have rejected an interpretation of actual notice that would “require[ ] only that a governmental unit have knowledge of a death, an injury, or property damage,” because a defendant, like a hospital, would then have “to investigate the standard of care provided to each and every patient that received treatment,” eviscerating the notice requirement’s purpose. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (emphasis added). Instead, we held that the governmental unit had to know of its “alleged fault producing or contributing to the death, injury, or property damage.” Id. This standard led to some confusion among our courts of appeals, and we explained it further in Texas Department of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex.2004):

What we intended in Cathey by the second requirement for actual notice 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.

Simons, 140 S.W.3d at 347. We observed that, if a governmental unit had this awareness of fault, along with the other information to which it was entitled under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the statutory purposes of information gathering, settling claims, and preparing for trial. Id.

We must, then, decide whether this record demonstrates Southwestern’s subjective awareness of its fault, as ultimately alleged by the Arancibias, in producing or contributing to Arancibia’s death. Although we have said that actual notice may be a fact question when the evidence is disputed, id. at 348, the pertinent facts here are uncontested. Dr. Watson was present during Arancibia’s laparoscopic hernia repair. The day after her death, Watson emailed his immediate supervisor, who was chief of the division. The email begins, “I wanted to give you a heads up on a terrible outcome with a Surgery A patient.” Watson described the surgery, which he believed went well, and Aranci-bia’s return to the emergency room two days later. A laparotomy at that time “showed an unrecognized bowel injury,” and Arancibia died the next day of multiple organ failure. Watson’s email concluded, “I have already spoken with risk mgt.”

Watson’s supervisor responded, thanking Watson for the notification and mentioning that he would forward the email to the Chair of the Department of Surgery. The Chair responded and discussed several of the reasons patients might present with symptoms more than twenty-four hours after surgery. His email began, “I heard about this today.”

Dr. Watson surmised that the bowel perforation “was a result of a retraction injury out of the field of view.” He stated that, in Arancibia’s subsequent surgery, the physician observed a “through and through hole in the jejunum.” This was confirmed by the surgery records, which showed two perforations in the jejunum.

Shortly thereafter, upon reviewing Ar-ancibia’s treatment, Watson’s supervisor concluded that “[a] technical error occurred during the original hernia operation resulting in a through-and-through small bowel injury” and that “[c]linical management contributed to” Arancibia’s death. He stated that “[although unfortunate, this is a recognized complication of laparo-scopic hernia surgery. No standard of care issues were identified upon review.”

We conclude that this record shows that Southwestern was subjectively aware of its fault, as ultimately alleged by the Aranci-bias, in producing or contributing to Aran-cibia’s death. Although Dr. Watson’s supervisor determined that there were no standard of care violations, he noted that a “technical error” was made, that clinical management contributed to Arancibia’s death, and that the care “was not necessarily consistent with established standards.” ' His ultimate conclusion that those errors were acceptable does not detract from his subjective awareness that medical error contributed to Arancibia’s death. It is true that, although Watson said he had contacted risk management, there was no evidence of why he did so or what he reported. But Watson and his superiors knew that Arancibia had died of multiple organ failure caused by sepsis, that her jejunum had been perforated in two places (an injury that Watson surmised probably occurred when surgical tools were being retracted), and that risk management had been alerted. Simons, 140 S.W.3d at 348 (noting that subjective awareness will often be proved, “if at all, by circumstantial evidence”).

Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed. Thus, we have held that a police report showing that barricades were missing was not evidence of a governmental unit’s subjective awareness of its fault after an accident, because “a private contractor or another governmental entity (such as the county or state) could have been responsible for the [missing barricades].” City of Dallas v. Carbajal, 53 Tex. Sup.Ct. J. 715, 716 (May 7, 2010) (per curiam). But that cannot be the case when the sole instrumentality of harm is the government itself. Here, the government has conceded that its surgical error perforated Arancibia’s intestine, resulting in sepsis, multiple organ failure, and death. A jury may absolve the government of liability for that death for any number of reasons. But a government cannot evade the determination by subjectively refuting fault. We cannot conclude that Southwestern was unaware of its fault in producing or contributing to the injury alleged.

Under the dissent’s approach, only an unqualified confession of fault would provide actual notice of the incident. The dissent would conclude that because Southwestern’s internal investigation found no breach of the standard of care, Southwestern could not have been aware of its fault in producing or contributing to Arancibia’s death. But “fault” as required under Simons is not fault as defined by the defendant, but rather “as ultimately alleged by the claimant.” Simons, 140 S.W.3d at 347 (emphasis added). Here, the Arancibias alleged that physician error led to Arancibia’s perforated intestine and, ultimately, her death. That Southwestern was aware that its surgeons’ errors caused those perforations and that clinical management contributed to her death is undisputed.

The purpose of the notice requirement is “to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.” Cathey, 900 S.W.2d at 341. The notice here satisfied that requirement; “requiring formal, written notice in addition would do nothing to further the purpose of the statute.” Simons, 140 S.W.3d at 347. Indeed, such notice would state exactly what Southwestern already knew. And while a bad result, in and of itself, is not evidence of a breach of the standard of care, the proof of actual notice in this case went beyond the mere fact of Arancibia’s death. Viewing the evidence in the light most favorable to the Arancibias, as we must, Southwestern had actual notice as required by section 101.101(c).

IV. We need not reach the question of whether a party may raise on interlocutory appeal an issue of sovereign immunity that it failed to raise in the trial court.

Even assuming that it had the requisite notice, Southwestern contends that the Araneibias did not substitute it as a party within thirty days of Dr. Watson’s motion to dismiss under Tort Claims Act section 101.106. See Tex. Civ. Prao. & Rem.Code § 101.106(f). Because Southwestern failed to raise this argument in the trial court, the court of appeals refused to consider the issue on interlocutory appeal. 244 S.W.3d at 461. Southwestern challenges this conclusion and argues that because we have held that immunity implicates subject matter jurisdiction, we may reach on interlocutory appeal issues the parties failed to raise in the trial court. The Araneibias disagree, contending that immunity is different from standing, ripeness, or other matters involving subject matter jurisdiction, and interlocutory appeal is different from final judgment.

We need not resolve this issue today. The 101.106 argument fails as a matter of law even if Southwestern could raise the issue for the first time on interlocutory appeal.

V. Dr. Watson’s answer was not a 101.106 motion.

Section 101.106(f) requires that “[o]n the employee’s motion, the suit against the employee shall be dismissed” unless amended pleadings naming the governmental unit as a defendant are filed within thirty days. Tex. Civ. Prac. & Rem. Code § 101.106(f). Dr. Watson moved to dismiss the case against him on January 20, 2005. Eight days later, the Araneibias filed their amended petition naming Southwestern as a defendant.

Southwestern argues that the Araneibias failed to meet the thirty-day deadline because the last sentence of Dr. Watson’s answer (and his prayer), filed months earlier, mentioned 101.106 and prayed for dismissal. Southwestern urges us to treat Watson’s general denial as if it were a 101.106 motion, triggering the thirty-day amended pleading deadline.

We conclude that Southwestern’s general denial was not a 101.106(f) motion. Section 101.106(f) lists several prerequisites that must be satisfied before an employee is entitled to dismissal. The employee must show that the suit was filed against him based on conduct within the general scope of his employment and that it could have been brought under chapter 101 against the governmental unit only. See id. Watson’s motion attached an affidavit stating he was acting within the scope of his employment with Southwestern; his answer did not.

Watson’s motion incorporated portions of Arancibia’s petition and argued that the claims she alleged were ones that could have been brought against Southwestern in the first instance; his answer did not.

Watson’s motion was entitled “Motion to Dismiss Pursuant to TCPRC Section 101.106”; his answer was not.

The motion attached a blank fiat setting the matter for hearing; the answer did not.

The parties’ Rule 11 agreement stated that Dr. Watson would not file a 101.106(f) motion before January 31, 2005 (long after he had filed his answer). While that agreement has no bearing on whether the answer was a motion, it shows that the parties certainly did not consider it as such. Nor do we.

Watson’s answer bears little resemblance to the motion he filed subsequently. Pleadings must give fair notice of a claim, and we must construe them “so as to do substantial justice.” Tex.R. Civ. P. 45. Construing the answer as a 101.106(f) motion would not comport with this rule. Even assuming Southwestern’s 101.106 complaint was properly before us, Watson’s answer was not a motion to dismiss under section 101.106(f).

VI. Conclusion

Southwestern had the right of interlocutory appeal, but it also had actual notice and a timely substitution after a section 101.106 motion. We affirm the court of appeals’ judgment. Tex.R.App. P. 60.2(a).

Justice JOHNSON delivered a dissenting opinion, joined by Justice WAINWRIGHT.

Justice JOHNSON,

joined by Justice WAINWRIGHT, dissenting.

I agree that the Tort Claims Act’s prerequisites to suit are jurisdictional as to the Arancibias’ claim. And because the Arancibias did not give timely formal notice of their claim as required by the Tort Claims Act, U.T. Southwestern’s immunity from suit was waived only if it had actual notice of the Arancibias’ claim as the term “actual notice” is used in the Tort Claims Act. In order for Southwestern to have had actual notice, it had to have timely, subjective knowledge that it was at fault in causing Irene Arancibia’s death. See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex.2004). The basis for the Arancibias’ claim that Southwestern was at fault is that the surgeons who first operated on Irene negligently caused her death by breaching the applicable standard of care. The Court does not identify evidence that Southwestern knew the injuries to Irene were caused by breach of a standard of care and that it therefore had actual subjective awareness it was at fault in causing Irene’s death. Thus, I disagree with the Court’s conclusion that Southwestern had timely, actual notice of the Arancibias’ claim within the meaning of the Tort Claims Act.

I.

The Arancibia family did not give notice of claim to Southwestern, Parkland Hospital, where the surgery was performed, or any of the doctors who performed the first surgery until over seven months after Irene’s death. By a letter dated May 7, 2004, they notified Dr. Mark Watson, who had supervised Irene’s surgery, that the family intended to pursue legal action. On August 3, 2004, Irene’s son and daughter filed suit against Dr. Watson and the doctors who had performed the surgery, Drs. Curtis and Yau, individually. They alleged that in several ways the doctors breached applicable standards of care and the breaches caused Irene’s death. On January 28, 2005, the Arancibias amended their pleadings. They added Southwestern and Dallas County Hospital District d/b/a Parkland Hospital (collectively, the entities) as defendants and dismissed the doctors. The entities pled lack of notice under the Tort Claims Act and sought dismissal on the basis of sovereign immunity.

The trial court denied the entities’ jurisdictional pleas and the court of appeals affirmed. 244 S.W.3d 455, 460.

Only Southwestern filed a petition for review. It asserts, in part, that sovereign immunity bars the Arancibias’ claims because section 311.034 makes prerequisites to suit jurisdictional, see Tex. Gov’t Code § 311.034, the Arancibias admittedly failed to give timely notice of claim under section 101.101(a), see Tex. Civ. Prac. & Rem.Code § 101.101(a), and Southwestern did not have actual notice of the claim pursuant to section 101.101(c). See id. § 101.101(c). In response, the Arancibias urge that formal notice to Southwestern was not required because they first sued the doctors individually as opposed to the entities, and reading the Tort Claims Act to require pre-suit notice to Southwestern under such circumstances would yield an absurd result. They also claim that Southwestern had actual notice of their claim so formal notice under section 101.101(a) was not required.

II.

Section 101.101(a) of the Tort Claims Act establishes the general rule that timely notice of a claim must be given to a governmental entity as a prerequisite to suit against that entity:

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.

Tex. Civ. PRAC. & Rem.Code § 101.101(a). As the Court notes, the purpose of the notice requirement “is to 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.” Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (citing City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex.1981)).

Even absent the formal notice of claim required by section 101.101(a), however, section 101.101(c) waives a governmental entity’s immunity if the entity “has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.” Tex. Civ. Prao. & Rem.Code § 101.101(c). In Cathey, the Court held that to have actual notice under section 101.101(c), the governmental unit must 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.” Id. at 341.

The Court clarified the second element of this standard — the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage — in Simons, a case strikingly similar to the case before us in regard to whether the governmental entity had actual notice of its fault. See 140 S.W.3d 338. In Simons, a work crew from the Terrell Unit of the Texas Department of Criminal Justice was digging postholes using an auger attached to a power take-off (PTO) mounted on the rear of a tractor. The auger became stuck in the ground, so the PTO was disengaged and a pipe wrench was attached to the auger in an attempt to back the auger out of the ground by hand. The TDCJ work supervisor, Ron Canon, left the area of the auger, went to the tractor and re-engaged the PTO. Simons was struck in the head and severely injured when the auger rotated and the pipe wrench swung around.

TDCJ immediately investigated and took statements from Canon and all the work crew. The statements and the report of the accident submitted by the prison safety officer indicated that when Canon went back to the tractor to re-engage the PTO, the pipe wrench had been taken off the auger, the workers had been told to stand clear of the auger, and Canon looked back before he engaged the auger and could see Simons but could not see that the pipe wrench, instead of being off the auger, was on the auger. Id. at 339-41.

Three days after the accident, the prison safety officer and the TDCJ regional safety officer took a statement from Simons who was in the hospital and on a prescription pain reliever. Simons opined that the person operating the tractor was “kinda new.” Simons remembered putting the pipe wrench on the auger and making one or two turns to back the auger out, and he did not remember hearing anyone say “stand clear.” He also opined that he did not blame anyone for his injury, he did not want anyone to get in trouble or lose good time over it, it was a mistake and “a mistake is a mistake.” 140 S.W.3d at 339-42. Thus, there was an unquestioned, unintended injury that resulted from a TDCJ employee’s intentional act of reengaging the PTO while a pipe wrench was attached to the auger, the wrench was out of the employee’s field of view, and the injured person attributed the injury to a “mistake” without directing blame toward anyone specific.

The court of appeals held that TDCJ had actual notice under the Tort Claims Act. Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d 138, 142 (Tex.App.-Beaumont 2002), rev’d, 140 S.W.3d 338 (Tex.2004). In reaching its conclusion, it noted that there was an unquestioned injury, a TDCJ employee had re-engaged the PTO that resulted in the injury, and an investigation was accomplished that put TDCJ on inquiry of its possible fault:

To support its argument that its records do not raise a fact issue on notice of culpability, the Department relies upon the conclusion it reached after it completed its investigation of the incident. We are concerned here only with the Department’s realization of its possible culpability, that is, whether the Department realized that it could be accused of negligence arising from the accident.... [T]he Department’s safety officers conducted an extensive investigation of a serious injury that occurred while the inmates were operating motor-driven machinery in a supervised work detail. Reports were prepared and promptly submitted to the unit’s safety committee. That notice, sufficient to put the Department on inquiry of its possible fault, is demonstrated by the existence of the safety review actually conducted. The Department did investigate the accident and gather the information it needed to defend Simons’s claim.

Id. This Court disagreed and explained:

What we intended in Cathey by the second requirement for actual notice 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. If a governmental unit has this subjective awareness of fault, along with the other information to which it is entitled under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the purpose of the statute — which is, “to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.” It is not enough that a governmental unit should have investigated an incident as a prudent person would have, 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.

Simons, 140 S.W.3d at 347-48 (emphasis added).

Proof of a defendant’s fault in a health care liability claim does not depend on proof of ordinary negligence, such as failing to assure that no one would be injured by the auger or an attached pipe wrench when a PTO on a tractor was engaged, but is rather dependant on proof that the defendant breached an applicable standard of care. See Tex. Civ. Prao. & Rem.Code § 74.351 (requiring timely service of a report providing an expert’s opinion regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed); Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005). Then, if breach of a standard of care is shown and it is also proved that the breach proximately caused the injury, the defendant may be found liable for damages. E.g., Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965) (noting that it is not enough in a medical negligence case to show an injury and that the injury might have occurred because of a doctor’s negligence). In this case, the Arancibias allege that the surgeons who first operated on Irene were at fault because they breached standards of care. They also allege, of course, that the breaches caused her death and Southwestern is liable for the surgeons’ fault or negligence.

III.

A.

The Arancibias first claim that they were not required to give notice of claim to Southwestern at all because they first sued the doctors individually. I disagree.

Under section 101.106 of the Tort Claims Act, plaintiffs must elect to sue either government employees or their employers. Tex. Civ. Prao. & Rem.Code § 101.106. The Arancibias assert that the notice requirements of section 101.101 do not apply to suits against employees sued individually and because they first sued the doctors individually, interpreting the Tort Claims Act to require notice to the doctors’ governmental-entity employers is unreasonable and absurd. They argue that plaintiffs will not generally give notice when they sue government employees individually because they are not required to. Thus, as will generally be the case, if notice has not been given to the entity, then requiring the governmental entity to be substituted for the employee is unfair and requires a futile action because the entity will do what Southwestern has done here and assert its lack of notice. The Arancibias, however, do not point to any language in the Tort Claims Act that indicates the Legislature intended section 101.106 to dispense with the notice requirements of section 101.101.

In responding, Southwestern makes four arguments: (1) section 101.101(a) specifies that it applies to any claim against a governmental entity “under this chapter,” and the clear statutory language contains no exceptions; (2) the Legislature did not intend to allow plaintiffs to grant themselves an exemption from the notice requirement by suing employees first, and to do so makes no sense because regardless of when the governmental entity is sued it still needs notice, so it can investigate the claim; (3) the Arancibias’ interpretation would eviscerate the notice requirements of section 101.101 because a plaintiff who failed to give notice could initially sue an individual employee, wait for the inevitable motion to dismiss the employee pursuant to section 101.106(f) and then sue the employer; and (4) it is not unfair, as the Arancibias claim, to require all claimants to give notice pursuant to section 101.101(a) — the notice requirement is clearly stated and compliance is simple and inexpensive.

I agree with Southwestern. There is no language in the Tort Claims Act indicating the Legislature intended section 101.106 to allow persons to sue governmental entities without giving statutory notice. Regardless of the Araneibias’ concerns, construing the Tort Claims Act’s language as they urge would, for all practical purposes, negate the notice requirements of section 101.101(a). Plaintiffs who failed to give notice of claim as required could sue a governmental employee individually, wait for the employee to move for dismissal, and then sue the employer, thereby avoiding the notice requirements. Thus, I would hold that regardless of the fact that the Araneibias first filed suit against the doctors individually, the Araneibias must still have satisfied the notice prerequisites of section 101.101 in order to maintain their suit against Southwestern.

B.

As to actual notice, the Araneibias urge that Dr. Watson’s e-mails to his supervisor and the subsequent investigation prove, or at least create a fact question about, whether Southwestern had subjective knowledge of its fault. They also rely on testimony by Victor Arancibia that one of the surgeons who performed the corrective surgery after Irene returned to the hospital told Victor “somebody did something very wrong” during the first surgery and Victor should get a lawyer. Southwestern argues this evidence does not raise a fact question regarding whether Southwestern subjectively knew that breach of a standard of care, as ultimately claimed by the Araneibias, caused Irene’s death.

First, Victor Arancibia’s testimony that following the second (corrective) surgery, one of the surgeons told Victor that he should find a lawyer because someone had done something wrong during the first surgery is not evidence that Southwestern had subjective knowledge it was at fault in causing Irene’s death. Victor did not identify the surgeon who made the statement and there is no evidence the surgeon was an employee of Southwestern or that the surgeon’s opinion should be imputed to Southwestern. Further, whether “in the first operation somebody did something very wrong” is not the issue. Everyone agrees that the colon perforations were an unintended and undesirable result. The issue is whether Southwestern had subjective knowledge that the surgeons breached a standard of care appropriate to the lapa-roscopic surgery. That issue was not addressed by the statement Victor attributed to the unknown surgeon.

As for the actions of the doctors, immediately after Irene’s death Dr. Watson emailed his supervisor, Dr. Edward Livingston, Chief of the Gastrointestinal Endocrine Surgery Division at Southwestern, and Dr. Robert Rege, Chair of both the Department of Surgery at Southwestern and the Division of Surgery at Parkland Hospital, about the situation. Dr. Watson described Irene’s death as a terrible outcome, noted that he had “scrubbed the entire procedure,” thought it went well, and advised Drs. Livingston and Rege that he had already spoken with risk management.

Parkland has a possible three-step review process that takes place when an unexpected patient care occurrence is identified. The first step is initial screening by the hospital’s quality management team. The second is referral to a physician or monitoring committee if certain criteria are identified in the screening process. The third step is review by a Division Peer Review Committee if the second-step physician reviewer or monitoring committee so recommends.

Dr. Livingston was assigned to review the surgery as part of Parkland’s quality control process. His review was the second of the three-step process. The documents used by Dr. Livingston in making his report were preprinted with specific questions about most aspects of the patient’s care. He answered in one instance that “[c]linical management contributed to” Irene’s death and explained his answer by a narrative that “a technical error occurred during the original hernia operation resulting in a through-and-through small bowel injury.” In regard to questions as to medical management, he checked the “No” box in response to “Criteria 1 = Practice [was] consistent with established standards. Physician Reviewer comfortable with practice. Practice Acceptable.” However, he checked the “Yes” box in regard to “Criteria 2 = Reviewed practice not necessarily consistent with established standards, but still acceptable. Physician Reviewer comfortable with practice. Practice Acceptable.” He checked additional boxes to indicate that the reviewed practice did not deviate or deviate significantly from established standards or that the practice was unacceptable. He included a narrative statement of his findings/conclusions in which he said that the unfortunate occurrence was a recognized complication of laparoscopic hernia surgery and no standard of care issues were identified. He did not recommend further review of the case. See Roark v. Allen, 633 S.W.2d 804, 811 (Tex.1982) (holding there was no evidence that a doctor’s negligence proximately caused the injury when forceps slipped during delivery and a baby’s skull was fractured).

In regard to Dr. Watson’s e-mail statement that he had contacted risk management about Irene’s death, evidence that an employee or agent contacted an enterprise’s risk management department is not evidence that the employee or anyone else subjectively believed the enterprise was at fault. Most entities of any significant size have risk management departments and require accidents or unusual incidents to be reported to the risk management team. The reporting requirement generally exists regardless of who, if anyone, is suspected of being at fault in causing the accident or incident.

The Arancibias point to the fact that Dr. Watson contacted risk management, but the record does not contain evidence explaining why he made the contact or what he reported to risk management. For example, there is no evidence of whether (1) Dr. Watson contacted risk management pursuant to routine protocol because a death was involved or because of the unexpected patient outcome, (2) his contact was not routine but was out of an abundance of caution, or (3) his contact was because he subjectively believed a breach of appropriate standards of care caused Irene’s death. Although Dr. Watson could not recall what he told risk management, the evidence is undisputed that he reported to Drs. Rege and Livingston that he believed the surgery went well and that the perforations could have been retraction injuries that occurred out of the field of view of the surgeons. Absent evidence of the reason Dr. Watson contacted risk management or what he reported, the fact the contact took place does not raise an inference that he believed Irene’s death was due to a breach of applicable standards of care as alleged by the Arancibias any more than it raises an inference that the contact was the product of routine protocol or some other reason. Cf. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001) (Phillips, C.J., concurring in part and dissenting in part) (noting that the equal inference rule is a species of the no-evidence rule that “when the circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence”). For the same foregoing reasons, the fact that Dr. Watson reported his contact with risk management to Drs. Livingston and Rege, without more, does not support an inference that any of the doctors subjectively believed Irene’s death was due to a breach of applicable standards of care.

Next to be considered are Dr. Livingston’s investigation and report. The evidence shows that when a patient dies, Parkland’s standard procedure is to have the case reviewed for quality management purposes. There is no evidence Dr. Livingston’s review was other than pursuant to standard procedures. His report contains language that, considered in isolation or out of context, might support an inference that he developed a subjective belief the surgeons may have been at fault. For example, he indicated “[c]linical management contributed to” Irene’s death, “a technical error occurred during the original hernia operation resulting in a through-and-through small bowel injury,” and checked the “No” box in response to “Criteria 1 = Practice consistent with established standards. Physician Reviewer comfortable with practice. Practice Acceptable.” But in considering all the evidence, as we must, Dr. Livingston’s explanatory statement giving his opinions and conclusions cannot be disregarded. See City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex.2005). He checked boxes specifically indicating Irene’s death was not the result of a breach of standards of care and in a narrative statement on the form he clearly set out his opinion that the unfortunate occurrence was a recognized complication of laparoscopic hernia surgery and “no standard of care issues were identified.” See Roark, 633 S.W.2d at 811. He recommended that no further review be taken, and none was. The third step in Parkland’s quality management follow-up process was not initiated and there is no evidence that further investigation of any nature was made.

The Court recently considered the actual notice issue in a non-health care setting in City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex.2010). There, the plaintiff sued for injuries she suffered when she drove into a gap in the roadway in a construction area. A City of Dallas police officer promptly investigated the accident. The officer’s written report indicated that the plaintiff drove through an unbarricaded area. The plaintiff sued over a year after the accident, but she had not given timely formal notice of claim to the City. The trial court denied the City’s plea to the jurisdiction based on lack of timely notice under the Tort Claims Act and the court of appeals affirmed. The court of appeals’ opinion turned on the City’s immediate notice that an incident had occurred, the lack of evidence of a responsible entity other than the City, and the City’s knowledge of its possible fault in the matter:

[T]he police report here shows the City had immediate notice of the incident and its possible fault in failing to block the gap in the road properly with barricades .... [Tjhere is no evidence here of a responsible entity other than the City, and the police officer making the report is an employee of that entity.... [T]he police report here is more than just notice of an accident or a description of a road condition; it is the police officer’s report of her perception of the cause of the accident.

City of Dallas v. Carbajal, 278 S.W.3d 802, 806 (Tex.App.-Dallas 2009), rev’d, 324 S.W.3d 537 (Tex.2010) (emphasis added). The Court reversed the court of appeals’ judgment. In doing so, the Court quoted and emphasized some of the previously-quoted language from Simons:

“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.”

Carbajal, 324 S.W.3d at 538 (quoting Simons, 140 S.W.3d at 347-48). The Court concluded that “[w]hen 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.” Id. at 539. That same reasoning should apply to the Arancibias’ claim.

Dr. Livingston was designated to investigate the care Irene received and determine whether breaches of applicable standards of care occurred as part of routine procedures. His report shows that he recognized the perforations in Irene’s bowel were technical errors, yet it also shows his opinion was that the perforations were a recognized complication of the surgery Irene underwent and were not outside the boundaries of accepted standards of care. He made an unambiguous hand-written summary statement to that effect and recommended that no further review of the matter take place. Dr. Livingston explained his reasoning in his deposition and maintained that his report correctly set out his subjective opinion that there were no standard of care violations. Based on Dr. Livingston’s recommendation, the third step of Parkland’s quality management review process did not occur. And there is no evidence that before the Aran-cibias finally sent their letter notice to Dr. Watson more than seven months after Irene’s death, Southwestern believed it should take action to gather information “necessary to guard against unfounded claims, settle claims, and prepare for trial.” See Cathey, 900 S.W.2d at 341.

The Court’s holding today does not take into account the nature of determining “fault” in health care cases. All the physicians recognized that the unrepaired perforations and Irene’s death were bad results. But although there is always possible, or potential, Lability for a bad health care result, a bad result simply is not evidence that a health care provider was at fault because standards of care were breached. The Arancibias dispute Dr. Livingston’s opinion, but they do not point to any reason for Southwestern to have subjectively disbelieved the sincerity of his findings and conclusions. Nor do they refer to evidence that Southwestern or any of its physicians discounted Dr. Livingston’s investigation and opinion or otherwise independently formed a subjective belief that the surgeons caused the perforations by breaching any standards of care. Thus, there is no evidence that Drs. Watson, Livingston, Rege, or Southwestern had subjective knowledge or belief that the surgeons and Southwestern were at fault in regard to Irene’s death — and until today such knowledge has been required for actual notice when a litigant fails to give timely formal notice of claim.

In Simons, the Court stated that “a governmental unit cannot acquire actual notice merely by conducting an investigation, or even by obtaining information that would reasonably suggest its culpability. The governmental unit must have actual, subjective awareness of its fault in the matter.” 140 S.W.3d at 348. And in Car-bajal, the Court rejected the argument that immediate knowledge of the facts by the City of Dallas together with the absence of evidence of other responsible parties and its knowledge of possible fault because of missing barricades was actual notice. 534 S.W.3d at 539. The Court should likewise reject the argument that Southwestern had actual notice because it knew of injuries and knew of undetected and uncorrected technical errors that potentially could generate allegations that the injuries were caused by breaches of standards of care.

IY.

I agree that statutory notice is jurisdictional under the Tort Claims Act as it applies to this case. I would hold that the notice issue is dispositive: Southwestern did not have actual notice, thus the Aranci-bias were required to, but did not, give timely formal notice. I would reverse the judgment of the court of appeals and dismiss the Arancibias’ suit against Southwestern for lack of jurisdiction.

      . 244 S.W.3d at 459 (holding that amendment was "not retroactive”); compare Howard v. Harrell, No. 07-08-0013-CV, 2009 WL 839048, *3-4, 2009 Tex.App. LEXIS 2322, *10-11 (Tex.App-Amarillo Mar. 31, 2009, no pet.) (amendments to section 311.034 do not apply to case filed before statute enacted), and Dallas Cty. v. Posey, 239 S.W.3d 336, 339 (Tex.App.-Dallas 2007) (same), vacated on other grounds, Dallas Cty. v. Posey, 290 S.W.3d 869, 872 n. 1 (Tex.2009) (per curiam), and Tex. Tech Univ. Health Sci. Ctr. v. Lucero, 234 S.W.3d 158, 166 (Tex.App.-El Paso 2007, pet. denied) (same), and Baylor Coll, of Med. v. Hernandez, 208 S.W.3d 4, 8 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (same) with Tex. Dep't of Criminal Justice v. Thomas, 263 S.W.3d 212,218 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (amendment applies to case filed before enactment), and Med. Arts Hosp. v. Robison, 216 S.W.3d 38, 41 (Tex.App.-Eastland 2006, no pet.) (same), and Tex. Dep't of Criminal Justice v. Simons, 197 S.W.3d 904, 906-07 (Tex.App.-Beaumont 2006, no pet.)(same); see also Hon. Scott Brister, Is It Time To Reform Our Courts of Appeals?, 40 Hous. Law. 22, 25 (Mar./Apr. 2003) (noting that “conflicting interpretations of the law are especially acute in Houston, due both to the volume of litigation in Harris County and the larger uncertainty as to who will hear the appeal”). This conflict gives us jurisdiction over this interlocutory appeal. Tex. Gov’t Code § 22.225(c), (e).

      . We also held that actual notice required that the governmental unit know of the death, injury, or damages claimed, as well as the identity of the parties involved. Cathey v. Booth, 900 S.W.2d at 341. Southwestern does not dispute that it had notice of those matters in this case.

      . See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 345-48 (Tex.2004) (collecting cases).

      . We did not decide whether the TDCJ had actual notice of Simons's claim because, in a case decided the same day as Simons, we held that a claimant’s failure to provide notice did not deprive the trial court of jurisdiction. See Simons, 140 S.W.3d at 348-49 (citing Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351 (Tex.2004)).

      . The jejunum is “the first two fifths of the small intestine beyond the duodenum usu. merging almost imperceptibly with the ileum though somewhat larger, thicker-walled, and more vascular and having more numerous circular folds and fewer Peyer’s patches.” Webster’s Third New International Dictionary 1213 (2002).

      . See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004).

      . It was titled “Original Answer, Abatement and Special Exceptions to Plaintiffs' Original Petition.”

      . The parties stipulated that Dr. Livingston’s investigation and findings could be considered for the purpose of determining if Southwestern had actual notice of the Arancibias' claim.


author: PER CURIAM.

text:
    Millard VAUGHN and Barbara Vaughn, Petitioners, v. Paul DRENNON and Mary Drennon, Respondents.
    No. 10-0226.
    Supreme Court of Texas.
    Oct. 22, 2010.

      Darrin M. Walker, Kingwood, TX, Robert Thomas Cain Jr., Clayton E. Dark Jr., Attorney at law, Lufkin, TX, for Petitioners.
    John H. Seale, Seale Stover & Bisbey, Jasper, TX, for Respondents.
   PER CURIAM.

In this dispute between neighbors, we must decide whether the trial court’s judgment issued after a conventional trial on the merits was final for purposes of appeal. We conclude that it was. The Drennons’ grandchildren were joined as parties due to their shared interest in the subject property, but no claims against the grandchildren were addressed at trial nor were any jury questions submitted on the grandchildren. The grandchildren were not mentioned in the trial court’s judgment, and this raised finality concerns in the court of appeals. Under the Aldridge presumption, any judgment following a conventional trial on the merits creates a presumption that the judgment is final for purposes of appeal. See Ne. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966). A judgment following a conventional trial on the merits need not dispose of every party and claim for the Aldridge presumption of finality to apply. See id. at 895, 897-98. Accordingly, we conclude that the Aldridge presumption applied in this case, and it was error for the court of appeals to dismiss the appeal for want of jurisdiction.

Millard and Barbara Vaughn and Paul and Mary Drennon had repeated disputes about water drainage off the Vaughns’ property. The Vaughns sued the Dren-nons for blocking and diverting the natural flow of water off the Vaughn property with a concrete fence, also alleging trespass and intentional infliction of emotional distress. The Drennons filed a separate lawsuit against the Vaughns for intentional infliction of emotional distress, and the trial court consolidated the two cases.

The Vaughns’ first amended petition added the Drennons’ grandchildren, Chase Atwood and Taylor Atwood, as defendants, because the Drennons had executed a deed in favor of the Atwoods. The Drennons’ attorney then filed a general denial on behalf of the Atwoods. At trial, the Dren-nons stipulated that there had been a deed reserving a life estate in the Drennons. The Vaughns proceeded with their claims against the Drennons only, based on their understanding that the Drennons remained in sole possession of the property throughout the duration of the events giving rise to the suit. The Vaughns did not pursue any claims against the Atwoods at trial, and they did not request the submission of any jury questions regarding the Atwoods, nor were any given.

The jury found that the Drennons’ fence and diversion of the natural flow of water caused $4,000 in damages to the Vaughns’ property, and that Paul Drennon’s intentional infliction of emotional distress had caused Millard Vaughn $25,000 in damages, but the jury awarded no damages for trespass. The jury also awarded each of the Drennons $25,000 for their emotional distress. The trial court, in its judgment, disregarded the jury’s findings regarding the diversion of the natural flow of water, offset Millard Vaughn’s and Paul Dren-non’s emotional distress damages, and awarded Mary Drennon $25,000. The judgment made no mention of the At-woods.

The Vaughns appealed, and from the outset the court of appeals expressed concern about whether the trial court’s judgment was final. The court requested that the Vaughns produce evidence of jurisdiction before full briefing, which they did, and the court of appeals then notified both parties in a letter that, in its opinion, the Vaughns had established jurisdiction. Nevertheless, the question of finality and jurisdiction was again raised at oral argument. The Vaughns argued in a post-submission letter that the Aldridge presumption applied to the trial court’s judgment following a conventional trial on the merits and that, in the alternative, the court of appeals should abate the appeal to allow the trial court to clarify the judgment’s finality or to issue a more definitive judgment. Instead, the court of appeals denied the request for abatement and dismissed the appeal for want of jurisdiction. 324 S.W.3d 617, 618 (Tex.App.-Tyler 2009) (mem.op.).

This is exactly the kind of delay in the appellate process that this Court has sought to avoid in continuously enforcing the Aldridge presumption. See Aldridge, 400 S.W.2d at 895 (“[A]ll too often judgments which were obviously intended to be final were being held interlocutory because of careless draftsmanship. The rule had to be changed to accommodate oversight or carelessness.”). We have long recognized a presumption of finality for judgments that follow a conventional trial on the merits. Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex.2003); see Lehmann v. Ear-Con Corp., 39 S.W.3d 191, 205 (Tex.2001) (“[W]e have tried to ensure that the right to appeal is not lost by an overly technical application of the law.... Simplicity and certainty in appellate procedure are nowhere more important than in determining the time for perfecting appeal.”); Aldridge, 400 S.W.2d at 897-98. As a general rule, “an appeal may be taken only from a final judgment.” Lehmann, 39 S.W.3d at 195. But a trial court’s judgment need not expressly dispose of all issues and claims in order to be final. See Aldridge, 400 S.W.2d at 897-98. In Aldridge, we held that:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered ... it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

Id. This presumption arose out of our concern that too often the right to appeal was abridged by judgments that were drafted poorly or were unclear. See id. at 895. Therefore, unless a trial court orders a separate trial to resolve a specific issue, there is a presumption that the trial court’s judgment disposes of all claims and issues in the case. See id. at 897-98. If there is any doubt as to the judgment’s finality, then “[fjinality must be resolved by a determination of the intention of the court [as] gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.” Lehmann, 39 S.W.3d at 203 (internal quotation marks omitted). Here, the parties and trial court clearly treated this judgment as final. When the Vaughns did not receive notice of the signed judgment, they filed a motion to extend the period for filing a motion for new trial and notice of appeal under Texas Rule of Civil Procedure 306a(4), which the trial court granted. Such a motion would not be necessary, nor would it be granted, were the judgment not believed to be final by both the Vaughns and the trial court. See Tex.R. Crv. P. 306a(3)-(4). In addition, when the court of appeals raised concerns as to the judgment’s finality, neither party contended that the trial court’s judgment was not final.

A judgment need not address every party and claim for it to be a final judgment for purposes of appeal. See Moritz, 121 S.W.3d at 719. In Moritz v. Preiss, we held that even though the plaintiff sued four parties for medical malpractice but only submitted jury questions as to three, this did not prevent the judgment from being final for purposes of appeal. Id. (“[T]here is nothing to indicate that the trial court did not intend to finally dispose of the entire case.”). Similarly, in John v. Marshall Health Services, Inc., 58 S.W.3d 738, 740 (Tex.2001) (per curiam), we held that even though a judgment failed to mention three defendants who had settled, the finality presumption applied to all parties. There is no reason in this case to deviate from our well-established precedent.

While the court of appeals recognized that the starting point in this case was the Aldridge presumption, the court looked to our recent decision in Crites v. Collins, 284 S.W.3d 839, 841 (Tex.2009) (per curiam), to rebut the presumption. 324 S.W.3d at 618. Unlike the instant case, however, our decision in Crites dealt with a judgment issued without a conventional trial on the merits, and thus the Aldridge presumption did not apply. Crites, 284 S.W.3d at 840 (“[Wjhen there has been no traditional trial on the merits, no presumption arises regarding the finality of a judgment.”). The court of appeals interpreted Crites as requiring that the judgment “unequivocally express an intent to dispose of all claims and all parties ... either explicitly or implicitly.” 324 S.W.3d at 619. That reasoning was in error. Nothing in Crites suggests that the requirement for such express language addressing every claim and party should apply to a judgment that follows a conventional trial on the merits, such as the one issued in this case. See Crites, 284 S.W.3d at 840-41. The court of appeals erred in holding that the trial court’s judgment was anything but a final appealable judgment.

Because the trial court’s judgment after a conventional trial on the merits was final for purposes of appeal, we reverse the court of appeals’ judgment dismissing for want of jurisdiction and remand the case to the court of appeals to determine the merits of the Vaughns’ appeal.


text:
    In re 24R, INC., d/b/a The Boot Jack, Relator.
    No. 09-1025.
    Supreme Court of Texas.
    Oct. 22, 2010.

      David M. Gunn, John S. Adcock, Beck, Redden & Secrest, L.L.P., Houston TX, Grace Surguy Bellomy, Law Office of Grace S. Bellomy, P.C., Boerne TX, for Relator.
    Ricardo R. Godinez, Law Office of Ricardo R. Godinez, P.C., McAllen TX, Adam Poncio, Poncio Law Offices, P.C., San Antonio TX, for Real Party in Interest.
   PER CURIAM.

In this employment discrimination case, we must decide whether the trial court abused its discretion by refusing to compel arbitration pursuant to a written arbitration agreement signed by the employer and an at-will employee. Because the arbitration agreement is not illusory, we hold that the trial court erred by refusing to compel arbitration. For the reasons expressed below, we conditionally grant mandamus relief and direct the trial court to vacate its order denying the motion to compel.

Frances Cabrera worked for 24R, Inc., d/b/a “The Boot Jack,” as an at-will employee for approximately fifteen years. While Cabrera worked at The Boot Jack, The Boot Jack presented her with three separate arbitration agreements — in 2003, 2004, and 2005 — which employees were required to sign as a condition of continued employment. Cabrera signed all three. In January 2007, she developed a medical condition for which her doctor ordered her to eat all meals before six o’clock at night. The Boot Jack terminated Cabrera approximately four months later. She alleges The Boot Jack terminated her because she requested accommodations to eat meals as directed by her doctor.

After exhausting her remedies with the Texas Workforce Commission, Cabrera sued The Boot Jack for age and disability discrimination in April 2008. The Boot Jack filed a motion to abate and compel arbitration pursuant to the 2005 agreement. The trial court denied the request. The Boot Jack then sought mandamus relief from the court of appeals, and the court of appeals denied relief. In re 24-R, Inc., 324 S.W.3d 612 (Tex.App.-Corpus Christi-Edinburg, orig. proceeding [mand. pending]). The Boot Jack now seeks mandamus relief from this Court, requesting that we vacate the trial court’s order denying its motion to compel arbitration.

We once again apply the well-known rules applicable to mandamus review of a trial court’s order granting or denying a motion to compel arbitration. “Mandamus will issue if the relator establishes a clear abuse of discretion for which there is no adequate remedy by appeal.” In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex.2010) (orig. proceeding) (per curiam) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding)). “A trial court that refuses to compel arbitration under a valid and enforceable arbitration agreement has clearly abused its discretion.” Id. (citing In re Halliburton Co., 80 S.W.3d 566, 573 (Tex.2002) (orig. proceeding)). A party seeking to compel arbitration must establish that a valid arbitration agreement exists between the parties. Id. (citing Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996) (orig. proceeding) (per curiam)). “The party seeking to avoid arbitration then bears the burden of proving its defenses against enforcing an otherwise valid arbitration provision.” Id. (citing In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex.2001) (orig. proceeding)).

Cabrera does not dispute that her discrimination claims are covered by the arbitration agreement and subject to arbitration if the agreement is enforceable. Instead, she argues that the arbitration agreement is unenforceable on the grounds that it lacks consideration and is illusory because The Boot Jack retained the right to amend the agreement and was not mutually bound. We disagree.

The enforceability of an arbitration agreement is a question of law. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). Mutual agreement to arbitrate claims provides sufficient consideration to support an arbitration agreement. In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007) (per curiam). At-will employment does not preclude employers and employees from forming subsequent contracts, “so long as neither party relies on continued employment as consideration for the contract.” J.M. Davidson, Inc., 128 S.W.3d at 228 (citations omitted). “In the context of stand-alone arbitration agreements, binding promises are required on both sides as they are the only consideration rendered to create a contract.” In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex.2005) (per curiam); see also Odyssey Healthcare, 310 S.W.3d at 424. A promise is illusory if it does not bind the promisor, such as when the promisor retains the option to discontinue performance. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 849 (Tex.2009). When illusory promises are all that support a purported bilateral contract, there is no mutuality of obligation, and therefore, no contract. Vanegas v. Am. Energy Servs., 302 S.W.3d 299, 301-02 (Tex.2009) (citations and quotations omitted).

An arbitration clause is not illusory unless one party can avoid its promise to arbitrate by amending the provision or terminating it altogether. Odyssey Healthcare, 310 S.W.3d at 424 (citing Halliburton, 80 S.W.3d at 570). Cabrera argues that The Boot Jack’s employee manual gives The Boot Jack the right to modify or abolish any personnel policy — including the arbitration agreement. The manual states that “The Boot Jack reserves the right to revoke, change or supplement guidelines at any time without notice,” and that “[t]here are a number of The Boot Jack policies an applicant needs to understand and agree to before being employed, such as the Arbitration Policy.” The arbitration agreement “applies to all types of claims and disputes relating to employment and to termination of employment,” and the “arbitrator’s award was final and binding.” Both Cabrera and The Boot Jack signed the agreement.

Though the employee manual may express that The Boot Jack retains the right to unilaterally change personnel policies, the arbitration agreement makes no mention of the right to change its terms, nor does it mention or incorporate by reference the employee manual. Documents incorporated into a contract by reference become part of that contract. In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex.2007) (orig. proceeding) (per curiam). The employee policy manual is not a contract. In fact, it contains an express disclaimer that “[t]he policies and procedures in this manual are not intended to be contractual commitments by The Boot Jack....” Express disclaimers in employee handbooks “negate[ ] any implication that a personnel procedures manual places a restriction on the employment at will relationship.” Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993) (per curiam). Therefore, Cabrera’s argument must rest on whether the validity of the arbitration agreement is affected by language from a non-contractual employee policy manual.

Cabrera primarily relies on Halliburton and a court of appeals case, In re C & H News Co., 133 S.W.3d 642, 647 (Tex.App.-Corpus Christi-Edinburg 2003, orig. proceeding), to argue that the arbitration agreement is illusory because The Boot Jack retains the right to unilaterally amend or abolish the arbitration contract without including a savings clause. In Halliburton, an employer explicitly reserved the right to unilaterally modify or discontinue the dispute resolution program. Halliburton, 80 S.W.3d at 569-70. However, this Court held that because the policy contained a “savings clause” — including a ten-day notice provision and a provision that any amendments would only apply prospectively — that prevented the employer from avoiding its promise, the arbitration agreement was not illusory. Id. at 570. In C & H News, the real party in interest similarly argued the one-page arbitration document was illusory arid unenforceable. 133 S.W.3d at 646. The court held that because the agreement required arbitration “as provided in the Handbook,” it incorporated the handbook by reference, and because the employer retained the right to unilaterally change the handbook at anytime without prior notice to employees, the arbitration agreement was illusory and unenforceable. Id. at 646-47.

Cabrera incorrectly applies both cases. The Boot Jack does not retain any right within the arbitration agreement to modify or abolish its terms; in fact, it states that the “agreement to arbitrate ... continues beyond, and is not affected by, a termination of employment.” Cabrera’s argument rests on language from the employee policy manual, an entirely separate document that does not impose any contractual obligations between The Boot Jack and its employees. The arbitration agreement is a stand-alone contract that, unlike C & H News, does not incorporate the employee policy manual. Although language in the employee manual recognizes the existence of the arbitration agreement, this does not diminish the validity of the arbitration agreement as a stand-alone contract. Therefore, the contract is not illusory and does not require a Halliburton-type savings clause.

The trial court abused its discretion in denying the motion. Mandamus relief is appropriate because The Boot Jack has no adequate remedy by appeal. See Odyssey Healthcare, 310 S.W.3d at 424.

Cabrera also argues that The Boot Jack waived its right to mandamus relief because it did not file a complete transcript from proceedings in the trial court. This argument is without merit because The Boot Jack was only required to file “relevant” transcripts of testimony with its petition for mandamus relief. See Tex.R.App. P. 52.7(a)(2). The only issue in this case is whether the arbitration agreement is illusory. The Boot Jack provided us with the arbitration agreement at issue. Because the arbitration agreement is not ambiguous, no parol evidence is necessary, and we decide its validity on the face of the agreement. See J.M. Davidson, Inc., 128 S.W.3d at 229.

Accordingly, without hearing oral argument, we conditionally grant mandamus relief to The Boot Jack and direct the trial court to vacate its prior order denying The Boot Jack’s motion to compel arbitration. Tex.R.App. P. 52.8(c). We are confident the trial court will comply, and the writ will issue only if it fails to do so.

      . The Legislature amended section 51.016 of the Texas Civil Practice and Remedies Code effective September 1, 2009 to allow interlocutory appeal of an order denying a motion to compel arbitration under the Federal Arbitration Act. Tex. Civ. Prac. & Rem.Code § 51.016. Because the trial court denied the motion to compel arbitration before the amendment took effect, section 51.016 does not apply.

      . In its petition for writ of mandamus, The Boot Jack also preemptively addressed other defenses that Cabrera may have raised in the court of appeals. We address only the arguments raised by Cabrera in this Court.