Donita Rowan and James Niese v. Carmelita Escalante, M.D., E. Edmund Kim, M.D., Edgardo Rivera, M.D., and Franklin C. Wong, M.D. ( 2012 )

Reversed and Dismissed; Dismissed; and Memorandum Opinion filed May 17, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-05-00828-CV
NO. 14-06-00197-CV
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CARMELITA ESCALANTE, M. D., E. EDMUND KIM, M. D., EDGARDO
RIVERA, M. D., AND FRANKLIN C. WONG, M. D., Appellants
V.
DONITA ROWAN AND JAMES NIESE, Appellees
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DONITA ROWAN AND JAMES NIESE, Appellants
V.
CARMELITA ESCALANTE, M. D., E. EDMUND KIM, M. D., EDGARDO
RIVERA, M. D., AND FRANKLIN C. WONG, M. D., Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 04-64492
MEMORANDUM OPINION ON REMAND
Donita Rowan and her husband, James Niese, filed suit against Dr. Carmelita P.
Escalante, Dr. E. Edmund Kim, Dr. Edgardo Rivera, and Dr. Franklin C. Wong, physicians
at The University of Texas M.D. Anderson Cancer Center (“M.D. Anderson”), alleging the
doctors were negligent in failing to diagnose and treat the recurrence of Rowan’s cancer.
The doctors moved to dismiss the suit under section 101.106(f) of the Texas Tort Claims
Act, Tex. Civ. Prac. & Rem.Code § 101.106(f), claiming that the suit was based on conduct
within the general scope of their employment and that the cause of action could have been
brought against M.D. Anderson.
The trial court denied the doctors’ motion to dismiss, and they filed an interlocutory
appeal. While the appeal was pending, the doctors filed a motion for summary judgment on
other grounds, which the trial court granted, and Rowan and Niese appealed. This court
consolidated the appeals.1 We affirmed the denial of the motion to dismiss and reversed
the summary judgment. 251 S.W.3d 720, 722 (Tex.App.-Houston [14th Dist.] 2008).
The Supreme Court of Texas has reversed our judgment, stating:
While this case has been pending on appeal, we have decided Franka
v. Velasquez, 332 S.W.3d 367 (Tex.2011), holding among other things that,
for purposes of section 101.106(f), a tort action is brought “under” the Texas
Tort Claims Act, even if the government has not waived its immunity for
such actions. 332 S.W.3d at 370–71. In light of Franka, we grant the doctors'
petition for review, and without hearing oral argument, reverse the court of
appeals' judgment and remand the case to the court of appeals for further
proceedings. Tex. R. App. P. 59.1.
Escalante v. Rowan, 332 S.W.3d 365-66 (Tex. 2011). Accordingly, in light of Franka, we
reverse the trial court's denial of the doctors’ motion to dismiss this lawsuit in Cause No.
1 Cause No. 14-05-00828-CV is the doctors' interlocutory appeal from the trial court's denial of their motion to
dismiss the lawsuit. Cause No. 14-06-00197-CV is the appeal by Rowan and Niese of the trial court's grant of
summary judgment against them.
2
14-05-00828-CV and render judgment dismissing Rowan's and Niese's claims with
prejudice.
The dismissal of the lawsuit makes the issues raised in Cause No. 14-06-00197-CV
moot. That appeal is dismissed.
PER CURIAM
Panel consists of Justices Frost, Boyce, and Mirabal.2
.
2
Senior Justice Margaret Garner Mirabal sitting by assignment.
3