the University of Texas Health Science Center at Houston, Bella Patel, M.D., F.C.C.P. Richard W. Smalling, M.D. PhD, Rachshunda Majid, M.D. and Francisco Fuentes, M.D. v. Tomas G. Rios, M.D.

Opinion issued September 1, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-01071-CV
———————————
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT
HOUSTON, BELLA PATEL, M.D., F.C.C.P., RICHARD W. SMALLING,
M.D. PHD, RACHSHUNDA MAJID, M.D., AND FRANCISCO FUENTES,
M.D., Appellants
V.
TOMAS G. RIOS, M.D., Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2015-23764
OPINION
Appellee, Tomas G. Rios, M.D., filed suit against appellants, The University
of Texas Health Science Center at Houston (“UT Health”), Bella Patel, M.D.,
F.C.C.P., Richard W. Smalling, M.D. PhD, Rachshunda Majid, M.D., and Francisco
Fuentes, M.D. Appellant claimed injury from allegedly defamatory statements,
which he asserted resulted in, among other things, the withdrawal of an offer to work
a second year of residency with UT Health. The individual doctors brought a motion
to dismiss. The trial court denied their motion to dismiss. They now bring this
interlocutory appeal. In one issue, the individual doctors argue that the trial court
was compelled to dismiss them from the suit.
We affirm.
Background
On April 24, 2015, Rios brought suit against UT Health and the individual
doctors. Rios alleged in his original petition that he had accepted a one-year
appointment with UT Health in 2013. During that year, he wrote a complaint to the
UT Health “compliance office reporting issues relating to patient endangerment,
quality improvement, and other issues that were present during his overnight calls.”
He alleged that, following this complaint, UT Health and the individual doctors took
steps to discredit him, to publish false statements about him, and to interfere with
his current and future employment. He asserted a claim of breach of contract against
UT Health. He asserted claims of tortious interference with existing contract,
tortious interference with future relations, and defamation against UT Health and the
individual doctors.
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After answering, UT Health filed a plea to the jurisdiction, and the individual
doctors filed motions to dismiss. In their motion to dismiss, the individual doctors
asserted that Rios had received a one-year appointment “to the Cardiovascular
Disease Training Program.” “[The] appointment was made to The University of
Texas System Medical Foundation . . . which was [Rios]’s employer.” The doctors
asserted that, “[p]ursuant to its regular practice, the Program issued a reappointment
letter to [Rios] for the following appointment year.” The reappointment was
rescinded, however, due to a “lack of minimum competencies essential for
continuation in the program.”
In its plea to the jurisdiction, UT Health asserted that it was part of the
University of Texas System, which is a governmental entity. Based on this, UT
Health asserted that it had governmental immunity and that, accordingly, Rios’s
claims against it were barred. In their motion to dismiss, the individual doctors
asserted that, because Rios had asserted tort claims against UT Health and them, the
trial court was statutorily required by the Texas Tort Claims Act to dismiss the
individual doctors from the lawsuit and proceed against UT Health only. UT Health
and the individual doctors attached evidence of Rios’s employment arrangement but
did not attach any evidence of the individual doctors’ employment arrangements.
Rios filed an amended petition. In the amended petition, he asserted his
claims of tortious interference with existing contract, tortious interference with
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future relations, and defamation against the individual doctors only. His only claim
against UT Health in the amended petition was for breach of contract. Rios also
added a Section 1983 claim against the individual doctors in his amended petition.
UT Health and the individual doctors amended their plea to the jurisdiction
and motions to dismiss. Their arguments in the motions remained the same, but their
motions referred to Rios’s amended petition instead of his original petition.
Rios filed a response to the plea to the jurisdiction and motions to dismiss. In
it, Rios pointed out that there was no proof that the individual doctors were
employees of UT Health. Accordingly, Rios argued, the individual doctors failed to
establish that they were entitled to be dismissed from the suit. Rios raised this same
argument at the hearing on the motions. The trial court dismissed Rios’s breach of
contract claim against UT Health but denied the remainder of the motions.
Texas Tort Claims Act
In their sole issue, the individual doctors argue the trial court was compelled
to dismiss them from the suit.
A. Standard of Review
A trial court’s order on a motion to dismiss is commonly reviewed under an
abuse of discretion standard. Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.—
Houston [1st Dist.] 2015, no pet.) (citing Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). “However, the proper standard of
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review is not necessarily determined by the caption of the motion to which the order
relates, rather it is determined by the substance of the issue to be reviewed.” Id.
(citing Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.]
2008, pet. denied)).
Here, the motions to dismiss raised the issue of immunity. See Franka v.
Valasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that Section 101.106 of
Texas Tort Claims Act confers immunity in some instances to employees of
governmental units); Fink, 477 S.W.3d at 465 (same). If immunity applies, the trial
court lacks subject-matter jurisdiction over the case. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Univ. of Tex. Health Sci. Ctr.
at San Antonio v. Webber–Eells, 327 S.W.3d 233, 240 (Tex. App.—San Antonio
2010, no pet.). Subject-matter jurisdiction is a question of law, which we review de
novo. Miranda, 133 S.W.3d at 226. Likewise, matters of statutory construction are
reviewed under a de novo standard. City of San Antonio v. City of Boerne, 111
S.W.3d 22, 25 (Tex. 2003).
B. Analysis
Section 101.106 of the Texas Tort Claims act provides, in pertinent part, “If a
suit is filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a motion
by the governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e)
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(Vernon 2011). The Supreme Court of Texas has held that, in a plea to the
jurisdiction for a party claiming governmental immunity, the party filing the plea
bears the initial burden of establishing that it is a governmental entity. Lubbock Cty.
Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305
(Tex. 2014). We have held that employees of a governmental entity seeking the
application of immunity under the Texas Tort Claims Act bear the initial burden of
proving they are employees of a governmental unit. See Fink, 477 S.W.3d at 465–
66 (applying subsection 101.106(f)); see also Olivares v. Brown & Gay Eng’g, Inc.,
401 S.W.3d 363, 376–77 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 461 S.W.3d
117 (Tex. 2015) (holding party claiming to be employee bears burden of proving “it
is in the paid service of a governmental unit and that it is not an independent
contractor, agent or employee of an independent contractor, or someone who
performs tasks the details of which the governmental unit does not have a legal right
to control”).
Subsection 101.106(e) applies when suit is filed “against both a governmental
unit and any of its employees.” CIV. PRAC. & REM. § 101.106(e). Because the
individual doctors were seeking to be dismissed based on their status as employees
of UT Health, it was necessary for the individual doctors to establish that UT Health
was a governmental entity and that the individual doctors were employees of UT
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Health. See Lubbock Cty., 442 S.W.3d at 305; Fink, 477 S.W.3d at 465–66. The
Act defines “employee” as
a person, including an officer or agent, who is in the paid service of a
governmental unit by competent authority, but does not include an
independent contractor, an agent or employee of an independent
contractor, or a person who performs tasks the details of which the
governmental unit does not have the legal right to control.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (Vernon Supp. 2015).
The individual doctors presented no proof in their motions to dismiss that they
were employees of UT Health as defined by the Act. Accordingly, they did not carry
their burden of establishing a right to dismissal. See Fink, 477 S.W.3d at 465–66.
The individual doctors never addressed Rios’s argument that they failed to
establish they were employees of a governmental entity until their reply brief on
appeal. In it, the individual doctors suggest that UT Health’s filing the motion to
dismiss was itself proof that they were governmental employees. The individual
doctors reason that “the government would not take on the additional risk for the
benefit of a non-employee.” Their only support for this assertion is Texas Adjutant
General’s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013). Their reliance on
Ngakoue is misplaced.
In Ngakoue, the Texas Supreme Court distinguished between subsection (f)
of section 101.106—which requires proof that the employee’s actions were within
the general scope of his employment—and subsection (e) of the same statute—
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which does not have this requirement. Id. at 357–58. The court reasoned, “By filing
such a motion [based on subsection (e)], the governmental unit effectively confirms
the employee was acting within the scope of employment and that the government,
not the employee, is the proper party.” Id. at 358. The court was explaining, then,
the reason the “general scope of employment” language was absent from subsection
(e). See id. Regardless of what other language is absent, subsection (e) explicitly
makes dismissal contingent on a defendant being an employee of a governmental
unit. CIV. PRAC. & REM. § 101.106(e). The individual doctors bore the burden of
proof on this to obtain dismissal, which they did not do. See Fink, 477 S.W.3d at
465–66.
The dissent strives to establish that the record firmly shows that the individual
doctors were employees (as defined by the Texas Tort Claims Act) of UT Health.
The dissent relies on two things as proof that the individual doctors are employees
of UT Health: the allegations in the motion to dismiss and one exhibit attached to
the motion.
The exhibit upon which the dissent relies is a letter designated as a “notice of
non-reappointment and rescission of appointment.” The letter was signed by
Fuentes, one of the individual doctors. The letterhead contains UT Health’s logo.
Under the signature, Fuentes identifies himself as “Program Director.” This does
nothing to establish that Fuentes was an employee of UT Health as defined by the
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Texas Tort Claims Act, to say nothing of the remaining individual doctors. See CIV.
PRAC. & REM. § 101.001(2) (defining employee as person “in the paid service” of
the governmental entity that is not independent contractor, agent or employee of
independent contractor, or person who performs tasks which governmental entity
does not have right to control); Olivares, 401 S.W.3d at 376–77 (same).
The remainder of the dissent’s proof rests on UT Health’s assertion in its
motion to dismiss that all of the individual doctors were employees of UT Health. It
is a well-established principal of law, however, that pleadings are not proof. See,
e.g., Marshall v. Telecomms. Specialists, Inc., 806 S.W.2d 904, 908 (Tex. App.—
Houston [1st Dist.] 1991, no writ) (“Pleadings are not proof.”).
Even the plea-to-the-jurisdiction law upon which the dissent relies establishes
that the dissent has flipped the proper application of the law. In a plea to the
jurisdiction, the jurisdictional facts alleged in the plaintiff’s pleadings are presumed
to be true. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502–03 (Tex. 2010)
(“It has long been the rule that a plaintiff’s good faith allegations are used to
determine the trial court’s jurisdiction.”). A defendant who challenges the pleadings
must come forth with proof that the jurisdictional allegations are wrong. See Tex.
Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (holding
only after defendant “asserts and supports with evidence” jurisdictional facts does
burden shift to plaintiff to present proof of jurisdiction). There is no law to support
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the dissent’s assertion that UT Health’s allegations in its motion somehow
constitutes proof to affirmatively negate jurisdiction. See Green Tree Servicing,
LLC v. Woods, 388 S.W.3d 785, 793 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
(rejecting raising jurisdictional challenges in motion for no-evidence summary
judgment because doing so would, among other things, deny plaintiff right “to stand
on the pleadings in the absence of evidence negating jurisdiction”).
Appellants’ sole issue is overruled.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Chief Justice Radack, concurring in the judgment.
Justice Keyes, dissenting.
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