the University of Texas Southwestern Medical Center v. Angela McCarty, Personally and as Next Friend of M.B., Her Minor Child

REVERSE and REMAND and Opinion Filed June 24, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01019-CV
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
Appellant
V.
ANGELA MCCARTY, PERSONALLY AND AS NEXT FRIEND OF M.B.,
HER MINOR CHILD, Appellee
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-21-01163-C
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Smith
Appellant, the University of Texas Southwestern Medical Center (UT
Southwestern), brings this interlocutory appeal1 challenging the trial court’s order
denying as moot its motion to dismiss appellee Angela McCarty’s claims against UT
Southwestern physicians. In one issue, UT Southwestern argues the trial court erred
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); Austin State Hosp. v. Graham, 347 S.W.3d
298, 301 (Tex. 2011) (per curiam).
in denying the motion as moot and, instead, was required to dismiss the claims
against the physicians with prejudice. We reverse and remand.
Procedural Background
McCarty, personally and as next friend of M.B., her minor child, brought suit
against Children’s Medical Center of Dallas d/b/a Children’s Health (Children’s),
UT Southwestern, UT Southwestern Health Systems, Renee Potera, M.D., Nishit
Patel, M.D., Matthew Sherman, M.D., Colin Danko, M.D. and Bethany Cartwright,
M.D. regarding the medical treatment of M.B. McCarty alleged that each physician
was either an employee of a private corporation or Children’s or, in the alternative,
was employed by UT Southwestern Health Systems or UT Southwestern. Further,
McCarty alleged that each doctor was either negligent as a private actor or that UT
Southwestern or UT Southwestern Health Systems was negligent due to the
wrongful acts and omissions of its employees.
Each physician answered and specially excepted to McCarty’s petition on the
ground that they each were an employee of a governmental unit—UT
Southwestern—and, thus, suit should have been brought against UT Southwestern
and they should be dismissed. UT Southwestern also argued the physicians should
be dismissed in its Original Answer, Jury Demand, Motion to Dismiss Pursuant to
Texas Tort Claims Act Section 101.106(e), Motion to Sever & Motion to Change
the Style of the Case.
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Children’s also answered and specially excepted to McCarty’s allegations that
the physicians were employees of Children’s. Children’s asserted that the physicians
were independent contractors.
A hearing was set for September 2, 2021, on UT Southwestern’s motion to
dismiss. Prior to the hearing, on August 10, 2021, McCarty filed a notice of nonsuit
without prejudice as to the named physicians. McCarty also filed an amended
petition naming only Children’s and UT Southwestern as defendants. McCarty
further alleged that the previously named physicians were acting in their capacity as
employees of UT Southwestern. After filing her notice of nonsuit, McCarty filed a
response to UT Southwestern’s motion to dismiss arguing that the trial court should
deny the motion because (1) it was moot, (2) UT Southwestern failed to prove the
physicians were its employees, and (3) the relief requested was overbroad as she
alleged claims outside of the Texas Tort Claims Act. UT Southwestern maintained
that its physicians were entitled to dismissal with prejudice and argued that
McCarty’s amended petition was a judicial admission acknowledging the physicians
were employed by UT Southwestern.
The trial court ultimately heard UT Southwestern’s motion to dismiss on
October 18, 2021. At the hearing, the trial court informed the parties that it no longer
had jurisdiction because McCarty nonsuited the physicians and removed them from
her pleadings. The trial court entered an order on November 1, 2021, finding that
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all matters raised in the motion were moot and denied the motion as moot. This
appeal followed.
Dismissal under Section 101.106(e)
Under the Texas Tort Claims Act, a plaintiff must decide at the outset whether
to sue the governmental entity on a theory of vicarious liability or its employees
independently; a plaintiff cannot sue both. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.106; Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 542 S.W.3d 530, 536
(Tex. 2017). “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) (emphasis added). The supreme court has held that “this statutory right
to dismissal accrues when the motion is filed and is not impaired by later
amendments to the pleadings or motion.” Rios, 542 S.W.3d at 532. Furthermore,
“a plaintiff’s nonsuit following a motion to dismiss does not operate to deny the
movant a ruling on its motion.” Id. at 537 (citing Graham, 347 S.W.3d at 301).
Although Rios nonsuited the governmental unit in an attempt to move forward with
its suit against the employees and not the governmental unit as the statute requires
and McCarty did here, we nevertheless interpret Rios to mean that a plaintiff cannot
deny a movant the full relief it is entitled under the statute by nonsuiting a party. See
id.
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Here, McCarty’s notice of nonsuit was without prejudice. However, the
statute requires the dismissal to be with prejudice because it bars further suit against,
or recovery from, an individual employee of the governmental unit. TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(a) (“The filing of a suit under this chapter against a
governmental unit constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding the same subject matter.”);
see Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (where party cannot cure
jurisdictional defect, dismissal with prejudice is proper). Therefore, McCarty’s
nonsuit cannot be used to deny UT Southwestern the relief it was entitled: dismissal
of its physicians with prejudice.
McCarty argues that UT Southwestern’s motion did not trigger section
101.106(e) because it requested dismissal only if McCarty did not amend her petition
to remove the physician defendants. Because she amended her petition and
nonsuited the physicians, she argues UT Southwestern’s attempts to dismiss them
were moot as the physicians were no longer parties. UT Southwestern’s motion to
dismiss sought the following relief: “Defendant UT Southwestern respectfully
requests Plaintiffs amend their petition immediately as required by the TTCA.
Alternatively, should Plaintiffs fail to follow the statute, Defendant UT
Southwestern respectfully requests and prays the Court enter an order dismissing
Plaintiffs’ claims against [the physicians] in their entirety and with prejudice.”
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McCarty did amend her petition as UT Southwestern requested; however,
McCarty did not nonsuit the physicians with prejudice as required by section
101.106. UT Southwestern’s motion requested McCarty to amend the petition
“immediately as required by the TTCA” and, if she “fail[ed] to follow the statute,”
UT Southwestern requested the claims be dismissed with prejudice. McCarty did
not follow the statute and, thus, UT Southwestern’s request was not moot.
McCarty also argues that UT Southwestern’s motion did not trigger section
101.106(e) because it lacked the required factual support showing the physicians
were governmental employees. However, as the supreme court has explained, by
the attorney general filing a motion to dismiss on behalf of public servants
acknowledging that they were employed by a governmental unit, the governmental
unit effectively confirmed that the physicians were employees of UT Southwestern
acting within the scope of their employment and that UT Southwestern, not the
physicians, was the proper party. See Rios, 542 S.W.3d at 535. Additionally, each
physician individually answered and asserted that he or she was an employee of UT
Southwestern. Therefore, UT Southwestern’s motion was sufficient to invoke
section 101.106(e)’s mandate that the employee physicians be immediately
dismissed from the suit.
We conclude the trial court erred in dismissing UT Southwestern’s motion to
dismiss as moot and sustain its sole issue on appeal.
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Conclusion
We reverse the order of the trial court dismissing as moot UT Southwestern’s
motion to dismiss the named physicians and remand this case to the trial court for
further proceedings consistent with this opinion.
/Craig Smith/
CRAIG SMITH
JUSTICE
211019F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE UNIVERSITY OF TEXAS On Appeal from the County Court at
SOUTHWESTERN MEDICAL Law No. 3, Dallas County, Texas
CENTER, Appellant Trial Court Cause No. CC-21-01163-
C.
No. 05-21-01019-CV V. Opinion delivered by Justice Smith.
Justices Schenck and Osborne
ANGELA MCCARTY, participating.
PERSONALLY AND AS NEXT
FRIEND OF M.B., HER MINOR
CHILD, Appellee
In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED, and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant THE UNIVERSITY OF TEXAS
SOUTHWESTERN MEDICAL CENTER recover its costs of this appeal from
appellee ANGELA MCCARTY, PERSONALLY AND AS NEXT FRIEND OF
M.B., HER MINOR CHILD.
Judgment entered this 24th day of June 2022.
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