Mary O'Neill, LVN, Rocio Gamez, LVN, Evelyn Clark, R.N., Roseanne Rodriguez, MHS, Elizabeth Ortiz, MAS and Advantage Medical Staffing v. Cynthia Sell, on Behalf of Mitchell Ray Sell

NO. 07-07-0049-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 27, 2007
______________________________

EVELYN CLARK, R.N., ROSEANNE RODRIGUEZ, MHS,
and ELIZABETH ORTIZ, MAS
Appellants

v.

CYNTHIA SELL, on behalf of MITCHELL RAY SELL,

Appellee
_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-536,095; HON. RUBEN GONZALES REYES, PRESIDING
_______________________________

Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Evelyn Clark, Roseanne Rodriguez, and Elizabeth Ortiz (the nurses) appeal from

an order denying their motion to dismiss. Their motion was founded upon §101.106(f) of

the Texas Civil Practice and Remedies Code. And, in it, they alleged that they were

governmental employees, the claims asserted against them by Cynthia Sell (on behalf of

Mitchell Sell) involved conduct purporting to occur within the scope of their employment,

and their employer (Sunrise Canyon Hospital) was a governmental entity susceptible to suit
under chapter 101 of the Civil Practice and Remedies Code. Given those circumstances,

the trial court was allegedly obligated to dismiss the suit if Sell failed to amend her

pleadings to drop them while adding Sunrise Canyon as the defendant. The trial court

overruled the motion. We affirm its decision.

Background

According to the original petition, Mitchell Sell was a resident of Sunrise Canyon.

While there, he purportedly received medication that caused him to fall into a deep sleep.

As he slept, he lay on his arm for an extended period of time. During this time, the nurses

failed to move or monitor him, which omission resulted in injury to his arm. Thereafter,

Cynthia sued Clark, Rodriguez, and Ortiz, among others. Upon joining issue, the three

nurses filed the previously mentioned motion to dismiss. The trial court denied it; so, they

appealed.

Standard of Review

Whether the trial court erred depends upon whether it abused its discretion. See

Williams v. Nealon, 199 S.W.3d 462, 464 (Tex. App.–Houston [1st Dist.] 2006, pet. filed)

(applying the standard of abused discretion to motions to dismiss); Bowers v. Matula, 943

S.W.2d 536, 538 (Tex. App.–Houston [1st Dist.] 1997, no writ) (applying the standard of

abused discretion). It abuses its discretion when the decision fails to comport with guiding

rules and principles or is arbitrary and unreasonable. Williams v. Nealon, 199 S.W.3d at

464; Miller v. Gann, 822 S.W.2d 283, 286 (Tex. App.–Houston [1st Dist.] 1991, writ

denied). Finally, the scope of review is limited to those arguments raised in the motion to

dismiss. Williams v. Nealon, 199 S.W.3d at 464-65.

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Application of Standard

Per §101.106(f)

If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee's employment and if it
could have been brought under this chapter against the governmental unit,
the suit is considered to be against the employee in the employee's official
capacity only. On the employee's motion, the suit against the employee shall
be dismissed unless the plaintiff files amended pleadings dismissing the
employee and naming the governmental unit as defendant on or before the
30th day after the date the motion is filed.

TEX . CIV. PRAC . & REM . CODE ANN . §101.106(f) (Vernon 2005). Given the wording of that

statute, dismissal is warranted only if the movant is an employee of a governmental unit,

the conduct involved occurred within the general scope of that employee’s employment,

and the suit could have been brought against the governmental unit or entity. Phillips v.

DaFonte, 187 S.W.3d 669, 675 (Tex. App.–Houston [14th Dist.] 2006, no pet.). Assuming

arguendo that the first two conditions were met, we conclude that the third was not.

Units of the state government enjoy sovereign immunity from suit unless it is waived

by statute. Texas Dept. Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224-25 (Tex. 2004).

Per the Tort Claims Act, that immunity is lost in three ways, id. at 225, that is, when the

injury complained of arises 1) from the use of government vehicles, 2) from premises

defects, or 3) from the use of or conditions relating to realty or tangible personalty. TEX .

CIV. PRAC . REM . CODE ANN . §101.021-.022 (Vernon 2005); Texas Dept. Parks & Wildlife

v. Miranda, 133 S.W.3d at 225. Additionally, it is not enough that a vehicle, premises

defect, or piece of property simply be involved in some way; rather, one or the other must

be a proximate cause of the underlying injury. Dallas Co. MHMR v. Bossley, 968 S.W.2d

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339, 343 (Tex.1998) (stating that the property must proximately cause the injury for

immunity to be waived).

Here, Cynthia sued to recover damages for injury to Mitchell’s arm. That injury

allegedly occurred because the three nurses in question did not “arouse,” “fully assess,”

or “periodically turn” Mitchell. In other words, they supposedly neglected to perform certain

medical services, and that neglect resulted in his injuries. Given the nature of her

allegations, we see no nexus between the injuries in dispute and a premises defect, motor

vehicle, or condition or use of property as required in Bossley.1 Nor are we cited to any

evidence of record filling the void. Thus, we cannot say that the appellate record supports

the conclusion that suit “could have been brought” against Sunrise Canyon, and the

requirements of §101.106(f) went unsatisfied at bar.

We do not ignore the nurses’ contention that the statutory phrase “could have been

brought” simply meant that the entity could have been sued, irrespective of the outcome

or immunity. By requiring that the suit “could have been brought” against the entity, the

legislature must have required more than a plaintiff being able to simply type the name of

some entity or person into the original petition. If the latter was all that was necessary,

then there would be no need for the condition since it could never go unsatisfied; in other

words, because any and everyone is subject to being named as a party in any particular

suit there would be no need to specify that as a condition of dismissal. So, we opt to give

1
The three nurses do assert for the first tim e on appeal that tangible personalty was involved because
Mitchell m ay have been given an overdose of drugs. Yet, we find no allegation by Cynthia that the m edication
he received was excessive or im properly adm inistered. Nor do we find any allegation wherein she purported
to com plain about any im proper effect of the m edication. Her com plaints sim ply encom pass the failure to
properly m onitor, assess, or m ove Mitchell given the fact of his m edication. Thus, the argum ent about drugs
being a cause of his injury, for purposes of waiving im m unity, lacks foundation.

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substance to the legislature’s words and construe them to require a potential for legitimate

liability. That is, the complaint must, at the very minimum, allege a cause of action having

a lawful potential for exposing the defendant to liability. And, that cannot happen when

units of the state government are sued given their sovereign immunity, unless of course,

an exception to that immunity applies.

Accordingly, we hold that the record before it provided the trial court basis for its

ruling. Thus, it did not abuse its discretion in overruling the motion to dismiss, and we

affirm that decision.

Brian Quinn
Chief Justice

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