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

AUGUST 9, 2011

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; HONORABLE RUBEN GONZALES REYES, PRESIDING

Memorandum Opinion

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

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

the trial court’s order denying their motion to dismiss them as defendants in a lawsuit

filed by Cynthia Sell, on behalf of Mitchell Ray Sell, for injuries that Mitchell received

while under the care of the nurses’ employer, Sunrise Canyon Hospital. Dismissal was

sought upon the basis of §101.106(f) of the Civil Practice and Remedies Code which

provides for such dismissal 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. TEX. CIV.

PRAC. & REM. CODE ANN. §101.106(f) (Vernon 2011). The parties challenged only

whether the third condition had been met. We originally affirmed the trial court’s order

of dismissal finding that the suit could not have been brought against the nurses’

employer due to sovereign immunity. Clark v. Sell, 228 S.W.3d 873, 875 (Tex. App.–

Amarillo 2007).

Our decision was reversed by the Texas Supreme Court and remanded to us1 in

light of that Court’s decision in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). In

Franka, the Court held that for purposes of §101.106(f), suit “could have been brought”

against a governmental unit entitled to sovereign immunity regardless of whether

sovereign immunity had been waived. Id. at 385. In light of that decision, we reverse

the order of the trial court and render judgment dismissing the claims against Clark,

Rodriguez, and Ortiz. TEX. R. APP. P. 43.3.

Brian Quinn
Chief Justice

1
Clark v. Sell, 332 S.W.3d 366, 367 (Tex. 2011).

2