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
CONCURRING OPINION
Because Rios properly and timely amended his petition to nonsuit his tort
claims against the University of Texas Health Science Center at Houston [“UT
Health”], I believe that the trial court properly denied the Defendants’ Amended
Motion to Dismiss. Accordingly, I concur in the judgment.
On April 24, 2015, Rios sued UTHealth and four doctors [“the Physician
Defendants”] in connection with the non-renewal of his fellowship appointment,
alleging both breach of contract and tort claims. On July 15, 2015, UTHealth filed
a Plea to the Jurisdiction and a Motion to Dismiss the Physician Defendants,
asserting that, under TEX. CIV. PRAC. & REM. CODE § 101.106(e) (West 2011),
when a plaintiff sues both a governmental unit and any of its employees under the
Texas Tort Claims Act, the employees “shall immediately be dismissed on the
filing of a motion by the governmental unit.”
On July 24, 2015, before the trial court had ruled on UTHealth’s Motion to
Dismiss, Rios amended his petition. In his First Amended Petition, Rios
nonsuited1 his tort claims against UTHealth, proceeding against the governmental
entity based only on a breach of contract claim. Rios asserted his tort claims
against the Physician Defendants only, and included for the first time claims for
violations of 42 U.S.C. § 1983.
1
See FKM P’Ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619
632—33 (Tex. 2008) (holding that filing an amended petition that omits a
previously asserted cause of action “effectively nonsuits or voluntarily dismisses
the omitted claims,” which “are effectively dismissed at the time the amended
pleading is filed.”).
2
UTHealth did not stand on and obtain a ruling on its previously filed Motion
to Dismiss. Instead, it canceled the July 27, 2015 submission date, and, on August
11, 2015, filed Defendants’ Amended Plea to the Jurisdiction and Motion to
Dismiss, which addressed the allegations in Rios’s First Amended Petition,
specifically “breach of contract against UTHealth, and tortious interference with an
existing contract, tortious interference with future relationships, defamation and
violation of his first amendment rights pursuant to 42 U.S.C. 1983 against the
[Physician] Defendants.” Again, UT Health and the Physician Defendants sought
dismissal of the tort claims against the Physician Doctors pursuant to § 101.106(e).
The trial court granted the Defendants’ Amended Plea to the Jurisdiction as
to the breach of contract claim against UTHealth, but denied the Amended Motion
to Dismiss the tort claims and the § 1983 claims against the Physician Defendants.
On appeal, the UT Health and Physician Defendants contend that the trial
court erred in denying their Amended Motion to Dismiss, arguing that “Section
101.106(e) Prevents a Plaintiff from Amending His Petition to Preclude Dismissal
of Tort Claims against [the Physician Defendants].” Specifically, the Defendants
argue that “the Plain Text of Section 101.106(e) Makes Dismissal of Tort Claims
Mandatory Upon the Filing of the Government’s Motion.”
The first issue is whether Section 101.106(e) ever permits a plaintiff to
amend his or her petition. Texas Department of Aging and Disability Services v.
3
Cannon, 453 S.W.3d 411, 418 (Tex. 2015) answers this question in the affirmative
and makes clear that the governmental entity’s employees do not have “an absolute
right to dismissal upon the [101.106(e)] motion’s filing.” As the supreme court
notes “a court order, along with certain filings, is required to effectuate dismissal.”
Id. The supreme court agreed that nothing in subsection (e) precludes a plaintiff
from amending her petition before that dismissal in accordance with applicable
procedural rules. Id. at 417. Indeed, the supreme court disavowed several prior
appeals court decisions that had held that amended pleadings filed after the
government’s subsection (e) motion could not moot the right created by the filing
of the motion. Id. at n.12. In so holding, the supreme court stated, “we disapprove
of those decisions to the extent they hold that an amended petition filed while a
subsection (e) motion is pending is never properly considered.” Id.
The more complicated question is whether the “applicable procedural rules,”
id. at 416, permit Rios’s amendment under the specific facts and circumstances of
this case. More specifically, was Rios’s initial petition against both UTHealth and
the Physician Defendants an “irrevocable election,” id. at 417, to pursue the tort
claims against UTHealth only, even though Rios amended his petition to omit tort
claims against UTHealth before UTHealth filed its Amended Motion to Dismiss? I
believe that Cannon, when considered with Austin State Hosp. v. Graham, 347
S.W.3d 298 (Tex. 2011), compels the conclusion that a plaintiff’s amendment, if
4
filed before the governmental entity files a motion to dismiss its employees, is
timely and not prohibited.
In Graham, the plaintiff brought tort claims against a state hospital and two
of its employee doctors. Id. at 299. The hospital filed a subsection (e) motion to
dismiss the doctors, but before the trial court signed an order dismissing the
doctors, the plaintiff nonsuited his claims against the hospital. Id. On appeal to
the supreme court, the plaintiff argued that his nonsuit precluded the trial court
from ruling on the Hospital’s motion to dismiss. Id. at 301. Citing Rule 162 of the
Texas Rules of Civil Procedure,2 the supreme court disagreed, holding that the
plaintiff’s nonsuit could not prejudice the Hospital’s right to be heard on its
“pending claim for affirmative relief,” i.e., its motion to dismiss the employee
doctors. Graham, 347 S.W.3d at 301.
In this case, had UTHealth and the Physician Defendants chosen to stand on
their first Motion to Dismiss, Graham would have controlled and Rios’s Amended
Petition would have been filed too late to prejudice UTHealth’s and the Physician
Doctors’ rights to seek a ruling on their previously filed section 101.106(e) Motion
to Dismiss. That, however, is not what happened.
Rule 162 provides in part that “[a]ny dismissal pursuant to this rule shall not
prejudice the right of an adverse party to be heard on a pending claim for
affirmative relief . . . .” TEX. R. CIV. P. 162 (West 2003).
5
Instead, after Rios amended his petition to nonsuit all tort claims against
UTHealth, UTHealth and the Physician Defendants did not seek a ruling on their
then-pending Motion to Dismiss. Instead, they filed Defendants’ Amended Motion
to Dismiss. As such, the Defendants’ Amended Motion to Dismiss canceled and
replaced its first Motion to Dismiss. See TEX. R. CIV. P. 65 (stating that “[u]nless
the substituted instrument shall be set aside on exceptions, the instrument for
which it is substituted shall no longer be regarded as a part of the pleading in the
record of the cause . . . .”).
Because the Defendants’ first Motion to Dismiss ceased to exist once they
amended it, there was no “pending claim for relief” when Rios amended his
petition to nonsuit the tort claims against UTHealth. Thus, under the reasoning of
Graham, Rios’s Amended Petition, which was filed before the Defendants’
Amended Motion to Dismiss—the motion from which this appeal arises—was
timely. To hold otherwise under these facts would cause “subsection (e) to conflict
with our liberal procedural rules governing pleading amendments.” See Cannon,
453 S.W.3d at 418 (holding that absolute right to dismissal upon filing of
101.106(e) motion would conflict with liberal rules governing pleading
amendments).
And, nothing in the language of subsection (e) compels the conclusion that a
suit against the government and its employees is an “irrevocable election” to sue
6
the government, if and when the plaintiff amends to sue only the employees before
a subsection (e) motion is filed.
The relevant portions of the statute provide:
(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.
(b) The filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and immediately
and forever bars any suit or recovery by the plaintiff against the
governmental unity regarding the same subject matter unless the
governmental unit consents.
....
(e) 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 § 101.106(a), (b), (e).
Subsections (a) and (b) use the language “irrevocable election”; subsection
(e) does not. Indeed, subsection (e) makes the dismissal of the employees
mandatory upon on the filing of a motion by the governmental unit, not upon the
filing of a suit against a governmental unit and its employees. We construe a
statute’s words according to their plain and common meaning unless they are
statutorily defined otherwise, a different meaning is apparent from the context, or
unless such a construction leads to absurd or nonsensical results. See Tex. Lottery
7
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
Determining legislative intent requires that we consider the statute as a whole,
reading all its language in context, and not reading individual provisions in
isolation. See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).
Because the Legislature used the words “irrevocable election” in subsections (a)
and (b), and not subsection (e), and because subsection (e) hinges upon the filing
of a motion by the government to obtain the dismissal of the employee defendants,
I would interpret subsection (e) to allow a plaintiff to amend his petition to nonsuit
claims against the government until the government files a motion to dismiss the
claims against the employees.
I believe that, by filing an Amended Motion to Dismiss, UTHealth and the
Physician Defendants have waived any right to complain about the trial court’s
refusal to grant their first Motion to Dismiss. And, because their Amended Motion
to Dismiss was filed after Rios amended his petition, there was no “pending claim
for relief” at the time the amended petition was filed. As such, Rios’s amendment
was timely under the reasoning of Graham.
8
For this reason, I would affirm the trial court’s order denying the Amended
Motion to Dismiss the Defendant Physicians.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Keyes.
Radack, C.J., concurring.
Keyes, J., dissenting.
9
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.
Combined Opinion